Date: 19980528
______________________________________________________________________________
Docket: IMM-2751-97
BETWEEN:
SIDDARTH MITTAL by his
Litigation Guardian ANUJ MITTAL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
_____________________________________________________________________________
Docket: IMM-2752-97
BETWEEN:
NIKUNJ MITTAL by his
Litigation Guardian ANUJ MITTAL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
_____________________________________________________________________________
REASONS FOR ORDER
LUTFY J.:
[1] This case is about a visa officer's refusal to issue student authorizations to young students wishing to attend primary and secondary schooling in Canada.
[2] Citizenship and Immigration Canada (CIC) has published Processing Student Authorizations1 ("the Guideline") for the use of officers in assessing applications for student visas. Guidelines, of course, must be used with care. They can serve as " 3general policy3 or 3rough rules of thumb3 " to structure the discretion conferred upon the visa officer.2 Guidelines, however, should not fetter the visa officer's exercise of discretion by crystallizing into binding and conclusive rules.3 It is of interest, in this application for judicial review, to note the extent to which the Guideline reflects the spirit of subsection 3(e) of the Immigration Act4 in highlighting the benefits foreign students bring to Canada. Section 3.5.1 of the Guideline sets out factors underlying the assessment of student bona fides:
| There are two major factors underlying the assessment of student bona fides. |
| First, foreign students have not represented a control or enforcement problem for Canada. Second, there is a new and growing realization in Canada that foreign students yield significant benefits for our economy. |
| In administering its foreign student program, CIC must support the policies of other federal government departments, provinces and educational institutions who are anxious to capitalize on the potential which foreign academic talent represents. |
| In establishing whether a foreign student is a bona fide visitor, officers should be guided by the knowledge that foreign students educated in Canada provide needed links for trade and investment, and that they are an excellent source of future skilled immigrants. It is not uncommon for highly qualified students, particularly those at the graduate level, to work for a year after completing their course of studies and apply for permanent residence status through visa offices in the USA. CIC views this development as a positive outcome. |
| Foreign students have the burden of proving to the satisfaction of officers that they are bona fide visitors. However, in these cases, the general question of bona fides is not so much whether the applicant is a prospective immigrant, but whether the applicant is a prospective illegal immigrant. [Emphasis added.] |
Background and the visa officer's decision
[3] The applicants, brothers who are now fourteen and twelve, are citizens of India and live in New Delhi with their parents. In March 1997, they applied for temporary entry in Canada as students for the 1997-98 academic year. In May 1997, a visa officer in the Canadian High Commission in New Delhi denied their applications.
[4] The visa officer decided that the applicants did not have sufficient funds for their tuition fees, their maintenance while in Canada and their transportation costs as required by paragraph 15(1)(b) of the Immigration Regulations.5 She also concluded that the applicants had insufficient "income and/or assets to justify a trip of this nature" and that they did not provide credible reasons for attending school in Canada.
[5] In her affidavit filed in response to these applications for judicial review, the visa officer explained her determination that the applicants are not genuine visitors and her view that they were not seeking to enter Canada for a temporary purpose:
| First of all, despite their claims to considerable affluence, the Applicant's parents' income tax returns disclosed that the Applicant's parents had very low incomes, of less than $5,000.00 per year in Canadian funds. There was no other evidence which satisfied me that the Mittals were of greater means. I did not believe that persons of such apparently limited income would incur the expense of sending their children to Canada simply to attend elementary school. Secondly, the reason given for sending the Applicant to Canada was stated to be the quality of education and the crowded classrooms in India. The Applicant could, however, receive an excellent education at a private school in India, and avoid crowded classrooms, at considerably less expense and inconvenience. |
The visa officer's two reasons concerning the parents' insufficient income and the availability of less expensive private schooling in India will be considered in turn.
The visa officer's finding concerning insufficient funds
[6] The applicants' material concerning the financing of their one-year academic stay in Canada was straightforward. Letters of acceptance for courses in grades 5 and 8 from their private school in Toronto establish partial payment of the $7,500 tuition fee for each student. A Canadian chartered bank confirmed that it held $10,000 in mutual fund investments for each child. The applicants' uncle and aunt who reside in Scarborough, Ontario undertook to provide all material support during their stay in Canada. The applicants have previously visited these relatives in Canada and would live with them while attending school here. The same chartered bank confirmed that it employed the uncle as an Account Manager-Commercial Banking at an annual salary of $43,300, not including bonuses. (The uncle deposed that the applicants also had term deposits with the chartered bank but the record discloses that these funds are in Indian rupees, not Canadian dollars.)
[7] Section 2.7.3 of the Guideline provides that:
| Section R15.(1)(b)(i) clearly states only that the onus is on the applicant to demonstrate that he/she has sufficient financial resources available to him/her for payment of tuition fees once in Canada. Tuition fees vary between jurisdictions, and may be as high as $10,000. Student authorizations may not, therefore, be refused to minors who do not present proof of payment of tuition fees. A student authorization may not, however, be issued unless the applicant provides a letter of acceptance from the appropriate educational authorities. The onus, therefore, is on the provinces, and not on CIC officers, to ensure their school boards and divisions include provisions for the payment of fees as a pre-condition to the issuance of acceptance letters. |
Section 4.11.1 of the Guideline suggests that student authorizations for primary and secondary schooling usually be issued on a year-to-year basis.
[8] This visa officer received other information concerning the business and land investments of the applicants' father to establish the family's roots in India. On the basis of her review of the parents' financial information, the visa officer indicated in her CAIPS notes that this data was not "indicative of a family who can afford to send two sons to a school" in Canada.
[9] In my view, the family's net worth, even if the visa officer were correct in concluding that it was substantially less than that asserted by the parents, was not relevant to her assessment of the applicants' ability to meet the criteria of paragraph 15(1)(b) of the Immigration Regulations. The record clearly establishes that the applicants had the "sufficient financial resources" for the one-year period for which the student authorizations were sought. The visa officer's contrary conclusion constitutes a reviewable erroneous finding of fact in that it was made without regard to the material before her.
The visa officer's finding concerning no credible reasons for studying in Canada
[10] Subsection 9(1.2) of the Immigration Act6 provides that:
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.
This provision requires that the visa officer be satisfied that the applicants were genuine students seeking to enter Canada for a temporary purpose. She found otherwise.
[11] After reviewing the material, the visa officer concluded that the parents' expressed desire to afford the applicants quality education without crowded classrooms could be realized with "an excellent education in a private school in India ... at considerably less expense and inconvenience". Her finding of there being no credible reasons for the applicants studying in Canada is, in the words of the respondent's counsel, rationally connected to subsection 9(1.2) of the Act. She adds further that the applicants have the burden of establishing that their stay in Canada would be temporary.
[12] There are at least two serious concerns with the visa officer's finding concerning the absence of credible reasons for studying in Canada. Firstly, the record discloses no information concerning the availability and the quality of private schooling in India. Secondly, even if the visa officer had access to such information and she were correct with respect to India's private school system, she should have provided the applicants' family with an opportunity to address her concerns which are based on information not proffered by the applicants. Such a course of action is suggested in the Guideline in section 2.7.4 dealing with the bona fides of minor students:
| If officers wish to take into account outside information, particularly where that information leads to concerns/doubts about the applicant's bona fides, they must be able to show that the applicant was made aware of the information taken into account and/or the concerns and was given an opportunity to address those concerns. |
This directive properly, in my view, assigns to the visa officer the same duty of fairness in the assessment of student authorizations which the Court of Appeal imposed in reviewing applications for permanent residence.7 In this case, the visa officer chose to dispose of the applications without communicating with the applicants' family through an interview or otherwise concerning the information she obtained with respect to the quality and cost of private schooling in India.
[13] The reasons of my colleague Gibson J. in Wong (Litigation Guardian) v. Canada (Minister of Citizenship and Immigration)8 are of interest in the context of the conclusion I have reached concerning the visa officer's finding that the applicants have no credible reasons for studying in Canada. While a question was certified in Wong and the matter is now pending before the Court of Appeal, Justice Gibson's views concerning the temporary purpose inherent in a student's visa issued for one year are worthy of repetition:
Such an application is for permission for a clearly "temporary purpose". 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. If, at any stage during the course of the minor applicant's education it became apparent that the minor applicant's ties to Hong Kong had so deteriorated as to demonstrate that they were insufficient to ensure his return there, then refusal of the request for renewal or for a new visa would clearly be justified.9
This approach is consistent with the statute and its regulations. It also reinforces the directive to visa officers that in applying subsection 9(1.2) of the Act10 "... the general question of bona fides is not so much whether the applicant is a prospective immigrant, but whether the applicant is a prospective illegal immigrant".11
Conclusion
[14] For these reasons, these applications for judicial review will be granted and the matters referred for redetermination by another visa officer. I assume that every effort will be made to deal with these cases expeditiously. Neither party requested the certification of a serious question.
Ottawa, Ontario Judge
May 28, 1998
__________________1 Employment and Immigration Canada, Immigration Manual (PE) Port of Entry (Ottawa: Employment and Immigration Canada, 1994-). The extracts referred to in these reasons for order are from the May 1997 revision of the Guideline.
2 Yhap v. Canada (Minister of Employment and Immigration), [1990] 1 F.C. 722 (F.C.T.D.) at 740.
3 Dawkins v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 639 (F.C.T.D.) at 649.
4 R.S.C. 1985, c. I-2. Subsection 3(e ) provides:
| 3. It is hereby declared that Canadian immigration policy and the rules and regulations made under this Act shall be designed and administered in such a manner as to promote the domestic and international interests of Canada recognizing the need ...(e) to facilitate the entry of visitors into Canada for the purpose of fostering trade and commerce, tourism, cultural and scientific activities and international understanding; ... | 3. La politique canadienne d'immigration ainsi que les règles et règlements pris en vertu de la présente loi visent, dans leur conception et leur mise en oeuvre, à promouvoir les intérêts du pays sur les plans intérieur et international et reconnaissent la nécessité :...(e) de faciliter le séjour au Canada de visiteurs en vue de promouvoir le commerce, le tourisme, les activités scientifiques et culturelles ainsi que la compréhension internationale; ... |
7 See Muliadi v. Canada (Minister of Employment and Immigration), [1986] 2 F.C. 205 (C.A.) and Shah v. Canada (Minister of Employment and Immigration (1994), 29 Imm.L.R. (2d) 82 (F.C.A.). In Basco v. Canada, (Minister of Employment and Immigration) (1991), 14 Imm. L.R. (2d) 21, 43 F.T.R. 233, the same duty of fairness was required of a visa officer in the assessment of an application for an employment authorization.
8 (1997), 39 Imm.L.R. (2d) 78, 134 F.T.R. 288, now pending before the Court of Appeal under court file no. A-533-97. In Yu (Litigation Guardian of) v. Canada (Minister of Employment and Immigration) (1997), 39 Imm.L.R. (2d) 78 (F.C.T.D.), McKeown J. reached a different conclusion on similar facts.