Date: 20030515
Docket: IMM-4712-01
Neutral citation: 2003 FCT 604
Ottawa, Ontario, this 15th day of May, 2003
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
SAJID HUSSAIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review in respect of a decision of a visa officer dated August 28, 2001 whereby the visa officer refused the applicant's application for permanent residence in Canada.
Background
[2] The applicant is a citizen of Pakistan who submitted an application for permanent residence in Canada in the independent selection category as a mechanical engineer (NOC 2132).
[3] By letter dated September 16, 2000, the applicant submitted documents and a bank statement to the visa post.
[4] By letter dated March 5, 2001, the applicant was informed that he would be interviewed and that he should bring to the interview proof of funds available for settlement in Canada including proof of source of deposits greater than 50,000 Pakistani Rupees.
[5] The applicant was interviewed on June 18, 2001 and received 76 units of assessment in the intended occupation of mechanical engineer (NOC 2132).
[6] On June 27, 2001, the visa officer wrote to the applicant and requested that he provide the visa officer with proof of the source of his funds contained in his bank account.
[7] On July 11, 2001, the applicant's counsel provided information to the visa officer which included a bank statement, a receipt for the sale of jewellery, receipts from a money exchange and documents showing the sale of his car. These documents were submitted to attempt to show the source of his funds.
[8] The visa officer wrote again on July 23, 2001 wanting to know the source of the US $10,500 sold to Alamgir money changer in September 2000. The visa officer also stated that in relation to the sale of his car, the applicant must show proof of the source of money transferred into his bank account after the sale of his car. As this was a cash deposit, the applicant also had to show proof of the same cash amount being withdrawn the same day from the buyer's account.
[9] The applicant's counsel, by letter dated August 10, 2001, explained that people such as the applicant prefer to convert their savings into US dollars and that since 1998 when foreign currency accounts were frozen by the government, people prefer to keep their dollars at home instead of the bank. The letter also stated that the applicant had been saving for 13 years and that he used to make part of his earnings by the purchasing and selling of dollars.
[10] By letter dated August 28, 2001, the visa officer refused the applicant's application. The letter states, in part, as follows:
. . .
You are a member of the inadmissible class of persons described in paragraph 19 (1) (b) of the Immigration Act, in that you have not demonstrated that you would be able to support youself and your family in Canada.
Paragraph 19 (1) (b) of the Immigration Act reads as follows:
19. (1) No person shall be granted admission who is a member 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 upon 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.
I am not satisfied that you have sufficient liquid assets available as settlement funds and will be unable to support yourself and your family upon arrival in Canada.
. . .
[11] Issues
The applicant submits that the following issues are raised in this application for judicial review.
1. Did the visa officer act without jurisdiction or beyond his jurisdiction in refusing the applicant's application for landing?
2. Did the visa officer fail to give the applicant the opportunity to respond to his concerns, thereby breaching the duty of fairness?
Applicant's Submissions
[12] The applicant submits that he has met the 70 units of assessment required for an immigrant visa and should not be declared inadmissible pursuant to section 19 of the Immigration Act, R.S.C. 1985, c. I-2. He states that he has provided the source of his funds to the visa officer, and in any event, proof of source of funds is not a requirement for an applicant applying in the independent category.
[13] The applicant also submits that the visa officer did not give the applicant an opportunity to address his concerns regarding the credibility of the documentation resulting in a breach of the duty of fairness.
Respondent's Submissions
[14] The respondent submits that the visa officer had the authority to require proof of the source of the funds by virtue of subsection 9.(3) of the Immigration Act, supra.
[15] The respondent submits that given the applicant's earnings, the fact he was supporting a wife and two children and the anomalies of his banking history, the visa officer was justified in questioning the source of the applicant's funds and to state his dissatisfaction with the evidence.
[16] The respondent also submitted that the visa officer did not breach the duty of fairness as alleged.
Relevant Statutory Provisions
[17] The relevant sections of the Immigration Act, supra state as follows:
|
6. (1) Subject to this Act and the regulations, any immigrant, including a Convention refugee, and all dependants, if any, may be granted landing if it is established to the satisfaction of an immigration officer that the immigrant meets the selection standards established by the regulations for the purpose of determining whether or not and the degree to which the immigrant will be able to become successfully established in Canada, as determined in accordance with the regulations.
8. (1) Where a person seeks to come into Canada, the burden of proving that that person has a right to come into Canada or that his admission would not be contrary to this Act or the regulations rests on that person.
9.(2) An application for an immigrant's visa shall be assessed by a visa officer for the purpose of determining whether the person making the application and every dependant of that person appear to be persons who may be granted landing.
(3) Every person shall answer truthfully all questions put to that person by a visa officer and shall produce such documentation as may be required by the visa officer for the purpose of establishing that his admission would not be contrary to this Act or the regulations. requirements of this Act and the regulations.
|
6. (1) Sous réserve des autres dispositions de la présente loi et de ses règlements, tout immigrant, notamment tout réfugié au sens de la Convention, ainsi que toutes les personnes à sa charge peuvent obtenir le droit d'établissement si l'agent d'immigration est convaincu que l'immigrant satisfait aux normes réglementaires de sélection visant à déterminer s'il pourra ou non réussir son installation au Canada, au sens des règlements, et si oui, dans quelle mesure.
8. (1) Il incombe à quiconque cherche à entrer au Canada de prouver qu'il en a le droit ou que le fait d'y être admis ne contreviendrait pas à la présente loi ni à ses règlements.
9.(2) Le cas du demandeur de visa d'immigrant est apprécié par l'agent des visas qui détermine si le demandeur et chacune des personnes à sa charge semblent répondre aux critères de l'établissement.
(3) Toute personne doit répondre franchement aux questions de l'agent des visas et produire toutes les pièces qu'exige celui-ci pour établir que son admission ne contreviendrait pas à la présente loi ni à ses règlements.
|
|
(4) Subject to subsection (5), where a visa officer is satisfied that it would not be contrary to this Act or the regulations to grant landing or entry, as the case may be, to a person who has made an application pursuant to subsection (1) and to the person's dependants, the visa officer may issue a visa to that person and to each of that person's accompanying dependants for the purpose of identifying the holder thereof as an immigrant or a visitor, as the case may be, who, in the opinion of the visa officer, meets the requirements of this Act and the regulations.
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; |
(4) Sous réserve du paragraphe (5), l'agent des visas qui est convaincu que l'établissement ou le séjour au Canada du demandeur et des personnes à sa charge ne contreviendrait pas à la présente loi ni à ses règlements peut délivrer à ce dernier et aux personnes à charge qui l'accompagnent un visa précisant leur qualité d'immigrant ou de visiteur et attestant qu'à son avis, ils satisfont aux exigences de la présente loi et de ses règlements.
19. (1) Les personnes suivantes appartiennent à une catégorie non admissible:
. . .
b) celles dont il y a des motifs raisonnables de croire qu'elles n'ont pas la capacité ou la volonté présente ou future de subvenir tant à leurs besoins qu'à ceux des personnes à leur charge et qui ne peuvent convaincre l'agent d'immigration que les dispositions nécessaires - n'impliquant pas l'aide sociale - ont été prises en vue d'assurer leur soutien; |
[18] The relevant sections of the Immigration Regulations, 1978, S.O.R./78-172 state:
|
8. (1) Subject to section 11.1, for the purpose of determining whether an immigrant and the immigrant's dependants, other than a member of the family class, a Convention refugee seeking resettlement or an immigrant who intends to reside in the Province of Quebec, will be able to become successfully established in Canada, a visa officer shall assess that immigrant or, at the option of the immigrant, the spouse of that immigrant
|
8. (1) Sous réserve de l'article 11.1, afin de déterminer si un immigrant et les personnes à sa charge, à l'exception d'un parent, d'un réfugié au sens de la Convention cherchant à se réinstaller et d'un immigrant qui entend résider au Québec, pourront réussir leur installation au Canada, l'agent des visas apprécie l'immigrant ou, au choix de ce dernier, son conjoint:
|
|
(a) in the case of an immigrant, other than an immigrant described in paragraph (b) or (c), on the basis of each of the factors listed in column I of Schedule I;
. . .
(2) A visa officer shall award to an immigrant who is assessed on the basis of factors listed in Column I of Schedule I the appropriate number of units of assessment for each factor in accordance with the criteria set out in Column II thereof opposite that factor, but he shall not award for any factor more units of assessment than the maximum number set out in Column III thereof opposite that factor.
9. (1) Subject to subsection (1.01) and section 11, where an immigrant, other than a member of the family class, an assisted relative, or a Convention refugee seeking resettlement makes an application for a visa, a visa officer may issue an immigrant visa to him and his accompanying dependants if
(a) he and his dependants, whether accompanying dependants or not, are not members of any inadmissible class and otherwise meet the requirements of the Act and these Regulations;
(b) where the immigrant and the immigrant's accompanying dependants intend to reside in a place in Canada other than the Province of Quebec, on the basis of the assessment of the immigrant or the spouse of that immigrant in accordance with section 8,
(i) in the case of an immigrant other than an entrepreneur, an investor or a provincial nominee, he is awarded at least 70 units of assessment, . . . |
a) dans le cas d'un immigrant qui n'est pas visé aux alinéas b) ou c), suivant chacun des facteurs énumérés dans la colonne I de l'annexe I;
. . .
(2) Un agent des visas doit donner à l'immigrant qui est apprécié suivant les facteurs énumérés dans la colonne I de l'annexe I le nombre voulu de points d'appréciation pour chaque facteur, en s'en tenant au maximum fixé à la colonne III, conformément aux critères visés dans la colonne II de cette annexe vis-à-vis de ce facteur.
9. (1) Sous réserve du paragraphe (1.01) et de l'article 11, lorsqu'un immigrant, autre qu'une personne et appartenant à la catégorie de la famille, qu'un parent aidé ou qu'un réfugié au sens de la Convention cherchant à se réétablir, présente une demande de visa d'immigrant, l'agent des visas peut lui en délivrer un ainsi qu'à toute personne à charge qui l'accompagne si:
a) l'immigrant et les personnes à sa charge, qu'elles l'accompagnent ou non, ne font pas partie d'une catégorie de personnes non admissibles et satisfont aux exigences de la Loi et du présent règlement; et
b) lorsqu'ils entendent résider au Canada ailleurs qu'au Québec, suivant son appréciation de l'immigrant ou du conjoint de celui-ci selon l'article 8:
(i) dans le cas d'un immigrant, autre qu'un entrepreneur, un investisseur, ou un candidat d'une province, il obtient au moins 70 points d'appréciation, . . . |
[19] The following document entitled, The Immigration Manual, Overseas Processing, OP5, Processing Independent Immigrants is found in the applicant's record at page 29:
7.2 Inability to Support - A19(1)(b)
The points system is designed to select immigrants who have the skills and abilities to contribute economically to Canada. These immigrants need to bring with them sufficient funds to support themselves and their dependants during their initial settlement. The points system does not provide for assessment of funds. This ability to fund initial settlement costs without recourse to social assistance is a question of admissibility, rather than a selection issue.
A visa officer should refuse under A19(1)(b) any immigrant who does not have this financial ability. An independent immigrant must budget for an initial period of expenses associated with moving and resettlement and not expect provincial social assistance programs to cover his needs. No immigrant can be admitted to Canada if on their arrival or shortly after it is reasonable to believe that they will be unwilling or unable to support themselves and their dependants and, as a result will have to depend on social assistance.
If the visa officer feels the applicant could be described in A19(1)(b), the applicant must be informed in a clear and transparent manner. The officer should always advise the applicant (preferably in writing) of the nature of the problem and give him or her a chance to address that problem. The applicant can submit any other evidence available which may demonstrate that he will not require social assistance. The officer may even wish to suggest a particular action to be taken that would convince him or her that the provisions of A19(1)(b) have been met. Should an applicant fail to convince the officer, the application should then be refused.
The visa officer must judge each case individually. Evidence of support from other parties that is submitted by the applicant must be assessed by the officer to determine if he or she is satisfied that A19(1)(b) no longer applies.
In deciding how much in the way of liquid assets (hard currency) an individual or family needs in order to meet initial settlement expenses, it is recommended that the applicant be in possession of $10,000 plus an additional C $2,000 for his/her spouse and each accompanying dependent. The actual amount a particular applicant will require will depend on many factors including the applicant's plans and preparations for immigrating. For example, the applicant may have arranged for accommodation with relatives in Canada which would appropriately reduce the amount of liquid funds required on arrival.
Flexibility in applying this requirement is encouraged. Settlement funds should not be looked at in isolation, but viewed in the context of other establishment indicators.
Analysis and Decision
[20] Issue 1
Did the visa officer act without jurisdiction or beyond his jurisdiction in refusing the applicant's application for landing?
From a review of the file material, it would appear that the applicant was refused as he did not prove the source of the funds that he had available to support himself and his family during their initial settlement.
[21] I have reviewed the Immigration Act, supra and the Immigration Regulations, 1978, supra and I cannot find a requirement that the applicant prove the source of his funds when applying under the independent category. What an applicant has to prove is that these funds are in his possession so that, during this initial settlement, he will be able to support himself and his family and not draw on social assistance. This view is supported by the second last paragraph of section 7.2 of The Immigration Manual, supra (paragraph 1 of this decision) wherein it is stated that it is recommended that the applicant be in possession of a certain amount of funds.
[22] I am of the view that the visa officer made a reviewable error in determining that the applicant did not "have sufficient liquid assets available as settlement funds . . .". The affidavit of the visa officer makes it clear that the concern was the source of the funds, not whether the applicant had the funds in his possession.
[23] Because of my finding on Issue 1, I need not deal with the other issue.
[24] The application for judicial review is therefore allowed.
[25] Neither party wished to submit a serious question of general importance for my consideration.
ORDER
[26] IT IS ORDERED that the application for judicial review is allowed and the matter is referred to a different visa officer for redetermination.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
May 15, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4712-01
STYLE OF CAUSE: SAJID HUSSAIN
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Tuesday, February 11, 2003
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
APPEARANCES:
Sabrina Tozzi
FOR APPLICANT
Robert Bafaro
FOR RESPONDENT
SOLICITORS OF RECORD:
Green and Spiegel
121 King Street West
Suite 2200
P. O. Box 114
Toronto, Ontario
M5H 3T9
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT