Federal Court Decisions

    

     IMM-3562-96

B E T W E E N:

     ALNOOR WALJI MURJI

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

MacKAY, J.:

    

     This is an application for judicial review of, and for an Order quashing, a decision made August 1, 1996 by a Visa Officer at the High Commission in Nairobi, Kenya, whereby the applicant's application for permanent residence in Canada was refused. That refusal was based on the officer's conclusion that the applicant had not established he had the required financial resources available for his settlement in Canada and thus he was inadmissible under paragraph 19(2)(d) of the Immigration Act, R.S.C. 1985, c. I-2 as amended.

     The relevant legislative provisions are, the following, although s-s. 19(1)(b) does not appear to have been referred to in the letter rejecting the application.

19. (1) No person shall be granted admission who is a member of any of the following classes:

...

(b) persons who there are reasonable grounds to believe are or will be unable or unwilling to support themselves and those persons who are dependent on them for care and support, except persons who have satisfied an immigration officer that adequate arrangements, other than those that involve social assistance, have been made for their care and support;

...

(2) No immigrant and...visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes:

...

(d) persons who cannot or do not fulfil or comply with any of the conditions or requirements of this Act or the regulations or any orders or directions lawfully made or given under this Act or the regulations.

     Under the Regulations, s.s 8(1), as it applies in this case, provides:

8. (1) Subject to section 11.1, for the purpose of determining whether an immigrant ... will be able to become successfully established in Canada, a visa officer shall assess that immigrant...

         When interviewed in November, 1995 in Nairobi, the applicant was assessed, among other factors considered, as having sufficient points, for the occupation of electronic games repairer, to qualify for admission to Canada. In assessing his personal suitability the Visa Officer took into consideration that he had worked regularly for the past 16 years and most recently had owned and managed, apparently successfully, his own small business. In addition, he had an unofficial offer of employment in Canada, although that did not guarantee him a job.

     When interviewed, the applicant provided evidence of his financial resources, a bank statement concerning his company and a cheque payable to the company which, he urged, indicated a total of $16,000 Canadian equivalent available for his emigration to Canada, and he professed no outstanding liabilities. The Visa Officer asked for further and fuller evidence of his financial situation. Subject to his ability to establish that his financial situation was satisfactory on the basis of additional evidence, the Visa Officer was prepared to assess positively his application for permanent residence in Canada.

     In January 1996 the applicant provided evidence that $7,500 Canadian had been deposited on his behalf in a bank in Toronto, and he provided an inventory and financial report for his company together with a copy of a loan agreement for purchase of a car. The Visa Officer considered this did not establish the applicant's financial situation sufficiently to warrant a decision that he had funds available to support his emigration, with his dependant family, to Canada, as permanent residents. On May 29, the applicant was requested to provide an official evaluation of the current market value of his business, by a document widely used in Kenya when a business is offered for sale. The Visa Officer was interested in determining the sale value of the applicant's business to establish the financial resources available to him to support him and his family, if he were to be admitted to Canada for permanent residence.

     In July 1996 the applicant submitted an audited financial business report indicating that at December 1995 the applicant's business had a net value of about $27,000 Canadian equivalent. He did not provide a market value assessment of the business as he had been requested to do. The Visa Officer did not accept the audited statement dated as of December 1995 as establishing the funds available to the applicant to support his establishment as a permanent resident in Canada.

     In assessing funds required for successful establishment for six months in Canada, the officer used figures indicated in the departmental manual for a family of four persons to settle successfully in a major centre, as the applicant's proposed resettlement in Canada would entail, plus transportation expenses involved in moving from Kenya to Canada. The total figure derived by the officer was $18,784. Canadian.

     At that stage the financial documents provided to the Visa Officer were taken by her to establish that he had $7,500 Canadian in a Toronto bank and a business in Kenya for which she had an earlier audited statement but no official valuation of the current market value of that business. In late June the applicant's representative had suggested that proof of funds available would be provided by sale of the business, a step that would be taken once the applicant had confirmation that would be the last requirement to be met in obtaining his Visa. The Visa Officer declined to confirm that or to pursue the suggestion, made on condition of the issuance of a visa, that the market value of the business could best be determined by its sale.

     On August 1, the application was refused on the basis that the applicant did not provide evidence of sufficient financial resources available for successful settlement in Canada.

     This application raises several grounds for judicial review. It was dismissed by Order issued on September 12, 1997, when, after consideration, I was not persuaded that the Visa Officer erred in her assessment of the applicant's application for permanent residence. These are reasons for that Order.

     It is urged for the applicant that by the manner of the Visa Officer's seeking advice about financial statements and financial resources in general, from the head of the finance section at the Canadian mission in Nairobi, she improperly delegated her authority, on the principle recognized in Muliadi v. Minister of Employment and Immigration, [1986] 2 F.C. 205, 66 N.R. 8, 18 Admin. L.R. 243 (C.A.). Further, it is urged that by so doing she violated the principle that "she who hears must decide", or that by seeking advice she denied procedural fairness or fettered her discretion. The argument is based on the Visa Officer's admission in cross-examination on her affidavit that she was not an accountant and had sought advice from the head of the finance section in considering the financial documents provided by the applicant.

     I am not persuaded on the facts of the case that the Visa Officer did any more than she was entitled to do, that is to seek advice from the head of the finance section, or anyone else, concerning documents and matters to be considered in her assessment of financial resources available to an applicant for permanent residence. There is no evidence the decision here was delegated to or made by a person other than the Visa Officer concerned, or that her decision was fettered by the advice she may have obtained.

     It is urged the Visa Officer wrongly requested that the fair market value of the applicant's business be established, a matter not required under the Act or regulations, and when a means of providing that very information, by sale of the applicant's business was proposed, the Visa Officer refused to consider the proposal. I do not consider the latter a serious issue, the proposal to sell the business to obtain a fair market value, for it was made conditional on the applicant being given a permanent resident visa. The officer was under no obligation to accept, or even to consider such a proposal; indeed she might have abandoned her responsibilities had she done so.

     Moreover, while the specific financial evidence requested by the Visa Officer is not required by the Immigration Act or regulations, and similarly specific funds required for successful settlement in Canada are not specified by legislation, the officer, in assessing an independent applicant for permanent residence, is required to assess the applicant's financial resources and a reasonable measure of costs anticipated to successfully settle in this country. In this case the officer referred to the department manual and to a reasonable allowance for travel to Canada to estimate the latter costs, as she was entitled to do. To assess the funds that would be available from the applicant's business, the officer requested evidence in a form known and used in Kenya. It is curious that this was not provided. The financial information that was produced by the applicant did not provide, to the officer's satisfaction, sufficient basis to evaluate what, if any, of the funds involved in his business were available to support his successful settlement in Canada. The officer did not err in seeking information as requested, or in determining that the financial information provided was not sufficient for her to assess funds available to the applicant.

     It is also urged the Visa Officer fettered her discretion by relying on specifics in departmental manual guidelines, as rules, for assessing the applicant's financial needs for successful settlement in Canada. I am not persuaded that the officer in fact did any more than rely for guidance on figures obtained from departmental guidelines. That she was entitled to do.

     Further, the Visa Officer's consideration of the job offer to the applicant, as one that did not assure employment for him was not, in my opinion, an error by the Visa Officer. It is true that a job offer need not be validated or certified under the Act or regulations, but it cannot be said the job offer here was overlooked, even if it was not relied upon to offset financial information adjudged unsatisfactory by the Visa Officer.

     Finally, the applicant urges that there is no legal basis for refusal of his application. In my opinion there is a legal basis for that, that is, the applicant did not establish to the satisfaction of the Visa Officer that he had met requirements by establishing he would be able to be settled satisfactorily, relying on his own resources. There is no onus on the respondent or a Visa Officer to justify refusal of an application on any other basis than was here done. There is an onus on the applicant to demonstrate that assessment of him was in error, and that was not here done.

     For these reasons an Order issued on September 12, 1997 dismissing this application for judicial review.

     Pursuant to s-s.83(1) of the Immigration Act, counsel for the applicant proposed the following questions for certification for consideration by the Court of Appeal:

1.      Can an immigration officer solicit opinions of a non-immigration officer, without the applicant's knowledge, in assessing an application for permanent residence.

2.      Can an immigration officer refuse an applicant for permanent residence on the basis of departmental policy published but not by the Act or regulations.

     Counsel for the respondent opposed certification of the questions proposed, urging they would not be dispositive of an appeal and they did not arise on the facts of this case. I am persuaded that this is so, and thus no questions are here certified under s-s.83(1) of the Immigration Act.

     ________________________________

     JUDGE

OTTAWA, Ontario

September 22, 1997