Ottawa, Ontario, April 16, 2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review brought by the Applicant, Ao Jing Pei , challenging a visa officer’s decision which denied him a student visa. Mr. Pei is a 23-year-old Chinese student who had hoped to come to Canada to study English and Business and Applied Science; however, his two applications for a student visa have been declined by decisions rendered by a visa officer assigned to the Canadian Consulate in Hong Kong (Department).
BACKGROUND
[2] The Department’s initial visa refusal was rendered by letter dated September 12, 2005. That decision was based on a failure by Mr. Pei to adequately document the accumulation and source of the financial resources necessary to support his proposed Canadian studies.
[3] The Record indicates that on November 21, 2005 the Canadian Immigration Consul in Hong Kong, John Burroughs, wrote to Mr. Pei’s Winnipeg legal counsel in response to a letter of inquiry dated November 7, 2005. Although the letter from Mr Pei’s legal counsel did not form part of the Applicant’s Record, it appears that Mr. Burroughs was responding to a request for a reconsideration of the initial visa refusal decision. Mr. Burroughs’ letter declined the request for reconsideration but offered advice on what was required to provide proof of funding in a new application. He advised of the need to “produce all relevant evidence and documentation” to establish admissibility and warned that a failure to be thorough could result in a refusal decision. His letter also indicated that a final decision “will likely be made without further communication with you”. He then went on to give examples of important documents identified in the Department’s web-based checklist including original certificates of deposit, bank passbooks or bank statements and written explanations and calculations showing the sources, ownership and accumulation of the required funds. His letter concluded with the advice that Mr. Pei “should ensure that all the required documentation is provided as indicated in our application kit”.
[4] Mr. Pei’s second visa application was received in Hong Kong on January 23, 2006. In addition to the formal application, Mr. Pei submitted banking records which purportedly established that his parents were persons of considerable means and able to meet the cost of his Canadian studies. Those records included certificates of deposit, business licences, passbook entries and an accountant’s audit certificate. The accountant’s certificate stated that it was based on personal documents provided by Mr. Pei’s father and it verified funds on deposit as of October 14, 2005 in the amount of ¥1,499,569.65.
[5] Notwithstanding Mr. Pei’s enhanced financial disclosure, his second visa application was refused by letter dated February 16, 2006. That letter also identified an inadequate financial disclosure as the basis for the decision. The Department’s computer notes (CAIPS notes) detailing the visa officer’s concerns indicate that he was not satisfied that Mr. Pei had sufficiently verified the sources of his parents’ savings. The visa officer also questioned the logic of Mr. Pei’s Canadian study plan and noted that his sister had recently been approved as a permanent resident in Canada. This latter consideration was described as a strong incentive for Mr. Pei to remain in Canada and led the officer to state that he was “not convinced that [Mr. Pei] is a bona fide student”. It is from this decision that Mr. Pei brings this application for judicial review.
ISSUES
[6] (a) What is the standard of review which applies to the issues raised on this application?
(b) Did the visa officer commit any reviewable errors in the decision to deny Mr. Pei’s application for a student visa?
ANALYSIS
[7] A helpful analysis of the standard of review issue pertaining to visa decisions can be found in Hassani v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 1597, 2006 FC 1283. However, in light of the conclusions I have reached in this case, it is unnecessary to conduct a pragmatic and functional analysis. The decision to refuse a student visa to Mr. Pei based on the adequacy of his financial disclosure was reasonable on this record. To the extent that the visa officer may have breached a duty of fairness, it is not material to the outcome because the result would not have been different on any reconsideration.
[8] Mr. Pei challenges the visa refusal decision on the following grounds:
(a) That the visa officer breached the duty of fairness by failing to advise Mr. Pei of his concerns about the adequacy of the submitted financial information.
(b) That the decision was perverse, capricious and inconsistent with the financial evidence provided, which evidence was sufficient to satisfy any reasonable concern.
(c) That the visa officer’s conclusion that Mr. Pei’s study plan was not logical was either speculative or was based on extrinsic information and, as such, fairness required that he be given an opportunity to explain the plan.
(d) That the visa officer’s concern about Mr. Pei’s supposed family incentive to remain in Canada was reviewable for the same reasons noted in point (c) above.
[9] Counsel for Mr. Pei acknowledges that, as a general rule, the Department owes no duty to a visa applicant to point out deficiencies in the application before rendering a decision. This point is well established by the authorities: see, for example, Li v. Canada (Minister of Citizenship and Immigration), [2001] FCJ No. 1144, 2001 FCT 791 at para. 21. Nevertheless, she argues that such a duty of care can arise where the Department has created a reasonable expectation that its concerns or needs are limited but later bases the decision on other grounds. Here Mr. Pei asserts that he was misled by Mr. Burrough’s letter and believed that all that was required was some proof of the funds held on deposit by his parents.
[10] While I am prepared to accept the correctness of counsel’s submission that the principle of reasonable expectations might arise from departmental representations, I do not accept that Mr. Burrough’s letter could reasonably create such an expectation. That letter was quite explicit in advising Mr. Pei and his counsel that his new application had to be fully documented in accordance with the Department’s stated requirements. It was not reasonable for Mr. Pei to treat the second application as an extension of the first. It was also presumptuous to expect that the visa officer would re-examine the first visa application file with a view to filling in gaps in the disclosure supporting the second application. This ground of review is, therefore, rejected.
[11] It was also contended on behalf of Mr. Pei that his financial disclosure was sufficient to dispel any reasonable concern about funding his Canadian studies. The contrary decision, it was argued, was perverse and inconsistent with the evidence.
[12] Counsel for the Respondent, however, points to several significant problems with Mr. Pei’s financial disclosure and makes a convincing case in support of the visa officer’s decision. I accept her argument that the visa officer’s concerns went beyond the issue of proof of accumulated funds. The Department’s CAIPS notes indicate that the officer had a broader concern which included questions about the source of the parents’ resources and whether their claimed “savings” were secure and available.
[13] The visa officer’s financial reservations were not unreasonable given Mr. Pei’s failure to adequately respond to questions posed in the visa application. For example, when asked to identify capital assets possessed by the family including the percentage ownership, the amount invested and the current book value, Mr. Pei offered only the name of a business – Taishan No. 7 Building and Construction Company (Taishan). The only documentary evidence submitted which concerned Taishan was a business licence which nowhere noted Mr. Pei’s parents as owners. The visa officer’s CAIPS notes refer specifically to the absence of verification of this ownership claim and also to other evidence that Mr. Pei’s parents were employees of Taishan. Although another business licence was put forward to identify Mr. Pei’s father as the proprietor of a second company, no reference to that business is contained elsewhere within the visa application and no indication of its value or profitability was offered. Even though the banking records indicate substantial deposits and, in some cases, large withdrawals, no meaningful explanation is given as to the source of those funds. Whether they were wages, dividends, or profit sharing income, is left unexplained. The CAIPS notes also reflect additional concerns about the absence of employment references for Mr. Pei’s parents along with a failure to document their annual income. Given that it should not be a difficult task for a family of supposedly substantial means to comprehensively and convincingly document its financial history and circumstances, all of the vagueness and inconsistency in the records tendered to the Department raised entirely reasonable concerns and it was understandable that the visa officer remained unconvinced by Mr. Pei’s application.
[14] In the end, what the Court is being asked to do on behalf of Mr. Pei is to reconsider the evidence. It is not, however, the function of this Court on judicial review to reweigh the evidence or to substitute its discretion for that which properly resides with the visa officer; and, even if I had that authority, I would not have come to any different conclusion on this record. Accordingly, and
notwithstanding Ms. Adachi’s capable arguments, this ground of review is rejected.
[15] It was also argued on behalf of Mr. Pei that the visa officer’s disparaging description of his study plan was based on speculation - specifically, that the proposed Canadian program was a duplication of what he was already taking in China. A similar challenge was made to the visa officer’s stated concern about Mr. Pei’s supposed incentive to remain in Canada because of the anticipated presence here of his sister. I accept that, on this record, these observations were highly speculative and may have required the visa officer to apprise Mr. Pei of his concerns and to allow for some response: see Hassani, above. These are, however, issues which could be relevant to the visa officer’s decision about whether Mr. Pei’s stated intention to study in Canada was bona fide. That such issues can be relevant to such a determination has been confirmed by the Federal Court of Appeal in Wong v. Canada (Minister of Citizenship and Immigration) (1999), 246 N.R. 377, [1999] F.C.J. No. 1049 (C.A.) where the Court noted at paragraph 13:
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 [FN3] in determining whether or not an applicant is a visitor within the terms of the definition provided in the Act.
FN3. Such as the ties to the country of origin, whether there are credible reasons for wishing to study in Canada, the age of the applicant, whether prior acceptance has been obtained from an educational institution in Canada and the likelihood of return to the country of origin.
[16] Even though the visa officer expressed a concern about Mr. Pei’s bona fides, it is quite clear from the decision that the overriding consideration was Mr. Pei’s failure to verify the extent of his financial capacity. I agree with counsel for the Respondent that that fundamental problem would remain if Mr. Pei’s visa application was returned to Hong Kong for reconsideration. Based upon the present record, Mr. Pei’s application is inevitably bound to fail again. In such a context, even where there has been a breach of the duty of procedural fairness, a decision ought not be sent back for a redetermination if it is bound to fail: see Thaneswaran v. Canada (Minister of Citizenship and Immigration), [2007] F.C.J. No. 253, 2007 FC 189 at para. 25.
[17] To my thinking, Mr. Pei would be better served by bringing a new application for a student visa which comprehensively verifies the financial wherewithal of his family to support his studies. If he chooses to do so, the Department should avoid the kind of regrettable speculation that is reflected in the CAIPS notes about the merits of his study plan or his supposed family incentive to remain in Canada. While such matters may be open to consideration, they must be supported by some evidence and, even then, the visa officer may be required to raise any concerns with Mr. Pei before rendering a decision.
[18] Based on the foregoing this application for judicial review is dismissed.
[19] Neither party proposed a certified question and no issue of general importance arises.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is dismissed.
"R. L. Barnes"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1989-06
STYLE OF CAUSE: AO JING PEI
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: APRIL 10, 2007
AND JUDGMENT BY: Justice Barnes
APPEARANCES:
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Midori Adachi
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Dayna Anderson
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SOLICITORS OF RECORD:
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Midori Adachi Booth Dennehy LLP 387 Broadway Winnipeg, MB, R3C 0V5
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Dayna Anderson Department of Justice Prairie Region 301 – 310 Broadway Winnipeg, MB, R3C 0S6 |