Date: 20030924
Docket: IMM-3096-02
Citation: 2003 FC 1090
Vancouver, British Columbia, this 24th day of September, 2003
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
LEE WEN CHING
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review of the decision of a visa officer at the Canadian Consulate General in Hong Kong, dated May 31, 2002, wherein the visa officer refused the applicant's application for permanent residence in Canada as a provincial nominee.
[2] The applicant seeks an order that:
1. The respondent erred in law or law and fact in refusing the applicant's application for Canadian permanent residence status;
2. The decision of the visa officer be quashed;
3. The applicant's application for Canadian permanent residence status be granted; and
4. The applicant shall have his costs in relation to the within matter.
Background
[3] The applicant is a citizen of Taiwan. On or about August 2, 2001, he made an application for nomination under the Newfoundland and Labrador Provincial Nominee Program ("PNP"). On August 31, 2001, the province issued a provincial nominee certificate to the applicant.
[4] The applicant made an application for permanent residence in Canada on or about October 18, 2001. On May 28, 2002, the applicant was interviewed by a visa officer.
[5] By letter dated May 31, 2002, the visa officer refused the applicant's application. The visa officer stated that the applicant had failed to comply with the requirements of subsection 9(3) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") because he had not complied with her request to satisfactorily demonstrate the origins of his personal net worth. The visa officer was not satisfied it would not be contrary to the Immigration Act, supra and the Immigration Regulations, 1978, S.O.R./78-172 (the "Regulations") to issue a visa to the applicant and his dependants.
[6] This is the judicial review of the decision of the visa officer.
Applicant's Submissions
[7] The applicant submits that the respondent acted ultra vires as it did not have jurisdiction by statute or otherwise, to assess the applicant on factors other than health, criminality and security.
[8] The applicant submits that if the respondent did have jurisdiction to assess the applicant on factors other than health, criminality, and security, it unreasonably and incorrectly exercised its power by:
1. Considering source of funds as a factor of assessment;
2. Alleging without justification that the applicant's funds were from an illegitimate and perhaps illegal source;
3. Manifestly allocating disproportionate weight on its unfounded suspicion that the applicant's funds were required illegitimately;
4. Inappropriately overlooking the applicant's success with respect to occupation/business experience, arranged employment of the applicant, work experience, education, entrepreneurial experience, adaptability, arranged employment of the applicant's spouse, age, language ability and personal financial resources;
5. Inappropriately overlooking the applicant's success with respect to health, criminality and security checks; and
6. Infringing the applicant's right to legal certainty.
Respondent's Submissions
[9] The respondent submits the standard of review of the discretionary decision of the visa officer is patent unreasonableness.
[10] The respondent submits it was within the visa officer's jurisdiction to question the source of the applicant's funds even though he was already in possession of a provincial nomination certificate from the Province of Newfoundland and Labrador.
[11] The respondent submits that in light of the documentary evidence provided by the applicant, and specifically his inability to provide adequate evidence of the origin of his funds, the visa officer's conclusion was reasonable.
[12] The respondent submits the visa officer committed no error of law or fact, did not fail to observe any principle of natural justice or procedural fairness, and did not act in any other manner which would raise grounds for review. As such, it is submitted the decision of the visa officer should be upheld.
Issues
[13] The application raises the following issues:
1. Did the respondent have jurisdiction to assess the applicant's selection criteria relating to financial affairs, including his source of funds?
2. If the respondent had jurisdiction to assess the applicant's selection criteria relating to financial affairs, including his source of funds, did the respondent exercise his powers thereunder correctly or did the visa officer err in refusing the applicant's application for permanent residence in Canada?
Relevant Statutory Provisions and Regulations
[14] The relevant sections of the Immigration Act, supra provide as follows:
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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. (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.
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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.(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.
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9.(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.
108.(2) The Minister, with the approval of the Governor in Council, may enter into an agreement with any province or group of provinces for the purpose of facilitating the formulation, coordination and implementation of immigration policies and programs.
114. (1) The Governor in Council may make regulations
(a) prescribing classes of immigrants and providing for the establishment, and the application to such classes, of selection standards based on such factors as family relationships, education, language, skill, occupational or business experience and other personal attributes and attainments, together with demographic considerations and labour market conditions in Canada, for the purpose of determining whether or not and the degree to which an immigrant will be able to become successfully established in Canada;
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9. (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.
108.(2) Le ministre peut, avec l'agrément du gouverneur en conseil, conclure des accords avec les provinces en vue de formuler, de coordonner et de mettre en oeuvre la politique et les programmes d'immigration.
114.(1) Le gouverneur en conseil peut, par règlement:
a) préciser des catégories d'immigrants et prévoir à leur égard l'établissement et l'application de normes de sélection, fondées sur des critères tels que la parenté, l'instruction, la langue, la compétence, l'expérience professionnelle ou l'expérience de l'exploitation d'une entreprise ou toutes autres qualités et connaissances personnelles et tenant compte des facteurs démographiques et de la situation du marché du travail au Canada, dans le but de déterminer si l'immigrant pourra ou non réussir son installation au Canada et si oui, dans quelle mesure;
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114.(4) Where a province has entered into an agreement pursuant to section 108 whereby the province has sole responsibility for the selection of certain prescribed classes of immigrants,
(a) the selections standards established under paragraph (1)(a) and all regulations made pursuant to paragraphs (1)(b.1) and (f), and
(b) the landing requirements prescribed under paragraph (1) (e), other than the landing requirements relating to membership in inadmissible classes described in section 19,
shall not apply in respect of any immigrant of any such class who intends to reside in that province.
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114.(4) Dans le cas où une province exerce seule, aux termes d'un accord conclu en vertu de l'article 108, la responsabilité de la sélection des immigrants appartenant à une catégorie réglementaire:
a) les normes de sélection établies en vertu des règlements d'application de l'alinéa (1)a) et les règlements d'application des alinéas (1)b.1) et f) ne s'appliquent pas aux immigrants de cette catégorie qui entendent résider sur son territoire;
b) les exigences relatives à l'établissement prévues par les règlements d'application de l'alinéa (1)e) ne s'appliquent pas aux immigrants de cette catégorie qui entendent résider sur son territoire, à l'exception de celles qui ont trait à l'appartenance aux catégories non admissibles visées à l'article 19.
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[15] Subsection 8(1) of the Immigration Regulations, supra states:
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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
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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:
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. . .
(c) in the case of an entrepreneur, an investor or a provincial nominee, on the basis of each of the factors listed in Column I of Schedule I, other than the factors set out in items 4 and 5 thereof.
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. . .
c) dans le cas d'un entrepreneur, d'un investisseur ou d'un candidat d'une province, suivant chacun des facteurs énumérés dans la colonne I de l'annexe I, sauf ceux visés aux articles 4 et 5 de cette annexe;
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Analysis and Decision
[16] Standard of Review
The Supreme Court of Canada in Dr. Q v. 2003 SCC 19">College of Physicians and Surgeons of British Columbia, 2003 SCC 19, stated that the standard of review to be applied to a particular case is to be determined by applying the pragmatic and functional approach. In using this approach, four factors are considered:
1. The presence or absence of a privative clause or statutory right of appeal;
2. The expertise of the tribunal relative to that of the reviewing court on the issue in question;
3. The purpose of the legislation and the provision in particular; and
4. The nature of the question - law, fact, mixed law and fact.
(see paragraph 26).
[17] I have come to the conclusion that for the purposes of this case, I need not determine whether the standard of review to be applied to the visa officer's decision is patent unreasonableness, reasonbleness simpliciter or correctness. The reasons to follow will show why.
[18] Issue 1
Did the respondent have jurisdiction to assess the applicant's selection criteria relating to financial affairs, including his source of funds?
The applicant submitted that the visa officer did not have jurisdiction to consider his financial affairs, including the source of his personal funds, as a factor of assessment. The Federal Court of Appeal rejected a similar argument in Biao v. Canada (Minister of Immigration and Citizenship), 2001 FCA 43 at paragraph 1:
We consider that this appeal should be dismissed with costs and that this question certified by the motions judge should be answered in the negative:
Does the Canada-Quebec Accord limit the jurisdiction of the visa officer to question the source of funds of a Quebec-destined applicant for permanent residence in Canada, in order to establish the applicant's admissibility?
It seems clear to the Court that there is no incompatibility in the powers and duties of the two signatories of the Canada-Quebec Accord regarding immigration to Quebec. Clause 12 of that Accord states that the federal government has the authority to admit immigrants to Quebec and that it is the Government of Quebec which has the responsibility and powers of selecting immigrants wishing to settle in Quebec. Naturally the selection by the Quebec authorities is made and conducted from among the eligible immigrants. Clause 12(d) of the Accord expressly recognizes this, as follows:
12. Subject to sections 13 to 20:
(a) Québec has sole responsibility for the selection of immigrants destined to that province and Canada has sole responsibility for the admission of immigrants to that province.
(b) Canada shall admit any immigrant destined to Québec who meets Québec's selection criteria, if the immigrant is not in an inadmissible class under the law of Canada.
(c) Canada shall not admit any immigrant into Québec who does not meet Québec's selection criteria.
[19] Biao, supra, stands for the proposition that under the Canada-Québec Accord, the provincial authorities may examine the source of an applicant's funds for the purpose of selection and the federal immigration authorities may examine the source of an applicant's funds for the purpose of determining admissibility.
[20] The Federal Court of Appeal's approach in Biao, supra, to the impact of the Canada-Québec Accord on the jurisdiction of visa officers was applied recently by this Court in Kletsov v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1076.
[21] Similar to the Canada-Québec Accord, the Canada-Newfoundland and Labrador Agreement on Provincial Nominees provides for duties and powers of each signatory.
[22] Clauses 4.3 and 4.4 of the Canada-Newfoundland and Labrador Agreement on Provincial Nominees reads as follows:
4.3 In exercising its nomination authority under this Agreement, Newfoundland and Labrador will follow its own procedures and criteria for nomination, and as amended by Newfoundland and Labrador from time to time. Newfoundland and Labrador will keep written records of its assessments of its nominees against these criteria.
4.4 Notwithstanding the nomination authority of Newfoundland and Labrador as set out in this Agreement, Canada remains responsible for:
a) determining the admissibility of each nominee and his or her dependents with respect to all legislative requirements including health, criminality and security;
b) exercising the final selection authority, as required by Statute and Regulation;
c) issuing immigrant visas to provincial nominees and their accompanying dependents who meet all the admissibility requirements of the Immigration Act and Regulations and of this Agreement;
d) providing Newfoundland and Labrador with information, on a quarterly basis, on average processing times of provincial nominees destined to Newfoundland and Labrador; and
e) providing Newfoundland and Labrador with names and dates of landings of Newfoundland and Labrador-nominated provincial nominees in each quarter.
[23] Based on the similarity of language found in the Canada-Québec Accord, as analysed in Biao and Kletsov, supra and the Canada-Newfoundland and Labrador Agreement at issue here, I have come to the conclusion that the visa officer had the jurisdiction to assess the source of the applicant's funds.
[24] Issue 2
If the respondent had jurisdiction to assess the applicant's selection criteria relating to financial affairs, including his source of funds, did the respondent exercise his powers thereunder correctly or did the visa officer err in refusing the applicant's application for permanent residence in Canada?
In paragraph 17 of the visa officer's affidavit, the visa officer stated in part, ". . . The Applicant could not satisfy me that his funds were accumulated legally". It seems to me that the visa officer's conclusion that the funds were not accumulated legally leads to the conclusion that the funds were somehow accumulated illegally. There is no evidence that the funds were raised or accumulated illegally. There is a difference between lack of documentation for the accumulation of the funds and the funds being raised illegally or not accumulated legally. The visa officer has stated that the basis of her decision was the source of funds. The applicant offered information concerning the source of his funds and explanations to the visa officer as to why he could not provide documentary proof. The visa officer did not state that she did not believe the applicant's explanation but instead concluded that the funds were not accumulated legally. I cannot determine how much the visa officer's conclusion that she was not satisfied that the funds were accumulated legally played in her decision to reject the application. I am of the view that the visa officer must deal with the explanations offered by the applicant and either accept or reject the explanations. As a result, I am of the opinion that the visa officer made a reviewable error no matter which of the standards of review as mentioned in paragraph 16 is applied.
[25] The application for judicial review is allowed and the matter is referred back to a different visa officer for redetermination.
[26] Neither party wished to submit a serious question of general importance for my consideration for certification.
ORDER
[27] IT IS ORDERED that:
1. The application for judicial review is allowed and the matter is referred back to a different visa officer for redetermination.
2, There is no order as to costs.
"John A. O'Keefe"
J.F.C.C.
Vancouver, British Columbia
September 24, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3096-02
STYLE OF CAUSE: LEE WEN CHING
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION CANADA
PLACE OF HEARING: St. John's, Newfoundland and Labrador
DATE OF HEARING: Friday, May 23, 2003
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: Wednesday, September 24, 2003
APPEARANCES:
Michelle Cooze
FOR APPLICANT
Lori Rasmussen
FOR RESPONDENT
SOLICITORS OF RECORD:
Christopher Sullivan Law Office
Suite 300, Victoria Hall
187 Gower Street
St. John's, Newfoundland and Labrador
A1C 1R2
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT
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