一直以來我們和簽證官的地位是不平等的，被拒簽之後我們只能反覆二簽、三簽，大部分時候拒簽是簽證官的錯誤。如果拒簽後錯過了再簽的機會，比如畢業後工簽超過了90天，橋樑工簽拒簽後原有的工簽失效了，我們就只能為簽證官的錯誤埋單。
但其實我們遠沒有必要這麼被動，司法複核是移民法賦予任何一個簽證和移民申請人的權利，移民法IRPA第72條：
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.
任何決定（decision），比如拒簽、退料、遞解令等。都可以向聯邦法院提起司法複核，我們說幾個典型的情況：
1、境內旅遊簽轉學簽，移民局判不能在境內申請（移民法適用錯誤）；
2、網上作出的清單要求交155加幣，但實際是要交255加幣，因為少交了費用拒簽（移民局沒有提供清晰地指示）；
3、學簽拒簽的原因不能讓人信服。
能不能用“拒簽原因不能讓人信服”推翻簽證官的拒簽決定呢？答案是肯定的。
今天我們主要分享一個案例，Zhang v Canada，請注意，加拿大是判例法，也就是說所有情況類似的案件都會得到同樣的判決。
聯邦法院IMM-5724-13號案例，是來自北京26歲的、本科畢業的申請人Zhang, Duo希望就讀EMSB的桌面出版，這種條件要我們今天來看是鐵定會拒簽的。
拒簽理由是萬年不變的“不相信申請人會在身份到期之前離開加拿大”。好在簽證官還比較負責地指出了拒簽的原因（要不然估計直接被和解了）：申請人的收入中等，約束力不夠，在魁省就讀完這個項目之後回到國內的發展不明確。
[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.
法官在判決中先說出了判決的結果，當然不同的法官有不同的習慣，有的法官喜歡在最後說。法官認為簽證官在審查事實的時候沒有遵循一個合理的標準，簽證官的結論並不合理，從事實和法律上來說是值得推敲的。
[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，申請人在學習計劃中解釋了她畢業後不能在電視台找到一份工作，因為這個專業競爭日益激烈。她解釋道“我的專業只允許我在電視台有很好的發展，但很遺憾，我畢業後從電視台得到了太多的拒信……越來越多的本科畢業生加入到我們這個行業的競爭當中，我意識到我的職業前景非常嚴峻。”在申請人第一次申請麥吉爾大學的語言被拒簽後，她打算“重新規劃她的職業路線”，她解釋道，她的未婚夫在出版行業工作，他們打算一起開一個公司等等等等——其實這理由一看就知道是瞎編的，因為她讀EMSB明顯就是為了移民——但是他的學習計劃在法官看來，的確無懈可擊。
[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，很明顯簽證官沒有考慮到申請人提出的其他關於他會回到中國的原因，比如，學習計劃提到申請人的未婚夫在中國，他有一個企業，他給她買了一套房子，去加拿大讀書只是他們“關於未來計劃的一部分，所以我不會在加拿大獃很長時間”。申請人同時申請她會回到中國照顧她的父母，並且她知道在加拿大黑下來的後果，在之前的案例Cao v Canada中（這個案例我們之後會講到），法官判決簽證官不能簡單地認為申請人申明會案例離開加拿大是陳詞濫調。這個申明清晰地表明申請人知道不按時離開的後果，並且正因為知道這些後果，她不會逾期滯留在加拿大。
[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.”
簽證官考慮的第二個問題是覺得申請的資金不夠。申請人認為這個和簽證遞交的證據不服，當然被告（移民局律師，也就是檢察官）顯然是提出反對意見的。
[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.
法官認為申請人顯然證明了她有足夠的錢，她已經交了一大半的學費，然後還提供了將近5萬加幣的存款，她的父母收入也足以負擔她在加拿大期間的學費。
[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).
法官認為，簽證官沒能解釋為什麼申請人不能負擔她在加拿大的留學費用，因為學費的2/3都已經支付，並且學習計劃指出她的父母已經準備好支持她，被告認為她沒能提供父母的宣誓證明能夠支持她（檢察官也喜歡強詞奪理，然而很快被法官識破了）。然而，這個點並不是簽證官擔心的，簽證官並沒有在拒簽理由中寫“父母沒有宣誓能夠支持她”，只是在制式的拒簽信中勾了這麼一條。還有，簽證官沒有考慮申請人不會逾期滯留的申明，雖然這個申明不能想當然認為是真的，但是這個申明是要和眾多材料一起被考慮進去的。
[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).
最後法官同意了司法複核的申請。
[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.
這個判例是2014年的，引用了很多之前的判決，這些判決都非常詳細地分析了簽證官的拒簽決定是否合理：如果像現在北京上海這樣隨便寫“does not seem reasonable”，上訴的時候簡直可以成為沙包被原告駁得體無完膚。或許大量這樣的案件交到法院後，移民局直接同意和解了。
