IMM-1991-97
Between:
ZHOU HAO,
Applicant.
-and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent
Let the attached edited version of the transcript of my Reasons for order delivered orally from the bench at Toronto, Ontario, on March 24, 1998, be filed to comply with Section 51 of the Federal Court Act.
F.C. Muldoon
Judge
Ottawa, Ontario June 4, 1998
Date: 19980604
Docket: IMM-1991-97
BETWEEN:
ZHOU HAO,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent
REASONS FOR ORDER (delivered orally from the bench on March 24, 1998 )
MULDOON, J.
[1] This Court has to construe the evidence and the statute. We start with the statute, sections 8 and 9.
[2] Section 8(2) has been read into the record by Mr. Eastman. Section 8(1) begins by saying:
Where a person seeks to come into Canada, the burden of proving that that person has a right to come into Canada or that his admission would not be contrary to this Act or the Regulations, rests on that person.
[3] And then 8(2) has been mentioned. Subsection 9(1.2) requires that:
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A person who makes an application for a visitor's visa shall satisfy a visa officer that the person is not an immigrant.
That is the law as expressed by Parliament.
[4] Immigrant means a person who seeks a landing, and visitor means a person who is lawfully in Canada or seeks to come into Canada for a temporary purpose.
Interesting also is subsection 5(3):
A visitor may be granted entry and allowed to remain in Canada during a period for which he was granted entry or for which he is otherwise authorized to remain in Canada if he meets the requirements of this Act and the Regulations.
[6] Now, the requirements of this Act have to do with the visa officer's discretion. The visa officer has a discretion in dealing with people who come along looking for a visitor's visa. That's the law as Parliament has enacted it.
[7] Perhaps too often these days since the institution of the Canadian Charter of Rights and Freedoms, (blessed be its name), judges may be tempted to think that they can legislate if they do not like what Parliament says and they can change it so that nobody's feelings are hurt.
[8] The Court has no reason to doubt the sincerity of the applicant, but the Court has to look at the system which Parliament has established. Going to university in Canada, from the
Page: 3 point of view of this applicant, is going to university or high school in a different country. It is not that an applicant can apply and be accepted, simply go in.
[9] In terms of students, if one could ensure that Canada could educate students and they would return home, it would be really advisable to accept all the students we could accept. Canada could have some influences in the education of leaders in foreign countries by accepting students for education in Canada.
[10] Here the question was aptly put by counsel for the respondent. Can it be shown that the visa officer was capricious? Can it be shown that the visa officer acted without evidence before him, or in a way perversely contrary to the evidence. That appears to be a great difficulty despite, may the Court say, the competent and compelling arguments put to the Court by the applicant's counsel.
[11] The applicant has no reason to be unhappy with his counsel in this case, let it be own, nor does the respondent have any reason to be unhappy with counsel. Each was professional and articulate.
[12] The jurisdiction of the reviewing Court is limited where a statutory discretion is being exercised. That is the principle which was established quite some time ago, and in a case which just trips off everybody's lips, Maple Lodge Farms Limited v. Canada, and there
Page: 4
seems to be a citation for that case. The citation is [1982] 2 S.C.R. 2. Mr. Justice McIntyre
stated that, and here is the passage:
It is, as well, a clearly established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the- Court might have exercised the discretion in a different manner had it been charged with that same responsibility.
Where the statutory discretion has been exercised in good faith and where required in accordance with the principles of natural justice and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.
[13] Now, one comes then to the cases cited to the Court by the applicant, being Yu (Litigation Guardian 0J) v. The Minister of Employment and Immigration (1994), 21 Imm L.R., (2nd) 1. That is a decision of Mr. Justice McKeown. And the second is the case of Wong, [again] (Litigation Guardian oJ) [because Wong, like Yu, is a minor], v. The Minister of Citizenship and Immigration (1997) 39, Imm L.R., (2nd) 78.
[14] In the Yu case, Mr. Justice McKeown accepted the exercise of the visa officer's
discretion. He said in paragraph 2 of his reasons:
There are only three ways a person can come into Canada under the Immigration Act except in special cases which are not applicable here. A person must be an immigrant, a permanent resident, or a visitor. The applicant comes within the category of a visitor since she does not fall within any of the exceptions in (a), (b), (c), and (d) of the definition of visitor as it was then.
[15] She was a child and the visa officers looked at the relevant considerations in paragraphs 10 and 11 of her affidavit and in her letter, just as there is a letter of the applicant here and the letter of his consultant, and those he read into the record and he reported in his reasons.
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[16] And then Mr. Justice McKeown said:
There is nothing capricious about her...
[meaning the visa officer's,]
...exercise of discretion in deciding whether the applicant sought to come into Canada for a temporary purpose.
Ten years is not temporary when considered with the other circumstances here based on the
intention to pursue studies.
[17] In the case of Wong, Mr. Justice Gibson had a similar situation. A young person who was coming to Canada, a 10 year old child, during the interview the child's mother indicated that she hoped he would finish university in Canada. The visa officer was concerned that the child would be in Canada for over 12 years and would not retain sufficient knowledge of, or ties to, Hong Kong.
[18] Mr. Justice Gibson reviewed the jurisprudence and he concluded that he did not agree
with the decision made by Mr. Justice McKeown in the Yu case. He said in Wong:
On facts very similar to the facts in this matter, Mr. Justice McKeown concluded that a visa officer made no reviewable error in reaching the same decision which was reached by the visa officer in this matter. He...
[meaning Mr. Justice McKeown,]
...wrote, there is nothing capricious about her exercise of discretion... and so on, already recited.
With great respect...
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said Mr. Justice Gibson,
...I reach a different conclusion. And so he did.
[19] In paragraph [10] of his reasons, he said:
The minor applicant's mother's aspirations or hopes and dreams for her son's educational career were, on the 12th day of August, 1996 nothing more than that.
At some time in the minor applicant's educational career it might become evident that those aspirations were in the course of being realized and that the minor applicants's major attachment had become to Canada rather than to Hong Kong.
He said:
But to take into account those aspirations or hopes and dreams was, I conclude, to take into account an irrelevant consideration.
[20] Well, is there a plan? Is there a purpose? Is there an intention? And if so, 'How do
they differ from hopes, aspirations or dreams?' this Court asks.
[21] This Court concludes that really, to state that the child is hoped to continue right through university is the same as an intention or a plan or a dream or an aspiration. That is what is intended and the parent said that.
[22] In the case at bar we have the applicant's own initial letter, and we have his consultant's letter. And when Mr. Alston, who gave the decision which is attacked in this
Page: 7
matter, referred to the consultant's letter, he mentioned the consultant's letter, and his
paragraphs 8 and 9 are cogent. So in paragraph 6 where he said:
It appeared to me that this student from China wished to abandon his education in China in order to attempt to learn English and to repeat and finish his secondary school studies in Canada by taking himself out of the Chinese system at this time, I judge that the applicant would find it immensely difficult, if not impossible, to pass Chinese university entrance examinations and reintegrate into the Chinese educational system. Beyond simply a desire to continue with university studies in Canada, the applicant would actually have little choice but to do so outside of China if he were to embark on his secondary school studies as proposed.
I determined the applicant would face severe difficulties in attempting to reintegrate into Chinese society given the extent of the proposed studies and the length of time the applicant would intend to remain in Canada. That is, to learn English, complete secondary school as well as university studies. The applicant was, therefore, unable to satisfy me that he would be a genuine visitor.
We have to harken back, of course, then to subsection 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.
And so on in paragraphs 8 and 9 of Mr. Alston's affidavit.
[23] It is not clear to this Court, even after the professional arguments put forward by the applicant's counsel, that Mr. Alston made a capricious decision that he went wrong, a capricious decision in terms of Maple Lodge Farms, that he based his decision on something other than the evidence before him.
[24] This judge cannot say that this Court is overjoyed by that. Certainly this Court cannot say that that is, for sure, a right decision. But this Court does not have to come to that conclusion, that it is a one hundred per cent right decision if the Court can conclude that it is not a wrong decision on the part of Mr. Alston.
Page: 8
[25] Was there evidence to justify his conclusion? Yes, there appeared to be.
[26] So for these reasons, including the highly interesting and professional arguments which have been advanced to the Court today and the material in the file, the Court concludes with no joy that the application must be dismissed.
[27] And so be it, it will be dismissed.
[28] Is there a question to certify?
---Court proceeds with discussion re a certifiable question.
[29] THE COURT: Counsel for the applicant suggested that a question might be certified as found in Mr. Justice Gibson's reasons in the Wong case which bore considerable similarity to the case at bar.
[30] It will be remembered that Mr. Justice Gibson disagreed with Mr. Justice McKeown's decision in the Yu case.
[311 Mr. Justice Gibson in the Wong case certified the following question:
Did the applicant who expressed a long-term goal to study in Canada satisfy the definition of visitor as defined in subsection 2(1) of the Immigration Act?
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That may be an appropriate question to certify in this case, although it is strenuously opposed
by the respondent's counsel.
[32] That is the one matter on which the Court will reserve as to whether such question will be certified; that is, the text proposed by the applicant's counsel.
[33] The Court has this information that there has been an appeal taken, presumably by the Minister, in the Won; case and the appeal is in Docket No. A-533-97 of the Federal Court of Appeal, but it has not yet been heard.
[34] That is the end of the reasons.
[35] So counsel, the Court asks you to reflect on that question and decide on it.
[36] Now, would it be better to wait until these reasons be transcribed and then make an order in which the decision will be taken as to whether the question will be certified or not? Do you have anything against that?
[37]MR. EASTMAN: No, My Lord.
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[38] MR. WEINREB: No, My Lord.
[39] THE COURT: All right, because there may be a decision already. If there were a decision favourable, as indicating that this Court's reasons are wrong in the Wont case, this Court would be inclined to certify the question so that you would not have the judgment of the Court inflicted upon your client if it be a wrong one.
[40] There is no certainty in Wong and, of course, when questions are appealed and time is taken, no one ever knows, but the Court would be willing to wait until the reasons are transcribed and then sign an order which would dispose of the issue of whether any question would be certified or not.
[411 How long ago did Mr. Justice Gibson make his decision?
[42] MR. WEINREB: July of '97, My Lord.
[43] THE COURT: July of '97.
[44] There should be something coming out of the Federal Court of Appeal fairly soon, I should think. One never knows.
Page: 11
[45] Well, that is what the undertaking will be. The Court will wait until the reasons are transcribed before signing an order and the order will be dispositive of whether the question will be certified or not.
[46] Any other questions?
[47] MR. WEINREB: Nothing, My Lord.
[48] MR. EASTMAN: No, My Lord.
[49] THE COURT: The Court will rise then.
[50] THE REGISTRAR: This hearing is concluded.
---Whereupon, court proceedings in this matter were concluded at 4:30 p.m.
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-1991-97
STYLE OF CAUSE: ZHOU HAO v.
THE MINISTER OF CITIZENSHIP OF IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 24, 1998
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE MULDOON DATED: June 4, 1998
APPEARANCES
Mr. Arthur Weinreb FOR THE APPLICANT
Mr. Jeremiah Eastman FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
J. Norris Ormston FOR THE APPLICANT Toronto, Ontario
Mr. George Thomson FOR THE RESPONDENT Deputy Attorney General of Canada
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