Ming v. Canada (Minister of Citizenship and Immigration), 2003 FCA 225

Date: 20030513

Docket: A-502-02

Neutral citation: 2003 FCA 225

CORAM:        STONE J.A.

EVANS J.A.

SHARLOW J.A.

BETWEEN:

LAU TING MING, STEPHEN

Appellant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

                                              Heard at Toronto, Ontario, on May 13, 2003.

                       Judgment delivered from the Bench at Toronto, Ontario, on May 13, 2003.

REASONS FOR JUDGMENT OF THE COURT:                                                               EVANS J.A.

Date: 20030513

Docket: A-502-02

Neutral citation: 2003 FCA 225

CORAM:        STONE J.A.

EVANS J.A.

SHARLOW J.A.

BETWEEN:

LAU TING MING, STEPHEN

Appellant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

                                       REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Toronto, Ontario

on May 13, 2003)

EVANS J.A.

[1]                 This is an appeal by Stephen Lau Ting Ming from a decision of Rothstein J.A., sitting as a Judge of the Trial Division ex-officio, in which he dismissed an application for judicial review of a refusal by a visa officer to issue a visa to Mr. Lau. The decision is reported as Lau v. Canada (Minister of Citizenship and Immigration), 2002 F.C.T. 870.

[2]                 Mr. Lau, a 59 year-old citizen of Hong Kong and a resident of the United States, applied for a visa to enter Canada as a permanent resident in the independent category. His application was assessed on the basis that he was a retired person with assets of approximately one million US dollars, the members of whose known family live in Canada. Because the visa officer awarded Mr. Lau no points for the occupational factor, he could not be issued a visa: Immigration Regulations, 1978, SOR/72-172, subsection 11(2).

[3]                 Mr. Lau contends that the visa officer ought to have exercised his positive discretion pursuant to subsection 11(3) of the Regulations, on the ground that his ability to support himself in Canada from his savings, without having recourse to public funds, demonstrates that Mr. Lau would be able successfully to establish himself in Canada, even tough he was awarded less than the number of points normally required to be granted a visa.

[4]                 The Applications Judge held that if visa officers' discretion under subsection 11(3) applied to retirees it would effectively undermine the legislative purpose underlying the removal in 1991 of retirees from the category of independent immigrants who may be issued a permanent residence visa. We agree with the Application Judge's reasons for decision and would adopt them as our own, particularly the following (paras 9-10):

... To the extent Strayer J. [in Chen v. Canada (Minister of Citizenship and Immigration), [1991] 3 F.C. 350 at 360] 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 criterion is an ability to support themselves from personal savings.

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.

[5]                 We were not persuaded by counsel's argument that Rothstein J.A.'s interpretation of the scheme of the Regulations after the 1991 amendments is inconsistent with the general provisions of section 3 and subsection 6(1) of the Immigration Act, R.S.C. 1985, c. I-2.

[6]                 For these reasons, the appeal will be dismissed without costs, and we would answer in the negative the question certified for appeal, which was as follows:

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 criterion is having sufficient assets to sustain themselves?

"John M. Evans"                

                                                                                                              J.A.                             

FEDERAL COURT OF CANADA

APPEAL DIVISION

    Names of Counsel and Solicitors of Record

DOCKET:                                              A-502-02   

STYLE OF CAUSE:              LAU TING MING, STEPHEN

Appellant

- and -                                                                 

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

DATE OF HEARING:                        MAY 13, 2003

PLACE OF HEARING:                      TORONTO, ONTARIO

REASONS FOR JUDGMENT

OF THE COURT BY:                         EVANS J.A.

DATED:                                                MAY 13, 2003

APPEARANCES BY:                          Mr. Cecil L. Rotenberg

For the Appellant

Ms. Ann-Margaret Oberst

Mr. Jamie Todd

For the Respondent

SOLICITORS OF RECORD:           Cecil L. Rotenberg

Barristers & Solicitors

                                                   Toronto, Ontario

For the Appellant

Morris Rosenberg

Deputy Attorney General of Canada

For the Respondent