CITIZENSHIP AND IMMIGRATION |
Status in Canada |
Permanent Residents |
Zou v. Canada (Minister of Citizenship and Immigration)
IMM-1989-01
2003 FCT 363, O'Keefe J.
27/3/03
16 pp.
Judicial review of visa officer's decision at Canadian Consulate General in New York refusing applicant's application for permanent residence--Applicant citizen of China residing in United States at time of application for permanent residence in Canada--Whether visa officer fettered discretion by importing own criteria--When visa officer interviewed applicant, officer very concerned about applicant's funds--Two concerns regarding funds--First, applicant could not provide any evidence of source of funds-- Second, applicant could not provide evidence substantiating claim applicant sole proprietor of funds--After review of record, no evidence raising suspicion applicant did not own funds--Applicant need not establish source of funds as long as applicant can establish funds are his to use to establish eventual business--In case at bar, visa officer imposed two separate requirements on applicant: (i) ownership of funds, and (ii) source of funds--Under self-employed category, visa officer cannot require applicant establish source of funds as separate requirement, apart from ownership of funds--Visa officer made unreasonable decision in imposing requirement on applicant--Because funds necessary to establish proposed business, issue of funds important to final outcome of application, in order to be assessed fairly, applicant should have application reheard--Judicial review allowed and matter referred to different visa officer for redetermination-- Question certified as to whether Immigration and Refugee Protection Regulations, 2002, s. 350 ultra vires Immigration and Refugee Protection Act in that Act, s. 190 not apropos as (a) s. 190 applying only to matters (i) "under former [Immigration] Act", not Federal Court Act (ii) pending before Immigration, not Federal Court, on June 28, 2002 and, in any event, (b) matter giving rise to application before Federal Court not "pending" on that date as visa officer had finalized matter when issued refusal letter on April 9, 2001-- Immigration and Refugee Protection Regulations, SOR/2002-227, s. 350--Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 190.