Ottawa, Ontario, November 16, 2006
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
OVERVIEW
[1] [21] “the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case". All of the circumstances must be considered in order to determine the content of the duty of procedural fairness…
(Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, citing Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 682)
[2] Procedural protection that arises in the context of a student visa application is “relaxed”. (Li v. Canada (Minister of Citizenship and Immigration), 2001 FCT 791, [2001] F.C.J. No. 1144 (QL), at para. 50; Skoruk v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1220, [2001] F.C.J. No. 1687 (QL), at para. 17)
[3] Immigration manuals are primarily guidelines for the assistance of Visa Officers in the assessment of applications for either permanent residence or temporary visas. As such, manuals cannot be relied upon by Applicants to argue lack of fairness simply because the officer did not strictly adhere to the guidelines found in the manual in question. In the words of Justice Elizabeth Heneghan:
[13] The Applicant first takes issue with the failure of the Visa Officer to tell him that the financial information he had submitted was incomplete and urges the view that the manual, quoted above, imposes a duty on the Visa Officer to give him the opportunity to supplement the information submitted.
[14] This argument cannot succeed. Several decisions of this court have made it clear that the immigration manual is primarily a guideline for the assistance of Visa Officers in assessing application for student visas…
(Ye v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 59 (QL))
[4] It is trite law that the onus is on the applicant to provide a Visa Officer with all of the relevant information and documentation to satisfy the Visa Officer that the application meets the statutory requirements of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) and the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations). (Bhatia v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 98 (QL), at para. 9; Majinski v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 864 (QL), at para. 8)
[5] In this case, the Visa Officer conducted a fulsome and diligent assessment of Mr. Le Minh Duc Tran’s application for a study permit. His application was rejected because he had not satisfied the Visa Officer that he was either a bona fide student or a bona fide temporary resident sufficiently well-established (in his country of origin) that he would leave Canada after his authorized stay in Canada.
JUDICIAL PROCEDURE
[6] The Applicant, Mr. Le Minh Duc Tran, seeks to overturn the decision of an Immigration Officer (Visa Officer) at the Consulate General of Canada in Ho Chi Minh City, Vietnam, who denied Mr. Le Minh Duc Tran’s application for a study permit. Mr. Le Minh Duc Tran had not satisfied the Visa Officer that he was either a bona fide student or a bona fide temporary resident, sufficiently well-established in Vietnam, that he would leave Canada after his authorized stay in Canada.
BACKGROUND
[7] Mr. Le Minh Duc Tran’s application for a study permit was received by the Consulate General of Canada on February 14, 2006. (Affidavit of Ms. Patricia Brown, sworn on September 22, 2006 (The Brown Affidavit))
[8] On February 17, 2006, Mr. Le Minh Duc Tran’s study permit application was reviewed by a program assistant, who entered the basic information from the application and the submitted supporting documents into the Computer Assisted Immigration Processing System (CAIPS) notes. She referred the application to the Visa Officer for assessment. (The Brown Affidavit)
[9] On February 24, 2006, at the Visa Officer’s request, a case analyst, contacted Mr. Le Minh Duc Tran to clarify information contained on the file as to the relationship with the financial sponsor and to establish Mr. Le Minh Duc Tran’s level of English language ability. The case analyst put the information from his phone conversation with Mr. Le Minh Duc Tran into the CAIPS notes. (The Brown Affidavit)
[10] On March 29, 2006, the Visa Officer reviewed all the information on the application and in the CAIPS notes and refused the application. She was not satisfied that Mr. Le Minh Duc Tran was either a bona fide student or a bona fide temporary resident. Mr. Le Minh Duc Tran had not satisfied the Visa Officer that he was sufficiently well-established in Vietnam that he would leave Canada after his authorized stay in Canada. (The Brown Affidavit)
[11] In addition, given his youth, the Visa Officer reviewed the establishment of Mr. Le Minh Duc Tran’s parents in Vietnam. They had a very low income (US $133/month) and provided no proof of their employment, income or any assets. The parents did not appear to be well-established in Vietnam. (The Brown Affidavit)
[12] The Visa Officer also reviewed Mr. Le Minh Duc Tran’s educational history. He graduated from high school in 2003. He failed the admission exams into a public university and enrolled at a private university, Lac Hong University, where he had been studying English. Mr. Le Minh Duc Tran did not state on his application when he started his university studies. (The Brown Affidavit)
[13] At the time of the assessment, Mr. Le Minh Duc Tran had very weak English and could not have carried even a basic conversation in English. Given that the letter of acceptance from Algonquin College was conditional upon the applicant’s meeting the English language requirements to enter the culinary management course, the Visa Officer concluded that it would take Mr. Le Minh Duc Tran many months to achieve that required level of the English proficiency and start his intended studies. (The Brown Affidavit)
[14] The Visa Officer concluded that, given the 2-year culinary management program of studies and an indeterminate length of English as a Second Language (ESL) studies and the fact that Mr. Le Minh Duc Tran was being financed by his uncle’s friend because Mr. Le Minh Duc Tran, his parents or his relatives in Canada could not finance his studies, the credibility of his claimed intentions was very weak. (The Brown Affidavit)
[15] Mr. Le Minh Duc Tran’s claimed plan to study at a total cost of at least C$30,000 in tuition for one year of ESL and 2 years of Culinary Management (tuition is approximately C$10,000/year per the Algonquin College website) plus living expenses, which are generally estimated to be approximately C$10,000/year and return to Vietnam to open a restaurant was not credible as, to the knowledge of the Visa Officer, there were numerous courses of this type available in Vietnam and South Asia at a fraction of the cost. (The Brown Affidavit)
[16] As the Visa Officer found that Mr. Le Minh Duc Tran had not satisfied her that he was either a bona fide student or a bona fide temporary resident sufficiently well-established in Vietnam that he would leave Canada after his authorized stay in Canada, she refused his application for a study permit. (The Brown Affidavit)
ISSUES
[17] 1) Did the Visa Officer deny Mr. Le Minh Duc Tran procedural fairness?
2) Did the Visa Officer err in determining that Mr. Le Minh Duc Tran was not a bona fide student?
The legislative framework
[18] The relevant sections of IRPA and the Regulations are reproduced below. IRPA provides, inter alia, that a Visa Officer shall issue a student permit if he or she is satisfied that the foreign national is not inadmissible to Canada and meets the requirements of IRPA:
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11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document shall be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act ... 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. |
11. (1) L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les visa et autres documents requis par règlement, lesquels sont délivrés sur preuve, à la suite d’un contrôle, qu’il n’est pas interdit de territoire et se conforme à la présente loi.
[...]
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. |
[19] Furthermore, the Regulations establish the criteria for granting a study permit:
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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) applied for it in accordance with this Part;
(b) will leave Canada by the end of the period authorized for their stay under Division 2 of Part 9;
(c) meets the requirements of this Part; and
(d) meets the requirements of section 30;
… |
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) l’étranger a demandé un permis d’études conformément à la présente partie;
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;
c) il remplit les exigences prévues à la présente partie;
d) il satisfait aux exigences prévues à l’article 30.
[...] |
Standard of Review of the Visa Officer Decision
[20] The appropriate standard of review for a decision by a Visa Officer depends on the kind of issue addressed. Thus, for a discretionary decision by a Visa Officer the standard of review is patent unreasonableness. (Boni v. Canada (Minister of Citizenship and Immigration), 2006 FCA 68, [2006] F.C.J. No. 275 (QL), at paras. 7-8; Maiga v. Canada (Minister of Citizenship and Immigration), 2006 FC 252, [2006] F.C.J. No. 324 (QL), at para. 4; Ouafae v. Canada (Minister of Citizenship and Immigration), 2005 FC 459, [2005] F.C.J. No. 592 (QL), at paras. 18-20)
[21] For a Visa Officer’s decision involving an application of general principles under IRPA or Regulations to specific circumstances (i.e. the decision based on a question of mixed law and fact), the standard of judicial review is reasonableness simpliciter. (Ouafae, above, at para. 19)
[22] For pure questions of law, the standard of review is correctness.
[23] In this case, the issues addressed by the Visa Officer are questions of fact. The Visa Officer was not satisfied that Mr. Le Minh Duc Tran was a bona fide temporary resident that would leave Canada at the end of the period authorized for his stay. Specifically, she was not convinced that Mr. Le Minh Duc Tran’s ties with Vietnam were sufficiently strong to ensure his return after studying in Canada. Therefore, the appropriate standard of review is patent unreasonableness. In other words, the Court must not intervene unless it can be established that the decision is based on an erroneous finding of fact made in a perverse or capricious manner. (Maiga, above, at paras. 5-6; Kniazeva v. Canada (Minister of Citizenship and Immigration), 2006 FC 268, [2006] F.C.J. No. 336, at para. 15 (QL))
[24] For the allegations of breach of procedural fairness, the Court simply determines whether the alleged breach has occurred. If the breach has been found, the Court sends the matter back for redetermination. (Kniazeva, above, at para. 16)
1) Visa Officer did not breach procedural fairness
[25] The Court considers the context of this case in deciding whether Mr. Le Minh Duc Tran was denied procedural fairness. As Justice Claire L’Heureux-Dubé pointed out:
[21] “the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case". All of the circumstances must be considered in order to determine the content of the duty of procedural fairness…
(Baker, above, citing Knight above)
[26] Procedural protection that arises in the context of a student visa application is “relaxed”. In other words, there is no clear requirement that an Applicant be permitted to respond to an officer’s concerns as they arise. (Li, above, at para. 50; Skoruk, above, at para. 17)
[27] Mr. Le Minh Duc Tran argues that the Visa Officer breached procedural fairness in that (1) Mr. Le Minh Duc Tran was not given sufficient notice of the telephone interview; and (2) the Visa Officer failed to provide him with an opportunity to respond to her concerns. (Applicant’s Memorandum of Argument)
(a) Telephone interview
[28] The case analyst called Mr. Le Minh Duc Tran to clarify information in his application and to establish the level of his English proficiency. (The Brown Affidavit)
[29] As Mr. Le Minh Duc Tran agreed to speak to the case analyst, as evident from the CAIPS notes, he is precluded from arguing that it was a breach of procedural fairness. (CAIPS notes, Exhibit “A” to the Brown Affidavit)
(b) Failure to apprise of concerns
[30] As stated above, procedural protection that arises in the context of a student visa application is “relaxed”. There is no unfairness if the Visa Officer did not communicate all of her concerns to Mr. Le Minh Duc Tran or that she did not accord him an opportunity to respond to those concerns. (Li, above; Skoruk, above)
[31] It is also reasonable to expect that Visa Officers will bring their own experience and expertise to the applications before them. (Wen v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1262, [2002] F.C.J. No. 1719 (QL), at para. 16; Skoruk, above, at para. 14)
[32] The fact that the Visa Officer considered the availability of similar culinary management programs of study available in Vietnam and South Asia at a “fraction of the cost” does not constitute an error. Contrary to what is argued by Mr. Le Minh Duc Tran, the Visa Officer did not rely on extrinsic evidence, but rather relied on her own expertise and analysis of all the evidence before her. (Wen, above, at paras. 18-19)
[33] As in Skoruk, above, these considerations of local conditions coupled with those considerations more personal to Mr. Le Minh Duc Tran, were part of the totality of circumstances which the Visa Officer had to assess in reaching her decision. (the Brown Affidavit; Skoruk, above, at para. 14)
[34] Moreover, the Visa Officer is not obliged to inform every Applicant of his or her negative impressions as they arise, especially in situations in which the negative impressions concern some aspect of the Applicant that does not render itself easily to change, such as the language ability. (Savin v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1426, at para. 16; Alam v. Canada (Minister of Citizenship and Immigration), 2004 FC 182, [2004] F.C.J. No. 209 at para. 23)
[35] Lastly, immigration manuals are primarily guidelines for the assistance of Visa Officers in the assessment of applications for either permanent residence or temporary visas. As such, manuals cannot be relied upon by Applicants to argue lack of fairness simply because the officer did not strictly adhere to the guidelines found in the manual in question. In the words of Justice Heneghan:
[13] The Applicant first takes issue with the failure of the Visa Officer to tell him that the financial information he had submitted was incomplete and urges the view that the manual, quoted above, imposes a duty on the Visa Officer to give him the opportunity to supplement the information submitted.
[14] This argument cannot succeed. Several decisions of this court have made it clear that the immigration manual is primarily a guideline for the assistance of Visa Officers in assessing application for student visas…
(Ye, above)
(2) Visa Officer finding that Mr. Le Minh Duc Tran not a bona fide student not patently unreasonable
[36] It is trite law that the onus is on the Applicant to provide a Visa Officer with all of the relevant information and documentation to satisfy the Visa Officer that the application meets the statutory requirements of IRPA and the Regulations. (Bhatia and Majinski, above)
[37] In this case, the Visa Officer conducted a fulsome and diligent assessment of Mr. Le Minh Du Tran’s application for a study permit. His application was rejected because he had not satisfied the Visa Officer that he was either a bona fide student or a bona fide temporary resident sufficiently well-established in Vietnam that he would leave Canada after his authorized stay in Canada. (The Brown Affidavit)
[38] The Visa Officer considered a variety of relevant factors in her assessment, including the low income of Mr. Le Minh Duc Tran’s parents in Vietnam and no proof of their employment, income or any assets. It was not patently unreasonable for the Visa Officer to take into account the financial viability of Mr. Le Minh Duc Tran’s parents in assessing Mr. Le Minh Duc Tran’s ties to Vietnam. (The Brown Affidavit; Zhang v. Canada (Minister of Citizenship and Immigration), 2003 FC 1493, [2003] F.C.J. No. 1885 (QL), at paras. 18-19)
[39] Likewise, the fact that the same type of education is available locally and at a fraction of the cost is a relevant factor in determining the credibility of intentions of a potential foreign student. It was not patently unreasonable for the Visa Officer to consider the availability of similar courses in Vietnam and South Asia at a much lesser cost. (Rong v. Canada (Minister of Citizenship and Immigration), 2003 FC 1453, [2003] F.C.J. No. 1852 (QL))
[40] Finally, Mr. Le Minh Duc Tran’s very weak English and his inability to carry even a basic conversation in English, as was revealed during his telephone conversation with the case analyst and reflected in the CAIPS notes, was a relevant factor for the Visa Officer to consider, given that his acceptance into Algonquin College was conditional upon him meeting the English language requirement. (The Brown Affidavit)
CONCLUSION
[41] There are no reviewable errors in the Visa Officer’s refusal to issue a study permit to Mr. Le Minh Duc Tran. There is no evidence of bad faith or reliance on irrelevant evidence. The Visa Officer did not breach procedural fairness. Therefore, this Court should not intervene. The application for judicial review is dismissed.
JUDGMENT
THE COURT ORDERS that
1. The application for judicial review be dismissed;
2. No serious question of general importance be certified.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2981-06
STYLE OF CAUSE: LE MINH DUC TRAN
v. THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: November 8, 2006
REASONS FOR JUDGMENT: SHORE J.
APPEARANCES:
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Mr. Russell Kaplan
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Ms. Tatiana Sandler
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SOLICITORS OF RECORD:
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RUSSELL KAPLAN Ottawa, Ontario
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JOHN H. SIMS, Q.R. Deputy Attorney General of Canada
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