Date: 20010403
Docket: IMM-1916-00
Neutral citation: 2001 FCT 287
Ottawa, Ontario, Tuesday the 3rd day of April 2001
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] Camilj Haljiti brings this application for judicial review from the March 13, 2000 decision of Kate Eede, a Designated Immigration Officer at the Canadian Consulate in Bonn, Federal Republic of Germany ("visa officer"), which refused Mr. Haljiti's application for permanent residence in Canada as a self-supporting Convention refugee seeking resettlement (CR4).
THE FACTS
[2] The relevant facts are as follows:
i) Upon review of Mr. Haljiti's submission in support of his application the visa officer did not find it to be complete;
ii) On January 11, 2000 correspondence was sent to Mr. Haljiti and his agent indicating what documentation and information were required in order to permit a proper assessment of his application;
iii) The material portions of the January 11, 2000 correspondence are as follows:
THE FOLLOWING CHECKED ITEMS ARE NEEDED FOR FURTHER PROCESSING OF YOUR FILE:
NOTE: Items which do not apply to you should be marked "N/A". For each item which do [sic] apply to you but which you are really not able to provide, a statutory declaration (in English or French) explaining why you are unable to submit the requested item must be provided.
[...]
(X) Proof of funds. 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 completed 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]
iv) In response, on February 10, 2000 certain information and documentation were forwarded on Mr. Haljiti's behalf, including a document entitled "Statutory Declaration" signed by Mr. Haljiti. That, among other things, stated that:
Proof of funds. I am in possession of some 40,000.00 DM in cash which has never been on deposit with any German bank. The reason for this is my very limited and shaky status in Germany and the fact that I am in receipt of limited "unemployment insurance". It is my understanding that my "unemployment insurance" would be cut off if the German authorities were aware of my savings. In order to comply with your request and to prove that I will not be requiring any financial assistance in Canada, I am prepared to open a bank account in Canada and transfer our funds before our immigrant visas are issued but after all other formalities pertaining to our application have been met. It has been explained to me by my immigration consultant, Mr. Artem Djukic, that proof of funds is absolutely necessary in the self-supporting category and I will provide it before our immigrant visas are issued.
v) On March 13, 2000, Mr. Haljiti's application was rejected. In material part, the refusal letter stated:
I confirm receipt of your submission received on February 10, 2000 however this submission is incomplete. There is no proof of funds in your name from a financial institution as stipulated in our request. As you were advised in our initial acknowledg[e]ment letter of September 14, 1999 the documents regarding your funds are absolutely necessary to be assessed in the self-supporting refugee category (CR4).
After setting forth the description of the "CR4" category contained in the Selection and Control Manual, the refusal letter continued:
A statutory declaration of possession of cash is not sufficient proof of transferable funds to Canada. As such, and as you have been previously informed, an assessment of your ability to settle by your own means and without the help of the Canadian government cannot be made. As you have not complied with the provisions of sub-section 9(3) of the Immigration Act, 1976, you 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.
ISSUES
[3] Mr. Haljiti raised five issues on this application:
1) Did the visa officer err in law in failing to make a determination on the eligibility of his Convention refugee claim as required by the Minister's Immigration Manual?
2) Was the use of subsection 9(3) and paragraph 19(2)(d) of the Immigration Act, R.S.C. 1985, c. I-2 ("Act") to refuse his application an error of law?
3) Did the immigration officer err in fact and law in determining that the applicant had insufficient funds to qualify as a self-supporting Convention refugee?
4) Did the visa officer err in failing to interview the applicant?; and
5) Did the immigration officer's refusal letter contain inconsistencies on the face of the record that provide a ground for review?
[4] Subsumed in the fourth issue is the submission that Mr. Haljiti was not interviewed, made aware of, or given any opportunity to address the concerns of the visa officer so that he was denied procedural fairness.
ANALYSIS
[5] I have only found it necessary to consider Mr. Haljiti's argument that the visa officer erred in relying on subsection 9(3) and paragraph 19(2)(d) of the Act. Mr. Haljiti relied upon the decision of the Federal Court of Appeal in Kang v. Canada (Minister of Employment and Immigration), [1981] 2 F.C. 807 (F.C.A.). It was asserted that because the refusal was based upon there being no proof of funds from a financial institution as stipulated in the visa officer's request and because the Act and associated regulations do not mandate proof of funds in the manner requested by the visa officer, the visa officer erred in equating subsection 9(3) of the Act to an automatic refusal under paragraph 19(2)(d) of the Act.
[6] This submission requires consideration of the applicable legislative framework. Paragraphs (a), (b) and (c) of subsection 7(1) of the Immigration Regulations, 1978, SOR/78-172 ("Regulations") in material part provide:
| 7(1) Where a person seeks admission to Canada as a Convention refugee seeking resettlement, the person and their accompanying dependants, if any, are subject to the following admission requirements: |
7. (1) Les exigences relatives à l'admission de la personne qui demande à être admise au Canada à titre de réfugié au sens de la Convention cherchant à se réinstaller, ainsi que des personnes à sa charge qui l'accompagnent, le cas échéant, sont les suivantes : |
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| (a) a visa officer is satisfied that the person is a Convention refugee seeking resettlement; |
a) l'agent des visas est convaincu que la personne est un réfugié au sens de la Convention cherchant à se réinstaller; |
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| (b) a visa officer determines that |
b) l'agent des visas détermine : |
|
| [...] |
[...] |
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| (iii) the person has sufficient financial resources to provide for lodging, care and maintenance, and for the resettlement in Canada, of the person and the accompanying dependants; |
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| (iii) soit que la personne possède les ressources financières nécessaires pour assurer leur logement, subvenir à leurs besoins et les installer au Canada;(c) where the person and the accompanying dependants intend to reside in a place in Canada other than the Province of Quebec, a visa officer determines that the person and the accompanying dependants will be able to become successfully established in Canada, taking into consideration |
c) dans le cas où la personne et les personnes à sa charge qui l'accompagnent entendent résider au Canada ailleurs qu'au Québec, l'agent des visas détermine qu'elles pourront réussir leur installation au Canada, en tenant compte des facteurs suivants : |
|
| (i) the ability of the person and the accompanying dependants to communicate in one of the official languages of Canada, |
(i) leur aptitude à communiquer dans l'une des langues officielles du Canada, |
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| (ii) the age of the person, |
(ii) l'âge de la personne, |
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| (iii) the level of education, the work experience and the skills of the person and the accompanying dependants, |
(iii) leur niveau de scolarité, leurs antécédents de travail et leurs compétences, |
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| (iv) the number and ages of the accompanying dependants, and |
(iv) le nombre de personnes à sa charge qui l'accompagnent et leur âge, |
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| (v) the personal suitability of the person and their accompanying dependants, including their adaptability, motivation, initiative, resourcefulness and other similar qualities; and |
(v) leurs qualités personnelles, notamment leur faculté d'adaptation, leur motivation, leur esprit d'initiative, leur ingéniosité et autres qualités semblables; |
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[7] Subsection 9(3) of the Act provides:
| 9(3) Every person shall answer truthfully all questions put to that person by a visa officer and shall produce such documentation as may be required by the visa officer for the purpose of establishing that his admission would not be contrary to this Act or the regulations. |
9(3) Toute personne doit répondre franchement aux questions de l'agent des visas et produire toutes les pièces qu'exige celui-ci pour établir que son admission ne contreviendrait pas à la présente loi ni à ses règlements. |
|
[8] Paragraph 19(2)(d) of the Act provides:
| 19(2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes: [...] (d) persons who cannot or do not fulfil or comply with any of the conditions or requirements of this Act or the regulations or any orders or directions lawfully made or given under this Act or the regulations. |
19(2) Appartiennent à une catégorie non admissible les immigrants et, sous réserve du paragraphe (3), les visiteurs qui : [...] d) soit ne se conforment pas aux conditions prévues à la présente loi et à ses règlements ou aux mesures ou instructions qui en procèdent, soit ne peuvent le faire. |
|
[9] In Kang, supra, the Court of Appeal considered the case where an applicant lied to a visa officer about his age. While not finding it necessary to determine whether the applicant contravened subsection 9(3) when he lied, the Court concluded that a violation of subsection 9(3) by an applicant did not make that person an inadmissible person described in paragraph 19(2)(d). The majority of the Court of Appeal held, at paragraph 6, that:
... a person does not become a member of the inadmissible class of persons described in paragraph 19(2)(d) for the sole reason that he has violated a prescription of the Act or the Regulations. The sole purpose of that paragraph, in my view, is to render inadmissible all those who do not meet the conditions of admissibility prescribed by or under the Act.
[10] The Minister argued that Kang is distinguishable from the present case because while telling the truth is not a requirement of admissibility, the existence of sufficient financial resources is, pursuant to paragraph 7(1)(b) of the Regulations.
[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. I reach this conclusion because of the statements in the refusal letter that "this submission is incomplete" and "[a]s you have not complied with the provisions of sub-section 9(3) of the Immigration Act, 1976, you come within the inadmissible class of persons described in paragraph 19(2)(d) of the Act...." This is consistent with the entry in the CAIPS notes that "[n]o proof of funds provided - only stat dec to effect that have 40,000 DEM and that no account due to precarious situation in Germany and due to fact that would no longer be eligible or unemployment benefit if authorities knew about their savings. As such, no assessment of ability to settle in Canada without the help of Canadian government cannot be made." [reproduced verbatim, underlining added] I note as well, that the refusal letter does not reference subparagraph 7(1)(b)(iii) of the Regulations.
[13] Just as a person who lies does not by virtue thereof become a member of the inadmissible class of persons, I conclude that a person who provides evidence of sufficient financial resources in a form other than that requested by a visa officer does not by virtue of the form of their submission become a member of the inadmissible class of persons.
[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.
[15] As a result of that error, I have determined that the application for judicial review should be allowed and the matter remitted for redetermination before a different visa officer.
[16] In reaching this conclusion, I have considered the decision of this Court in Dardic v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 326, IMM-6081-99 (March 8, 2001) (F.C.T.D.). I find the decision distinguishable on the ground that in Dardic the requested statutory declaration was not provided and the learned Judge did not find it necessary to consider the effect of subsection 9(3) and paragraph 19(2)(d) of the Act. I note as well that a conclusion similar to my own was reached by my colleague Justice O'Keefe in Tseng v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 746, IMM-2403-99 (May 31, 2000) (F.C.T.D.).
[17] While the applicant posed questions for certification, I find the questions posed to lack broad significance or to not be determinative of an appeal.
[18] Therefore no question is certified.
JUDGMENT
[19] IT IS HEREBY ORDERED AND ADJUDGED THAT:
The application for judicial review is allowed. The decision of the visa officer dated March 13, 2000 is set aside and the matter is to be remitted to a different visa officer for redetermination.
"Eleanor R. Dawson"