Li v. Canada (Minister of Citizenship and Immigration), 2001 FCT 791

Date: 20010712

Docket: IMM-2273-00

                                                           Neutral Citation: 2001 FCT 791

Between:

                                              JIAJIA LI,

Applicant,

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

Respondent.

REASONS FOR ORDER

Muldoon, J.

1. Introduction

[1]                This is an application under section 18.1 of the Federal Court Act for judicial review of a decision of Carole Courchesne, a visa officer at the Canadian Embassy in Beijing, People's Republic of China, dated March 18, 2000, refusing the applicant's application for a student visa to Canada.

2. Statement of Facts

[2]                The applicant is a citizen of China who submitted an application for a student authorization in Canada to the Canadian Embassy in Beijing. The applicant is 23 years old and currently works as a teacher for the Nan Jua Industrial and Commercial College.

[3]                The applicant was accepted into the Masters of Business Administration program at Pattison College in Vancouver. This program leads to a degree that is conferred by the New York Institute of Technology. She was to commence her studies on January 7, 2000.

[4]                The applicant intended to acquire a Masters of Business Administration to be able to teach courses in business management at the College where she currently works. This intention was made clear in a personal letter and in her study plan, both of which were included in the application package.

[5]                Also included in the application package was a letter from her employer, which supported her study plan and recommended her as a student. The letter also stated that the College looked forward to her return and mentioned the greater contribution that she would be able to make as a teacher with a specialized education in business administration.

[6]                The applicant's family lives in China. Moreover, as stated in her personal letter, her education in Canada was to be sponsored by her cousin, Mr. Chen Pikhing, a resident of Hong Kong. Mr. Chen is the owner of a trading company and has agreed to sponsor the applicant's education with a fund of HK$ 679,035.88. A notarized certificate of relationship was included in the application package.

3. Issues

a.         Was the Visa Officer's treatment of subsection 9(1.2) valid in law;

b.         Did the Visa Officer base the decision on an erroneous or irrelevant finding of fact;

c.          Did the Visa Officer breach a duty of fairness by failing to inform the applicant about her concerns regarding the applicant's long-term intentions, and by failing to offer the applicant an opportunity to respond to those concerns.

4. Applicant's Submissions

a.        Subsection 9(1.2)

[7]                The applicant submits that the purpose of the Immigration Act is to permit visitors to enter Canada rather than to prevent them from doing so, and that it is the obligation of visa officers to provide applicants for entry into Canada with a thorough and fair assessment of their applications, in compliance with the terms and with the spirit of the legislation.^[1]

[8]                One of the visa officer's reasons for refusing the applicant's application for a student authorization to Canada was that the applicant had not overcome the legal presumption that all individuals seeking to enter Canada are presumed to be immigrants. This decision was based on her interpretation of subsection 9(1.2) of the Immigration Act as meaning that a visa officer may refuse an application for temporary entry into Canada if the visa officer is not satisfied that the applicant does not intend to immigrate to Canada.

[9]                Subsection 9(1.2) of the Immigration Act states:

Burden on Visitors                 

A person who makes an application for a visitor's visa shall satisfy a visa officer that the person is not an immigrant.

[10]            The applicant submits that subsection 9(1.2) of the Immigration Act does not entail that an intention to immigrate to Canada is a valid reason for refusing an application for a temporary visa, but rather, that an intention to remain in Canada illegally, after the expiration of a temporary visa, may be considered as a reason to refuse such an application. The applicant submits that, in considering the applicant's intent, a visa officer should only consider if the applicant has a valid temporary purpose in seeking to travel to Canada.^[2] Subsection 9(1.2) is valid legislation enacted by Parliament : it is law.

[11]            The Citizenship and Immigration Canada Immigration Manual, Overseas Processing (the CIC manual), which stipulates how visa officers are to evaluate applications for visas to Canada, recognizes that applicants for student visas are a good source of skilled immigrants:

Section 3.5.2

In establishing whether a foreign student is a bona fide visitor, officers should be guided by the knowledge that foreign students educated in Canada provide needed links for trade and investment, and that they are an excellent source of future skilled immigrants.

[12]            The CIC manual also states that in considering the intentions of applicants for student visas to Canada, visa officers should consider only whether or not they are likely to remain in Canada illegally upon the expiration of the visa, and not whether they are likely to become immigrants:

Section 4.6.1

Applicants have the burden of proving to your satisfaction that they are bona fide visitors. However, in the case of foreign students, the general question of bona fides is not so much whether the applicant is a prospective immigrant, but whether the applicant is a prospective illegal immigrant.

[13]            The applicant submits that the test which the visa officer should have applied under subsection 9(1.2) is whether the applicant had a valid temporary purpose in seeking to enter Canada and whether she would be likely to remain in Canada illegally upon the expiration of the student visa. The CIC manual is not law, but rather a mere administrative guideline.

[14]            The applicant asserts that she did have a valid temporary purpose in seeking to enter Canada, as was evidenced in her application package which stipulated that she was seeking to travel to Canada to upgrade her skills as a teacher. Her employer clearly supported her plan and pledged to resume her employment upon its completion. Finally, her parents reside with her in Guangzhou, China. Given these facts, it is difficult to suspect that the applicant is likely to remain in Canada illegally upon the expiration of her student visa.

b. Erroneous and Irrelevant Findings of Fact

[15]            The visa officer also based her decision on her findings that the applicant failed to establish that she would have access to the funds required by her proposed study in Canada. The applicant submits that this decision was based on erroneous and irrelevant findings of fact.

[16]            The visa officer stated in her affidavit that she had considered where the applicant's parents could financially support the applicant's proposed plan of study. However, such a consideration was irrelevant, because her application stipulated that it was her cousin who was to sponsor her studies.

[17]            The visa officer also held that the application package did not include employment letters or financial documents which would attest to the applicant's parents' ability to support her during her studies. These documents are also irrelevant because the applicant's cousin was to sponsor her studies in Canada.

[18]            The visa officer held that the applicant would not have access to the required funds because the applicant had not established that she was related to her sponsor. The visa officer stated in her affidavit that the certificate of relationship which was included in the application package did not give proof of how Mr. Chen was related to the applicant. This assertion is correct. The certificate included in the package states that Mr. Chen was related to her by way of being her "cousin", as is mentioned in paragraph 8 of Carole Courchesne's affidavit.

[19]            Mr. Chen's ability to sponsor the applicant was well documented in her package, which included many documents which attested to his financial status. Therefore, the applicant submits that the documents pertaining to her parents' financial status were not included in the application package because they were not relevant to it. Moreover, such documents are not required of applications for student authorizations where the sponsors are relatives other than the applicant's parents.

c. Opportunity to Respond

[20]            The visa officer never informed the applicant about her concerns regarding the applicant's long term intention and access to adequate funds, nor did the visa officer offer the applicant an opportunity to disabuse her of these concerns.

[21]            The applicant submits that the visa officer has a duty to the applicant to inform her of any concerns which exist regarding the application, and then to provide her with an opportunity to reply. Moreover, the applicant submits that the visa officer committed a reviewable error by failing to bring her concerns to the applicant's attention, and thereby not providing her with an opportunity to disabuse her of those concerns.^[3] The foregoing assertions just brutally ignore the Student Visa Application Kit which the embassy provided to the applicant to help her in her application for a visa, exhibitA to Visa Officer Courchesne's affidavit.

d. Remedies

[22]            The applicant submits that a matter does not have to be sent back to an administrative tribunal for a violation of natural justice if the outcome is inevitable or if the errors attributable to the immigration officer's disposition of the case do not carry enough weight to undermine the essential validity of the decision.^[4] So be it, especially in view of the Kit, exhibit A. The alleged errors are weightless.

[23]            The applicant submits that the violations of natural justice and the errors attributable to the visa officer's disposition in this case carry enough weight to undermine the essential validity of the decision. This submission is weightless.

5. Respondent's Submissions

[24]            Based on the information submitted by the applicant, the visa officer was not satisfied that the applicant, if allowed to enter Canada, would leave at the expiration of her student authorization. The visa officer also considered whether the applicant had made adequate arrangements to support herself while in Canada and concluded that such arrangements had not been made.

a. Statutory Framework

[25]            Section 9 and section 10 of the Immigration Act establish general principles respecting visas and special authorizations, including student authorizations. Subsection 9(1) of the Act requires that every immigrant and visitor (except in prescribed cases) must apply for and obtain a visa before that person appears at a port of entry. This requirement is confirmed regarding student authorizations under section 10 of the Act.

[26]            Subsection 9(1.2) of the Act requires that any person who makes an application for a visitor's visa shall satisfy a visa officer that the person is not an immigrant. This is a statutory presumption that a person making an application for a visitor's visa is an immigrant, and, of course would need an immigration visa.

[27]            Subsection 9(4) states that a visa officer may issue a student authorization to a person, provided that the issuance of the authorization would not be contrary to the Act or Regulations.

[28]            Sections 14.1 to 17 of the Immigration Regulations, 1978 govern student authorizations. An applicant, who is not a Canadian citizen or a permanent resident and who wishes to attend a university or college or take any academic, professional or vocational training course in Canada, requires a valid and subsisting student authorization.

[29]            The term "student authorization" is defined is subsection 2(1) of the 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).

[30]            Paragraph 15(1)(b) of the Regulations provides that every applicant for a student authorization must provide sufficient documentation to enable an immigration officer to satisfy herself that the applicant has sufficient financial resources available to her to support her or her course of study in Canada, without engaging in employment in Canada.

b. Standard of Review

[31]            The respondent submits that the standard of review of a visa officer's decision to refuse a student authorization is patent unreasonableness. Whether to issue a student authorization under subsection 9(4) of the Act is a discretionary decision that is largely a question of fact.

c. Bona Fides

i. Proper Test

[32]            The visa officer held here that the applicant was not a genuine visitor to Canada. The respondent submits that this decision is entitled to considerable deference.

[33]            The respondent submits that the CIC Manual provides guidelines for visa officers in assessing applications for student authorizations. However, as stated by Mr. Justice Lufty in Mittal v. M.C.I.^[5]

[2] Citizenship and Immigration Canada (CIC) has published Processing Student Authorizations ("the Guideline") for the use of officers in assessing applications for student visas. Guidelines, of course, must be used with care. They can serve as " 'general policy' or 'rough rules of thumb' " to structure the discretion conferred upon the visa officer. Guidelines, however, should not fetter the visa officer's exercise of discretion by crystallizing into binding and conclusive rules. ...

[34]            The respondent submits that the visa officer applied the correct test to determine whether to issue a student authorization to the applicant. Her decision was based on the facts before her and was not patently unreasonable.

[35]            Subsection 9(1.2) of the Immigration Act provides that a person who makes an application for a visitor's visa shall satisfy a visa officer that the person is not an immigrant. This is a rebuttable presumption of law. In the absence of evidence to rebut the presumption that the visitor does not intend to establish permanent residence in Canada, a visitor is presumed to be an immigrant.

[36]            A visa officer who considers an application for a student authorization is entitled to assess the applicant's long-term goals and may consider all relevant factors. In Wong v. M.C.I.^[6], Mr. Justice Létourneau stated:

[13] We firmly believe the visa officer is entitled, even at the moment of the first application for such visa, to examine the totality of the circumstances, including the long term goal of the applicant. Such goal is a relevant consideration, but not necessarily determinative, to be weighed with all the other facts and factors in determining whether or not an applicant is a visitor within the terms of the definition provided in the Act.

[37]            Considering all of the circumstances of this case, the visa officer concluded that there was insufficient evidence before her to overcome the presumption that the applicant was an immigrant to Canada. The visa officer applied the correct test under subsection 9(1.2) of the Act.

[38]            This approach is also consistent with the Guidelines, which state that visa officers should consider whether applicants are prospective illegal immigrants. An individual who remains in Canada beyond the term of her student authorization is in Canada unlawfully, and is an illegal immigrant. The visa officer was not satisfied here that the applicant would return to China upon completing her studies in Canada. Therefore, the visa officer held that the applicant had not satisfied her that she was not a prospective illegal immigrant. This finding was reasonably open to her based on the evidence.

ii. Erroneous Finding of Fact

[39]            The visa officer did not make an erroneous or irrelevant finding of fact. The applicant was required to provide sufficient documentation to satisfy the visa officer that she had sufficient financial resources to support herself while in Canada.

[40]            The Embassy provides student applicants with an application kit which provides general information and answers frequently asked questions. Specifically, the kit establishes the documents to be provided with the application. Certain documents are required for all applicants, and additional documents are required for applicants depending on the mode of sponsorship.

[41]            The visa officer found that the applicant failed to submit four documents which were required by the application kit. The visa officer stated in her CAIPS notes that the evidence of the funds to be provided by the applicant's cousin could not be accepted as an ongoing source of funds. Accordingly, she refused the applications partly because the applicant had failed to provide adequate information relating to her financial support in Canada.

[42]            In oral submissions the respondent's counsel argued persuasively. He urged : (transcript: p. 44)

At paragraph 28, there's a summary of the documents that the visa officer noted that the applicant had not provided. There's four documents. There was no letter of employment or banking history from the applicant's parents. There was no family composition form completed by the applicant's parents. There was no information regarding the financial ability of her family to support her studies in Canada and there was no evidence of the relationship between the applicant and her "cousin"

...

Now, in referring to the certificate of relationship, this is the one that, the notarized certificate that stated that Chen Bixim was the cousin of the applicant. The visa officer did not accept this as evidence of a relationship between the applicant and her sponsor, and this finding, in my submission, was reasonably open to the visa officer.... on it's face, the document is suspect. It does not indicate how the applicant was related to Chen Bixim or indeed, how the notary would be able to know that information.

And further the visa officer was unable to determine whether the applicant was related or was the cousin of Chen Bixim through other documentation that could have been submitted in the application such as the family composition or details of education and employment form, which is a requirement of the kit.

[43]            The above passages from the respondent's counsel's remarks to the Court and, indeed his remarks as recorded from pp. 30 through 47 were much to the point.

[44]            One ought not to overlook the respondent's counsel's observations recorded on pp. 46 to 47, thus:

... the five factors under Baker and specifically the visa officer was not required to provide the applicant with an opportunity to respond to her concern relating to the evidence of funds from the "cousin". And if she was so required, this requirement was satisfied by the availability of the student visa application kit for the applicant so that she would know the case that she would have to meet.

The kit is clear that documentation relating to finances is important for the embassy to be able to assess the bona fides of the funds, and although the kit, of course, doesn't make specific reference to the certificate of relationship, in this case the onus is on the applicant to make her case, and it's not for the visa officer to make the applicant's case for her. So in this case, in my submission, the duty of fairness was not breached.

d. Duty of Fairness

[45]            The first factor identified by the Court in Baker^[7] is the closeness of the administrative process to the judicial process. The more the determinations which must be made to reach a decision resemble judicial decision making, the more likely it is that procedural protections closer to the trial model will be required by the duty of fairness. The processing of student authorization applications by a visa officer is highly administrative and does not resemble judicial decision-making. This factor militates in favour of more relaxed requirements under the duty of fairness.

[46]            The second factor is the nature of the statutory scheme pursuant to which the body operates. Greater protections will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue. For student applications, an unsuccessful applicant can seek a remedy in this Court by judicial review. This militates in favour of more relaxed procedural requirements.

[47]            The third factor in determining the nature and extent of the duty of fairness owed is the importance of the decision to the individuals affected. The more important the decision is to their lives and the greater its impact on those persons, the more stringent the procedural protections mandated. A negative decision means that the applicant will be unable to study in Canada for a temporary period. The individual is free to apply again in the future. Therefore, this factor militates in favour of more relaxed procedural requirements.

[48]            The fourth factor is the legitimate expectations of the person challenging th decision. If the claimant has a legitimate expectation that a certain procedure will be followed, it will be required by the duty of fairness. Nevertheless, this doctrine is does not create substantive rights. An applicant for a student authorization does not have a legitimate expectation regarding the procedure followed in processing the application.

[49]            Finally, the analysis of what procedures the duty of fairness requires should also take into account and respect the choices of procedure made by the agency itself, particularly when the statute leaves to the decision-maker the ability to choose the procedures, or when the agency has an expertise in determining what procedures are appropriate. The Immigration Act does not require that a particular procedure be followed in processing student authorizations. Considering the large number of student authorization applications which are processed, the procedure adopted by the Embassy should be respected.

[50]            In balancing the factors in Baker, the procedural requirements mandated by the duty of fairness should be relaxed for the processing of applications for student authorizations by visa officers overseas. Therefore, there are no grounds to argue unfairness in this process because a visa officer did not communicate all of her concerns to the applicant, or that she did not accord the applicant an opportunity to respond to those concerns.

[51]            The respondent submits that the Federal Appeal Court's decision in Shah v. M.C.I.^[8] was not disturbed by Baker. In Shah, the Federal Court of Appeal held that the duty of fairness in such circumstances was minimal, and that an immigration officer was not required to put before an applicant any tentative conclusions she draws from the material before her, not even as to apparent contradictions which concern her. In Baker, (para.32) the Supreme Court of Canada expressly disagreed with this minimal fairness assessment, and therefore the Shah decision is of limited utility here, but in Baker (para.33) the Supreme Court held that procedural fairness does not necessarily require an oral hearing, for example Said^[9] at p. 30 .

6. Remedies

[52]            The respondent requests that this application for judicial review be dismissed, without costs. No question is certified because neither party requested any such.

Ottawa, Ontario

July 12, 2001

                                                                                                   Judge