Date: 19990623
Docket: A-533-97
| CORAM: LÉTOURNEAU J.A. |
| ROTHSTEIN J.A. |
| McDONALD J.A. |
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
(Respondent in the Trial Division)
- and -
CHUN HIN WONG, a minor by his litigation
guardian, YAN LIN SIU
Respondent
(Applicant in the Trial Division)
HEARD at Toronto, Ontario, Wednesday the 23rd day of June, 1999
JUDGMENT delivered at Toronto, Ontario, Wednesday the 23rd day of June, 1999
REASONS FOR JUDGMENT OF THE COURT BY: LÉTOURNEAU J.A.
Date: 19990623
Docket: A-533-97
| CORAM: LÉTOURNEAU J.A. |
| ROTHSTEIN J.A. |
| McDONALD J.A. |
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
(Respondent in the Trial Division)
- and -
CHUN HIN WONG, a minor by his litigation
guardian, YAN LIN SIU
Respondent
(Applicant in the Trial Division)
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the bench at Toronto, Ontario
on Wednesday the 23rdday of June, 1999)
LÉTOURNEAU J.A.
[1] This is an appeal of a decision of a motions judge allowing an application for judicial review of a decision of a visa officer who had refused an application for student authorization by the respondent Chun Hin Wong.
[2] The respondent was a resident of Hong Kong born on July 9, 1986. In August 1996, the respondent"s mother submitted an application for temporary entry to Canada to allow her son to study in Canada and complete his Grade 5. The student authorization application was made in Hong Kong. The respondent would come to Canada to live with an aunt while his parents and other sisters and brothers would remain in Hong Kong.
[3] In support of the application, the respondent"s mother swore an affidavit stating that she wanted her son to receive a Canadian education and hoped that he would complete university in Canada.
[4] The visa officer interviewed the respondent and his mother. At the end of the interview, he was not satisfied that the respondent was a genuine visitor as defined under the Immigration Act (Act) seeking admission to Canada for temporary purpose.
[5] He was concerned that if the respondent studied in Canada for 12 years, he would have spent his entire adolescence in Canada and his ties with Hong Kong would have deteriorated to a point of no return.
[6] The motions judge found that the respondent"s application for a visa was one by which he sought an authorization to come to Canada to pursue a course of studies of some nine months duration and, therefore, that the visa requested was for a temporary purpose. He noted that if the respondent wanted to pursue his studies in Canada beyond this nine-month period, he would have to have his visa renewed or obtain a new visa. It would then be open to the Minister to examine the totality of the circumstances.
[7] In the end, the motions judge concluded, on the basis of the evidence that was before the visa officer on the 12th of August, 1996, that it was capricious to conclude that the respondent"s application to come to Canada was for other than a temporary purpose. He also found that the visa officer took into account an irrelevant consideration on that date when he considered the aspirations of the respondent"s mother with respect to her son"s educational career. Accordingly he allowed the application for judicial review, set aside the decision of the visa officer and sent the matter back for redetermination.
| [8] It is in this context that he certified the following question in terms agreed by the parties:Did the applicant who expressed a long term goal to study in Canada satisfy the definition of "visitor" as defined in s. 2(1) of the Immigration Act ? |
| [9] With respect, we do not think that the question as framed meets the requirements of subsection 83(1) of the Act which states:83.(1) - A judgment of the Federal Court - Trial Division on an application for judicial review with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be appealed to the Federal Court of Appeal only if the Federal Court - Trial Division has at the time of rendering judgment certified that a serious question of general importance is involved and has stated that question. |
| [10] The question which can be the subject of an appeal has to be a "serious question of general importance". The one submitted to us is specific to this case and very much fact related and driven. |
| [11] It invites to a full review of the merits of the decision of the motions judge and, consequently, of the decision of the visa officer. It would require us to determine whether, on the basis of the evidence that was before the visa officer on the 12th of August 1996, it was capricious for the visa officer to reach the conclusion that he did, namely that the respondent"s application to come to Canada was for other than a temporary purpose. This is something that cannot be done as there is no right of appeal of the merits of a decision of this kind. In addition, an appeal under subsection 83(1) of the Act involving a certified question does not allow for a full review of the case on its merits 1. |
| [12] Having said that, it became obvious at the hearing and from a reading of the case law2 that the serious question of general importance which has given rise to conflicting decisions in the Trial Division of this Court is whether a visa officer is entitled, at the time of an application for a student visa for a temporary purpose or definite period of time, to search for the long term goal of the applicant and to take into consideration that goal, as expressed by himself or his parents, in assessing whether the application 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. |
| [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 factors3 in determining whether or not an applicant is a visitor within the terms of the definition provided in the Act. |
| [14] For these reasons, we will decline to answer the certified question and dismiss the appeal. |
| "Gilles Létourneau" |
| J.F.C.A. |
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-533-97
| STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Appellant
(Respondent in the Trial Division)
| - and - |
| CHUN HIN WONG, a minor by his litigation guardian, YAN LIN SIU |
Respondent
(Applicant in the Trial Division)
DATE OF HEARING: WEDNESDAY, JUNE 23, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
| OF THE COURT BY: LÉTOURNEAU J.A. |
Delivered at Toronto, Ontario
on Wednesday the 23rdday of June 1999
| APPEARANCES: Ms. A. Leena Jaakkimainen |
| For the Appellant |
| (Respondent in the Trial Division) |
| Mr. I. Sherman, Q.C. |
| For the Respondent |
| (Applicant in the Trial Division) |
| SOLICITORS OF RECORD: Morris Rosenberg |
| Deputy Attorney General of Canada |
For the Appellant
| Martinello & Associates |
| Barristers & Solicitors |
| 255 Duncan Mill Road, Suite 208 |
| Don Mills, Ontario |
| M3B 3H9 |
| For the Respondent |
| (Applicant in the Trial Division) |
FEDERAL COURT OF APPEAL
Date: 19990623
Docket: A-533-97
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
(Respondent in the Trial Division)
- and -
CHUN HIN WONG, a minor by his litigation
guardian, YAN LIN SIU
Respondent
(Applicant in the Trial Division)
REASONS FOR JUDGMENT
OF THE COURT
__________________1 Manimaran v. The Minister of Citizenship and Immigration, no. A-414-95, Toronto, Ontario, June 22, 1999 (F.C.A.).
2 Yu (Litigation Guardian of) v. Canada (Minister of Employment and Immigration) (1993) 21 Imm. L.R. (2d) 1; Lissette Altagracia Estevez v. M.C.I., Imm. 3344-97, May 27, 1998; Zhou Hao v. M.C.I., Imm. 1991-97, March 24, 1998. See contra: Mittal by his Litigation Guardian v. M.C.I., Imm. 2751-97, May 28, 1998 in which the motions judge expressed support for the position taken by the motions judge in the present instance.
3 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.