Date: 20010705
Docket: IMM-3018-00
Neutral Citation: 2001 FCT 763
QUANYI LI
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
Teitelbaum J.
[1] The applicant seeks judicial review of the decision, dated May 4, 2000, made by a visa officer at the Canadian Embassy in Beijing, China, which refused the applicant's application for a student authorization in Canada. The applicant had not satisfied the visa officer that his intention to visit Canada was bona fide and temporary in nature.
Background
[2] The applicant, Quanyi Li, is an eighteen year old citizen of the People's Republic of China. In January, 2000, he submitted an application for a student authorization to the Canadian Embassy in Beijing. At that time, he was a senior middle school student, in what would be the equivalent of grade 11 in a Canadian high school.
[3] In his application package, the applicant included a letter of acceptance from the Board of Trustees, School District No. 48. The letter stated that the applicant had been accepted at Howe Sound Secondary School, and that he would be enrolled in grade 12 for a term of study lasting from April 25, 2000 to December 25, 2000 (Certified Tribunal Record, p. 14). The applicant's Study Plan, also included in his application package, indicated that he planned to take an ESL program at Howe Sound for one year and then finish his high school education at the same school. Following that, he planned to spend three years studying business management at a Canadian university or college (Certified Tribunal Record, p. 15). The total length of his stay in Canada would be five and a half years.
[4] The applicant was not interviewed.
[5] A letter of refusal, dated May 4, 2000, was sent out to the applicant, indicating that his application was refused on the grounds that he had not satisfied the visa officer that his intentions were bona fide and that his visit to Canada would be temporary. The visa officer's concerns, outlined in the CAIPS notes, read as follows:
APPLT IS PERMANENTLY OPTING OUT OF THE CHINESE EDUCATIONAL SYSTEM. WILL GET NO CREDIT FOR STUDY DONE ABROAD, EXTREMELY DIFFICULT TO RETURN TO THE CHARACTER-BASED WRITTEN LANGUAGE AT THE POST-SECONDARY LEVEL. WILL HAVE NO OTHER OPTION BUT TO CONTINUE STUDIES ABROAD, REQUIRING VERY SOLID FINANCIAL SUPPORT WHICH APPLT'S FAMILY DOES NOT APPEAR TO BE ABLE TO AFFORD (VERY FEW CHINESE FAMILIES CAN). EVEN IF FINANCES WERE ENOUGH, AM NOT SATISFIED THAT APPLT WOULD CONSIDER RETURNING TO PRC TO FIND EMPLOYMENT WITHOUT HAVING COMPLETED EVEN A PRC SMS EDUCATION - JOB PROSPECTS WOULD BE SEVERELY LIMITED.
(Certified Tribunal Record, p. 16)
Applicant's Position
[6] The applicant submits that the visa officer made a finding of fact in a perverse or capricious manner by concluding that the applicant would be permanently opting out of the Chinese education system by not completing his senior middle school education in that country, and that the applicant would not get credit for overseas studies. The applicant argues that such findings were made without reference to any supporting evidence.
[7] The applicant contends that the visa officer erred in concluding that his job prospects in China would be extremely limited. Again, no supporting evidence was presented to show that a person such as the applicant would need a senior middle school education in order to find employment.
[8] Finally, the applicant submits that the visa officer breached the duty of fairness by not giving him the opportunity to address the visa officer's concerns.
Respondent's Position
[9] The respondent submits in the written submissions filed, that the appropriate standard of review for this type of decision is that of patent unreasonableness. I do not agree.
[10] With regard to the decision, the respondent submits that it is largely a question of fact, and that the findings made by the visa officer, found in the CAIPS notes, were reasonably open to him based on the evidence submitted in the application package.
[11] The respondent maintains that the visa officer did not breach the duty of fairness because his concerns arose directly from the Immigration Act and Regulations, and were not founded on extrinsic evidence. The respondent submits that the visa officer was not required to inform the applicant that he had concerns about the applicant's bona fides or sufficiency of funds.
Analysis
[12] In order to pursue a course of study in Canada, a person who is neither a Canadian citizen nor a permanent resident, must obtain a valid and subsisting student authorization. According to subsection 9(1) of the Immigration Act, except in prescribed cases, every immigrant and visitor must apply for and obtain a visa before appearing at a port of entry. Subsection 9(1.2) provides that the burden rests on the applicant to satisfy a visa officer that the applicant is not an immigrant. Thus, the applicant bears the onus of establishing the bona fides of his or her application for temporary entry into Canada as a student.
[13] Subsection 15(1)(b) of the Regulations provides that applications for student authorizations shall be accompanied by, inter alia, a letter of acceptance from the institution at which the applicant wishes to study, and sufficient documentation to enable the visa officer to be satisfied that the applicant has sufficient financial resources available to cover his or her expenses while in Canada. This was filed by the applicant when he filed his application.
[14] The decision to issue a student authorization is discretionary. In De La Cruz v. Canada (M.E.I.) (1989), 26 F.T.R. 285 at (F.C.T.D.), the Court held, "the 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 regard to the scope of judicial review of such a decision, the Court held:
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.
[15] The appropriate standard of review for this type of decision - a discretionary one by a visa officer - is the same as that enunciated by McIntyre J. in the Maple Lodge Farms v. Canada, [1982] 2 S.C.R. 2:
It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.
[16] In Wang v. Canada (M.C.I.), [2001] F.C.J. No. 95 (IMM-2813-00, January 25, 2001), Rouleau J., referring to the above cited passage as well as to the Supreme Court of Canada's decision in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, held that the appropriate standard of review should be reasonableness simpliciter.
[17] It is well settled that the duty of fairness owed in cases such as this one is limited. The applicant bears the burden of satisfying the visa officer of the bona fides of his application. In this case, the visa officer was not satisfied that the applicant's stay in Canada would be temporary in nature but he fails to say on what basis he based his decision.
[18] It is apparent from reading the material contained in the Tribunal Record and the visa officer's CAIPS notes, that the reason for refusing the request for a student visa was that the applicant was "permanently opting out of the Chinese Educational System" and that the applicant "will get no credit for study done abroad" as it will be "extremely difficult to return to the character-based written language at the post-secondary level". As a result of this, the visa officer states, in the CAIPS notes, the applicant "will have no other option but to continue studies abroad, requiring very solid financial support which the applt's family does not appear to be able to afford (very few Chinese families can)."
[19] First, what other Chinese families can or cannot afford is not the issue. The issue for the visa officer to determine, with the documentation given to him by the applicant is whether the applicant or his family had the finances to support the applicant while he was attending school.
[20] I do not understand the meaning of "requiring very solid financial support". Does it mean that the sum of $152,000 Canadian dollars is not very solid financial support"?
[21] Furthermore, I see no evidence in the file upon which the visa officer based his conclusion that the applicant was permanently opting out of the Chinese Educational System by wishing to attend school in Canada.
[22] The visa officer may be correct in the conclusion but I see no evidence presented to or had by the visa officer to come to this conclusion.
[23] Based on the material presented to me, I cannot agree the visa officer's decision was reasonable as he does not state, as I have said, on what documentation he was in possession of to conclude as he did.
[24] The application for judicial review is allowed. The decision of the visa officer of May 4, 2000 is set aside, and the matter is to be returned to a different visa officer for a rehearing. The applicant may submit up to date material for the new hearing if that is his wish.
(Sgd.) "Max M. Teitelbaum" Judge
Vancouver, British Columbia
July 5, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3018-00
STYLE OF CAUSE: Quanyi Li v. Minister of Citizenship and Immigration
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: July 4, 2001
REASONS FOR ORDER OF THE COURT BY: Teitelbaum J.
DATED: July 5, 2001
APPEARANCES:
Melvin Weigel FOR APPLICANT
Pauline Anthoine FOR RESPONDENT
SOLICITORS OF RECORD:
Lu Chan FOR APPLICANT
Vancouver, British Columbia
Deputy Attorney General of Canada FOR RESPONDENT
Department of Justice
Vancouver, British Columbia