Date: 19981125
Docket: IMM-631-98
BETWEEN:
SUN JIE
Applicant
| - and - |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROTHSTEIN J.:
[1] The applicant was refused a visitor's visa to enter Canada as a student. The visa officer did not believe the applicant would be a visitor but rather, an immigrant. Subsection 9(1.2) of the Immigration Act, R.S.C. 1985, c. I-2, provides:
| 9. (1.2) A person who makes an application for a visitor's visa shall satisfy a visa officer that the person is not an immigrant. |
The onus was on the applicant to satisfy the visa officer that he would not be an immigrant.
[2] The material indicates that the visa officer in Beijing was of the opinion that a very small percentage of privately funded students destined to foreign schools return to China. For that reason, the visa office "[took] it as a given that the applicant [was] not going to come back unless there [were] very strong and compelling reasons to do so".
[3] In the applicant's interview, the applicant recorded the following comments of the visa officer:
| Q. After careful analysis of your application and interview, we think we cannot 100% guarantee that you are going to return to China upon conclusion of your study. Therefore we cannot grant you visa. |
| A. May I ask a question? |
| Q. Of course. |
| A. How can I prove that I will return to China upon completion of my study? I have my wife, my son, and my house are still in China. That is not enough? |
| Q. Many illegal immigrants went there first and then got their family. |
| A. Are all students illegal immigrants. |
| Q. All in all, we cannot 100% guarantee that you are going to return to China upon conclusion of your study. Therefore we cannot grant you visa. |
The affidavit of the visa officer does not refute the applicant's evidence.
[4] There is nothing wrong with the visa officer taking it as a given that the applicant will not return in the absence of strong and compelling reasons to do so. However, requiring a 100% guarantee would seem to be an impossible standard for an applicant to meet. It goes beyond strong and compelling reasons. I cannot fathom how an applicant could provide a 100% guarantee.
[5] The visa officer is required to consider the reasons given by the applicant. If they are not strong and compelling, they need not be accepted. However, the standard must be one that is not impossible to achieve.
[6] The judicial review is allowed and the matter remitted to a different visa officer for redetermination.
[7] For guidance of the visa officer, I would make the following observations on some of the other arguments of the applicant before this Court. There is nothing wrong with a visa officer having regard to information in prior applications and interviews of the applicant provided the visa officer decides the case on the basis of the evidence before him or her and does not consider himself or herself bound or fettered by previous decisions. Nor is it wrong for the visa officer to draw inferences from the facts as to whether the applicant has any intention of returning to China. In this respect, it is relevant for the visa officer to consider opportunities for the applicant in Canada, relative wage levels between China and Canada, and the other considerations which were taken into account in this case. Finally, it would be advisable if the visa officer is looking for evidence that the applicant will return to China, to specifically address that issue in the interview.
Marshall Rothstein
J U D G E
OTTAWA, ONTARIO
NOVEMBER 25, 1998