[2000] 2 F.C. 348
IMM-843-98
Guo Yong Biao (Applicant)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Biao v. Canada (Minister of Citizenship and Immigration) (T.D.)
Trial Division, Nadon J.—Montréal, July 6; Ottawa, November 5, 1999.
Citizenship and Immigration — Exclusion and removal — Inadmissible persons — Judicial review of visa officer’s denial of application for permanent residence as investor — Applicant having certificate of selection issued by Quebec Immigration — Given disparity between salary, net worth, visa officer requesting documents establishing source of funds to ensure legality thereof — Immigration Act, s. 9(3) requiring production of documentation as required by visa officer to establish admission not contrary to Act, regulations — Given applicant’s income, net worth, visa officer’s request proper, visa denied on appropriate grounds i.e. unable to verify applicant’s admissibility with respect to s. 19 without documentation requested — Burden on applicant to prove entry into Canada would not contravene Act — Applicant not meeting obligation under s. 9(3) — Canada-Québec Accord, s. 12 indicating Quebec having exclusive jurisdiction over selection, Canada having exclusive jurisdiction over admissibility — Accord not precluding federal immigration authorities from verifying origin of applicant’s assets to determine whether should be admitted to Canada — Accord providing for exchange of information, documents between Canada, Quebec — Provincial authorities may examine source of funds for selection purposes; federal authorities may examine source of funds in determining admissibility — Serious question of general importance certified: does Canada-Québec Accord limit visa officer’s jurisdiction to question source of funds of Quebec-destined applicant for permanent residence in Canada, in order to establish admissibility?
This was an application for judicial review of the visa officer’s dismissal of the applicant’s application for permanent residence. The applicant is a Chinese citizen who submitted a permanent residence application, along with a certificate of selection already issued by Quebec Immigration. In his application under the investor category in Quebec, the applicant indicated that he had assets of a value of $500,000. In his application for permanent residence he indicated that his monthly salary was the equivalent of about $3,000. Yet he indicated that his personal net worth was $1,911,000. Because of the disparity between the applicant’s salary and his net worth the visa officer requested documents establishing the source of the applicant’s funds to ensure that they derived from legitimate activities. Immigration Act, subsection 9(3) requires the production of such documentation as may be required by a visa officer for the purpose of establishing that the applicant’s admission would not be contrary to the Act or regulations. The visa officer concluded that as the documents provided by the Quebec immigration authorities did not shed sufficient light on the source of the applicant’s funds, and he was unable to make a final determination on the issue of admissibility to Canada. During a subsequent interview, the applicant neither explained the discrepancies between his original claim and subsequent documentation, nor demonstrated the source of his assets by pointing to personal and business tax returns, bank records, and/or audited accounts. Additional documents subsequently submitted did not satisfy the visa officer. The visa officer denied the application for permanent residence.
The applicant submitted that the lawfulness of an investor’s source of funds is considered by Quebec before the issuance of a certificate of selection. He argued that the verification of an applicant’s qualifications for the investor category was exclusively within Quebec’s jurisdiction, pointing to the definition of “investor” in Regulation respecting the selection of foreign nationals , which includes net assets of at least $500,000 accumulated through legal activities. He also relied on the Canada-Québec Accord, which provides that once Quebec has issued a certificate of selection, Canada must admit the immigrant as long as he does not belong to an inadmissible category of persons. The applicant submitted that, when the visa officer requested proof of his source of funds, he imported criteria not envisaged by the Act and fettered his discretion. The applicant also submitted that the visa officer violated the principle of legitimate expectation by reviewing his qualifications as an investor, and caused an unwarranted delay in the processing of his application.
The issues were whether the visa officer acted outside his jurisdiction when he requested proof of the applicant’s source of funds, and whether assessing an applicant’s admissibility can include a verification of his source of funds.
Held, the application should be dismissed.
Given the applicant’s annual income and declared net worth, the visa officer’s request was proper and the visa was denied on appropriate grounds, i.e. that he was unable to verify the admissibility of the applicant with respect to section 19 without the documentation he had requested on numerous occasions. The visa officer had the power to request these documents by virtue of Immigration Act, subsection 9(3) and the applicant had the burden of proving that his entry into Canada would not contravene the Act. The applicant had not met the obligation imposed by subsection 9(3) nor had he discharged the burden set out in section 8. A visa officer has both the right and the duty to require an applicant to produce documents which the officer believes are necessary to consider an application.
In seeking proof concerning the applicant’s funds in order to determine whether he was admissible, the visa officer was not acting outside his jurisdiction. Paragraph 12(a) of the Canada-Québec Accord makes it clear that, while Quebec has exclusive jurisdiction over selection, Canada has exclusive jurisdiction over admissibility. However, neither the spirit nor the letter of the Accord precludes federal immigration authorities from verifying the origin of an applicant’s assets in order to be able to determine whether that applicant should be granted admission to Canada. On the contrary, section 26 of Annex A of the Accord provides for an exchange of information and documents between Canada and Quebec so that each may exercise its proper authority. Thus, both the provincial and the federal authorities may examine the source of an applicant’s funds, the former for the purpose of selection, and the latter for the purpose of determining admissibility. The visa officer’s request was lawful and reasonable, as the documents sought related to the question of admissibility.
The delay of approximately five months between the day of the interview and the day the visa officer made the decision regarding permanent residence was not unreasonable. Furthermore, the applicant’s submission that the visa officer had violated the principle of procedural fairness and the doctrine of legitimate expectation by conducting an interview based on the selection criteria for investors and by failing to inform the applicant outright of the real purpose of the interview, was without merit. The visa officer had explained to the applicant why the interview was necessary, and the nature of the documents sought.
The following question was certified: Does the Canada-Quebec Accord limit the jurisdiction of the visa officer to question the source of funds of a Quebec-destined applicant for permanent residence in Canada, in order to establish the applicant’s admissibility? This was a serious question of general importance. It went beyond the applicant’s situation and affects all applicants to Quebec in the investor category. The Federal Court of Appeal has not examined the question of jurisdiction as set out in the Canada-Québec Accord. Whether the source of an applicant’s funds constitutes an element of admissibility is a question of law. And, if the visa officer did not have jurisdiction to examine the source of the applicant’s funds, his decision would be invalid and the application for judicial review would have to be allowed.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canada-Québec Accord Relating to Immigration and Temporary Admission of Aliens. Employment and Immigration Canada, February 5, 1991, s. 12, Annex A, s. 26, Annex D, s. 3a).
Immigration Act, R.S.C., 1985, c. I-2, ss. 8(1), 9(3),(4) (as am. by S.C. 1992, c. 49, s. 4), 19(1) (as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 3; S.C. 1992, c. 47, s. 77; c. 49, s. 11; 1995, c. 15, s. 2; 1996, c. 19, s. 83), (2) (as am. by S.C. 1992, c. 47, s. 77; c. 49, ss. 11, 122; 1995, c. 15, s. 2).
Regulation respecting the selection of foreign nationals, R.R.Q. 1981, c. M-23.1, r. 2, s. 21(d) (as am. by O.C. 1725-92, s. 3).
CASES JUDICIALLY CONSIDERED
APPLIED:
Kaur v. Minister of Employment and Immigration et al. (1995), 98 F.T.R. 91 (F.C.T.D.); Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4 (F.C.A.).
REFERRED TO:
Singh (Gurmit) v. Canada (Minister of Citizenship and Immigration) (1995), 106 F.T.R. 66 (F.C.T.D.); Huynh v. Canada, [1995] 1 F.C. 633 (1994), 88 F.T.R. 60 (T.D.); affd [1996] 2 F.C. 976 (1996), 134 D.L.R. (4th) 612; 34 Imm. L.R. (2d) 199; 197 N.R. 62 (C.A.).
APPLICATION for judicial review of a visa officer’s denial of the applicant’s application for permanent residence, notwithstanding that a certificate of selection had been issued by Quebec Immigration, on the ground that he had not satisfactorily demonstrated that his net worth was derived from legal sources. Application dismissed, and the following question was certified: does the Canada-Quebec Accord limit the jurisdiction of the visa officer to question the source of funds of a Quebec-destined applicant for permanent residence in Canada, in order to establish the applicant’s admissibility?
APPEARANCES:
Julius H. Grey for applicant.
Marie-Claude Demers for respondent.
SOLICITORS OF RECORD:
Grey, Casgrain, Montréal, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
[1] Nadon J.: This is an application for judicial review of the decision of visa officer Gregory Chubak (the visa officer) dated January 26, 1998, pursuant to which the visa officer dismissed the applicant’s application for permanent residence.
[2] The applicant is a Chinese citizen who submitted a permanent residence application on January 24, 1997, along with a certificate of selection already issued by Quebec Immigration on May 20, 1996.
[3] In his application under the investor category in Quebec, the applicant indicated that he had assets of a value of $500,000. In his application for permanent residence, the Applicant indicated that his salary was 20,000 RMB (Chinese currency) per month. This amount equals approximately C$3,000. Further, the applicant indicated that his personal net worth, at the time of the filing of his application, was $1,911,000.
[4] To ensure that the applicant’s considerable funds derived from legitimate activities, the visa officer asked the applicant to provide documents establishing the source of these funds. As the visa officer states in paragraph 11 of his affidavit:
… considering the wide disparity between the Applicant’s prior salary and work history and his personal net worth and apparent income, I felt it imperative to seek satisfactory evidence as to the source of the applicant’s funds in order to render a proper decision with respect to the issue of criminality. Without satisfactory evidence thereof, I could not be satisfied that the funds and property he claimed as his own had been obtained and accumulated through legal and legitimate means.
The visa officer, following a review of the documents provided by the Quebec immigration authorities, concluded that these documents did not shed sufficient light on the source of the applicant’s funds. As a result, he was unable to make a final determination on the issue of admissibility to Canada.
[5] The visa officer based his request for this documentation on subsection 9(3) of the Immigration Act [R.S.C., 1985, c. I-2] (the Act) which provides:
9. (1) …
(3) Every person shall answer truthfully all questions put to that person by a visa officer and shall produce such documentation as may be required by the visa officer for the purpose of establishing that his admission would not be contrary to this Act or the regulations.
[6] When the applicant produced documents that did not satisfy him, the visa officer scheduled an interview to allow the applicant to establish his admissibility to Canada and to respond to questions about the nature of his business and the source of his funds—in particular, how he obtained $100,000 Canadian dollars to buy equity in his State business despite an annual income of approximately $12,500 Canadian dollars in 1992, 1993 and 1994, and why he claimed to have earned significantly more in subsequent documentation, compared to his original claim.
[7] During the course of this interview, the applicant was unable to explain the nature of the discrepancies, nor was he able to demonstrate the source of his assets by pointing to personal and business tax returns, bank records, and/or audited accounts.
[8] The visa officer gave the applicant the opportunity to resubmit documents that would establish the origin of his funds and, on December 15, 1997, the applicant submitted additional documents. However, these documents were unsubstantiated and did not satisfy the visa officer with respect to the applicant’s source of assets. .
[9] On January 26, 1998, the visa officer wrote to the applicant to inform him that his application for permanent residence was denied. The letter states, in part, as follows:
For your application to succeed, you must demonstrate that your admission to Canada would not be contrary to any provisions of the Immigration Act and regulations including a determination that you are not a member of the inadmissible class of persons described in subsection 19(1) of the Act. The Immigration Act clearly places the burden of proof on the applicant. Without the verifiable supporting documents, I cannot accept your claims and contradictory and unsubstantiated documentation as proof of your source of funds. This leads me to question if your personal net worth was derived from legitimate activities as you claim. Your failure to adequately account for the origins of your personal net worth denies me the opportunity to complete a comprehensive and proper assessment in your case.
You have failed to comply with the requirements of subsection 9(3) of the Immigration Act, which reads:
9(3) Every person shall answer truthfully all questions put to that person by a visa officer and shall produce such documentation as may be required by the visa officer for the purpose of establishing that his admission would not be contrary to this Act or the regulations.
You do not meet the requirements of subsection 9(3) because you have not complied with our repeated request for documents that satisfactorily demonstrate that your personal net worth is derived from legal and legitimate sources which may have included, but were not limited to the following: personal and business tax returns, business contracts, bank records, audited accounts or any other verifiable documentation.
ISSUES
[10] The applicant seeks to quash the visa officer’s decision and to have the matter remitted back to a different visa officer for redetermination. In his memorandum of arguments, the applicant raises the following issues:
[traduction]
(i) Has the visa officer acted without jurisdiction, acted beyond its jurisdiction or refused to exercise his jurisdiction in view of:
(a) the Immigration Act and the Canada-Quebec Accord signed between the Government of Quebec and the Government of Canada with respect to the selection of immigrants?
(b) the unreasonable delay in the processing of the Applicant’s application for permanent residence resulting from the visa officers [sic] unlawful exercise of jurisdiction;
(ii) Has the visa officer acted in a manner which is manifestly unreasonable or assessed Applicant based on criteria extraneous and/or contrary to the Immigration Act read in light of the Canada-Quebec Accord?
(iii) Has the visa officer violated the principles of natural justice and procedural fairness or the doctrine of legitimate expectation?
APPLICANT’S POSITION
[11] The applicant makes a distinction between verifying criminality and verifying the source of funds and submits that the lawfulness of an investor’s source of funds is considered by Quebec before the issuance of a certificate of selection. The applicant points to the definition of “investor” set out in subsection 21(d) of the Regulation respecting the selection of foreign nationals[1] and argues that the verification of an applicant’s qualifications for this category falls exclusively within Quebec’s jurisdiction. The provision reads as follows:
21. …
(d) is designated as an “investor” if:
i. he has at least 3 years of experience in management:
— in a farming commercial or industrial business that is profitable and legal;
…
ii. he has net assets of at least $500 000 that he has accumulated through legal economic activities;
…
iii. he comes to settle and to invest in Québec in accordance with the provisions of this Regulation;
[12] The applicant also relies on the following provisions of the Canada-Québec Accord,[2] which provide that once Quebec has issued a certificate of selection, Canada must admit the immigrant as long as s/he does not belong to an inadmissible category of persons as defined by the Act. Paragraph 12(b) of the Accord provides:
12. …
(b) Canada shall admit any immigrant destined to Québec who meets Québec’s selection criteria, if the immigrant is not in an inadmissible class under the law of Canada.
Further, with respect to immigrants in the investor category, paragraph 3a) of Annex D of the Accord stipulates:
3. The parties agree to maintain the following mechanisms applicable to the admission of invester immigrants destined to Québec:
a) Where an immigrant investor satisfied the requirements of the Québec regulations respecting the selection of foreign nationals, including the definition of investors, minimum investment, eligible business or commercial venture and guarantee, Canada shall then, subject to statutory requirements for admission to Canada, issue that immigrant an immigrant visa.
[13] The applicant submits that, when the visa officer asked for proof of his source of funds, the visa officer imported criteria not envisaged by the Act to assess his admissibility, and consequently, fettered his discretion.
[14] Moreover, the applicant submits that the visa officer violated the principle of legitimate expectation by reviewing the applicant’s qualifications as an investor, a subject over which Quebec has exclusive jurisdiction. The applicant argues that an assessment of personal net worth falls outside the ambit of a federal visa officer’s powers. Accordingly, the applicant submits that, in so far as he is entitled to demand that the competent federal or provincial authority act within its jurisdiction, the visa officer violated the applicant’s legitimate expectation.
[15] The applicant claims that this alleged breach caused an unwarranted delay in the processing of his application, which prejudiced him and violated the principle of procedural fairness which requires a decision to be made in a timely manner.
[16] As an alternative argument, the applicant submits that if the Court accepts that the verification of admissibility includes proof of one’s source of funds, none of the evidence suggests that the applicant is a member of an inadmissible class. Accordingly, the applicant argues that the visa officer’s decision to deny him a visa is unreasonable and that it creates a presumption of criminality which he highly contests.
RESPONDENT’S POSITION
[17] The respondent submits that, by virtue of subsection 9(3) of the Act, a visa officer can require the applicant to produce documentation which establishes that his admission into Canada would not contravene the Act. Moreover, the respondent notes that, according to subsection 8(1) of the Act, the burden of proving that one’s admission would not be contrary to the Act rests on a person seeking entry and that the applicant did not discharge himself of this burden in this case.
[18] The respondent further submits that the origin of the applicant’s assets is a relevant component to his admissibility because this could determine whether the applicant belongs to a category of inadmissible people set out in subsections 19(1) [as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 3; S.C. 1992, c. 47, s. 77; c. 49, s. 11; 1995, c. 15, s. 2; 1996, c. 19, s. 83] and (2) [as am. by S.C. 1992, c. 47, s. 77; c. 49, ss. 11, 122; 1995, c. 15, s. 2] of the Act. As such, the respondent argues that the visa officer had the right to ask the applicant to produce proof of his source of funds in order to verify that his admission did not contravene the Act.
ANALYSIS
[19] The main issue in this case is whether the visa officer acted outside his jurisdiction when he requested proof of the applicant’s source of funds. Related to this issue is whether assessing an applicant’s admissibility can include a verification of his source of funds.
[20] In the present case, the visa officer was concerned about the origin of the applicant’s assets because, notwithstanding an annual revenue of approximately $12,500, the applicant declared a personal net worth of $1,911,000. In my view, the visa officer’s request was proper and he denied the visa on appropriate grounds, namely, that he was unable to verify the admissibility of the applicant with respect to section 19 of the Act without the documentation he had requested on numerous occasions.
[21] The visa officer had the power to request these documents by virtue of subsection 9(3) of the Act and the applicant had the burden of proving that his entry into Canada would not contravene the Act. The applicant did not meet his obligation under subsection 9(3) nor did he discharge himself of the burden set out in section 8 of the Act. As a result, the visa officer could not be satisfied that admitting the applicant would not contravene the Act and accordingly, it was within his authority to deny the application. As subsection 9(4) [as am. by S.C. 1992, c. 49, s. 4] of the Act states:
9. …
(4) Subject to subsection (5), where a visa officer is satisfied that it would not be contrary to this Act or the regulations to grant landing or entry, as the case may be, to a person who has made an application pursuant to subsection (1) and to the person’s dependants, the visa officer may issue a visa to that person and to each of that person’s accompanying dependants for the purpose of identifying the holder thereof as an immigrant or a visitor, as the case may be, who, in the opinion of the visa officer, meets the requirements of this Act and the regulations.
[22] This Court has held that a visa officer has both the right and the duty to require an applicant to produce documents which the officer believes are necessary for him or her to consider an application. Rothstein J., in Kaur v. Minister of Employment and Immigration et al. (1995), 98 F.T.R. 91 (F.C.T.D.), at page 92 opined as follows:
Where documentation is properly sought by the visa officer and is not produced, the applicant cannot be granted admission, as she is a person who has not complied with a request lawfully made under the Immigration Act.
[23] When the visa officer sought proof of the applicant’s funds in order to determine whether the applicant was admissible, he was not acting outside his jurisdiction. Paragraph 12(a) of the Canada-Québec Accord makes it perfectly clear that Quebec has exclusive jurisdiction over selection and Canada has exclusive jurisdiction over admissibility. However, neither the spirit nor the letter of the Accord precludes federal immigration authorities from verifying the origin of an applicant’s assets in order to be able to determine whether that applicant should be granted admission to Canada. On the contrary, section 26 of Annex A of the Accord provides for an exchange of information and documents between Canada and Quebec so that each may exercise its proper authority:
26. … the parties will provide each other with all information and all documents necessary to the exercise of their responsibilities under the Accord.
Thus, both the provincial and the federal authorities may examine the source of an applicant’s funds, the former for the purpose of selection, and the latter for the purpose of admissibility.
[24] In the circumstances of this case, it was appropriate, in my view, for the visa officer to verify the source of the applicant’s funds, given the great disparity between his annual income and his personal net worth. The visa officer’s request was lawful and reasonable, as the documents sought related to the question of admissibility.
Delay
[25] The applicant submits that the delay between the day of the interview and the day the visa officer made the decision regarding permanent residence was unreasonable as per Singh (Gurmit) v. Canada (Minister of Citizenship and Immigration) (1995), 106 F.T.R. 66 (F.C.T.D.). The delay was approximately five months (August 1997 to January 1998).
[26] The respondent submits that the delay between the interview and the communication of the decision can be explained by the applicant not providing the documents demanded for more than three months.
[27] I am satisfied that there was no unreasonable delay in this case.
Legitimate Expectation
[28] The applicant submits that the visa officer violated the principle of procedural fairness and the doctrine of legitimate expectation by conducting an interview based on the selection criteria for investors and by failing to inform the applicant outright of the real purpose of the interview.
[29] On the evidence before me, I am satisfied that the visa officer explained to the applicant why the interview was necessary. In paragraph 14 of his affidavit, the visa officer states the following:
14. On August 21, 1997, I interviewed the applicant to establish his admissibility in Canada. At the outset of the interview, I explained to the applicant and confirmed with him the purpose of the interview, reiterating that the interview was not one of selection, but was related exclusively to the matter of admissibility
[30] Moreover, at page 2 of his letter to the applicant, dated January 26, 1998, the officer explained the nature of the documents sought on numerous occasions:
You were counselled in detail what was required of you by way of documentary evidence. You were asked to produce coherent documentation in the form of personal and business tax returns, business contracts, bank records, audited accounts or any other verifiable means in order to document the origins of your personal net worth.
[31] The applicant’s submissions on this issue are without merit.
[32] For all of the above-noted reasons, this application shall be dismissed.
[33] Counsel for the applicant has suggested that the following two questions be certified:
1. Does the Canadian Visa Officer exceed his jurisdiction when he analyses the funds available to the investor as to the source and quantity, matters which have already been studied by Immigration Quebec which issued a Certificate of Selection?
2. Did the Visa Officer breach natural justice in not disclosing to the applicant his belief that he had claimed to have $1,911,000 CAD, not apparent anywhere else in the record and not giving him a chance to answer this?
[34] I shall begin with the second question proposed by the applicant. In my view, this question should not be certified. Firstly, the applicant never raised this issue in his application for judicial review of the visa officer’s decision. In his memorandum of argument, the applicant submits that “the federal Visa Officer violated the principle of procedural fairness and the doctrine of legitimate expectation by conducting an interview based on the selection criteria for investors and by failing to inform the Applicant outright of the real purpose of the interview” (paragraph 50 of the memorandum).
[35] This is the only submission the applicant makes on this issue, and is clearly more general that the question he now wants to certify. In my view, the question which the applicant wants to certify is subsumed and implicit in the original submission, in so far as it reflects a more particularized form of his original submission. That is, the submission in the memorandum indicates that the visa officer should have informed him that the real purpose of the interview was to verify his source of funds, whereas the question he now submits for certification suggests that the visa officer should have given him the opportunity to specifically address the discrepancy between C$1,911,000 and his annual income. To my mind, arguing that the visa officer should have disclosed the real purpose of the interview (which was to determine the source of the applicant’s funds and, incidentally, the cause of the discrepancy) and arguing that the visa officer should have disclosed his belief that the applicant had claimed almost $2 million amounts to the same thing: either way, the purpose of the interview was to determine the source of the applicant’s funds.
[36] Where the problem arises, however, for the purpose of deciding whether to certify this question, is that the applicant never pursued the issue of disclosure. He certainly did not go beyond the general argument that the visa officer should have disclosed the real purpose of the interview. Therefore, the applicant never addressed (or contested) the $1,911,000 figure quoted by the visa officer in his affidavit, even though the figure appears to be much higher that the one provided by the applicant in his application for selection certificate (i.e., $500,000).
[37] Secondly, and more importantly, the second question proposed by the applicant is not a serious question of general importance. Counsel for the Minister, in her written submissions of October 21, 1999, makes the following point in regard to the second question proposed for certification:
[translation] With regard to the second question proposed by the applicant, first we would like to emphasize that no specific submission was made by the applicant on this point in his memorandum pertaining to the application for judicial review.
However that may be, the respondent maintains that it is by no means a “serious question of general importance” within the meaning of section 83 of the Act. In fact, as the Federal Court of Appeal clearly stated in Liyanagamage[3] the question proposed for certification must go beyond the interests of the immediate parties, which is clearly not the case of the second question proposed by the applicant.
[38] I agree with the position taken by the respondent regarding the second question. In my view, the question proposed by the applicant is limited to the particular circumstances of the case and addresses only the immediate interests of the applicant. Consequently, the second question shall not be certified.
[39] I now turn to the first question proposed by the applicant. Only “serious questions of general importance” should be certified. Such questions must transcend both the particular circumstances of the case as well as the immediate interests of the parties. As this Court has stated, “a certified question … is not about the case at bar: The question must seek to clarify an undecided legal point of general importance” (see Huynh v. Canada, [1995] 1 F.C. 633 (T.D.), at page 651 and affirmed by F.C.A. at [1996] 2 F.C. 976.
[40] In her written submissions, counsel for the respondent also takes the position that this first question should not be certified. Counsel submits, however, that should the Court be of the view that there should be certification, that the proper question for certification is the following:
Does the Canada-Quebec Accord limit the jurisdiction of the visa officer to question the source of funds of a Quebec-destined applicant for permanent residence in Canada, in order to establish the applicant’s admissibility?
[41] In my view, the question, as reformulated by the respondent, ought to be certified. In Liyanagamage v. Canada (Minister of Citizenship and Immigration) (1994), 176 N.R. 4, Décary J.A., for the Federal Court of Appeal, explained at page 5 the basis of certification as follows:
In order to be certified pursuant to s. 83(1), a question must be one which, in the opinion of the motions judge, transcends the interests of the immediate parties to the litigation and contemplates issues of broad significance or general application (see the useful analysis of the concept of “importance” by Catzman, J., in Rankin v. McLeod, Young, Weir Ltd. et al. (1986), 57 O.R. (2d) 569 (H.C.), but it must also be one that is determinative of the appeal. The certification process contemplated by s. 83 of the Immigration Act is neither to be equated with the reference process established by s. 18.3 of the Federal Court Act, nor is it to be used as a tool to obtain from the Court of Appeal declaratory judgments on fine questions which need not be decided in order to dispose of a particular case.
[42] The first question, as reformulated by counsel for the respondent, meets the conditions set out by Décary J.A. in Liyanagamage. Firstly, the question goes beyond the applicant’s situation and affects all applicants to Quebec in the investor category. Secondly, the Court of Appeal has not examined the question of jurisdiction as set out in the Canada-Quebec Accord. Thirdly, whether the source of an applicant’s funds constitutes an element of admissibility is a question of law. Finally, if the visa officer did not have jurisdiction to examine the source of the applicant’s funds, his decision would be invalid and the application for judicial review would be allowed.
[43] I am therefore of the view that the following question should be certified:
Does the Canada-Québec Accord limit the jurisdiction of the visa officer to question the source of funds of a Quebec-destined applicant for permanent residence in Canada, in order to establish the applicant’s admissibility?