Date: 20010405
Docket: IMM-3763-00
Neutral Citation: 2001 FCT 291
BETWEEN:
RAN ZENG
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of the decision of a visa officer at the Canadian Consulate General in Hong Kong, dated June 5, 2000 which refused the Applicant's application for a student authorization in Canada on the grounds that she was not satisfied that the Applicant was a bona fide visitor to Canada nor that he had sufficient funds to pay for his expenses while in Canada.
[2] The Applicant, born in 1980, is a citizen of the People's Republic of China. On February 6, 2000, he filed an application for a student authorization in Canada with the Canadian Consulate General in Hong Kong. He needed the visa to complete a one year OAC full-time academic program starting in May 2, 2000 at the Imperial College of Toronto.
[3] The applicant was not interviewed.
[4] On March 17, 2000, a screening officer reviewed the file and determined that the Applicant had not submitted all the documents required by the visa application kit. The screening officer sent a letter to the Applicant, along with another kit, indicating that he had 30 days to comply with the requirements of the kit.
[5] On June 2, 2000, the visa officer reviewed the file and refused the application on the grounds that the Applicant had not satisfied her that he was a bona fide visitor to Canada nor that he had sufficient funds to pay for his expenses while in Canada.
[6] The Applicant contends that the visa officer's reliance on the study plan was incorrect and it was misconstrued; that she placed too much reliance on her view of the study plan to assess the Applicant's ties to China. She commented that the Applicant is 19 years of age, unmarried, lives with his parents and has no siblings, has finished high school and has not yet entered university or the job market. According to the Applicant, it is hard to conceive of what additional ties a person of that age could reasonably be expected to have.
[7] The Applicant submits that where there is no serious flaw in the application, even if some of the financial documentation does not meet the exact standards set out in the kit, but where the financial documentation shows, on balance, a family history of wealth, the visa officer should consider granting an interview in order to satisfy her doubts.
[8] With respect to his financial situation, the Applicant states that he had prepaid the first year of tuition and that he clearly had sufficient funds for the requested period of authorization. The visa officer should have assessed the Applicant's financial circumstances for the one-year period for which the application was submitted, not a further four year plan as she unfortunately presumed.
[9] The Respondent submits that considering the circumstances, the visa officer reasonably concluded that there was insufficient evidence before her to overcome the presumption that the Applicant was intending to immigrate to Canada. During her cross-examination, the visa officer testified that the study plan was just one piece of evidence that she considered in examining the Applicant's ties to China. The Respondent further submits that weight of evidence is a matter of discretion best left to the trier of fact. It was up to the Applicant to provide an understandable and reasonable study plan as part of his application for a student authorization, which he did not do.
[10] The Respondent denies that the Applicant submitted all the documents required by the application kit. The visa officer's finding that the Applicant's parents did not have adequate funds was reasonable open to the visa officer, especially considering the fact that the Applicant had failed to provide certain documentation that was specifically requested in the kit.
[11] According to the Respondent, the visa officer did not fail to provide an opportunity for the Applicant to respond to her concerns with respect to funds or the Applicant's bona fides, since these issues arise directly from the Act and Regulations.
[12] 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 an Applicant's bona fides. Other factors that may be considered include 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 had been obtained from an educational institution in Canada and the likelihood of return to the country of origin (Wong (Litigation guardian) v. Canada (Minister of Citizenship and Immigration) (1999), 246 N.R. 377 (F.C.A.).
[13] From the CAIPS notes, it appears that factors that were deemed detrimental to the Applicant's bona fides were the vagueness of his study plan, his lack of establishment in China and his weak ties thereto.
[14] During her cross-examination, the visa officer found that the weakness of the Applicant's ties stemmed from the fact that he was nineteen years old, that there was no information that he was studying in China and that he was not working yet. Due to the Chinese policy on family, he is the only child of his two living parents. The Applicant's counsel expresses concerns that such a narrow view with respect to the "ties to the country of origin" criterion would preclude any young man in a similar situation from demonstrating strong ties to his country. The evaluation of the sufficiency of ties is a matter of weight of evidence and of the circumstances, and must be left to the care of the visa officer. I agree with this criterion but in this case there is no evidence whatsoever to support the visa officer's findings as to bona fides. What she relies on is illogical.
[15] The visa officer found that there was no solid proof of the Applicant's parents income and that the available funding was insufficient.
[16] The insufficiency of the parents' income or availability of funds is denied by documents on the record. The fact they did not meet the visa officer's stringent expectation is not sufficient grounds to reject this aspect of the application.
[17] The visa officer's understanding of the study plan was that the Applicant intended to spend more than a year studying in Canada, even though the documents submitted indicated that he had been accepted in a one year program. This, in my view, was un unreasonable finding of fact. The visa officer, during cross-examination, was aware that the program in which the Applicant had been accepted was a foundation course, in other words, a pre-university program. There is nothing in the evidence that supports the visa officer's attack of the study plan.
[18] I hereby allow this application for judicial review.
JUDGE
OTTAWA, Ontario
April 5, 2001