Date: 20010412
Docket: IMM-3700-00
Neutral Citation: 2001 FCT 330
BETWEEN:
XUEMEI CHEN
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application for judicial review of the decision of David Manicom of the Canadian Embassy in Beijing (the visa officer) dated June 8, 2000 refusing the applicant's application for a student authorization in Canada on the grounds that he was not satisfied that the applicant would return to her country of origin upon completing her studies in Canada.
[2] The applicant is a citizen of the People's Republic of China. On April 10, 1999, she filed an application for a student authorization in Canada with the Canadian Embassy in Beijing, China.
[3] The applicant is 30 years of age and received a college diploma in 1991. Presently she is working for Sha District Architectural Design Studio in Chongqing as an architecture designer. In January, 2000, the applicant was accepted to the Bachelor of Arts in Information Technolgoy at York University. The course was scheduled to commence in September, 2000. She had also applied, and had been accepted to, the Humanities program at McMaster University. The applicant's brother, a senior software engineer residing in New York, was to assist her financially.
[4] The applicant has on three other occasions been refused student visas; twice by Canadian authorities and once by U.S. authorities.
[5] On February 29, 2000, the application and supporting documents were examined by a reviewing officer who determined that an interview was appropriate. It was conducted on March 21, 2000, by reviewing officer Jean-François Lesage.
[6] On June 8, 2000, a visa officer reviewed the case and refused the application on the grounds that he was not satisfied that the applicant was seeking to enter Canada on a temporary basis.
[7] The questions before me is whether the visa officer's conclusion with respect to the applicant's bona fides was reasonable and whether the visa officer breached his duty of fairness owed to the applicant.
[8] The applicant submits that the visa officer and the reviewing officer's inference that her switch from York to McMaster University showed that she was not genuinely interested in studying in Canada is capricious. It is alleged that reviewing officer Lesage made several factual mistakes which tainted the decision and that it was patently unreasonable.
[9] The respondent submits that the applicable standard of review is that of patent unreasonableness and that the errors made by the reviewing officer with respect to the applicant's education background are not determinative of the case.
[10] When assessing the application in the present case, the visa officer who ultimately rendered the decision relied on the notes made by the first officer who had written:
"I told applicant about my concerns: She is 30 years old and has already a university degree from a architecture university (Bachelor in civil engineering) enrollment in very wide program in Canada (Humanities) does not seem to fulfill applt needs for training in multi-media and computer design. Reason for transfer from York to McMaster unclear. Applicant replied that transfer motivated by desire to start as soon as possible."
[11] It is clear from the evidence that the applicant does not hold a university degree but rather a college diploma. The officer also had concerns about the adequacy of the program of studies she was to undertake and he wrote:
"At interview officer noted that applic did not seem so concerned as to what she studied as long as obtaines stu visa, contention on this study plan is necessity of computer graphics training for her work, which can of course be obtained in beijing. But given prev applic for humanities prgm feel main intent is to enter N. America. Serious concerns has little intention of pursuing studies but is attempting to circumvent immig system, feel little to be gained by second interview. No real new info. Refused."
[12] There is no doubt that the visa officer chose to exercise his discretion negatively and it is certainly not the Court's function to substitute its view of the facts for that of the visa officer when it can be determined that the decision was not made in a perverse or capricious manner nor that it was patently unreasonable.
[13] It should be remembered that the onus rests with the student applicant and she must satisfy the visa officer that she does not intend to establish permanent residence in Canada.
[14] Here we have an applicant 30 years of age, married, no children, who has been out of school for a number of years and has but $17,000.00 in savings, who is relying on a brother resident of New York City to assist her financially and who has made a number of attempts in the past not only to enter Canada but on one occasion to enter the United States. Considering all of the circumstances, the visa officer concluded that there was insufficient evidence before him to overcome the presumption that the application was intending to immigrate to Canada.
[15] This applicant, in my view, was unsuccessful in satisfying the visa officer of the bona fides of her application. This cannot be considered an unreasonable conclusion in light of the facts surrounding this application.
[16] Accordingly, the application is dismissed.
JUDGE
OTTAWA, Ontario
April 12, 2001
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