Date: 20041213
Docket: IMM-95-04
Citation: 2004 FC 1647
BETWEEN:
LIN ZHENG HUA
Partie demanderesse
et
LA MINISTRE DE LA CITOYENNETÉ ET DE L'IMMIGRATION
Partie défenderesse
REASONS FOR ORDER
TEITELBAUM J.:
[1] The Notice of Application in this case, signed on January 5, 2003 requests that the hearing be held in French.
[2] The hearing before me was held in French.
[3] All of the material submitted, including the original and additional memoranda of the Applicant and the Memoranda of the Respondent are in English.
[4] At the end of the hearing it was agreed that my decision would be in English for the benefit of the Applicant.
INTRODUCTION
[5] A negative decision was rendered by a Visa Officer (officer) on October 30, 2003, at the Canadian Embassy in Beijing, China, denying the Applicant his application for permanent residence in Canada under the investor immigrant category. The officer concluded that the Applicant had not demonstrated that his net worth was derived from legal and legitimate sources. This is an application for judicial review of that decision.
FACTS
[6] The Applicant is a citizen of the People's Republic of China. The Computer Assisted Immigration Processing System (CAIPS) notes reveal that the Applicant started working for Pingtang Marine Fishery Company in 1978 as a sales person, with a salary of 1500 RMB per month. In 1982, he was promoted to Vice Manager with an annual salary and bonus of 30 000 RMB.
[7] In 1993, the Applicant invested 350,000 RMB to purchase shares in Fuzhou Jiaotong Petroleum Supply Company. He informed the visa officer that this money came from his own savings. The company was renamed Fuzhou Jiaotong Zhongyou Petroleum Supply in 1999. According to the Applicant, the business brings him approximately 558 000 RMB annually, including his salary, bonus and dividends.
[8] On November 24, 1999, the Applicant applied to obtain permanent resident status under the investor immigrant category.
[9] On May 22, 2002, a Québec Selection Certificate was issued for the Applicant, his wife and four children.
[10] On March 10, 2003, the officer noted that an interview was recommended in order to clarify the Applicant's financial situation. The officer asked that the Applicant be contacted to request documents, such as: stock transactions printouts for the last three years which would include the dates of transactions, names of stock, prices; stock registration certificates; updated proof of funds; salary slips; bonus and dividends receipts; all standard business documents to show where moneys came from and how the moneys were spent.
[11] On May 20, 2003, the Applicant was interviewed at the Canadian Embassy in Beijing by the officer with the assistance of an interpreter. The officer started by asking the Applicant questions about his children and then interrogated him with respect to his business history. During the interview, the visa officer told the Applicant that he would have to provide more documentation since he doubted some of the information with regard to his income and the way he conducted his business. At the end of the interview, the officer notes in his CAIPS notes that he told the Applicant that he was not convinced of his claims and that he was not satisfied that the Applicant's business was run legally and through the Applicant's own efforts. He also told the Applicant that he was not convinced that his funds were acquired legitimately. He further notes in his CAIPS notes that he found the Applicant's answers to be contradictory and evasive and that "the fact that Fuzhou Jiaotong had not paid taxes from 1993 until 1999 is not a positive sign".
[12] Provided with the opportunity to respond, the Applicant told the officer that the Taxation Bureau had verified the business and that it was never involved in any smuggling. He wished to move his company to another area because pertroleum smuggling was prevalent at the time.
[13] On July 3, 2003, the Applicant was asked to provide a series of documents, such as business licences, registration of capital, proof of supply. He complied with this request by sending the documentation on August 9, 2003.
[14] The Applicant's application was dismissed on October 30, 2003.
IMPUGNED DECISION
[15] In a letter dated October 30, 2003, the visa officer first informed the Applicant that he bore the burden of establishing that his admission to Canada would not be contrary to any provisions of the Immigration and Refugee Protection Act, S. C.. 2001, ch. 27 (IRPA). The visa officer found that the Applicant failed to comply with subsections 11(1) and 16(1) of the Act.
11. (1) Application before entering Canada - A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document shall be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act.
...
16. (1) Obligation -answer truthfully - A person who makes an application must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires.
[16] The visa officer noted that he had reviewed the documents submitted and the interview notes. He found the Applicant's numerous contradictions particularly troubling. He found the Applicant's answers pertaining to his employment to be particularly evasive and his explanations with respect to the company's earnings and number of employees did not make sense. The visa officer was not satisfied with the Applicant's answer that proof of his 1982 to 1993 employment and earnings was not available because the company had closed.
[17] The visa officer found that the Applicant was not credible, especially where the origins of his personal net worth were concerned. The visa officer informed the Applicant of his conclusions in this manner:
Your failure to adequately account for the origins of your personal net worth makes it impossible for me to complete a comprehensive and proper assessment in your case. Based on my interview with you at which we discussed the way you accumulated your wealth, and on my review of the supporting documentation you provided, I am not satisfied that your personal net worth is derived from legal and legitimate sources.
(underlining made)
[18] On this basis the visa officer concluded that he was not satisfied that the Applicant was not a member of an inadmissible class of persons described in Section 36, IRPA. As a result, the Applicant's application for permanent residence was refused.
36. (1) Serious criminality - A permanent resident or a foreign national is inadmissible on grounds of serious criminality for
(a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed;
(b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or
(c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years.
ISSUES
[19] The Applicant identifies four issues:
1) Whether the appropriate standard of review of an officer's decision to refuse a visa application is reasonableness simpliciter?
2) Was the visa officer, while acting in his jurisdiction to question the Applicant, allowed to conclude as he did that the Applicant was a member of an inadmissible class under the label of serious criminality as referred to in section 36 of the Act?
3) Whether the conclusion of the visa officer that the personal net worth of the Applicant is not derived from legal and legitimate sources is a reviewable error?
4) Whether the visa officer breached his duty of fairness by not making the Applicant aware of his concern and by not giving him an adequate opportunity to respond to his concern?
[20] I agree with the Respondent's written submission that the last two issues may be treated as one. Since the standard of review is a preliminary question, I would reframe the last two issues as such:
1) Whether the officer has jurisdiction to question and consider the source of the funds?
2) Whether the principles of natural justice were breached in the present case?
STANDARD REVIEW
Applicant's position
[21] The Applicant submits that the applicable standard of review to the decision of a visa officer with respect to a permanent residence application based on the investor immigrant category should be reasonableness simpliciter. He submits that this approach is set out in [1982] S.C.R. 2">Maple Lodge Farms v. Government of Canada, [1982] S.C.R. 2 (Maple Lodge).
[22] The Applicant argues that this Court seems to be reluctant to set the applicable standard of review: Sun Yue v. Canada (Minister of Citizenship and Immigration), [2003] F.C.T. at 423. He submits that the decision in Wang v. Canada (M.C.I.) [2001] F.C.J. No. 95, IMM-2813-00 Jan. 25, 2001 held that the reasonableness simpliciter is the appropriate standard of review.
Respondent's position
[23] For its part, the Respondent firstly disagrees with the Applicant's interpretation of the decision in Maple Lodge. According to the Respondent, the reasonableness simpliciter criteria was not set out in that decision; it was introduced 15 years later in Canada (Director of Investigation and Research v. Southam Inc., [1997] 1 S.C.R. 748.
[24] The Respondent contends that the decision in Maple Lodge stands for the proposition that a discretionary decision, such as is the case in the present instance, attracts a high degree of deference from the courts: Jang v. Canada (Minister of Citizenship and Immigration [2001] 278 NR 172.
Conclusion on the above Issue
[25] 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 seem 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.
[26] 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. No. 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)
[27] 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.
[28] 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.
ANALYSIS
1) Whether the officer has jurisdiction to question and consider the source of the funds?
Applicant's position
[29] The Applicant submits that the Canada-Québec Accord clearly sets out that the
province has exclusive jurisdiction over selection and the country has exclusive jurisdiction over admissibility. The Applicant suggests that, consequently, both levels of government have the authority to examine the source of the funds for their respective purposes. He argues that contradictory and evasive statements only appear in the verbal statement given during the interview but not in the material evidence. The Applicant contends that in order to request further documents, the officer has to substantiate his concerns, which he failed to do in the present case.
[30] The Applicant argues that the fact that the visa officer doubted the Applicant's contentions that he did not pay taxes tainted the visa officer's whole reasoning. The Applicant submits that if the officer had contrary evidence, he had the obligation of presenting it to the Applicant. The Applicant further contends that to suggest that he is a member of an inadmissible class creates a presumption of criminality and constitutes an unreasonable basis on which to rest his decision. The Applicant submits that following the officer's reasoning, all Applicants are presumed inadmissible until they prove the contrary.
[31] The Applicant argues that the visa officer erred when, absent any element of proof, he concluded that the Applicant was a member of an inadmissible class of persons. He suggests that the officer's decision leads to the conclusion that the funds were accumulated illegally: Ching v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1384.
[32] Finally the Applicant submits that the officer essentially created a new inadmissible class of persons for those who fail to provide the necessary information to support their application. The Applicant argues that the officer is not empowered to add the Act or Regulations.
Respondent's submissions
[33] The Respondent takes issue with the Applicant's argument that the visa officer cannot question nor consider the source of funds because the authorities of the province of Québec have issued a selection certificate. The Respondent argues that this fails to take into account the burden of proof which rests upon an Applicant seeking permanent resident status: s. 11, IRPA. The Respondent submits that it is not the officer's responsibility to demonstrate that he has solid grounds upon which he could question the Applicant with respect to the source of his funds; rather, an Applicant has the burden of demonstrating that he meets the requirements of the Act.
[34] The Respondent submits that the decision of the Federal Court of Appeal in Biao v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 338, contrary to
the Applicant's arguments, clearly establishes the principle that the visa officer will be justified in denying an application if the Applicant has not provided the necessary documentation.
On the actual merits of the appeal, we feel that the motions judge made no error when he concluded that the visa officer was justified in denying the application for permanent residence in Canada made by the appellant on the ground that the latter had not provided the necessary documents establishing that his admission did not contravene the Immigration Act, R.S.C. 1985, c. I-2, and the regulations made thereunder, as required in ss. 8 and 9 of the said Act.
Conclusion on the above Issue
[35] In light of the foregoing, I am satisfied that I should not interfere with the exercise of the visa officer's discretion. I find nothing in the manner he conducted the interview that would suggest that he exercised his discretion in an improper way and that he reached his decision on unreasonable grounds.
[36] Contrary to the Applicant's very strong submissions, I am not of the view that the visa officer concluded that the Applicant was a member of an inadmissible class of persons. He concluded that he could not be satisfied that the Applicant was not a member of that class. He did not make a conclusion as to whether the Applicant was or was not a member of that category; he simply was unable, upon the evidence and the interview, to make a final determination with respect to that question. On that point, I am of the view that deference must be accorded to the visa officer's decision since, in the exercise of his discretion, he was in a better position than the Court to make factual determinations of that nature. If the visa officer was of the opinion that he could not determine whether or not the Applicant was a member of an inadmissible class, this Court ,dealing with judicial review, certainly is not in a better position to make that determination.
[37] As Blais J. states in Martirossian v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 1538 the visa officer has a duty to ensure that the Applicant meets the requirements of the Act.
The facts indicate that the visa officer gave the applicant an opportunity to produce any evidence of the origin of his assets. After the interview of May 25, 2000, she invited him to send any additional evidence to convince her of the legitimacy of his funds. Under subsection ((4) of the Act, the visa officer had a duty to verify whether the money accumulated by the applicant originated in legal activities. (par. 22)
[38] In the present case, in reviewing the Applicant's application, the visa officer identified areas that needed to be clarified and requested that the Applicant provide him with the relevant documentation. During the interview, the visa officer identified the problematic areas, asked the Applicant if he could alleviate his concerns and requested further documentation. I am satisfied, in the context of judicial review, I would be wrong to intervene in the exercise of the visa officer's discretion. I conclude that this decision was reasonable; he denied the Applicant's application since he could not determine whether he conformed to the conditions set out in the Act.
2) Whether the principles of natural justice were breached in the present case?
Applicant's position
[39] First, the Applicant submits that the officer did not provide any explanation supporting his conclusion: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817. The Applicant contends that he was not made fully aware of the concerns of the visa officer. The Applicant argues that he "was not properly informed that he was now to be associated to an inadmissible class of person described in section 36 of the Act." The Applicant submits that the visa officer did not take into account the evidence he submitted, which was, according to him, sufficient to meet the burden imposed on him by the law.
[40] The Applicant also submits, not in his oral argument, that he was required to wear a mask during the interview due to the SARS situation in China. This prevented him from answering questions clearly. He also submits that he was afraid of the visa officer and the translator, and that he did not always understand the questions that were put to him. He claims that he was nervous and dared not ask any questions.
[41] I give no weight to this submission
Respondent's position
[42] The Respondent starts by referring to the CAIPS notes which show that the Applicant was told to inform the visa officer if he did not understand the questions that were put to him. The Respondent also submits in its written submission that it is not enough for the Applicant to base his submission that he was denied natural justice on his allegation to have been afraid of the visa officer and translator. Clear material evidence must support any allegation of bias and not simply suspicion: Barry v. Canada (Minister of Citizenship and Immigration) [2002] F.C.J. No. 266. Finally, on this point, the Respondent submits that closely interviewing an Applicant does not in itself give rise to an apprehension of bias: Tchiegang v. Canada (Minister of Citizenship and Immigration) [2003] F.C.J. 343.
[43] On the second point, the Respondent contends that the Applicant was properly informed of the burden he had to meet in order for his permanent residence application to be granted. The Respondent suggests that the Applicant was aware that his personal net worth would be investigated since he applied for permanent residence status under the investor category and the documentation he was asked to provide related to his business. This also stems from the letters he received requesting further documentation and the notice of interview.
Conclusion on the above Issue
[44] I am satisfied the Applicant was reasonably well-informed of the fact that his personal net worth would be evaluated and that he would be questioned in regards to it. As well and as previously mentioned, the visa officer did not come to the final conclusion that the Applicant was a member of an inadmissible class, as the Applicant suggests. The visa officer was required to investigate the Applicant's personal net worth to ensure that he met the legislative criteria.
[45] I also rely on Oei v. Canada (Minister of Citizenship and Immigration) [2002] F.C.J. No. 600, to conclude that the visa officer did not err in the exercise of his discretion.
As to the plaintiff's argument that the visa officer did not give him an opportunity to resolve her doubts about the inadequacy of the documentation on the origin of the funds, and did not give him an opportunity to complete the evidence, it must be noted that the visa officer does not always have a duty to tell a plaintiff what concerns her about the file submitted to her. This Court's decisions have clearly established that the duty only exists when the plaintiff cannot reasonably be aware of what is worrying the officer or when the latter obtains extrinsic evidence. [...] A plaintiff must know the Act and its implementing Regulations and assume that the visa officer's concerns will result from the Act and Regulations.
[46] Moreover, I cannot find anything on the record to support the Applicant's argument that he was afraid of the visa officer and that he was denied natural justice. There are no indications that it was breached. I am of the view that the visa officer did not display any actions that would suggest he compromised natural justice in exercising his discretion to deal with the Applicant's application.
[47] The Applicant asks that I certify all or one of five questions. I do not believe it necessary to recite the questions in this decision.
[48] In that this case is based primarily on fact and on the issue of discretion and based on my decision that the test to be applied to the visa officer's decision is one of patent unreasonableness, I see no need to certify any question.
[49] An additional issue was raised by the Applicant in his Application for Judicial Review and that is, "Is the visa officer's ("the tribunal's") "inexperience" a ground for judicial review?
[50] I agree with the submission of Respondent that assuming in this case the visa officer was "inexperienced" there is no need to be highly trained in fiscal and tax law to conclude that the Applicant did not convince the visa officer of the issues of payment of taxes.
[51] There is no merit to the Applicant's submission on the issue of the visa officer's experience.
"Max M. Teitelbaum"
JUDGE
Calgary, Alberta
December 13, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-95-04
STYLE OF CAUSE: LIN ZHENG HUA et LA MINISTRE DE LA
CITOYENNETÉET DE L'IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: November 3, 2004
REASONS FOR ORDER : TEITELBAUM J.
DATED: December 13, 2004
APPEARANCES:
Mr. Hugues Langlais FOR APPLICANT
Mr. Ian Demers FOR RESPONDENT
SOLICITORS OF RECORD:
Joli-Coeur, Lacasse, Geoffrion,
Jetté, St-Pierre
Montreal, Quebec FOR APPLICANT
Morris A. Rosenberg
Deputy Attorney General of Canada FOR RESPONDENT
Email this Content