Date: 20010802
Docket: IMM-4110-00
Neutral citation: 2001 FCT 852
BETWEEN:
FEI KONG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM, J:
[1] The applicant challenges by way of judicial review the decision, dated June 29, 2000, made by visa officer Jean Francois Lesage at the Canadian Embassy in Beijing, which refused the applicant's application for a student authorization on the grounds of insufficient funds.
Background
[2] The applicant, Fei Kong, is a 27 year old citizen of China. In April 2000, he submitted an application for a student visa to the Canadian Embassy in Beijing. His proposed length of stay in Canada was two years.
[3] In his application package, the applicant included a letter of acceptance, dated September 17, 1999, from the Richard Ivey School of Business, at the University of Western Ontario (Certified Tribunal Record, page16). The applicant had been accepted for the school's two year MBA program, beginning in the autumn of 2000.
[4] The applicant's application package also included a supplementary letter from him, dated April 18, 2000, in which he clarified his family composition and financial information. He stated that his maternal uncle, Da Tong Xie, was willing to fully support him for the duration of his studies, and that his father was also willing to assist with financial support.
[5] The applicant was not interviewed.
[6] On June 29, 2000, the visa officer reviewed the applicant's file. The CAIPS notes read as follows:
APPLICANT IS ACCEPTED IN A MBA PROGRAM AT RICHARD IVEY SCHOOL. APPLICANT IS SPONSORED BY AN ALLEGED UNCLE. UNCLE'S NAME DOES NOT APPEAR ON FAMILY COMPOSITION FORM OF PARENTS. "UNCLE" CAN BE USED VERY GENERALLY IN CHINA WITH PEOPLE WHO ARE NOT BLOOD RELATED. NO CERTIFICATE OF RELATIONSHIP ON FILE, NO AFFIDAVIT OF SUPPORT. THIS FORM OF FUNDING IS NOT ACCEPTABLE I AM NOT SATISFIED THAT APPLICANT AND HIS FAMILY HAVE FUNDS TO SUPPORT STUDIES IN CANADA. REFUSED.
[7] In his affidavit, sworn August 25, 2000, the applicant contends that, contrary to the visa officer's statement in his CAIPS notes, he did submit a notarized certificate establishing his blood relationship with his uncle (Applicant's Record, Tab 3, paragraph 8). The applicant also states in his affidavit that he included original certificates of deposit with his application (paragraph 5). He states that the deposits were done under his name on April 15, 19, and August 17, 1999.
[8] In his affidavit, the visa officer, Jean François Lesage, states:
2. Je suis l'agent des visas qui évalué (sic) la demande d'autorisation d'étude soumise par M. Fei Kong. L'ambassade du Canada a reçu la demande du demandeur le 25 avril 2000.
4. Le 29 juin 2000, j'ai évalué la demande du demandeur et tous les documents soumis à son soutien.
5. A la question 11 de sa demande d'autorisation d'étude, le demandeur a déclaré (sic) disposer de 70 000$ pour son séjour au Canada. Il a aussi déclaré que ses dépenses au Canada seront assumées par une personne autre que lui-même ou ses parents.
6. Le demandeur a déclaré qu'il serait parrainé par un oncle du nom de Da Tong Xie. Un (sic) état de compte banquaire au dossier, au nom de Da Tong Xie, montrait des économies de 557240,37 $US.
7. Da Tong Xie n'apparaît (sic) pas sur le formulaire "Family Composition" que le demandeur a soumis avec sa demande. Dans ce formulaire, les parents du demandeur ont énuméré leurs (sic) frères et soeurs.
8. Contrairement à ce que le (sic) demandeur allègue au paragraphe 8 de son affidavit, aucun certificat au dossier n'établissait une relation familiale entre lui et Da Tong Xie.
9. Ne pouvant établir clairement la relation entre Da Tong Vie et le demandeur, j'ai pensé qu'il pouvait s'agir d'un parent lointain ou d'un ami de la famille qu'on désigne aussi par l'appellation (sic) "oncle" en Chine.
10. Aucun affidavit au dossier n'établissait l'engagement de Da Tong Xie à parrainer le demandeur.
11. Puisque le demandeur n'a pas accompagné sa demande d'un affidavit de parrainage (sic) et d'un document clarifiant sa relation Da Tong Xie, il ne m'a pas convaincu qu'il possède, sans qu'il lui soit nécessaire d'exercer un emploi au Canada, des ressources financières suffisantes pour payer ses frais de scolarité, pour subvenir à ses besoins durant son séjour et pour payer ses frais de transport aller-retour.
12, Le 29 juin 2000, j'ai refusé la demande d'autorisation d'étude du demandeur.
13. Le 24 juillet 2000, nous avons reçu à l'ambassade du Canada une demande de reconsidération de notre décision (sic) accompagnée (sic) d'un certificat de parenté ainsi que d'un affidavit par lequel Da Tong Xie s'engage à parrainer le demandeur (ce document est mentionné au paragraphe 6 de l'affidavit du demandeur). Ces deux documents ne faisaient pas parti de la demande initiale du demandeur.
[9] As can be seen from the above, the visa officer clearly states that at the time he evaluated the applicant's application, "aucun certificat au dossier n'établissait une relation familiale entre lui et Da Tong Xie" was filed.
[10] The visa officer makes no mention of a certificate, notarial or otherwise in his CAIPS notes which would indicate that is so.
[11] In fact, in paragraph 13 of his affidavit, the visa officer states that such a certificate was only filed on or about July 24, 2000 when a request for reconsideration was received.
Applicant's Position
[12] The applicant submits that the visa officer erred by failing to consider the funds available to the family to support the applicant. Furthermore, the applicant contends that the visa officer should have considered only whether there were sufficient funds to cover one year of study and issued a one year visa.
[13] The applicant submits that the visa officer erred by ignoring material before him in concluding that Da Tong Xie was not a blood relative. The applicant contends that he stated the nature of their relationship in two instances in his application form.
[14] The applicant contends that the visa officer should have summoned him for an interview in order to clarify the nature of his relationship with Da Tong Xie. In the alternative, the visa officer, according to the applicant, should have given the applicant a chance to correct the file, assuming that the visa officer was correct in finding no undertaking of support or certificate of relationship in the file.
[15] Finally, the applicant submits that the visa officer should have kept all of the documents submitted by the applicant until the time frame for judicial review had expired.
Respondent's Position
[16] The respondent contends that the applicant is attempting to submit, through his affidavit, new evidence, regarding Da Tong Xie, which was not before the visa officer.
[17] The respondent maintains that the visa officer's finding that the applicant lacked sufficient funds was reasonable based on the record. The applicant indicated that his uncle, Da Tong Xie, would sponsor him; however, he failed to provide the necessary information regarding his sponsor. Accordingly, the visa officer turned to the applicant's parents on the issue of funds and found a lack of documentation and information, which was specifically requested in the application kit.
[18] Finally, the respondent submits that the visa officer did not breach the duty of fairness by failing to give the applicant an opportunity to address his concerns. The respondent argues that the visa officer's concerns regarding sufficiency of funds arose directly from the Immigration Act and Regulations, of which the applicant ought to have been aware.
Discussion
[19] It is clear that on judicial review, the reviewing court may only examine material that was before the decision-maker. Evidence which was not before the decision-maker cannot be introduced at this stage. In the case at bar, there is a dispute as to whether certain documents were before the visa officer. In his CAIPS notes, quoted above and which were made contemporaneously with his review of the file, the visa officer specifically noted a lack of a certificate of relationship and an affidavit of support. In circumstances such as these, the visa officer's evidence should be preferred, unless the applicant can demonstrate bad faith on the part of the visa officer. The applicant has not done so, and in my opinion, the disputed documents do not form part of the material that was before the visa officer.
[20] Accordingly, the visa officer's findings with regard to the nature of the relationship between the applicant and Da Tong Xie were reasonable, based on the record. It was not enough for the applicant to merely state, as he did, in his supplementary letter that Da Tong Xie was his maternal uncle; he was under the obligation to provide proof, which he did not.
[21] It is also my opinion that the visa officer did not breach the duty of fairness by not summoning the applicant for an interview or requesting him to submit the required documents. The applicant bears the burden of providing the necessary information to satisfy the visa officer that he meets certain criteria to enter Canada. The application kit makes this clear. It is not the job of the visa officer to walk an applicant through the process step by step, or to make his case for him.
[22] I am satisfied that this application for judicial review should be dismissed.
[23] The applicant submitted the following questions for certification:
1) In an application for a student authorization, where it is apparent that an application is sound overall, that the majority of the required documents have been submitted and are satisfactory to the visa officer but that a small number of required documents appear to have been omitted from the application, does the duty of fairness require any notice to the applicant of this omission to allow the applicant to perfect this omission either through mail-in or through an interview? Does the requirement that the applicant satisfy the officer mean in all circumstances that only a single review of the file need be made with no chance given to correct any imperfections?
2) In an application for a student authorization, under what circumstances does the practice of "file stripping" by the visa office done before the delays to launch an application for judicial review constitute a ground for setting aside a decision? Where file stripping has occurred, what is the correct practice to resolve a dispute between the officer and the applicant as to the content of the application which was before the visa officer?
[24] As stated by counsel for the respondent, the first of the two questions proposed by the applicant is not a serious question of general importance as it is too specific and is not a proper question to be certified.
[25] I am prepared to certify part of the second question dealing with the issue of file stripping. I am satisfied that "file stripping" by the visa office done before the delays to launch an application for judicial review could cause a serious prejudice to an applicant, as in this case, it would have objectively answered the question of whether the certificate of relationship between the applicant and his uncle was before the visa officer when he first examined the applicant's application for a student visa.
"Max M. Teitelbaum"
J.F.C.C.
Ottawa, Ontario
August 2, 2001
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