Date: 20030704
Docket: IMM-729-02
Citation: 2003 FC 834
Ottawa, Ontario, this 4th day of July 2003
Present: The Honourable Madam Justice Heneghan
BETWEEN:
DUONG, HOANG TAT
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Hoang Tat Duong (the "Applicant") seeks judicial review of the decision of overseas Visa Officer Weeree Prinyanusorn (the "Visa Officer") dated January 4, 2002. In that decision, the Visa Officer refused the Applicant's application for a visitor's visa to Canada.
[2] The Applicant is a citizen of Vietnam. On November 16, 2001, he submitted an application for a Canadian visitor's visa to the Canadian Embassy in Thailand. He stated the purpose of his visit as "to visit my mother, sisters and in-laws, niece and nephews in Canada".
[3] The rejection letter from the Visa Officer was in a standard form and the following reason was identified as the reason for refusing the Applicant's application:
You provided insufficient evidence of substantial ties to your home country which would compel your return there from Canada. You have not provided convincing evidence of your employment, education or family responsibilities which would lead me to conclude that you intend to return home. You similarly failed to provide sufficient evidence that you would depart from Canada for some other destination.
[4] According to the Computer Assisted Immigration Processing System ("CAIPS") notes, the Visa Officer did not believe that the Applicant had strong ties to Vietnam. The following entry is found in the CAIPS notes:
-LOW INCOME. NOT WELL ESTABLISHED. WEAK TIES: REFUSED
[5] Since the issuance of a visitor's visa involves the exercise of discretion by a visa officer, as found in De La Cruz v. Canada (Minister of Employment and Immigration) (1989), 7 Imm. L.R. (2d) 75 (F.C.T.D.), the dispositive issue in the present case is whether the Visa Officer erred in the exercise of her discretion. In De La Cruz, supra, the Court made the following statements at paragraphs 7 and 8:
...the issuance of a visitor's visa is a discretionary decision. 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 fulfils the legislative requirements...
Are there grounds for quashing the decision of the visa officer? An application for certiorari is not an appellate review. To succeed, the applicants must do more than establish the possibility that I might 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.
[6] In the present case, the Applicant has failed to show an error on the face of the record. He did not file his own affidavit as part of his Application Record, but instead submitted an affidavit from one of his sisters who lives in Canada. That affidavit is largely irrelevant to this proceeding.
[7] The Applicant filed material in support of his application for a visitor's visa including information about his income, his marital status, his family and family income. There was sufficient information before the Visa Officer to enable her to deal with the primary consideration before her, that is, whether the Applicant had a temporary purpose for visiting Canada.
[8] The Applicant's argument that the Visa Officer discriminated against him on the basis of marital status because he and certain other members of his family are separated, is without merit. The CAIPS notes indicate a listing of the various family relationships of the Applicant in Vietnam and in Canada. There is nothing improper in this and the fact that the Applicant was separated from his spouse in Vietnam is a relevant, although certainly not a determinative, factor from the standpoint of assessing the likelihood of a person to return to his country. It indicates a weaker family tie, in comparison to a married relationship.
[9] Further, the Applicant's income and business assets in Vietnam were relevant factors for consideration by the Visa Officer. While a visitor's visa should not be limited to only the financially well-off, or even moderately well-off individual, in my opinion, the Applicant has not shown that the Visa Officer erred in the exercise of her discretion. His business income, while above the minimum wage level, was not enough, in combination with other factors, to satisfy the Visa Officer that he would likely return to Vietnam or other third country after his visit to Canada. There is no indication that the Visa Officer applied extraneous or irrelevant considerations in evaluating the Applicant's financial situation.
[10] The Applicant had control of the material he submitted to the Embassy for consideration of his application. The Visa Officer was not satisfied, on the basis of that evidence, that the Applicant had met the burden of demonstrating that he met the requirements of the former Act. Contrary to the arguments of the Applicant, I see no evidence that the Visa Officer ignored the evidence before her or relied on extraneous material, or otherwise erred in the exercise of her discretion, and this application will be dismissed. There is no question for certification arising.
ORDER
This application for judicial review is dismissed. There is no question for certification arising.
"E. Heneghan"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-729-02
STYLE OF CAUSE: DUONG, HOANG TAT
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, JULY 3, 2003
REASONS FOR ORDER
AND ORDER BY: HENEGHAN J.
DATED: JULY 4, 2003
APPEARANCES BY: Mr. Benjamin Bajikijaie
For the Applicant
Mr. Lorne McClenaghan
For the Respondent
SOLICITORS OF RECORD: Mr. Benjamin Bajikijaie
Barrister & Solicitor
861 College Street, Suite 101
Toronto, Ontario
M6H 1A1
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date:20030704
Docket: IMM-729-02
BETWEEN:
DUONG, HOANG TAT
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
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