Date: 20020619
Docket: IMM-6473-00
Neutral citation: 2002 FCT 695
Ottawa, Ontario, this 19th day of June, 2002
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
BIN LIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review of the decision of the visa officer at the Canadian Embassy in Beijing, People's Republic of China, dated November 13, 2000, wherein the applicant's application for a student visa was refused.
[2] The applicant seeks an order setting aside the decision of the visa officer, remitting the application back for reconsideration in accordance with law.
Background Facts
[3] The applicant, Bin Lin, is a citizen of China. The applicant applied for a student visa at the visa office of the Canadian Embassy in Beijing in July, 2000.
[4] The applicant did not receive an interview. The application was refused by letter dated November 13, 2000.
[5] The applicant completed education at the High School of Guangdong Province and computer science related education at the Ocean University of Zhanjiang in Guangdong, China.
[6] The applicant applied to Kingston College in Markham, Ontario, and was admitted to a one year diploma course in computer studies. Classes were to commence in early September, 2000.
[7] The applicant paid the full year's tuition fee of $9,630 and $10,000 to cover boarding and lodging expenses for the year. The letter of acceptance and receipts were enclosed in his application in July, 2000.
[8] The applicant received a passport a few days before applying for the student visa. The passport listed the applicant as an "employee". The applicant claims this is reflecting that at the time of his passport application, he was doing a summer job. The applicant also claims that the applicant has been offered a position in the company BD Ltd. after his return to China from Canada, which is another reason he was described as an "employee" in his passport.
[9] The applicant's father is employed by the Zhanjiang Economic and Technical Development Zone TEFA Industrial and Trading Company as the assistant director. His salary is about RMB21,850.00 a year. The applicant's mother used to work in the same organization as his father and is now a pensioner. Her annual income from her pension and other subsidies is about RMB10,200. (RMB5.5 is approximately equivalent to one Canadian dollar.)
[10] The visa officer was not satisfied that the applicant's intentions were bona fide and temporary in nature. The visa officer was not satisfied that the applicant has adequate funds to pay for his expenses while in Canada. The visa officer found that there was no evidence to support the applicant's academic and financial status at the time of the decision. The visa officer noted that the applicant seemed to know the requirement of up-to-date documents as he submitted a new letter of acceptance and a police certificate.
[11] This is the judicial review of the visa officer's decision not to issue a student authorization for the applicant to travel to Canada.
Applicant's Submission
[12] The applicant submits that granting of a student visa will allow the applicant to broaden his horizons as a foreign student in Canada.
[13] The applicant submits that foreign students have the burden of proving to the satisfaction of officers that they are bona fide visitors, and not a prospective illegal immigrant.
[14] The applicant submits that the applicant has no relatives or friends in Canada, but has good prospects in China. The applicant submits that with limited knowledge of English, he cannot survive in Canada, not to mention to spend his future in Canada.
[15] The applicant submits that the applicant submitted appropriate material, including a letter of acceptance and proof of tuition fees and living expense payments, to satisfy the visa officer that section 15 of the Immigration Regulations, 1978, SOR/78-172 had been complied with.
[16] The applicant submits that the duty of fairness requires that the applicant be given a chance to address the concerns of the visa officer. The applicant submits that failing to grant an interview or request clarification demonstrates that the decision was perverse and capricious.
[17] The applicant submits that the applicant's computer course is limited to one year.
[18] The applicant submits that it is trite law that a student visa applicant need only submit documents which are available at the time of application. The applicant submits that it never occurred to him that he should produce up-to-date bank records to the visa officer. The applicant submits that he intended to bring the most up-dated documents to the interview, but an interview was never granted.
[19] The applicant submits that the additional documents sent after the application in June were not available at the time of application.
[20] The applicant submits that in the initial application, the applicant's counsel stated "if you need further clarification or other information, please do not hesitate to contact the undersigned." The applicant submits that accordingly, the visa officer should have contacted the applicant to request up-to-date information or provide the applicant with an opportunity to disabuse the visa officer of her concerns.
Respondent's Submission
[21] The respondent submits that the appropriate standard of review is patent unreasonableness.
[22] The respondent submits that the applicant did not overcome the presumption that the applicant was not a visitor to Canada and that he did not demonstrate that he had sufficient funds to pursue his studies in Canada.
[23] The respondent submits that the visa officer did not breach the duty of fairness to the applicant.
[24] The respondent submits that section 9(1.2) of the Immigration Act, R.S.C. 1985, c. I-2, as amended, requires that any person who makes an application for a visitor's visa satisfy a visa officer that the person is not an immigrant.
[25] The respondent submits that the visa officer applied the correct test and the decision was reasonable.
[26] The respondent submits that the applicant provided mostly documents which were expired to indicate proof of funds. The applicant submitted two photocopies of bank books where the most recent information was from 1999 or March, 2000. These documents were not notarized and there was no evidence that these funds were still in the account at the time the application was submitted.
[27] The respondent submits that the applicant failed to prove that he had sufficient funds.
[28] The respondent submits that the visa officer was not satisfied that the applicant came from a family that could support costly studies in Canada or that he would have the funds required in order to pursue long term studies in Canada.
[29] The respondent submits that the visa officer did not breach the duty of fairness. The respondent submits that the applicant was aware of the necessity of submitting up-to-date information since he did forward some additional information. The respondent submits that it was reasonable for the visa officer to make her decision based on the materials submitted.
[30] The respondent submits that the processing of student authorization applications by a visa officer is highly administrative and does not resemble judicial decision-making. The respondent submits that content of procedural fairness is fairly relaxed for this type of decision and does not require a high degree of procedural protections such as granting the applicant an interview. The respondent submits that the visa officer is not required to put before the applicant any tentative conclusions she may be drawing from the material before her, even apparent contradictions, unless the officer is relying on extrinsic evidence.
[31] The respondent submits that the applicant ought to have known that he was required to satisfy the visa officer as to the issue of bona fides and finances in the material he submitted with the application.
[32] The respondent submits that the applicant is free to apply again in the future for another student authorization.
[33] Issue
Was the decision of the visa officer reasonable?
Relevant Statutory Provisions and Regulations
[34] The relevant subsections of the Immigration Act, supra are as follows:
| 8. (1) 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.
(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.
9. (1) Except in such cases as are prescribed, and subject to subsection (1.1), every immigrant and visitor shall make an application for and obtain a visa before that person appears at a port of entry.
. . .
(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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8. (1) Il incombe à quiconque cherche à entrer au Canada de prouver qu'il en a le droit ou que le fait d'y être admis ne contreviendrait pas à la présente loi ni à ses règlements.
(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.
9. (1) Sous réserve du paragraphe (1.1), sauf cas prévus par règlement, les immigrants et visiteurs doivent demander et obtenir un visa avant de se présenter à un point d'entrée.
. . .
(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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| (2) An application for an immigrant's visa shall be assessed by a visa officer for the purpose of determining whether the person making the application and every dependant of that person appear to be persons who may be granted landing.
(2.1) An application for a visitor's visa shall be assessed by a visa officer for the purpose of determining whether the person making the application and every accompanying dependant of that person appear to be persons who may be granted entry.
(3) Every person shall answer truthfully all questions put to that person by a visa officer and shall produce such documentation as may be required by the visa officer for the purpose of establishing that his admission would not be contrary to this Act or the regulations.
(4) Subject to subsection (5), where a visa officer is satisfied that it would not be contrary to this Act or the regulations to grant landing or entry, as the case may be, to a person who has made an application pursuant to subsection (1) and to the person's dependants, the visa officer may issue a visa to that person and to each of that person's accompanying dependants for the purpose of identifying the holder thereof as an immigrant or a visitor, as the case may be, who, in the opinion of the visa officer, meets the requirements of this Act and the regulations.
. . .
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(2) Le cas du demandeur de visa d'immigrant est apprécié par l'agent des visas qui détermine si le demandeur et chacune des personnes à sa charge semblent répondre aux critères de l'établissement.
(2.1) Le cas du demandeur de visa de visiteur est apprécié par l'agent des visas qui détermine si le demandeur et chacune des personnes à sa charge qui l'accompagne semblent répondre aux critères de l'autorisation de séjour.
(3) Toute personne doit répondre franchement aux questions de l'agent des visas et produire toutes les pièces qu'exige celui-ci pour établir que son admission ne contreviendrait pas à la présente loi ni à ses règlements.
(4) Sous réserve du paragraphe (5), l'agent des visas qui est convaincu que l'établissement ou le séjour au Canada du demandeur et des personnes à sa charge ne contreviendrait pas à la présente loi ni à ses règlements peut délivrer à ce dernier et aux personnes à charge qui l'accompagnent un visa précisant leur qualité d'immigrant ou de visiteur et attestant qu'à son avis, ils satisfont aux exigences de la présente loi et de ses règlements.
. . .
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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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[35] The relevant subsections of the Immigration Regulations, 1978, supra are as follows:
| 2. (1) In these Regulations,
"student authorization" means a document issued by an immigration officer whereby the person to whom it is issued is authorized
(a) to attend a university or college authorized by statute or charter to confer degrees, or
(b) to take an academic, professional or vocational training course at a university, college or other institution not described in paragraph (a);
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2. (1) Dans le présent règlement,
« _autorisation d'étude_ » Document délivré par un agent d'immigration portant que le titulaire est autorisé :
a) soit à suivre des cours à une université ou à un collège autorisé par la loi ou par une charte à délivrer des diplômes;
b) soit à suivre des cours de formation générale, théorique ou professionnelle à une université, à un collège ou à toute autre institution non visés à l'alinéa a).
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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.
15. (1) Every application for a student authorization shall be accompanied by
(a) a letter from a university, college or other institution referred to in paragraph 10(a) or (b) of the Act accepting the applicant to attend or to take any specified course at the university, college or other institution;
(b) sufficient documentation to enable an immigration officer to satisfy himself that the applicant has sufficient financial resources available to him, without engaging in employment in Canada,
(i) to pay his tuition fees,
(ii) to maintain himself and any dependants who will come into Canada during the period for which he seeks a student authorization, and
(iii) to pay the transportation costs to and from Canada for himself and any dependants referred to in subparagraph (ii); and
(c) the consent in writing of the government of the province in which the applicant wishes to study where such consent is required by that government pursuant to an agreement entered into by the Minister with that government pursuant to section 109 of the Act.
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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.
15. (1) Toute demande présentée afin d'obtenir une autorisation d'étude doit être accompagnée
a) d'une lettre d'une université, d'un collège ou de toute autre institution visés aux alinéas 10a) ou b) de la Loi, qui a accepté le requérant, indiquant qu'il fréquentera l'institution en question ou y suivra un cours précis;
b) des documents voulus pour convaincre l'agent d'immigration que le requérant possède, sans qu'il lui soit nécessaire d'exercer un emploi au Canada, des ressources financières suffisantes
(i) pour payer ses frais de scolarité,
(ii) pour subvenir à ses propres besoins et à ceux des personnes à sa charge qui viendront au Canada durant son séjour, et
(iii) pour payer les frais de transport aller retour que lui-même et les personnes à sa charge visées au sous-alinéa (ii) auront engagés; et
c) lorsque le gouvernement de la province où compte étudier le requérant le requiert suivant un accord qu'il a conclu avec le ministre conformément à l'article 109 de la Loi, du consentement écrit de ce gouvernement.
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Analysis and Decision
[36] Was the decision of the visa officer reasonable?
The visa officer decided not to issue a student visa to the applicant based lack of funds and bona fides. The visa officer's decision in this respect must be found to be reasonable.
[37] Subsection 9(1) of the Immigration Act, supra requires that every immigrant and visitor (except in certain prescribed cases) shall make application for and obtain a visa before appearing at the port of entry. Subsection 9(1.2) places a burden on the visa applicant to satisfy a visa officer that he or she is not an immigrant. Student authorizations are addressed in section 10 and covered under subsection 9(1) of the Immigration Act, supra. If the visa officer is satisfied the applicant has met the requirements of the Act and Regulations, a student authorization may be issued (see subsection 9(4)).
[38] The Regulations also deal with student authorizations and lay out certain requirements that an applicant for a student authorization must meet. The Regulations require, among other things, that an application for a student authorization shall be accompanied by:
1. An acceptance letter from the university, college or other institution that the applicant will be attending.
2. Sufficient documentation to allow an immigration officer to satisfy himself or herself that the applicant has sufficient financial resources available to him without engaging in employment in Canada to:
(a) Pay his tuition fees;
(b) Maintain himself while in Canada;
(c) Pay his transportation costs to and from Canada.
[39] The applicant's documentation must now be examined to determine whether the visa officer's decision was reasonable. The material to be examined is the documentation that was before the visa officer. There is no requirement that the visa officer grant an oral interview (see Lu v. Canada (Minister of Citizenship and Immigration) [2002] F.C.J. No. 579 (QL); 2002 FCT 440).
[40] The applicant provided receipts which showed that he had paid his tuition and living costs for the period when he was to be in Canada. The applicant must also establish that he has sufficient funds to meet his travel costs to and from Canada (Immigration Regulations, 1978, subparagraph 15.(1)(b)(iii)). The bank statements presented by the applicant to the visa officer, with the exception of one document, all gave balances not at the time of the application, but at dates some months earlier. The one exception was the Industrial and Commercial Bank of China fixed term savings certificate maturing on 2000/10/10 in the amount of RMB10,000 plus interest. The certificate was expired when the visa officer made her decision on November 13, 2000 and the record at that date did not disclose the current status of the funds. As well, using the conversion factor mentioned at the hearing, this would be approximately $1,860 Canadian. Is this sufficient to cover the applicant's travel expenses? I do not know. I am of the view that on the material before the visa officer, the decision was reasonable with respect to the sufficiency of funds.
[41] The visa officer also indicated that the applicant's passport showed that the applicant was an employee, not a student. She also noted that no proof was given to her that the applicant was still enrolled as a student in the year 2000. I am of the opinion that these facts were a sufficient basis for the visa officer to decide that the applicant had not satisfied her that his intentions were "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". The visa officer's decision was reasonable.
[42] The applicant has not provided sufficient evidence to overcome the burden imposed on him by subsection 9(1.2) of the Immigration Act, supra.
[43] The application for judicial review is dismissed.
[44] Neither party wished to submit a serious question of general importance for certification.
ORDER
[45] IT IS ORDERED that the application for judicial review is dismissed.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
June 19, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6473-00
STYLE OF CAUSE: BIN LIN
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Tuesday, June 4, 2002
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: Wednesday, June 19, 2002
APPEARANCES:
John Y. C. Lee
FOR APPLICANT
Angela Marinos
FOR RESPONDENT
SOLICITORS OF RECORD:
John Y.C. Lee
418 - 4002 Sheppard Avenue East
Toronto, Ontario
M1S 1S6
FOR APPLICANT
Department of Justice
Toronto Regional Office
2 First Canadian Place
Suite 3400, Exchange Tower, Box 36
Toronto, Ontario
M5X 1K6
FOR RESPONDENT
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20020619
Docket: IMM-6473-00
BETWEEN:
BIN LIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
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