Date: 20020318
Docket: IMM-2562-01
Ottawa, Ontario, the 18th day of March, 2002
Present: The Honourable Mr. Justice François Lemieux
BETWEEN:
YUANYUAN SONG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
For the reasons stated, the application for judicial review is dismissed. No question of general importance was proposed.
"François Lemieux"
JUDGE
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L
Date: 20020318
Docket: IMM-2562-01
Neutral Citation: 2002 FCT 288
BETWEEN:
YUANYUAN SONG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.
Introduction
[1] Yuanyuan Song (the applicant) is a citizen of China, 23 years of age. She is currently studying English at the Irish College of English in Dublin after being registered for two and a half years in the Adult Education College of Dong Bei Finance and Economy University where she was taking an accounting program.
[2] On February 20, 2001, through Tamrazo Law Office in Montréal, she filed an application with the Canadian High Commission in London to be authorized to study at O'Sullivan College in Montréal for three years in order to obtain a degree in business management.
[3] Kristin Erickson, the Second Secretary at the High Commission, rejected her request for authorization for the following reasons, which are contained in her letter of April 18, 2001 sent to the applicant:
In your case, I have noted that you have short-term temporary status as a student in Ireland. You have limited ties to China, your country of citizenship. Your parents are there; you have incomplete higher level studies, and an offer of employment from a friend of your father, to which I do not give any weight. You plan to undertake very expensive studies to obtain a diploma which is not widely recognized, and which will, at best, lead to employment that pays less than half of what the studies will cost.
I am not satisfied that you have sufficient ties to China to ensure your return there after your studies and I am not satisfied that you are a bona fide student intending to enter Canada for a temporary purpose. I have therefore concluded that you have not met the requirements for a student authorization as established in the Regulations, and I am refusing your application.
Statutory framework
[4] The Immigration Act (the Act) and the regulations thereunder, the Immigration Regulations (the Regulations), provide:
1. That, unless otherwise provided in the Regulations, anyone other than a Canadian citizen or permanent resident who tries to come to Canada to study in a university or college that is authorized to issue diplomas is a visitor within the meaning of the Act and must report to a visa officer and obtain the necessary authorization before reporting at any port of entry. For a foreign student, this visitor's visa is called a "student authorization".
2. Subsection 9(1.2) of the Act stipulates that a person who makes an application for a visitor's visa shall satisfy a visa officer that the person is not an immigrant, that the person is an authentic visitor and that the person will stay in Canada only temporarily (see subsections 9(1),(1.2), (2.1) and 9(2.1) and 9(4) and (5) of the Act).
3. Subsection 13(2) of the Regulations provides that a visa officer may issue a visitor's visa to any person who meets the requirements of the Act and these Regulations if that person establishes to the satisfaction of the visa officer that he will be able to return to the country from which he seeks to come to Canada or to go from Canada to some other country.
Standard of review
[5] The parties agree on the standard of review. Questions such as a sufficient connection with one's country of origin, whether a person is an authentic student with the intention of coming to Canada temporarily are essentially questions of fact that attract the highest level of deference, the standard of the patently unreasonable decision under paragraph 18.1(4)2 [sic] of the Federal Court Act and the principles laid down in the cases.
[6] In Wong (a minor by his litigation guardian) v. Canada (Minister of Citizenship and Immigration, [1999] F.C.J. no. 1049, the Federal Court of Appeal held that a decision by a visa officer that he was not satisfied that a person was an authentic visitor within the meaning of the Act and that the person wished to come to Canada temporarily raised issues pertaining to the interpretation of the facts.
[7] I would add that in Wong, supra, the Federal Court of Appeal was of the opinion that the visa officer is competent to review the totality of the circumstances, including the applicant's long-term goal, since that goal is a relevant albeit not conclusive factor that should be weighed with all the other facts and factors in determining whether the applicant is a visitor within the meaning of the Act. Among these other facts and factors, Létourneau J.A. mentions in particular 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.
[8] Rouleau J. of this Court recently considered the applicable standard of review in Zheng v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. no. 110, and wrote at paragraphs 13 and 14:
13. The issuance of a student authorization pursuant to subsection 9(4) of the Act is a discretionary decision....
14. Furthermore, section 18.1(4)(d) of the Federal Court Act provides that the Federal Court may only interfere with errors of fact made by a federal administrative tribunal where the error is made in a perverse or capricious manner or without regard for the material before it. This standard of "perverse and capricious" for questions of fact has been stated by the Federal Court of Appeal to be indistinguishable from the standard of patent unreasonableness ....
Applicant's submissions
[9] Counsel for the applicant argues that:
(1) The intention that the visa officer attributed to the applicant was not the intention required by the Act. Under section 9(1.2) of the Act, he says, it is not the intention to immigrate to Canada that is in itself a valid reason to reject an application for a temporary visitor's visa but rather the intention to remain in Canada unlawfully, after the expiration of the visitor's visa. In regard to the applicant's intention, he submits, all the visa officer needed to consider was whether the applicant had a valid temporary goal in seeking to travel to Canada. He argues that the applicant had a valid temporary goal since she wanted to study in Canada at O'Sullivan College. He refers to the Immigration and Citizenship Canada manual on the overseas processing of visa applications, a document that recognizes that applicants for student visas are a good source of qualified immigrants. He cites the English text of article 4.6.1:
4.6.1 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.
(2) The visa officer considered an irrelevant factor when she took into consideration the fact that the applicant had only one international trip to her credit. He argues that this consideration is completely inappropriate and alien to the purpose of the Act.
(3) It was patently unreasonable that no weight be given to the offer of employment presented by the applicant in support of her application because this offer originated from a friend of the family that the visa officer did not consider a disinterested person. Furthermore, counsel argues, the visa officer contradicted herself in concluding as she did on this point. This offer of employment reads in part:
Since our company is looking for capable young people, and now I heard Miss Song Yuanyuan, my friend's daughter, is going to study in Canada, I decided to hire her as marketing manager in our company after she graduates from Canada. The annual salary will be 45,000 RMB.
(4) The rejection of the study plan prepared by the applicant, which the visa officer characterized as "self-serving", was patently unreasonable. Her study plan reads in part:
After I graduated from high school and I entered Adult Education College of Dong Bei Finance & Economy University, majored in Accounting. As all know Canada is a high-technology country in North America. And China is still a developing country, which needs a lot of capable young to develop it. I would like to be one part of my country to contribute myself to my country, China. After three years education I will be back my hometown, Dalian. Dalian is a beautiful coastal city. There are more and more Joint venture companies here. I want to use my knowledge learned from Canada to involve the development of Dalian.
The applicant's counsel argues that it is only logical that the study plan be prepared by the applicant herself since it is her own study plan. Furthermore, he argues that the visa officer erroneously transformed the offer of employment and the study plan into regulatory conditions necessary for the granting of the visa.
(5) He attacks the visa officer's conclusion that her ties to China are limited on the ground that she only has her parents there, that her higher level studies there are incomplete and that she had received an offer of employment that was given no weight. This conclusion is arbitrary because it does not take into account the fact that the applicant is a student, an only daughter and completely dependent financially on her parents. It was unreasonable in view of the applicant's young age and her student status to require that she have some ties of another nature with her country of citizenship.
(6) The visa officer drew an arbitrary conclusion in minimizing the importance of O'Sullivan College in Montréal and the diplomas it issues. The visa officer created a distinction between a college and a university where the Act and the Regulations do not.
(7) The visa officer erroneously questioned the applicant's capacity and willingness to pay her tuition fees and expenses since the applicant had already paid her tuition fees for the first semester and her parents had stood surety.
(8) The visa officer also concluded arbitrarily that the applicant's studies in Canada were extremely expensive and in China would not lead to more than a job paying less than half of what her studies would have cost. The visa officer speculated on what the applicant's career and compensation would be for the rest of her professional life.
Analysis
[10] A number of the points raised by counsel for the applicant are taken from certain paragraphs in the affidavit of Kristin Erickson dated July 23, 2001 filed in support of her decision and from her written cross-examination. I quote the most relevant paragraphs from Ms. Erickson's affidavit, in order to grasp the points raised by counsel for the applicant:
20. As well, I noted that the Applicant provided a letter from a friend of her father offering her employment in China after completion of her studies in Canada, at a salary equivalent of CAD 8,035 annually, in the position of marketing manager. The offeror stated that all he knew was that the Applicant intended to study in Canada, and on that basis, he intended to offer employment. Since the offer came from a family friend, whom I did not consider a disinterested person, and since he knew very little about the Applicant's education and experience, I did not give any weight to this offer of employment in considering the Applicant's ties to her country of citizenship.
21. I also considered in my assessment the study plan from the Applicant stating that she intended to study in Canada and return to China to be involved in the development of her home city. Considering all of the above and the fact that this study plan is entirely a self-serving statement, I did not give it any weight.
22. Following my review of the Applicant's application and all of the documentation submitted in support, I was not satisfied that the Applicant's intention was to depart Canada after the completion of the proposed studies since the Applicant had demonstrated only limited proof of her ties to her home country; her parents were in China, she had started but abandoned higher level studies there, she had provided an offer of employment, to which I give no weight, as previously explained. Moreover, the Applicant intended to undertake very expensive studies in Canada which would lead only to a college diploma, not a widely recognized educational qualification and would, at best, if the offer of employment provided by the Applicant was credible, which I did not accept, lead to employment that pays less than half of what the studies will cost.
23. I also considered whether the Applicant had any ties to Ireland but was not satisfied that, as a student with very short-term status, she had sufficient ties to satisfy me that she would or could return there after her studies in Canada.
(a) What intention?
[11] I am unable to subscribe to the applicant's argument that only one intention need be identified under the Act and the Regulations: whether the applicant has simply one valid temporary goal, in this case to come to Canada to study.
[12] Under the statutory and regulatory framework, the visa officer, before issuing a visitor's visa, must be satisfied that the stay in Canada would not contravene the Act and the Regulations.
[13] The officer can reach such a conclusion only if the person is an authentic visitor who wants to come to Canada temporarily. Wong, supra, teaches us that the visa officer must examine the totality of the circumstances, including the probability that the applicant will return to his or her country of origin. In the case at bar, that is precisely the kind of analysis undertaken by the visa officer.
(b) Irrelevant consideration - number of trips
[14] I think the applicant is wrong to criticize the visa officer for taking into consideration an irrelevant factor, that is, the number of trips by the applicant. Her reasons do not include this consideration. Furthermore, her written response in this regard satisfies me that the number of trips made by the applicant did not influence her decision, as was the case in Wang v. Canada (Minister of Citizenship and Immigration), IMM-2813-00, January 25, 2001).
(c) Patently unreasonable conclusion
[15] The applicant's other submissions are addressed to the patently unreasonable aspect of the findings of fact made by the visa officer: the offer of employment, the study plan, her ties with China, the relationship between the cost of her studies and her anticipated remuneration.
[16] In Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 749, Iacobucci J. explains the difference between unreasonable and patently unreasonable. He writes, at paragraph 57:
The difference between "unreasonable" and "patently unreasonable" lies in the immediacy or obviousness of the defect. If the defect is apparent on the face of the tribunal's reasons, then the tribunal's decision is patently unreasonable. But if it takes some significant searching or testing to find the defect, then the decision is unreasonable but not patently unreasonable. [Emphasis added]
[17] According to Rouleau J. in Zheng, supra, 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."
[18] In Canadian Union of Public Employees, Local 301 v. Montréal (City), [1997] 1 S.C.R. 793, L'Heureux-Dubé J., for the Supreme Court of Canada, stated:
We must remember that the standard of review on the factual findings of an administrative tribunal is an extremely deferent one: Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, per La Forest J., at pp. 849 and 852. Courts must not revisit the facts or weigh the evidence. Only where the evidence viewed reasonably is incapable of supporting the tribunal's findings will a fact finding be patently unreasonable. An example is the allegation in this case, viz. that there is no evidence at all for a significant element of the tribunal's decision.
[19] In my opinion, the evidence on file, reasonably examined, could serve as a basis for the conclusions of the visa officer. Her assessment of the facts is not patently unreasonable, therefore. The real implication of the submission by counsel for the applicant is an invitation to the court to review the facts or to assess the evidence or to weigh it in some way other than that of the visa officer.
[20] The visa officer's conclusion that no weight should be assigned to the offer of employment is related to the evidence. This offer to employ the applicant as a marketing manager originated with a friend of the family who did not see the applicant's study program, according to the documentation produced by the applicant. If there is a contradiction in paragraph 20 of the visa officer's affidavit between "all he knew" and "since he knew very little", there is no justification for the court's intervention since this contradiction is minimal and has no bearing on the merits of her conclusion.
[21] The applicant's study plan was not rejected simply because it had been prepared personally by the applicant. The visa officer's affidavit clearly states that her study plan was rejected taking into consideration all of the factors mentioned in her affidavit.
[22] The factors that the visa officer took into consideration in gauging the applicant's intention to return to China (family ties, studies abandoned in China, suspect offer of employment and cost and benefit analysis of studies and projected employment) were all relevant and based on the evidence. The court would be unable to justify intervening if it had a different assessment of the evidence.
[23] I reject the applicant's argument that the visa officer erected the offer of employment and the study plan as regulatory conditions not provided for in the Regulations. The visa officer analyzed the evidence that the applicant herself had submitted to her.
[24] In my opinion the visa officer did not depreciate the value of O'Sullivan College and the degrees it granted. According to the written replies of the visa officer, she considers O'Sullivan College to be an authorized College under the regulations but "the O'Sullivan College diploma is not a widely recognized educational qualification since the institution is not widely known and the qualification sought is a college diploma from a small college, not a university degree from a well-known university." There is nothing in the record to show that this conclusion of the visa officer is erroneous.
[25] The evidence does not support the applicant's submission that the visa officer doubted the applicant's capacity and willingness to pay her tuition fees and expenses.
[26] Lastly, the only evidence that the visa officer had in regard to the salary that the applicant might earn in China was what is found in the offer of employment. The visa officer could take this into consideration as a relevant factor, as the situation is analogous to the one heard by Evans J., as he then was, in Huang v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. no. 106.
[27] For all these reasons, this application for judicial review is dismissed. No question was proposed for certification.
"François Lemieux"
JUDGE
OTTAWA, ONTARIO
March 18, 2002
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: IMM-2562-01
STYLE: Yuanyuan Song
- and -
The Minister of Citizenship and Immigration
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 5, 2002
REASONS FOR ORDER OF MR. JUSTICE LEMIEUX
DATED: March 18, 2002
APPEARANCES:
Jacques Tamrazo FOR THE APPLICANT
Caroline Doyon FOR THE RESPONDENT
SOLICITORS OF RECORD:
Jacques Tamrazo FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada