Date: 20031218
Docket: IMM-4543-01
Citation: 2003 FC 1493
Ottawa, Ontario, December 18, 2003
Present: The Honourable Mr. Justice Blais
BETWEEN:
WEI ZHANG
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S. 1985, c. F-7, in respect of a decision made by visa officer Robert Miller at the Canadian High Commission in London, United Kingdom ["U.K."], dated September 6, 2001, refusing the applicant a student visa.
FACTS
[2] Wei Zhang [the "applicant"] is a citizen of the People's Republic of China ["PRC" or "China"], born in the PRC in 1982. After graduating from high school, he obtained a student visa for Ireland. Since November 1999 he has been residing in Dublin, Ireland, studying first English, then Business Language.
[3] In April 2001, he applied to the Canadian High Commission in London, U.K., for a student visa to come to study in Canada. His application included a formal acceptance at Lasalle College in Montreal for a three-year Business Program leading to a Diplôme d'études collégiales (D.E.C.), a post-secondary college diploma.
[4] His application was rejected on April 23, 2001. On May 29, 2001, the applicant filed for judicial review with the Federal Court of Canada. The parties settled and a consent order was rendered, for the application to be reassessed by another visa officer.
[5] A letter was sent to the applicant on August 2nd, 2001, asking him to re-submit his application with all the necessary documentation. He was invited by letter dated August 23, 2001 to an interview at the High Commission in London. The interview was held on September 6, 2001. Immediately on completing the interview, the visa officer told the applicant that the student visa would not be granted.
ISSUES
[6] 1. Did the visa officer base his decision on an erroneous finding of fact that he made in a perverse or capricious manner or without regard for the material before him?
2. Did the visa officer act in a way contrary to law, namely, by discriminating against the applicant contrary to section 15 of the Canadian Charter of Rights and Freedoms ["Charter"]?
[7] The Act states very clearly that the burden of proof rests with the applicant, who must satisfy the visa officer that he will not remain in Canada once his visa has expired. The visa officer has wide discretion in assessing the evidence and coming to a decision. However, the decision must be based on reasonable findings of fact.
[8] In Zheng v. M.C.I. (2001), 13 Imm. L.R. (3d) 226, Justice Rouleau stated that the correct legal test was whether the applicant was likely to return to his country of origin after his studies. This test is cited with approval in Guo v. Canada (MCI), [2001] F.C.J. No. 1851, a case that bears many similarities to the one at bar.
[9] In Guo, the applicant had also applied for a student authorization to the London High Commission while a temporary resident in Ireland. The visa officer noted that the applicant had little knowledge of Canada and had not researched additional education possibilities in Ireland, the UK or in the PRC. The applicant simply wanted to study in Canada, convinced that a Canadian degree would enhance her chances in the PRC. The visa officer refused to grant the student visa.
[10] In his decision granting a reassessment of the application, Justice Kelen stated that the visa officer had relied on factors which the Court found highly irrelevant: the fact that the applicant first went to Ireland to study and then had applied for a student visa from the U.K. because it was easier than to apply from China; the fact that the officer had considered that there was no reason not to continue her studies in Ireland or the U.K.
[11] Such an argument had already been found to be irrelevant by Justice Rouleau in Wang v. Canada (M.C.I.), [2001] F.C.J. No. 95, which Justice Kelen cites in Guo.
[12] From the CAIPS notes and the visa officer's affidavit, it is not clear what weight is given to the fact that the application is made while the applicant is in Ireland and not in China. However, it would seem that the lack of strong ties outside Canada, the main reason why the visa is denied according to the visa officer, is shown by the fact that a) the applicant is in Ireland, b) the applicant has only temporary status in Ireland, and c) the applicant has returned to China only once since arriving in Ireland.
[13] No attempt was made by the visa officer, as shown in his cross-examination, to determine what was the frequency and type of communication which the applicant maintained with his parents back in China. The fact that he has not gone back more than once is only one fact in the whole relationship he may or may not have with his parents and home country.
[14] It would have been important to determine how much contact there was between the applicant and his family during those two years, since this would have been a more precise indicator of his "strong ties" outside of Canada than simply following his itinerary (Ireland, one return trip to China, applying to come to Canada).
[15] What we know as facts would seem to indicate a young man very much dependent on his father's opinion, and there is no reason to believe that the father, a successful businessman, would not be glad to see his son come back to help him understand western markets.
[16] While the applicant is in Ireland, his father gets in touch to tell him that a friend of his is recommending a school of business in Montreal, Canada. The son dutifully applies, and is accepted. He knows no one in Montreal except for his father's friend.
[17] When questioned about the reason why he did not go back to China again, the applicant answers that his father told him not to, that it might jeopardize his chances of coming to Canada. It seems rather harsh to hold against him the fact that he listens to his father, especially if he is to prove that he still has strong ties to China.
[18] Other visa officer decisions have been cancelled because the visa officer had not sufficiently taken into account the ties of family which bound the applicant to their home country. In Guo, supra, after faulting the visa officer for taking into account irrelevant factors, Justice Kelen found that the officer did not take into account a very important relevant factor, namely the applicant's ties to China which would make her return likely. Specifically, he refers to her parents at para. 15:
Her ties in China are her parents, who are both successful, and have established themselves in significant employment. Her father is employed as a director general of the police and her mother is employed as a financial manager for the government and for several other companies. The applicant is an only child and stated in her affidavit that she would be returning to China because her parents would miss her. I think it was also apparent from the record that the applicant would miss her parents. The applicant is pursuing her studies in Canada upon the recommendation of her father.
[19] This would appear to be very similar to the situation in which the applicant in the case at bar finds himself. He also is an only child, on whom his father is counting to come back and help him in the business he has developed. Both his parents are successful in Chinese society, his mother as head surgical nurse of the local hospital, his father as a well-to-do businessman. It is on his father's recommendation that he wishes to pursue a course of studies in Montreal.
[20] In Totrova v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 886, the Court also found that the applicant had been denied a visa through a decision which seemed to ignore relevant factors:
I find both of those key considerations, insufficient ties to Russia and the vague nature of her future plans, totally inconsistent with the undisputed evidence that the applicant still had her parents, her son's father, and a boyfriend in Russia. She had also confirmed to the visa officer that she would not seek to stay permanently in Canada because of the apparent possibility of increased employment opportunities in Russia. Given the clear and stated purpose, in her application for a student visa, of embarking upon a two-year course of study at the University of Toronto, which is clearly a temporary purpose, and given the fact that the applicant never expressed the intention of remaining in Canada after her studies, save for the possibility of obtaining one or two years' employment experience, should that become possible, I find that the visa officer based his impugned decision on an erroneous finding of fact that he made without regard for that important and relevant evidence. [para. 7]
[21] The applicant in this case has clearly stated reasons for him to go back to China: his father, who is funding his studies entirely, expects him back to help with the family business, thanks to the knowledge of western marketing which will have been acquired in Canada. The applicant knows no one except his father's friend in Canada, and has expressed no interest in remaining in Canada after his studies, nor reasons for doing so.
[22] I find, from the CAIPS notes, his affidavit and his cross-examination, that the visa officer has made no serious attempt to determine the strength of the ties of the applicant to China. The burden of proof rests on the applicant, according to the Act. The applicant has done his best to discharge this duty, by providing reasons why he would go back to China to work with his father, and by showing that his purpose for pursuing this course of studies is clearly linked to his future employment in China. I find the officer did not sufficiently take into account the obviously strong relationship which exists between the applicant and his father.
[23] On this basis, I believe that the refusal of the visa was based on an erroneous finding of fact, which did not take into account the material evidence which had been presented - the applicant's affidavit, the evidence from his parents, the facts surrounding his case.
Section 15 infringement
[24] The applicant alleges that the refusal of the visa constitutes a violation of his rights under section 15 of the Charter. The applicant believes that he has been a victim of discrimination on the part of the Canadian authorities at the High Commission in London, and cites as proof figures provided by the High Commission that show that whereas the percentage of applicants from the United Kingdom and the European Union that obtain a student visa at the London High Commission is over 90%, the number of applications from students from the PRC which receive a favourable response, again at the London High Commission, has been decreasing, from 62% in 1999 to 31% in 2001 (year to date). However, to make out a Charter case, there has to be some factual basis to the claim, which in the case at bar is completely missing.
[25] The Supreme Court of Canada has stressed the importance of providing the Court with a factual basis to decide a Charter issue ®. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713). In a unanimous decision, MacKay v. Manitoba, [1989] 2 S.C.R. 357, the Court states the relevance of fact to the deciding of a challenge based on the Charter:
¶ 8 Charter cases will frequently be concerned with concepts and principles that are of fundamental importance to Canadian society. For example, issues pertaining to freedom of religion, freedom of expression and the right to life, liberty and the security of the individual will have to be considered by the courts. Decisions on these issues must be carefully considered as they will profoundly affect the lives of Canadians and all residents of Canada. In light of the importance and the impact that these decisions may have in the future, the courts have every right to expect and indeed to insist upon the careful preparation and presentation of a factual basis in most Charter cases. The relevant facts put forward may cover a wide spectrum dealing with scientific, social, economic and political aspects. Often expert opinion as to the future impact of the impugned legislation and the result of the possible decisions pertaining to it may be of great assistance to the courts.
¶ 9 Charter decisions should not and must not be made in a factual vacuum. To attempt to do so would trivialize the Charter and inevitably result in ill-considered opinions. The presentation of facts is not, as stated by the respondent, a mere technicality; rather, it is essential to a proper consideration of Charter issues. A respondent cannot, by simply consenting to dispense with the factual background, require or expect a court to deal with an issue such as this in a factual void. Charter [page 362] decisions cannot be based upon the unsupported hypotheses of enthusiastic counsel.
[26] In the case at bar, no evidence has been provided that the officer was biased. The applicant presents raw figures which are impossible for this Court to interpret without further information. Statistics are meaningless when provided without context. One cannot compare the rates of acceptance in only one foreign office, for countries whose respective populations are so widely different. Because of the factual insufficiency, this Court cannot decide the Charter issue. That claim is thus dismissed.
[27] Notwithstanding the dismissal of the Charter claim, the conclusion that the refusal of the visa was based on an erroneous finding of fact justifies the intervention of this Court.
ORDER
THIS COURT ORDERS THAT:
The visa officer's decision is quashed and the matter referred back to another visa officer who shall take into consideration in making his or her determination the strength of the applicant's ties to China.
[28] The applicant suggested a question for certification:
Does the Charter apply to actions of visa officers in their application of the Immigration Act and Regulations, and arriving at decision, must all these officers comply with the principles of the Charter of Rights and Freedom?
[29] I agree with counsel for the respondent that this is not a question of general importance. No question will be certified.
"Pierre Blais"
J.F.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4543-01
STYLE OF CAUSE: WEI ZHANG v. MCI
PLACE OF HEARING: Montreal
DATE OF HEARING: November 24, 2003
REASONS FOR ORDER AND ORDER : Blais J.
APPEARANCES:
Me May Chiu and
Me Milton James Fernandes FOR APPLICANT
Me Thi My Dung Tran FOR RESPONDENT
SOLICITORS OF RECORD:
987, Côté Street (Me Chiu)
Montreal, Quebec FOR APPLICANT
3465, Côte-des-Neiges (Me Fernandes) Montreal, Quebec FOR APPLICANT
Dept. of Justice
Montreal, Quebec FOR RESPONDENT