Date: 20000413
Docket: IMM-6396-98
BETWEEN:
GUANG XU
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
O"KEEFE J.
[1] This is an application for judicial review of the decision of the Appeal Division of the Immigration and Refugee Board ("Board"), wherein the Board refused to overturn the decision of the visa officer denying the applicant"s spouse an immigrant visa as a member of the family class.
BACKGROUND
[2] The applicant sought to sponsor his wife"s immigration to Canada from China as a landed immigrant under the family class. The applicant had entered Canada on a student visa in 1988, approximately one year after his marriage. He completed a sponsorship application form and gave an undertaking of support of his wife on October 15, 1991. On the application form an official had written "SA"s (sic) [settlement arrangements] not met -- applicant is full time student."
[3] During the processing of the application, the visa officer at the Canadian Embassy in Beijing requested various documents from Mr. Xu, in order to verify that he could fulfil his undertaking of support. The requested information included tax returns, pay stubs and bank statements. The applicant did not comply with this request.
[4] The applicant"s wife was interviewed at the Canadian Embassy in Beijing on February 14, 1996. The visa officer questioned the wife about her relationship with the applicant, their level of contact, as well as his employment. The applicant"s wife indicated that the couple talked on the phone occasionally and that she had no knowledge of the applicant"s employment. During the interview, the applicant"s wife also stated that she only wished to reside in Canada temporarily.
[5] At the conclusion of the interview, the visa officer indicated that an immigrant visa would be refused.
[6] The decision of the visa officer was communicated to the applicant by letter dated July 3, 1996. The applicant"s wife was refused a visa as the officer determined that she was inadmissible on the basis that there were not adequate arrangements made for her support and that she would not be able to support herself. The officer concluded that the applicant was unemployed, since he had not complied with requests to provide pay stubs and tax returns. The visa officer indicated that she had also assessed the applicant"s wife for admission as an independent immigrant, but that she had received insufficient credits to qualify for admission to Canada under this category. In addition, since the applicant"s wife had stated in the interview that it was not her intention to establish a permanent residence in Canada, the visa officer determined that the applicant"s wife was not properly characterized as an "immigrant" and did not qualify for an immigrant visa, but would more properly be characterized as a visitor, for which a visitor"s visa should be sought.
DECISION OF THE IMMIGRATION AND REFUGEE BOARD [APPEAL DIVISION]
[7] The applicant appealed the decision of the visa officer to the Appeal Division of the Immigration and Refugee Board.
[8] The Board conducted a hearing de novo into the appeal on August 11, 1998 and rendered written reasons on November 5, 1998. The Board dismissed the applicant"s appeal. In its written reasons, the Board made several findings including: the applicant was collecting social assistance from December, 1992 up to the time of the hearing of the appeal, with the exception of one month in May, 1998; the applicant"s wife had stated that she had no real property when she applied for landing, but had purchased a home by the time of her interview with the visa officer; the written offer of employment to the applicant"s wife--to serve as a nanny to the applicant"s brother--was inconsistent with the wife"s stated intentions of desiring only a temporary stay in Canada and was therefore not credible.
[9] The Board also found that the applicant was justified in refusing to provide financial information to the visa officer but nonetheless held that the applicant had not met his burden of showing an error in the finding of the visa officer that the applicant"s wife would be unable to support herself.
[10] Finally, the Board held that there were no humanitarian or compassionate considerations which warranted the granting of special relief.
SUBMISSIONS OF THE PARTIES
[11] At the judicial review hearing, the applicant acted without the assistance of counsel and was permitted considerable latitude in making his submissions before me. Mr. Xu submits that the visa officer was wrong to require him to submit proof of income in order to prove that he could fulfil his undertaking; and that the visa officer ignored important information--the job offer to his wife which the applicant claims was presented to the visa officer. The applicant submits that the Board acted without jurisdiction and without regard for procedural fairness.
[12] For its part, the respondent submitted that the central issue in the case at bar involved a determination of whether the Board made any error of law such that its decision could properly be varied or interfered with on judicial review. Counsel for the respondent asserted that the Board made no such error in making its decision.
RELEVANT STATUTORY PROVISIONS
[13] The grounds of appeal on a refusal of a sponsorship application are found in subsection 77(3) of the Immigration Act. Subsection 77(3) of the Immigration Act states:
| (3) . . . a Canadian citizen or permanent resident who has sponsored an application for landing that is refused pursuant to subsection (1) may appeal to the Appeal Division on either or both of the following grounds:
(a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and
(b) on the ground that there exist compassionate or humanitarian considerations that warrant the granting of special relief.
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(3) S"il est citoyen canadien ou résident permanent, le répondant peut, sous réserve des paragraphes (3.01) et (3.1), en appeler devant la section d"appel en invoquant les moyens suivants:
a) question de droit, de fait ou mixte;
b) raisons d"ordre humanitaire justifiant l"octroi d"une mesure spéciale.
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| [14] The grounds for refusing to issue an immigrant visa to a member of the family |
class are outlined in subsection 77(1) of the Immigration Act which states:
| 77. (1) Where a person has sponsored an application for landing made by a member of the family class, an immigration officer or a visa officer, as the case may be, may refuse to approve the application on the grounds that
(a) the person who sponsored the application does not meet the requirements of the regulations respecting persons who sponsor applications for landing, or
(b) the member of the family class does not meet the requirements of this Act or the regulations,
and the person who sponsored the application shall be informed of the reasons for the refusal.
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| 77. (1) L'agent d'immigration ou l'agent des visas, selon le cas, peut rejeter une demande parrainée d'établissement présentée par un parent pour l'un ou l'autre des motifs suivants " dont doit être alors informé le répondant_:
a) le répondant ne remplit pas les conditions fixées par les règlements;
b) le parent ne remplit pas les conditions fixées par la présente loi et ses règlements.
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| [15] One of the requirements of the Act referred to in paragraph 77(1)(b) above is |
| that the sponsoree not be a member of an inadmissible class of persons. The inadmissible classes are outlined in subsection 19(1). In particular, paragraph 19(1)(b) is relevant to the issues in the case at bar: |
| 19. (1) No person shall be granted admission who is a member of any of the following classes:
(b) persons who there are reasonable grounds to believe are or will be unable or unwilling to support themselves and those persons who are dependent on them for care and support, except persons who have satisfied an immigration officer that adequate arrangements, other than those that involve social assistance, have been made for their care and support;
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19. (1) Les personnes suivantes appartiennent à une catégorie non admissible_:
b) celles dont il y a des motifs raisonnables de croire qu'elles n'ont pas la capacité ou la volonté présente ou future de subvenir tant à leurs besoins qu'à ceux des personnes à leur charge et qui ne peuvent convaincre l'agent d'immigration que les dispositions nécessaires " n'impliquant pas l'aide sociale " ont été prises en vue d'assurer leur soutien;
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| [16] Another requirement to be met prior to the issuance of an immigrant visa under |
| the family class is that the sponsor meet the requirements of the Immigration Act for sponsors. Provisions which outline the requirements which a sponsor must meet are found in subsection 6(1) of the Immigration Regulations. It is these same provisions that the applicant argues exempt him from providing financial information, given the fact that he is sponsoring his spouse. Subsection 6(1) of the Immigration Regulations currently states: |
| 6.(1) Where a member of the family class makes an application for an immigrant visa, a visa officer may issue an immigrant visa to him and his accompanying dependants if
(a) he and his dependants, whether accompanying dependants or not, are not members of any inadmissible class and otherwise meet the requirements of the Act and these Regulations;
(b) the sponsor and, if the sponsor"s spouse has co-signed the undertaking referred to in paragraph 5(2)(b) , the sponsor"s spouse meet the applicable requirements set out in section 5, subject to section 5.1 in the case of an undertaking in respect of a member of the family class who intends to reside in the Province of Quebec;
(b.1) where a visa officer has received information indicating that the sponsor is no longer able to fulfil the undertaking, the visa officer, after recalculating or having an immigration officer recalculate the amount of the sponsor"s gross Canadian income less financial obligations, as described in paragraph 5(2)(f) , for the 12-month period preceding the date on which the sponsored member of the family class and the member"s dependants meet the requirements of the Act and these Regulations referred to in paragraph (a) , has determined that that amount is equal to or greater than the amount of the Low Income Cut-off (LICO) referred to in paragraph 5(2)(f) for the 12-month period preceding that date, or has accepted the determination of an immigration officer to that effect;
(3) Paragraph (1) (b.1) does not apply where the sponsored member of the family class is a person who
(a) is the sponsor"s spouse and does not have any dependent sons or dependent daughters;
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| 6.(1) Lorsqu"une personne appartenant à la catégorie de la famille présente une demande de visa d"immigrant, l"agent des visas peut lui en délivrer un ainsi qu"aux personnes à sa charge qui l"accompagnent,
a) si elle et les personnes à sa charge, qu"elles l"accompagnent ou non, ne font pas partie d"une catégorie de personnes non admissibles et satisfont aux exigences de la Loi et du présent règlement;
b) si le répondant et son conjoint, dans le cas où ce dernier a cosigné l"engagement visé à l"alinéa 5(2)b) , satisfont aux exigences applicables énoncées à l"article 5, sous réserve de l"article 5.1 dans le cas d"un engagement donné à l"égard d"un parent qui entend résider au Québec;
b.1) dans les cas où l"agent des visas a reçu des renseignements indiquant que le répondant ne peut plus respecter son engagement, si l"agent des visas, après avoir recalculé, ou fait recalculer par un agent d"immigration, le revenu brut canadien du répondant diminué de ses obligations financières selon l"alinéa 5(2)f) pour les 12 mois précédant la date à laquelle le parent parrainé et les personnes à sa charge satisfont aux exigences de la Loi et du présent règlement visées à l"alinéa a) , conclut que le résultat de ce calcul est égal ou supérieur au montant applicable de la grille des seuils de faible revenu (SFR) visée à l"alinéa 5(2)f) pour les 12 mois précédant cette date, ou accepte la conclusion de l"agent d"immigration en ce sens;
(3) L"alinéa (1)b.1) ne s"applique pas lorsque le parent parrainé est l"une des personnes suivantes:
a) le conjoint du répondant qui n"a ni fils à charge ni fille à charge;
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| [17] But, as the statute stood on February 14, 1996, when the visa officer finally |
| assessed the application, subsection (3) of this section stated as follows: |
| 6.(1) Subject to subsections (1.1), (3.1), (3.2), (4), (5) and (6), where a member of the family class makes an application for an immigrant visa, a vis officer may issue an immigrant visa to the member and the member"s accompanying dependants if
(a) he and his dependants, whether accompanying dependants or not, are not members of any inadmissible class and otherwise meet the requirements of the Act and these Regulations;
(b) the sponsor
(i) has given an undertaking,
(ii) is not in default in respect of any obligations assumed by him under any other undertaking given by him with respect to any member of the family class or assisted relative, and
(iii) will, in the opinion of an immigration officer, be able to fulfil the undertaking referred to in subparagraph (i);
. . .
(3) An immigration officer is not required to form an opinion pursuant to subparagraph (1) (b) (iii) in respect of a person who
(a) is the spouse of the sponsor and does not have any accompanying dependants who have issue;
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| 6.(1) Sous réserve des paragraphes (1.1), (3.1), (3.2), (4) et (5), lorsqu"une personne appartenant à la catégorie de la famille présente une demande de visa d"immigrant, l"agent des visas peut lui en délivrer un ainsi qu"à toute personne à charge qui l"accompagne si:
a) elle et les personnes à sa charge, qu"elles l"accompagnent ou non, ne font pas partie d"une catégorie de personnes non admissibles et satisfont aux exigences de la Loi et du présent règlement;
b) le répondant
(i) s"est engagé,
(ii) n"a manqué à aucune de ses obligations contractées en vertu de tout engagement qu"il a déjà pris pour toute personne appartenant à la catégorie de la famille ou d"un parent aidé, et
(iii) pourra, selon l"agent d"immigration, respecter l"engagement visé au sous-alinéa (i);
. . .
(3) L"agent d"immigration n"est pas tenu de formuler une opinion en application du sous-alinéa (1)b)(iii) relativement aux personnes suivantes:
a) le conjoint du répondant qui n"a aucune personne à charge l"accompagnant qui a un enfant;
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| [18] Therefore, the current state of the law is that no opinion is to be formed as to |
| whether the sponsor of a spouse can fulfil the undertaking of support. These current provisions came into force on April 1, 1997 with other amendments to the Immigration Regulations: SOR/97-145. The law previously stated only that the visa officer was not required to form such an opinion on this matter. |
| [19] There is a certain amount of circularity to the relevant provisions of the |
| Immigration Act. First, subsection 6(1)(a) of the Regulations provides that a visa may be issued to members of the family class if they are not members of any inadmissible class and the sponsor has given an undertaking of support. The visa officer was not required to consider whether the undertaking could be fulfilled with respect to a spousal sponsorship. The state of the law today is that no such opinion is to be formed. In addition, subsection 19(1) of the Act states that persons who will be unwilling or unable to support themselves are inadmissible except where they have satisfied an official that adequate arrangements, other than social assistance, have been made for their care and support. |
| [20] It is my impression that, in order to reconcile the two above-mentioned |
| provisions, the undertaking of support would be considered as proof of adequate arrangements having been made for the support of the potential immigrant. Were it otherwise, a visa officer could thwart the amendments to subsection 6(3) of the Regulations by requiring exactly what that provision states shall not be required " proof of an ability of the sponsor to fulfil the undertaking. It would be against the spirit of the provisions if a visa officer were permitted to require proof of ability to fulfil undertakings in order to satisfy himself or herself that the immigrant was not inadmissible under paragraph 19(1)(b) in light of the prohibition from doing so under subsection 6(3) of the Regulations . The existence of the undertaking must therefore be considered proof of support for the purposes of paragraph 19(1)(b) under the amended section. |
| [21] This, however, was not the law as it stood when the applicant"s sponsorship |
| application was assessed. The language of the subsection at that time was such that the visa officer had a discretion as to whether to form an opinion as to the ability of the sponsor to fulfil the undertaking and could refuse a visa if he or she was not satisfied that the applicant could fulfil the undertaking. The applicant is, of course, free to comply or refuse to comply with any request for documentation. The applicant must, however, accept the consequences of his choice. There was certainly nothing in the Regulations which prevented visa officers from requiring documentation in the circumstance when they have positive knowledge that the applicant could not fulfil the undertaking, as they did in this case. |
| [22] Under the law in force at the time the visa officer rendered her decision, |
| the visa officer was not prohibited from forming an opinion that the sponsor would be able to fulfil his undertaking. I do not agree with the Board"s interpretation of paragraph 6(3)(a) as it read at the time of the visa officer"s decision. The Board decided that the applicant"s refusal to submit proof of his financial standing was justified in consideration of paragraph 6(3)(a) of the Regulations. However, even with this more favourable interpretation, the Board ruled against him. |
| [23] Paragraph 6(1)(a) of the Regulations states that, in order to qualify for an |
| immigrant visa, the sponsoree must not be a member of any inadmissible class. And pursuant to paragraph 19(1)(b) of the Act, those persons with respect to whom there are reasonable grounds to believe will be unable to support themselves, "except persons who have satisfied an immigration officer that adequate arrangements, other than those that involve social assistance, have been made for their care and support" are members of an inadmissible class. The Board found that the applicant (Mr. Xu) had not demonstrated that his wife would be able to support herself. Although not explicitly stated, given the Board"s finding that the applicant was on social assistance for seven years, it is equally obvious that there were no arrangements, other than arrangements involving social assistance, made for the sponsoree"s support. |
| [24] There is a dearth of case authority concerning proof of support in spousal |
| sponsorship applications. It would appear that the ability of a spousal sponsor to fulfil an undertaking of support is rarely questioned. Still rarer doubtless, are cases such as the one at bar, where immigration officials have positive knowledge that the applicant might not be able to fulfil his undertaking of support. And subsequently, no doubt whatsoever that the applicant could not have fulfilled it: at the hearing before the Board the applicant admitted that he had been on social assistance for seven years. |
| [25] It would have been absurd for the visa officer and the Board to ignore the |
| evidence that Mr. Xu was on social assistance and clearly unable to fulfil his undertaking. While the law may now prevent visa officers from forming an opinion as to the ability of the sponsor to fulfil the undertaking, it did not in 1996, and the applicant"s spouse was therefore, clearly a member of an inadmissible class of persons. The Regulations now prevent visa officers from delving into personal financial affairs of spousal sponsors. It is an entirely different matter, however, to hold that visa officers were required to ignore evidence which is before them which indicates that the sponsor"s undertaking cannot be fulfilled. |
| [26] I am therefore of the view that the decision of the Board should be affirmed. |
| [27] The Supreme Court of Canada also held in Baker v. Canada, supra, that the |
| standard of review, with respect to discretionary decisions of the Board was reasonableness simpliciter. Therefore, the standard of review with respect to the Board"s finding that there were no humanitarian or compassionate grounds in this case is reasonableness simpliciter. |
| [28] Given the circumstances of this case, the decision of the Board on this issue |
should stand. I will not interfere with the refusal of the Board to exercise discretion to grant a visa on humanitarian and compassionate grounds. The Board considered the question, in light of the facts of the case: the applicant left China less than one year after his marriage, 10 years ago, and his wife has stated that she only wished to come to Canada temporarily. Moreover, as a discretionary consideration, considerable deference can be afforded to the Board on this matter.
| [29] I also find that the applicant has shown no breach of the rules of natural justice or |
procedural fairness. Mr. Xu was given an opportunity to present his case and the Board considered all his evidence. With respect to the written offer of employment, it was open to the Board to find it not credible, a finding of fact for which the Board should enjoy considerable deference. Accordingly, this ground of appeal fails as well.
| [30] The application is dismissed. Counsel for the parties will be provided with an |
opportunity to make a request for certification of a serious question of general importance. Counsel for the applicant shall file written representations, if any, on or before April 18, 2000, concerning the certification of a precise question. Counsel for the respondent shall file a written response, if any, on or before April 20, 2000. Judgment will be issued by no later than April 21, 2000.
"John A. O"Keefe"
J.F.C.C.
Toronto, Ontario
April 13, 2000
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6396-98
STYLE OF CAUSE: GUANG XU
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: WEDNESDAY, OCTOBER 13, 1999
REASONS FOR ORDER
DATED: THURSDAY, APRIL 13, 2000
APPEARANCES:
Mr. Guang Xu
FOR APPLICANT
Ms. Suzanne Pereira
FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Guang Xu
603 - 379 Gilmour Street
Ottawa, Ontario
K2P 2M6
FOR APPLICANT
Ms. Suzanne Pereira
Department of Justice
2nd Floor, East Memorial Building
284 Wellington Street
Ottawa, Ontario
K1A 0H8
FOR RESPONDENT
FEDERAL COURT OF CANADA
Date: 20000413
Docket: IMM-6396-98
BETWEEN:
GUANG XU
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
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