Date: 20031211
Docket: IMM-3443-01
Citation: 2003 FC 1453
BETWEEN:
SU HUO RONG
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HARRINGTON J.
[1] Su Huo Rong would like to study in Canada. However, the visa officer at the Canadian Embassy in Beijing refused his application. Mr. Rong seeks a judicial review of that decision.
[2] The application fell under the former Immigration Act, R.S.C. 1985 c. I-2. Section 8 raised a presumption that every person seeking to come to Canada comes as an immigrant unless he or she satisfies the officer to the contrary. In this case, authorization to temporarily study in Canada was denied as the visa officer was not satisfied that Mr. Rong would leave Canada upon completion of his studies. I have decided that the visa officer's decision was not unreasonable and so dismiss the application.
[3] At the time of his application Mr. Rong had graduated from secondary school and was employed as an automotive maintenance worker. His declared intention was to come to Canada to upgrade his education in computer science and to learn English. He was conditionally accepted for grade 12 courses at an academy in Ontario. He submitted that he would then pursue a Bachelor of Science degree at York University and with better English skills developed in Canada would be in great demand in the Chinese job market.
[4] The visa officer took into account a number of points, including his current job, the fact that he did not immediately attend a post-secondary educational institution in China upon completing secondary school, and that the same courses were available in China. Mr. Rong submits that the visa officer did not, at least in her written notes, take account of the specific statement in his study plan that his family connections were in China, and by inference not in Canada. However, a visa officer is presumed to have taken all points in issue into consideration.
[5] More importantly, it was submitted that the visa officer failed to provide him an opportunity to alleviate her concerns arising from the fact that he did not immediately proceed to higher education upon graduating from high school in China. This was argued to be a denial of procedural fairness flavoured by a serious flaw in her assumption that the programs offered in China were equal in quality and reputation to those in Canada. To dispose of this point, in his study plan Mr. Rong says that education is better here because Canadian teachers are all qualified, the method of teaching is new and the quality of teaching is very high. That is pure speculation on his part. There is no objective evidence in the record comparing Canadian and Chinese universities and so I defer to the visa officer with her specialized knowledge.
[6] In reviewing discretionary decisions of a visa officer the Court is to defer unless the decision is unreasonable. See Bozorg v. Canada (Minister of Citizenship and Immigration), 2003 FCT 339, Wang v. Canada (Minister of Citizenship and Immigration) (2001), 199 F.T.R. 302, and Liu v. Canada (Minister of Citizenship and Immigration), 2001 FCT 751.
[7] One aspect of the procedural unfairness issue is that it was submitted that the visa officer generalized. Mr. Chaudhary on behalf of Mr. Rong suggests that his client was stereotyped. If that were the case then I would have granted the application in accordance with the decisions of Kelen J. in Yue v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1004, and Yuan v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1356. However, the visa officer dealt with Mr. Rong's own study plan, and a number of factors, not simply his failure to immediately continue his education, his relatively low-paying job and the job market in Canada. A more relevant decision of Kelen J. is Bozorg, supra, another case in which an application for a student visa was refused. It was pointed out that the onus remains on the applicant. In that case, as in this, the visa officer did not rely upon extrinsic evidence, and it could not be said that the officer was under an obligation to raise concerns with the applicant or to seek out other information that may have aided in the application. In the context of such student authorizations one cannot argue unfairness because all the visa officer's concerns were not communicated so that Mr. Rong had an opportunity to respond, as per Muldoon J. in Li v. Canada (Minister of Citizenship and Immigration), 2001 FCT 791 at para. 50.
[8] Mr. Rong also relied on the decision of Lutfy J. (as he then was) in Mittal v. Canada (Minister of Citizenship and Immigration) (1998), 147 F.T.R. 285. That case was advanced in support of the proposition that a visa officer's concerns which arose from information extrinsic to the file should be put to the applicant. That is quite right. However, in this case the "evidence", so called, which is really an expression of opinion, did not come from extrinsic sources but from Mr. Rong's own study plan.
[9] While I might possibly have come to a different conclusion, taking into account that students often take time off between graduating from secondary school and commencing their post-secondary education and might have enquired further with respect to Mr. Rong's assertion that a foreign degree would be of great benefit to him in China, I cannot say that it was unreasonable for the visa officer to decide as she did.
"Sean Harrington"
JUDGE
Ottawa, Ontario
December 11, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3443-01
STYLE OF CAUSE: SU HUO RONG
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: DECEMBER 10, 2003
REASONS FOR ORDER : HARRINGTON J.
DATED: DECEMBER 11, 2003
APPEARANCES:
M. Max Chaudhary FOR APPLICANT
Lorne McClenaghan FOR RESPONDENT
SOLICITORS OF RECORD:
Chaudhary Law Office
Toronto, Ontario FOR APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT
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