Date: 20071207
Docket: IMM-151-07
Citation: 2007 FC 1287
Ottawa, Ontario, December 7,
2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
SHUO
YANG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The
Applicant is a 22-year old singer who was accepted into a one-year diploma
program at the Toronto School of Music. His visa application was denied. He has
brought this judicial review of the Visa Officer’s decision.
II. BACKGROUND
[2]
The
Visa Officer’s decision contained two components put in issue in this judicial
review. Firstly, the Visa Officer found the Applicant’s Study Plan to be
unusual because the Applicant intended to be a “pop star” but was pursuing a
diploma program in voice and composition. Secondly, the Visa Officer was
concerned that the Applicant’s financial information was outdated and
incomplete and that evidence of deposits was unreliable because they can be
withdrawn at any time.
[3]
In
terms of financial information, the evidence of certificates of deposit used to
secure future expenses were photocopies of expired documents. There was no
evidence of the mother’s income, although she was an accountant at a
university. The father’s monthly Canadian equivalent income of $714.00 per
month is in comparison to the Applicant’s tuition and expenses which were
$10,000.00 each for one year (approximately $1,666.66 per month).
[4]
The
Visa Officer concluded that the Applicant would not be a bona fide
temporary resident here to study and would not leave Canada at the end
of his authorized stay. This conclusion was made in the context of Immigration
and Refugee Protection Regulations 216 and 220 which govern the issuance of
student visas.
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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
(a) applied for it in accordance with this Part;
(b) will leave Canada by the end of the period authorized for their stay under
Division 2 of Part 9;
(c) meets the requirements of this Part; and
(d) meets the requirements of section 30;
(e) [Repealed, SOR/2004-167, s. 59]
(2) Paragraph (1)(b) does not apply to persons described in section 206
and paragraphs 207(c) and (d).
(3) An officer shall not issue a study permit to a foreign national who
intends to study in the Province of Quebec — other than under a federal
assistance program for developing countries — and does not hold a Certificat
d'acceptation du Québec, if the laws of that Province require that the
foreign national hold a Certificat d'acceptation du Québec.
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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 :
a)
l’étranger a demandé un permis d’études conformément à la présente partie;
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;
c) il
remplit les exigences prévues à la présente partie;
d) il
satisfait aux exigences prévues à l’article 30.
e)
[Abrogé, DORS/2004-167, art. 59]
(2) L’alinéa (1)b) ne s’applique pas aux personnes visées
à l’article 206 et aux alinéas 207c) et d).
(3) Le permis d’études ne peut être délivré à l’étranger
qui cherche à étudier dans la province de Québec — autrement que dans le
cadre d’un programme fédéral d’aide aux pays en voie de développement — et
qui ne détient pas le certificat d’acceptation exigé par la législation de cette
province.
|
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220. An officer shall not issue a study permit to a foreign national, other
than one described in paragraph 215(1)(d) or (e), unless they have sufficient
and available financial resources, without working in Canada, to
(a) pay the tuition fees for the course or program of
studies that they intend to pursue;
(b) maintain themself and any family members who are
accompanying them during their proposed period of study; and
(c) pay the costs of transporting themself and the family
members referred to in paragraph (b) to and from Canada.
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220. À l’exception des personnes visées aux sous-alinéas
215(1)d) ou e), l’agent ne délivre pas de permis d’études à l’étranger à
moins que celui-ci ne dispose, sans qu’il lui soit nécessaire d’exercer un
emploi au Canada, de ressources financières suffisantes pour :
a)
acquitter les frais de scolarité des cours qu’il a l’intention de suivre;
b)
subvenir à ses propres besoins et à ceux des membres de sa famille qui
l’accompagnent durant ses études;
c)
acquitter les frais de transport pour lui-même et les membres de sa famille
visés à l’alinéa b) pour venir au Canada et en repartir.
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[5]
The
critical issue in this case is the Visa Officer’s conclusion that there was
inadequate evidence of “sufficient and available financial resources” upon
which to base a conclusion that the Applicant would not leave Canada at the end
of the period of study. The role of the Study Plan is a secondary
consideration.
III. ANALYSIS
[6]
There
are two lines of authority as to the appropriate standard of review of the Visa
Officer’s decision. It has been held that the standard is reasonableness simpliciter
because the question for the Visa Officer is one of mixed fact and law – the
application of facts to a legal criterion in the Regulations (see Boni v. Canada (Minister of
Citizenship and Immigration), 2006 FCA 68; Wang
v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 95; Lin v. Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No. 106; Guo v. Canada (M.C.I.), 2001
FCT 1353). The other line of cases have held the standard to be patent
unreasonableness because the Officer’s decision is largely fact-driven (see Song
v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 385, Li v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 394; Boni v. Canada (Minister
of Citizenship and Immigration), 2005 FC 31).
[7]
In
this case, the standard of review is largely ministerial. However, I do not
find that there is a discordance in the authorities. The different standards
reflect the nature of the question before the Court in each case. In some
cases, it is purely a factual matter on which the case turns, e.g. the date of
documents or expert knowledge of conditions in the country. In other cases, the
Officer’s decision and the judicial review turned on the legal conclusion
reached against the backdrop of the facts.
[8]
In
this case, the Applicant failed to meet the burden of providing the required
current documents. The Officer’s conclusions concerning the financial
information - the modest income of the father; the uncertain stability of
evidence of deposits of money - was open to him. It is not for the Court to
re-weigh these findings.
[9]
Further,
there was a clear rational connection between these factual findings and the
conclusion that the Applicant had not provided adequate evidence of sufficient
and available resources. The Officer’s concerns about the evidence had a
reasonable basis.
[10]
Finally,
given the nature of this type of visa, which is highly discretionary and admits
a minimal level of fairness, the Applicant is not entitled to an interview.
This is particularly so where the information at issue is straightforward and
any lingering issues can be addressed in a new visa application.
IV. CONCLUSION
[11]
For
these reasons, this application for judicial review will be dismissed. There is
no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed.
“Michael
L. Phelan”
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