Date: 20060825
Docket: IMM-5693-05
Citation: 2006 FC 1025
Ottawa, Ontario, August 25th,
2006
PRESENT: The Honourable
Mr. Justice de Montigny
BETWEEN:
GUO ZHONG LIU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
In
June 2004, Mr. Liu applied for admission to Canada as a
permanent resident under the investor program. His application raised two
issues on assessment: whether Mr. Liu met the definition of investor, and whether
the source of his funds would affect his admissibility. In March 2005, the
Canadian Embassy in Beijing determined it would be necessary to interview Mr.
Liu, and made a note in his file to ask him to bring documents normally
requested in a business case, original documents showing source and
accumulation of funds, and original documents proving the assets he claimed on his
Personal Net Worth Form. The information on file also indicated that Mr. Liu
had previously applied for selection in Quebec in January
2003, but had been refused.
[2]
On
April 21st 2005, his application was reviewed again. Additional
information on file was taken into account and it was determined that an
interview was still required since all the documents Mr. Liu had submitted were
photocopies. Quebec provided information,
indicating it had concerns with respect to the accounting documents Mr. Liu presented
in 2003. Mr. Liu was therefore asked in his convocation letter to bring
original documents to his interview.
[3]
Mr.
Liu was interviewed on July 20th, 2005. The interview lasted one
hour and 15 minutes and an interpreter was present. As recorded in the visa
officer’s notes, the officer expressed concern that the accounting documents Mr.
Liu submitted to Quebec were fraudulent and asked him for an
explanation. Mr. Liu was asked specifically why he sought a new audit firm to
submit the accounting documents for his Quebec application,
rather than producing a letter or verifying statement from his initial audit
company. The officer further mentioned to Mr. Liu that it appeared Quebec had found
other files using the same audit report, indicating the audit report was indeed
a false one. Mr. Liu answered that the report was genuine and the problem was that
Quebec was confused
because of its lack of knowledge of Mr. Liu’s situation with the old audit firm.
[4]
During
the interview, the officer asked Mr. Liu to locate original business documents
that demonstrated the business numbers on his application form. Instead of
originals, Mr. Liu provided photocopies of tax receipts, and confirmed he had
not brought originals, including original financial statements for the past
three years as requested.
[5]
At
the end of the interview, the visa officer informed Mr. Liu that his failure to
provide original documents had the office concerned. Furthermore, the officer
told Mr. Liu that the originals provided led to discrepancies and as such, was
not confident the information submitted was reliable and accurate. The officer
was particularly puzzled by the exchange rate used to convert the net assets
shown on the balance sheet into Canadian dollars for the purpose of the
application form. The officer told Mr. Liu that he did not meet the definition
of investor, and it could not be determined that he had accumulated his funds
in a legal manner. Mr. Liu was invited to respond to the officer’s concerns,
but his response did not allay them and his application was refused.
[6]
Mr.
Liu now challenges the visa officer’s decision, alleging it was unreasonable. First,
he maintains that he provided all the documents that were reasonably necessary
for the officer to render a decision. He further argues that the refusal letter
did not explicitly set out the alleged inconsistencies, and that if there were
any inconsistencies, they were clerical and minor in nature, not affecting the
substantial basis of Mr. Liu’s application. Finally, he submits it was
unreasonable for the officer to conclude that there was insufficient evidence
upon which to make a determination of his suitability as an investor to Canada, and that
the officer was equally unreasonable in determining that his financial
information lacked credibility or authenticity.
[7]
The
first issue to be determined is the standard of review. It is well settled law
that the applicable standard of review for discretionary decisions by visa
officers on immigration applications is patent unreasonableness. Accordingly,
if the statutory discretion has been exercised in good faith and in accordance
with the principles of natural justice where required, and if reliance has not
been placed upon considerations irrelevant or extraneous to the statutory
purpose, then this Court will not interfere. See, for example, Chalaby v.
Canada (Minister of
Citizenship and Immigration), [2001] F.C.J. No. 66 (F.C.T.D.) (QL); To
v. Canada (Minister of Employment and Immigration.), [1996]
F.C.J. No. 696 (F.C.A.) (QL); Sarkissian v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 789, [2002] F.C.J. No. 1070
(F.C.T.D.) (QL).
[8]
Indeed,
it seems to me that this case is very similar to the facts giving rise to the
recent decision reached by my colleague Justice Snider in Shi v. Canada
(Minister of Citizenship and Immigration), 2005 FC 1224, [2005] F.C.J. No.
1490. In that case, the applicant had applied for immigration to Canada as an investor
in the business category but was turned down by a visa officer who was not
satisfied as to how the applicant had accumulated his personal net worth. Turning
her mind to the applicable standard of review, Justice Snider wrote (at para.
3):
However, with respect to the
second issue, the visa officer’s discretionary decision should be accorded the
highest level of deference by this Court. In Hua v. Canada
(Minister of Citizenship and Immigration), [2004] F.C.J. No. 2106, a case
involving facts and a decision very similar to that before me, Justice
Teitelbaum concluded that the standard of review was one of patent
unreasonableness. At a minimum, the Court should not intervene unless it can be
shown that the visa officer ignored relevant evidence or relied on irrelevant
or extraneous considerations (Maple Lodge Farms Ltd. v. Canada, [1982]
2 S.C.R. 2, at pp. 7-8; To v. Canada (Minister of Employment
and Immigration), [1996] F.C.J. No. 696, at para. 3 (F.C.A.)).
[9]
Having
duly considered the documentary evidence provided by the applicant, as well as both
parties’ oral and written submissions, I am of the view that the visa officer’s
decision to refuse Mr. Liu’s application for an immigrant visa was reasonable
and certainly not patently unreasonable. Pursuant to section 11(1) of the Immigration
and Refugee Protection Act (IRPA), the burden was on Mr. Liu to prove to
the visa officer’s satisfaction that he fulfilled the legislative requirements (Li
v. Canada (Minister of
Citizenship and Immigration.), 2001 FCT 837, [2001] F.C.J. No. 1204
(F.C.T.D.) (QL); Shi v. Canada, above).
[10]
In
a letter to the applicant dated July 21, 2005, advising him that his
application had been refused, the visa officer wrote:
You have not satisfied me that
you have business experience and a legally obtained minimum net worth of at
least $800,000 because you have not complied with my request to present
original business documents which demonstrate your business operations and
income earned. At interview you provided some of the original documents
requested of you. The financial information contained in those documents are
inconsistent with information contained in your immigration application form. This
calls into question the credibility and authenticity of the financial
information provided by you. Therefore, I am unable to determine if you meet
the regulatory definition of investor and am unable to determine your personal
net worth. As a result, you do not meet the requirements of subsection 90(2).
[11]
The
officer’s notes clearly show that the source of Mr. Liu’s funds was flagged as
an issue at the Canadian Embassy in Beijing, where Mr. Liu filed
his application, and an interview was deemed necessary. The Embassy requested a
list of original documents and evidence of Mr. Liu’s personal net worth in
order to verify his financial resources among other financial and business
requirements. Then, at the outset of his interview on July 20, 2005, the visa
officer explained that the purpose of the interview was to determine whether Mr.
Liu met the legal requirements to immigrate to Canada as an
investor.
[12]
Subsection
12(2) of the IRPA states that a foreign national may be selected as a member of
the economic class on the basis of their ability to become economically
established in Canada. For the purposes of that subsection,
subsection 90(1) of the Immigration and Refugee Protection Regulations (Regulations)
prescribes that the investor class is a class of persons who may become
permanent residents on the basis of their ability to become economically established
in Canada and who are
investors within the meaning of subsection 88(1) of the Regulations. Finally,
subsection 88(1) of the Regulations defines an investor as a foreign national
who (a) has business experience; (b) has a legally obtained minimum 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.
[13]
Based
on the foregoing, it was obviously critical for Mr. Liu to demonstrate not only
his net worth but also that he had acquired these funds through legal means. Despite
the visa officer’s repeated requests to provide original documents establishing
these requirements, Mr. Liu failed to do so and was not able to satisfy the
officer with his explanations. This effectively prevented the officer from
assessing Mr. Liu’s net worth and from determining whether his funds were
accumulated legally.
[14]
It
is not for the applicant, nor for his immigration consultant, to identify and
decide which documents ought to be produced in an application. Absent a clear
showing that the visa officer’s requests are unreasonable, the applicant must
provide the information asked for and satisfy the officer that he meets the
definition of his category. Considering the visa officer’s legitimate concerns
with respect to the authenticity of photocopies, Mr. Liu’s past history of
submitting apparently fraudulent accounting documents to Quebec and the lack of
reliable information submitted, the officer was entitled to insist and request
the production of all the original documents mentioned in the convocation
letter.
[15]
Contrary
to Mr. Liu’s allegations, it appears from the visa officer’s affidavit and from
the officer’s notes that Mr. Liu was informed of the discrepancies between the
income statements and balance sheets, on the one hand, and his application form.
He was also given an opportunity to answer the visa officer’s concerns, which
were not about clerical or minor errors. Mr. Liu failed to provide satisfactory
answers.
[16]
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).
[17]
For
the foregoing reasons, I conclude that the visa officer committed no error of
law or fact, nor failed to observe any principle of natural justice or
procedural fairness. The officer refused Mr. Liu’s application because his
documents and testimonial evidence did not clearly establish his net worth, and
did not establish that he earned his net worth from legal and legitimate
sources. Thus, the officer could not be sure if admitting Mr. Liu to Canada would be
contrary to the IRPA or the Regulations.
[18]
The
application for judicial review is therefore dismissed. Counsel have submitted
no question for certification, and none will be certified.
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