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Case Comments: Summarization of some recent court rulings

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Visa officer must give weight to financial documents: In the recent case of Jianmin He v. Canada (Minister of Citizenship & Immigration), the applicant, a citizen of the People’s Republic of China applying for a permanent resident visa under the “investor” category, had been asked to bring to his selection interview a series of documents, including audited financial statements and corresponding profit tax assessments for the three preceding years.

The applicant brought the requested documents to the interview, yet the visa officer refused his application on the grounds that the applicant had failed to establish his business involvement or the performance of his business.

In ruling in favour of the applicant, the judge held that the visa officer’s determination not to give any weight to the financial statements produced by the applicant was an error of law. Apparently the visa officer had discounted the financial statements for the sole reason that they had been audited by an accountant who did not belong to one of the six “major” accounting firms recommended by the visa officer. Unless there was some evidence that the financial statements were false or fraudulent, the judge ruled the visa officer was obliged to consider them.

Objectifying the “Personal Suitability” criteria: In the recent case of Mui v. Canada (Minister of Citizenship & Immigration) and the 1995 case of So v. Canada (Minister of Citizenship & Immigration), the Federal Court of Canada appears to be attempting to establish guidelines for the application of the “personal suitability” factor in the immigrant visa assessment process.

In Mui, a visa officer had refused the applicant’s application for a permanent resident visa under the “self-employed” category. The applicant had been living and working illegally in Canada for 15 years as a hairstylist. The visa officer awarded the applicant a mere “four” out of a possible ten points under the “personal suitably” selection criteria.

In ruling in favour of the applicant, the judge stated that the criteria to be applied in assessing “personal suitability” was whether a prospective immigrant possesses qualities (such as resourcefulness) that make it likely that he or she will be able to become established in Canada. While there are a number of discretionary aspects to the points assessment process (particularly under the “personal suitability” heading) the visa officer must not be influenced by external factors.

Thus, the judge held that the visa officer should have given more weight to the fact that the applicant had clearly demonstrated the likelihood of his becoming established in Canada by virtue of the fact that he had already been established in Canada for 15 years, albeit illegally. Furthermore, the judge ruled that the illegal nature of the applicant’s previous status in Canada was of secondary relevance for the purposes of determining “personal suitability.”

In discussing the nature of the “personal suitability” selection criteria, the judge considered the So case, where the guidelines for applying the “personal suitability” criteria were perhaps most clearly established by the courts. In So, the visa officer had refused an application for a permanent resident visa from an applicant applying under the “skilled worker” category, as a Chef. In ruling in favour of the applicant, the judge held that the visa officer’s refusal had been of blatant bad faith.

To quote the text of the judgment, the visa officer had “clearly disregarded pertinent and relevant facts, such as the applicant’s twenty years of experience as a chef and his certificate as a Class I Chef in Cantonese Dishes, and was influenced, more aptly described as obsessed, by factors which should not have played a role in his decision-making at all, such as the applicant’s having remained in Canada after his status had expired. His conclusion that Mr. So had only a forty percent chance of becoming established in Canada is perverse, in light of the fact that the applicant has saved a substantial amount of money since his arrival in 1990, has purchased two cars and has secured gainful employment as a head chef at the rate of $900 per week.”

Apparently, then, the courts are requiring visa officers to apply the “personal suitability” selection criteria for the sole purpose of assessing the applicant’s “likelihood of becoming successfully established in Canada.” It is unacceptable for visa officers to be influenced by any other negative factors or opinions that they may have about the particular applicant when assessing “personal suitability.”

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