Date: 20030724
Docket: IMM-4750-02
Citation: 2003 FC 912
Ottawa, Ontario, this 24th day of July, 2003
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
XIA LI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Li, a citizen of China, has lived in Canada since 1992. After a period of unemployment lasting nearly four years, he has worked and pursued business opportunities here for the past several years. He says that he had been persecuted in China, but failed in his Canadian refugee claim and risk assessment. He then made an application for an exemption on humanitarian and compassionate grounds from the usual requirement to apply for permanent residency from outside Canada. A visa officer turned him down. Mr. Li argues that the officer made a serious error by failing to assess fairly evidence of his strong ties to Canada. He asks to have his application reassessed by a different officer.
[2] There is a single issue to be decided: Did the visa officer fail to assess fairly the evidence of Mr. Li's ties to Canada?
[3] Mr. Li's humanitarian and compassionate application was based primarily on the strength of his connection with Canada. In the face of that evidence, he says that the visa officer was wrong to concentrate on, and draw an adverse inference from, his failure to produce written proof of a job he had left in 1997 and a financial statement. He suggests that if these were matters of serious concern, the officer should have said so and given him a chance to respond. He also argues that the officer failed to follow the relevant guidelines. I find neither argument persuasive.
[4] The visa officer considered a wide range of factors when she analyzed Mr. Li's application. She reviewed his family and personal relationships, the situation of his children, any hardship or personal risk that would result from a return to China, his personal and family ties there, medical and security factors and, of course, the degree of his connection with Canada. Concerning this last factor, the officer took into account Mr. Li's employment history, business activities, income and revenue, savings and English language skills. She was apparently troubled by two things: Mr. Li's failure to produce written proof of his employment during 1995-1997, and a missing accountant's statement relating to his business. She had already specifically asked him to produce letters from his employers and the accountant's statement. She concluded that his attachment to Canada was not so strong as to justify a humanitarian and compassionate exemption.
[5] In my view, the officer assessed the evidence fairly. She considered a wide range of factors relevant to the degree to which Mr. Li had established his residence in Canada. She was understandably concerned about his employment record from 1995-1997 because he had admitted being unemployed from 1992-1995. Naturally, she was also interested in knowing how sound his business ventures had been. In fact, the official guidelines on establishment of residence specifically refer to employment history and financial management as relevant factors. In the circumstances, the officer gave Mr. Li a chance to supply the information she required. She did not have a further duty to tell Mr. Li that the absence of these documents concerned her or give him another chance to supply them.
[6] In any case, this was not the sole basis on which she assessed Mr. Li's application. She considered the full array of factors mentioned above and decided that "disproportionate or unusual and undeserved hardship would not occur" if Mr. Li had to make his application for permanent residency in the normal way; that is, from outside Canada. She noted in particular that Mr. Li did not have any family in Canada. His wife, daughter and extended family are still in China. His connection with China is strong: he lived there for 37 years. He had employment experience there. In short, there was no evidence that he would suffer hardship if he returned.
[7] Accordingly, I cannot conclude that the visa officer erred in her assessment of the evidence supporting Mr. Li's application for a humanitarian and compassionate exemption. This application for judicial review is therefore denied.
JUDGMENT
IT IS HEREBY ADJUDGED that:
1. The application for judicial review is dismissed.
"James W. O'Reilly"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-4750-02
STYLE OF CAUSE: XIA LI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, JULY 10, 2003
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HON. MR. JUSTICE O'REILLY
DATED: THURSDAY, JULY 24, 2003
APPEARANCES BY: Mr. Lorne Waldman
For the Applicant
Ms. Patricia MacPhee
For the Respondent
SOLICITORS OF RECORD: Mr. Lorne Waldman
Barrister and Solicitor
281 Eglinton Ave. E.
Toronto, Ontario
M4P 1L3
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent