Date: 20010711
Docket: IMM-3510-00
Neutral Citation: 2001 FCT 786
BETWEEN:
XINGZUO JI
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
Teitelbaum J.
[1] The applicant seeks judicial review of the decision of visa officer Judyanna Ng, of the Canadian High Commission in Hong Kong, dated May 29, 2000, which refused the applicant's application for a student authorization in Canada. The application was refused on the grounds that the visa officer was not satisfied that the applicant was a bona fide visitor to Canada, nor was she satisfied that he had sufficient funds to cover his expenses.
Background
[2] The applicant, Xingzuo Ji, is a 21 year old citizen of the People's Republic of China. In March 2000, he submitted an application to the Canadian Consulate General's office in Hong Kong for a student visa. He had completed senior high school in July 1998; at the time of the application, he was studying English at the Shenyang China International School.
[3] In the applicant's study plan, which was submitted with his student visa application, he stated that he planned to pursue an ESL program at the University of Saskatchewan for three months; following that, he planned to enter a four-year degree program in business administration at the University's College of Arts and Sciences (Certified Tribunal Record, p. 2). He included a letter of acceptance to the ESL program, as well as a letter of acceptance to the business administration program, which was conditional upon his completion of the ESL program.
[4] In his study plan, the applicant stated that he planned to return to China after his studies were finished because, as an only child, he bears the responsibility to support his parents.
[5] The applicant was not interviewed.
[6] On may 25, 2000, the visa officer reviewed the applicant's file. In her affidavit, sworn September 12, 2000, she states that she does not recall seeing a letter titled "Parents' Statement", which is attached as Exhibit B to the applicant's affidavit (Respondent's Record, Tab A, para. 7; Applicant's Record, Tab 3, para. 5). The visa officer states that the applicant's application did not contain anything that indicated that he intended to return to China to assume control of his parents' company. She also states that no credible evidence was submitted that indicated that the applicant's parents owned a company. His application merely listed his father's occupation as a "Director" and his mother's as an "accountant".
[7] The visa officer was also not satisfied as to the sufficiency of funds. She states that although evidence of funds was submitted, the financial documentation did not demonstrate how the parents had accumulated, or received, recent large deposits in their accounts. As well, there was little evidence of the parents' claimed incomes. Thus, the visa officer was not satisfied that the funds would be available for the applicant's course of studies. The applicant had also indicated that his grandmother would provide financial support, but the evidence regarding her finances was unclear.
[8] In her CAIPS notes, the visa officer also stated that she was not satisfied with the applicant's study plan (Certified Tribunal Record, pp. 28 - 29). She did not think that a short-term ESL program would improve his job prospects in China, and noted that there are numerous ESL programs available in that country. She was not satisfied that, after having spent close to five years in Canada, the applicant would have any incentive to depart Canada.
Applicant's Position
[9] The applicant submits that the visa officer erred in determining that the applicant lacked a bona fide intention to visit Canada for a temporary purpose. The applicant contends that the visa officer did not properly evaluate his study plan in coming to this conclusion.
[10] The applicant contends that the visa officer erred in finding that the applicant lacked sufficient ties to his home country, and took into account irrelevant considerations when she stated, during cross-examination on her affidavit, that one factor she took into account was the applicant's lack of siblings.
[11] The applicant also takes issue with the visa officer's statement, in her CAIPS notes, that the applicant would not be likely to leave Canada after being here for some five years and becoming accustomed to its higher standard of living. The applicant contends that the visa officer made a capricious finding of fact when she determined that the applicant's standard of living was lower than average in China.
[12] Withe regard to sufficiency of funds, the applicant submits that the visa officer erred in disregarding the evidence that indicated his tuition and living expenses had been pre-paid for one year. The applicant contends that where the visa officer was concerned over the parents' incomes and occupations, she was under a duty to interview the applicant in order to resolve such uncertainties.
Respondent's Position
[13] The respondent submits that paragraphs 5 and 6, and Exhibits B and C of the applicant's affidavit should not be considered in this application for judicial review as they constitute evidence that was not before the visa officer when she made her decision. Paragraph 5 and Exhibit B contain background information on the company which the applicant alleges his parents own; Exhibit C is a statement by the parents, dated October 28, 1999; and paragraph 6 contains further reasons for the applicant's application for a student visa.
[14] The respondent maintains that the visa officer did not err in concluding that the applicant was not a bona fide visitor. He failed to satisfy her, pursuant to section 9(1.2) of the Immigration Act, that he was not an immigrant. The visa officer, according to the respondent, was entitled to take into account the applicant's long-term goals, including the length of his proposed stay, in assessing his application.
[15] With regard to sufficiency of funds, the respondent submits that the application kit makes it clear that detailed financial information and supporting documents must be submitted for consideration. The applicant did not provide evidence as to the source of the funds, the history of recent large deposits in his parents' accounts, or their claimed incomes.
[16] Finally, the respondent maintains that the visa officer did not breach the duty of fairness. Her concerns arose directly from the Act and Regulations; she did not rely on extrinsic evidence, and was therefore not required to inform the applicant of her concerns.
Analysis
[17] The decision to issue a student authorization is discretionary and, as such, the scope of judicial review is limited. To succeed, the applicant must demonstrate either an error of law on the face of the record or a breach of the duty of fairness: De La Cruz v. Canada (M.E.I.) (1989), 26 F.T.R. 285 (T.D.).
[18] The visa officer's duty to inform an applicant of her concerns is limited. The applicant bears the burden of satisfying the visa officer that he has met certain criteria to enter this country. In the case at bar, the visa officer's concerns had to do with the applicant's bona fides and sufficiency of funds, which arise directly from the Act and Regulations. The visa officer did not rely on any extrinsic evidence, which would engage the duty to inform the applicant of concerns and allow him an opportunity to respond.
[19] With regard to the bona fides of the applicant's intension, a visa officer is entitled to take into account an applicant's long-term goals, which includes the proposed length of stay.
[20] In the present case, the applicant's study plan showed that he planned to pursue an ESL program at the University of Saskatchewan for three months and, following that, he planned to enter a four-year degree program in business administration.
[21] In order to attend the ESL course and the business administration course, of necessity, the applicant must stay in Canada for a little more than four years. I fail to see on what basis the visa officer can conclude that because the applicant will stay in Canada to complete his studies the applicant would not have any incentive to return to China.
[22] Using this kind of reasoning, any foreign applicant who would come to Canada to study in an undergraduate or graduate degree course would be prevented from coming to Canada because, of necessity, the course may take three or four years.
[23] I am satisfied that the visa officer's reasoning is unreasonable with regard to the applicant's bona fides.
[24] With regard to the issue of sufficiency of funds, it is apparent that the applicant failed to provide all of the information required by the Application for Student Authorization. What is known is that the applicant had pre-paid the sum of $18,216.40 to the University of Saskatchewan, representing one year's school fee and living expenses.
[25] It is interesting to note that the visa officer, in her CAIPS notes, makes no mention of this fact when she concludes that the applicant "has failed to satisfy me ... that there are sufficient funds for the proposed studies".
[26] I am satisfied that the visa officer's conclusion with regard to the insufficiency of funds is a reasonable one. On the Application for Student Authorization, in box 11, the question is "Funds available for my stay in Canada". The reply given is $18,216.40.
[27] In Supplement #1 to the question "Do you, your family or your sponsor have any savings?", the applicant states $44,700.00 US.
[28] Seeing the above and the fact that the application makes it abundantly clear that detailed financial information and supporting documentation must be provided, which was not done, I cannot conclude the visa officer's decision is unreasonable with regard to funding.
[29] In that the applicant has failed, and the onus is on him, to convince the visa officer on the issue of funding, the application for judicial review is denied.
[30] No question was submitted for certification.
(Sgd.) "Max M. Teitelbaum" Judge
Vancouver, British Columbia
July 11, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET:IMM-3510-00
STYLE OF CAUSE: Xingzuo Ji v. Minister of Citizenship and Immigration
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: July 5, 2001
REASONS FOR ORDER OF THE COURT BY: Teitelbaum J.
DATED: July 11, 2001
APPEARANCES:
Melvin Weigel FOR APPLICANT
Helen Park FOR RESPONDENT
SOLICITORS OF RECORD:
Lu Chan FOR APPLICANT
Vancouver, British Columbia
Deputy Attorney General of Canada FOR RESPONDENT
Department of Justice
Vancouver, British Columbia
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