Date: 20050224
Docket: IMM-6470-03
Citation: 2005 FC289
BETWEEN:
SUN YUE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PHELAN J.
INTRODUCTION
[1] This is Sun Yue's second attempt to secure a student visa to study English in Canada. Her first attempt was unsuccessful but her judicial review of that decision resulted in her visa application being considered by another Officer.
[2] Despite the fine efforts of the Applicant's counsel, the Court is not satisfied that the second decision is unreasonable although it is fairly arguable that it is not the best decision. It is not for this Court to substitute its view of the correct decision.
BACKGROUND
[3] The Applicant had applied for a student visa in 2001. The visa was denied because the Officer was not satisfied that the Applicant had sufficient ongoing funds to pay for her one-year English language course.
[4] Justice O'Reilly in his judicial review of the visa refusal said:
In Ms. Sun's [sic] case, it is clear that the visa officer was assessing her application as if it were for a lengthy period of study. His notes say that he was not satisfied of the sufficiency of funds "considering length of planned studies" and his affidavit is to like effect. Strictly speaking, however, Ms. Sun was merely seeking entry for one year. It is difficult to see any basis for concern about sufficiency of funds over that time frame.
. . .
In my view, the visa officer's concern about the sufficiency of funds for Ms. Sun's program of studies (i.e. for 1 year) was unwarranted on the evidence before him and, therefore, his decision to deny a student authorization to her constituted reviewable error. . . .
[5] The visa application was referred back to a different Officer who refused the visa on the basis that she was not satisfied that the Applicant's study plan was reasonable given her current educational pursuits coupled with the amount of investment that would have been required. The Officer concluded that she was not satisfied that the Applicant was a genuine student and a bona fide visitor who intends to leave Canada at the end of her period of authorized stay.
ANALYSIS
[6] A visa Officer is a decision maker possessing specialized training, who is on-site in the country, knowledgeable about that country and who interviews applicants for visas. Subject to the Federal Court Act, the visa Officer's decision is entitled to a degree of deference. This Court has held that such decisions should be examined on the standard of reasonableness simpliciter. (See Lin v. Canada (Minister of Citizenship and Immigration) (2004), 245 F.T.R. 103 (T.D.); Novak v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 307 (T.D.) (Q.L.)).
[7] The relevancy of a determination that a student visa applicant will leave Canada at the end of the stay is prescribed in section 216(1)(b) of the Immigration and Refugee Protection Regulations which read:
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216.(1) Subject to subsections (2) and (3), an officer shall issue a study permit to a foreign national if, following an examination, it is established that the foreign national
. . .
(b) will leave Canada by the end of the period authorized for their stay under Division 2 of Part 9; . . . .
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216.(1) Sous réserve des paragraphes (2) et (3), l'agent délivre un permis d'études à l'étranger si, à l'issue d'un contrôle, les éléments suivants sont établis :
. . .
b) il quittera le Canada à la fin de la période de séjour qui lui est applicable au titre de la section 2 de la partie 9;. . . .
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[8] Contrary to the Applicant's submissions, the Officer did not ignore Justice O'Reilly's judgment. The Officer decided the case on a different basis from the first decision.
[9] Justice O'Reilly's decision did not hold that finances were irrelevant nor did his decision constitute res judicata such that the Officer could not consider the size of the financial commitment being made. Justice O'Reilly merely held that the decision to refuse a visa could not be based exclusively on sufficiency of funds where there was ample evidence that funds were available for a short language course of one year.
[10] I further find that there was nothing unreasonable in the Officer questioning the Applicant as to her choice of an expensive English language training course in Canada when there were ELS courses available in China. The record does not show whether the issue put to the Applicant, was whether Chinese ESL courses were an alternative to the Canadian ESL course, or whether if they were an alternative, they were comparable.
[11] In any event the Officer considered a variety of other factors in her assessment, all of which were relevant factors.
[12] In order to overturn the Officer's decision, this Court would have to perform the same analysis and substitute its own conclusions for that of the Officer. Having found that the Officer addressed the legal issues, acted fairly and reached a reasonable conclusion, there is no basis for the Court's intervention.
[13] This application for judicial review will be dismissed. No question for certification arises.
(s) "Michael L. Phelan"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6470-03
STYLE OF CAUSE: SUN YUEv. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 27, 2005
REASONS FOR ORDER: Phelan J.
DATED: February 24, 2005
APPEARANCES:
Mr. Matthew Jeffery FOR THE APPLICANT
Mr. Alexis Singer FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Bao Lihua
Barrister & Solicitor
Toronto, Ontario FOR THE APPLICANT
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT
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