Date: 20010130
Docket: IMM-2811-00
BETWEEN:
JUN ZHENG
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This application is for judicial review of a decision of Delphina Ocquaye of the Canadian High Commission - Immigration in London, England, (the "visa officer"), dated April 27, 2000 and refusing the Applicant's application for a student authorization on the grounds that she was not satisfied that the Applicant's ties to his home country were strong, or that he would return there if he was unable to gain admission into a diploma or degree program in Canada. She was also not satisfied that the Applicant was a bona fide visitor to Canada.
[2] The Applicant is a citizen of the People's Republic of China. On March 28, 2000, he filed an application for a student authorization in Canada with the Canadian High Commission, Immigration Division, in London, U.K.
[3] In his covering letter, he explained that he was currently studying English in England and that he wished to continue his studies in Canada, as this would be more economical for his family and give him some valued exposure to North America. He had been accepted in an English as a second language program in British Columbia. After completing his studies, he intended to apply for a diploma or a bachelor's degree of business administration in a Canadian college. He stated that if he was unable to study business administration in Canada, he would return to China upon completing the English studies.
[4] The Applicant also explained that his parents, wealthy entrepreneurs, had sufficient funds to financially support him during his stay in Canada. Furthermore, the Applicant planned to eventually return to China to join his parents' company. Included in the application was an employment contract between the Applicant and the company, stating that upon completion of the proposed studies in Canada, the company would employ him at advantageous conditions and would reimburse 60% of the tuition costs.
[5] The Applicant was informed by letter that his application had been refused on April 27, 2000.
[6] Whether the visa officer erred in refusing to issue a student authorization to the Applicant - Whether the visa officer breached her duty of fairness by failing to inform the Applicant as to her concerns with respect to the Applicant's long term intentions, and by failing to offer the Applicant an opportunity to respond to those concerns.
[7] The Applicant submits that the visa officer, in reaching her decision, could not take into account any intention of the Applicant to legally immigrate to Canada. Only an intention to remain in Canada illegally, after the expiration of a temporary visa, may be considered to refuse such an application. The Applicant further submits that the visa officer could not reasonably conclude that he would seek to remain in Canada illegally in light of the facts that were presented to her by his application, namely that he had previously travelled to Canada on a student visa and then returned to China before that visa expired, the fact that he comes from a prosperous family in China, that he has an assurance of lucrative employment in his father's company and that he will eventually inherit this company. According to the Applicant, his application made clear that he had very strong ties to China, that he had a valid temporary purpose in seeking to enter Canada, and that he had already been a bona fide visitor to Canada in the past and was seeking to become one again.
[8] The Applicant submits that the visa officer had a duty to inform him of any concerns that she may have had with respect to his application, and to provide him with an opportunity to disabuse her of such concerns.
[9] The Respondent believes that the standard of review for a visa officer's decision not to issue a student authorization is patent unreasonableness.
[10] The Minister submits that the visa officer applied the correct test in order to determine whether to issue a student authorization to the Applicant. Her decision, based on the facts that were before her, was not patently unreasonable. She could consider, among other factors, the Applicant's long-term goals. The visa officer was not satisfied that upon completing his studies in Canada, the Applicant would return to China. This finding was open to the visa officer on the basis of the evidence that was before her. The Applicant's application was rightly refused.
[11] According to the Respondent, the visa officer was not required to inform the Applicant that she had concerns with respect to bona fides before refusing the application. The processing of a student authorization application is highly administrative and does not resemble judicial decision-making. Unsuccessful applicants have automatic appeal rights by way of judicial review to the Federal Court. A negative decision simply means that the applicant will be unable to study in Canada for a temporary period. The Act does not require that a particular procedure be followed in processing student authorizations. There is no ground for arguing unfairness in the process merely because the visa officer did not communicate all of her concerns to the Applicant or give the Applicant an opportunity to respond to the visa officer's concerns that arose directly form the Act and Regulations that she is bound to follow in her assessment of the Applicant's visa application.
Analysis
[12] An applicant, who is not a Canadian citizen or a permanent resident and who wishes to attend a university or college in Canada, requires a valid and subsisting student authorization. Subsection 9(1) of the Act requires that every immigrant and visitor (except in prescribed cases) must apply for and obtain a visa before that person appears at a port of entry. Subsection 9(1.2) of the Act places the burden on the Applicant to satisfy the visa officer that the Applicant is not an immigrant. The onus is on the Applicant to establish the bona fides of his or her application for temporary entry into Canada as a student. Section 15(1)(b) of the Regulations states that every applicant for a student authorization should satisfy the visa officer that he or she has sufficient financial resources available to him or her.
[13] The issuance of a student authorization pursuant to subsection 9(4) of the Act is a discretionary decision. According to this Court in De La Cruz v. Canada (Minister of Employment an Immigration) (1989), 26 F.T.R. 285 (F.C.T.D.), at page 287 : "[t]he duty of the visa officer is to accord proper consideration to any application, but he is not required to issue a visitor's visa unless he is convinced the applicant fulfills the legislative requirements". With respect to the scope of review of a visa officer's decision to refuse to issue a student authorization, the Court held that:
| "To succeed, the applicants must do more than establish the possibility that [the court] may have reached a different conclusion than the visa officer. There must be either an error of law apparent on the face of the record, or a breach of the duty of fairness appropriate to this essentially administrative decision." (De La Cruz v. Canada (Minister of Employment an Immigration), supra, at 287; Zhao v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1124 (F.C.T.D.) (July 9, 1999)) |
[14] Furthermore, section 18.1(4)(d) of the Federal Court Act provides that the Federal Court may only interfere with errors of fact made by a federal administrative tribunal where the error is made in a perverse or capricious manner or without regard for the material before it. This standard of "perverse and capricious" for questions of fact has been stated by the Federal Court of Appeal to be indistinguishable from the standard of patent unreasonableness (Jaworski v. Canada (A.G.) (May 9, 2000), No. A-508-98 (F.C.A.), at para. 72).
[15] In Wong (Litigation guardian) v. Canada (Minister of Citizenship and Immigration) (1999), 246 N.R. 377 (F.C.A.), the Federal Court of Appeal had to deal with the issue of whether or not a visa officer is entitled, at the time of an application for a student visa, to search for the long term goal of the applicant and to take into consideration that goal in assessing whether the application is a genuine visitor within the meaning of subsection 2(1) of the Act. The Court found:
| "[w]e 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 in determining whether or not an applicant is a visitor within the terms of the definition provided in the Act." |
[16] In my view, it is clear, from reading the visa officer's affidavit, that the visa officer considered whether or not the Applicant would be likely to return to China after his studies, which is in fact the correct legal test to be applied.
[17] In the present case, the visa officer indicated, in her CAIPS notes, that the Applicant's agent claimed that the Applicant intended to apply for a diploma or a Bachelor's degree in business administration upon completion of his English studies in Canada. The visa officer noted that the Applicant was studying English in England and that he wanted to study in Canada because it would be more economical for his parents. The visa officer seems to be concerned by the fact that in his previous application for a student visa, the Applicant had stated that he was attending a high school program and that there is no document on file showing the progress of his studies. The visa officer seems to have concerns about the Applicant's eligibility for a degree or diploma program, the reason why the Applicant could not continue to study English in the U.K., and she is not satisfied that his ties to China are strong or that the Applicant will return to his country if unable to gain admission into a diploma or a degree program in Canada. She is not satisfied that the Applicant is a bona fide visitor to Canada.
[18] At the opening of the hearing, there was a motion to strike paragraph 6 of the Applicant's affidavit as well as paragraph 33 of the Applicant's submissions which I granted. It is well-established that it is not open for an Applicant to rely on evidence that was not before the visa officer in support of an application for judicial review (Asafov v. M.E.I., (May 18, 1994) IMM-7425-93 (F.C.T.D.); Lemiecha v. Canada (M.E.I.) (1993), 24 Imm. L.R. (2d) 95 (F.C.T.D.)). The visa officer only became aware of the information in paragraph 6 of the Applicant's affidavit after she had read it. As such, the new facts contained in those paragraphs cannot be taken into account by this Court sitting in judicial review.
[19] After having considered all the evidence and arguments submitted, I find that the visa officer's decision was reasonable considering the circumstances. The Applicant is 16 years and had no evidence to satisfy me that he had sufficient knowledge of English to be able to continue studies here in Canada. It is suggested that it was less expensive to come study here rather than to stay in England. I doubt that very much. The evidence is that he has $240,000 in the bank dedicated to pay for his education. I think that had he been older and completed undergraduate studies, and had a firm commitment for University studies, which he does not have at the moment, I would be more inclined to go along with him. I am also satisfied that there is very weak evidence supporting the position that he has sufficient ties to his home country to ensure his return. I, like the visa officer, would have a great deal of doubt as to his probability of return to China.
[20] For the foregoing reasons, the application is dismissed.
JUDGE
OTTAWA, Ontario
January 30, 2001