一直以来我们和签证官的地位是不平等的，被拒签之后我们只能反复二签、三签，大部分时候拒签是签证官的错误。如果拒签后错过了再签的机会，比如毕业后工签超过了90天，桥梁工签拒签后原有的工签失效了，我们就只能为签证官的错误埋单。
但其实我们远没有必要这么被动，司法复核是移民法赋予任何一个签证和移民申请人的权利，移民法IRPA第72条：
72. (1) Judicial review by the Federal Court with respect to any matter — a decision, determination or order made, a measure taken or a question raised — under this Act is commenced by making an application for leave to the Court.
任何决定（decision），比如拒签、退料、递解令等。都可以向联邦法院提起司法复核，我们说几个典型的情况：
1、境内旅游签转学签，移民局判不能在境内申请（移民法适用错误）；
2、网上作出的清单要求交155加币，但实际是要交255加币，因为少交了费用拒签（移民局没有提供清晰地指示）；
3、学签拒签的原因不能让人信服。
能不能用“拒签原因不能让人信服”推翻签证官的拒签决定呢？答案是肯定的。
今天我们主要分享一个案例，Zhang v Canada，请注意，加拿大是判例法，也就是说所有情况类似的案件都会得到同样的判决。
联邦法院IMM-5724-13号案例，是来自北京26岁的、本科毕业的申请人Zhang, Duo希望就读EMSB的桌面出版，这种条件要我们今天来看是铁定会拒签的。
拒签理由是万年不变的“不相信申请人会在身份到期之前离开加拿大”。好在签证官还比较负责地指出了拒签的原因（要不然估计直接被和解了）：申请人的收入中等，约束力不够，在魁省就读完这个项目之后回到国内的发展不明确。
[1] The applicant, a 26 year old citizen of the People’s Republic of China [PRC], is seeking to review a decision of a visa officer, dated August 20, 2012, in which she was found not to have met the requirements of the Immigration and Protection Act, SC 2001, c 27 and its Regulations (SOR/2002-227), as an applicant for a Canadian study permit.
[2] The officer is not satisfied that the applicant is a genuine visitor who will leave Canada upon the expiry of his work permit mainly because the latter has insufficient financial and personal ties to China, considering that the applicant’s family is small, his salary in China is modest in light of his relatively high position, he has limited advancement opportunities in China and he would not gain experience readily bankable upon his return to China.
法官在判决中先说出了判决的结果，当然不同的法官有不同的习惯，有的法官喜欢在最后说。法官认为签证官在审查事实的时候没有遵循一个合理的标准，签证官的结论并不合理，从事实和法律上来说是值得推敲的。
[3] The officer’s factual assessment is to be reviewed on the reasonableness standard (Dhillon v. Canada (Minister of Citizenship and Immigration), 2009 FC 614 (CanLII), 347 F.T.R. 24 (Eng.) at paragraph 19). For the reasons hereunder, the Court finds that the visa officer’s conclusion does not fall within the range of possible, acceptable outcomes which are defensible in respect of the facts and the law.
[4] The applicant has the burden of proof to satisfy the officer that he is a bona fide visitor to Canada and will, indeed, leave the country once his temporary work permit has expired. One large component of this is proving sufficient ties to one’s home country. It is clear, on the face of the record, that the applicant discharged himself of this burden of proof, which must not be insurmountable in the circumstances.
首先，申请人在学习计划中解释了她毕业后不能在电视台找到一份工作，因为这个专业竞争日益激烈。她解释道“我的专业只允许我在电视台有很好的发展，但很遗憾，我毕业后从电视台得到了太多的拒信……越来越多的本科毕业生加入到我们这个行业的竞争当中，我意识到我的职业前景非常严峻。”在申请人第一次申请麦吉尔大学的语言被拒签后，她打算“重新规划她的职业路线”，她解释道，她的未婚夫在出版行业工作，他们打算一起开一个公司等等等等——其实这理由一看就知道是瞎编的，因为她读EMSB明显就是为了移民——但是他的学习计划在法官看来，的确无懈可击。
[5] First, the applicant explains in her study plan that she has been unable to find a job at a television station after graduation and that the field is increasingly competitive. She states that “[d]ue to my major, I can have a good development only if I can get a job in the TV Station. But unfortunately, I had many job rejections from the TV Stations after graduation … The present situation is more and more graduates from the universities join into the competition with me in this industry. I realize that my development prospect is quite grim.” After her first application for a permit to study at McGill was rejected, the applicant became engaged and had to “reconsider and re-plan [her] career path for him.” She explains that her fiancé works in publishing and they seek to open a business together. While it is unclear what sort of business the applicant and her fiancé seek to open, or precisely why she needs to study Desktop Publishing, the study plan provides a plausible explanation for her genuine desire to study at Rosemount Technology Centre; an explanation that cannot arbitrarily be discarded by the visa officer. There must be an objective reason to question the motivation of an applicant for study visa.
其次，很明显签证官没有考虑到申请人提出的其他关于他会回到中国的原因，比如，学习计划提到申请人的未婚夫在中国，他有一个企业，他给她买了一套房子，去加拿大读书只是他们“关于未来计划的一部分，所以我不会在加拿大呆很长时间”。申请人同时申请她会回到中国照顾她的父母，并且她知道在加拿大黑下来的后果，在之前的案例Cao v Canada中（这个案例我们之后会讲到），法官判决签证官不能简单地认为申请人申明会案例离开加拿大是陈词滥调。这个申明清晰地表明申请人知道不按时离开的后果，并且正因为知道这些后果，她不会逾期滞留在加拿大。
[6] Second, it is apparent that the visa officer has also failed to consider any other reasons raised by the applicant to support her claim that she would return to the PRC. For example, her study plan states that her fiancé lives in China, he owns his own business there and he has purchased an apartment in her name. The applicant’s declaration explains that her fiancé is not interested in living abroad but that her study “is also one part of the preparation for our future career; therefore I will not stay in Canada for long term” (see para VI of the declaration, Applicant’s Record [AR] at 28). The declaration also states that the applicant plans to have a family in China and to take care of her parents there and that she understands the repercussions of failing to leave Canada (at paras VII and IX, AR at 28-29). As stated in Cao v Canada (Minister of Citizenship and Immigration), 2010 FC 941 (CanLII) at para 13 [Cao], “[t]he decision to submit the applicant’s declaration is not a banal gesture. The declaration is a clear statement that the applicant understand the consequences of overstaying his welcome in Canada, and for this reason, it will not happen.”
签证官考虑的第二个问题是觉得申请的资金不够。申请人认为这个和签证递交的证据不服，当然被告（移民局律师，也就是检察官）显然是提出反对意见的。
[7] The second issue relates to the officer’s assertion that the applicant fails to demonstrate her ability to pay for the program she intend to pursue in Canada. The applicant states that this finding is contrary to the evidence while the respondent submits that it is supported by the record.
法官认为申请人显然证明了她有足够的钱，她已经交了一大半的学费，然后还提供了将近5万加币的存款，她的父母收入也足以负担她在加拿大期间的学费。
[8] While the burden of proof is on the applicant, the decision must be based on reasonable findings of fact, and must be based on the record at hand (see Zhang v Canada (Minister of Citizenship and Immigration), 2003 FC 1493 at para 7; Utenkova v Canada (Minister of Citizenship and Immigration), 2012 FC 959 (CanLII) at para 7). In the case at bar, the applicant provides an invoice from the EMSB confirming that she had paid the CAD $100 application fee and CAD $14,890 in tuition. The balance owing is $6,897.17 (Certified Tribunal Record at page 20). In addition, she states in her study plan and declaration that her parents have prepared RMB 280,000 (approximately CAD $50,000) as living expenses and final payment of tuition and includes a certificate documenting her father’s income from 2011 and 2012 (with his annual income being approximately CAD $15,000 a year).
法官认为，签证官没能解释为什么申请人不能负担她在加拿大的留学费用，因为学费的2/3都已经支付，并且学习计划指出她的父母已经准备好支持她，被告认为她没能提供父母的宣誓证明能够支持她（检察官也喜欢强词夺理，然而很快被法官识破了）。然而，这个点并不是签证官担心的，签证官并没有在拒签理由中写“父母没有宣誓能够支持她”，只是在制式的拒签信中勾了这么一条。还有，签证官没有考虑申请人不会逾期滞留的申明，虽然这个申明不能想当然认为是真的，但是这个申明是要和众多材料一起被考虑进去的。
[9] In the case at bar, the officer’s failure to explain why the applicant would be unable to afford the program makes the decision unreasonable given the confirmation by EMSB that two-thirds of the fees are already paid and the declaration and study plan asserting that the applicant’s parents are ready to support her. The respondent argues that there is no affidavit or sworn declaration signed by her parents establishing their undertaking to support her for the duration of her studies. However, since there is no indication that the officer was concerned about her ability to afford to live in Montreal, other than checking off a box in the form letter, I reject the respondent’s contention that the absence of an undertaking can save this decision. In passing, the visa officer also fails to address the applicant’s sworn declaration which included further assurances that she would not overstay. While declarations cannot be presumed to be true, the statements made in a declaration must be weighed by the officer in light of the totality of the evidence and the personal circumstances of the particular applicant (Cao at para 13; Huang v Canada (Citizenship and Immigration), 2012 FC 145 (CanLII) at para 13; and Xie v Canada (Minister of Citizenship and Immigration), 2012 FC 1239 (CanLII) at paras 28-29).
最后法官同意了司法复核的申请。
[10] For all these reasons, I will allow this judicial review application. No question of general importance has been proposed by counsel and none shall be certified by the Court.
这个判例是2014年的，引用了很多之前的判决，这些判决都非常详细地分析了签证官的拒签决定是否合理：如果像现在北京上海这样随便写“does not seem reasonable”，上诉的时候简直可以成为沙包被原告驳得体无完肤。或许大量这样的案件交到法院后，移民局直接同意和解了。
