Date: 19981005
Docket: IMM-115-98
BETWEEN:
NIAN SHEN SONG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of the decision of a Visa Officer refusing the Applicant"s application for a student authorization following interviews with the Applicant and his mother and step-father.
FACTS
[2] The Applicant"s application was assigned to a Visa Officer, Norman Morgan, and an interview was scheduled.
[3] Following the Applicant"s interview, the Visa Officer met with the Applicant"s mother and step-father. At this meeting, he explained the presumption under subsection 8(2) of the Immigration Act1 (the Act) which states:
| Every person seeking to come into Canada shall be presumed to be an immigrant until that person satisfies the immigration officer examining him or the adjudicator presiding at his inquiry that he is not an immigrant. |
Quiconque cherche à entrer au Canada est présumé être immigrant tant qu'il n'a pas convaincu du contraire l'agent d'immigration qui l'interroge ou l'arbitre qui mène l'enquête. |
[4] The Visa Officer advised the Applicant"s mother and step-father that, as part of his review, he would discuss the case with his colleague, Wendy Bazett, the Visa Officer in charge of processing most of the student applications at the Canadian Embassy in Beijing.
[5] The Visa Officer refused the Applicant"s application because he was not satisfied that the Applicant was not an intended immigrant to Canada.
ISSUES
| a) Did the Visa Officer erroneously apply the presumption under subsection 8(2) of the Immigration Act? |
| b) Did the Visa Officer deny the Applicant procedural fairness by not informing him of his various concerns at the interview? |
| c) Did the Visa Officer deny the Applicant procedural fairness by consulting with his colleague about the Applicant"s case? |
| d) Do the facts surrounding the Applicant"s application create a reasonable inference of bias? |
ANALYSIS
a) Applying the presumption under subsection 8(2)
[6] The Applicant submits that the Visa Officer wrongly assessed the Applicant under the framework of subsection 8(2).
[7] Subsection 8(2) of the Act states:
| Every person seeking to come into Canada shall be presumed to be an immigrant until that person satisfies the immigration officer examining him or the adjudicator presiding at this inquiry that he is not an immigrant. |
Quiconque cherche à entrer au Canada est présumé être immigrant tant qu'il n'a pas convaincu du contraire l'agent d'immigration qui l'interroge ou l'arbitre qui mène l'enquête. |
[8] In Grewal,2 the Federal Court of Appeal made it clear that the presumption under subsection 8(2) does not apply when assessing an application for a student authorization. Heald J. stated:
| [...], it is my conclusion that the Immigration Act envisages a two-stage procedure, and that, after compliance with both stages, a visitor may be granted entry to Canada. Stage one is performed outside of Canada by visa officers. Stage two is performed inside of Canada at a port of entry, for the most part. Acceptance of a visitor in stage one confers upon that individual a certain status including certain rights of appeal not otherwise available. Stage two involves "Examinations" by "immigration officers". When subsection 8(2) is considered in the light of this two-stage procedure, I have no difficulty in concluding that the presumption set out therein applies only to the examinations by an immigration officer at a port of entry as set out in sections 11 to 18. Had the legislators intended to extend this presumption to visa officers, it would have been a relatively simple matter to do so by the addition of a very few words making it clear that visa officers must have regard to the presumption of immigrant status when making their assessments and grants of valid visas pursuant to sections 9 and 10.3 (my emphasis). |
[9] In Grewal, the Visa Officer who refused the 11 year old applicant for a student authorization cited subsection 8(2) in both his refusal letter and in his affidavit in the proceedings before the Trial Division.
[10] In the present case, under cross-examination, the Visa Officer affirmed that he did not apply the presumption under subsection 8(2) of the Act and that he had refused the Applicant pursuant to subsection 9(1.2) only. Further, his refusal letter to the Applicant correctly stated and applied the test in subsection 9(1.2).
[11] While it is true that during the interview with the Applicant"s mother and step-father, the Visa Officer wrongly cited the presumption in subsection 8(2), a careful review of the record shows that the Visa Officer correctly applied subsection 9(1.2).
[12] Subsection 9(1.2) states:
| A person who makes an application for a visitor's visa shall satisfy a visa officer that the person is not an immigrant. |
La personne qui demande un visa de visiteur doit convaincre l'agent des visas qu'elle n'est pas un immigrant. |
[13] Subsection 9(1.2) requires that the Visa Officer be satisfied that the applicant is not an immigrant but rather is a bona fide student seeking to come to Canada to study for a temporary period.
[14] The Visa Officer"s reasons for refusing the application are clearly stated in the Visa Officer"s affidavit. In his opinion, it did not seem reasonable that Mr. Song would give up his job in China in order to spend a year in Canada studying towards a second Bachelor"s degree, especially in a subject that was not his specialization. He found the general quality of Mr. Song"s answers to his questions to be weak and unconvincing. From what his step-father had told him at their interview, it appeared that they had gone to quite extraordinary lengths to assist their son with respect to his application for a visitor visa. Although, in other circumstances, this fact may not necessarily have been a concern, in the circumstances of this case, including the quality of Mr. Song"s answers to his questions, the Visa Officer doubted that such a high degree of interest and involvement was compatible with Mr. Song"s claimed intention of coming to Canada for a temporary period only. He further noted that Mr. Song appeared to have few ties to China. The greater economic opportunities and academic freedom available in Canada would, in his view, be a strong incentive for him to remain in Canada and not return to China. Mr. Song failed to satisfy Mr. Morgan, on the totality of the evidence, that he was not an intending immigrant to Canada.4
[15] These reasons, in my opinion, are compatible with the approach to be taken in assessing a student authorization. I find that the inferences are reasonable and that Mr. Morgan"s conclusions do not demonstrate that he applied the wrong test.
[16] Further, I am convinced, based on the refusal letter, which employs the same language as subsection 9(1.2), that the Visa Officer did not apply the presumption under subsection 8(2).
| b) Did the Visa Officer deny the Applicant procedural fairness by not informing him of his various concerns at the interview? |
[17] A careful reading of the record clearly shows that the Applicant was given every opportunity at the interview to disabuse the Visa Officer of all his concerns. Therefore, I find this issue to be moot.
| c) Did the Visa Officer deny the Applicant procedural fairness by consulting with his colleague about the Applicant"s case? |
[18] The Applicant submits that the Visa Officer fettered his discretion by consulting with another officer about the Applicant"s case and then making a joint decision with her to refuse the same.
[19] The Respondent submits that the Visa Officer merely advised Wendy Bazett of his conclusions, and that Ms. Bazett agreed with them but emphasized that it was his case and his decision to make. I agree with the Respondent. Again, the records show that while the Visa Officer informed Ms. Bazett of his conclusions and Ms. Bazett agreed, it was the Visa Officer who actually made the decision. I do not find any evidence of a joint decision.
| d) Do the facts surrounding the Applicant"s application create a reasonable inference of bias? |
[20] The Applicant finally submits that the circumstances surrounding his application give rise to a reasonable inference of bias which, he claims, prevented him from receiving a fair assessment by the Canadian Embassy in Beijing.
[21] Once again, this is purely speculative and there is no evidence to support this assertion.
CONCLUSION
[22] The application for judicial review is dismissed.
[23] Since Counsel for the Applicant has requested an opportunity to make representations as to whether or not a question should be certified after the Reasons are issued, a final Order will be entered at a later date. Counsel for the Applicant shall have 7 days, after the issuing of these reasons, to submit in writing, representations on a question to be certified. If certification of a question is sought, Counsel for the Respondent may respond in writing within 7 days. The Applicant will then have 7 days to reply.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
October 5, 1998.
__________________2 Grewal v. Canada (Minister of Employment and Immigration) [1990] 1 F.C. 192 (C.A.).
4 Respondent"s Record, paragraph 10 of Mr. Morgan"s affidavit.