Date: 20081015
Docket: IMM-5287-07
Citation: 2008 FC 1167
Ottawa, Ontario, October 15,
2008
PRESENT: The Honourable Orville Frenette
BETWEEN:
XIN
HUI WANG
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application in judicial review pursuant to section 72 of the Immigration
and Refugee Protect Act, S.C. 2001, c. 27 (IRPA) of a decision of an
Immigration officer dated October 19, 2007, wherein the officer refused the
Applicant’s request for a study permit.
BACKGROUND
[2]
Ms.
Wang is a 21 year old citizen of China. She initially applied
in November 2006 for a study permit to attend Centennial College in Toronto, Ontario. That
permit was refused because she had not submitted the requisite medical tests;
she claimed she did not receive the letter requesting such tests.
[3]
She
was later accepted at Seneca College for a preparatory one year English
Program to be followed, if successful, by a two-year Business program.
[4]
She
re-applied for a study permit in 2007. She submitted her acceptance letter,
proof of funds and particulars of her parents’ employment and income. With
these papers, she included a paper entitled “study form”, which was not dated,
unsigned, with no place of reference.
[5]
In
the process of assessing her application, the officer became concerned with the
validity of the letters accompanying her parents’ employment, as they appeared
similar, despite apparently originating from different companies. On
attempting to verify these letters, the officer found that neither company was
recognized; the telephone number listed on the letter from the father’s alleged
employer was registered to another company but the person who answered
the telephone stated that it was a hotel to which many wrong calls had been
made; the fax number listed on the letter from the father’s alleged employer
was not registered and was not in service; the company name and number provided
in the letter from the mother’s alleged employer were not registered; and, the
person who answered the phone at the latter number agreed that the woman named
worked there but she was unmarried, in her twenties and childless.
[6]
The
officer then sent a letter to the Applicant informing her that she believed the
Applicant had misrepresented her parents’ employment and information and gave
her 30 days to respond. The Applicant replied by letter dated August 10, 2007
asserting the truth of the facts she submitted together with a letter from her
father giving a new number and untranslated copies of business licences without
indication of employment in those businesses or the signature of an authorizing
representative. He declared he had a credit bank balance of $111,995.00 (in
equivalent Canadian funds) in March, 2007.
[7]
The
Applicant claimed the person who answered the officer’s phone call at her
mother’s employer misunderstood the question and that a letter had been sent to
the embassy to clarify the situation. However, the officer stated in her
affidavit that the letter, Tab C – page 46 of the Applicant’s Record, was not
before her when she made her decision.
THE DECISION
[8]
By
letter dated October 19, 2007, the Applicant’s application for a study permit
was refused due to concerns that she was not a bona fide temporary
resident and would not leave Canada at the end of her authorized study.
STANDARD OF REVIEW
[9]
The
Supreme Court of Canada in Dunsmuir v. New
Brunswick,
[2008] 1 S.C.R. 190, has recently re-examined the standard of review of
judicial reviews and merged the standards of patent unreasonableness and
reasonableness simpliciter into a single reasonableness standard.
[10]
It has established that, henceforth, two
standards should be used: correctness and reasonableness. Correctness is to be
applied to issues of law or procedural fairness and reasonableness for issues
of facts or mixed facts and law. The Supreme Court stated in paragraph 62: In summary,
the process of judicial review involves two steps. First, courts ascertain
whether the jurisprudence has already determined in a satisfactory manner the
degree of deference to be accorded with regard to a particular category of
question. Second, where the first inquiry proves unfruitful, courts must
proceed to an analysis of the factors making it possible to identify the proper
standard of review.
THE ISSUES
- Was there misrepresentation and if so, was
it material?
- Was the officer’s decision reasonable?
ANALYSIS
1. Was there
misrepresentation and if so, was it material?
[11]
The
Applicant submits that there was no misrepresentation and, in any case, it was
not material to the conditions of her application to come to Canada. Her
counsel relies on the case of Ali v. Canada (Minister of
Citizenship and Immigration), 2008 FC 166.
[12]
The
Respondent replies that there was misrepresentation on fundamental facts
establishing the Applicant’s financial capacity to pay for her studies and stay
in Canada and to her
credibility as to whether she would leave Canada once her
studies were completed.
[13]
There
is no evidence of procedural unfairness in this case. Once the officer noted
the obvious misrepresentations as to the employment and financial ability of
the parents of the Applicant to finance her stay in Canada, he
addressed a letter to the Applicant indicating these concerns. The Applicant
attempted to satisfy these concerns but the officer found the material
submitted to be wholly inadequate. I agree with his assessment.
[14]
This
is a question of fact or mixed fact and law reviewable on a standard of
reasonableness.
[15]
The
known facts and the documents submitted by the Applicant and her parents raised
serious concerns about their authenticity and their truthfulness.
[16]
For
example, a letter dated July 9, 2007 refers to a phone verification made the
previous day, i.e. Sunday, July 8, 2007; however the embassy does not conduct
business on Sundays and the CAIPS notes indicate that the phone verification was
made on July 10, 2007 (one day after the date of the letter).
[17]
In
these circumstances, the officer rendered a decision which on the facts was
reasonable. He also satisfied the duty of fairness by giving the Applicant an
opportunity to answer these concerns (Khwaja v. Canada (Minister of Citizenship
and Immigration) 2006 FC 522 at para. 17; see also Young v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1287.
[18]
I
also believe that the financial statement and the employment status of the
Applicant’s parents was a material fact because the Applicant’s ability to meet
the financial sufficiency test under paragraph 40(1)(a) of the IRPA depended on
this fact.
[19]
The
Applicant relied on Ali where a Visa officer ruled that a Refugee claimant
was inadmissible due to misrepresentations. This one page decision is based upon
a finding that, even if there were misrepresentations, they were not material
to the decision.
[20]
The
Applicant also relies upon the decision of Justice O’Reilly in Yue v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 423, in which a judicial review
was allowed to permit an analysis of the evidence of the sufficiency of funds of
a student from China. In this case, however, serious doubts as to
the Applicant’s truthfulness remained unresolved in the officer’s mind.
2. Was the officer’s
decision unreasonable?
[21]
The
Applicant alleges that the officer should have attempted to verify again the information
submitted by the Applicant’s mother and father in response to the letter of concern
and that not having done so was a breach of procedural fairness.
[22]
The
Respondent contends that the officer did assess the response letter and
document, but found them not to be convincing evidence.
[23]
I
believe the Respondent’s arguments are well founded; the Applicant bore the
duty to provide evidence to support her affirmations particularly after
receiving a letter of concern. The officer’s decision was well within the
range of decisions which could have been rendered according to the standard of
review elaborated in Dunsmuir.
CONCLUSION
[24]
For
these reasons, the application must be dismissed.
JUDGMENT
THIS COURT ORDERS that
- The application is
dismissed;
- There are no
questions to be certified.
"Orville
Frenette"
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