Date: 20020418
Docket: IMM-1609-01
Neutral citation: 2002 FCT 440
Montreal, Quebec, April 18, 2002
Present: The Honourable Madam Justice Danièle Tremblay-Lamer
BETWEEN:
XU LU
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] This is an application for judicial review of a decision rendered by visa officer Katia d'Haene on February 19, 2001 wherein she refused the applicant's application for a student authorization.
[2] The applicant, Xu Lu, is a citizen of China, where she has been working as a nurse since 1996. On November 24, 2000, her application for a student authorization was received by the Canadian Embassy in Beijing.
[3] In her application, the applicant mentioned that she was accepted in the three-year Business Administration Program at LaSalle College in Montreal. She explained that she wished to study in business administration because her long-cherished dream was to work as an administrator in a joint venture company. In her application, the applicant also indicated that her cousin, Mr. Chengbao (Bob) Wu, was sponsoring her, and that the funds available for her stay were $80,000.
[4] On February 19, 2001, the visa officer refused the applicant's application on the grounds that she was not satisfied that the applicant had adequate financial resources to cover her expenses. The visa officer was also not satisfied that the applicant was a bona fide visitor to Canada.
[5] The visa officer's CAIPS notes contain the following information. The visa officer noted that there were no documents to prove the applicant's relationship to her sponsor. There were also no guarantees that the funds mentioned by the applicant would remain available for the applicant during the next three years. Finally, the visa officer found the applicant's leap from nursing to business administration hard to comprehend. For these reasons, the visa officer concluded that the applicant came within the inadmissible class of persons described in paragraph 19(2)(d) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") since the applicant had not convinced her that she was a visitor and not an immigrant.
[6] The issuance of a student authorization is a discretionary decision and the scope of judicial review is very limited. In De La Cruz v. Canada (M.E.I.) (1989), 26 F.T.R. 285 (F.C.T.D.) at 287, the Court held that in order for it to intervene, "[...] There must be either an error of law apparent on the face of the record, or a breach of the duty of fairness appropriate to this essentially administrative decision". See also Zheng v. M.C.I., (2001) 13 Imm. L.R. (3d) 226.
[7] The applicant submits that, because of its reliance on an external criteria, it was unreasonable for the visa officer to request that the funds be available during the applicant's three-year stay in Canada. I disagree. While there is no mention in the Immigration Regulations, 1978, SOR/78-172 (the "Regulations") about a time frame, it is clear that paragraph 15(1)(b) of the Regulations requires that the applicant provide sufficient documentation to enable an immigration officer to satisfy herself that the applicant has sufficient financial resources to support herself while in Canada without engaging in employment in Canada.
[8] In the financial summary submitted with her application, the applicant stated that the savings held by her family or sponsor were $1,048 in a checking account, and $80,859 in a trading account. In the questionnaire, also submitted with her application, the applicant mentioned that her cousin, Chengbao (Bob) Wu, resided in Canada.
[9] No proof for the above-mentioned information was submitted, apart from proof of payment for half of the applicant's first year tuition fees.
[10] The visa officer relied on the lack of evidence relative to the relationship between the applicant and her sponsor. It was not sufficient for the applicant to merely state that Chengbao (Bob) Wu was her cousin, she was under the obligation to provide proof, which she did not (Kong v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1216 at para. 20).
[11] Further, not only did the applicant not satisfy the visa officer that she was related to the sponsor, she also did not provide any sufficient documentation with regard to the alleged funds. The applicant submits that the visa officer should have asked the applicant to provide all missing documents. Again, I disagree. An applicant bears the burden of providing the necessary information to satisfy the visa officer that he or she meets certain criteria to enter Canada (Kong, supra at para. 21). This is made clear by the guidelines provided in the Application Kit for a student authorization which states that an applicant must provide all supporting documents for his or her application. Furthermore, contrary to the applicant's contention, the duty of fairness did not require the visa officer to conduct an interview. As stated by Teitelbaum J. in Ali v. M.C.I., (1998) 151 F.T.R. 1, there is no statutory right to an oral interview.
[12] The applicant alleges that the visa officer ignored the evidence that more than half the tuition fees had been paid prior to the application. While I have not been persuaded that this element was ignored by the visa officer, in any event, it was not sufficient to establish that the applicant had met the requirements of funds.
[13] The jurisprudence is clear to the effect that the failure to convince the visa officer on the issue of funding is sufficient for the refusal of an application (Xingzuo Ji v. Canada, [2001] F.C.J. No. 1136).
[14] With regard to the visa officer's decision that the applicant was not a genuine visitor to Canada, subsection 9.(1.2) of the Act requires any person who makes an application for a visitor's visa shall satisfy a visa officer that the person is not an immigrant. In the case at bar, the visa officer was not satisfied that the applicant would depart Canada after completion of her studies.
[15] The visa officer based her decision partly on the fact that the applicant's study plan gave little explanation with regard to her plans and eventual return from Canada. The visa officer also found that the explanation given by the applicant was very generalized and insufficient to motivate her three-year study in Canada, a very large investment in time and funds, and her change from nursing to business administration.
[16] In her affidavit, the visa officer also explained that in her assessment of the applicant's study plan, and given the applicant's education and employment background, she was not satisfied that the applicant had explained the intended change in her career, only by stating in her study plan that "[t]he few years work has made myself aware of the intense interest in business administration" (Tribunal Record, Statement of Study Plan, at 22).
[17] The correct legal test is whether or not the applicant would be likely to return to China after her studies (Liu v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1125 at para. 23). In making that determination, the visa officer was entitled to examine the totality of the circumstances, including the long-term goal of the applicant. Other factors that could be considered included whether there were credible reasons for wishing to study in Canada, and the likelihood of return to the country of origin (Wong v. Canada (Minister of Citizenship and Immigration) (1999), 246 N.R. 377).
[18] Thus, I find that the decision of the visa officer with regard to the bona fide of the applicant's application for temporary entry to Canada was reasonable.
[19] For these reasons, the application for judicial review is dismissed.
ORDER
The application for judicial review is dismissed.
Danièle Tremblay-Lamer
JUDGE
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20020418
Docket: IMM-1609-01
BETWEEN:
XU LU
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1609-01
STYLE OF CAUSE:
XU LU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: April 16, 2002
REASONS FOR ORDER AND ORDEROF THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
DATED: April 18, 2002
APPEARANCES:
|
Mr. Paul Duchow |
FOR THE APPLICANT |
|
Ms. Thi My Dung Tran |
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
|
Mr. Paul Duchow Montreal, Quebec |
FOR THE APPLICANT |
|
Morris Rosenberg Deputy Attorney General of Canada Montreal, Quebec |
FOR THE RESPONDENT |