Li v. Canada (Minister of Citizenship and Immigration), 2001 FCT 837

Date: 20010727

Docket: IMM-105-01

Neutral citation: 2001 FCT 837

Vancouver, British Columbia, Friday, the 27^th day of July, 2001

PRESENT:    THE HONOURABLE MADAM JUSTICE HENEGHAN

BETWEEN:

XIAOGANG LI

Applicant

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

                                            REASONS FOR ORDER and ORDER

Heneghan, J.

INTRODUCTION

[1]         Mr. Xiaogang Li (the "Applicant") seeks judicial review of the decision made by Amy L. Ma, Visa Officer (the "Visa Officer") on November 3, 2000. In her decision, the Visa Officer refused the Applicant's application for permanent residence in Canada.

FACTS

[2]         The Applicant is a citizen of China. He submitted his application for permanent residence in Canada, under the Investor category, to the Canadian Consulate General in Hong Kong on or about August 6, 1996. His file was transferred to the Los Angeles office on November 27, 1996. He attended at the office for an interview with the Visa Officer on February 19, 1998.

[3]         Subsequently, the Visa Officer made several requests to the Applicant, for provision of more information and documentation relating to his status as a member of the Investor category. The Applicant submitted documentation in response to the requests, including a Business Performance Assessment. However, the Visa Officer was not satisfied with the material provided and rejected the Applicant's application on the ground that he had failed to comply with her request for the production of further documentation, requested pursuant to section 9(30 of the Immigration Act, 1985, c. I-2, as amended (the "Act"). The refusal letter read, in part, as follows:

Pursuant to paragraph 9(3) of the Immigration Act of 1976, you were asked to produce the following documents to enable us to continue the processing of your application:

-    Proof of money transactions in form of bank remittance and bank statements from your own bank accounts to the active Canadian investment fund

ISSUE

[4]         The sole issue for determination is whether the Visa Officer erred in law by requiring the Applicant to provide evidence not required by law and then using the lack of relevant evidence to refuse the Applicant's application for permanent residence in Canada as a member of the Investor class?

Applicant's Submissions

[5]         The Applicant argues that the Visa Officer improperly made an implied representation to him concerning the acceptability of documentation provided by him relative to funds being obtained by means of financing to show qualification as a member of the Investor category. The Immigration Regulations, 1978, SOR/78-172, s. 2 (as am. by SOR/89-585, s. 1) defines "investor" as follows:

[6]         The Applicant says there is no impediment to reliance on borrowed funds to partially meet the requirements and that he provided sufficient documentation to the Visa Officer to show that he had entered into a loan agreement to obtain part of the necessary funds. He argues that the Visa Officer erred in law in requiring him to produce more documentation on the materials before her, including the Client Investment Agreement, and that the documentation in her possession should have informed the Visa Officer that he was relying on borrowed money, in part, to meet the minimum investment amount.

[7]         Second, the Applicant submits that the Visa Officer acted unfairly when she did not ask any questions about the meaning of the Client Investment Agreement after it had been submitted to her and unfairly allowed him to rely on the implied representation that this Agreement was a sufficient response to the Visa Officer's concern about the source of his funds.           

Respondent's Submissions

[8]         The Respondent takes the position that the Visa Officer was consistently concerned with the source of the Applicant's funds and specifically requested, on several occasions, supporting documentation to show the source of the Applicant's funds. The Respondent relies on the CAIPS notes maintained by the Visa Officer and says the notes clearly demonstrate the continuing concern of the Visa Officer on this issue.

[9]         Furthermore, the Respondent submits that the source of the Applicant's funds was a key question to be explored by the Visa Officer in assessing the eligibility of the Applicant to be granted permanent residence in Canada, as a member of the Investor Class.

[10]       The Respondent argues that the failure of the Applicant to satisfy the Visa Officer as to the source of his funds, in the face of repeated requests for that information, reasonably supports the negative decision which was made.

ANALYSIS

[11]       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. In this regard, see To v. Canada (Minister of Employment and Immigration), [1996] F.C.J. No. 696, where the Federal Court of Appeal adopted the standard of review enunciated by the Supreme Court of Canada in [1982] 2 S.C.R. 2">Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2, as follows:

It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.

[12]       The question for determination is whether it was reasonable for the Visa Officer to require an Applicant to provide proof that the money being invested by him was the fund of his own labours. In other words, was the Visa Officer's request for proof about the source of the money, a reasonable request?

[13]       In my opinion, the answer must be "yes". The Visa Officer was required to assess the eligibility of the Applicant to be considered a member of the Investor category. According to the Immigration Regulations, 1978, one criterion of that class is proof of possessing a certain net worth. The burden of showing eligibility for admission into Canada always lies upon a person seeking such admission; see section 8 of the Act. The Visa Officer's request for financial confirmation was reasonable and the burden lay upon the Applicant to provide the information in a form satisfactory to the Visa Officer. In her opinion, he failed to do so.

[14]       In my opinion, the Applicant has failed to show that the Visa Officer erred in the exercise of her statutory discretion. The application for judicial review is dismissed.

[15]       Counsel advised that no question for certification arises for this application.

ORDER

[16]       The application for judicial review is dismissed.

(Sgd.) "Elizabeth Heneghan"

                                                                   Judge

                                                FEDERAL COURT OF CANADA

                                                               TRIAL DIVISION

                           NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          IMM-105-01

STYLE OF CAUSE:                       Xiaogang Li v. The Minister of Citizenship and Immigration

PLACE OF HEARING:                  Vancouver, British Columbia

DATE OF HEARING:                     July 25, 2001

REASONS FOR ORDER OF THE COURT BY: Heneghan, J.

DATED:                                           July 27, 2001

APPEARANCES:                         

Dennis Tanack                                                                       FOR APPLICANT

Helen Park                                                                              FOR RESPONDENT

SOLICITORS OF RECORD:

Dennis Tanack                                                                       FOR APPLICANT

Deputy Attorney General of Canada                                    FOR RESPONDENT

Vancouver, British Columbia