Date: 20011211
Docket: IMM-3792-00
Neutral citation: 2001 FCT 1356
Between:
LIPING YUAN
Applicant,
- and -
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent.
REASONS FOR ORDER AND ORDER
KELEN 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 in respect of a decision by visa officer David Manicom, at the Canadian Embassy in Beijing, China, dated June 13, 2000, wherein the applicant's application for a student visa to study in Canada was refused on the basis that the applicant did not establish her status as a bona fide visitor to Canada, ie. with intent to leave Canada after her studies.
FACTS
[2] The applicant, Liping Yuan, is a citizen of the People's Republic of China. She is currently employed at an "environmental art development" company, and also operates a handicraft shop with her husband. She is married and has one daughter.
[3] In January 2000, the applicant submitted an application for temporary entry to Canada as a student at the Canadian Embassy in Beijing, as required by section 10 of the Immigration Act, R.S.C. 1985, c I-2, (the "Act"):
Applications by students and workers
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.
The application was assigned to visa officer David Manicom to determine whether the applicant met the criteria set out in the Act. One criteria is the test in s. 9(1.2) of the Act, which states:
Burden on Visitors
9 (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.
[4] In her application, the applicant stated that she intended to take a training course at Xincon Computer Institute in Toronto.
[5] Visa officer Manicom assessed the application and accompanying documents, taking note of certain facts including that the applicant had not done any form of education or training, in the computer field or otherwise, since 1990, had never previously travelled out of China, and was, according to the documentation, the primary income-earner for the family.
[6] The officer's first concern was that his office had experienced a large number of refugee claims from the same area of China as the applicant lived ("Harbin"), by people working at similar environmental companies as the applicant. The officer further noted that Harbin is suffering severe economic depression.
[7] Taking into account the above factors, the officer felt that the applicant Yuan was attempting to circumvent Canadian immigration requirements. The officer refused the application. No interview with the applicant was conducted, as the officer concluded that it was unlikely an interview would result in a different decision, and would therefore constitute a loss of time and money to the applicant for no purpose.
ISSUES
[8] The main issues in this matter are:
1 - Did the visa officer deny the applicant procedural fairness by not interviewing the applicant, or by relying on extraneous evidence?
2 - Did the officer err in assessing the bona fides of the applicant?
STANDARD OF REVIEW
[9] Teitelbaum J. in Liu v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1125, 2001 FCT 751(F.C.T.D.), wrote:
The appropriate standard of review for this type of decision - a discretionary one by a visa officer - is the same as that enunciated by McIntyre J. in the [1982] 2 S.C.R. 2">Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2 at pp. 7 - 8:
It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.
In Wang v. Canada (M.C.I.),[2001] F.C.J. No. 95 (IMM-2813-00, January 25, 2001), Rouleau J., referring to the above cited passage as well as to the Supreme Court of Canada's decision in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, held that the appropriate standard of review should be reasonableness simpliciter [emphasis added].
Accordingly, reasonableness simpliciter is the appropriate standard to review the visa officer's decision in this case.
CAIPS NOTES
[10] The visa officer rendered a standard form decision wherein he checked off a box giving the reason for refusal. The visa officer conducted a "paper review" of the application and did not grant an interview to the applicant. The CAIPS notes reveal that the visa officer concluded:
APPLIC IS 36 YR OLD ASST DIRECTOR OF ENVIRONMENTAL FIRM IN HARBIN. HARBIN, AND ENVIRONMENTAL FIRMS IN PARTICULAR IS REGULAR SOURCE OF NON-BONA FIDE BUSINESS DELEGATION VISITOR VISA APPLIC WHO SUBMIT REFUGEE CLAIMS AFTER VISA. APPLIC HAS UNDERTAKEN NO EDUC IN PAST 10 YEARS. APPLIC INTENDS TO STUDY COMPUTER FOR ONE YEAR AT APPARENT SMALL PRIVATE COMP SCHOOL IN TORONTO, "XINCON". OUR OFFICE HAS NO RECORD OF PREVIOUS APPLIC TO THIS SCHOOL. PROGRAM IS FOR ONE YEAR IN COMPUTERIZED ACCOUNTING . GIVEN APPLIC INDICATES NO PREVIOUS COMPUTER BACKGROUND APPEARS TO BE FAIRLY BASIC COURSE. TRAINING OF THIS LEVEL CAN BE OBTAINED IN CHINA WITHOUT DIFFICULTY AT MUCH LOWER COST. APPEARS TO WORK FOR ONE COMPANY AND ALSO RUN A SMALL HANDICRAFTS SHOP. NO CLEAR PURPOSE FOR ADVANCED COMPUTER TRAINING. APPLIC EARNS MOST OF FAMILY INCOME. EFFECTIVE COST TO FAMILY OF THIS VENTURE VERY HIGH. DO NOT BELIEVE THEY WOULD UNDERTAKE THIS UNLESS INTENT TO REMAIN IN CDA. COULD NOT OBVIOUSLY QUALIFY AS ND IMMIG. STRONG CONCERNS ARE ATTEMPTING TO CIRCUMVENT IMMIG SYSTEM HOME CITY SUFFERING SERIOUS ECONOMIC RECESSION. REFUSED.
ANALYSIS
[11] The visa officer relied upon a factor which may or may not be applicable to the applicant: namely that the applicant was not a bona fide visitor because she was from Harpin and worked at an environmental firm. The visa officer wrote that this location and type of business is a "regular source of non-bona fide business delegation visitor visa applicants who submit refugee claims after visa".
DUTY TO ACT FAIRLY
[12] While the duty of fairness does not necessarily require an oral hearing, there is a requirement that the visa officer provide the applicant with an opportunity to address a major concern, in other words, respond. The fact that the visa officer is of the opinion that there are many visa applicants from this location in China who apply for refugee status upon receiving the visa is not a fair or reasonable basis to dismiss all applicants from that region without providing a fair opportunity for the applicant to respond to this concern.
[13] While visa officers are legally entitled to apply their own experience toward a decision (Yu (Litigation Guardian of) v. Canada (Minister of Citizenship and Immigration) (1993), 21 Imm.L.R. (2d)1, [1993] FCJ No.786 (F.C.T.D.) per McKeown J.,) a visa officer cannot stereotype an applicant based on that experience. As Lutfy J. (as he then was) held in Mittal v. Canada (Minister of Citizenship and Immigration) (1998), 147 F.T.R. 285, [1998] F.C.J. No. 727 (F.C.T.D.), at paragraph 12:
Secondly, even if the visa officer had access to such information and she was correct with respect to India's private school system, she should have provided the applicants' family with an opportunity to address her concerns which are based on information not proffered by the applicants. Such a course of action is suggested in the Guideline [Immigration Guidelines] in section 2.7.4 dealing with the bona-fides of minor students:
If officers wish to take into account outside information, particularly where that information leads to concerns/doubts about the applicant's bona-fides, they must be able to show that the applicant was made aware of the information taken into account and/or the concerns and was given an opportunity to address those concerns.
[14]This directive, in my view, properly assigns to the visa officer the same duty of fairness in the assessment of student authorizations which the Court imposes in reviewing applications for permanent residents. The same duty of fairness has been applied in visa immigration cases in Muliadi v. Canada (Min of Employment & Immigration) (1986), 66 N.R. 8, [1986] 2 F.C. 205 (F.C.T.D.), Fong v. Canada (Minister of Citizenship and Immigration) (1997), 26 F.T.R. 235, [1997] F.C.J. No. 190 (F.C.T.D.), and Basco v. Canada (Min of Employment & Immigration) (1991), 43 F.T.R. 233, [1991] F.C.J. No. 406. To refuse this applicant, based on a generalization about a particular location in China and a particular type of employment, is unfair without providing the applicant with an opportunity to respond to this concern.
[15]In Baker v. M.C.I. (1999), 1 Imm. L.R. (3d) 1, [1999] 2 S.C.R. 817, the Supreme Court of Canada reiterated the variable nature of the concept of procedural fairness. In considering whether the person whose interests were affected had a meaningful opportunity to present their case fully and fairly did not depend upon whether an oral hearing was provided. Accordingly, it is not necessary for the visa officer in Beijing to grant each applicant for a student visa a personal interview. Counsel for the applicant in the case at bar suggested that the visa officer could provide the applicant with a fair opportunity to deal with the concern by a telephone call or a letter. The applicant must be given an opportunity to address the concern of the visa officer, which may be legitimate, that many applicants for visitor visas from a particular region of China are using this vehicle for the illegitimate purpose of gaining entry into Canada on false pretences, when in fact their purpose is to apply for refugee status. The applicant must be given a fair opportunity to deal with this concern before the visa officer applies their general experience to this specific applicant.
[16]The onus still rests on the applicant to satisfy the visa officer that the applicant is a bona fides visitor who intends to return to China.
OTHER FACTORS RELIED UPON BY THE VISA OFFICER
[17]A breach of the duty of fairness does not vitiate a decision where the decision would have been the same had the breach of the duty of fairness not occurred. Mobil Oil Canada Ltd. v. Canada - Newfoundland Offshore Petroleum Board (1994), 111 D.L.R. (4th) 1, [1994] 1 S.C.R. 202 at 228. In this case, the respondent identified several other factors relied upon by the visa officer which would have resulted in the same decision regardless of the visa officer's primary concern with respect to applicant being from Harpin and working at an environmental firm. I disagree. It is clear that
[18]Upon considering these other factors, I am not satisfied that the visa officer acted reasonably in considering relevant evidence with respect to the bone fides of the applicant.
[19]In the CAIPS notes, the visa officer records three factors, but does not address other relevant factors.
1 - The applicant has undertaken no education in the past ten years.
[20]Upon carefully considering the file, it is apparent that the applicant has been working hard over the past ten years establishing herself in a high position in a company and also establishing her own business. As a result, she has a significant annual salary and significant savings. This could explain why the applicant has not undertaken any education in the past ten years.
2 - The applicant intends to study computer at a small private computer school in Toronto called "Xincon". Our office has no record of previous applicants to this school.
[21]In the immigration record, counsel for the applicant wrote to the Canadian Embassy in Beijing on January 11, 2000 that the Xincon Computer Institute is a specialized training facility, fully accredited by the Ontario Ministry of Education and Training. The school has four locations, three in the United States and one in Canada. The school was recognized as one of the top fifteen computer training centres in the United States and has major Canadian banks and other major Canadian corporations as its clients. The evidence shows that the tuition for the school is US$7,300.00 or approximately CAN$11,500.00 Accordingly, this is a major commitment by the applicant at an allegedly first rate computer educational facility.
[22]Moreover, the visa officer did not take into account the relevant consideration that the applicant's employer has agreed in writing to pay the tuition on the condition that the applicant returns to her employment at the end of her one-year study period.
3 - The visa officer states that there is no clear purpose for this computer training and that this computer training could be accomplished in China.
[23]The stated purpose is that it will advance her career, and in fact, her employer has agreed to pay the tuition. The applicant is an accomplished woman, interested in advancing in her chosen career field. Her significant savings are indicative of her motivation to advance herself.
4 - Other factors not considered
[24]The applicant is a mother of a ten year old child and she will be leaving her husband and child in China while she pursues these studies. This is a strong connection to China which the applicant will not sever. The applicant has also established a good employment record in China and has this employment as a tie back to China. On this basis, it is unreasonable for the visa officer to conclude that the applicant will not return to China upon completion of her studies without the visa officer addressing this issue in his decision.
CONCLUSION
[25]In the result, this application for judicial review will be allowed and this matter will be referred back to the respondent for redetermination by a different visa officer. In this case, the applicant is entitled to an opportunity, either in person, in writing or by telephone, to respond to the major concern identified herein. Neither counsel recommended certification of a question. No question will be certified.
ORDER
[26]This application for judicial review will be allowed and this matter will be referred back to the respondent for redetermination by a different visa officer.
"Michael A. Kelen" __________________________
Judge
OTTAWA, ONTARIO
DECEMBER 11, 2001
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