Date: 20021205
Docket: IMM-700-01
Neutral citation: 2002 FCT 1262
BETWEEN:
HUANG HAO WEN
Applicant
- and -
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
SNIDER, J.
[1] This is an application for judicial review of a decision of a Citizenship and Immigration Officer ("Officer"). On January 19, 2001, the Officer rendered a negative decision in response to the applicant's student visa application.
THE FACTS
[2] The applicant resides in Guangzhou, Province of Guangdong, in the People's Republic of China. Upon graduation from senior middle school in 1998, he worked for one year as a salesman. In 1999, he registered in the accounting program at the Guangdong College of Agriculture & Administration. Subsequently, in July 1999, the Applicant was accepted by Seneca College of Applied Arts & Technology into a two-year program described, in the acceptance letter, as a "Preparatory Program in English Language" and a "Professional Program in General Arts and Science". The applicant applied for a student visa on September 28, 2000.
[3] The application was denied, without an interview. This decision was communicated by way of a form letter on which the following notation was identified as applicable:
"According to Canada's Immigration Act and Regulations, a student visa application must establish that his or her intentions are clearly bonafide and temporary in nature, i.e. that the applicant is a visitor as defined by Canada's Immigration Act and that he or she is not an immigrant. It is your responsibility as an applicant to satisfy the visa officer that you will leave Canada and that you will not engage in unauthorized employment, study, nor attempt to remain permanently in Canada. We have carefully reviewed the information contained in your application and conclude that you do not meet the conditions above. You therefore come within the inadmissible class of persons described in paragraph 19(2)(d) of the Act and your application has been refused."
[4] In an affidavit sworn in the context of this judicial review application, the Officer stated that she concluded that the applicant was not a genuine student seeking to enter Canada for a temporary purpose. She noted that the letter from Seneca College stated that the applicant was enrolled in "(i) a Preparatory Program - English Language Institute - Second Module; and (ii) a Professional Program - General Arts and Science." She found that the applicant had not been accepted into a computer program at Seneca and "there is no indication that such acceptance will necessarily be granted in the future".
[5] The Officer stated that the general arts and science program at Seneca seemed to be "somewhat repetitive of the two-year college diploma course at the Guangdong College of Agriculture and Administration..." and that "it did not make sense that he would want to abandon his studies now, without first completing his diploma course".
[6] The Officer stated that she considered, but did not find persuasive, submissions that the applicant's parents had substantial savings and that his aunt and uncle would help him. The Officer reasoned that, since the applicant commenced work right after senior middle school, the family did not have adequate resources to provide higher education. If the family had savings, it was believed that the applicant would have commenced studies immediately after senior middle school.
ISSUES
[7] The issues in this case are as follows:
(1) Did the Officer commit an error of law in failing to consider the applicant's explanation regarding his intended course of study at Seneca College?
(2) Was the applicant denied procedural fairness in not having the right to respond to the Officer's concerns about his not proceeding to higher education immediately after senior middle school?
ARGUMENTS
Applicant's Submissions
[8] The applicant referred to the explanation of the consultant, CIC Immigration Service (Canada) Inc. ("CIC"), who submitted an explanation as to why the letter of acceptance from Seneca College stated that the applicant is enrolled in General Arts and Science rather than a computer program. Specifically, CIC stated that Seneca applicants who have not passed English proficiency exams are enrolled in "General Arts and Science" and that students do not have to choose a program until they have passed English proficiency. Since the Officer did not refer to this explanation, the applicant argued that she failed to consider this material evidence and thus committed a reviewable error of law.
[9] The applicant argued that he was not given a chance to respond to the Officer's unarticulated assumptions regarding the economic position of Chinese nationals who proceed directly into the work force after completing senior middle school. The Officer stated:
"I note that the Applicant indicates in his affidavit that his parents have substantial savings and that his aunt and uncle in Canada would be helping him. I considered these submissions but did not find them persuasive. The most common (but not exclusive) reasons why Chinese nationals do not seek higher education after graduation from senior middle school are the family cannot afford to finance higher education and the student is expected to commence working and contribute to the family's income; the family can only finance the further education of one child; or the student did not do well academically and failed to be accepted into post-secondary colleges or universities."
[10] The Officer concluded that the reason for the applicant's entry into the work force after upper middle school was the financial position of his parents. Since the parents are in the same position today, the Officer reasoned that the applicant was not a genuine student entering Canada for a temporary purpose. The applicant relied on the decision of this Court in Yue v. Canada (MCI) [2002] F.C.J. No. 1299. In that case, Kelen J. held that the applicant was denied procedural fairness because he was not given an opportunity to address a major concern. In this case, the Officer's "general understanding" of reasons why prospective students do not go on to higher education should have been provided to the applicant in advance of making a decision.
Respondent's Submissions
[11] The respondent argued that the conclusions reached by the Officer was open to her on the facts. The respondent submitted that "the applicant simply failed to satisfy the onus on him to show that he is a bona fide student who is coming to Canada for a temporary purpose. To accept the arguments of the applicant would be to "effectively reverse the onus that Parliament has clearly put on the applicant himself".
[12] In the respondent's submissions, there is no requirement that the Officer advise the student of his concerns. Unlike the situation in Mittal, the Officer did not rely on extrinsic evidence.
ANALYSIS
[13] 1) Failure to Consider Relevant Evidence
It is my view that the findings of the Officer were reasonably open to her based on the evidence before her. Accordingly, the Officer did not commit a reviewable error.
[14] A fundamental finding of the Officer that led to the rejection of the application was that the Applicant "has not been accepted into a computer program at Seneca and there is no indication that such acceptance will be necessarily granted in the future". The foundation of that decision was the acceptance letter from Seneca College that referred only to a General Arts and Science program. Although, the applicant's consultant, CIC, stated that Seneca College routinely processes non-English-proficient applicants as "General Arts and Science" applicants for reasons of convenience, it is clear that the only unequivocal acceptance was not to a computer program. It was reasonable for the Officer to state as she did that "I had concerns about the program this applicant had enrolled in, despite his stated intention to eventually enroll in a computer program".
[15] (2) Denial of Procedural Fairness
In the circumstances of this case, I do not believe that there was an obligation of the Officer to provide the applicant with an opportunity to respond to her concerns.
[16] In Li v. Canada (Minister of Citizenship and Immigration), 2001 FCT 791, Muldoon canvassed the extent of procedural protections that arise in the context of a student visa application. Muldoon J. concluded that the procedural requirements are "relaxed", with no clear requirement that an applicant be permitted to respond to an Officer's concerns as they arise. Further, it is reasonable, in my view, to expect that Officers will bring their own experience and expertise to the applications before them.
[17] In Yue v. Canada (MCI), Kelen J. stated that "[w]hile visa officers are legally entitled to apply their own experience toward a decision...an Officer cannot stereotype an applicant based on that experience." This is not a case of stereotyping. The Officer relied on her own experience but also carefully assessed the individual situation of the applicant. She was entitled to do so.
[18] The applicant also cited Mittal (Litigation Guardian of) v. Canada (Minister of Citizenship and Immigration), (IMM 2751-97, IMM-2752-97, Lutfy, J. (as he then was)). Mittal is distinguishable because, in that case, the Officer relied on extrinsic evidence, whereas, in the case at bar, the Officer merely drew negative conclusions from the evidence.
[19] In the present case the Officer did not rely on extrinsic evidence, but rather relied on her own expertise and analysis of all the evidence before her.
CONCLUSION
[20] For these reasons, the application for judicial review will be dismissed.
[21] The parties did not request a question for certification.
"Judith A. Snider"
J.F.C.C.
Toronto, Ontario
December 5, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: IMM-700-01
STYLE OF CAUSE: HUANG HAO WEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
DATE OF HEARING: THURSDAY, DECEMBER 5, 2002.
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: SNIDER J.
DATED: THURSDAY, DECEMBER 5, 2002
APPEARANCES BY: Mr. M. Max Chaudhary
For the Applicant
Ms. Ann Margaret Oberst
For the Respondent
SOLICITORS OF RECORD: CHAUDHARY LAW OFFICE
18 Wynford Drive, Suite 707
North York, Ontario
M3C 3S2
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date:20021205
Docket: IMM-700-01
BETWEEN:
HUANG HAO WEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER