Xu v. Canada (Minister of Citizenship and Immigration), docket IMM-2396-00

Date : 20001215

File : IMM-2396-00

BETWEEN:

        

     Ms. XU Weimin, personnel officer, residing at

     Room 603, No. 32 Branch Lane

     73, 1302 Changying Road, Shanghai,

     Peoples Republic of China;

     Applicant

AND:

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     c/o Minister of Justice, Complexe Guy-Favreau,

     200 boul. René-Lévesque ouest, Tour Est,

     5ième étage, Montréal, Québec, H2Z 1X4;

     Respondent

     REASONS FOR ORDER

TEITELBAUM, J:

INTRODUCTION

[1]      At the request of counsel for the applicant, this decision is in the English language. The applicant, I believe, does not read French.

[2]      This application is for judicial review of a decision of Jocelyne Brunet, Vice-Consul at the Canadian Consulate General in Hong Kong (hereinafter "the visa officer"), dated April 11, 2000, wherein the visa officer refused Weibin Xu's (hereinafter "the applicant") application for permanent residence.

FACTS

[3]      The applicant is a citizen of the People's Republic of China.

[4]      On April 30, 1997, the applicant submitted an application for permanent residence as a member of the Independent category of immigrants. The applicant requested that she be considered under the occupation of « Personnel Officer - CCDO 1174-118 » .

[5]      On January 18, 2000, the visa officer interviewed the applicant in order to assess her application. During the interview, the applicant informed the visa officer that she had a maternal aunt who had landed in Canada on October 2, 1999. The applicant provided a copy of her aunt's visa issued in Los Angeles on July 23, 1999. The applicant insisted that her aunt was a landed immigrant in Canada and therefore she was entitled to the 5 bonus units of assessment.

[6]      The visa officer informed the applicant that she was not entitled to the 5 bonus units of assessment because her aunt had never established herself in Canada and therefore did not reside in Canada according to the Immigration Act, R.S.C. 1985, c. I-2 (hereinafter "the Act") and the Immigration Regulations, 1978, SOR/78/172 (hereinafter "the Regulations").

[7]      On January 18, 2000, the visa officer denied the applicant's application.

[8]      On February 15, 2000, convinced that the visa officer had erred in the assessment with regards to the interpretation of "assisted relative", the applicant requested a reconsideration of her application. In support of her claim that her aunt was a permanent resident in Canada, she provided copies of her aunt's visa, social insurance number and driver's licence issued in British Columbia.

[9]      On April 11, 2000, the visa officer sent the applicant a refusal letter. The letter stated that the applicant had failed to earn the minimum required units of assessment, which is 70 units of assessment, to pass in the Independent category. The applicant had only earned 66 units of assessment. The applicant had not earned any units in the bonus factor.

ARGUMENTS OF THE APPLICANT

[10]      The applicant submits that the visa officer acted without or exceeded her jurisdiction in adding the criteria of establishment to "assisted relative" as defined in the Regulations.

[11]      The applicant submits that the visa officer erred in concluding that her aunt did not reside in Canada. This decision was based on an erroneous conclusion of fact, drawn in an abusive and arbitrary manner or without taking into consideration all of the evidence before her. Pursuant to section 24 of the Act, the applicant's aunt can reside in Canada while being abroad if she doesn't intend to cease to permanently reside in Canada. There is no indication that her aunt abandoned or intended to abandon Canada as her principal residence. The applicant submits that she did establish that her aunt was present in Canada for two weeks, that there was a family tie between her and her aunt, and that her aunt resided in Canada according to the Act and the Regulations.

[12]      The applicant submits that the visa officer fettered her discretion in concluding that her aunt did not reside in Canada on the sole basis that she was abroad at the time of the interview.

ARGUMENTS OF THE RESPONDENT

[13]      The respondent submits that the visa officer assessed the applicant's application in an equitable manner, properly exercised her discretion, judiciously considered the application and correctly applied the definition of "assisted relative" provided in the Regulations. To qualify as an assisted relative, the applicant had to demonstrate to the visa officer that she was a relative of a Canadian citizen or a permanent resident who was at least 19 years of age and who resides in Canada. Although the visa officer did not doubt the fact that the applicant had an aunt who was a permanent resident, she did conclude that her aunt did not reside in Canada as there was insufficient evidence to establish that her aunt did in fact reside in Canada.

[14]      The respondent submits that the visa officer did not exceed her jurisdiction in applying the criteria of establishment in order to determine if the applicant's aunt was residing in Canada. It was reasonable for the visa officer to use the criteria of establishment as it allows one to assess if an individual actually resides in Canada.

[15]      The respondent submits that given the fact that "resides" is not defined in the Act or the Regulations, it is appropriate to refer to this Court's decisions in the area of citizenship to arrive at its proper meaning. Accordingly, in order to conclude that an individual has his place of residence in Canada, he or she must have established his home and centralized his ordinary mode of living. The respondent submits that simply verifying if the aunt was present in Canada at the time of the interview would have been entirely insufficient. It was the visa officer's duty to verify if the aunt resided in Canada, even if she was out of the country at the time of the interview.

[16]      The respondent submits that, contrary to what the applicant contends, there is no indication on the Record that the visa officer thought that the aunt was no longer a landed immigrant. The Record reveals that the visa officer did accept that the aunt was a permanent resident in Canada. What was problematic was the fact that the applicant had failed to establish that her aunt resided in Canada which is a crucial factor in the definition of "assisted relative". The respondent submits that it is not enough to demonstrate an intention to reside in Canada in order to establish that an individual resides in Canada according to the definition of "assisted relative". The establishment of residency is essential as the aim of the "assisted relative" category is to allocate bonus units of assessment to applicants with relatives in Canada who can assist in their integration in Canadian society.

[17]      The applicant failed to demonstrate that her aunt had established her residence in Canada prior to going abroad. The driver's licence and the social insurance number are in no way indications that a person has established his or her residence in Canada.

[18]      The respondent further submits that the visa officer did not refuse to assess the applicant's application under the "assisted relative" category because her aunt was not present in Canada at the time of the interview. The Record clearly reveals that it is because the applicant had failed to demonstrate that her aunt resided in Canada that the visa officer concluded that she could not be considered under the "assisted relative" category.

ISSUE

[19]      Did the visa officer err in interpreting the definition of "assisted relative" found in the Regulations?

ORDER SOUGHT

[20]      The applicant seeks an order setting aside the visa officer's decision dated April 11, 2000 and referring the matter back for redetermination by a different visa officer.

LEGISLATIVE FRAMEWORK

[21]      Paragraph 2(1) of the Regulations states:

« assisted relative » means a relative, other than a member of the family class, who is an immigrant and is an uncle or aunt, a brother or sister, a son or daughter, a nephew or niece or grandson or grand daughter of a Canadian citizen or permanent resident who is at least 19 years of age and who resides in Canada.

« parent aidé » Immigrant, autre qu'un parent, qui est soit l'oncle ou la tante, le frère ou la soeur, le fils ou la fille, le neveu ou la nièce ou le petit-fils ou la petite-fille d'un citoyen canadien ou d'un résident permanent âgé d'au moins 19 ans qui réside au Canada.

ANALYSIS

[22]      The applicant is not attacking the visa officer's decision in its entirety. She is only challenging the visa officer's refusal to consider her as an "assisted relative" and thus not benefiting from the 5 bonus units of assessment given to the members of this category. As such, I am limiting the following analysis to this issue.

Standard of Review

[23]      In To v. Canada (Minister of Employment and Immigration), [1996] F.C.J. No. 696 (unedited), the Federal Court of Appeal held that the appropriate standard of review of the discretionary decisions of visa officers with respect to immigrant applications was the same as enunciated in Maple Lodge Farms Ltd v. Canada, [1982] 2 S.C.R., where MacIntyre J., stated the following:

It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.

Definition of "assisted relative"

[24]      The definition of "assisted relative" provided at paragraph 2(1) of the Regulations, reads as follows:

« assisted relative » means a relative, other than a member of the family class, who is an immigrant and is an uncle or aunt, a brother or sister, a son or daughter, a nephew or niece or grandson or grand daughter of a Canadian citizen or permanent resident who is at least 19 years of age and who resides in Canada.

[25]      It is my opinion that the visa officer's conclusion with regards to the definition of "assisted relative" was reasonable. The visa officer did not make an adverse finding because her aunt was not present in Canada at the time of the interview. Rather, the visa officer concluded that her aunt was not residing in Canada. I am of the view that this conclusion is entirely reasonable as the Record clearly demonstrates that residency had not been established and as such, the visa officer could not allocate the 5 bonus units of assessment.

[26]      A reading of paragraph 2(1) of the Regulations reveals, in my opinion, that the expression "who resides in Canada" constitutes a precondition to the allocation of the bonus units of assessment. In accordance with this interpretation, the visa officer was obligated to determine if the aunt resided in Canada.

[27]      Accordingly, we must determine what "resides in Canada" means for the purposes of the Act. The parties have not provided any case law with regards to this expression contained in the Act or the Regulations. I also have been unable to find jurisprudence interpreting this particular provision of the Regulations. However, as the respondent submits, I am of the opinion that case law in the area of citizenship can be useful in the interpretation of this precondition.

[28]      In light of the interpretation of "residence" contained in the Citizenship Act, in order to conclude that an individual resides in Canada, he or she must have "centralize[d] his (or her) ordinary mode of living with its accessories in social relations, interests and conveniences" in Canada (In re Papadogiorgakis [1978] 2 F.C. 208 at page 214). In Canada (Minister of Citizenship and Immigration) v. Ho [1998] F.C.J. no. 1795 (QL), Wetston J. states the following:

In my opinion, where physical presence is minimal, the most important consideration is the quality of the applicant's attachment to Canada. There must be evidence to show a genuine attachment to Canada. This attachment must go beyond having only connections to family located in Canada, a Canadian driver's license or a social insurance number.

     (Emphasis added)

[29]      In addition, Black's Law Dictionary, 6^th ed., defines "resides" as follows:

Reside. To settle oneself or a thing in a place, to be stationed, to remain or stay, to dwell permanently or continuously, to have a settled abode for a time, to have one's residence or domicile; specifically, to be in residence, to have an abiding place, to be present as an element, to inhere as a quality, to be vested as a right.

[30]      If we adopt this reasoning, it was reasonable for the visa officer to consider the criteria of establishment in her assessment of the application. In the case at bar, as concluded by the visa officer, there was insufficient evidence to demonstrate that the applicant's aunt had substantial attachment to the Canadian community. The documents provided by the applicant, in particular the aunt's visa, driver's licence and social insurance card, do not, in any way, establish that the aunt had centralized her ordinary mode of living or had established her home on a permanent basis in Canada. These documents merely show that the aunt was a landed immigrant, had obtained a driver's licence and a social insurance card. The social insurance number is simply a matter for identification for government purposes. The drivers' licence allows an individual to operate a motor vehicle and nothing else. Moreover, the applicant informed the visa officer that her aunt had only been present in Canada for a few weeks. Therefore, the applicant has simply not met the burden of proof.

[31]      Accordingly, based on the evidence provided at the interview and by subsequent correspondence, it was reasonable for the visa officer to conclude that the applicant's aunt did not meet the criteria set out in the definition of "assisted relative" at paragraph 2(1) of the Regulations and therefore could not allocate the 5 bonus units of assessment to the applicant.

[32]      Given this conclusion, the applicant did not obtain the required units of assessment in order for her application for permanent residence to be approved.

CONCLUSION

[33]      In light of the foregoing, this application is dismissed.

QUESTION FOR CERTIFICATION

[34]      The applicant asks that the following question be certified:

Un agent des visas, qui évalue une demande de résidence permanente présentée en vertu de l'article 10 du Règlement sur l'immigration de 1978, outrepasse-t-il ses compétences s'il détermine que le demandeur doit lui démontrer que son parent aidé s'est établi au Canada pour faire partie de cette catégorie d'immigrant?

[35]      In the case of Kirk Meagell Grandison v. M.C.I., A-332-00, August 25, 2000, F.C.A., Mr. Justice Strayer, speaking for the Court, when dealing with the issue as to when a question should be certified, states at page 3:

Subsection 83(1) was intended generally to make final the decision of the Trial Division, but allowed for the hearing of appeals on important issues which transcended the particular case. The obvious intent was to allow this Court to deal with, but only with, such issues as required to give the Trial Division general guidance where otherwise there might be inconsistencies between the judges of the Trial Division on a "serious question of general importance". This clearly implies that appeals were not to be taken on issues peculiar to a given case such as procedural matters.

[36]      Basing myself on the above criteria, I am satisfied that the above question should not be certified. The question is not a "serious question of general importance" and relates only to this particular case.

                             "Max M. Teitelbaum"

                        

                                 J.F.C.C.

Ottawa, Ontario

December 15, 2000