Date: 20041122
Docket: IMM-1381-04
Reference: 2004 FC 1636
Ottawa, Ontario, this 22nd day of November, 2004
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
XU ZHONG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Introduction
[1] A negative decision was rendered by a Visa Officer (Officer) on November 25, 2003, at the Canadian Embassy in Beijing, China, denying the Applicant's application for permanent residence in Canada under the investor immigrant category. The Applicant acted as principal applicant, also requesting permanent resident status to his wife and young son. This is an application for judicial review of that decision.
Background Facts
[2] The Applicant is a citizen of China. He graduated from Fuzhou Superior Cooking Technology School as a cook. From 1989 to 1991, he worked as a cook at Fujian Minjiang Restaurant in Fuzhou, China. From 1991 to 1998, he owned and managed Minhou Jinfu Restaurant. From 1993 to 2000, he was the owner and general manager of Fuzhou Ya'ao Trade Co Ltd. From 2000 until the time of his application, he was general manager of Fuzhou Hengxiang Trade Co Ltd.
[3] In 1998, the Applicant applied for a permanent residence visa under the category of entrepreneur; the visa was refused.
[4] In a letter dated November 2, 2000, the Applicant was informed that his application for a Québec Selection Certificate was granted. The letter pointed out, however, that the certificate was not an admission visa to Canada, that the Applicant needed to obtain such a visa from Canadian authorities before his departure.
[5] On January 3, 2001, the Canadian Embassy in Beijing received the Applicant's application for permanent residence for himself, his wife and son, as an applicant selected by the province of Québec under the investor immigrant category.
[6] The Officer's notes entered in the Computer Assisted Immigration Processing System (CAIPS) on October 12, 2001, reveal that the Officer was concerned about the source of the Applicant's funds. The Officer recommended a visit to the site of the Applicant's business in order to determine whether it could have generated the funds presented through a legitimate business activity.
[7] The file was reviewed on May 29, 2002, after the site visit was conducted. The Officer noted that the business had been renamed and that most of the staff were away due to the Lantern Festival. The Officer noted that it was highly questionable whether the Applicant's operations generated the profits and income as claimed by the Applicant. According to the Officer, the Applicant's explanations and the information provided by his agent was not satisfactory.
[8] With respect to the site visit, the Applicant contends that the Canadian government employee charged with visiting the site had only stood at the gate and not entered the site and in consequence takes issue with the accuracy of the site visit report.
[9] With respect to the Applicant's restaurant business, the Officer wrote that the Applicant's explanation pertaining to the source of funds was not consistent with the information he gave during his 1998 interview for his first application (1998 interview). Although the Applicant submitted documents from the local and national tax bureaus, the Officer still concluded that there were no copies of the tax payments or other business transactions that could explain the company's turnover and profits.
[10] An interview was recommended to clarify the information on file and to assess the source and accumulation of funds for the Applicant's involvement with his two businesses.
[11] On July 14, 2003, the Applicant was interviewed by the Officer, assisted by an interpreter. The Applicant's wife was present. The Applicant answered questions relating to his education, work experience and business ventures. The Officer also inquired about the discrepancies between the Applicant's answers to his questions and the information he provided in his 1998 interview.
[12] At the end of the interview, the Officer told the Applicant that he was not satisfied as to the source of his funds or that he ran his business as he claimed. The Officer informed the Applicant that he found various contradictions in the Applicant's answers, namely:
- contradicted himself both during this interview and contradicted what he said during his entrepreneur interview as to the loan that helped him start the restaurant
- contradictions about startup capital for Ya Ao
- could not explain convincingly the details of running the restaurant
- contradicted himself and 1998 interview about what his mother and father did
- could not explain taxes paid and contradicted himself about taxes paid
- had very little recollection of profit of his business
- contradicted himself in explanation of rent paid for current business
- explanation of his current business is contradicted by site visit: given [Applicant's] contradictions about rent, etc, do not find explanation convincing
- answers in general were unsure and vague.
[13] When asked by the Officer if the Applicant had anything to say to allay his concerns, the Applicant replied that he could not express himself very clearly which might have led to some misinterpretations. He stated, however, that he is a good businessman.
[14] On July 15, 2003, the Officer noted in CAIPS that the Canadian Embassy in Beijing had received a "poison pen letter" which reads as follows :
Documents submitted are not genuine. Company is no longer existing you can check with the operator 114. All notorised documents are done through someone (guan xi), you can check with the notary office. Pls keep this confidential. From a person who was cheated by the applicant.
[15] The CAIPS notes from November 6, 2003, reveal that the Officer was not convinced that the Applicant acquired his funds legally and in the manner he claimed. Based on this, the Officer intended to refuse the application. The Officer further noted that the "poison pen letter" suggested that the Applicant had submitted fraudulent documents and, if that were the case, his application should be refused under section 40 of the Immigration and Refugee Protection Act, S.C. 2001 c. 27, (IRPA).
| 40. (1) A permanent resident or a foreign national is inadmissible for misrepresentation
(a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;
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40. (1) Emportent interdiction de territoire pour fausses déclarations les faits suivants :
a) directement ou indirectement, faire une présentation erronée sur un fait important quant à un objet pertinent, ou une réticence sur ce fait, ce qui entraîne ou risque d'entraîner une erreur dans l'application de la présente loi;
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[16] On November 18, 2003, after verifying with various authorities and establishing that the documents were authentic, the Officer remained unconvinced that the Applicant's net worth was acquired legally and intended to refuse the application.
[17] The Applicant's application was refused on November 25, 2003. The Officer concluded he was not able to determine that the Applicant was not a member of an inadmissible class of persons described in subsection 36(2) of the IRPA. In his November 25, 2003, letter, the Officer informed the Applicant that, in order for his application to succeed, he bore the burden of demonstrating that his admission to Canada would not be contrary to any provisions of the IRPA, including a determination that he was not a member of the inadmissible class of persons described in subsections 34 to 42 of the IRPA.
[18] The Officer also informed the Applicant that he failed to comply with the requirements of subsection 11(1) of the IRPA which reads as follows :
| 11. (1) 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 admissible and meets the requirements of this Act.
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11. (1) L'étranger doit, préalablement à son entrée au Canada, demander à l'agent les visa et autres documents requis par règlement, lesquels sont délivrés sur preuve, à la suite d'un contrôle, qu'il n'est pas interdit de territoire et se conforme à la présente loi.
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[19] The Officer further wrote that subsection 16(1) imposes a duty on applicants to answer truthfully all questions put to them.
| 16. (1) 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 reasonable requires.
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16. (1) L'auteur d'une demande au titre de la présente loi doit répondre véridiquement aux questions qui lui sont posées lors du contrôle, donner les renseignements et tous les éléments de preuve pertinents et présenter les visa et documents requis.
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[20] The Officer concluded his letter of refusal by writing:
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. I am therefore not satisfied that you are not a member of an inadmissible class of persons described in subsection 36(2) of Canada's Immigration Act. Your application is therefore refused.
[21] Section 36(2) of the IRPA provides as follows:
| 36. (2) A foreign national is inadmissible on grounds of criminality for
(a) having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence;
(b) having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, it committed in Canada, would constitute offences under an Act of Parliament;
(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 indictable offence under an Act of Parliament; or
(d) committing, on entering Canada, an offence under an Act of Parliament prescribed by regulations.
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36. (2) Emportent, sauf pour le résident permanent, interdiction de territoire pour criminalité des faits suivants :
a) être déclaré coupable au Canada d'une infraction à une loi fédérale punissable par mise en accusation ou de deux infractions à toute loi fédérale qui ne découlent pas des mêmes faits;
b) être déclaré coupable, à l'extérieur du Canada, d'une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable par mise en accusation ou de deux infractions qui ne découlent pas des mêmes faits et qui, commises au Canada, constitueraient des infractions à des lois fédérales;
c) commettre, à l'extérieur du Canada, une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable par mise en accusation;
d) commettre, à son entrée au Canada, une infraction qui constitue une infraction à une loi fédérale
précisée par règlement.
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Issues
[22] The issues identified in this application, may be framed as follows:
(1) Whether the Officer erred in concluding that he was not satisfied that the Applicant was not a member of an inadmissible class under subsection 36 (2) of the IRPA?
(2) Whether the visa Officer breached his duty of fairness by relying on extrinsic evidence, by not making the Applicant aware of his concerns and by not giving him an adequate opportunity to respond to these concerns?
Analysis
[23] In respect to this first issue, the Respondent argues that the Officer did not conclude that the Applicant was a member of the inadmissible class described in subsection 36(2) of the IRPA. Rather, the Officer determined that, since the applicant did not present satisfactory evidence with regard to the sources of his funds, the Officer was not satisfied that the Applicant's personal net worth was derived from legal and legitimate sources and therefore, was not satisfied he was not a member of the inadmissible class of persons described in subsection 36(2) of the IRPA.
[24] I reject the Respondent's argument. The Officer's decision was based on a finding of inadmissibility pursuant subsection 36(2) of he IRPA. While it may have been open to the Officer, on the evidence, to find that conflicting and/or insufficient evidence had been presented to satisfy the Officer that the Applicant's net worth is derived from legal and legitimate sources, such a finding does not necessarily lead to a determination that the Applicant is a member of an inadmissible class of persons described in subsection 36(2) of the IRPA. A person does not become a member of the inadmissible class of persons described in subsection 36(2) for the sole reason that he has violated a prescription of the IRPA or the Regulations. (See Kang v. Canada (Minister of Citizenship & Immigration) [1981]2 F.C. 807 (F.C.A.) at paragraph 6). Subsection 36(2) of the IRPA provides that "A foreign national is inadmissible on ground of criminality for ... (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 indictable offence under an Act of Parliament; ...". The sole purpose of that provision, is to render inadmissible all those who do not meet the condition of admissibility prescribed by or under the IRPA.
[25] I recognize that section 33 provides that facts arising from omissions and, facts for which there are reasonable grounds to believe that they have occurred , are occurring or may occur, are facts that constitute inadmissibility. While these rules of interpretation apply to subsection 36 (2) of the IRPA, there must nevertheless be in evidence information supportive of those elements necessary to base a finding of inadmissibility under subsection 36 (2) of the IRPA, that is to say, in this case, criminality, based on an act which would constitute an offence in China and which, if committed in Canada, would constitute an offence under an Act of Parliament. The Officer admitted that no such evidence was before him. He acknowledged this lack of evidence by responding in the negative to the following question put to him on discovery examination of his affidavit. "Do you have any information in front of you, in the file that you have, saying that the applicant has committed outside Canada an offence, in the place where it was committed, that constitutes an offence in the place where it was committed?"
[26] Further the Officer failed to clearly identify the criminal act for which he found the applicant inadmissible under subsection 36 (2) of the IRPA. Nor did the Officer, in his refusal letter or in his CAIPS notes deal with the double criminality requirement provided for in subsection 36(2). He conducted no equivalency assessment as required. In consequence, even if I were able to conclude from the Officer's treatment of the file that he addressed his mind to a specific act for the purposes of paragraph 36(2)(c) of the IRPA, and I am not, the other requirements of the paragraph are not met.
[27] There being no evidence to support a finding of inadmissibility under subsection 36(2) of the IRPA, the Officer's finding of facts was made in a perverse and capricious manner. His decision is consequently patently unreasonable and constitutes a reviewable error.
[28] There is conflicting jurisprudence in this Court in respect to the applicable standard of review for visa officer's decisions. In certain cases the threshold for judicial intervention is patent unreasonableness on behalf of the officer (Ushenin v. Canada (Minister of Citizenship and Immigration) 2003 FCT 315, [2003] F.C.J. No. 443 online: QL), while other cases stipulate a standard of simple unreasonableness (Shehada v. Canada (Minister of Citizenship and Immigration), 2004 FC 11, [2004] F.C.J. No. 12 online: QL). In this case, it is unnecessary to decide which standard is applicable since the officer's decision cannot stand on either of the standards.
[29] Since my above finding is determinative of this application, it is unnecessary to consider the second issue in respect to the duty of fairness. I nevertheless find it useful to make the following observations in respect to the second issue raised in this application. It would have been preferable, in my view, for the Officer to expressly inform the Applicant of concerns in respect to the Applicant's possible admissibility for criminality pursuant to subsection 36(2) of the IRPA. This would have afforded the Applicant an opportunity to respond. The Officer's failure to inform, in the circumstances, may well have resulted in a breach of procedural fairness.
[30] It is also a concern that the Officer relied on the site visit report, given the significant discrepancies in the evidence in respect to the accuracy of the report and the Officer's own admission on examination that he did not know if the report was totally accurate.
[31] The application for judicial review will be allowed. The matter shall be sent back for reconsideration before a different Officer.
[32] Counsel are requested to serve and file any submissions with respect to certification of a question of general importance within seven (7) days of receipt of these reasons. Each party will have a further period of three (3) days to serve and file any reply to the submission of the opposite party. Following that, an order will be issued.
"Edmond P. Blanchard"
Judge
Ottawa, Ontario
November 22, 2004
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-1381-04
STYLE OF CAUSE: Xu Zhong v. MCI
PLACE OF HEARING: Montréal (Quebec)
DATE OF HEARING: November 4, 2004
REASONS FOR ORDER BY: BLANCHARD, J.
DATED: November 22, 2004
APPEARANCES BY:
Mr. Hugues Langlais For the applicant
Ms Marie-Claude Demers For the respondent
SOLICITORS OF RECORD:
Mr. Hugues Langlais For the applicant
Montréal, Quebec
Morris Rosenberg For the respondent
Deputy Attorney General of Canada
Montréal, Quebec
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