Date: 20011210
Docket: IMM-2851-00
Neutral citation: 2001 FCT 1353
Between:
XIAOFEI GUO
Applicant,
- and -
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent.
REASONS FOR ORDER AND ORDER
KELEN J.:
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, c.F-7 in respect of a decision made by visa officer Delphina Oequaye, at the Canadian High Commission in London, UK, dated May 5, 2000, to refuse the applicant's application for a student visa.
FACTS
[2] In January 2000, the applicant, then 17 years old, from China, submitted to the Canadian High Commission in London, U.K., an application for temporary entry to Canada as a student as required by section 10 of the Immigration Act, R.S.C. 1985, c I-2, ("the Act"):
Applications by students and workers
10. Except in such cases as are prescribed, every person, other than a Canadian citizen or a permanent resident, who seeks to come into Canada for the purpose of
(a) attending any university or college authorized by statute or charter to confer degrees,
(b) taking any academic, professional or vocational training course at any university, college or other institution not described in paragraph (a), or
(c) engaging in employment
shall make an application to a visa officer for and obtain authorization to come into Canada for that purpose before the person appears at a port of entry.
[3] The application was assigned to visa officer Delphina Oequaye to determine whether the applicant met the criteria set out in the Act. One criteria is the test in section 9(1.2) of the Act, which states:
Burden on Visitors
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.
[4] On May 5, 2000, the applicant attended at the Canadian High Commission in London, and was interviewed by visa officer Ocquaye regarding her application for student authorization in order to pursue a course of studies in Canada. The applicant intended to follow a course of study in intensive English and university preparation (O.A.C.) at the Cambridge International College of Canada in Toronto.
[5] The applicant stated that she desired to study in Canada because she had heard that the education system was superior to that of Ireland, where she was studying at the time of her application, and because she felt that a Canadian degree would receive better recognition upon her return to China.
[6] The applicant stated that she would return to China because her parents would miss her. The visa officer noted that the applicant had no real knowledge of Canada; had not researched additional education in Ireland, the UK, or back in China, and could provide no valid reason why she could not continue her education in Ireland. She applied for a student visa in the United Kingdom because she believed she would not be able to obtain a visa in China.
[7] After a 20 minute interview, the application was denied.
ISSUES
[8] The issues in this matter are:
1. Did the visa officer deny the applicant procedural fairness by not providing to the applicant a meaningful opportunity to address her concerns?
2. Did the officer err in assessing the bona fide of the applicant?
3. Did the officer err in law in applying the wrong test?
STANDARD OF REVIEW
[9] Teitelbaum J. in Liu v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1125, 2001 FCT 751, held:
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. Government of Canada, [1982] 2 S.C.R. 2 at pp. 7 - 8:
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.
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 [emphasis added].
Reasonableness simpliciter is the appropriate standard of review in this case.
ANALYSIS
The Bona Fide Test
[10] Muldoon J. in Li v. M.C.I. 2001 FCT 791, [2001] F.C.J. No. 1144, (F.C.T.D.), stated at paragraph 26:
Subsection 9(1.2) [of the Immigration Act] requires that any person who makes an application for a visitor's visa shall satisfy a visa officer that the person is not an immigrant. This is a statutory presumption that a person making an application for a visitor's visa is an immigrant, and, of course would need an immigration visa.
[11] The test is clarified in Zheng v. M.C.I. (2001), 13 Imm. L.R. (3d) 226, [2001] F.C.J. No. 110 (F.C.T.D.), where Rouleau J. wrote:
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.
The visa officer decided that the applicant was not a bona fide visitor for several factors.
Irrelevant Factors Considered by the Visa Officer
[12] In this case, the visa officer's CAIPS notes demonstrate that the visa officer relied upon factors which have been found by this Court to be highly irrelevant.
[13] The visa officer relied upon the fact that the applicant went to Ireland to study and then apply for a student visa to Canada from the U.K. because it is easier to get a visa from the U.K. than from China. The visa officer also considered that there is no reason why the applicant cannot continue her English studies in Ireland. In Wang v. Minister of Citizenship and Immigration (supra.), Rouleau J. held at paragraph 25:
In addition, several of the immigration officer's findings contained in the CAIPS notes are irrelevant. In particular, why the Applicant, having just arrived in the United Kingdom from China and wanting to study in Canada, did not apply from China and whether or not the Applicant had applied to study in a similar program in the United Kingdom is highly irrelevant and should not have been a factor in the assessment.
The Wang case is directly applicable to the case at bar. Wang, the applicant, was seventeen years of age, the same age as the applicant in this case, when the application for a student visa was filed. In the Wang case, the applicant had applied for a Canadian student visa from the U.K. rather than from China. The visa officer considered this to be a factor in his assessment that the visitor visa applicant was not bona fide. Mr. Justice Rouleau held that this factor was "highly irrelevant", and should not have been a factor in the assessment. In the case at bar I will follow Mr. Justice Rouleau on this matter.
[14] In the case at bar, the visa officer considered that the applicant did not apply to study in a similar program in the United Kingdom was a relevant factor. Mr. Justice Rouleau held in Wang that this factor was highly irrelevant and should not have been a factor in the assessment. I will follow Justice Rouleau on this matter.
Relevant Factor not Addressed
[15] The visa officer failed to address a very relevant factor; namely the applicant's ties to China which would be evidence of her likelihood to return to China upon the completion of her studies. Her ties in China are her parents, who are both successful, and have established themselves in significant employment. Her father is employed as a director general of the police and her mother is employed as a financial manager for the government and for several other companies. The applicant is an only child and stated in her affidavit that she would be returning to China because her parents would miss her. I think it was also apparent from the record that the applicant would miss her parents. The applicant is pursuing her studies in Canada upon the recommendation of her father. The applicant was still a minor at the time of her application for a student visa, and her father seeks a Canadian education for his daughter. There is no evidence that the visa officer considered and rejected this relevant factor with respect to whether the applicant was a bona fide visitor. The visa officer must demonstrate that she considered a highly relevant factor which contradicts the conclusion that the applicant would not return to China.
CONCLUSION
[16] The visa officer's decision is unreasonable since it is based on two factors which this Court has previously held are "highly irrelevant", and since it did not address one very relevant factor.
ORDER
[17] This application for judicial review is allowed and the matter returned to the respondent for redetermination by a different visa officer.
"Michael A. Kelen" ___________________________
Judge
OTTAWA, ONTARIO
DECEMBER 10, 2001