Date: 20061027
Docket: IMM-3254-06
Citation: 2006 FC 1298
Ottawa, Ontario, October 27, 2006
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
AI MIN WANG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision by a Visa Officer to deny
the Applicant, Ai Min Wang, a student visa to permit her to study in Vancouver.
Background
[2]
Ms.
Wang has made two unsuccessful applications to enter Canada as a
student. She is 19 years of age and seems to have been a good student in China.
[3]
Ms.
Wang is presently living with her parents. They are retired. Her only sibling
is a sister, Hua Ling Wang, who lives in Burnaby in a
common-law relationship with Martin Bauer. Mr. Bauer and Ms. Wang have
generously agreed to financially support the Applicant during her Canadian
studies and have provided her with $22,000.00 to that end.
[4]
The
Applicant’s first request for a study visa was made on December 19, 2005. That
application was declined by way of a form letter from the Canadian Embassy in Beijing dated
January 4, 2006. The reasons given for that refusal were three-fold:
1. You have not satisfied me that
you have adequate funds available to you to pay for your expenses while in Canada and that you will be able to
return to China.
2. You have not satisfied me that
you are an intending temporary resident to Canada as defined by Canada’s Immigration and Refugee
Protection Act.
3. You have not submitted all
required documentation: proof of funds.
[5]
The
record indicates that on April 5, 2006, the Applicant’s previous legal counsel
requested a copy of the Visa Officer’s computer notes (CAIPS notes) bearing on
the first refusal decision. Those notes were received from the Department of
Justice by letter dated April 11, 2006. The CAIPS notes reflected the following
concerns:
No proof of funds under parents’ name.
Unclear if parents still have income. Only proof of funds on file is bank Stmt
under sister’s name showing limited savings (aprox CAD 6K). No other funds.
Based on the above assessment and the
docs on file, I am not satisfied that there are sufficient funds available to
support Appl during the authorized period of stay.
This also leads me to have concerns that
Applt is not well-stablished [sic] in PRC or may not be motivated to
depart Canada following the authorized
period of stay.
[6]
In
the face of the visa refusal, the Applicant made a second request for a student
visa supplemented by additional information to establish that she was
financially self-sufficient. She did not, however, consider it necessary to
provide further information concerning the circumstances of her parents or
their establishment in China. The second visa application was for a
duration of one year, albeit that Ms. Wang expressed an interest in later
pursuing a university degree at the University of British
Columbia.
[7]
The
Applicant’s second visa application was refused by letter dated May 23, 2006,
for the stated reason that “you have not satisfied me that you are an intending
temporary resident to Canada as defined by Canada’s Immigration
and Refugee Protection Act”. The CAIPS notes supporting this refusal
decision added the following detail:
Note Applicant’s sister landed H&C
FCC and that she and her common-law partner intend to support applicant; they
currently earn a combined income of apprx CDN$44,000 gross and have savings of
CDN$22,000
Family has submitted no documents to show
establishment; both parents appear to be retired in PRC, no proof of assets or
savings submitted
Based on the documents on file, not
satisfied that the applicant is well-est’d in PRC and would be motivated to
leave CDA at the end of her period of authorised stay
Application refused
[8]
It
is the second visa refusal decision that is the subject of this judicial review
application. The Applicant challenges the refusal decision on two principal
grounds. She contends that the decision, on its face, is patently unreasonable
and that the failure by the Respondent to provide fulsome reasons for the
decision before the initiation of an application for judicial review exhibits
bad faith and is otherwise a breach of the rules of natural justice.
Issues
1. What is the appropriate standard
of review?
2. Does the Visa Officer’s decision
contain any reviewable errors?
3. Did the Respondent
breach the rules of natural justice in the manner in which it provided reasons
for the refusal decision to the Applicant?
Analysis
A. Standard
of Review
[9]
Where
a negative decision by a visa officer is based substantially on an assessment
of the facts, the standard of review is patent unreasonableness. This point was
conceded by counsel for the Applicant but is also supported by recent case
authorities: see Singh v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 387, 2006 FC 315 at
para. 32; Song v. Canada
(Minister of Citizenship and Immigration), [2002]
F.C.J. No. 385, 2002 FCT 288 at para. 5 and Boni v. Canada (Minister of Citizenship and Immigration) 2005 FC 31, [2005] F.C.J. No. 43 at para.
26.
A clear and helpful statement acknowledging the deference that is owed to such
a decision can be found in Boni where Justice Max Teitelbaum stated:
[26] Finally, in my view the
officer’s conclusions were based on the evidence in the record. The officer was
entitled to make this assessment. The risk that study permit applicants will
not leave Canada once the period of their stay
ends is a very important factor to be considered, since it is the legal test
which must be applied. In so doing, I cannot find that the officer arrived at
this conclusion on any arbitrary basis, in a biased or even in a patently
unreasonable manner. In short, in my view the evidence in the record,
considered reasonably, could support the officer’s determinations: her
assessment of the facts was not patently unreasonable.
[10]
The
Applicant’s contention that the Respondent failed to provide adequate reasons
for its refusal decision raises an issue of natural justice, which is assessed
on the basis of correctness: see Hamzai v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 1408, 2006 FC 1108 at
para. 15, Ren v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 994, 2006 FC 766 at
para. 8.
B. Reasonableness
of the Visa Officer’s Decision
[11]
It
is clear that the decision under review in this case is substantially
fact-based. In the result, the Applicant must establish that the impugned
decision is so obviously defective that no real possibility of doubt on the
issue exists or, in other words, that the decision is clearly irrational or is
evidently not in accordance with reason: see Law Society of New Brunswick v.
Ryan, [2003] S.C.J. No. 17, 2003 SCC 20 at para. 52.
[12]
Counsel
for the Applicant argues that the Visa Officer’s finding that the Applicant was
not well-established in China was bizarre because the record discloses
that she “is as well established in China as any 19-year-old who
has just finished high school.” The Applicant says that one’s establishment in
a country must be viewed in context and requires an examination of ties to the
community, family and social linkages, economic circumstances, and language and
cultural factors. It is said that those contextual factors must have been
overlooked because the decision fails to take note of them. Instead it is said
that the Visa Officer focused on the “irrelevant” economic circumstances of the
Applicant’s Chinese family.
[13]
While
there is some merit to the Applicant’s contention that one’s establishment in a
country ordinarily requires consideration of many factors, it is also the case
that a visa officer has a broad discretion to weigh the evidence submitted in
making a decision. Here the Visa Officer looked for evidence of the financial
situation of the Applicant’s parents. The Visa Officer considered this to be
important to the assessment of the application and she failed to find it. This
was a surprising omission because the first visa refusal was based, in part, on
the same stated concern. In the result, the Visa Officer was “not satisfied”
that the Applicant would leave Canada on the completion of her studies.
[14]
I
do not accept that the requested information concerning the Applicant’s parents
was irrelevant to the determination of whether the Applicant was likely to
return to China. As a young
adult, the financial circumstances of one’s immediate family in the country of
origin may well be a motivation for either staying in Canada or for
returning home. Here the Applicant’s parents were retired and their financial
situation was unknown. Given that the onus rested upon the Applicant to
establish an entitlement to a student visa, the Visa Officer was entitled to
base the refusal decision solely on the absence of that evidence of family
circumstance. If that evidence had been offered and if it sufficiently answered
the concerns of the Visa Officer, the decision may well have been different.
[15]
Even
if a different decision was open to be made on the evidence submitted, the
decision is clearly not irrational and cannot be characterized as patently
unreasonable.
C. National
Justice and the Duty to Give Reasons
[16]
The
Applicant’s argument that the Respondent acted in bad faith in failing to
provide adequate or timely reasons for the visa refusal decision has no
evidence to support it and, therefore, is without merit.
[17]
The
evidence indicates that the Respondent’s approach to this case was consistent
with its usual practices in dealing with 75,000 or so annual visa applications
received in its Beijing office. Of those applications, approximately
10,000 are applications for student visas.
[18]
In
each case where a visa application is refused, a form letter is sent which
indicates in general terms why the decision was made. Here the decision letter
identified an unresolved concern about the Applicant’s possible intention to
remain in Canada. The Visa
Officer’s CAIPS notes went on to note the absence of evidence concerning the
financial circumstances of the Applicant’s parents in China.
[19]
The
adequacy of a given set of reasons for an administrative decision must be
assessed in context: see Via Rail Canada Inc. v. Canada (National
Transportation Agency), [2000] F.C.J. No. 1685, [2001] 2 F.C. 25
(C.A.) at para. 21. The Court must give due regard to the nature and
significance of the decision and to appropriate concerns about administrative
efficiencies and costs. This point is well made in the case of Khan v. Canada (Minister of
Citizenship and Immigration), [2001] F.C.J. No. 1699, 2001 FCA 345 at para.
31-32, where the Federal Court of Appeal observed:
[31] The factors tending to limit
the content of the duty in the case at bar include: the absence of a legal
right to a visa; the imposition on the applicant of the burden of establishing
eligibility for a visa; the less serious impact on the individual that the
refusal of a visa typically has, compared with the removal of a benefit, such
as continuing residence in Canada; and the fact that the issue in dispute in
this case (namely, the nature of the services that Abdullah is likely to
require in Canada and whether they would constitute an excessive demand) is not
one that the applicant is particularly well placed to address.
[32] Finally, when setting the
content of the duty of fairness appropriate for the determination of visa
applications, the Court must guard against imposing a level of procedural
formality that, given the volume of applications that visa officers are
required to process, would unduly encumber efficient administration. The public
interest in containing administrative costs and in not hindering expeditious
decision-making must be weighed against the benefits of participation in the
process by the person directly affected.
[20]
In
this case, the Respondent was dealing with one of several thousand visa
applications it receives in Beijing each month. Its
practices in the rendering of decisions are a reflection of the workloads
associated with this process. Whatever the merits of her application, the
Applicant had no right to enter Canada. The fairness duty to
provide reasons in a context like this would be at the lower end of detail and
formality and, in my view, the reasons provided to the Applicant were sufficient
to meet that legal obligation.
[21]
The
Applicant complains, however, that the refusal letter was deficient because it
did not contain the reasons for the visa refusal. She argues that there is a
legal duty on the Respondent to provide its CAIPS notes along with the refusal letter.
I do not agree. The Applicant’s counsel was aware that CAIPS notes to support
the refusal decision are typically available because he had successfully
requested those notes in connection with the first refusal decision.
Inexplicably, he failed to request those same notes before initiating this
application for judicial review. At that point, the CAIPS notes were provided
to the Applicant by the Respondent in compliance with its Rule 9 obligation:
see Federal Court Immigration and Refugee Protection Rules, r. 9.
[22]
CAIPS
notes have been accepted as a constituent part of an administrative decision:
see Kalra v. Canada (Minister of
Citizenship and Immigration), [2003] F.C.J. No. 1199, 2003 FC 941 at para.
15, and Toma v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 1000, 2006 FC 779 at para.
12. In this case, the CAIPS notes provide additional detail to the formal
decision letter and are clearly sufficient to inform the Applicant of the
reasons for the refusal of a visa. It is not open to the Applicant to complain
that the CAIPS notes were not provided in advance of the initiation of this
application because her counsel failed to request them at an earlier stage: see
Hayama v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J.
No. 1642, 2003 FC 1305 at para. 14 and Liang v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 1301 at para. 31:
[31] However, in my opinion, the duty of fairness
normally only requires reasons to be given on the request of the person to whom
the duty is owed and, in the absence of such a request, there will be no breach
of the duty of fairness.
[23]
Furthermore,
Rule 9 contemplates that the provision of detailed reasons for an immigration
decision may occur after the commencement of an application for judicial
review. The Respondent met its obligation under that Rule and cannot be taken
to have breached a natural justice requirement by failure to abide by some
other standard.
Certified Questions
[24]
The
Applicant asked that the following two questions be certified in this case:
1. Whether the Respondent is at
liberty to provide additional reasons for refusal after the receipt of the
Federal Court of the written reasons pursuant to the Federal Court’s request?
2.
Whether
the Respondent’s policy of not providing written reasons except by way of
Federal Court request is consistent with the principles of natural justice?
[25]
The
first of the above questions concerns the content of an affidavit submitted by
the Respondent. The Applicant took exception to this evidence as a supplement
to the official reasons for the refusal decision. This affidavit had no bearing
on the determination of this application and its content varied only minimally
from the underlying CAIPS notes. In any event, the law is well settled on this
issue concerning the use of affidavits to supplement the official reasons for
administrative decisions: see Kalra above.
[26]
In
light of the Applicant’s failure to request reasons in advance, the second
proposed question for certification is similarly not determinative and cannot
be certified.
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