Date: 20010704
Docket: IMM-2636-00
Neutral Citation: 2001 FCT 751
YANG LIU
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
Teitelbaum J.
[1] This is an application for judicial review of the decision of a visa officer at the Canadian Embassy in Beijing, China dated March 28, 2000 which refused the applicant's application for a student authorization in Canada on the grounds that she was not satisfied that the applicant was a bona fide visitor to Canada or that he had sufficient funds to support himself while in Canada.
[2] The applicant, Yang Liu, is an 18 year old citizen of the People's Republic of China. In November 1999, he submitted an application for a student authorization in Canada to the Canadian Embassy in Beijing. At that time, he was a senior middle school student in Beijing, in what would be equivalent to grade 12 in a Canadian high school.
[3] In his application package, the applicant submitted a letter from the Board of Trustees, School District No. 48, indicating that he had been accepted into grade 12 for a term of study lasting from April 25, 2000 to December 21, 2000 (Certified Tribunal Record, p. 14). According to the applicant's "Student's Plan in Canada", which was also submitted with his application for student authorization, he planned to take an ESL programme at Howe Sound for six months, then complete his high school education at the same school. Following that, he planned to spend three years studying business management at a Canadian college (Certified Tribunal Record, p. 15). The total length of his stay in Canada was four and a half years.
[4] The applicant was not personally interviewed.
[5] On March 28, 2000, a visa officer reviewed the documents submitted by the applicant. She refused the application on the grounds that the applicant had not satisfied her that he was a bona fide visitor, nor was she satisfied that he had sufficient funds to cover his expenses. Accordingly, a refusal letter was sent that same day.
Applicant's Position
[6] The applicant contends that the visa officer erred by making a finding of fact in a capricious manner without regard to the material before her with respect to the foreign diploma issue. The applicant argues that the visa officer, in her affidavit, relied on a document which contained the minutes of a 1998 meeting between CIC Associate Deputy Minister Marc Lafreniere and Vice-Minister of the Chinese Ministry of Education, Wei Yu (See Respondent's Record, Tab A, affidavit of visa officer Romana Hur, exhibit A, pp. 5 - 6). According to the visa officer, this document indicated that it is practically impossible for Chinese students, who receive foreign high school diplomas, to reintegrate into the Chinese educational system because they lack sufficient knowledge of written Chinese characters. However, in her CAIPS notes, the visa officer makes no mention of this document or its contents, and instead simply states that foreign secondary diplomas are not recognized (Certified Tribunal Record, p. 17). The applicant contends that the visa officer breached the duty of fairness by not communicating her concerns to the applicant and allowing him the opportunity to respond.
[7] The applicant contends that the visa officer erred by stating in her CAIPS notes that someone who intends to remain in Canada for four and a half years would become a de facto resident and no longer a visitor.
[8] The applicant submits that the Court should not take into account the visa officer's reasoning, contained only in her affidavit and not in her CAIPS notes, that the applicant would be likely to stay in Canada by illegal means.
[9] The applicant also contends that the visa officer erred in her treatment of the evidence relating to the applicant's financial resources. The applicant contends that the visa officer fettered her discretion by requiring only certificates of deposit or bank savings as adequate evidence of funds available for the applicant. The applicant takes issue with the visa officer's failure to record the monetary value of the portfolio of stocks allegedly belonging to the applicant's parents in her CAIPS notes. The applicant also takes issue with the visa officer's reasoning, in her affidavit, to the effect that the value of the stock certificates could fluctuate and thereby not be sufficient to cover his expenses. The applicant also states that the visa officer failed to take into account the statement made in Box 11 of the Application for Student Authorization that the applicant would have $501,896.30 as funds available for his stay in Canada (Page 7 of Tribunal Record) or the sum, as part of the $501,896.30, of $401,137.13 Canadian dollars and held in cash by a brokerage company. (Page 13 of Tribunal Record)
[10] Finally, the applicant contends that the visa officer erred by requiring him to be from an "extremely well to do" family so that he would have a "very, very high" incentive to return to China upon completion of his studies (quotations are from the Applicant's Record, Tab 4, cross-examination of visa officer Romana Hur on her affidavit, p. 20).
Respondent's Position
[11] The respondent submits that the appropriate standard of review is that of patent unreasonableness. I do not agree with this submission.
[12] The respondent maintains that the vias officer did not err in relying on the 1998 memorandum of a meeting between Canadian immigration officials and representatives of the Chinese Ministry of Education. The respondent submits that the visa officer's affidavit elaborates on, and contextualizes, her CAIPS notes.
[13] The respondent submits that it was open to the visa officer to conclude that the applicant had not overcome the presumption, found in section 9(1.2) of the Immigration Act, that he was a prospective immigrant. In coming to this conclusion, it was open to the visa officer to consider the applicant's long-term goals, which included the length of his stay in Canada.
[14] The respondent submits that the visa officer did not err in finding that the applicant had not adduced sufficient documentation regarding his financial resources. Moreover, the applicant had failed to provide the required letters of employment from his parents' employers, nor did he provide the required recently dated original bank certificates which were to provide current balances for the family's bank accounts dating back 18 months.
[15] With regard to the duty of fairness, the respondent maintains that the visa officer was not required to apprise the applicant of her concerns as they arose directly from the Immigration Act and Regulations, as well as the student visa application kit.
Analysis
[16] In order to pursue a course of study in Canada, a person who is neither a Canadian citizen nor a permanent resident, must obtain a valid and subsisting student authorization. According to subsection 9(1) of the Immigration Act, except in prescribed cases, every immigrant and visitor must apply for and obtain a visa before appearing at a port of entry. Subsection 9(1.2) provides that the burden rests on the applicant to satisfy a visa officer that the applicant is not an immigrant. Thus, the applicant bears the onus of establishing the bona fides of his or her application for temporary entry into Canada as a student.
[17] Subsection 15(1)(b) of the Regulations provides that applications for student authorizations shall be accompanied by, inter alia, a letter of acceptance from the institution at which the applicant wishes to study, and sufficient documentation to enable the visa officer to be satisfied that the applicant has sufficient financial resources available to cover his or her expenses while in Canada.
[18] The decision to issue a student authorization is discretionary. In De La Cruz v. Canada (M.E.I.) (1989), 26 F.T.R. 285 at (F.C.T.D.), the Court held, "the duty of the visa officer is to accord proper consideration to any application, but he is not required to issue a visitor's visa unless he is convinced the applicant fulfills the legislative requirements." With regard to the scope of judicial review of such a decision, the Court held:
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.
[19] 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. 1 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.
[20] 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.
[21] The applicant takes issue with the visa officer's finding that he would be unlikely to return to China upon completing his studies, and contends that the visa officer applied an incorrect test. He relies upon section 4.6.1 of the Citizenship and Immigration Canada Immigration Manual, Overseas Processing, which provides as follows:
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.
[22] In Mittal v. Canada (M.C.I.) (1998), 147 F.T.R. 285 (T.D.), Lutfy J., as he then was, held:
Guidelines serve as a "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.
[23] From reading the visa officer's CAIPS notes, and her affidavit, it appears to me that she applied the correct legal test: that is, whether the applicant would be likely to return to China following the completion of his studies.
[24] In her CAIPS notes, the visa officer expresses her concern about the applicant not completing his secondary schooling in China. Without a Chinese senior middle school diploma, he would be effectively barred from pursuing post-secondary schooling in that country. She writes that he would then have no other choice but to remain in Canada to pursue any further education, and then, having spent so many years in Canada, the applicant would have become a de facto resident.
[25] In Wong v. Canada (M.C.I.) (1999), 246 N.R. 377 (F.C.A.), the Court held, at paragraph 13, that a visa officer is entitled to take into consideration an applicant's long-term goals:
We firmly believe that 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 in determining whether or not an Applicant is a visitor within the terms of the definition provided for in the Act.
[26] Clearly, the visa officer is allowed to look at the entirety of the circumstances surrounding an applicant's application. In the present case, this is precisely what was done, and in the absence of bad faith or an error on the face of the record, judicial intervention is not warranted.
[27] With regard to the issue of the sufficiency of funds, the applicant bears the burden of producing the necessary documentation to support his application for a student authorization. The application kit makes it clear that detailed information must be provided, as well as proof of the claimed assets. According to the CAIPS notes, the applicant submitted only a listing of stock holdings. The visa officer was not satisfied that the applicant had sufficient liquid assets to cover his expenses. No certificates of deposit or bank account savings information was provided. The visa officer was under no duty to request further information or clarification, because the application kit made it clear that such proof was required. Furthermore, there was no evidence shown to me that the applicant produced any documents relating to the alleged cash balance in the brokerage account or how long the money was there or where it came from. In addition, the applicant and his family stated on the documentation submitted that they had no savings.
[28] I am satisfied the applicant has not succeeded in establishing a breach of the duty of fairness or an error on the face of the record, and accordingly, this application for judicial review is dismissed.
[29] No question of general importance was submitted for certification.
(Sgd.) "Max M. Teitelbaum" Judge
Vancouver, British Columbia
July 4, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2636-00
STYLE OF CAUSE: Yang Liu v. Minister of Citizenship and Immigration
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: July 3, 2001
REASONS FOR ORDER OF THE COURT BY: Teitelbaum J.
DATED: July 4, 2001
APPEARANCES:
Melvin Weigel FOR APPLICANT
Mark Sheardown FOR RESPONDENT
SOLICITORS OF RECORD:
Lu Chan FOR APPLICANT
Vancouver, British Columbia
Deputy Attorney General of Canada FOR RESPONDENT
Department of Justice
Vancouver, British Columbia