Federal Court Decisions

     IMM-2710-96

BETWEEN:

     ZHU, YONG QI

     ZHU, XIU QIN

     ZHU, YAN QIN

     Applicants

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

REED J.

     The applicants seek to have a decision of a visa officer that was made in Beijing on June 10, 1996 set aside. That decision determined that the applicants Yan Qin Zhu and Xiu Qin Zhu were not dependent children of the applicant Yong Qi Zhu. The children were over 19 years of age at the time an application for an immigrant visa for them was received and the children did not convince the visa officer that they had been enrolled as full-time students.¹ Shortly before the hearing of the judicial review application the Court was advised that Xiu Qin Zhu was withdrawing her application. She has married and no longer wished to come to Canada. There are a number of difficulties with the visa officer's decision, which difficulties when considered cumulatively lead me to conclude that the decision must be set aside.

     In the letter written to the applicants the visa officer stated:

... Although documents have been submitted in support of their application [the applications of both sisters], these are not acceptable proof that they have been full time students.

In her affidavit filed for this application she states that she determined that the documents on which the applicants were basing their claim were fraudulent. The documents filed in support of Yan Qin's application were: a High School of Guangzhou City Graduate Certificate, issued August 1, 1992; an Intermediate Teacher School of Guangdong Province Student Licence, stating date of entering school September 1, 1992; a Graduate Certificate Published by the Education Bureau of Guangdong Province, issued July 10, 1995; a Teacher College of Guangzhou Student's Transcript stating date of entering school as September 1995; a Teacher College of Guangzhou Student Licence, issued October 5, 1995; a Notarial Certificate of the Notary Public Office of Guangzhou City, Guangdong Province, P.R. China issued July 11, 1995; a People's Republic of China Passport issued May 1995 indicating occupation as "student". Were these documents all believed to be fraudulent, or only some of them?

     The visa officer, in her notes, sets out five reasons why she was not satisfied that Yan Qin was a full-time student and presumably these were her reasons for finding the documents to be fraudulent: (1) when interviewed, Yan Qin had initially said that she attended school for 18 - 20 weeks per year but later changed that to 22 weeks per term, there being two terms per year; (2) the applicant did not have her own Hokou number; (3) when asked whether she knew the telephone number of the school she attended, the applicant answered quickly and then gave an unsatisfactory answer as to why she knew the number (her explanation was that she needed to call the school sometimes when she was ill - the visa officer found the explanation dubious because the applicant had said it was a boarding school); (4) education at a boarding school was prohibitively expensive and the visa officer doubted that the applicant's parents would have been able to afford it; (5) the visa officer had consulted the State Education Commission of the Peoples' Republic of China CD-ROM listing of all officially recognized post-secondary schools and could not locate the school the applicant said she attended.

     Counsel for the applicant argues that saying 18 - 20 weeks per year and then correcting that to 22 weeks per term is not a significant error. A mistake with respect to whether one is talking about a year or a term thereof is easy to make. I accept that argument.

     The fact that the applicant did not have her own Hokou number, in the context of this case, is problematic as a reason for rejecting her evidence. I could find nothing in the file that explains what a Hokou number signifies. The visa officer, when questioning the authenticity of the older daughter's (Zhu Qin's) application, stated that she was alerted to difficulties with the application because Xiu Qin had a different Hokou number from the rest of the family. Because of this difference the visa officer questioned whether Xiu Qin was in fact Yong Qi's daughter; she used the number as signifying family relationships in her reasons. Xiu Qin stated that she had a different number because she was at boarding school. When the visa officer disallowed Yan Qin's submissions she gave as one reason the fact that Yan Qin did not have a different Hokou number from that held by the rest of the family. The visa officer, in this context, used the number as signifying present place of residence (even if only as a student).

     Counsel for the respondent argues that there was simply an inconsistency in the explanations that the two girls were giving the visa officer and since the burden was on them to satisfy the visa officer, she was entitled to reject both their applications. This is not reasonable. The visa officer had been working in Beijing for ten months. She indicates that she had some knowledge of the significance of Hokou numbers. It was a difference in the numbers that caused her to question the older daughter's family relationship with the father. It is not credible that she would not know or could not easily obtain information on how those numbers are allocated. It is reasonable to expect the visa officer to apply a consistent approach.

     With respect to the third reason for questioning the application of Yan Qin, I summarize counsel's argument, that essentially, the applicant was placed in a "catch 22" situation: the visa officer decided Yan Qin was not telling the truth because she was able to answer quickly when asked for the school's telephone number. But neither would Yan Qin have been believed if she had either not answered or hesitated to answer the question. Yan Qin gave an explanation as to why she knew the number that on its face seemed reasonable (even boarding school students are sometimes at home) - she knew the number because she telephoned there when she was ill; this the visa officer refused to accept. Again, had the applicant offered no explanation she would have been considered to have been lying. Did the visa officer expect the applicant to know the telephone number or not? There is no doubt that the reasoning that was employed is strange.

     The fourth and fifth reasons given by the visa officer for rejecting the applicant's contention that she was a full-time student, were based on conclusions or evidence upon which the applicant did not have an opportunity to comment, or about which she did not know. The applicant was not given any opportunity to comment on the visa officer's conclusion that the cost of the education would have been prohibitive for her parents. There may have been a reasonable explanation. Her father had been in Canada since 1990 and had a Canadian income. Curiously, also, the visa officer referred to the family as a family of illiterate farmers, but there are letters that form part of the record, written by the husband to his wife, and to which the visa officer elsewhere in her reasons refers. The use of the CD-ROM listing of schools was reliance upon extrinsic evidence consulted by the visa officer after the interview and upon which the applicant also never had an opportunity to comment. This may not in itself constitute a breach of the rules of fairness but given all the difficulties with the decision, as set out above, their cumulative effect requires that the decision be set aside.

     Post-decision evidence was filed by both the applicants and the respondent. At the same time, both counsel, I think, accept that such evidence should not be considered when assessing a decision. In general, only the material before the decision-maker is relevant. My attention was called to Madame Justice Simpson's decision in Memarpour v. The Minister of Citizenship and Immigration (1995), 104 F.T.R. 49, where a reference is made to having due regard to the unnecessary expenditure of public funds. I read that decision as refusing to set aside a decision on the basis of what is termed "inconsequential error" having regard to the evidence that was before the tribunal. I agree with that position but it is not applicable in this case. The applicant's post-decision evidence relates to why she would not have a separate Hokou number. The respondent's post-decision evidence is hearsay evidence which states that the visa officer's assistant finally contacted the school, the applicants say they attended (the school that was not on the CD-ROM listing), and ascertained that the applicants had not attended that school. I have not taken into account any of this post-decision information. In the circumstances of this case it simply muddles the situation even further.

     Lastly, counsel for the applicants asks that if I refer the matter back for reconsideration by another visa officer that the Court include an admonition that such reconsideration be done expeditiously. I note that everything about this file indicates a rushed and over-hasty decision by the visa officer. It may be that the Beijing visa office is simply understaffed for the work load. It may be that there are organizational problems there. The Court cannot know what the situation is, but it looks from the file as though many of the problems that arose with this decision were the result of a too-hurried review of the applicants' situation and a too-hasty decision making process. I have confidence that the visa office will process a reconsideration of this applicant's application as quickly as possible.

     For the reasons given the decision of June 10, 1996, with respect to Yan Qin Zhu, is set aside and the matter referred back to a different visa officer for reconsideration.

OTTAWA, Ontario.

October 14, 1997.

    

                             Judge

__________________

1.      Immigration Regulations, SOR/78-172 s. 2(1) provides:
         "dependent daughter" means a daughter who              . . . .          (b)      is enrolled and in attendance as a full-time student in an academic, professional or vocational program at a university, college or other educational institution and
             (i)      has been continuously enrolled and in attendance in such a program since attaining 19 years of age or, if married before 19 years of age, the time of her marriage, and              (ii)      is determined by an immigration officer, on the basis of information received by the immigration officer, to be wholly or substantially financially supported by her parents since attaining 19 years of age or, if married before 19 years of age, the time of her marriage, or              . . . .