Ming v. Canada (Minister of Citizenship and Immigration), 2002 FCT 870

Date: 20020822

                        Docket: IMM-5951-00

                                                                                                                Neutral citation: 2002 FCT 870

BETWEEN:

LAU TING MING, STEPHEN

Applicant

- and -

THE MINISTER OF

CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

ROTHSTEIN J.A. (ex officio)

[1]                 This is a judicial review of a decision of a visa officer in which he refused to exercise

positive discretion under subsection 11(3) of the Immigration Regulations, 1978, SOR/78-172, to issue an immigrant visa to the applicant. Subsection 11(3) provides:

[2]                 The applicant had also applied for waiver of the requirement to apply for landing outside

Canada based on humanitarian and compassionate considerations under subsection 114(2) of the Immigration Act, R.S.C. 1985, c. I-2. The application was denied and judicial review of that decision was dismissed by Blanchard J. in Stephen v. MCI, 2001 FCT 1253.

[3]                 The facts pertinent to this judicial review can be briefly stated. The applicant, who is originally from Hong Kong, emigrated to the United States in 1995 and became a resident there. He subsequently applied for permanent residence in Canada indicating he did not intend to become employed in Canada. He was assessed as a retired person by the visa officer.

[4]                 The applicant says he can successfully establish himself in Canada in the economic sense

because he has family in this country and because he has an estate worth in excess of $1 million.

[5]                   The visa officer found there were insufficient significant factors or economic considerations to suggest that the applicant would become "successfully established" as described in subsection 11(3) of the Regulations. The visa officer found guidance in the dissenting reasons of Robertson J.A. in Chen v. Canada (MCI), [1994] 1 F.C. 639 at page 650 (C.A.): [...] when deciding persons' ability to successfully establish themselves in Canada the determination criteria must be restricted to matters relating to their ability to make a living.

In reversing the majority in Chen, supra, the Supreme Court of Canada approved the reasons of Robertson J.A. (Chen v. Canada (MCI), [1995] 1 S.C.R. 725 at paragraph 1).

[6]                 The visa officer was not satisfied the applicant was going to make a living in Canada and denied his application for the exercise of positive discretion under subsection 11(3) of the Regulations.

[7]                 The applicant relies on the reasons of Strayer J. (as he then was) in the Trial Division decision in Chen v. MCI, [1991] 3 F.C. 350 (T.D.), in which he stated at page 360:

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.

[8]                 The applicant says the Supreme Court also approved this statement and that the words "or to be economically sustained other than by the State" would encompass retired persons with sufficient assets to live off the income generated by investments.

[9]                 It should first be noted that the Trial Division decision in Chen, supra, was based on wording of the Immigration Regulations, 1978 which, at the time, extended eligibility under the immigration selection criteria to certain retired person who had the resources to support themselves. However, by amendments enacted by PC 1991-1204 dated June 21, 1981, the retiree eligibility was eliminated from the Regulations. To the extent Strayer J. may have been referring to retirees who had the ability "to be economically sustained other than by the State", his words must now be read having regard to the change to the Regulations. I do not think they can be read today as being referable to retired persons whose only economic criteria is an ability to support themselves from personal savings.

[10]            Indeed, the scheme of the selection criteria in subsection 8(1) of the Regulations provides for the opportunity to work, to be self-employed, to invest or to be an entrepreneur. The words "the chances of the particular immigrant and his dependents of becoming successfully established in Canada", as those words are used in subsection 11(3) of the Immigration Regulations, 1978 necessarily implies one of the selection categories provided for in subsection 8(1). There is no provision for a retiree class of immigrant as such in subsection 8(1), whether or not they are able to support themselves from personal savings.

[11]            Retirees, of course, are not precluded from qualifying for immigration if they satisfy the criteria for the investor, the entrepreneur or the self-employed categories. (However, under subsection 8(3), being self-employed means having an occupation or a business, not simply having passive investment income.) But under the Immigration Regulations, 1978 as they stood at the time relevant for purposes of this case, retirees, whose only economic criteria is having sufficient assets to sustain themselves, are not eligible for immigration to Canada.

[12]            The applicant also argued that, under subsection 11(3) of the Regulations, the visa officer must have good reasons to exercise his discretion and that here, the visa officer did not say he had good reasons but rather that there were "insufficient significant factors or economic considerations" to suggest the applicant would be successfully established for purposes of subsection 11(3) of the Regulations. I am satisfied that these are good reasons as contemplated by subsection 11(3).

[13]            I would dismiss the application for judicial review. I would certify the following question for appeal:

Do the words "the chances of the particular immigrant and his dependants of becoming successfully established in Canada" in subsection 11(3) of the Immigration Regulations, 1978 include retirees whose only economic criteria is having sufficient assets to sustain themselves?

"Marshall Rothstein"

                                                                                                           Judge                         

August 22, 2002

Toronto, Ontario

FEDERAL COURT OF CANADA

    Names of Counsel and Solicitors of Record

DOCKET:                                              IMM-5951-00

STYLE OF CAUSE:              LAU TING MING, STEPHEN

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

Respondent

PLACE OF HEARING:                      TORONTO, ONTARIO

DATE OF HEARING:           TUESDAY, AUGUST 13, 2002   

REASONS FOR ORDER BY:                       ROTHSTEIN J.A.

DATED:                          THURSDAY, AUGUST 22, 2002

APPEARANCES BY:             Mr. Cecil L. Rotenberg

For the Applicant

Mr. Jamie Todd

For the Respondent

SOLICITORS OF RECORD:        Cecil Rotenberg

Barrister & Solicitor

255 Duncan Mill Road

Suite 808

Don Mills, Ontario

M3B 3H9

For the Applicant                                 

Morris Rosenberg

Deputy Attorney General of Canada

For the Respondent

FEDERAL COURT OF CANADA

             Date:20020822

     Docket: IMM-5951-00

BETWEEN:

LAU TING MING, STEPHEN

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                     Respondent

REASONS FOR ORDER