Date: 20010308
Docket: IMM-6081-99
Neutral citation: 2001 FCT 150
BETWEEN:
DRAGO DARDIC
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
Facts
[1] Mr. Drago Dardic (the "Applicant") seeks judicial review of Visa Officer Kate Eede ("Visa Officer"), made on November 15, 1999. In her decision, the Visa Officer refused the Applicant's application for admission into Canada as a self-supporting Convention refugee.
[2] The application was refused on the basis that the Applicant had failed to provide the necessary documentation to show financial sufficiency for himself and his family to resettle in Canada. The Visa Officer did not assess the Applicant's eligibility as a Convention refugee once she had determined that he had failed to provide reliable evidence as to his financial resources.
[3] The Applicant is a Serb, formerly from Bosnia-Herzegovina. He went to live in Germany in 1991 to avoid participation in the war in his home country. He has remained in Germany on temporary status since 1991.
[4] The Applicant submitted his application for entry into Canada as a Convention refugee to Canadian Embassy in Bonn, through the agency of an immigration consultant. His application, dated June 1, 1999, was forwarded to the Embassy under cover of a letter dated July 9, 1999. Receipt of the application was acknowledged by the Embassy by a letter dated September 14, 1999. That letter also detailed the documents required to support the application, including documents concerning proof of funds. The letter also included the following note:
PLEASE PROVIDE THE REQUESTED ITEMS ALL TOGETHER WITHIN 45 DAYS OR WE WILL ASSUME YOU ARE NO LONGER INTERESTED IN CANADA AND YOUR FILE WILL BE REFUSED FOR NON COMPLIANCE AS PER A 9(3) OF THE IMMIGRATION ACT.[1]
[5] By letter dated October 10, 1999, further information and documents were submitted by the immigration consultant acting on behalf of the Applicant. This material included copies of bank-book entries and the following advice from the consultant:
Proof of funds. Please note the following:
· Account number 316419446 is an active account but funds have been withdrawn by Mr. and Ms. Dardic when continued residence in Germany came in question. Current balance of the account is 88.66 DM but remaining funds from this account are held by the applicants in cash;.
· Account number 335521860 was closed on May 7th, 1999 and funds withdrawn by the applicants for the same reasons as stated above. Funds from this account are still held by the applicant in cash;
· Account number 53013325 is an active account and funds and funds in excess of 4,500.00 DM are on deposit;
· Account number 530111999 is an active account and funds in excess of 4,100.00 DM are on deposit;
· Account number 53013326 is an active account and funds in excess of 4,500.00 DM are on deposit;
· Account number 53011998 is an active account and funds in excess of 3,600.00 DM are on deposit.[2]
[6] This information was proffered as the "proof of funds" required by the Embassy as part of the application for Convention refugee status, as stated in the Embassy's letter of September 14, 1999.
[7] The Visa Officer rejected the documents and information which were submitted as proof of funds. She said in her refusal letter as follows:
I confirm receipt of your submission received on October 13, 1999 however, the proof of funds provided is not in your name from a financial institution as stipulated in our request. As you were advised in our initial acknowledgement letter of September 14, 1999 the documents regarding your funds are absolutely necessary to be assessed in the self-supporting refugee category (CR4).[3]
Issues
[8] The Applicant raises four issues in this application for judicial review, as follows:
A. The visa officer erred in law in failing to make a determination on the eligibility of the Convention Refugee claim as required by the Minister's Immigration Manual.
B. The visa officer erred in law when she required proof of funds at a time other than at visa issuance and erred in determining that "irrefutable proof of funds" was required.
C. The visa officer's use of sections 9(3) and 19(2)d of the Immigration Act is an error of law in this fact situation.
D. Did the visa officer err in law and deny the applicant procedural fairness in failing to interview the Applicant.
Applicant's Submissions
[9] The Applicant argues that the Visa Officer committed a reviewable error of law by failing to assess the Applicant's eligibility as a Convention refugee, prior to assessing the adequacy of the documents he submitted us to his financial resources.
[10] Second, the Applicant argues that the Visa Officer erred by requiring proof of funds prior to the issuance of a visa. The Visa Officer compounded her error by requiring "irrefutable proof" of funds, thereby imposing the criminal standard of proof beyond a reasonable doubt, rather than the civil burden of proof on the balance of probabilities.
[11] As part of the argument on the second issue, the Applicant says that the Visa Officer misinterpreted the evidence as to the Applicant's ability to be self-supporting since the evidence demonstrated that he had access to some DM 16,788 which is approximately CDN $12,000.00. That amount exceeds the recommended amount of CDN $ 10,000.00 per family.
[12] Third, the Applicant argues that the Visa Officer erred by relying on sections 9(3) and 19(2)(d) of the Immigration Act, R.S. 1985, c. I-2 (the "Act") when assessing his application. This was an error because the Visa Officer erroneously required proof of funds at the time the Applicant applied for admission into Canada, rather than at the time of issuing the visa.
[13] Finally, the Applicant submits that by failing to interview him and provide him with the opportunity to respond to her concerns, the Visa Officer breached a duty of fairness towards him.
Respondent's Submissions
[14] The Respondent says that the decision of the Visa Officer was made in the proper exercise of her discretion and should stand.
[15] The Respondent further submits that pursuant to section 8(1) of the Act, the burden lies upon a person seeking entry into Canada to prove that he meets the necessary qualifications. When a person is required to provide necessary documentation, the failure to do so may result in rejection of a claim as stated in section 9(3) of the Act. The Visa Officer found that the Applicant had not provided the required proof of funds and the Visa Officer's assessment of his application was conducted fairly, but with a negative result for the Applicant.
Analysis
[16] The decision in issue in this application is the discretionary decision of the Visa Officer, contained in her letter of November 15, 1999. The standard of review applicable to the decision of a discretionary decision maker was addressed by the Supreme Court of Canada in Re Maple Lodge Farms Ltd. and Government of Canada et al (1982), 137 D.L.R. (3d) 558 (S.C.C.), McIntyre, J. stated at p. 562:
In construing statutes such as those under consideration in this appeal, which provide for far-reaching and frequently complicated administrative schemes, the judicial approach should be to endeavour within the scope of the legislation to give effect to its provisions so that the administrative agencies created may function effectively, as the legislation intended. In my view, in dealing with legislation of this nature, the courts should, wherever possible, avoid a narrow, technical construction, and endeavour to make effective the legislative intent as applied to the administrative scheme involved. It is, as well, a clearly-established rule that 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.
[17] From my review of the certified Tribunal Record in this matter, I am satisfied that the conclusion of the Visa Officer concerning the sufficiency of the Applicant's proof of funds was reasonable. The Applicant did not provide statements from a bank in Germany nor a statutory declaration concerning his finances. It was open to the Visa Officer to conclude that the documents submitted were insufficient. There is no evidence that she considered extraneous matters in reaching her conclusion.
[18] As for the Applicant's arguments that the Visa Officer breached a duty of fairness towards him by failing to interview him and provide an opportunity to satisfy her concerns, I refer to the decision of Justice Tremblay-Lamer in Tahir v. Canada (Minister of Citizenship and Immigration) (1998), 159 F.T.R. 109 at page110 where the Court said:
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. Obviously, the visa officer may make inquiries, when warranted, but, where the applicant simply provides a job title and does not even care enough to provide any of the available supporting material, I find it offensive to suggest that the burden is shifted and that the visa officer should have done more than she did.
[19] In the circumstances of this case, I conclude that the Visa Officer properly exercised her discretion in assessing the Applicant's application for entry into Canada as a Convention refugee, including assessment of the documents submitted by the Applicant. The Visa Officer was not obliged to assess his eligibility as a Convention refugee once she had determined that the required proof of funds was not provided. There was no breach of procedural fairness in respect of this Applicant.
[20] The application for judicial review is dismissed.
[21] Although Counsel for the Applicant submitted two questions for certification pursuant to section 83(1) of the Act, the decision here rests on the application of general principles to the specific facts presented. No question will be certified.
"E. Heneghan"
J.F.C.C.
Ottawa, Ontario
March 8, 2001