Date: 19980528
Docket: IMM-1585-97
BETWEEN:
BARBARA WARD
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY J.:
[1] The applicant is a citizen of Barbados. She came to Canada in 1986 and remained here for eight years on extended student and employment authorizations. During her last two years in Canada, she lived with a Canadian who is the father of her daughter, born in 1993. In September 1994, when she could not further extend her visitor's status, she returned to Barbados with her daughter.
[2] In October 1995, the applicant sought permanent residence in Canada for the intended occupation of bookkeeper (CCDO category 4131114). She acknowledged that she would fall short of the required 70 units, principally as the result of one unit of assessment for occupational demand. Accordingly, in his covering letter, the applicant's counsel requested that the visa officer exercise the discretion afforded in subsection 11(3) of the Immigration Regulations1 to issue an immigrant visa where one is not awarded the required units but, in the words of the regulation, "... there are good reasons why the number of units of assessment do not reflect the chances of the particular immigrant and his dependants of becoming successfully established in Canada."
[3] In requesting the visa officer to exercise this discretion in favour of the applicant's successful establishment in Canada, her counsel highlighted as "the most compelling factor" her intention to live with and eventually marry her daughter's father upon the completion of his protracted divorce proceedings. In 1995, he was earning the combined annual income of $60,700 from two positions, one in the conveyancing department of a law firm and the other as a station attendant for an airline. He had investments of approximately $15,000 in fixed income securities and owned his residence in Toronto. The applicant urged the visa officer to consider her significant Canadian experience in the context of this financial support available for herself and her daughter.
[4] In order to establish her self-sufficiency, the applicant also relied on the cash surrender value of approximately $10,000 from two life insurance policies and $12,500 deposited in her Barbados bank account. She advised that she had received the $12,500 as a gift from her father. There was some confusion in the interview process concerning the source of these bank funds and the visa officer was not convinced the money actually belonged to the applicant. The respondent admits that the amount of the funds was a factor in the visa officer's decision and now acknowledges that the bank deposit belonged to the applicant. In my view, however, this issue is not pivotal in the resolution of this application for judicial review.
[5] The meaning of one's "becoming successfully established in Canada" pursuant to subsection 11(3) of the Immigration Regulations has received judicial consideration. In Chen v. Canada (Minister of Employment and Immigration),2 Justice Strayer noted that the selection standards "... appear to be essentially related to the ability of an immigrant to make a living in Canada or to be economically sustained other than by the state" (emphasis added). In Mangat v. Canada (Minister of Employment and Immigration),3 a second decision handed down on the same day as Chen, Justice Strayer repeated his views and, to some extent, was more specific:
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Without trying to give an exhaustive definition of what factors can properly be taken into account to determine under subs. 11(3) an immigrant's chances of becoming successfully established, as I said in Chen, supra, I think there must be some relationship to one's ability to sustain oneself financially or to be sustained by others and not by the state. [Emphasis added.) |
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The Supreme Court of Canada confirmed the view of Strayer J. as expressed in Chen.
[6] The visa officer explained her decision not to exercise the discretion available to her in subsection 11(3):
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Although you are thirty-three years of age, you have very limited work experience and all of it has been in occupations for which we have no demand, at present, in Canada. You have limited funds with which to establish and I doubt that you will find employment quickly. I have noted that you have a young child who was born in Canada while you were there with a Student Authorization. I have considered your case thoroughly and I do not believe that the use of discretion is warranted. |
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Her negative assessment of the applicant's financial resources were more specifically stated in her CAIPS notes:
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Believe subject would like to live in Canada because father of her child is resident there/ Father of child is still not divorced -- There is no evidence that he will be - I believe if subject landed in Canada she would become a recipient of welfare - particularly at this time when it would be difficult for her to leave her young child. |
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[7] In concluding that the applicant would become a recipient of welfare, the visa officer makes no reference in her CAIPS notes to the financial resources of the applicant's intended spouse. She does mention the presence of a male friend who accompanied the applicant to the Consulate but was not invited to be present during the interview. If this friend was the applicant's intended spouse, the visa officer may well have taken the opportunity of questioning him concerning the status of his divorce proceedings, his other dependents, if any, and the plausibility of his maintaining the applicant and their daughter upon their return to Canada. Similarly, the visa officer's formal decision does not comment on the applicant's reliance on the resources of her intended spouse.
[8] The visa officer is required to assess the application for permanent residence with "an open mind"4 and with "regard to the totality of the evidence".5 In this case, the applicant specifically relied on the resources she said were available from her intended spouse as "the most compelling factor" in seeking the visa officer's positive exercise of discretion pursuant to subsection 11(3) of the Immigration Regulations. It was incumbent, in my view, on the visa to deal with this factual issue before concluding that the applicant would become a welfare recipient and there is little, if any, evidence that she did.
[9] Accordingly, the application for judicial review will be granted. The visa officer's decision will be set aside and the matter will be referred for re-determination by a different visa officer.
[10] Neither party suggested the certification of a serious question.
Judge
Ottawa, Ontario
May 28, 1998
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1 SOR/78-172.
2 [1991] 3 F.C. 350, 13 Imm. L.R. (2d) 172 (F.C.T.D.) at 360 (F.C.), rev'd [1994] 1 F.C. 639, (1993), 22 Imm.L.R. (2d) 213 (F.C.A.) and aff'd [1995] 1 S.C.R. 725.
3 (1991), 13 Imm. L.R. (2d) 184 (F.C.T.D.) at 191.
4 Dick v. Canada (Minister of Employment and Immigration) (1992), 52 F.T.R. 318 (F.C.T.D.) at 320; Marques v. Canada (Minister of Citizenship and Immigration) ( No. 2) (1995), 116 F.T.R. 241 (F.C.T.D.) at 246.
5 Toro v. Minister of Employment and Immigration, [1981] 1 F.C. 652 (F.C.A.).
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