BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT
Pinard J.
[1] This is an application for judicial review of a decision of a visa officer (the “Officer”), dated April 18, 2006, refusing the applicant’s application for a study permit because he had not satisfied the Officer that he was a genuine visitor who would leave Canada by the end of the authorized period of stay.
* * * * * * * *
[2] Ren Kun Zuo, the applicant, is a citizen of the People’s Republic of China (PRC). On March 24, 2006, he submitted an application for a study permit intending to study English for a year in Vancouver. He hoped to apply to a graduate program at the University of British Columbia (UBC) after completing a year of intensive language study.
[3] The applicant’s father is the Chief Judge of the Jimo People’s Court in Shandong Province in the PRC. According to the affidavits of the applicant and his father, the family has a long tradition of public service. The applicant’s father expects him to join the public service in China and the applicant similarly holds this expectation for himself.
[4] The applicant’s family enjoys a high standard of living in China. The applicant’s parents saved over $80,000 and were willing to use the savings in order for their son to receive education abroad.
[5] The applicant completed a degree in Sports Journalism at Wuhan Physical Education College in June 2006. During his final semester at college, he applied for a study permit and stated that his intention was to study English at the UBC English Language Institute in Vancouver.
[6] Included with the application was a study plan (the “Study Plan”). The Study Plan discusses the applicant’s interest in sports journalism and his desire to further his knowledge about this field by studying overseas. In it he states that this will require him to improve his English and that he hopes to be able to apply to a graduate program at the School of Journalism or the Saunder School of Business at UBC after having spent a year improving his English.
* * * * * * * *
[7] The relevant provisions of the Immigration and Refugee Protection Act, R.S.C. 2001, c. 27, (the Act) follow:
|
20. (1) Every foreign national, other than a foreign national referred to in section 19, who seeks to enter or remain in Canada must establish, … (b) to become a temporary resident, that they hold the visa or other document required under the regulations and will leave Canada by the end of the period authorized for their stay. … 22. (1) A foreign national becomes a temporary resident if an officer is satisfied that the foreign national has applied for that status, has met the obligations set out in paragraph 20(1)(b) and is not inadmissible. (2) An intention by a foreign national to become a permanent resident does not preclude them from becoming a temporary resident if the officer is satisfied that they will leave Canada by the end of the period authorized for their stay.
|
20. (1) L’étranger non visé à l’article 19 qui cherche à entrer au Canada ou à y séjourner est tenu de prouver : … b) pour devenir un résident temporaire, qu’il détient les visa ou autres documents requis par règlement et aura quitté le Canada à la fin de la période de séjour autorisée. …
22. (1) Devient résident temporaire l’étranger dont l’agent constate qu’il a demandé ce statut, s’est déchargé des obligations prévues à l’alinéa 20(1)b) et n’est pas interdit de territoire. (2) L’intention qu’il a de s’établir au Canada n’empêche pas l’étranger de devenir résident temporaire sur preuve qu’il aura quitté le Canada à la fin de la période de séjour autorisée.
|
[8] The relevant provisions of the Immigration and Refugee Protection Regulations, SOR/2002-227, (the Regulations) are as follows:
|
216. (1) Subject to subsections (2) and (3), an officer shall issue a study permit to a foreign national if, following an examination, it is established that the foreign national (a) … (b) will leave Canada by the end of the period authorized for their stay under Division 2 of Part 9; … 219. (1) Subject to subsection (2), a study permit shall not be issued to a foreign national unless they have written documentation from the educational institution at which they intend to study that states that they have been accepted to study there.
|
216. (1) Sous réserve des paragraphes (2) et (3), l’agent délivre un permis d’études à l’étranger si, à l’issue d’un contrôle, les éléments suivants sont établis : a) … b) il quittera le Canada à la fin de la période de séjour qui lui est applicable au titre de la section 2 de la partie 9; … 219. (1) Le permis d’études ne peut être délivré à l’étranger que si celui-ci produit une attestation écrite de son acceptation émanant de l’établissement d’enseignement où il a l’intention d’étudier.
|
* * * * * * * *
[9] The Officer in a decision dated April 18, 2006 held that the applicant failed to meet the requirement under the Act that requires persons on study permits to intend only temporary residency in Canada.
[10] The Officer swore an affidavit confirming the accuracy and truthfulness of her Computer Assisted Immigration Processing System (CAIPS) notes. The CAIPS notes read as follows:
APPLT IS CURRENTLY ATTENDING LAST SEMESTER OF 4-YEAR BACHELOR DEGREE UNIVERSITY PROGRAM IN CHINA. ACCEPTED TO ONE-YEAR ENGLISH LANGUAGE PROGRAM IN CDA. IN HIS STUDY PLAN APPLT STATES THAT HE WISHES TO SPECIALIZE IN SPOTS (sic) JOURNALISM AND DO MBA IN CDA. HOWEVER, THERE IS NO LTR OF CONDITIONAL ACCEPTANCE TO POST-GRADUATE PROGRAM ON FILE. THERE IS ALSO NO GUARANTY THAT APPLT WILL BE ADMITTED TO POST-GRADUATE PROGRAM IN A UNIV IN CDA IN THE FUTURE. FURTHERMORE, THERE ARE ENGLISH LANGUAGE TRAINING PROGRAMS TAUGHT BY NATIVE ENGLISH SPEAKING TEACHERS WIDELY AVAILABLE NOW IN CHINA FOR MUCH LOWER COST.
I AM NOT SATISFIED THAT AN INVESTMENT OF THIS MAGNITUDE IS LOGICAL. GIVEN ECONOMIC OPPORTUNITIES IN CDA AND HIGHER LIVING STANDARDS, THERE IS A HIGH INCENTIVE FOR THE APPLT TO SEEK TO REMAIN IN CDA. I AM NOT SATISFIED THAT APPLT IS NOT SEEKING TRV/STUDY PERMIT TO FACILITATE ACCESS TO CDA AND RE-SETTLEMENT THERE, BY ANY MEANS AVAILABLE.
* * * * * * * *
[11] It is trite law that the onus is on the applicant to provide a visa officer with all of the relevant information to satisfy the officer that the applicant meets the statutory requirements of the Act and the Regulations. The requirement set out in paragraph 216(1)(b) of the Regulations is that an applicant must establish that he or she will leave Canada by the end of the period authorized for their stay. The Officer denied the applicant a study permit on the grounds that this requirement was not met.
[12] Although the burden rests with the applicant, the Officer’s determination that the applicant was not a genuine visitor must be based on some evidence, otherwise it will be patently unreasonable. According to the reasons in the CAIPS notes, the Officer’s determination that the applicant did not establish that he was a genuine visitor was based on four findings of fact:
1) the fact that the applicant had not provided a conditional letter of acceptance to a graduate program in Canada;
2) the existence of English language programs in China appropriate for the applicant’s needs;
3) it was illogical for the applicant’s parents to spend a significant amount of their savings for their son to study English abroad; and,
4) there was a high incentive for the applicant to stay in Canada because of the high standard of living and economic opportunities.
A. Conditional acceptance letter to a graduate program
[13] The CAIPS notes state the following:
. . . IN HIS STUDY PLAN APPLT STATES THAT HE WISHES TO SPECIALIZE IN SPOTS (sic) JOURNALISM AND DO MBA IN CDA. HOWEVER, THERE IS NO LTR OF CONDITIONAL ACCEPTANCE TO POST-GRADUATE PROGRAM ON FILE. THERE IS ALSO NO GUARANTY THAT APPLT WILL BE ADMITTED TO POST- GRADUATE PROGRAM IN A UNIV IN CDA IN THE FUTURE.
[14] The applicant submits that the Officer should not have considered the absence of the conditional acceptance letter in coming to her determination since the applicant had already met the requirement in subsection 219(1) to provide a letter of acceptance by providing a letter from the UBC Language Institute.
[15] It is clear from the Officer’s notes that she did not deny the applicant a study permit because she found that the requirement in subsection 219(1) was not met. Rather, the Officer was concerned with the letter of conditional acceptance because she thought such a letter would support the applicant’s Study Plan, and, therefore, the absence of such a letter undermined the reasonableness of that plan.
[16] The respondent referred to the Federal Court of Appeal’s decision in Wong (Litigation Guardian) v. Minister of Citizenship and Immigration, [1999] F.C.J. No. 1049 (QL), for the proposition that long-term objectives are a valid and relevant consideration in determining whether a study permit applicant is “a genuine visitor within the meaning of subsection 2(1) of the Act, i.e. a person who seeks to come into Canada for a temporary purpose.”
[17] The Federal Court of Appeal in Wong held that:
[13] We firmly believe the visa officer is entitled, even at the moment of the first application for such visa, to examine the totality of the circumstances, including the long term goal of the applicant. Such goal is a relevant consideration, but not necessarily determinative, to be weighed with all the other facts and factors in determining whether or not an applicant is a visitor within the terms of the definition provided in the Act.
[18] The finding in Wong makes it clear that visa officers are entitled to consider the long term goals of an applicant; however, in Wong the long term objective that the visa officer considered was the hope of the applicant’s mother that the applicant would study in Canada from grade 5 through to university. The visa officer in that case found that if the applicant stayed in Canada from grade 5 through to university then he would no longer have ties with Hong Kong and would likely want to stay in Canada permanently since he would have stronger ties to Canada than to Hong Kong. In Wong, the long term goal of the applicant’s mother was directly related to whether the applicant was likely to leave Canada at the end of the authorized period of stay. In this case, there is no such link. The applicant’s long term goal of pursuing graduate studies in Canada does not suggest, one way or the other, whether the applicant is likely to leave Canada after the authorized period of stay. The Officer was entitled to look at the long term goals of the applicant; however, the Officer’s conclusion that the applicant might stay in Canada past the authorized period of stay because she considered his goal of pursuing graduate studies to be unrealistic is illogical and unfounded.
[19] The respondent also submits that proof of the applicant’s level of proficiency in the English language was relevant to the assessment of the reasonableness of his Study Plan. Since there is no indication in the Officer’s decision or the CAIPS notes that this informed her decision, I see no reason to deal with this point.
B. Existence of suitable English language programs in China
[20] The wording in the CAIPS notes suggests that the Officer felt that studying English in Canada was not necessary for the applicant’s goals, as stated in his Study Plan:
IN HIS STUDY PLAN APPLT STATES THAT HE WISHES TO SPECIALIZE IN SPOTS (sic) JOURNALISM AND DO MBA IN CDA. HOWEVER, THERE IS NO LTR OF CONDITIONAL ACCEPTANCE TO POST-GRADUATE PROGRAM ON FILE. THERE IS ALSO NO GUARANTY THAT APPLT WILL BE ADMITTED TO POST-GRADUATE PROGRAM IN A UNIV IN CDA IN THE FUTURE. FURTHERMORE, THERE ARE ENGLISH LANGUAGE TRAINING PROGRAMS TAUGHT BY NATIVE ENGLISH SPEAKING TEACHERS WIDELY AVAILABLE NOW IN CHINA FOR MUCH LOWER COST.
[21] In her affidavit, the Officer states that “I was not satisfied on the materials in the Application that the ESL Course was necessary or logical for the Applicant’s Study Goal as set out in his Study Plan.” The Officer’s conclusion appears to be that the course is not necessary for the applicant’s stated goals and that a less costly course in China would be sufficient to meet his needs.
[22] The respondent submits that it is reasonable for visa officers to consider the availability of similar, less costly programs elsewhere. The respondent relies on the case of Tran v. Minister of Citizenship and Immigration, 2006 FC 1377, where my colleague Justice Shore held that it was not an error for the visa officer to consider the availability of similar programs, in that case culinary management programs, elsewhere at a lower cost. In Yue v. Minister of Citizenship and Immigration, 2005 FC 289, Justice Phelan held that it was not unreasonable for the visa officer to question the applicant as to her choice of an expensive English language training course in Canada when there were ESL courses available in China.
[23] I agree that it is not unreasonable for a visa officer to consider the availability of similar programs offered elsewhere at a lower cost; however, this fact will not necessarily be determinative. If this factor were determinative then many, if not most, study permit applications could be denied on this ground. Moreover, people choosing educational programs may base their choices on more than the price of a program. The availability of similar programs elsewhere at a lower cost is simply one factor to be considered by a visa officer in assessing an applicant’s motives for applying for a study permit.
C. Logic of the investment
[24] The Officer also found that the applicant may not leave Canada before the end of the authorized period of stay because she believed that the cost of the English language program at the UBC Language Institute was not a logical investment.
[25] According to the Officer’s reasoning, it is illogical for foreign students to come to Canada to enroll in English language programs because they can generally find adequate English language instruction for much lower costs in their home countries. I cannot agree with this reasoning. First, it does not recognize the obvious fact that learning English in Vancouver, where English is the language most often spoken, provides a comprehensive environment for learning English. Such an environment simply cannot be provided in China even if there are English language programs taught by native speakers. Second, assessments about the value of English language training for a particular applicant are not for the visa officer to make. As Justice Rouleau expressed in Liu v. Minister of Citizenship and Immigration, 2001 FCT 1262:
[16] To suggest that the proposed plan of studies is not justified by the cost of the proposed plan is almost absurd. It is not to the Visa Officer to determine how much money should be spent in improving one's lot in life. This is purely a subjective and irrational observation.
[26] The applicant’s father expressed in his affidavit his regrets about being unable to communicate in English when he participates in international exchanges for work and expressed his view that there is great value in the ability to communicate in English. The applicant’s father clearly believes that the ability to work in English is a valuable asset. The visa officer’s determination that it would be an illogical decision for the applicant’s parents to spend approximately $30,000 of their $80,000 savings on their son’s education is patently unreasonable. Furthermore, her conclusion on this matter is not relevant to the issue she needed to determine, namely whether there is evidence that the applicant would stay past the authorized period.
D. High standard of living and economic opportunities are incentives for the applicant to stay
[27] Similarly, the Officer’s conclusion that the applicant would not leave Canada before the authorized period given the economic opportunities and the high standard of living in Canada is also patently unreasonable. The applicant’s family is well-off in China and has a high standard of living. The applicant has an education, as well as a family with significant ties in local government. The applicant does not lack support or opportunities in China. This Court has in a number of cases considered the status of an applicant’s family in assessing whether an applicant will leave Canada before the authorized period of stay is over, such that if an applicant’s family is well-established and well-off then the applicant is more likely to leave Canada before the end of the authorized period of stay (see, for example, Guo v. Minister of Citizenship and Immigration, 2001 FCT 1353 and Zhang v. Minister of Citizenship and Immigration, 2003 FC 1493). This is based on the assumption that that there is less incentive for applicants with a high standard of living in their home countries to seek to establish themselves in Canada. Here the Officer determined that there was a risk that the applicant may try to stay in Canada past the authorized period of stay because he is attracted by the high standard of living in Canada without considering the standard of living that the applicant actually enjoyed in China.
E. Ties to China
[28] The respondent submits that a decision-maker does not need to refer to all evidence considered and therefore the fact that the decision does not mention the applicant’s ties to China does not mean that she did not consider it. The respondent submits that the Officer in her affidavit stated that she did consider the applicant’s ties to China and weighed them against other factors in coming to her conclusion; however, there is no indication in the CAIPS notes that the Officer considered the applicant’s ties to China in making her decision.
[29] In Zhang, supra, Mr. Justice Blais allowed a judicial review of a decision denying a study visa on the basis that the visa officer failed to make a serious attempt to determine the strength of the ties the applicant had to China. At paragraphs 21 and 22, he wrote:
[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.
[30] The case at hand is similar to Zhang. The applicant referred in his application to his ties in China. He stated that he has a girlfriend in China and explained that his future plans and goals related to promoting basketball in his hometown of Qingdao and revolutionizing sports journalism in China. He also explained that his parents expected him to follow in their footsteps and become a civil servant.
[31] In conclusion, I find that the following errors taken together make the Officer’s decision patently unreasonable, given the particular circumstances of this case:
- the Officer’s negative inference from the fact that the applicant did not provide a letter of conditional acceptance to a graduate program at UBC;
- the Officer’s determination that the applicant’s Study Plan was illogical;
- the Officer’s determination that there was a risk that the applicant would over stay in Canada because of the economic opportunities and high standard of living in Canada; and,
- the Officer’s failure to consider the applicant’s ties to China.
[32] This is sufficient to warrant the intervention of the Court and, therefore, the application for judicial review is allowed and the matter is sent back to a different visa officer for reconsideration in accordance with these Reasons.
Ottawa, Ontario
January 30, 2007
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3600-06
STYLE OF CAUSE: REN KUN ZUO v. THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: January 18, 2007
REASONS FOR JUDGMENT: Pinard J.
DATED: January 30, 2007
APPEARANCES:
Mr. Andrew Wlodyka
Ms. Bonnie Teng FOR THE APPLICANT
Ms. Marjan Double FOR THE RESPONDENT
SOLICITORS OF RECORD:
LOH & COMPANY FOR THE APPLICANT
Vancouver, British Columbia
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada