Date: 20011220
Neutral citation: 2001 FCT 1405
BETWEEN:
YONG WANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of the decision of a visa officer, dated July 18, 2000, dismissing the applicant's application for a student visa. The applicant seeks an Order setting aside the decision and referring the matter back to another visa officer for reconsideration.
[2] The applicant is a citizen of China. In May 1999, he applied for authorization to study in Canada in order to attend a one-year English Studies/ Senior Secondary program in Vancouver, British Columbia.
[3] In a decision dated July 26, 1999, the applicant's application for a student visa was refused, and he subsequently applied for judicial review of that decision. In a decision dated February 10, 2000, Court file number IMM-4545-99, Associate Chief Justice Lutfy granted the application, and referred the matter back to a different visa officer for redetermination. That redetermination, which occurred on July 18, 2000, is the subject of this application for judicial review.
[4] In her decision, the visa officer stated that the applicant had not established that he intended to return to China upon the completion of his proposed studies. The officer was not satisfied in the circumstances that the applicant was not an immigrant, as the Immigration Act requires for a person seeking admission to Canada as a visitor (see: R.S.C., 1985, c. I-2, as amended, s-s. 9(1.2)).
[5] The applicant urges that the appropriate standard of review to be applied in this case is reasonableness simpliciter, a standard that is said not to be met because the decision was inconsistent with Ministerial guidelines and because the visa officer erred by failing to consider properly the evidence before her and by fettering her discretion. Finally, it is said the officer breached her duty of procedural fairness by failing to give the applicant an opportunity to know and to address certain concerns of the officer before the decision was rendered.
[6] The respondent submits that the visa officer's decision should be assessed on a standard of patent unreasonableness and that none of the alleged errors warrant intervention by the Court. I turn now to the issues raised by the applicant.
The appropriate standard of review
[7] In Yang Liu v. Canada (Minister of Citizenship and Immigration), 2001 FCT 751, [2001] F.C.J. No. 1125, Mr. Justice Teitelbaum applied the standard of reasonableness simpliciter when reviewing a visa officer's refusal to issue a student visa. In doing so, he cited with approval, at para. 18, the standard of review articulated by the Court in De La Cruz v. Canada (Minister of Employment and Immigration) (1989) 26 F.T.R. 285 at 287, para. 8:
To succeed, the applicants must do more than establish the possibility that I might 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.
[8] As noted by Teitelbaum J. in Yang Liu, supra, a standard of reasonableness simpliciter was also applied to a visa officer's refusal to issue a student visa in Wang v. Canada (Minister of Citizenship and Immigration), (2001) 13 Imm. L.R. (3d) 40. In that case, Mr. Justice Rouleau referred to the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, in which a standard of reasonableness simpliciter was applied to the exercise of discretion in considering an application for approval to land from within Canada on humanitarian and compassionate grounds.
[9] In my view, the standard of reasonableness simpliciter applies in this case. The decision of the visa officer was discretionary, and this Court should not intervene unless the decision was unreasonable.
Alleged unreasonableness of decision
[10] The applicant urges that the decision of the visa officer was unreasonable because it breached Ministerial guidelines. Section 3.5.1 of chapter 10 of the Overseas Processing Immigration Manual provides, in part, as follows:
There are two major factors underlying the assessment of student bona fides.
First, foreign students have not represented a control or enforcement problem for Canada. Second, there is a new and growing realization in Canada that foreign students yield significant benefits for our economy.
[11] Further, section 4.6.1 of chapter 10 of the same Manual provides that:
Applicants have the burden of proving to your satisfaction that they are bona fide visitors. However, in the case of foreign students, the general question of bona fides is not so much whether the applicant is a prospective immigrant, but whether the applicant is a prospective illegal immigrant...
[12] The applicant submits that since the Supreme Court in Baker gave consideration to the humanitarian and compassionate ("h & c") guidelines in that case, the visa officer in this case should have given more weight to the student visa guidelines in chapter 10 of the Manual. In Baker, supra, at 862, Mme. Justice L'Heureux-Dubé commented:
The guidelines are a useful indicator of what constitutes a reasonable interpretation of the power conferred by the section, and the fact that this decision was contrary to their directives is of great help in assessing whether the decision was an unreasonable exercise of the H & C power.
[13] In response, the respondent submits that guidelines should not be read too strictly. In Mittal v. Canada (Minister of Citizenship and Immigration), (1998) 2 Imm. L.R. (3d) 300 (F.C.T.D.), a case dealing with applications for student visas, Lutfy J. (as he then was) commented:
Guidelines, of course, must be used with care. They can serve as " ‘general policy' or ‘rough rules of thumb' " to structure the discretion conferred upon the visa officer. Guidelines, however, should not fetter the visa officer's exercise of discretion by crystallizing into binding and conclusive rules.
[14] Accepting that guidelines may be useful in gauging the reasonableness of the exercise of discretion by the visa officer, it is not clear to me that giving greater weight to the guidelines would have been appropriate in this case. Obviously the visa officer was aware of the guidelines, but quite reasonably her decision was not fettered by them. In my opinion, the fact that she was not satisfied, as she must be under s-s. 9(1.2), that the applicant was not an immigrant does not mean that she ignored the guidelines. A visa officer may properly follow the guidelines quoted above and still reasonably refuse to issue a student visa. While the guidelines suggest that the visa officer proceed in a particular way, they do not require her to reach a particular result.
[15] The applicant further submits that the decision of the visa officer was unreasonable because she failed to consider certain factors. In her CAIPS notes, the visa officer wrote:
I STATED THAT AT THE PRESENT TIME, I WILL NOT APPROVE HIS APPLICATION. I ADVISED HIM TO FINISH HIGH SCHOOL HERE AND THEN APPLY FOR A COMPUTER PROGRAM/COURSE AT A UNIV IN CDA.
HE ASKED WHY I THOUGHT HE WOULDN'T GET INTO A COMPUTER PROGRAM IN CDA. I STATED THAT HE HAS NOT COMPLETED HIGH SCHOOL YET. I DO NOT KNOW IF HE WILL GET INTO A COMPUTER PROGRAM.
[16] In Wong (Litigation guardian) v. Canada (Minister of Citizenship and Immigration), (1999) 246 N.R. 377, Mr. Justice Létourneau, writing for the Federal Court of Appeal, held, at para. 13, that in determining whether or not an applicant is a visitor within the meaning of the Immigration Act:
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 [See Note 3 below] in determining whether or not an applicant is a visitor within the terms of the definition provided in the Act.
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Note 3: 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.
[17] The applicant submits that while it was appropriate for the visa officer to consider the applicant's long-term goal of being accepted at a Canadian university, she erred by failing to consider the other factors mentioned in the passage quoted above, at Note 3, namely the applicant's ties to China, whether he has credible reasons for wishing to study in Canada, his age, whether prior acceptance has been obtained from an educational institution in Canada, and the likelihood of the applicant returning to China.
[18] The applicant submits that he has credible reasons for wishing to study in Canada, as he plans to finish high school in Canada, and then apply to a Canadian university to study computers. The applicant states that the level of computer education in Canada is more advanced than that in China, and that by studying in Canada he would improve his career prospects, since advanced computer skills and proficiency in English are in great demand in China.
[19] The applicant further submits that the visa officer erred by failing to consider that he had been accepted for one year of study at Coquitlam College, in Coquitlam, B.C..
[20] Finally, the applicant submits that the visa officer erred by failing to conclude that he was likely to return to his country of origin. In support of this argument, the applicant makes two points. First, he states that he entered into a contract with Qingdao Meihao Hair Products Ltd. ("Qingdao"), of which his father is a major shareholder and general manager, to commence employment upon completion of his proposed studies in Canada. In return for this promise, Qingdao agreed to compensate the applicant for 50% of his study costs, payable upon his return to China. Second, the applicant states that since he is an only child, he is motivated to return to China upon completion of his proposed studies, in order to care for his parents in their older years. As regards this latter statement, the applicant notes that in Totrova v. Canada (Minister of Citizenship and Immigration), (1998) 47 Imm. L.R. (2d) 123 (T.D.), Pinard J. held that the applicant had strong ties to her country of origin since her parents, her son's father, and her boyfriend were there.
[21] I note that the decision by the Federal Court of Appeal in Wong, supra, states that the long-term goal of an applicant for a visitor's visa is "a relevant consideration" which may be considered by the visa officer. Furthermore, it is described as "not necessarily determinative", and in this case, it was reasonable for the visa officer to consider the applicant's long-term goal of being accepted at a Canadian university.
[22] The visa officer also considered other factors, including, from her CAIPS notes, the applicant's expressed purpose of his proposed studies in Canada for his return to China:
[Question:] WHY IS IT IMPORTANT FOR YOU TO PURSUE SECONDARY SCHOOL COMPLETION THEN COMPUTER STUDIES IN CDA WHEN YOU HAVE STATED THAT YOU CAN PURSUE THIS IS CHINA. [Answer:] BECAUSE CDA HAS MORE ADVANCED PROGRAMS. TO GET MORE ADVANCED COMPUTER KNOWLEDGE IS VERY USEFUL IN MY FTHR'S COMPANY.
Further on in her CAIPS notes, the visa officer considered the stage of the applicant's studies:
AFTER COMPLETING HIGH SCHOOL, IF HE WAS UNABLE TO GET INTO A COMPUTER PROGRAM, IT WOULD NOT BE DIFFICULT GIVEN AGE TO ESTABLISH IN CDA.
[23] In my opinion, in reaching her decision the visa officer considered a number of factors, including the applicant's ultimate goal of being accepted at a Canadian university, the applicant's stated plans for use of his studies on his expected return to China to work at his father's company, and the stage of the applicant's studies. The applicant suggests no other factors that ought to have been considered but were ignored. I note that acceptance of the applicant at Coquitlam College was not settled when the visa officer reached her decision, and it was not mentioned in her CAIPS notes or her decision. The essence of the applicant's submissions, in my opinion, is that the officer did not weigh the evidence as favourably as the applicant would have wished.
Breach of procedural fairness
[24] The applicant's second argument is that the visa officer breached the duty of procedural fairness. In her CAIPS notes, the visa officer wrote: "Stated that I am satisfied there are sufficient funds." However, in her affidavit, the visa officer states:
I told the Applicant that I was satisfied that sufficient funds exist to support his studies in Canada. Although it is not indicated in my CAIPS notes, in truth I did have some concerns about the source of the Applicant's funds but since I also had concerns about the applicant's bona fides, I decided to focus on this aspect of his application.
[25] The applicant relies on Muliadi v. Canada (Minister of Employment and Immigration), (1986) 18 Admin L.R. 243 (Fed. C.A.), for the proposition that procedural fairness requires that an applicant be informed of any doubts or concerns a visa officer may have with respect to the credibility of the applicant's submitted evidence, and be afforded an opportunity to disabuse the visa officer of his or her doubts and concerns. This principle was applied to the issuance of a visa in Basco v. Canada, (1991) 43 F.T.R. 233 (T.D.).
[26] The applicant submits that, during the interview, the visa officer should have informed him of her concerns about the source of his funds, and provided him with an opportunity to respond to these concerns.
[27] The respondent submits that the visa officer's concerns about the applicant's funding played no part in her decision to refuse to issue a student authorization, and therefore the visa officer did not breach her duty of fairness by not providing the applicant with an opportunity to respond to these concerns. It is urged that the applicant's quote from the CAIPS notes is taken out of context, and, in its proper context, the quote is as follows:
Stated that I am satisfied there are sufficient funds, but I have concerns about his ability to pursue his stated future field: computers.
[28] In the alternative, the respondent submits that even if the visa officer breached the duty of fairness by not providing the applicant with an opportunity to respond to her concerns regarding funds, the decision should not be quashed because the breach did not affect the outcome of the application. (See: Mobil Oil Canada Ltd. v. Canada Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, at 228-229, and Yassine v. Canada (Minister of Citizenship and Immigration), (1994) 172 N.R. 308 (F.C.A.), at paras. 9-11.)
[29] In my opinion, there was no breach of procedural fairness by the officer. As both her CAIPS notes and her affidavit clearly indicate, any concern she may have had about the source of the applicant's funds played no part in her decision. The need for an opportunity to respond to the officer's concerns can only arise in relation to matters taken into account in the decision, and then only if it is a matter not addressed in written or oral submissions of the applicant.
Fettering of discretion - failure to consider relevant considerations
[30] Finally, the applicant submits that the visa officer fettered her discretion by failing to take into account the temporary purpose of the applicant's application for a student visa. In her affidavit, the visa officer states:
In assessing whether an applicant is a genuine student, his or her study plan is examined to determine whether it is realistic and consistent. I felt that the Applicant's study plan was too uncertain, considering that he had not completed Senior Middle School. I did not know if he would get into a computer studies program in Canada.
In the applicant's submission, the visa officer should not have given very much weight to whether the applicant might be accepted at a Canadian university, as a re-assessment of the applicant's application could be done at the end of his proposed year of studies.
[31] In my view, it was reasonable of the visa officer to consider whether the applicant might later be accepted at a Canadian university. As the Federal Court of Appeal stated in Wang, supra, a visa officer considering an application for a visitor's visa may consider the long-term goal of the applicant.
[32] In my opinion, the visa officer's decision was reasonable on the evidence before her. I am not persuaded that she considered irrelevant matters or that she overlooked relevant matters. There was no procedural unfairness that would warrant intervention of the Court. The decision was reasonable on the evidence before the visa officer.
[33] The application for judicial review is dismissed. An Order goes so providing.
[signed] W. Andrew MacKay
JUDGE
OTTAWA, Ontario
December 20, 2001.