Wang v. Canada (Minister of Citizenship and Immigration), 2002 FCT 68

Date: 20020122

Docket: IMM-232-01

Neutral citation: 2002 FCT 68

BETWEEN:

                                                                     YANQIU WANG

                                                                                                                                                    Applicant

AND:

                                   THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                               Respondent

                                                              REASONS FOR ORDER

ROULEAU, J.

[1]                 This is an application for judicial review of a visa officer's decision, dated December 4, 2000, where the applicant's request for a student authorization was refused. The applicant is seeking an Order that would quash the decision of the visa officer and send the matter back for reconsideration by a different visa officer.

[2]                 The applicant is a 19 years old high school graduate, citizen of the People's Republic of China. She applied for a student authorization in September 1999; however, her first application was refused. The applicant sought judicial review of that decision in this Court. Those proceedings led to a consent Order whereby her application was sent back to the Canadian Embassy in Beijing for redetermination. As part of the reconsideration, the applicant was interviewed by a new visa officer on August 9, 2000, with the assistance of a Mandarin interpreter.

[3]                 In her study plan, the applicant indicated that her goal in Canada was to learn English and then to pursue computer studies in university. She requested a 4.5 year student authorization. Her application also included a letter of acceptance into a one-year program focussing on English as a second language from Regent Christian Academy. She expressed her interest in following a career in computers.

[4]                 During the interview, the visa officer asked questions concerning the applicant's study plan, the funding that she proposed, and the relevance of her studies to a career in China. When asked why she chose computers, the applicant said that they were important for the development of China. When asked about the specifications of her home computer, she indicated software and the Internet and said that she "did not use it much but that her parents used it to type". When the visa officer asked what type of position she would obtain upon returning to China with a university degree, she said that the degree would be very useful in foreign companies and that she would get a job in computers. With respect to the type of job available in the field, she mentioned writing programs and putting them on the Internet.

[5]                 At the end of the interview, the visa officer asked the applicant to provide a current investment certificate as the previous one had expired. She also directed embassy staff to verify the applicant's parents' income; however, they were unable to do so. The visa officer therefore asked that a letter be sent to the applicant alleging that the applicant had misrepresented her parents' employment details and indicating the visa officer's concerns regarding the applicant's bona fides. The letter, dated October 19, 2000, says (in part):

You were unable to satisfy me that you had sufficient interest in or knowledge of computers. You indicated that you do not use your computer much at home. Your responses about your job opportunities after studies in this area were not clear or detailed. I have concerns about whether you are a genuine student.

[6]                 The applicant was then given thirty days within which to respond to the visa officer's concerns. The applicant's solicitor, Lu Chan, replied on her behalf. He indicated that not all companies are listed in China's "114" telephone directory and provided more information regarding the applicant's parents' employment. He also said that the applicant's interest in studying computers was sufficient and that any specific knowledge of computers should not be required. Whether or not she had used her computer at home, he said, was an irrelevant factor. With respect to job opportunities in China, Mr. Chan said that the applicant, then 19-years-old, should not be expected to recite details about the Chinese job market. However, he said that it is general knowledge that people who are educated in the west get better jobs and better salaries. Finally, he provided results of a "random internet search" which, in his view, revealed numerous senior positions with either Chinese companies or foreign-based companies that required education or experience from western countries.

[7]                 The visa officer accepted the information provided by Mr. Chan with respect to funding and parents' employment. Nevertheless, she attests that it did nothing to allay her concerns about the applicant's proposed course of study or about how her study plan would benefit her stated career plans. Consequently, the application was denied by letter dated December 4, 2000.

[8]                 Throughout the submissions in this Review, much has been said about a letter dated July 11, 2000 entitled "Open Letter to Applicants for Student Visas" (the "Open Letter"). This letter was allegedly posted at the Embassy and on its website. The applicant's counsel asserts that the Open Letter was motivated by a certain amount of success that he has achieved in applications like this one and which has recently received some press in China. However, during the cross-examination on her affidavit, the visa officer stated that she was not aware of this letter, although Mr. Chan certainly alluded to an allegation of bias in his letter to the officer dated November 10, 2000.

[9]                 The respondent concedes that the applicant was not denied on the basis of funds or of misrepresentation but on bona fides alone. The visa officer attests that she was not satisfied regarding the applicant's knowledge or interest in computers nor of how her proposed study plan would benefit her stated career plans.

[10]            The issues to be determined are the following:

Did the visa officer err in determining that the applicant was not a genuine student?

Was the visa officer biased?

What is the appropriate standard of review?

[11]            The applicant argues that her answers to the visa officer's questions were appropriate in the circumstances; that her answers were not surprising. Furthermore, it is asserted that expressing her belief that studying computers in Canada will help her have a good job in the future should be sufficient to show that she is a bona fide student.

[12]            From the applicant's submissions, no allegation of bias is brought against this particular visa officer. Nevertheless, the applicant's counsel goes on at great length to point out indicators which in his view reveal systemic bias within the respondent's Beijing processing centre.

[13]            Finally, it is argued that the appropriate standard of review in this case should be reasonableness simpliciter.

[14]            The respondent argues that visa officers should be given considerable deference, particularly with respect to applications made from abroad and that the standard of patent unreasonableness should be applied.

[15]            It is submitted that if a visa officer is logical and her conclusions were reasonable, the Court should not intervene.

[16]            The respondent has emphasized how the visa officer gave the applicant an opportunity to allay her concerns and that while Mr. Chan succeeded in certain areas he failed in others. The visa officer considered all of the evidence before her. She concluded that some of the answers were general and brief and insufficient to truly establish that the applicant was interested in pursuing a career in computers. Such a conclusion was reasonably open to her and should not be overturned by this Court.

[17]            It was asserted that the test for a reasonable apprehension of bias was set out by the Supreme Court of Canada in [1978] 1 S.C.R. 369">Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 at 186, and that that test has not been met in this case. There is no evidence that the visa officer was less than impartial or that she did not approach her decision with an open mind. The visa officer also swore under oath that she did not see the Open Letter nor did she see a letter in which one of her superiors responded to an allegation of bias made by Mr. Chan.

[18]            I am satisfied that the visa officer's decision was reasonable, whether the standard of reasonableness simpliciter or patent unreasonableness is applied. She was entitled to look at all the circumstances and in this case, the applicant did not meet her onus of showing that she was truly interested in pursuing a career in computers. When given an opportunity to express her knowledge of computers or of job opportunities for people with computer training, her answers were very weak and general indeed.

[19]            In my view, the visa officer was entitled to take these answers into account. When the visa officer expressed these concerns to the applicant, Mr. Chan's response did nothing to set her mind at ease. With respect to the job advertisements that he provided, there was no indication that the applicant would be eligible for such senior positions or that studying computers for two to three years in Canada would even make her qualified and eligible; as counsel for the respondent pointed out her answers were not demonstrable; she herself, not Mr. Chan, should have been aware and studied the availability for work in this field. She was 18 years of age, looking to a future in computers but had obviously completely ignored the job opportunity or availability of work.

[20]            The applicant's allegation of bias, argued extensively, was not persuasive; this case must be decided on the basis of legal principles, not speculation. The applicant complains about how she was treated on the issues of misrepresentation and lack of funds but her application was not denied on either of these grounds.

[21]            The applicant criticizes the Open Letter by pointing out various fine distinctions that could be misinterpreted. In my view however, the indicators that are emphasized do not support a reasonable apprehension of bias. It cannot be said that an informed person, viewing the matter realistically and practically and having thought the matter through, would think it more likely than not that the decision-maker would unconsciously or consciously decide the matter unfairly. I believe that the visa officer was unbiased in her review of this application and that she approached it with an open mind. The Open Letter was not circulated among visa officers, in fact this visa officer was not aware of the letter nor of any correspondence between her superiors and Mr. Chan. In his Memorandum of Fact and Law, counsel for the applicant also wrote:

Let it be said at the outset that, with the exception of the officer's claim under oath that as late as March 8 2001 she was not aware of the open letter of Susan Gregson to student visa applicants or its contents which was posted on the immigration section's billboard and on the immigration section's website, there is no allegation of bad faith on the part of the applicant and her counsel. The officer and her colleagues and superiors are doubtless well intentioned and sincere.

[22]            This is unsubstantiated and purely speculative. The applicant has not persuaded me that there is any reason to interfere with the visa officer's decision. I hereby dismiss this application for judicial review.

     JUDGE

OTTAWA, Ontario

January 22, 2002