Date: 19990728
Docket: IMM-4988-98
BETWEEN:
TONG XU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
[1] These reasons arise out of an application for judicial review of a decision of a visa officer rejecting the applicant"s application for an authorization to study in Canada and a related visitor"s visa. The visa officer"s decision was conveyed to the applicant by letter dated the 26th of August, 1998. That letter reads in part as follows:
| This refers to your application and today"s interview for temporary entry to Canada as a student. |
| All persons who submit an application for authorization to study in Canada and an accompanying visitor visa must, pursuant to Sections 13.(2) and 15.(1) of the Immigration Regulations, satisfy a visa officer that: |
| - their intended stay in Canada is temporary in nature; - that they are in possession of an adequate amount of funds to support themselves and their dependants, if any, during the period of stay in Canada and to effect their departure from Canada; and, - that they have been accepted for studies at an accredited educational institution. |
Following today"s interview and a review of the information submitted in support of your application, your application cannot be approved at this time. You have failed to satisfy me that you can fulfil the requirements for either a student authorization or a visitor visa. Further consideration of your application at this time does not appear to be warranted.
It is not recommended that you reapply. However, if you wish to do so, I suggest that you wait at least one year and that you reapply only if you deem that your situation has changed significantly. ...
[2] While, as earlier noted, the letter of rejection is dated the 26th of August, 1998, in fact the interview of the applicant by the visa officer took place on the 31st of August, 1998. It was not disputed that the rejection letter was prepared before the interview commenced and was simply handed to the applicant at the end of the interview, without any alteration or addition to reflect the impact of the interview.
[3] Counsel for the applicant urged that the decision under review should be set aside on three grounds, namely: first, because the visa officer fettered her discretion in applying a blanket policy of the Hong Kong Visa Section regarding rejection of student visas for secondary school level students from the People"s Republic of China; second, because the visa officer disclosed a reasonable apprehension of bias by applying the blanket policy through the preparation of a refusal letter prior to the applicant"s interview; and third, because the visa officer"s decision was perverse and capricious or made without regard to the evidence before her.
[4] I will deal briefly with the third issue first. In Wong v. Canada (Minister of Citizenship and Immigration)1 I wrote:
The minor applicant applied for a visa to allow him to come to Canada to pursue a course of studies of some nine months duration. Such an application is for permission for a clearly "temporary purpose". It is in the nature of student visas that they are issued for limited periods of time. If the minor applicant, together with his family, concluded in the future that he wished to continue to pursue his studies in Canada, a renewal of his visa or a new visa would be required. It would be open to the Respondent to examine the totality of the circumstances each time that the minor applicant applied for renewal or a new visa. If, at any stage during the course of the minor applicant"s education it became apparent that the minor applicant"s ties to Hong Kong had so deteriorated as to demonstrate that they were insufficient to ensure his return there, then refusal of the request for renewal or for a new visa would clearly be justified. But on the basis of the evidence that was before the visa officer on the 12th of August, 1996, I conclude that it was capricious for the visa
officer to reach a decision that the minor applicant"s application to come to Canada was for other than a "temporary purpose".1
While the student authorization here applied for was for a longer term, the evidence in this matter regarding the temporary nature of the applicant"s stay in Canada would appear to have been stronger than it was in Wong. That being said, I wish to turn to the issues of fettering of discretion and reasonable apprehension of bias which I am satisfied should be determinative in this matter.
[5] As indicated earlier in these reasons, the visa officer"s rejection letter was finalized prior to the conduct of the visa officer"s interview with the applicant. The date of the refusal letter, which is a date earlier than the date of the interview, I accept as being nothing more than a clerical error.
[6] In Baker v. Canada (Minister of Citizenship and Immigration)2, Madame Justice L"Heureux-Dubé, after reviewing the test for reasonable apprehension of bias set out by de Grandpré J. writing in dissent in Committee for Justice and Liberty v. National Energy Board3 and noting that it has been held that the standards for reasonable apprehension of bias may vary, like other aspects of procedural fairness, depending on the context and the type of function performed by the administrative decision-maker involved, wrote at paragraph 48:
In my opinion, the well-informed member of the community would perceive bias when reading Officer Lorenz"s comments. His notes, and the manner in which they are written, do not disclose the existence of an open mind or a weighing of the particular circumstances of the case free from stereotypes.
[7] I am satisfied that the same can be said here in reviewing the way in which the visa officer proceeded. The visa officer admitted on cross-examination on her affidavit that the Visa Section of the Canadian High Commission at Honk Kong has a generalized concern regarding young persons from the People"s Republic of China who seek to study in Canada at the secondary school level. The applicant was such a person. The preparation of a letter of rejection in advance of the interview, while certainly an administrative convenience if the outcome of the interview is as anticipated, could reasonably be seen to reflect a fettering of discretion and to give rise to a reasonable apprehension of bias.
[8] Put another way, and in the words of Madame Justice L"Heureux-Dubé, the pre-preparation of the letter does not disclose the existence of an open mind or weighing of the particular circumstances of the case free from stereotypes. This may be contrasted with a situation where a form letter, or form paragraphs, are stored in memory and are instantly recoverable to be incorporated with other commentary, no matter how brief, which clearly reflects the tenor of an interview with an individual such as the applicant. I conclude that the pre-preparation of a rejection letter and the delivery of that letter to the applicant at the close of the interview, without modification to in any way reflect a weighing of the particular circumstances of the case, as identified in the course of the interview, discloses a fettering of discretion and would give rise in the mind of a well-informed member of the community to a perception of bias on the part of the visa officer.
[9] In the result, this application for judicial review will be allowed and this matter will be referred back to the respondent for redetermination by a different visa officer. The applicant is entitled to costs of the application which I fix at $1,200.00
[10] Neither counsel recommended certification of a question. No question will be certified.
_____________________________
Judge
Ottawa, Ontario
July 28, 1999
__________________ (1997), 39 Imm. L.R. (2d) 78 (F.C.T.D); appeal dismissed, Court file: A-533-97, June 23, 1999, wherein Létourneau J.A. wrote:
We firmly believe the visa officer is entitled, even at the moment of the first application for such visa, to examine the totality of the circumstances, including the long term goal of the applicant. Such goal is a relevant consideration, but not necessarily determinative, to be weighed with all the other facts and factors [such as the ties to the country of origin, whether there are credible reasons for wishing to study in Canada, the age of the applicant, whether prior acceptance has been obtained from an educational institution in Canada and the likelihood of return to the country of origin] in determining whether or not an applicant is a visitor within the terms of the definition provided in the Act.
1 To the same effect see IMM-2751-97 and IMM-2752-97. These two files were heard together. They are indexed as Mittal (Litigation Guardian of) v. Canada (MCI) (1998), 147 F.T.R. 285, (F.C.T.D.). In Yu (Litigation Guardian of) v. Canada (Minister of Employment and Immigration) (1993) 21 Imm. L.R. (2d) 1, McKeown J. reached a different conclusion.