Date: 20030327
Docket: IMM-1797-01
Neutral citation: 2003 FCT 365
Toronto, Ontario, Thursday, the 27th day of March, 2003
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
HAO WANG
Applicant
- and -
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Mr. Hao Wang (the "Applicant") seeks judicial review of the decision of Visa Officer Robert Foo (the "Visa Officer") dated February 21, 2001. In his decision, the Visa Officer refused the Applicant's application for a visitor's visa to Canada.
[2] The Applicant is a citizen of China. By letter dated October 27, 2001, he applied for a visitor's visa and student authorization so that he could study English and take OAC courses in Canada. He was accepted at the Cambridge International College of Canada and his course of study was to begin on January 2, 2001.
[3] The Visa Officer reviewed the Applicant's application. He did not interview the Applicant. According to his affidavit, the Visa Officer reviewed the Applicant's application and supporting documentation and concluded that the Applicant did not have a genuine intention to be a student and visitor, that is, a bona fide intention to visit and study in Canada on a temporary basis and then leave upon the expiration of his status.
[4] The refusal letter issued to the Applicant was a standard form letter offering a number of dispositions. The box containing the following statements was marked off in the case of the Applicant:
According to Canada's Immigration Act and Regulations, a student visa applicant must establish that his or her intentions are clearly bona fide 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.
[5] In his affidavit, the Visa Officer also states that he did not believe that the Applicant had the intention to be a genuine student in Canada because his educational path was not one that a bona fide student from China would take. The Visa Officer noted that a bona fide student would not have been unemployed and out of school if he had achieved academic excellence, as the Applicant claimed to have done. Furthermore, if a bona fide student had been accepted into one of China's top universities, that person would enter the Chinese university and apply for "lateral" entry into a Canadian university or apply directly to a Canadian university.
[6] The Visa Officer also commented, in his affidavit, upon the Applicant's study plan. He said that the Applicant did not have a clear study plan and said:
A person who gained entry into China's top business university would have had some form of continuation of his academic career after graduation from SMS [Senior Middle School].
[7] In the Computer Assisted Immigration Processing System ("CAIPS") notes, the Visa Officer noted that the cost of pursuing education in Canada would exceed the potential benefits to the Applicant, if indeed he was going to return to China. In the result, the Visa Officer refused the Applicant's application for a visitor's visa and student authorization.
APPLICANT'S SUBMISSIONS
[8] The Applicant argues that the Visa Officer failed to assess his application in a manner consistent with policy guidelines and case law, and furthermore, that the Visa Officer breached the duty of procedural fairness. The Applicant says that his comprehensive study plan shows that he had a clear plan for his future education and that he believed a Canadian education would enhance his future career prospects in China.
[9] The Applicant further submits that the Visa Officer violated the duty of fairness in assessing his application. The Applicant says that the Visa Officer improperly relied on personal assumptions about the socio-cultural environment in China, when he considered the usual path followed by other Chinese students seeking admission into a Canadian university. Furthermore, the Applicant argues that the Visa Officer breached the duty of fairness by failing to communicate his concerns and providing the Applicant with an opportunity to answer those concerns.
RESPONDENT'S SUBMISSIONS
[10] The Respondent, on the other hand, submits that the Visa Officer fairly and properly assessed the Applicant's application and reached a reasonable conclusion, in the absence of any reviewable error.
[11] The Respondent points out that the Applicant has produced no evidence that the Visa Officer incorrectly applied the policy or case law on student authorizations when assessing his application.
[12] The Respondent also argues that it was open to the Visa Officer to conclude that the Applicant lacked a bona fide intention to enter Canada for a temporary purpose when his proposed course of study was inconsistent with the educational plans of a person who had achieved high academic success in China.
[13] The Respondent's answer to the alleged breach of the duty of fairness is that the Visa Officer had a legitimate concern about the Applicant's ability to satisfy the regulatory criteria for the issuance of a visitor's visa and student authorization. The Respondent says that the Applicant would be aware of both the regulatory criteria and the typical progress of students in China. Consequently, the Visa Officer was under no obligation to alert the Applicant to his concerns about these matters.
[14] In this case, the Applicant failed to discharge the onus upon him to show that he was a person whose admission into Canada met the requirements of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") and the Immigration Regulations, 1978, SOR/78-172 (the "Regulations"). In this regard, the Respondent relies on Yu v. Canada (Minister of Employment and Immigration), [1990] F.C.J. No. 704 (T.D.) (QL), Parmar v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1532 (T.D.) (QL) and Ashgar v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1091 (T.D.) (QL).
ANALYSIS
[15] This application arises from the refusal of the Visa Officer of the Applicant's application for a visitor's visa and student authorization for study in Canada. Sections 2(1), 8(2), 9(1.2) and 10 of the Act, and sections 13(2) and 14.1 of the Regulations, are relevant and provide as follows:
| 2. (1) In this Act,
"immigrant" means a person who seeks landing;
...
"landing" means lawful permission to establish permanent residence in Canada;
...
"visitor" means a person who is lawfully in Canada, or seeks to come into Canada, for a temporary purpose, other than a person who is
(a) a Canadian citizen,
(b) a permanent resident,
(c) a person in possession of a permit, or
(d) an immigrant authorized to come into Canada pursuant to paragraph 14(2)(b), 23(1)(b) or 32(3)(b)
...
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|
2. (1) Les définitions qui suivent s'appliquent à la présente loi.
« immigrant » Personne qui sollicite l'établissement.
...
« _droit de s'établir_ » Autorisation d'établir sa résidence permanente au Canada.
...
« visiteur » Personne qui, à titre temporaire, se trouve légalement au Canada ou cherche à y entrer, à l'exclusion_:
a) des citoyens canadiens;
b) des résidents permanents;
c) des titulaires de permis;
d) des immigrants visés aux alinéas 14(2)b), 23(1)b) ou 32(3)b).
...
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8. (2) Every person seeking to come into Canada shall be presumed to be an immigrant until that person satisfies the immigration officer examining him or the adjudicator presiding at his inquiry that he is not an immigrant.
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8. (2) Quiconque cherche à entrer au Canada est présumé être immigrant tant qu'il n'a pas convaincu du contraire l'agent d'immigration qui l'interroge ou l'arbitre qui mène l'enquête.
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9. (1.2) A person who makes an application for a visitor's visa shall satisfy a visa officer that the person is not an immigrant.
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9. (1.2) La personne qui demande un visa de visiteur doit convaincre l'agent des visas qu'elle n'est pas un immigrant.
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| 10. Except in such cases as are prescribed, every person, other than a Canadian citizen or a permanent resident, who seeks to come into Canada for the purpose of
(a) attending any university or college authorized by statute or charter to confer degrees,
(b) taking any academic, professional or vocational training course at any university, college or other institution not described in paragraph (a), or
(c) engaging in employment
shall make an application to a visa officer for and obtain authorization to come into Canada for that purpose before the person appears at a port of entry.
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10. Sauf cas prévus aux règlements, est tenu de présenter une demande auprès de l'agent des visas et d'obtenir l'autorisation nécessaire avant de se présenter à un point d'entrée quiconque, à l'exception d'un citoyen canadien ou d'un résident permanent, cherche à venir au Canada aux fins_:
a) de faire des études dans une université ou un collège autorisés par la loi ou par une charte à délivrer des diplômes;
b) de suivre des cours de formation générale, théorique ou professionnelle dans une université, un collège ou un autre établissement non visés à l'alinéa a);
c) d'occuper un emploi.
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| 13. (2) A visa officer may issue a visitor's visa to any person who meets the requirements of the Act and these Regulations if that person establishes to the satisfaction of the visa officer that he will be able
(a) to return to the country from which he seeks to come to Canada; or
(b) to go from Canada to some other country.
14.1 Subject to sections 14.2 and 14.3, no person, other than a Canadian citizen or a permanent resident, shall attend any university or college or take any academic, professional or vocational training course in Canada unless that person possesses a valid and subsisting student authorization.
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13. (2) L'agent des visas peut délivrer un visa de visiteur à toute personne qui satisfait aux exigences de la Loi et du présent règlement, si cette personne prouve, d'une façon jugée satisfaisante par l'agent des visas, qu'elle pourra
a) retourner dans le pays d'où elle sollicite l'admission au Canada; ou
b) se rendre dans un autre pays.
14.1 Sous réserve des articles 14.2 et 14.3, il est interdit à toute personne, à l'exception des citoyens canadiens et des résidents permanents, de suivre des cours à une université ou à un collège ou de suivre des cours de formation générale, théorique ou professionnelle au Canada, à moins d'être en possession d'une autorisation d'étude en cours de validité.
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[16] According to sections 8(2) and 9(1.2), the Applicant bears the burden of showing that he is not an immigrant. He must demonstrate that he has a bona fide intention to stay in Canada only on a temporary basis. In this case, the Applicant himself is a student and this means that he had to demonstrate that he wanted to enter and remain in Canada for a temporary purpose, that is for the purpose of pursuing studies in Canada.
[17] The Applicant puts a great deal of emphasis on his study plan. He characterizes this as a comprehensive document which reflects his past academic success. The Applicant says that this sufficiently demonstrates his bona fides as a potential student in Canada.
[18] The Visa Officer took a different view and in my opinion, the contrary conclusion reached by the Visa Officer concerning the adequacy of the study plan is reasonable.
[19] The study plan produced by the Applicant is couched in general terms. He simply states that he was accepted into a top university in China and that he decided not to take his place there because he thought he would have better future prospects if he received an education in Canada. There is nothing in the record to show either that he was accepted into this university or that he formally rejected this position.
[20] However, according to the record and the Visa Officer's affidavit, the insufficient study plan was not the primary basis of his decision. It appears that the Visa Officer considered the Applicant's application in relation to his own knowledge of the usual path followed by students in China in pursuing higher education in either China or Canada.
[21] Although reliance on personal experience is a necessary element in the discharge of a Visa Officer's duty to assess an application for a student authorization, in my opinion the Visa Officer here failed to show that he considered the Applicant's application on its own merits. The record does not clearly show that the Visa Officer properly analysed the application.
[22] The application for judicial review is allowed and the matter remitted to a different visa officer for redetermination. There is no question for certification.
ORDER
The application for judicial review is allowed and the matter remitted to a different visa officer for redetermination. There is no question for certification.
"E. Heneghan"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: IMM-1797-01
STYLE OF CAUSE:HAO WANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, MARCH 12, 2003
REASONS FOR ORDER
AND ORDER BY: HENEGHAN J.
DATED: THURSDAY, MARCH 27, 2003
APPEARANCES BY: Ms. Nancy Myles Elliott
For the Applicant
Mr. Martin E. Anderson
For the Respondent
SOLICITORS OF RECORD: Nancy Myles Elliott
Barrister & Solicitor
130 Bloor Street West
Suite 601
Toronto, Ontario
M5S 1N5
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030327
Docket: IMM-1797-01
BETWEEN:
HAO WANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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