Beganovic v. Canada (Minister of Citizenship and Immigration), 2004 FC 359

Date: 20040309

Docket: IMM-359-01

Citation: 2004 FC 359

OTTAWA, Ontario, this 9^th day of March, 2004.

Present:           THE HONOURABLE MR. JUSTICE KELEN                                

BETWEEN:

                                                                SEAD BEGANOVIC

                                                                                                                                                       Applicant

                                                                              - and -

                                                                THE MINISTER OF

                                                CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 This is an application for judicial review of the decision of visa officer Kate Eede ("visa officer") at the Canadian Embassy in Germany ("visa post"), dated December 22, 2000, which refused the applicant's application for permanent residence as a self-supporting Convention refugee seeking resettlement ("CR4").

FACTS

[2]                 The relevant facts are as follows:

(i)         the applicant alleges that he is a "stateless" person who originates from the former Yugoslavia. He fled Yugoslavia for Germany in October 1998, and has remained there ever since;

(ii)        on May 26, 2000, the visa post in Berlin received an incomplete application for permanent residence in the "Convention refugee seeking resettlement" category, self-supported, from the applicant;

(iii)       on June 19, 2000, the visa post sent an acknowledgement of receipt and request for further information and documentation to the applicant's agent;

(iv)       on October 17, 2000 an additional submission was received from the applicant's agent, in response to the visa post's request; and,

(v)        after reviewing the submitted documents the visa officer found that they were incomplete, and inadequate to complete an assessment of the applicant's application.

[3]                 In her decision, i.e. refusal letter, the visa officer stated that the applicant had failed to establish proof of funds in a satisfactory manner, and several documents previously requested from the applicant were still outstanding. She states at page 2 of her letter:

As you have not provided complete documentation as requested despite having been given a reasonable time-frame in order to do so, you have not complied with the provisions of sub-section 9(3) of the Immigration Act, 1976. You therefore come within the inadmissible class of persons described in paragraph 19(2)(d) of the Act in that you have not fulfilled or complied with the provisions of the Act and the Regulations and I have refused your application.

[4]                 Subsection 9(3) of the Immigration Act, 1976 ("Act") provides:

Paragraph 19(2)(d) of the Act provides in part:

Paragraphs (a) and (b) of the Immigration Regulations, 1978, SOR/78-172 ("Regulations") provide:

[5]                 The Regulations require that the applicant have adequate funds to support himself in Canada. In particular, the visa officer found that the applicant had failed to provide proof of funds in the form clearly and expressly requested in the standard checklist, included in CR4 application kits. The requested form is:

This should be in the name of the applicant from a financial institution (ex: bank statements) and should clearly state the account number, the date at which the account was opened, and the balance of this account. Please provide the statement for the last month before you filed your application and a few other ones from months before to show your financial history. Please note that these documents are absolutely necessary to be assessed in the self-supporting refugee category. [emphasis in original]

[6]                 The visa officer was not satisfied with the applicant's explanation for not complying with the above instructions, and she was not satisfied that the applicant had accumulated the requisite funds, or that he was self-supporting. At page 1 of her refusal letter she states:

Your application form indicated that you had 13,000 CAD which you could take with you to Canada. As proof you have merely provided a statutory declaration indicating that you have 18,000 DEM deposited with a friend. Your explanation for this is that you and your wife were not legally allowed to work nor to open a bank account. I do not find either this proof of funds nor the explanation for it satisfactory. Although it is plausible that an asylum seeker may encounter difficulties opening a bank account if he cannot provide proof of a regular income, this is not a plausible explanation for not having deposited funds in a savings account which are readily accessible.

[7]                 Furthermore, the visa officer found that the applicant's documentation to be contradictory with respect to proof of income and proof of employment. This was because the applicant had stated in both his application form (IMM8), and refugee questionnnaire that he and his wife were supporting themselves through part-time employment. However, in his statutory declaration he contradicted these claims. The visa officer found that there was no proof of employment and concluded at page 2 of the refusal letter:

[...] Not only are these statements not supported by requested documentation but they are also directly contradicted by the statutory declaration provided in lieu of funds. In this declaration you state that you and your wife are not allowed to work and are relying on social assistance (limited financial assistance and goods in kind) in Germany. I must therefore conclude that you are not supporting yourself and your wife in Germany, although you claim to us you have sufficient own [sic] funds to be able to do so were you willing. This does not support your declared intention to be able and willing to support yourself and your dependents upon arrival in Canada. (underlining added)

[8]                 The other missing documents identified by the visa officer were: (1) the military questionnaire; (2) a copy of the hearing and decision from the asylum claim in Germany; and, (3) copies of school certificates and employment references.

ANALYSIS

[9]                 The applicant raises the following issues:

(i)         whether the visa officer erred in law in failing to make a determination on the eligibility of the applicant's Convention refugee claim;

(ii)        whether the visa officer erred by using subsection 9(3) of the Act to refuse this application;

(iii)       whether the visa officer erred in fact and law in determining that the Applicant had insufficient funds to qualify as a self-supporting Convention refugee; and,

(iv)       whether the visa officer breached the duty of fairness by failing to interview the applicant, failing to communicate her concerns prior to the refusal, and failing to provide him with an opportunity to respond.

[10]            The applicant submits that the visa officer had a duty to make a determination on the eligibility of the applicant as a Convention refugee before refusing him under subsection 9(3) of the Act. The applicant argues that the visa officer completely failed to address the substance of his refugee claim in her letter, and that it was unfair that he was denied the benefit of an interview. The applicant submits that the Act and associated Regulations do not mandate proof of funds in the manner requested by the visa officer, and that the visa officer erred in equating subsection 9(3) of the Act to an automatic refusal under paragraph 19(2)(d) of the Act. The applicant submits that the statutory declaration provided was adequate proof of funds to successfully establish himself in Canada.

[11]            The respondent submits that there is no obligation for a visa officer to consider eligibility first without having required documentation. The respondent argues that it would be unfair to delay the consideration of other Convention refugees by interviewing those who have not submitted the necessary information. The respondent submits that failure to submit proper documentation is a proper ground of refusal under subsection 9(3) of the Act. The respondent submits that a visa officer is not obligated to clarify a deficient application, the onus being on the applicant to satisfy the visa officer.

[12]            It is well settled that the discretionary decision of a visa officer is not to be disturbed, merely because a Court might have exercised that discretion in a different manner. See Liu v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1125, 2001 FCT 751 (T.D.). The standard of review is reasonableness simplicter.

[13]            The visa officer is charged by paragraph 19(2)(d) of the Act to ensure that any person seeking admission into Canada comply with the conditions or requirements of the Act, or any orders or directions lawfully made or given under the Act. I do not agree that the applicant is assisted by this Court's ruling in Haljiti v. Canada (MCI) (2001), 202 F.T.R. 226 (T.D.) In that case Dawson J. states at paragraphs 11, 12 and 14:

¶ 11          I accept the Minister's submission that to be admissible an applicant must satisfy the visa officer of the existence of sufficient financial resources, so that a failure to meet the requirement would be a failure to meet a condition of admissibility likely rendering the applicant a member of the inadmissible class of persons described in paragraph 19(2)(d) of the Act.

¶ 12          However, I have not been satisfied that Mr. Haljiti's application was rejected because he failed to establish the existence of sufficient financial resources. Rather, I find that Mr. Haljiti's application was rejected because he failed to provide proof of funds in the precise manner stipulated by the visa officer. [...]

¶ 14          It does not follow that the failure to provide proof in the required form is without consequence. That failure may justify a decision to refuse to grant a visa. However, the failure to provide proof in the required form does not have the automatic effect of making the person inadmissible as the visa officer here concluded. In so concluding, the visa officer erred in law.

[14]            In my opinion, the determining issue in the present case is whether or not a visa officer refused an application where the applicant has not met the statutory obligation to supply necessary documentation required to properly assess his application. In my opinion the issue is not the required form of proof, but rather whether or not the visa officer is satisfied that the applicant has met the conditions of the Act, including having requisite funds required to establish himself. I note that at paragraph 11 of her decision, Dawson J. states:

I accept the Minister's submission that to be admissible an applicant must satisfy the visa officer of the existence of sufficient financial resources, so that a failure to meet the requirement would be a failure to meet a condition of admissibility likely rendering the applicant a member of the inadmissible class of persons described in paragraph 19(2)(d) of the Act.

The concerns outlined by the visa officer for rejecting the proof of funds were reasonable, and I find that she did not err in applying subsection 9(3) or paragraph 19(2)(d) of the Act. Her concerns were that the applicant did not satisfy her that he had sufficient funds.

[15]            The applicant submits that there was a breach of fairness in not being granted an interview or the opportunity to respond, and that the visa officer was obligated to consider eligibility first despite not having proper documentation. These arguments are without merit. This Court has rejected these arguments in Dardic v. Canada (MCI), 2001 FCT 150, [2001] F.C.J. No. 326 (T.D.)(QL); Tahir v. Canada (MCI) (1998), 159 F.T.R. 109 (T.D.); and Lam v. Canada (MCI) (1998) 152 F.T.R. 316 (T.D.).

[16]            In Lam, supra Rothstein J. states at paragraphs 3 and 4:

¶ 3         At best, the applicant must be saying that his application is ambiguous and that when he included in his work history that he was a manager/trainee and assistant manager at McDonald's, that this placed the onus on the visa officer to inquire, through a personal interview, whether those occupations gave him training or experience as a Chef-Cook. However, if correct, this argument gives an advantage to applicants for permanent residence who file ambiguous applications. This cannot be correct. [emphasis added]

¶ 4            A visa officer may inquire further if he or she considers a further enquiry is warranted. Obviously, a visa officer cannot be wilfully blind in assessing an application and must act in good faith. However, there is no general obligation on a visa officer to make further inquiries when an application is ambiguous. The onus is on an applicant to file a clear application together with such supporting documentation as he or she considers advisable. The onus does not shift to the visa officer and there is no entitlement to a personal interview if the application is ambiguous or supporting material is not included. [emphasis added]

[17]            And in Dardic, supra at paragraphs 18 and 19, Heneghan J. concludes on similar facts to the present case, that states at paragraphs 18 and 19:

¶ 18         As for the Applicant's arguments that the Visa Officer breached a duty of fairness towards him by failing to interview him and provide an opportunity to satisfy her concerns, I refer to the decision of Justice Tremblay-Lamer in Tahir v. Canada (Minister of Citizenship and Immigration) (1998), 159 F.T.R. 109 [...]

¶ 19          In the circumstances of this case, I conclude that the Visa Officer properly exercised her discretion in assessing the Applicant's application for entry into Canada as a Convention refugee, including assessment of the documents submitted by the Applicant. The Visa Officer was not obliged to assess his eligibility as a Convention refugee once she had determined that the required proof of funds was not provided. There was no breach of procedural fairness in respect of this Applicant. [emphasis added]

[18]            I agree with this reasoning. It would be an unfair advantage to schedule interviews for persons who have failed to complete their applications, and a waste of time and resources to attempt to assess an application on eligibility grounds, based on incomplete information. This application for judicial review must therefore be dismissed.

[19]            Neither counsel or the Court consider that this case raises a question for certification.

                                                                            ORDER

THIS COURT ORDERS THAT:

This application for judicial review is dismissed.

                                       "Michael A. Kelen"                                                                                                               _______________________________

          JUDGE

FEDERAL COURT

Names of Counsel and Solicitors of Record

DOCKET:                                               IMM-359-01

STYLE OF CAUSE:                               SEAD BEGANOVIC v. MCI

DATE OF HEARING:              March 3, 2004

PLACE OF HEARING:                         Toronto, Ontario

REASONS FOR ORDER

AND ORDER BY:                                  THE HONOURABLE MR. JUSTICE KELEN

DATED:                                                   March 9, 2004

APPEARANCES BY:                          Mr. J. Norris Ormston                                                                                                                                                                 

For the Applicant

Mr. Marcel Larouche

For the Respondent

SOLICITORS OF RECORD:          

Cecil Rotenberg, QC

Toronto, Ontario

For the Applicant

Morris Rosenberg

Deputy Attorney General of Canada

Toronto, Ontario

For the Respondent

                          FEDERAL COURT

                                                               Date: 20040309

                                                    Docket: IMM-359-01

BETWEEN:

SEAD BEGANOVIC

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER

AND ORDER