Date: 20030228
Dockets: IMM-5244-01
IMM-5246-01
Neutral citation: 2003 FCT 262
BETWEEN:
MIRA HORVAT
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
AND BETWEEN:
RENATO HORVAT
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LINDEN J.A.(ex officio)
Introduction
[1] These reasons will deal with two related matters that were heard together. The two Applicants (Renato Horvat and his mother Mira Horvat) seek judicial review of the decisions of Kate Eede (the "Visa Officer") at the Canadian Embassy in Berlin, Germany. By letters both dated October 15, 2001, the Visa Officer refused the Applicants' applications for permanent residence in Canada as self-supporting Convention refugees seeking resettlement.
- Facts
- The Applicants are Bosnians of Croatian descent who fled to Germany during the war. Renato Horvat was born in Croatia; his wife, Adisa, is a Moslem who was born in Croatia where she lived until coming to Germany; and his mother, Mira, who was born in Bosnia-Herzegovina, has Croatian parents who live in Croatia.
[3] Prior to the immigration applications which form the basis for these judicial review applications, the Applicants had applied to come to Canada as self-supporting refugees. In letters dated August 6, 1999, these earlier applications were refused by the same Visa Officer whose decisions are now under review. In her first refusal letters to the Applicants, the Visa Officer said she had concluded that the Applicants were not in need of resettlement in Canada because she determined that Croatia offered an alternative durable solution. Mira Horvat's refusal letter also stated that the Visa Officer was not convinced that she possessed sufficient funds, transferable labour market skills or language skills to enable her to settle in Canada without financial assistance.
[4] In February 2000 the Applicants applied again to come to Canada. On November 6, 2000, Renato Horvat and his wife Adisa Horvat were interviewed by the Visa Officer, as was Mr. Horvat's mother, Mira Horvat.
[5] Based on information she received from the Vienna visa office, and her own reading of the Croatian Citizenship Act, the Visa Officer determined that the Applicants are eligible for Croatian citizenship. As a result, she once again refused the Applicants' applications. The Visa Officer also noted that Mr. Horvat and his wife failed to provide reliable proof that they have sufficient financial resources to settle in Canada, even though they provided documents evidencing savings in excess of 78,000 DM (approximately $56,500 Canadian dollars).
- Issues
- 1. Do the Visa Officer's decisions give rise to a reasonable apprehension of bias?
2. Did the Visa Officer provide sufficient reasons explaining why the Applicants are eligible for Croatian Citizenship?
3. Did the Visa Officer fetter her discretion in requiring proof of funds?
Relevant Statutory Provisions
[7] Subsection 2(1) of the Immigration Act, R.S.C. 1985, c. 1-2 includes the following definition:
| "Convention refugee" means any person who
(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or
(ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and
|
« réfugié au sens de la Convention » Toute personne_:
a) qui, craignant avec raison d'être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques_:
(i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays,
(ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner;
|
Subsection 2(1) of the Immigration Regulations, 1978, S.O.R./78-172 provides that:
| "Convention refugee seeking resettlement" means a person, other than a person whose case has been rejected in accordance with the Comprehensive Plan of Action adopted by the International Conference on Indo-Chinese Refugees on June 14, l989, who is a Convention refugee
(a) who is outside Canada,
(b) who is seeking admission to Canada for the purpose of resettling in Canada, and
(c) in respect of whom there is no possibility, within a reasonable period of time, of a durable solution;
|
« _réfugié au sens de la Convention cherchant à se réinstaller_ » Personne, autre qu'une personne dont le cas a fait l'objet d'un rejet conformément au plan d'action global adopté le 14 juin 1989 par la Conférence internationale sur les réfugiés indochinois, qui est un réfugié au sens de la Convention :
a) qui se trouve hors du Canada;
b) qui cherche à être admis au Canada pour s'y réinstaller;
c) à l'égard duquel aucune solution durable n'est réalisable dans un laps de temps raisonnable.
|
Subsection 7(1) of the Regulations contains the following criteria for assessing an application for a refugee seeking resettlement in Canada.
| 7. (1) Where a person seeks admission to Canada as a Convention refugee seeking resettlement, the person and their accompanying dependants, if any, are subject to the following admission requirements:
(a) a visa officer is satisfied that the person is a Convention refugee seeking resettlement;
(b) a visa officer determines that
(i) a group or corporation is sponsoring the application for admission of the person and the accompanying dependants in accordance with section 7.1,
(ii) financial or other assistance is available in Canada for the person and the accompanying dependants, or
(iii) the person has sufficient financial resources to provide for the lodging, care and maintenance, and for the resettlement in Canada, of the person and the accompanying dependants;
(c) where the person and the accompanying dependants intend to reside in a place in Canada other than the Province of Quebec, a visa officer determines that the person and the accompanying dependants will be able to become successfully established in Canada, taking into consideration:
(i) the ability of the person and the accompanying dependants to communicate in one of the official languages of Canada,
(ii) the age of the person,
(iii) the level of education, the work experience and the skills of the person and the accompanying dependants,
(iv) the number and ages of the accompanying dependants, and
(v) the personal suitability of the person and their accompanying dependants, including their adaptability, motivation, initiative, resourcefulness and other similar qualities; and
|
7. (1) Les exigences relatives à l'admission de la personne qui demande à être admise au Canada à titre de réfugié au sens de la Convention cherchant à se réinstaller, ainsi que des personnes à sa charge qui l'accompagnent, le cas échéant, sont les suivantes :
a) l'agent des visas est convaincu que la personne est un réfugié au sens de la Convention cherchant à se réinstaller;
b) l'agent des visas détermine :
(i) soit qu'un groupe ou une personne morale parraine leur demande d'admission conformément à l'article 7.1,
(ii) soit qu'une aide financière ou autre est à leur disposition au Canada,
(iii) soit que la personne possède les ressources financières nécessaires pour assurer leur logement, subvenir à leurs besoins et les installer au Canada;
c) dans le cas où la personne et les personnes à sa charge qui l'accompagnent entendent résider au Canada ailleurs qu'au Québec, l'agent des visas détermine qu'elles pourront réussir leur installation au Canada, en tenant compte des facteurs suivants :
(i) leur aptitude à communiquer dans l'une des langues officielles du Canada,
(ii) l'âge de la personne,
(iii) leur niveau de scolarité, leurs antécédents de travail et leurs compétences,
(iv) le nombre de personnes à sa charge qui l'accompagnent et leur âge,
(v) leurs qualités personnelles, notamment leur faculté d'adaptation, leur motivation, leur esprit d'initiative, leur ingéniosité et autres qualités semblables;
|
Arguments & Analysis
Reasonable Apprehension of Bias
[8] The Applicants submit that the Visa Officer's decisions gives rise to a reasonable apprehension of bias since she is the same visa officer who refused the Applicants' previous applications to immigrate to Canada. In both sets of refusal letters sent to the Applicants, the Visa Officer explains that the Applicants are not admissible to Canada as self-supporting refugees because they are eligible for Croatian citizenship.
[9] The Respondent submits that the mere fact that the Visa Officer previously refused applications from the Applicants does not, in and of itself, lead to a reasonable apprehension of bias. The Respondent points out that in Au. v.Canada (Minister of Citizenship and Immigration), 2001 F.C.T. this Court has stated that the test for reasonable apprehension of bias in less stringent for visa officers than it is for judicial decision makers. The test, it is submitted, requires an absence of conflict of interest, a mind that is open to persuasion, and a level of decorum conducive to an open and fair exchange while the applicant attempts to meet the selection criteria.
[10] According to the Respondent, the Visa Officer gave the Applicants every opportunity to present their submissions and rebut her concerns. The Applicant also swears that she conducted her interviews with the Applicants in a professional manner.
[11] I am not persuaded that there was any reasonable apprehension of bias here.
- Reasons
- The Applicants contend that they were denied procedural fairness because the Visa Officer failed to give adequate reasons for her determination that the Applicants were eligible for Croatian citizenship. In addition, the Applicants complain that the Visa Officer failed to give reasons for her rejection of the submission provided by their immigration consultant as to why the Applicants are ineligible for Croatian citizenship.
[13] The Respondent submits that the Visa Officer's decision as to why the Applicants were eligible for Croatian citizenship was sufficiently detailed. The Respondent points to excerpts from the Officer's October 15th letters to the Applicants and her CAIPs notes which suggest that the Officer delved in the citizenship issue during the interview, that she considered the consultant's submissions, and that she advised the Applicants repeatedly that she thought Croatia offered them an alternative to coming to Canada. What the record discloses, however, is that the Applicants emphasized that they were not willing to obtain citizenship in or settle in Croatia.
[14] Although the reasons are rather skimpy in both cases, I have not been convinced that they were insufficient in all the circumstances of this case. There was no denial of procedural fairness in my view.
Proof of Funds
[15] It is not necessary for me to deal with this issue in light of my decision on the reasons issue.
Conclusion
[16] Both applications for judicial review should be dismissed, without costs.
"A.M. Linden"
Judge
Toronto, Ontario
February 28, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKETS: IMM-5244-01
IMM-5246-01
STYLE OF CAUSE: MIRA HORVAT
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
AND BETWEEN:
RENATO HORVAT
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
DATE OF HEARING: FRIDAY, FEBRUARY 28, 2003
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: LINDEN J.A. (ex officio)
DATED: FRIDAY, FEBRUARY 28, 2003
APPEARANCES BY: Mr. M. Max Chaudhary
For the Applicant
Mr. Martin Anderson
Ms. Angela Marinos
For the Respondent
Page: 2
SOLICITORS OF RECORD: Mr. M. Max Chaudhary
18 Wynford Drive
Suite 707
North York, Ontario
M3C 3S2
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030228
Dockets: IMM-5244-01
IMM-5246-01
BETWEEN:
MIRA HORVAT
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
AND BETWEEN:
RENATO HORVAT
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
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