Date: 20061012
Docket: IMM-1901-06
Citation: 2006 FC 1203
Ottawa, Ontario, October 12, 2006
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
SALIM
AHMED
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for
judicial review pursuant to subsection 72(2)(d) of the Immigration
and Refugee Protection Act (the Act) of a decision dated March 9, 2006, by
a Visa Officer, from the Canadian High Commission, Immigration Section, Islamabad, Pakistan rejecting the applicant’s application
for Canadian permanent resident status under the Investor category.
ISSUES
[2]
This
application raises the following issues:
1.
Did the Visa Officer
breach the duty of fairness and fail to observe the principles of natural
justice by not affording the applicant an opportunity to address her concerns?
2.
Did the Visa Officer
base her decision on an erroneous finding of the facts or was her conclusion made
in a perverse or capricious manner and without regard to the material before
her, including ignoring the income tax returns from 2000 to 2005?
[3]
For
the following reasons, the
answer to both questions is negative and the present application shall be
dismissed.
BACKGROUND
[4]
The
applicant is a businessman and citizen of Pakistan.
[5]
He completed his
education in 1970 and started working as a self-employed from 1970 to 1976. Since
that date, he has worked as a partner in Dr. Salim Ahmed & Co. Importer
& Trader of Homeopathic Medicines.
[6]
The applicant has a
total net worth of $1,076,948 Cdn, out of which $737,500 Cdn is in the form of
real estate and $90,134 Cdn in bank deposits. The estimated current market
value of the applicant’s share in the business is $249,314 Cdn (page 7 of the Computer
Assisted Immigration Processing System (CAIPS) notes).
[7]
According to the CAIPS
entries, the applicant applied for Canadian permanent resident status as an
entrepreneur on November 20, 2003. However, on September 1, 2005, the
respondent received a letter from a consultant advising that the applicant
wished to change his immigration category to investor.
[8]
On
December 29, 2005, the
applicant was invited to an interview scheduled for March 9, 2006, in order to
assess the applicant’s eligibility and determine whether he met the requirements
of the Act. The letter provided a detailed account of what was expected of the
applicant before and during the assessment interview, including the following
at page 3:
A
decision will be made on your case at the interview, based on the documents
presented at that time.
[9]
The Visa Officer
interviewed the applicant on March 9, 2006, not on February 7, 2006, as stated
by the applicant. The Visa Officer rendered her decision denying his
application on the same day as the interview. The decision, along with original
documents, was sent to the applicant on March 11, 2006. On March 13, 2006, the
respondent received a letter from the applicant’s consultant. However, no
action on this communication was required since the application had already
been refused.
DECISION UNDER REVIEW
[10]
Based on the
information available at the time of the assessment interview, the Visa Officer
refused the application for permanent residence under the investor category
because the applicant failed to adequately account for the origins of his net
worth. In other words, the applicant failed to satisfy the Visa Officer that
his personal net worth met the requirements of the Act.
PERTINENT LEGISLATION
[11]
Below
are the relevant parts of the definition of “Investor” as set out in subsection
88(1) of the Immigration and Refugee Protection Regulations (the
Regulations):
|
88. (1) The definitions in this subsection
apply in this Division.
investor”
« investisseur »
“investor”
means a foreign national who
(a) has
business experience;
(b) has
a legally obtained net worth of at least $800,000; and
(c)
indicates in writing to an officer that they intend to make or have made an
investment. (investisseur)
“net worth”
« avoir
net »
“net worth”,
in respect of
(a) an
investor, other than an investor selected by a province, means the fair
market value of all of the assets of the investor and their spouse or
common-law partner minus the fair market value of all of their liabilities;
. . .
|
88. (1) Les définitions qui suivent s’appliquent à la
présente section.
« investisseur
»
“
investor ”
« investisseur
» Étranger qui, à la fois :
a) a de l’expérience dans
l’exploitation d’une entreprise;
b) a un avoir net d’au moins
800 000 $ qu’il a obtenu licitement;
c) a indiqué par écrit à
l’agent qu’il a l’intention de faire ou a fait un placement. (investor)
« avoir
net »
“
net worth ”
« avoir
net »
a) S’agissant d’un
investisseur, autre qu’un investisseur sélectionné par une province, s’entend
de la juste valeur marchande de tous les éléments d’actif de l’investisseur
et de son époux ou conjoint de fait, diminuée de la juste valeur marchande de
tous leurs éléments de passif;
. . .
|
ANALYSIS
1. Breach
of duty of fairness and principles of natural justice
Standard of
Review
[12]
With respect to this
first issue, it is settled law that questions of the principles of procedural
fairness and natural justice, are to be adjudged on the basis of whether the
Visa Officer respected the principles of natural justice; no determination of
standard of review is required (Ha v. Canada (Minister of Citizenship and
Immigration), [2004] F.C.J. No. 174 (F.C.A.) (QL), 2004 FCA 49; Baker v.
Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 and
Shi v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J.
No. 1490 (F.C.T.D.) (QL), 2005 FC 1224).
Application
to duty of fairness and principles of natural justice
[13]
During the interview,
the Visa Officer expressed concerns about how the applicant had accumulated his
wealth and asked if he could provide further documentation to satisfy her of
the sources of the applicant’s funds. The Visa Officer states in her decision
that the applicant replied that he did not have any further documentation and
at no time did he advise that he would be sending within thirty days of the
interview, the necessary proof from his accountant showing that he was exempt
from filing and paying personal income tax.
[14]
In Liu v. Canada (Minister of Citizenship and
Immigration), [2006]
F.C.J. No. 1289 (F.C.T.D.) (QL), 2006 FC 1025, Mr. Justice de Montigny dealt
with the same issue on similar facts to this case. Indeed, the Visa Officer in Liu
had expressed concerns about the legitimacy of the applicant’s source of
funds during the assessment interview of his application for permanent residence
under the investor class. At paragraph 16, the Court held as follows:
It seems to me the Visa Officer went beyond what
was expected. The officer was under no obligation to alert Mr. Liu of these
concerns since they were about matters that arose directly from Mr. Liu's own
evidence and from the requirements of the Act and of the Regulations. An
applicant's failure to provide adequate, sufficient or credible proof with
respect to his visa application does not trigger a duty to inform the applicant
in order for him to submit further proof to address the finding of the officer
with respect to the inadequacy, deficiency or lack of credibility: Oei v.
Canada (Minister of Citizenship and Immigration), 2002 FCT 466, 221 F.T.R.
112, [2002] F.C.J. No. 600 (F.C.T.D.) (QL); Sheikh v. Canada
(Minister of Citizenship and Immigration), 2003 FCT 272, [2003] F.C.J. No.
377 (F.C.) (QL); Naghashian v. Canada (Minister of Citizenship and
Immigration), 2003 FCT 504, [2003] F.C.J. No. 654 (F.C.T.D.) (QL); Ali
v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 472
(F.C.T.D.) (QL); Yu v. Canada (Minister of Employment and Immigration)
(1990), 11 Imm. L.R.(2d) 176, [1990] F.C.J. No. 704 (F.C.T.D.) (QL); Ashgar
v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1091
(F.C.T.D.) (QL); Heer v. Canada (Minister of Citizenship and
Immigration), 2001 FCT 1357, 215 F.T.R. 57, [2001] F.C.J. 1853 (F.C.T.D.)
(QL); Bashir v. Canada (Minister of Citizenship and Immigration),
2002 FCT 868, [2002] F.C.J. No. 1144 (F.C.T.D.) (QL).
[15]
As in Liu, the
Visa Officer in this case went over and beyond her duty of fairness. The Visa
Officer is under no obligation to apprise the applicant of concerns unless
these concerns deal with extrinsic evidence.
[16]
There is some
discrepancy in the affidavit evidence. On the one hand, the Visa Officer states
that she advised the applicant that his failure to adequately account for the
origins of his personal net worth made it impossible for her to complete a
comprehensive and proper assessment in his case. The Visa Officer then gave
the applicant an opportunity to respond and he replied that he did not
have any further documentation to present. On the other hand, the applicant’s
affidavit states that he offered to file evidence showing that he did not have
to file a personal income tax return or pay personal income tax.
[17]
The letter dated
December 29, 2003, which invited the applicant to the assessment interview on
March 9, 2006, stated clearly the purpose of the interview. The applicant was
informed in significant detail that the assessment interview was final and that
a decision would be made on the applicant’s case at the interview, based on the
documents presented at that time. While the Visa Officer did exercise her
discretion and went beyond her duty of fairness to ask the applicant if he had
further proof of the source of his income, opportunity which he declined, it
would be to put too onerous a task on the Visa Officer to go beyond the stated
purpose in the letter of invitation to the assessment interview.
[18]
Based on a review of
the CAIPS entries, which are dated the same date as the decision, as well as
the evidence from both parties, the Court finds that the Visa Officer did not
breach her duty of fairness to the applicant. Although there was no obligation
to do so, the Visa Officer did express her misgivings and invited the applicant
to provide further documentation to persuade her that his wealth was not gleaned
from illegitimate sources. Unfortunately, the applicant said he had no further
information. I attach greater weight to the Visa Officer’s affidavit about
what took place during the interview because the CAIPS entries were done the
same day and there is no mention that the applicant would have the opportunity
to submit further documentation (Oei v. Canada (Minister of Citizenship and
Immigration), 2002 FCT
466, [2002] F.C.J. No. 600 (F.C.T.D.) (QL)).
[19]
The information the
applicant subsequently provided was simply too late and arrived after the
decision was made. There was no request from the applicant to reopen the case.
Instead, the applicant filed this application for judicial review. As a result,
he ought to have exhausted all other recourses, including requesting that the
decision be reopened to submit the new documentation, before seeking judicial
review of the decision.
[20]
Notwithstanding the
discrepancy in the affidavits and the subsequent submission of documents by the
applicant, the Visa Officer was under no duty to apprise the applicant of her
concerns. I conclude therefore that the Visa Officer committed no error of law
or fact. She neither breached her duty of fairness nor failed to observe the principles
of natural justice. The Visa Officer refused the applicant’s application based
on the evidence before her. The applicant failed to discharge himself of the
onus to respect the terms of his application for permanent residence under the
investor program. The applicant failed to clearly establish that his net worth
was not gained by illegitimate means.
[21]
I would therefore
rule against the applicant’s position with respect to the issue of the duty of
fairness and the observance of the principles of natural justice.
2. Erroneous
findings of facts
Standard
of review
[22]
The standard of
review applicable to discretionary decisions of a Visa Officer regarding the
investor category is patent unreasonableness. In Hua v. Canada (Minister of Citizenship and
Immigration), [2004]
F.C.J. No. 2106 (F.C.T.D.) (QL), 2004 FC 1647, a decision involving similar
facts as in the present case, Mr. Justice Teitlebaum at paragraphs 25-28, held:
There is a considerable amount of controversy with respect
to the standard of review applicable to a visa officer's decision pertaining to
a permanent resident application based on the investor immigrant category. The
majority of the case law on this issue seems to have indeed adopted the
criteria set out in Maple Lodge but not in accordance with the
Applicant's interpretation. I agree with the Respondent that the decision in Maple
Lodge does not stand for the principle that the applicable standard of
review is reasonableness simpliciter.
In fact, I believe that it sets out the idea that a high
level of deference should be granted to discretionary decisions: To v. Canada (Minister of
Employment and Immigration), [1996] F.C.J. Np. 696. In Li v. Canada (Minister of
Citizenship and Immigration), [2001] F.C.J. No. 1204, Heneghan J. held:
The decision which is the subject of the application is a
discretionary decision made by the Visa Officer. In the absence of evidence
that the Visa Officer ignored relevant evidence or took extraneous matters into
consideration, the decision will receive judicial deference. (par. 11)
Although jurisprudence indicates that Maple Lodge is
widely applied in these circumstances, there does seem to be a set conclusion
as to whether it imports the standard of patent unreasonableness or
reasonableness simpliciter.
Nevertheless, because the decision, in my opinion, is a
discretionary one, I am satisfied that the test is patent unreasonableness as
deference must be accorded the visa officer's decision.
[23]
In Anfu v. Canada
(Minister of Citizenship and Immigration), [2002] F.C.J. No. 536 (F.C.T.D.)
(QL), 2002 FCT 395, Madam Justice Heneghan dealt with a similar issue on
similar facts and held that these fact specific issues imply that there is a
high degree of deference to the Visa Officer whose decisions are discretionary.
Erroneous
findings of fact
[24]
The applicant argues
that the Visa Officer made an erroneous finding of fact and without regard to
the material before her, including ignoring the income tax returns from 2000 to
2005. The respondent correctly points out that the applicant did not file with
the Court copies of his income tax returns from 2000 to 2005.
[25]
Moreover, the CAIPS
notes do not confirm the applicant’s position that the respondent ignored its
income tax for the five years in question. According to CAIPS, the respondent
did not receive a complete set of the applicant’s business income tax returns
for the period in question. A review of the CAIPS entries indicates the
following:
FN
[the applicant] provided audit reports for yrs 2001 to 2005 prepared by Amjad
Ali & Company Chartered Accountants. Provided photocopy of 2005 income tax
return (1st page only) no other pages submitted for 2005. Also
submitted income tax returns for yrs 2000/1/3 & 2004. Consultant has
stated that 2002 income tax return is misplaced.
…
Requested
personal income tax returns. FN states he has never filed income tax returns
nor pays taxes because he pays taxes on his imports & that is all he has to
do.
[26]
The
Court finds that the Visa Officer did
not ignore the available income tax returns. I share the opinion of the
respondent that the business income tax returns – not personal income tax
returns filed by the applicant did not provide the evidence necessary to show
the legal and legitimate source of his net worth.
[27]
The parties did not
submit questions for certification.
JUDGMENT
THIS COURT ORDERS that this application is dismissed. No
serious question is certified.
“Michel
Beaudry”
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