Thursday, May 19, 2011

STUDY PERMIT REFUSAL SHOWS NEED TO ESTABLISH INTENTION TO RETURN TO HOME COUNTRY

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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