Nosov v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1049

Date: 20021009

Docket: IMM-5114-01

Neutral citation: 2002 FCT 1049

Ottawa, Ontario, October 9, 2002

Present:    The Honourable Madam Justice Tremblay-Lamer

BETWEEN:

                       NOSOV, YURY STANISLAVOVICH

                                                                Applicant

                                 - and -

             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                               Respondent

                         REASONS FOR ORDER AND ORDER

[1]                 This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, wherein the applicant seeks an order to set aside the decision of the visa officer who refused his application for permanent residence in the investor category.

[2]                 On April 23, 2001 the visa officer held an interview with the applicant to further the assessment of his application for permanent residence in Canada.

[3]                 On the same date, the visa officer hand delivered a letter to the applicant requesting documents and information indicated on a separate page including itemized foreign bank statements for the past six months.

[4]                 In her affidavit the visa officer explained that she did not receive the documents she expected from the applicant since the documents labelled "bank statements" were, in her opinion, incomplete and not dated and did not satisfy her with respect to the source of funds of the applicant.

[5]                 Thus on October 5, 2001 she rendered a decision refusing the application for permanent residence.

[6]                 In her decision, the visa officer explained that she could not accept that the applicant's funds were derived from legal and legitimate sources. She held that the applicant's failure to adequately account for the legality of the origins of his personal net worth renders him inadmissible in Canada. She writes:

Pursuant to this paragraph, you were requested to provide me with financial documents which would convince me that your net worth was in line with your potential earnings. I discussed this matter with you at the interview we had in Paris on April 23^rd, 2001 and in our subsequent correspondence. You have not been able to justify the origin of our declared funds and this raises serious questions as to the means used to obtain these funds. You have not been able to establish that you are not a member of an inadmissible class. Your application is therefore refused.

Respondent's record at pp. 63-64.

[7]                 In order to issue the visa, a visa officer must be satisfied that the perspective immigrant is an admissible person in Canada or is not part of an inadmissible class described in section 19 of the Immigration Act, R.S.C. 1985, c. I-2 (the Act). If the visa officer is not satisfied at the interview that an applicant meets the requirements of the Act and Immigration Reguations, 1978, SOR/78-172, he or she may request additional evidence.

[8]                 The Federal Court of Appeal has recently confirmed that the visa officer has the power to request documents pursuant to subsection 9(3) of the Act, and that the applicant has the burden of proving that his entry into Canada would not contravene the Act (Biao v. Canada (Minister of Citizenship and Immigration) (2001) 278 N.R. 36). A conclusion that an applicant did not comply with subsection 9(3) of the Act may result in a finding that the applicant is inadmissible.

[9]                 In the case at bar, the visa officer was concerned about the source of funds of the applicant. She informed the applicant of her concerns and requested documents relevant to those concerns.

[10]            The applicant had the opportunity to produce additional evidence which he did but because the documents produced were incomplete, the visa officer could not conclude that he discharged himself of his burden to prove admissibility. This question is purely a question of weighing the evidence. I agree with Muldoon J. in Asghar v. (Canada) Minister of Citizenship and Immigration [1997] F.C.J. No. 1091, that "the duty of procedural fairness does not arise merely because the visa officer has not been convinced, after weighing the evidence, that the application is well-founded. The visa officer's task is precisely to weigh the evidence submitted by the applicant." The applicant did not demonstrate an error of law or an unreasonable conclusion of facts. Thus, the application affords no legal basis for the intervention of the Court.

                                                  ORDER

THIS COURT ORDERS THAT the application for judicial review is dismissed.

                                                                      "Danièle Tremblay-Lamer"

J.F.C.C.

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   IMM-5114-01

STYLE OF CAUSE:                     

                        NOSOV, YURY STANISLAVOVICH

                                                       and

       THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                                   Montreal

DATE OF HEARING:                                     October 3, 2002

REASONS FOR ORDER AND ORDER:

          THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER

DATED:                      October 9, 2002

APPEARANCES:

Mr. Guy P. Major                                                FOR APPLICANT

Ms. Martine Valois                                               FOR RESPONDENT

SOLICITORS OF RECORD:

Mr. Guy P. Major                                                FOR APPLICANT

1155 René Levesque Blvd. West

Suite 2500

Montreal, Quebec

H3B 2K4

Department of Justice                                           FOR RESPONDENT

Complex Guy-Favreau

200 René Lévesque Blvd. West

East Tower, 5^th Floor

Montreal, Quebec

H2Z 1X4