Date: 20011102
Docket: IMM-3299-00
Neutral citation: 2001 FCT 1189
BETWEEN:
RONG XU
Applicant
AND:
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of the decision made by Jean-Frances Lesage, Visa Officer at the Canadian embassy in Beijing, People's Republic of China, dated June 2, 2000, refusing the applicant's application for a student authorization.
[2] The applicant is seeking to have the Visa Officer's decision set aside and returned for redetermination by a different officer.
[3] The applicant is a resident of China. She graduated from XAC No. 1 High School in July, 1997. She worked as a salesperson for China Pacific Insurance Co. from 1997 until 1998. At the time of her application she was studying accountant computer applications at Shaanxi Economy Management Administration College.
[4] The applicant attached a "Study Plan in Canada" to her application. It indicates that her intention was to enter a half-year intensive English program at the University of British Columbia ("UBC") and then to pursue a three-year degree in Computer Science, also at UBC. The applicant also noted some of the reasons why she sought to be educated in Canada and stated that she would return to China upon completion of her studies. Nevertheless, the application only revealed admission into a three months English program at UBC.
[5] On June 2, 2000, the Visa Officer refused the applicant's request for a student authorization.
[6] The Visa Officer was not convinced that the applicant's intentions were clearly "bona fide and temporary in nature". The Visa Officer was not persuaded that the applicant would leave Canada at the expiry of her student authorization. The applicant was informed of this decision by letter dated June 2, 2000.
[7] The following reasons appear in the CAIPS notes at page 19 of the Tribunal's Record:
"APPLICANT INDICATES THAT SHE WISHES TO STUDY 3.5 YEARS BUT SHE IS NOT ACCEPTED IN UBC OTHER PROGRAM AFTER 3 MONTHS ESL. I AM NOT SATISFIED THAT APPLICANT IS FOLLOWING A LOGICAL. IT IS NOT LOGICAL TO INVEST SO MUCH FAMILY FUNDS IN A 3 MONTHS STUDY PROJECT THAT WON'T NECESSERY [sic] LEAD TO ACCEPTANCE IN A CANADIAN UNIVERSITY UNLESS APPLICANT IS SIMPLY LOOKING FOR PERMANENT SETTLEMENT IN CANADA. REFUSED."
[8] The applicant submits that the Visa Officer made an erroneous finding of fact when she referred to a three months study program as an illogical investment when referring to a three month study program and having funds available of $150,000; that there is no evidence the applicant intends to remain in Canada illegally.
[9] On the information submitted, the Visa Officer was not satisfied that if this applicant was allowed to enter Canada she would leave upon the expiry of her student authorization.
[10] It should be remembered that the onus rests with the applicant to overcome the presumption that she was not a visitor and must satisfy the Visa Officer accordingly.
[11] Here we have an individual who is applying for a 3 ½ year visa but only has proof of acceptance at UBC for a three months course in English as a second language. There was no evidence that she would be accepted at UBC for further studies and it is not unreasonable for a visa officer to have denied a 3 ½ year student authorization as requested. Subsection 15(1) of the Immigration Regulations, 1978 SOR/78-172, as amended, reads as follows:
| 15.(1) Every application for a student authorization shall be accompanied by (a) a letter from a university, college or other institution referred to in paragraph 10(a) or (b) of the Act accepting the applicant to attend or to take any specified course at the university, college or other institution. |
15.(1) Toute demande présentée afin d'obtenir une autorisation d'étude doit être accompagnée (a) d'une lettre d'une université, d'un collège ou de toute autre institution visés aux alinéas 10a) ou b) de la Loi qui a accepté le requérant, indiquant qu'il fréquentera l'institution en question ou y suivra un cours précis. |
|
[12] In my view, this section cannot be interpreted to mean that any legitimate letter of acceptance will entitle an applicant to a student authorization for any length of time requested, in complete disregard to the study period.
[13] As Mr. Justice Gibson wrote in Wong (Litigation Guardian of) v. Canada (Minister of Citizenship and Immigration) (1997), 39 Imm. L.R. (2d) 78:
"It is in the nature of student visas that they are issued for limited periods of time. If the minor applicant, together with his family, concluded in the future that he wished to continue to pursue his studies in Canada, a renewal of his visa or a new visa would be required. It would be open to the Respondent to examine the totality of the circumstances each time that the minor applicant applied for renewal or a new visa."
[14] I am prepared to concede that the statements in the CAIPS notes with respect to family wishing to invest so much for a three months study program is somewhat gratuitous but it is not sufficient to vitiate the exercise of discretion enjoyed by the Visa Officer.
[15] I am not convinced that there was a breach of the duty of fairness simply because the Visa officer did not communicate her concerns to the applicant. There is no obligation or duty on the part of the Visa Officer to put before an applicant her concerns. The decision is clear; there was no reliance on extrinsic evidence and the officer's decision relying on the facts put to her was reasonably open to her in the circumstances.
[16] The application is dismissed.
JUDGE
OTTAWA, Ontario
November 2, 2001