This recent case on Study Permits holds that concerns over a student's intention and ability to return home can be used as a basis of visa refusal. This is a long-held principle of visa application assessment, which applicants ignore at their peril.
Hong v. Canada (Minister of Citizenship and Immigration)
Between
Phuong My Hong, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2011] F.C.J. No. 648
2011 FC 463
Docket IMM-4100-10
Federal Court
Montréal, Quebec
Boivin J.
Heard: March 22, 2011.
Judgment: April 15, 2011.
(33 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 BOIVIN J.:-- This is an application for judicial review of a
decision dated May 19, 2010, by the Immigration Section of the
Consulate General of Canada at the Canadian Embassy in Ho Chi Minh
City, Vietnam. In the decision, the Visa Officer denied the
applicant's application for a student visa. The Visa Officer
rejected the application on the basis that the applicant failed to
provide adequate evidence that she had sufficient and available
financial resources and was not convinced that she would leave
Canada at the expiry of her authorized stay.
Factual background
2 The applicant, Ms. Phuong My Hong, is a citizen of Vietnam.
3 Prior to this application, Ms. Hong submitted two
applications. Both applications were denied.
4 In January 2010, Ms. Hong submitted her third temporary
student visa application1. In that application, she indicated that
the "principal idea behind studying in Canada was to learn
languages as she is very interested in Hotel and Restaurant
Management. This application was denied on May 19, 2010.
5 On July 15, 2010, Ms. Hong filed an application for judicial
review.
Relevant Legislation
6 Subsection 11(1) of the Immigration and Refugee Protection
Act, SC 2001, c. 27 (the Act) provides that a foreign national must
meet the requirements of the Act before an officer can issue the
document that will allow an applicant to enter Canada:
PART 1
IMMIGRATION TO CANADA
DIVISION 1
REQUIREMENTS BEFORE ENTERING CANADA AND SELECTION
Requirements Before Entering
Canada
Application before entering Canada
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 may be issued if, following an
examination, the officer is satisfied that the foreign
national is not inadmissible and meets the
requirements of this Act.
[...]
* * *
PARTIE 1
IMMIGRATION AU CANADA
SECTION 1
FORMALITÉS PRÉALABLES À L'ENTRÉE ET SÉLECTION
Formalités préalables à l'entrée
Visa et documents
11. (1) L'étranger doit, préalablement à son entrée au
Canada, demander à l'agent les visa et autres
documents requis par règlement. L'agent peut les
délivrer sur preuve, à la suite d'un contrôle, que
l'étranger n'est pas interdit de territoire et se
conforme à la présente loi.
...
7 As outlined by subsections 20(1) and 22(1) of the Act, a
foreign national seeking to obtain a student visa must convince the
Visa Officer that they are not inadmissible to Canada and meet the
eligibility requirements under the Act and the Immigration and
Refugee Protection Regulations, SOR/2002-227 (the Regulations).
Among those eligibility requirements, the foreign national must
convince the Visa Officer that they are not an immigrant and that
they intend to leave Canada by the end of the period requested for
their stay:
DIVISION 3
ENTERING AND REMAINING IN CANADA
Entering and Remaining
Obligation on entry
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.
[...]
Temporary resident
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.
[...]
* * *
SECTION 3
ENTRÉE ET SÉJOUR AU CANADA
Entrée et séjour
Obligation à l'entrée au Canada
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.
...
Résident temporaire
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.
...
8 Finally, subsection 216(1) and 220 of the Immigration and
Refugee Protection Regulations provide the criteria to be
considered by the Visa Officer in assessing a student visa
application:
DIVISION 3
ISSUANCE OF STUDY PERMITS
Study permits
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;
Page 142
[...]
Financial resources
220. An officer shall not issue a study permit to a
foreign national, other than one described in
paragraph 215(1)(d) or (e), unless they have
sufficient and available financial resources, without
working in Canada, to
(a) pay the tuition fees for the course or program
of studies that they intend to pursue;
(b) maintain themself and any family members who
are accompanying them during their proposed period
of study; and
(c) pay the costs of transporting themself and the
family members referred to in paragraph (b) to and
from Canada.
* * *
SECTION 3
DÉLIVRANCE DU PERMIS D'ÉTUDES
Permis d'études
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.
...
Ressources financières
220. À l'exception des personnes visées aux
sous-alinéas 215(1)d) ou e), l'agent ne délivre pas de
permis d'études à l'étranger à moins que celui-ci ne
dispose, sans qu'il lui soit nécessaire d'exercer un
emploi au Canada, de ressources financières
suffisantes pour :
a) acquitter les frais de scolarité des cours
qu'il a l'intention de suivre;
b) subvenir à ses propres besoins et à ceux des
membres de sa famille qui l'accompagnent durant
ses études;
c) acquitter les frais de transport pour lui-même
et les membres de sa famille visés à l'alinéa b)
pour venir au Canada et en repartir.
Points in Issue
9 The issue to be considered in this application is the
following: Did the Visa Officer err in refusing to grant Ms. Hong a
student visa?
Standard of review
10 The respondent argues that the decision of the Visa Officer
is an administrative decision made in the exercise of a
discretionary power. The respondent relies on Ayatollahi v. Canada
(Minister of Citizenship and Immigration), 2003 FCT 248, [2003]
F.C.J. No. 340, at para 12, in which Justice Snider held that:
[12] An application to be admitted to Canada as a
visitor involves a discretionary decision on the part
of the visa officer (Immigration Act, R.S.C. 1985, c.
I-2 s. 9(4)). This decision is based on an assessment
of the visa application (Immigration Act, s. 9(2.1));
there is no statutory requirement for an oral hearing.
In the case of an application for student
authorization, the applicant must include certain
documents with his or her visa application
(Immigration Regulations, s. 15(1)). The only party to
this application is the visa applicant (and any
accompanying dependents); submissions are not made by
parties opposite in interest to the applicant. The
burden is on the visa applicant to satisfy the visa
officer that he or she is not an immigrant
(Immigration Act, s. 9(1.2)). In my view, these
provisions of the Immigration Act and Immigration
Regulations, 1978, SOR/78-172 indicate that the
decision on an application for a temporary student
authorization is not judicial or quasi-judicial in
nature.
11 In Kibangoud v. Canada (Minister of Citizenship and
Immigration), 2008 FC 692, [2008] F.C.J. No. 921, at para 9,
Justice Tremblay-Lamer confirmed that the standard of review
applicable to discretionary decisions is indeed reasonableness.
12 Furthermore, in Obeng v. Canada (Minister of Citizenship and
Immigration), 2008 FC 754, [2008] F.C.J. No. 957, at para 21, this
Court held that:
[21] The officer's decision is an administrative
decision made in the exercise of her discretionary
power, having in mind the obligation imposed on her by
the Law and its regulations. Such a discretionary
decision is for the most part a question of fact, and
as such, a decision entitled to considerable deference
in view of the officer's special expertise, and that
certain questions she has to decide call on her
experience and do not lend themselves to one specific,
particular result but instead give rise to a number of
possible and reasonable conclusions. (Dunsmuir v. New
Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9, at
paragraph 47). When the decision at issue falls within
that spectrum, the Court should not interfere.
13 According to the decision of the Supreme Court of Canada in
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the
reasonableness standard requires the Courts to give considerable
deference to decision-makers when reviewing that discretion. Such
decisions usually involve questions of fact. As well, visa officers
have recognized expertise in analyzing and assessing student visa
applications.
Analysis
14 The Visa Officer provided two reasons for Ms. Hong's
refusal: (i) the Visa Officer was not satisfied that Ms. Hong would
leave Canada when her temporary resident visa expired and, (ii) the
Visa Officer was not satisfied that the applicant had sufficient
funds to complete her studies in Canada.
15 Ms. Hong asserts that the Visa Officer made a reviewable
error by not properly assessing the factual evidence. Ms. Hong
argues that she specifically made it clear in her letter of intent
that her goal or future study plan was to improve her English in
order to apply to the Institut de tourisme et d'hôtellerie du
Québec (ITHQ) and return to Vietnam with increased job prospects.
16 Moreover, Ms. Hong argues that the Visa Officer did not
consider the evidence in determining that she is not sufficiently
established in Vietnam. Ms. Hong argues that the Visa Officer
failed to consider that she has spent all her life in Vietnam, that
all of her friends and immediate family members reside with her in
Vietnam and that she has been employed, on a permanent basis, as an
IT support technician for Cetana PSB Intellis for the past five
years (Applicant's Record, Exhibit H, p. 65).
17 With respect to her studies, Ms. Hong stresses that she
provided the Visa Officer with a certificate establishing her
success in completing a program in Hotel and Tourism management in
Vietnam. According to Ms. Hong, the Visa Officer committed an error
when he concluded that her proposed studies are not reasonable in
light of her previous studies and that she is not sufficiently
established in Vietnam for the purposes of granting her a one year
study permit.
18 Finally, Ms. Hong argues the fact that some of her extended
family members live in Canada, and her desire to study intensive
English for one year with purported interest in applying for the
IHTQ, are not, on their own, sufficiently determinative factors in
concluding that she would not leave Canada upon the expiry of her
student visa.
19 On the other hand, the respondent argues that "there is a
legal presumption that a foreign national seeking to enter Canada
is presumed to be an immigrant, and it is up to him to rebut this
presumption" (Obeng, supra, at para 20). In the present case, the
respondent asserts that the Visa Officer concluded in the refusal
letter that Ms. Hong's proposed studies are not reasonable because,
as indicated in the CAIPS notes, that ESL (English second language)
at such great expense is not reasonable when similar programs are
available in Vietnam at much less expense.
20 The respondent notes that Ms. Hong admitted in her letter of
intent that her primary goal was to learn English in addition to
the fact that she had recently completed a course in Hotel and
Restaurant Management in Vietnam. Thus, the respondent submits that
the Visa Officer's statement was not unreasonable (see Tran v.
Canada (Minister of Citizenship and Immigration), 2006 FC 1377,
[2006] F.C.J. No. 1732, at para 32).
21 The Visa Officer's concerns were whether Ms. Hong would
leave Canada by the end of the period authorized for her stay and
whether she had sufficient funds for living costs and tuition.
22 The Visa Officer's reasons in the decision dated May 19,
2010 reflect these concerns:
a. That the applicant did not satisfy the visa
officer that she would leave Canada by the end of
the period authorized for her stay because:
i. She has not demonstrated that she is
sufficiently well established in her country
of residence (Vietnam);
ii. Her proposed studies are not reasonable in
light of one or more of her qualifications,
previous studies, employment, level of
establishment, other educational opportunities
available in Vietnam or Canada, language
abilities, or future prospects and plans, and;
b. That the applicant has not satisfied the visa
officer that she had sufficient funds for living
costs and tuition for the first year of her
studies and return transportation without working
in Canada because:
i. the applicant has not demonstrated that her
sponsor will provide adequate support to cover
the cost of her studies.
23 The Computer Assisted Immigration Processing System (the
CAIPS) notes prepared by the Visa Officer at the interview with Ms.
Hong provide the following details in support of the refusal:
[...] PA states all expenses to be paid by uncle in
Canada, who has claimed business income of $29 K for
2008, T1 general submitted but this in sot a reliable
document as it can be self-generated. Bank account RBC
at $11K, aunts NOA at 4[sic]10K. It appears LICO not
met. Not satisfied funds in place, and given that
funds are low, ESL at such great expense is not
reasonable when similar programs available in Vietnam
and region at much less expense. The applicant has
very strong ties in Canada, specifically close family.
I am not satisfied that this applicant would leave
Canada at the end of the period authorized if issued a
TRV. Refused.
24 Following a review of the evidence, and despite counsel for
the applicant's able arguments, the Court is of the view that the
Visa Officer's decision is reasonable.
25 Many of the applicant's allegations are not supported by
evidence.
26 For instance, the applicant argued that she has been
employed in Vietnam for the past five years in a permanent job as
an IT technician at Cetana PSB Intellis. However, there is no
evidence from Cetana PSB Intellis to support and confirm her
allegation (Record at p. 2). Based on this lack of documentation,
the Court cannot find that Ms. Hong is employed in Vietnam and
hence established. Also, regarding her studies, a certificate
entitled "Advanced Diploma of Hospitality Management" dated June 2,
2009 does not provide any information with respect to the duration
of the course and the relevance of the qualification. Finally, the
fact that Ms. Hong has family members residing with her in Vietnam
is one factor to be considered amongst many others and is not
necessarily determinative (Obeng; Song v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 288, [2002] F.C.J. No. 385).
Page 148
27 The evidence adduced in support of her funding is also
incomplete. On the one hand, while the applicant is of the view
that the Visa Officer failed to take into account the financial
support of her parents, her Application for a study permit fails to
mention her parents' financial involvement. The information at box
11 of her application "Funds available for my stay in Canada"
mentions: "Family Friend, Mr Hung Anh Pham" and her answer to "My
expenses in Canada will be paid by" is: "Other" although another
available answer was: "Myself or my parents" (Record at p. 3).
Further Mr. Hung Anh Pham's Income Tax and Benefit Return (T1
General 2007) shows a total income of $16,131.01 (Applicant's
Record at p. 97). In the absence of a tax assessment, the Income
Tax and Benefit Return (T1 General 2007) is not conclusive. The
Visa Officer mentioned in its decision that these forms can be
self-generated. The Court notes that Mr. Thi Ngoc Nguyen provided
financial information demonstrating bank funds to the amount of
$11,000.00 and a total earning for 2008 to the amount of $9,685.00
(Applicant's record at pp. 114 and 115).
28 Counsel for Ms. Hong argued before this Court that a letter
of intent signed by Mr. Hung Anh Pham and his wife, Ms. Thi Ngoc
Chau Nguyen, demonstrates that they are willing and able to provide
shelter, food and any vital expenses for Ms. Hong for the duration
of the permit. While this may be true and while it confirms Mr.
Hung Anh Pham and is wife's engagement toward Ms. Hung, it also
only provides one side of the picture.
29 Indeed, there is no letter of intent or affidavit or
engagement of some sort from the applicant's parents confirming
that they also undertake to financially support their daughter.
Absent confirmation of a clear engagement from Ms. Hong's parents
to support her financially, their annual income, revenues, savings
and ownership of land adduced in evidence (Applicant's record at
pp. 118, 129, 140, 141, 150, 156 and 162) cannot be given much
weight. Again, on the basis of the evidence, the Visa Officer was
entitled to conclude that he was not satisfied that sufficient
funds were in place. Further, given that the available funds were
low, it was pertinent for the Visa Officer to conclude that the
same type of education is available in Vietnam at much less
expense.
30 Ms. Hong also submits that her parents are wealthy and that
she benefits from a high standard of living in Vietnam. She
therefore concludes that the risk of her not returning to Vietnam
is low. In support of this argument, counsel for Ms. Hong referred
to Zuo v. Canada (Minister of Citizenship and Immigration), 2007 FC
88, [2007] F.C.J. No. 130, and Yue v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 423, [2003] F.C.J. No. 598.
However, both these cases are distinguishable from the case at bar.
Indeed and contrary to this case, the parents were engaged in
providing financial support. More particularly, in Zuo, the
applicant's father had provided an affidavit in that respect.
31 Applications for student visa are to be analyzed on a
case-by-case basis and the role of the Visa Officer does not amount
to supplementing the applicant's evidence, as counsel for Ms. Hong
seems to suggest. It is trite law that the onus is on the applicant
to provide the Visa Officer with all the relevant information and
complete documentation in order to satisfy the Visa Officer that
the application meets the statutory requirements of the Act and the
Regulations (Tran v. Canada (Minister of Citizenship and
Immigration). 2006 FC 1377, [2006] F.C.J. No. 1732). More
particularly, in this case, it was the applicant's responsibility
to provide the Visa Officer will all of the evidence in order to
satisfy the Visa Officer of her financial capacity.
32 On the basis of the evidence, it was thus open to the Visa
Officer to decide that Ms. Hong would not leave Canada at the end
of her authorized stay. The Court finds that the Visa Officer's
decision is transparent, intelligible and falls within the range of
possible, acceptable outcomes (Dunsmuir at para 47).
33 Accordingly, this application for judicial review will be
dismissed. No question for certification was proposed and none
arises in this case.
JUDGMENT
THIS COURT'S JUDGMENT is that
1. The application for judicial review is dismissed;
2. No question is certified.
BOIVIN J.
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