Reasons and Decision - Motifs et decision

Transcription

1 Immigration and Refugee Board of Canada Immigration Appeal Division Commission de!'immigration et du statut de refugie du Canada Section d'appel de!'immigration Reasons and Decision - Motifs et decision SPONSORSHIP Appellant(s) XING LIN Appelant(e)(s) Respondent The Minister of Citizenship and Immigration Le ministre de la Citoyennete et de I'Immigration In time( e) Date(s) and Place of Hearing July 31, 2012 Toronto, Ontario Date(s) et lieu de l'audience Date of Decision August 2, 2012 Date de la decision Panel Harvey Savage Tribunal Counsel for the Appellant(s) Yiu Wing Ng Conseil(s) de l'appelant(e) I des appelant(e)(s) Counsel for the Minister Yousuf Alam Conseil du ministre

2 REASONS FOR DECISION [ 1] The appellant, Xing LIN, appeals from a refusal to approve the permanent resident visa application of his family member, his mother, Yuhua Wang (the applicant). The application was refused on the grounds that the appellant did not meet the Minimum Necessary Income (MNI) pursuant to section 133(1)(j) of the Immigration and Refugee Protection Regulations (the Regulations). [2] The visa officer determined that the MNI was required for a family of three, whereas the appellant only provided evidence that these requirements were met for a family of two. This was because during the processing of the application the appellant married his now former wife. The visa office therefore reassessed the application since the appellant's change of a status now included a dependant spouse. Thus, the visa officer assessed the requirement on three and the MNI was not met. [3] At the outset of the appeal appellant's counsel indicated that his client was not challenging the legal validity of the visa officer's decision. He was basing his appeal on humanitarian and compassionate grounds. Appellant's Position [4] The appellant submitted Notices of Assessment and supporting documents for the years 2009, 2010 and These documents, all contained in exhibit AI, indicate that the appellant in those years had a gross income respectively of$41,937, $38,262, and $35,993. He also filed for 2012 an employment letter and pay stubs for the appellant that demonstrate that he has been fully employed since March 2012 as a chef at the Ben Thanh Restaurant where he works six days a week.at a current hourly wage of $17.50 per hour and $26.50 per overtime hour. He is paid biweekly about $2,000 and his employment letter confirms that his projected annual income is $57, !.Exhibit A-1, page 3.

3 2 Client ID No./ N ID client: [5] Appellant's counsel submitted that the appellant has been meeting the MNI requirements for a family of three for the last three years of tax assessments and is projected to meet it for That requirement is currently $34,606. [6] Appellant's counsel further submitted that because of this there is a lower threshold for humanitarian and compassionate grounds and, in any event, his mother lives alone in China apart from her only two offspring. The appellant provided evidence of financial support sent to his mother. The appellant's counsel submitted therefore that the appeal should be allowed on humanitarian and compassionate grounds. Respondent's Position [7] Minister's counsel submitted that there are insufficient humanitarian grounds to allow the appeal. He submitted that the appeal should therefore be dismissed. [8] Minister's counsel submitted that it would appear that the appellant's application to sponsor his second wife, rejected the first time, will likely succeed now because his wife is currently exp~cting their first child. Therefore, he submitted that the panel should treat the MNI requirement as four, counting in the baby. The MNI requirement for four is $42,065, which the appellant will not meet in the 12 months preceding the hearing. [9] Minister's counsel submitted that the appellant's employment is not sufficiently stable partly because he has only been in his current job since March 2012 and partly because it creates uncertainty about where his mother will live. [10] Minister's counsel also submitted that the appellant's last 12-month income will not be sufficient for a family of four because of the absences to go to China. [11] Minister's counsel finally submitted that $7,000 claimed in the appellant's 2011 Notice of Assessment be deducted in the panel's assessment since the appellant failed to credibly explain how the income was derived.

4 3 Decision and Analysis [ 12] For reasons that follow I find that there are sufficient humanitarian and compassionate factors to grant special relief and allow the appeal. [13] I am of the view that the Immigration Appeal Division's (lad's) decision in Jugpall, 2 which was decided under the former Immigration Regulations, remains a useful framework for determining whether discretionary relief should be granted in a financial appeal. In Jugpall, the lad held that an appellant's current ability to meet the Low Income Cut-off (LICO), now MNI, is relevant to the exercise of its statutory discretion. The framework of analysis outlined in Jugpall is as follows: 3 1. Do the current circumstances of the appellant indicate that the test for financial solvency under the amended Regulations is met as of the date of the hearing? This includes determining whether the appellant has a track record of meeting the Low Income Cut-Off criteria in the 12 months preceding the date of hearing. 2. If the answer to the first question is in the affirmative, are there any other positive factors which warrant the granting of special relief? Are there negative factors which weigh against the granting of special relief? A lesser standard than that required by Chirwa may be sufficient to justify granting special relief. 3. If the answer to the first question is negative, are there nonetheless sufficient compassionate or humanitarian considerations to warrant the granting of special relief, in accordance with the test in Chirwa, given that the appellant can not in substance meet the requirements of the Act? The number and nature of those factors will vary, depending upon the extent to which the appellant fails to meet the requirements of the Act. [14] The appellant does not meet the requirements for a family of three the 12 months preceding the hearing. I factor in the four months of unemployment when he was in China to visit his wife and mother, and deduct the $7,000 from his 2011 income, which I agree is dubious. His monthly income for 2011 minus the $7,000 was $2,416. He only worked in Canada in 2011 for 10 months because he went to China at the end of 2011, leaving him with a 2011 income 2 Jugpall, Sukhjeewan Singh v. M. C.!. (lad T ) Aterman, Goodman, Townshend, April12, Ibid., paes

5 4 Client ID No./ N ID client: from July 31 (date of hearing) of $7,248. His work at the restaurant commenced March The monthly income since March 2012 is $4,810, bringing his total to July 31, 2012 at $24,052. The combined 12-month total is $31, The MNI is $34,606, leaving him short $3,306. [ 15] However, from humanitarian and compassionate grounds standpoint this is not the end of the story. First, I consider that the appellant has produced Notices of Assessment for 2009, 2010 and Even deducting the disputed $7,000 from the 2011 Notice of Assessment, his threeyear total income is $109,192. His average income from that total is $36,397, more than the 2012 MNI requirements of $34, 606. [ 16] I consider the averaging calculation to be reasonable for two reasons. The appellant has established a pattern of employment for each of the last three years and he would have met the MNI requirements for three persons in each of the three years were it not for his four month absence in to travel to China. I consider this to be a legitimate reason of absence since he was visiting with his mother, whom he is sponsoring, and with his wife, who is separated from him by distance. In my mind this makes it a fair calculation from a humanitarian and compassionate perspective, since but for a legitimate absence he would clearly have met the MNI requirements for the preceding 12 months, and his previous years of recent employment also attest to that. [17] I have also considered the Minister's submissions, but must respectfully disagree. It would be unfair for the panel to infer four persons for whom requirements must be met. The appellant's child is not even born and the appellant has not even initiated a new application to sponsor his second wife. I can only deal with concrete facts before me, not engage in speculation. [ 18] It would also be unfair to infer that the appellant currently has unstable employment. The fact is that he has been employed full-time since March 2012 and has filed a letter of employment from his employer as well as pay stubs. Moreover, he has a previous history of quite stable employment as attested by the documents he has filed and by his testimony.

6 5 lad File No./ N de dossier de la SAl: TB [ 19] Family reunification is a significant factor in this appeal. The appellant clearly enjoys a close relationship with his mother. He has filed evidence of significant financial remittances for her support. She lives alone in China while her only two children - the appellant and his older brother - both live in Canada. To continue to remain in her situation is a hardship for her and for them. [20] Therefore, for the foregoing reasons, although the refusal is valid in law, there are sufficient humanitarian and compassionate considerations to warrant special relief in light of all the circumstances of the case. Accordingly, the appeal is allowed. NOTICE OF DECISION The appeal is allowed. The officer's decision to refuse a permanent resident visa is set aside, and an officer must continue to process the application in accordance with the reasons of the Immigration Appeal Division. "Harvey Savage" Harvey Savage August 2, 2012 Date Judicial Review- Under section 72 of the Immigration and Refugee Protection Act, you may make an application to the Federal Court for judicial review of this decision, with leave of that Court. You may wish to get advice from counsel as soon as possible, since there are time limits for this application.