Date: 19990624
Docket: IMM-3162-98
BETWEEN:
AAZAM BAKHTIANIA
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application for judicial review of the decision of a visa officer rendered on April 8, 1998, whereby the applicant"s application for permanent residence under the independent category was refused.
FACTS
[2] The applicant is a citizen of Iran. She applied for permanent residence in Canada under the independent category in 1996. Her husband and two children applied as her dependents. Her application was received on May 13, 1997 at the Foreign Service of Canada office in Damascus, Syria. She attended an interview with a visa officer on March 11, 1998.
[3] At the interview, the applicant was awarded units of assessment for her intended occupation as an executive secretary and for her fluency in English. She had no arranged employment in Canada.
[4] In response to the visa officer"s questions about preparedness, Ms. Bakhtiania identified Toronto as her destination because it was English-speaking, the weather was good and it was an industrial and cultural centre in Canada. She heard that Canada was safe, free and that the cost of living was cheaper than in Europe. She did not know how much rent averaged in Toronto, other than it was cheaper than Europe and most parts of the United States. The applicant had not attempted to find out more about working and living in Canada. The visa officer concluded that the applicant did not demonstrate preparedness, initiative and motivation for immigrating to Canada.
[5] Ms. Bakhtiania owns real estate in Iran. She claims it is worth approximately Cnd $50,000. She intended to sell this asset upon being granted permanent residence. However, the visa officer declined to take this amount into account. In her affidavit, she explained that it is very difficult to determine the market forces of the real estate sector in Iran and therefore, she could not rely on the future sale of property as the main support for the settlement of immigrants. The applicant also has approximately Cnd $13,000 in liquid funds. According to the visa officer, this amount is insufficient to cover the settlement expenses of a family of four in Canada. Because of this and her lack of preparedness, the applicant was only awarded 3 points for personal suitability, out of a possibility of 10.
[6] The visa officer also interviewed the applicant"s husband. He was employed as a laboratory technician in a university. He had no post-secondary education, and had been trained by his employer. Since he had no formal qualifications and spoke English with difficulty, the visa officer was not satisfied that he would find employment as a laboratory technician in Canada. Therefore, she determined that he could not help overcome the applicant"s lack of professional contacts, limited knowledge of Canada and limited funds.
[7] The visa officer informed Ms. Bakhtiania by a letter dated April 8, 1998 that her application was refused. She had acquired 68 units of assessment, two short of the required 70 units of assessment. The basis of the decision was that the applicant showed a limited knowledge of Canada and insufficient funds immediately available to her.
[8] Two issues were raised at the hearing by counsel for the applicant. It was first argued that the visa officer"s assessment of the applicant"s available funds fettered by an irrelevant consideration, i.e. the Low Income Cut Off (LICO) table for sponsors of family class members. As well, it was submitted that the visa officer breached the duty of fairness by failing to advise the applicant of her concerns regarding her funds.
ANALYSIS
1. The use of the LICO table for sponsors of family class members.
[9] The LICO is a table that sets out the annual income necessary to support families of different sizes in different parts of Canada. It is published by Statistics Canada and incorporated into the Immigration Act, R.S.C. 1985, c. I-2. by paragraph 5(2)f) and Schedule IV of the Immigration Regulations. Its purpose is to determine whether a sponsor can support sponsored members of the family class. Paragraph 5(2)f) reads as follows:
| 5(2) Subject to subsections (6) and (7) and section 5.1, a person who is a Canadian citizen or permanent resident and who meets the following requirements is authorized to sponsor the application for landing of any member of the family class: (f) subject to subsection (5) and except where the member of the family class to be sponsored is a member referred to in subsection 6(3), for the 12-month period preceding the date of giving the undertaking, the person's gross Canadian income less all payments made or due on account of financial obligations is equal to or greater than the applicable amount of the Low Income Cut-off (LICO) referred to in Schedule IV, which amount shall be determined in accordance with subsection (3); |
5(2) Sous réserve des paragraphes (6) et (7) et de l'article 5.1, est autorisé à parrainer la demande d'établissement d'un parent tout citoyen canadien ou résident permanent qui satisfait aux exigences suivantes: f) sous réserve du paragraphe (5) et sauf dans le cas du parrainage d'un parent visé au pagagraphe 693), pour les 12 mois précédant la date de son engagement, son revenu brut canadien diminué des paiements faits ou exigibles au titre d'obligations financières est au moins égal au montant applicable de la grille des seuils de faible revenu (SFR) visée à l'annexe IV, lequel montant est déterminé conformément au pagagraphe (3); |
[10] In this case, the visa officer used the LICO table to determine that the applicant had insufficient funds to relocate her family to Canada. It is argued that, in doing so, the visa officer fettered her discretion when assessing the amount of funds necessary for the successful establishment of her family and should have considered the applicant"s funds separately from this criteria.
[11] Personal suitability is a factor which allows a visa officer to form an opinion as to whether the applicant will succeed economically in Canada (Hussain v. Canada (M.C.I.) (1997), 36 Imm.L.R. (2d) 232. Clearly, whether the applicant and her family has sufficient funds to relocate and establish themselves in Canada is a relevant consideration in assessing her capacity to successfully settle in this country. The LICO table is a tool available to visa officers to help them determine whether an applicant has the required resources to survive for a given time in their city of destination.
[12] In Murji v. Canada (M.C.I.) (September 22, 1997) Imm-3562-96 (F.C.T.D.), a visa officer refused an application for permanent residence on the basis that the applicant did not provide evidence of sufficient financial resources available for successful settlement in Canada. MacKay J. upheld the decision. The relevant excerpts of his reasons read as follows:
| In assessing funds required for successful establishment for six months in Canada, the officer used figures indicated in the departmental manual for a family of four persons to settle successfully in a major centre, as the applicant"s proposed resettlement in Canada would entail, plus transportation expenses involved in moving from Kenya to Canada. The total figure derived by the officer was $18,784 Canadian. (...) |
| Moreover, while the specific financial evidence required by the visa officer is not required by the Immigration Act or regulations, and similarly specific funds required for successful settlement in Canada are not specified by legislation, the officer, in assessing an independent applicant for permanent residence, is required to assess the applicant"s financial resources and a reasonable measure of costs anticipated to successfully settle in this country. In this case the officer referred to the department manual and to a reasonable allowance for travel to Canada to estimate the latter costs, as she was entitled to do. (...) |
| It is also urged that the Visa Officer fettered her discretion by relying on specifics in departmental manual guidelines, as rules, for assessing the applicant"s financial needs for successful settlement in Canada. I am not persuaded that the officer in fact did any more than rely for guidance on figures obtained from departmental guidelines. That she was entitled to so. |
[13] It is unclear whether the departmental manual referred in Murji is the LICO table. Nevertheless, I believe the same principle applies. Visa officers may consult the LICO for guidance. In doing so, they must remain mindful of the nature of the LICO, which is to indicate the annual income necessary to support families of different sizes in different regions of Canada. Visa officer should also consider whether a person has sufficient funds to move to Canada, and the fact that an immigrant may not be required to subsist on his own savings for an entire year. As well, the value and availability of the settlement fund is one of several elements to take into account when assessing a person's adaptability, motivation, initiative and resourcefulness. The visa officer also took into account the lack of initiative of the applicant in learning about Canada. For these reasons, I am not persuaded that the visa officer fettered her discretion by using the LICO in this context.
2. Violation of the duty of fairness
[14] The visa officer was concerned with the lack of evidence of the value of the applicant"s property in Iran, and the transferability of the funds. She admitted that she did not advise the applicant that she considered her funds to be inadequate. The applicant claims that the visa officer should have apprised her of her concerns regarding her funds.
[15] Procedural fairness may require that a visa officer advise an applicant of a negative assessment and provide the applicant with a fair and reasonable opportunity of answering the evidence against him or her (Muliadi v. Canada (M.C.I.) (1986), 2 F.C. 205 (F.C.A.). However, there is no requirement for notice when the visa officer"s concerns arise directly from the Act or the Regulations. In Yu v. Canada (M.E.I.) (1990), 11 Imm. L.R. (2d) 176 at 187-89 (F.C.T.D.), MacKay J. held:
| In my view, there is no ground for arguing unfairness in the process merely because the visa officer at the interview of the applicant does not stress all of the concerns he may have that arise directly from the Act and Regulations that he is bound to follow in his assessment of the application. The Act and Regulations pertinent to admission are available to applicants whose task is to establish to the satisfaction of the visa officer that they meet the criteria set out, and that their admissions to Canada would not be contrary to the Act. |
[16] In Parmar v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1532, MacKay J. wrote:
| There was in my view no procedural unfairness in this respect in the process followed by the officer dealing with the application. Procedural fairness does not oblige a visa officer, in weighing evidence provided by the applicant, "... to accord an applicant a 'running score' or a penultimate comment on his "score". I would add to this position the view set out in Yu that there is no requirement for notice of an officer's concerns where these arise directly from the Act and Regulations that the officer is bound to follow in his or her assessment of the applicant. |
[17] Teitelbaum J. stated in Chou v. Canada (M.C.I.) (June 11, 1998) Imm-2742-97 (F.C.T.D.):
| It appears that the duty to apprise the applicant of the visa officer's concerns is limited. Given that the applicant must establish that he has met certain criteria to enter Canada, the applicant should assume that the visa officer's concerns will arise directly from the Act or the Regulations. This does not mean that the visa officer should remain silent throughout the interview while the applicant states his case. The visa officer should lead the interview and attempt to draw out relevant information about the application. What it does mean is if, for example, an applicant for a visitor's visa has provided weak evidence supporting his position that he has sufficient ties to his home country to ensure his return, then the visa officer does not have to apprise the applicant of this concern. Such a concern arises directly from the Act and the Regulations. It may be preferable if the visa officer would inform the applicant of this concern but failure to do so does not violate the duty of fairness. |
[18] Counsel for the respondent submitted that applicants were notified of the necessity of an adequate relocation fund by subsection 9(4) paragraph 19(1)b) of the Act, which provides as follows:
| 9(4) Subject to subsection (5), where a visa officer is satisfied that it would not be contrary to this Act or the regulations to grant landing or entry, as the case may be, to a person who has made an application pursuant to subsection (1) and to the person"s dependants, the visa officer may issue a visa to that person and to each of that person"s accompanying dependants for the purpose of identifying the holder thereof as an immigrant or a visitor, as the case may be, who, in the opinion of the visa officer, meets the requirements of this Act and the regulations. 19(1) No person shall be granted admission who is a members 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 person 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; |
9(4) Sous réserve du paragraphe (5), l'agent des visas qui est convaincu que l'établissement ou le séjour au Canada du demandeur et des personnes à sa charge ne contreviendrait pas à la présente loi ni à ses règlements peut délivrer à ce dernier et aux personnes à charge qui l'accompagnent un visa précisant leur qualité d'immigrant ou de visiteur et attestant qu'à son avis, ils satisfont aux exigences de la présente loi et de ses règlements 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; |
[19] Through paragraph 19(1)b), immigrants are informed that they are required to show they have enough funds to relocate and support themselves in Canada. In the present case, in order to prove that she had the sufficient funds, the applicant brought a statement of her savings and the deed for her property in Iran.
[20] The visa officer should attempt to draw out relevant information with respect to an application. She was provided with a deed in the applicant"s name, which clearly demonstrated that she owned potentially valuable property. The authenticity of the deed is undisputed. The applicant was willing to sell this property and use the income to fund her move to Canada. Yet, visa officer discarded this evidence for no good reason. When provided with this information, she should have advised the applicant of her concern, and asked that she provide an independent assessment of her property"s value, and make representations as to its transferability.
[21] The application is allowed and the matter is remitted for reconsideration by a different visa officer.
JUDGE
OTTAWA, Ontario
June 24, 1999