Date: 20020822
Docket: IMM-5951-00
Neutral citation: 2002 FCT 870
BETWEEN:
LAU TING MING, STEPHEN
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROTHSTEIN J.A. (ex officio)
[1] This is a judicial review of a decision of a visa officer in which he refused to exercise
positive discretion under subsection 11(3) of the Immigration Regulations, 1978, SOR/78-172, to issue an immigrant visa to the applicant. Subsection 11(3) provides:
| (3) A visa officer may (a) issue an immigrant visa to an immigrant who is not awarded the number of units of assessment required by section 9 or 10 or who does not meet the requirements of subsection (1) or (2), or (b) [...], if, in his opinion, there are good reasons why the number of units of assessment awarded do not reflect the chances of the particular immigrant and his dependants of becoming successfully established in Canada and those reasons have been submitted in writing to, and approved by, a senior immigration officer. |
(3) L'agent des visas peut a) délivrer un visa d'immigrant à un immigrant qui n'obtient pas le nombre de points d'appréciation requis par les articles 9 ou 10 ou qui ne satisfait pas aux exigences des paragraphes (1) ou (2), ou b)[...], s'il est d'avis qu'il existe de bonnes raisons de croire que le nombre de points d'appréciation obtenu ne reflète pas les chances de cet immigrant particulier et des personnes à sa charge de réussir leur installation au Canada et que ces raisons ont été soumises par écrit à un agent d'immigration supérieur et ont reçu l'approbation de ce dernier. |
[2] The applicant had also applied for waiver of the requirement to apply for landing outside
Canada based on humanitarian and compassionate considerations under subsection 114(2) of the Immigration Act, R.S.C. 1985, c. I-2. The application was denied and judicial review of that decision was dismissed by Blanchard J. in Stephen v. MCI, 2001 FCT 1253.
[3] The facts pertinent to this judicial review can be briefly stated. The applicant, who is originally from Hong Kong, emigrated to the United States in 1995 and became a resident there. He subsequently applied for permanent residence in Canada indicating he did not intend to become employed in Canada. He was assessed as a retired person by the visa officer.
[4] The applicant says he can successfully establish himself in Canada in the economic sense
because he has family in this country and because he has an estate worth in excess of $1 million.
[5] The visa officer found there were insufficient significant factors or economic considerations to suggest that the applicant would become "successfully established" as described in subsection 11(3) of the Regulations. The visa officer found guidance in the dissenting reasons of Robertson J.A. in Chen v. Canada (MCI), [1994] 1 F.C. 639 at page 650 (C.A.): [...] when deciding persons' ability to successfully establish themselves in Canada the determination criteria must be restricted to matters relating to their ability to make a living.
In reversing the majority in Chen, supra, the Supreme Court of Canada approved the reasons of Robertson J.A. (Chen v. Canada (MCI), [1995] 1 S.C.R. 725 at paragraph 1).
[6] The visa officer was not satisfied the applicant was going to make a living in Canada and denied his application for the exercise of positive discretion under subsection 11(3) of the Regulations.
[7] The applicant relies on the reasons of Strayer J. (as he then was) in the Trial Division decision in Chen v. MCI, [1991] 3 F.C. 350 (T.D.), in which he stated at page 360:
The selection standards [...] appear to be essentially related to the ability of an immigrant to make a living in Canada or to be economically sustained other than by the State.
[8] The applicant says the Supreme Court also approved this statement and that the words "or to be economically sustained other than by the State" would encompass retired persons with sufficient assets to live off the income generated by investments.
[9] It should first be noted that the Trial Division decision in Chen, supra, was based on wording of the Immigration Regulations, 1978 which, at the time, extended eligibility under the immigration selection criteria to certain retired person who had the resources to support themselves. However, by amendments enacted by PC 1991-1204 dated June 21, 1981, the retiree eligibility was eliminated from the Regulations. To the extent Strayer J. 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 criteria is an ability to support themselves from personal savings.
[10] 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.
[11] Retirees, of course, are not precluded from qualifying for immigration if they satisfy the criteria for the investor, the entrepreneur or the self-employed categories. (However, under subsection 8(3), being self-employed means having an occupation or a business, not simply having passive investment income.) But under the Immigration Regulations, 1978 as they stood at the time relevant for purposes of this case, retirees, whose only economic criteria is having sufficient assets to sustain themselves, are not eligible for immigration to Canada.
[12] The applicant also argued that, under subsection 11(3) of the Regulations, the visa officer must have good reasons to exercise his discretion and that here, the visa officer did not say he had good reasons but rather that there were "insufficient significant factors or economic considerations" to suggest the applicant would be successfully established for purposes of subsection 11(3) of the Regulations. I am satisfied that these are good reasons as contemplated by subsection 11(3).
[13] I would dismiss the application for judicial review. I would certify the following question for appeal:
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 criteria is having sufficient assets to sustain themselves?
"Marshall Rothstein"
Judge
August 22, 2002
Toronto, Ontario
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-5951-00
STYLE OF CAUSE: LAU TING MING, STEPHEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, AUGUST 13, 2002
REASONS FOR ORDER BY: ROTHSTEIN J.A.
DATED: THURSDAY, AUGUST 22, 2002
APPEARANCES BY: Mr. Cecil L. Rotenberg
For the Applicant
Mr. Jamie Todd
For the Respondent
SOLICITORS OF RECORD: Cecil Rotenberg
Barrister & Solicitor
255 Duncan Mill Road
Suite 808
Don Mills, Ontario
M3B 3H9
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date:20020822
Docket: IMM-5951-00
BETWEEN:
LAU TING MING, STEPHEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER