Date: 20010928
Docket: IMM-494-00
Neutral Citation: 2001 FCT 1071
BETWEEN:
NURADIN MUJEZINOVIC & ALISA MUJEZINOVIC
& AMRA MUJEZINOVIC
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review under subsection 82.1(6) of the Immigration Act, R.S.C. 1985, c.I-2 (the "Act") from the decision rendered by Donna Marie Capper, visa officer ("visa officer") on August 27, 1998, wherein it was determined that the applicant did not qualify within Canada's resettlement program on the grounds that he could not satisfy the self-sufficiency requirement.
FACTS
[2] The principal applicant, Nuradin Mujezinovic, is a Muslim from Novi Pazar, Serbia (formerly Yugoslavia) born November 14, 1969. The two other applicants in this application are his wife, Alisa Mujezinovic born May 17, 1974 in Sjenica, Yugoslavia, and daughter Amra Mujezinovic born August 4, 1995 in Mulheim, Yugoslavia.
[3] Since March 1992, the principal applicant and his family have been in Germany on a temporary refugee permit.
[4] There have been several occasions whereby the applicant and/or his wife have returned to Yugoslavia throughout the period of 1994-1997.
[5] On August 14, 1998, the applicant submitted an application for permanent residence under the CR4 category which refers to "self-supporting Convention refugees" to the Canadian Embassy in Vienna, Austria.
[6] In the application for permanent residence, there is a section devoted to language proficiency for both official languages. Mr. Mujezinovic indicated that his language proficiency in English was "with difficulty" in all three sub-headings ("speak", "read" and "write"). In French, he indicated that his language proficiency was "not at all" in all three sub-headings. In regards to Mrs. Mujezinovic, she indicated that her language proficiency in English was "with difficulty" for "speak" and "not at all" for both "read" and "write". In French, she indicated that her language proficiency was "with difficulty" in all three sub-headings.
[7] Again, in his application for permanent residence, the applicant declared the amount of $30,000 as his total assets. The applicant and his family wished to resettle in Toronto, Ontario.
[8] The applicant and his family received a refusal letter dated August 27, 1998 from the visa officer, informing the applicant that his application for permanent residence was denied on the grounds of his inability to fulfill the self-sufficiency requirement.
ISSUES
[9] There are four (4) issues in this application:
1. Did the visa officer err in fact and in law by refusing to process this case pursuant to her duty under subsection 9(2) of the Act and contrary to the Minister's Immigration Manual thereby denying the principal applicant procedural fairness?
2. Did the visa officer err in fact and in law in determining that the applicant had insufficient funds to qualify as a self-supporting Convention refugee?
3. Are there statements in the visa officer's affidavit, sworn May 3, 2000, unsupported by the certified record?
4. Did the visa officer's notes and refusal letter contain inconsistencies on the record that provides a ground for review?
ANALYSIS
Did the visa officer err in fact and in law by refusing to process this case pursuant to her duty under subsection 9(2) of the Act and contrary to the Minister's Immigration Manual thereby denying the principal applicant procedural fairness?
[10] No, the visa officer did in fact fulfill her duty in regards to subsection 9(2) of the Act since she did consider whether the applicant and his family should be given landing.
[11] In my view, the letter dated August 27, 1998 sent by the visa officer to the applicant, is a decision, and the suggestion that this letter is "a discouraging letter" and is not a complete decision, should be rejected.
[12] In Mohamed v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1230 (F.C.T.D.), Sharlow J. speaks of the procedure to be followed in for resettlement under section 7 of the Immigration Regulations ("Regulations") at paragraph 5:
The admission requirements for Mr. Mohamed are those set out in section 7 of the Regulations. The decision of the visa officer was focussed on two of those requirements. The first was whether Mr. Mohamed met the definition of "Convention refugee seeking resettlement." The second is whether Mr. Mohamed and his accompanying dependents would be able to become successfully established in Canada, taking into consideration their education, work experience, skills and other listed factors.
[13] In regards to the first requirement, to consider Convention refugee status, visa officer Capper's refusal letter does not make explicit mention in regards to the assessment of the Convention refugee status of the applicant, however it is very clear from her CAIPS notes that she considered the refugee status in an implicit manner: "Claims to have fled to Germany from Kosovo in 1992 but was married in hometown in Kosovo in 1994". This phrase illustrates that the visa officer did consider the refugee status of the applicant but was more concerned with the return to the country of persecution by the applicant.
[14] In my opinion, the visa officer did in fact consider the Convention refugee status of the applicant in order to come to her finding. She did not linger upon this point in her refusal letter nor in her CAIPS notes simply because she was focussed on other matters, such as the language proficiency and the financial resources of the applicant.
2. Did the visa officer err in fact and in law in determining that the applicant had insufficient funds to qualify as a self-supporting Convention refugee?
[15] No, the visa officer did not err in determining that the applicant had insufficient funds to qualify as a self-supporting Convention refugee.
[16] Subparagraph 7(1)(b)(iii) of the Regulations refers specifically to financial stability, particularly the "lodging, care and maintenance, and for the resettlement in Canada, of the person and the accompanying dependants". The visa officer relied upon the Low Income Cut-off ("LICO") as the standard which gives the minimum annual income acceptable for a Canadian citizen or a permanent resident to sponsor a family class application which was the amount of $27,063 as of March 1, 1998 [The new amount effective until February 1, 2002 is $27,805 for three people living in a population residence size of 500,000 and over according to the LICO Table in Sponsoring a Family Class Relative at p. F-1]. It is clear that the amount of $30,000 is precisely $2,937 above the LICO however, the amount was considered insufficient by the visa officer. This amount would not have allowed for a feasible resettlement in Toronto as it is inadequate. But the real significance lies in the fact that the applicant did not have any proof to convince the visa officer that he did in fact possess the amount of $30,000. A visa officer cannot be expected to simply rely upon the words of the applicant without valid proof thereof.
[17] In Tahir v.Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1354 (F.C.T.D.) Madam Justice Tremblay-Lamer stated at paragraph 8:
The applicant submits that when an application is deficient, the visa officer has a duty to request supporting documentation or to grant an interview in order to substantiate the application. I do not agree. The onus is on the Applicant to file an application together with any relevant supporting documentation. There is no duty for the visa officer to try to bolster an incomplete application.
[18] Lastly subparagraph 7(1)(c)(i) of the Regulations refers to language proficiency. The visa officer relied upon the difficulty with language of both the applicant and his wife, along with the insufficient funds requirement, in order to dismiss the application. The applicant and his family had the intention of resettling in Toronto, Ontario which is a predominantly English speaking metropolis. The lack of proficiency would further question the applicant's ability to become self-sufficient once resettled in Canada.
[19] The visa officer is in a better position than the Court to make the determination as to the applicant's language ability. The evidence before the visa officer supported her assessment of the applicant's language ability and I cannot find that her conclusions were unreasonable.
3. Are there statements in the visa officer's affidavit, sworn May 3, 2000, unsupported by the certified record?
[20] No, there are no statements in the visa officer's affidavit which are unsupported by the certified record. There are a few errors contained in the visa officer's affidavit however, but it is apparent that they were made by inadvertency more so than being unsupported. These errors are negligible in my opinion and do not undermine the assessment made by the visa officer.
4. Did the visa officer's notes and refusal letter contain inconsistencies on the record that provides a ground for review?
[21] No, there are no statements in the visa officer's notes and refusal letter which are unsupported by the certified record. The visa officer's notes and refusal letter do not reveal any inconsistencies. The CAIPS notes are brief and perhaps may even appear cursory. They are discernable, however.
[22] The applicant has not successfully shown that the visa officer's assessment was flawed. In my opinion, the application for judicial review should be dismissed.
[23] Neither counsel suggested a question for certification.
Pierre Blais
Judge
OTTAWA, ONTARIO
September 28, 2001