Lu v. Canada (Minister of Citizenship and Immigration)

Lu v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2002-03-01
Neutral citation
2002 FCT 210
File numbers
IMM-6259-00
Decision Content
Date: 20020301
Docket: IMM-6259-00
Ottawa, Ontario, the lst day of March 2002
Present: The Honourable Mr. Justice Pinard
Between:
NAN LU
Applicant
- and -
MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
ORDER
The application for judicial review of the decision of Nicole Genest, a visa officer at the Canadian Consulate General in New York, dated November 3, 2000, rejecting the applicant's application for permanent residence, is dismissed.
JUDGE
Certified true translation
Sophie Debbané, LL.B.
Date: 20020301
Docket: IMM-6259-00
Neutral citation: 2002 FCT 210
Between:
NAN LU
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J. :
This is an application for judicial review of the decision of Nicole Genest, a visa officer at the Canadian Consulate General in New York, dated November 3, 2000, rejecting the applicant's application for permanent residence.
The applicant is a citizen of China. He applied for permanent residence as a member of the independent applicants class on August 16, 1997, as a programmer.
The applicant was assessed with respect to that occupation (category 2163 of the National Occupational Classification) at an interview on June 3, 1999. Following the interview, the visa officer sent him a letter dated November 3, 2000, informing him that his application for permanent residence had been refused on the ground that he had obtained only 68 of the 70 points required by the Immigration Regulations, 1978.
The applicant was awarded the following points:
FACTOR UNITS
Age 10
Occupation 10
ETF 15
Experience 06
Demographic Factor 08
Education 15
English 02
Bonus 00
French 00
Suitability 02
TOTAL 68
As the Federal Court of Appeal clearly held in Chiu Chee To v. Minister of Citizenship and Immigration (May 22, 1996), A-172-93, the appropriate standard of review for discretionary decisions of visa officers with respect to immigration applications is the same as that enunciated by the Supreme Court of Canada in Maple Lodge Farms Ltd. v. Government of Canada et al., [1982] 2 S.C.R. 2, in which McIntyre J. wrote, at pages 7 and 8:
It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.
The applicant contended, first, that the officer erred by disregarding the fact that the applicant has a sister who is a Canadian citizen.
I am of the opinion that the officer complied with the principles of procedural fairness in this case. Before making her decision, she asked the applicant to send her the documents needed to establish his relationship with his alleged sister. Having regard to the evidence in the record, I believe that the officer gave the applicant sufficient time to send her the relevant documents. I also believe that the officer reasonably concluded that the documents received on November 30, 2000, approximately one month after the refusal letter was mailed, did not establish a relationship, given the poor quality of the record of landing and the fact that the date of birth on the certificate had been altered.
The applicant also disputes the officer's assessment of his knowledge of written English. The visa officer is in a better position than this Court to assess an applicant's language abilities (Milovanova v. Minister of Citizenship and Immigration (September 7, 1999), IMM-4558-98). After reviewing the officer's affidavit and interview notes, I am not satisfied that her assessment of the applicant's knowledge of English was unreasonable.
The applicant further submitted that the officer erred by failing to consider his funds and his wife's real estate. In fact, to assess the applicant's available funds, the officer asked for evidence relating to his wife's as well as his own financial situation. According to the officer, it was not possible for her to determine from the financial information given by the applicant whether he had the funds needed to help him successfully establish himself in Canada. The officer noted several discrepancies in the documents received and stated the following at paragraph 27 of her affidavit:
As I explained in my CAIPS notes, there were discrepancies between the information in the document of November 1998 (CTR, page 12) and the document dated July 1999 (CTR, page 58). The amounts of the deposit and the terms were different and the currencies were inconsistent. Consequently, I still had concerns about the Applicant wife's claimed funds available in China, which had not been resolved by the Applicant.
Having regard to the officer's interview notes and affidavit and the evidence in the record (including pages 12 and 58 of the tribunal's record), I am of the view that the officer was not wrong in requesting financial information as she did or in determining that the information provided was insufficient for her to properly assess the funds available to the applicant.
With respect to the wife's property, the applicant submitted a single document to the officer: a "Notarial Certificate of Kinship" in his wife's name. Unlike the document in Bakhtiania v. Minister of Citizenship and Immigration (June 24, 1999), IMM-3162-98, that document is not a deed of conveyance. I am therefore of the opinion that the officer reasonably concluded that the document by itself was insufficient to establish the funds for establishment.
For all these reasons, the application for judicial review is dismissed.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
March 1, 2002
Certified true translation
Sophie Debbané, LLB
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-6259-00
STYLE OF CAUSE: Nan Lu v. Minister of Citizenship and Immigration
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 5, 2002
REASONS FOR ORDER OF PINARD J.
DATED: March 1, 2002
APPEARANCES:
Michelle Langelier FOR THE APPLICANT
Thi My Dung Tran FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michelle Langelier FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg
Deputy Attorney General of Canada FOR THE RESPONDENT