Date: 20070416
Docket: IMM-1989-06
Citation: 2007
FC 391
Ottawa, Ontario, April 16, 2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
AO
JING PEI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an
application for judicial review brought by the Applicant, Ao Jing Pei , challenging a visa officer’s decision
which denied him a student visa. Mr. Pei
is a 23-year-old Chinese student who had hoped to come to Canada to study
English and Business and Applied Science; however, his two applications for a
student visa have been declined by decisions rendered by a visa officer
assigned to the Canadian Consulate in Hong Kong
(Department).
BACKGROUND
[2]
The
Department’s initial visa refusal was rendered by letter dated September 12, 2005.
That decision was based on a failure by Mr. Pei to adequately document the accumulation
and source of the financial resources necessary to support his proposed
Canadian studies.
[3]
The Record
indicates that on November 21, 2005 the Canadian Immigration Consul in Hong
Kong, John Burroughs, wrote to Mr. Pei’s Winnipeg legal counsel in response to
a letter of inquiry dated November 7, 2005. Although the letter from Mr Pei’s legal counsel did not form part of the
Applicant’s Record, it appears that Mr. Burroughs was responding to a request
for a reconsideration of the initial visa refusal decision. Mr. Burroughs’
letter declined the request for reconsideration but offered advice on what was
required to provide proof of funding in a new application. He advised of the
need to “produce all relevant evidence and documentation” to establish
admissibility and warned that a failure to be thorough could result in a
refusal decision. His letter also indicated that a final decision “will likely
be made without further communication with you”. He then went on to give
examples of important documents identified in the Department’s web-based
checklist including original certificates of deposit, bank passbooks or bank
statements and written explanations and calculations showing the sources,
ownership and accumulation of the required funds. His letter concluded with
the advice that Mr. Pei “should ensure that all the required documentation is
provided as indicated in our application kit”.
[4]
Mr. Pei’s second visa application was received
in Hong Kong on January 23, 2006. In addition to the formal application, Mr. Pei submitted banking records which
purportedly established that his parents were persons of considerable means and
able to meet the cost of his Canadian studies. Those records included
certificates of deposit, business licences, passbook entries and an
accountant’s audit certificate. The accountant’s certificate stated that it
was based on personal documents provided by Mr. Pei’s father and it verified funds on
deposit as of October 14, 2005 in the amount of ¥1,499,569.65.
[5]
Notwithstanding
Mr. Pei’s enhanced financial disclosure, his
second visa application was refused by letter dated February 16, 2006. That
letter also identified an inadequate financial disclosure as the basis for the
decision. The Department’s computer notes (CAIPS notes) detailing the visa
officer’s concerns indicate that he was not satisfied that Mr. Pei had
sufficiently verified the sources of his parents’ savings. The visa officer
also questioned the logic of Mr. Pei’s
Canadian study plan and noted that his sister had recently been approved as a
permanent resident in Canada. This latter consideration
was described as a strong incentive for Mr. Pei to remain in Canada and led the officer
to state that he was “not convinced that [Mr. Pei] is a bona fide student”. It is from
this decision that Mr. Pei brings this application for judicial review.
ISSUES
[6]
(a) What
is the standard of review which applies to the issues raised on this
application?
(b)
Did the
visa officer commit any reviewable errors in the decision to deny Mr. Pei’s application for a student
visa?
ANALYSIS
[7]
A helpful
analysis of the standard of review issue pertaining to visa decisions can be found
in Hassani v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 1597, 2006
FC 1283. However, in light of the conclusions I have reached in this case, it
is unnecessary to conduct a pragmatic and functional analysis. The decision to
refuse a student visa to Mr. Pei based on the adequacy of his financial
disclosure was reasonable on this record. To the extent that the visa officer
may have breached a duty of fairness, it is not material to the outcome because
the result would not have been different on any reconsideration.
[8]
Mr. Pei challenges the visa refusal
decision on the following grounds:
(a)
That the
visa officer breached the duty of fairness by failing to advise Mr. Pei of his concerns about the adequacy of
the submitted financial information.
(b)
That the
decision was perverse, capricious and inconsistent with the financial evidence
provided, which evidence was sufficient to satisfy any reasonable concern.
(c)
That the
visa officer’s conclusion that Mr. Pei’s study plan was not logical was either
speculative or was based on extrinsic information and, as such, fairness
required that he be given an opportunity to explain the plan.
(d)
That the
visa officer’s concern about Mr. Pei’s
supposed family incentive to remain in Canada was reviewable for the same reasons
noted in point (c) above.
[9]
Counsel
for Mr. Pei acknowledges that, as a
general rule, the Department owes no duty to a visa applicant to point out
deficiencies in the application before rendering a decision. This point is
well established by the authorities: see, for example, Li v. Canada (Minister of Citizenship and
Immigration),
[2001] FCJ No. 1144, 2001 FCT 791 at para. 21. Nevertheless, she argues that
such a duty of care can arise where the Department has created a reasonable expectation
that its concerns or needs are limited but later bases the decision on other
grounds. Here Mr. Pei asserts that he was misled by Mr. Burrough’s
letter and believed that all that was required was some proof of the funds held
on deposit by his parents.
[10]
While I am
prepared to accept the correctness of counsel’s submission that the principle
of reasonable expectations might arise from departmental representations, I do
not accept that Mr. Burrough’s letter could reasonably create such an
expectation. That letter was quite explicit in advising Mr. Pei and his counsel that his new
application had to be fully documented in accordance with the Department’s
stated requirements. It was not reasonable for Mr. Pei to treat the second application as an extension
of the first. It was also presumptuous to expect that the visa officer would
re-examine the first visa application file with a view to filling in gaps in
the disclosure supporting the second application. This ground of review is,
therefore, rejected.
[11]
It was
also contended on behalf of Mr.
Pei that his
financial disclosure was sufficient to dispel any reasonable concern about
funding his Canadian studies. The contrary decision, it was argued, was
perverse and inconsistent with the evidence.
[12]
Counsel
for the Respondent, however, points to several significant problems with Mr. Pei’s financial disclosure and makes a convincing
case in support of the visa officer’s decision. I accept her argument that the
visa officer’s concerns went beyond the issue of proof of accumulated funds.
The Department’s CAIPS notes indicate that the officer had a broader concern
which included questions about the source of the parents’ resources and whether
their claimed “savings” were secure and available.
[13]
The visa
officer’s financial reservations were not unreasonable given Mr. Pei’s failure to adequately
respond to questions posed in the visa application. For example, when asked to
identify capital assets possessed by the family including the percentage
ownership, the amount invested and the current book value, Mr. Pei offered only the name of a business –
Taishan No. 7 Building and Construction Company (Taishan). The only
documentary evidence submitted which concerned Taishan was a business licence
which nowhere noted Mr. Pei’s parents as owners. The
visa officer’s CAIPS notes refer specifically to the absence of verification of
this ownership claim and also to other evidence that Mr. Pei’s parents were
employees of Taishan. Although another business licence was put forward to
identify Mr. Pei’s father as the proprietor of a second
company, no reference to that business is contained elsewhere within the visa
application and no indication of its value or profitability was offered. Even
though the banking records indicate substantial deposits and, in some cases,
large withdrawals, no meaningful explanation is given as to the source of those
funds. Whether they were wages, dividends, or profit sharing income, is left
unexplained. The CAIPS notes also reflect additional concerns about the
absence of employment references for Mr.
Pei’s parents along with a failure to document their annual income. Given that
it should not be a difficult task for a family of supposedly substantial means
to comprehensively and convincingly document its financial history and
circumstances, all of the vagueness and inconsistency in the records tendered
to the Department raised entirely reasonable concerns and it was understandable
that the visa officer remained unconvinced by Mr. Pei’s application.
[14]
In the
end, what the Court is being asked to do on behalf of Mr. Pei is to reconsider the evidence. It is
not, however, the function of this Court on judicial review to reweigh the
evidence or to substitute its discretion for that which properly resides with
the visa officer; and, even if I had that authority, I would not have come to
any different conclusion on this record. Accordingly, and
notwithstanding Ms. Adachi’s capable arguments, this ground
of review is rejected.
[15]
It was
also argued on behalf of Mr. Pei that the visa officer’s
disparaging description of his study plan was based on speculation -
specifically, that the proposed Canadian program was a duplication of what he
was already taking in China. A similar challenge was made to the visa
officer’s stated concern about Mr. Pei’s supposed incentive to remain in Canada
because of the anticipated presence here of his sister. I accept that, on this
record, these observations were highly speculative and may have required the
visa officer to apprise Mr.
Pei of his
concerns and to allow for some response: see Hassani, above. These are,
however, issues which could be relevant to the visa officer’s decision about
whether Mr. Pei’s stated intention to
study in Canada was bona fide. That
such issues can be relevant to such a determination has been confirmed by the
Federal Court of Appeal in Wong v. Canada (Minister of Citizenship and
Immigration)
(1999), 246 N.R. 377, [1999] F.C.J. No. 1049 (C.A.) where the Court noted at paragraph 13:
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
[FN3] in determining whether or not an applicant is a visitor within the terms
of the definition provided in the Act.
FN3. Such as the ties
to the country of origin, whether there are credible reasons for wishing to
study in Canada, the age of the applicant, whether prior acceptance has been
obtained from an educational institution in Canada and the
likelihood of return to the country of origin.
[16]
Even
though the visa officer expressed a concern about Mr. Pei’s bona fides, it is quite
clear from the decision that the overriding consideration was Mr. Pei’s failure to verify the extent of his
financial capacity. I agree with counsel for the Respondent that that
fundamental problem would remain if Mr. Pei’s visa application was returned to Hong
Kong for reconsideration. Based upon the present record, Mr. Pei’s application is inevitably bound to
fail again. In such a context, even where there has been a breach of the duty
of procedural fairness, a decision ought not be sent back for a redetermination
if it is bound to fail: see Thaneswaran v. Canada (Minister of Citizenship
and Immigration), [2007] F.C.J. No. 253, 2007 FC 189 at para. 25.
[17]
To my
thinking, Mr. Pei would be better served by
bringing a new application for a student visa which comprehensively verifies
the financial wherewithal of his family to support his studies. If he chooses
to do so, the Department should avoid the kind of regrettable speculation that
is reflected in the CAIPS notes about the merits of his study plan or his
supposed family incentive to remain in Canada. While such matters may be open to
consideration, they must be supported by some evidence and, even then, the visa
officer may be required to raise any concerns with Mr. Pei before rendering a decision.
[18]
Based on
the foregoing this application for judicial review is dismissed.
[19]
Neither
party proposed a certified question and no issue of general importance arises.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is dismissed.
"R. L. Barnes"
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