Huang v. Canada (Minister of Citizenship and Immigration), docket IMM-4352-98

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docket IMM-4352-98

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Date: 19990127

Docket: IMM-4352-98

BETWEEN:

HONG TAI HUANG

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

EVANS J.

[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act R.S.C. 1985, c.F-7 [as amended] in which the applicant requests the Court to review and set aside a decision of a visa officer in Beijing, dated August 5, 1998, refusing to issue a student visa to the applicant.

[2] The applicant, a citizen of the People's Republic of China, is a single 22 year-old man. He completed his secondary education in China in December, 1995, and had coached a "secondary badminton team" for one year prior to his interview with the visa officer. The applicant proposed to study English in Canada with a view to the possibility of studying physical education at a Canadian university. He stated that he intended to return to China at the end of his studies in order to resume coaching badminton in China.

[3] The visa officer's CAIPS notes, which are included in the certified tribunal record, indicate that he refused the visa because he was not satisfied that the applicant intended to come to Canada for a temporary purpose. He based his decision on the fact that the applicant's announced plan of embarking on an expensive course of study in Canada made little sense if he was going to return to the same job in China that he had previously held. He noted, also, that the applicant "is not established at all in China." On the other hand, the visa officer was satisfied that funds were available to the applicant to support his proposed studies in Canada.

[4] The applicant filed an affidavit in support of his application. It included a purported verbatim account of the questions asked by the officer at the interview and the applicant's answers, and a statement attributed to the visa officer to the effect that "you people just go to Canada and use this study period as an excuse for travelling and very often never come back". In his affidavit the applicant also stated that at least twice during the interview the visa officer prevented the interpreter from completing the translation of the answers provided by the applicant before moving to the next question.

[5] Counsel for the respondent objected to the admission of the affidavit as evidence on the ground that it was defective in form because it had not been sworn before and signed by a Commissioner for Oaths. Attached to the affidavit is a certificate from a notary of the Guangzhou Notary Public Office, Guandong Province, stating that the applicant "affixed his signature in my presence to the affidavit attached hereto."

[6] Rule 80(1) of the Federal Court Rules, 1998 SOR/98-106 requires that affidavits shall be drawn in the first person, "in Form 80". Form 80 requires that the affidavit be sworn before and signed at the end by a Commissioner for Taking Affidavits; the applicant's affidavit did not comply with Rule 80(1) because it was not signed at the bottom in the space left for completion by the Commissioner. It is obviously desirable that affidavits are submitted in the form prescribed by the Rules and if they are not, they are liable not to be admitted as evidence in proceedings in this Court. In this case, however, in view of the respondent's failure to object to the admission of the affidavit in her memorandum of fact and law, and the technical nature of the defect, I decided to admit it as evidence.

[7] The applicant first challenged the visa officer's decision on the ground that it was based on the officer's conclusion that the applicant had not established himself at all in China. This, she alleged, was an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before him contrary to paragraph 18.1(4)(d) of the Federal Court Act. Counsel noted that the applicant had been born in and had lived all his life in China where his parents, who were pursuing successful careers, also lived, and where the applicant was employed. How could the officer possibly find on these facts, counsel asked, that the applicant was not established in China?

[8] In my view, there is nothing to this point. In the context of this decision, I am satisfied that the officer meant that the applicant was not established in his career in a manner that made it likely that he would return to Canada after his studies. Nor was he proceeding to further study on completion of a course of studies in China. The facts that, since completing his secondary education in December, 1995, he had worked only for one year as a badminton coach, a position about which the applicant had submitted no further detail, and was single and had no dependents in China, provide adequate support for the officer's conclusion.

[9] Counsel for the applicant drew my attention to the case of Totrova v. Canada (Minister of Citizenship and Immigration) (F.C.T.D.; IMM-4132-97; June 19, 1998) where Pinard J. set aside a refusal to issue a student visa to an applicant on the ground that the officer's findings that the appliacnt's ties to Russia were weak. In this area, every case turns ultimately on its own facts; important points of distinction from the case at bar are that Ms. Totrova was a thirty year-old professional Russian-English translator, with a boyfriend in Russia, where her son's father, from whom she was divorced, also lived.

[10] Counsel for the applicant then raised two issues of procedural fairness which she based solely on the applicant's affidavit. First, she said that the applicant was denied a fair hearing when the officer interrupted the interpreter and moved on to the next question before the interpreter had finished translating the applicant's answer to the previous question. However, since counsel was unable to identify any information that the applicant had thereby been prevented from giving to the officer, I do not find that there was a breach of the duty of procedural fairness.

[11] Finally, counsel relied on the assertion attributed to the visa officer by the applicant in his affidavit to the effect that "you people just go to Canada and use the study period as an excuse for travelling and very often never come back". She argued that this established a reasonable apprehension of bias on the part of the officer in that he appears to have based his decision on a stereotype of Chinese people, rather than on an assessment of the facts before him.

[12] If the officer did make the statement attributed to him it was certainly gratuitous and inappropriate. However, on the facts before me, I am not satisfied that the applicant has established a reasonable apprehension of bias that would vitiate the visa officer's decision.

[13] First, the affidavit was signed some six weeks after the applicant was interviewed by the visa officer. Since the applicant did not state that he had written down his recollection of the interview soon after the interview took place, there must be some doubt as to the accuracy of the applicant's memory of the precise words used by the officer. Indeed, I note that in his affidavit the applicant appears to have mistaken the date of the interview, which he says took place on August 6, 1998; since the visa officer's decision-letter is dated August 5, 1998.

[14] Second, by "you people", the officer may have been referring to young people who had completed their secondary education some time ago, but had not yet established themselves in a career for which further expensive education in Canada was a sensible course of action for someone planning to return to their country of origin.

[15] In short, I am not satisfied that the officer's statement indicated either that he did not base his decision on the facts before him, which were certainly sufficient to support his conclusion, or that reasonable persons would think that he was biased.

[16] Counsel for the applicant also expressed a concern about the admission into evidence of the visa officer's notes in the absence of an affidavit from the visa officer upon which he could be cross-examined, since it was prejudicial to the applicant for the Court to rely on material that has not been subject to cross-examination. She requested that I certify a question pursuant to subsection 83(1) of the Immigration Act R.S.C. 1985 c. I-2 [as amended] on this issue, but I have declined to do so. This is because, since counsel for the applicant did not allege that cross-examination of the officer on his notes was reasonably required for the fair disposition of this application for judicial review, the issue does not arise on the facts of this case.

[17] For these reasons, the application for judicial review is dismissed.

"John M. Evans"

Judge

TORONTO, ONTARIO

January 27, 1999

FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

COURT NO: IMM-4352-98

STYLE OF CAUSE: HONG TAI HUANG

and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

DATE OF HEARING: TUESDAY, JANUARY 26, 1999

PLACE OF HEARING: TORONTO, ONTARIO

REASONS FOR ORDER BY: EVANS J.

DATED: WEDNESDAY, JANUARY 27, 1999

APPEARANCES: Ms. Mary Lam

For the Applicant

Ms. Geraldine MacDonald

For the Respondent

SOLICITORS OF RECORD: Cecil L. Rotenberg, Q.C.

Barristers & Solicitors

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Suite 808

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