Date: 20030228
Docket: IMM-231-02
Neutral citation: 2003 FCT 258
BETWEEN:
HONGWEI WANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
LINDEN J.A.(ex officio)
Introduction
[1] This is an application for judicial review by Hongwei Wang (the "Applicant") of a decision made by Marie Angelee Conlu (the "Visa Officer") at the Canadian Embassy in Beijing, China. By letter dated December 18, 2001, the Visa Officer refused to approve the Applicant's application for a student authorization.
Facts
[2] In 1995 the Applicant graduated from tourism school. From 1995 to 1997 he worked for an international hotel in Tianjin, China. He went back to school in 1998 for two years to study English and international trade. Upon learning about Centennial College's hospitality and tourism program in Toronto, the Applicant applied to come to Canada, for a period of three years, to further his education.
[3] The Applicant has a cousin who lives and runs a business in Toronto, and who agreed to support his studies in Canada by providing the Applicant with accommodation, tuition fees and living expenses. The Applicant's family has also saved $20,000 to help fund his studies in Canada.
[4] After the Applicant applied to the Canadian Embassy in Beijing for a student visa, he was not contacted for an interview, or for clarification on any of his documents. Instead, he received a letter indicating that the Visa Officer refused his application for a student visa because she was not satisfied that the Applicant had adequate funds available to him to pay for his expenses while in Canada and his return to China. Furthermore, she was not satisfied that he was a bona fide visitor as defined by the Immigration Act.
- Issues
- 1. Did the Visa Officer deny the Applicant procedural fairness?
2. Did the Visa Officer err in determining that the Applicant did not have adequate funds to pay for his studies in Canada?
3. Did the Visa Officer err in determining that the Applicant was not a bona fide student?
[6] Our jurisprudence holds the standard of review for this type of administrative decision is the test from Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2 which teaches that a court should not interfere "[w]here 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" (see: Skoruk v. Canada (Minister of Citizenship and Immigration) 2001 FCT 1220; Chen v. Canada (Minister of Citizenship and Immigration) 2001 FCT 330; Al-Rifai v. Canada (Minister of Citizenship and Immigration) 2002 FCT 1236; and Jang v.Canada (Minister of Citizenship and Immigration) 2001 FCA 312).
Duty of Fairness
[7] Counsel for the Applicant, Nancy Myles Elliott, relies to the case of Mittal v. Canada (1998), 147 F.T.R. 285 (F.C.T.D.) in which Justice Lutfy (as he was then) held that an Applicant for a student visa is owed the same duty of fairness that is owed to a permanent residence Applicant when a Visa Officer bases his or her decision on information not proffered by the Applicant. The Respondent argues that this principle from Mittal is not applicable here because the breach of fairness in Mittal arose when the Visa Officer relied on extrinsic evidence about the quality and availability of private schools in India without providing an opportunity for the Applicants to address her concerns. In addition, the Respondent cites a number of Federal Court cases which state that a Visa Officer's duty to inform a student-visa Applicant of her concerns is limited, usually applying only when a Visa Officer relies on extrinsic information.
[8] The cases cited to bolster the Respondent's position are not necessarily determinative of this case. While Ali v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 468 (F.C.T.D.) and Chow v.Canada (Minister of Citizenship and Immigration), 2001 F.C.T. 996 make it clear that an Applicant bears the burden of satisfying the Visa Officer that he or she meets the criteria for entering Canada, these cases state that, where an Applicant for a visitor's visa provides weak evidence in support of his or her application, a Visa Officer does not have to apprise the Applicant of her concerns, because those concerns are said to arise directly from the Act or Regulations. In this case, as Ms. Elliott argues, the Applicant provided thorough documentation in support of his application to illustrate that he had sufficient funds available to him to study in Canada, and that he intended to return to China following his graduation from Centennial College. The Applicant provided comprehensive evidence in support of his claim, unlike the questionable evidence proffered by the Applicants in Ali and Kong v. Canada (Minister of Citizenship and Immigration), 2001 F.C.T. 852.
[9] Nor does Ms. Elliott rely inappropriately on Mittal as the Respondent contends. The Applicant does not argue that the duty of fairness requires student- visa Applicants to be given an unqualified opportunity to respond to all the concerns of Visa Officers. Rather, the Applicant submits that, if the Visa Officer's doubts were based on extrinsic information (a plausible assumption, given that the Applicant adduced ample evidence to prove that there was enough money available to pay for his studies, and there was no evidence to suggest that he intended to remain in Canada after his studies), then the principles of fairness demand that the Applicant be apprised of the evidence and given an opportunity to respond. This need not be at a hearing - a letter or phone call would do. (See Kelen J. in Zhao Yue v. Canada (Minister of Citizenship and Immigration), [2002] F.C.T. 1004)
[10] Ms. Elliott argues that the Visa Officer ignored relevant evidence in concluding that the Applicant has insufficient funds to study in Canada, and that she had no evidence upon which to base her conclusion that the Applicant intended to remain in Canada following his proposed course of studies. The Visa Officer came to this conclusion without any valid reason and failed to advise the Applicant about her concerns in this regard. Similarly, the Applicant had no way of knowing that the Visa Officer doubted the sincerity of his cousin's offer of support, or that she would require a reasonable explanation for his cousin's willingness to support his studies in Canada.
[11] The Respondent submits that there was no obligation on the Visa Officer to inform the Applicant of her concerns because the onus was on the Applicant to demonstrate that he had the financial resources required to study in Canada and that he was a bona fide visitor.
[12] It is clear from the Applicant's study plan that he wants to study tourism in Canada in order to improve his English and because Canada has a well-developed tourism industry. It is also clear from his application, that the Applicant intends to return to China after his studies in Canada so that he may contribute to the development of tourism in China. The record also discloses that although the Applicant's parents earn a meagre salary, they have an accumulated savings of $20,000 (Canadian) that has been set aside for the Applicant's education. As well, the Applicant's cousin and her husband have the means, and have offered to fund his studies in Canada and also provide him with room and board and other expenses.
[13] Although the case law instructs that the duty of fairness owed by a Visa Officer to a student-visa Applicant is limited, it is my view that the particular circumstances of this case are such that the Visa Officer ought to have advised the Applicant about her concerns about the sincerity of his cousin's offer of support, and his bona fides as a temporary visitor to Canada, and provided an opportunity to respond. I arrive at this conclusion because the evidence produced by the Applicant cannot be said to be weak. Moreover, there is nothing contained in his application which suggests that he intends to stay in Canada permanently. In his study plan, rather, the Applicant wrote: "After I complete my studies, I will return to my own country to contribute to the development of tourism in China. I wish that tourism in China will catch up with the advanced level as soon as possible."
Adequate Funds
[14] Ms. Elliott takes issue with statements in the Visa Officer's affidavit which conclude that the Applicant did not provide a reasonable explanation for why his cousin was willing to support his studies in Canada; that the Applicant did not prove that he had adequate funding from "legitimate sources"; and that the Applicant's family in China could not support such costly studies in Canada.
[15] The Applicant submits that there is no legal authority for the Visa Officer's requirement of "a reasonable explanation as to why the sponsor would be proposing to support his studies in Canada".
[16] Subsection 15(1) of the Immigration Regulations, 1978, S.O.R./78-172 states:
| 15. (1) Every application for a student authorization shall be accompanied by ...
(b) sufficient documentation to enable an immigration officer to satisfy himself that the applicant has sufficient financial resources available to him, without engaging in employment in Canada,
(i) to pay his tuition fees,
(ii) to maintain himself and any dependants who will come into Canada during the period for which he seeks a student authorization, and
(iii) to pay the transportation costs to and from Canada for himself and any dependants referred to in subparagraph (ii); and |
15. (1) Toute demande présentée afin d'obtenir une autorisation d'étude doit être accompagnée ...
b) des documents voulus pour convaincre l'agent d'immigration que le requérant possède, sans qu'il lui soit nécessaire d'exercer un emploi au Canada, des ressources financières suffisantes
(i) pour payer ses frais de scolarité,
(ii) pour subvenir à ses propres besoins et à ceux des personnes à sa charge qui viendront au Canada durant son séjour, et
(iii) pour payer les frais de transport aller retour que lui-même et les personnes à sa charge visées au sous-alinéa (ii) auront engagés; et |
[17] Chapter OP 10 of the Immigration Manual also states that one of the ways students can establish that they have adequate funds is by providing "written statements from support persons in Canada stating that they have the means and agree to support the student". The letter provided by the Applicant's cousin states that she and her husband would house the Applicant and provide money for the Applicant's tuition and books.
[18] The main difficulty relied on by the Respondent, but not the Visa Officer, was the fact that the Applicant referred in his material to a "sister" who was living in Canada, who had visited him in China and who had advised his coming to Canada to study. Upon checking the department's records, the Visa Officer did not find any record of such a sister in Canada. This was said by the Respondent to be a "discrepancy" on the material, perhaps warranting the conclusion of the Visa Officer. But this was not specifically mentioned by the Visa Officer as a ground. The only basis that was referred to was her skepticism about a cousin being so generous to the Applicant. This skepticism in the circumstances of this case, should have been drawn to the attention of the Applicant, who should have been allowed to respond to it, given the absence of any evidentiary support for the conclusion of the Visa Officer.
[19] In support of the proposition that an Applicant is under an obligation to prove that he or she is related to his of her sponsor, the Respondent refers to Lu v. Canada (Minister of Citizenship and Immigration), 2002 F.C.T. 440 and Kong v. Canada (Minister of Citizenship and Immigration), 2001 F.C.T. 852. It should be noted, however, that it appears in both these cases that the visa applications in question did not contain the kind of thorough documentation provided by the Applicant's cousin regarding her means to finance the Applicant's education in Canada.
[20] It is not difficult to imagine that a successful family member in Canada would want to support a younger cousin in China to better himself through education in Canada. The letter of support written by the Applicant's cousin which reads: "We will help him in every way, to give him a good place to live and money for his tuition and books" demonstrates her willingness to support her cousin's education. Furthermore, the extensive evidence provided about the cousin's income and investment portfolio demonstrates her means to support her cousin throughout his tenure at Centennial College.
[21] For the forgoing reasons, I conclude that it was unreasonable to conclude that the Applicant did not provide a reasonable explanation as to why his sponsor offered to support his studies in Canada. There is evidence in the record that the Applicant has adequate funds and support available to him to cover the costs he will incur during his temporary stay in Canada to study English and tourism and hospitality at Centennial College. The Visa Officer's contrary conclusion constitutes a reviewable error of fact made without regard to the material before her.
Bona Fide Student
[22] A foreign student must obtain a visitor visa before arriving in Canada. To obtain such a visa, an Applicant must satisfy a Visa Officer that he or she is not an immigrant, or that he or she is a bona fide visitor coming to Canada for a temporary purpose.
[23] The Applicant submits that the Visa Officer assessed the bona fides of the Applicant's visitor status in a manner inconsistent with the jurisprudence and the policy guidelines of Citizenship and Immigration Canada.
[24] In Mittal, Justice Lutfy stated that the policy guidelines published in the immigration manual reflect the spirit of subsection 3(e) of the Immigration Act which mandates that Canadian immigration rules recognize the need "to facilitate the entry of visitors to Canada for the purpose of fostering trade and commerce, tourism, cultural and scientific activities and international trade." In that vein, he specifically emphasized the directive in the guidelines which reads, "...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."
[25] The Respondent argues that the Visa Officer found that the Applicant was not a bona fide visitor because of her conclusion that he had insufficient funds available to pay for his studies in Canada. The Visa Officer's CAIPS notes indicate that her concerns about the bona fides of the Applicant as a visitor stem from her conclusion that he did not provide adequate documentation to demonstrate the required financial support. However, because I have found that the Visa Officer's conclusion with respect to the adequacy of the funds available to the Applicant to be unreasonable, it is also my view that she erred in finding him not to be a bona fide visitor on this basis.
[26] As Justice Gibson stated in Wong v.Canada (Minister of Citizenship and Immigration) (1997) 39 Imm. L. R. (2d) 78, a student visa gives an individual permission to enter Canada for a temporary period. Accordingly, an Applicant who wishes to stay in Canada for a period longer than provided for by a student authorization would be required to renew his or her visa, or obtain another one, and it would be open to the Minister to examine the totality of the circumstances each time the Applicant applies for a renewal or a new visa.
[27] Based on the evidence that was before the Visa Officer, I conclude that it was unreasonable for her find that the Applicant's application to come to Canada was for other than a temporary purpose.
Costs
[28] The Applicant seeks costs in this matter. Although neither party has made submissions on the issue of costs, it is my view that no costs should be awarded because there are no "special reasons" within the meaning of section 22 of the Federal Court Immigration and Refugee Protection Rules, S.O.R./2002-232.
Conclusion
[29] The Visa Officer's decision should be quashed, and the application remitted to another Visa Officer for redetermination.
"A.M. Linden"
Judge
Toronto, Ontario
February 28, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: IMM-231-02
STYLE OF CAUSE: HONGWEI WANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
DATE OF HEARING: THURSDAY, FEBRUARY 27, 2003
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: LINDEN J.A. (ex officio)
DATED: FRIDAY, FEBRUARY 28, 2003
APPEARANCES BY: Ms. Nancy Myles Elliott
For the Applicant
Ms. Rhonda Marquis
For the Respondent
SOLICITORS OF RECORD: Ms. Nancy Myles Elliott
130 Bloor Street West
Suite 601
Toronto, Ontario.
M5S 1N5
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030228
Docket: IMM-231-02
BETWEEN:
HONGWEI WANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER