Wu v. Canada (Minister of Citizenship and Immigration), docket IMM-1608-98

Date: 19990707

Docket: IMM-1608-98

BETWEEN:

     HAO JUNG WU

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

REED, J.:

[1]      This is an application for judicial review of a decision of a visa officer refusing the applicant"s application for permanent residence in Canada as an Investor. The applicant, a resident of Taiwan, submitted his application to the Immigration Area Processing Centre in Buffalo, New York in November, 1995. An interview was held on October 15, 1996, at the Canadian Consulate General in Detroit. Prior to the interview the applicant was sent a letter requesting that he bring original documents and certified translations showing proof of his assets, proof of his business ownership, financial documents, and personal and business revenue statements.¹

[2]      The applicant has owned and operated his own jewellery store in Taiwan since 1989. He claimed, in his application and at the interview, to have a net worth of $1.2 million Canadian. The visa officer sought to ensure that this net worth was the result of his own efforts. The definition of investor is found in section 2(1) of the Immigration Regulations, 1978, SOR/78-172:

"investor"means immigrant who

(a) has successfully operated, controlled or directed a business,

(b) has made a minimum investment since the date of the investor"s application for an immigrant visa as an investor, and

(c) has a net worth, accumulated by the immigrant"s own endeavours,

(i) where the immigrant makes an investment referred to subparagraph (a)(i) or (ii), (b)(i), (c)(i) or (ii), (d)(i) or (ii) or (e)(i) or (ii) of the definition of "minimum investment", of at least $500,000, or

(ii) where the immigrant makes an investment referred to in subparagraph (a)(iii), (b)(ii), (c)(iii), (d)(iii) or (e)(iii) of the definition of "minimum investment", of at least $750,000. [Emphasis added.]

[3]      The applicant"s income tax return statements for 1994 and 1995 show sales of $2.5 million Taiwanese and $1.1 million Taiwanese and a gross profit of 16% and 12% respectively. In response to the visa officer"s concerns that these profit figures were too small to amount to his stated accumulated net worth, the applicant explained that in Taiwan, businesses do not need to report their actual sales and profits. In his affidavit, he states that the Revenue Department only requires businesses to declare NT$2 million plus turnover even if they actually make 30 to 40 million. The visa officer asserts that the applicant suggested at the interview that his actual sales for 1995 were 40 million Taiwanese dollars and his profits for the past two years had been 10% of total sales. The applicant asserts that he gave the visa officer an estimate only and that he said his sales were approximately 30-40 million.

[4]      There is some dispute as to whether the visa officer notified the applicant at the end of his interview that he would be required to submit additional documentation. The applicant and the interpreter both state in their affidavits that the visa officer indicated that she would examine the financial documents submitted and request further documentation should she require it. The visa officer believes that she told the applicant that he would be required to submit further documentation. In either case, the visa officer did eventually receive additional documentation in June 1997.

[5]      The documents provided, however, did not satisfy the visa officer"s concerns. Mr. Wu sent income statements prepared from his private books. Counsel, on his behalf, explained that Mr. Wu had "no receipts to show actual sales" and advised that "a lot of his clients buy jewels from him without requesting a receipt because they trust him and in anticipation of getting a 'better deal'." The net profit indicated for 1995 in his private books was NT$2,497,726 or $124,886 Canadian in contrast to the 10% of NT$40 million dollars profit the visa officer said he claimed at the interview. The total sales revenue for 1995 is listed as $27,308,998, in contrast to the $1,123,363 reported on his income tax return. The submissions also contained a letter from one of his frequent customers and letters from two wholesalers attesting that Mr. Wu bought approximately NT$1-5 million worth of precious stones from them annually. Counsel ended his submissions with the following:

We trust that you will agree that Mr. Wu has provided an indepth account of the source of his funds. Perhaps if you could inform us as to what you are not satisfied with - we could then address those points with Mr. Rotenberg's final submissions. [Letter written June 3, 1997.]

[6]      On October 14, 1997, the visa officer responded to a request for new medical forms for the applicant (and his family) and advised Mr. Rotenberg "subjects business documents are being evaluated and a security clearance is outstanding". On January 30, 1998, Mr. Rotenberg informed the visa officer that the family had undertaken the new medical examinations in Taipei on November 15, 1997, and asked her to check whether the security clearance had now been completed.

[7]      On February 20, 1998, the visa officer sent out the refusal letter:

Section 2(1) of the Immigration Regulations defines an investor as an immigrant who has successfully operated, controlled or directed a business; has made a minimum investment since the date of the application for immigration and has a particular net worth accumulated by the immigrant's own endeavours.

At interview you presented business income tax returns showing your company generated a modest profit for 1994 and 1995. You claimed to have a net personal worth of over one million Canadian dollars. You stated your net worth was accumulated mainly through profits from your business. You were asked how you could have obtained a net worth of over one million Canadian dollars when your business documents indicated otherwise. You stated that tax statements did not reflect the actual total sales and profits accumulated. You stated that although your tax returns indicated total sale revenues of $1,123,363 Taiwanese dollars for 1995, the business actually had sales of over forty million Taiwanese dollars for 1995 and that profit was 10 per cent.

You were advised that it would be necessary to provide evidence that your net worth was accumulated by your own endeavours. You were asked to provide any supporting documentation that would indicate you meet the definition of investor.

Information was subsequently received from your lawyer. it stated that you have no receipts to show actual sales generated by your business. Income statements were received that contained figures obtained from private books. The figures on these income statements do not correspond with information you provided at interview.

I am unable to conclude from information obtained at interview and on file that you meet the definition of investor.

I have also assessed your application according to the criteria for independent applicants and under the self-employed category and regret that you failed to qualify under these criteria as well.

You therefore come within the inadmissable class of persons described in paragraph 19(2)(d) of the Immigration Act in that you have not fulfilled or complied with the provisions of the Act and regulations and your application has been refused.

I regret my response could not have been a favourable one.

[8]      In her decision letter, the visa officer indicated that she had assessed the applicant according to the criteria for independent immigrants, but that he also failed to qualify in this category. There is no written record of these assessments beyond what was said in the decision letter. In her second affidavit, dated May 18, 1998, the visa officer stated the following:

3. The applicant"s application was assessed under the investor guidelines and it was determined that he did not meet the definition of investor.

4. It was my practice in business cases to review the file and information received at interview to determine if the individual is qualified in any other category of immigrants. I believe there is no statutory requirement to do so. After determining that the applicant did not meet the definition of investor, I considered if he met the requirements under the self-employed or independent category.

5. I was unable to conclude that the applicant met the definition of self-employed. In reviewing the application under independent criteria, it is my normal practice to consider occupations where it is apparent that the individual has experience and is qualified in the occupation. Based on information on file and obtained at interview I considered the applicant in occupations of buyer, jewellery store manager, jewellery salesperson, jewellery repairman, buyer and pharmaceutical salesperson. ...

6. There were no occupations, under CCDO or NOC, that the applicant was considered in that would have given him the requisite units of assessment to be approved. CAIPS would not reflect other categories or occupations considered unless the person was going to be selected favourably in that category or occupation. If the applicant was selected favourably in the independent category of immigrants under a particular occupation then the CAIPS point assessment would reflect this.

7. I mentioned in my refusal letter that I had considered the applicant in other occupations and categories but did not enter the specific information into CAIPS notes because it did not effect the final decision of the application. My normal practice is to consider other categories or occupations but unless it will result in a different decision or the applicant has specifically requested to be assessed in another category or occupation, I do not usually detail in CAIPS the other categories or occupations considered.

8. The applicant did not possess any English language ability and did not possess any formal post-secondary education. I was able to determine the points the applicant would be awarded by reviewing the occupational demand and SVP/ETF factors for occupations he was assessed under. For example, in the case of assessing the applicant as a pharmaceutical salesperson under NOC and reviewing that the demand factor was 1 and ETF was 15, I was able to calculate, in my head using simple addition that the applicant would not receive sufficient units of assessment (10 for age, 1 for occupational factor, 15 for ETF, 6 for experience, 8 for demographic, 10 for education, 0 for language, 5 for relative = 55 points).

9. The maximum units of assessment for personal suitability is 10 and it was my opinion that the applicant would have difficulty successfully establishing in Canada. I was not prepared to award the applicant more than 4 points for personal suitability. The maximum therefore that the applicant could have been awarded would have been 59 points. Some occupations the applicant was assessed under did not have any occupational demand. In all considered occupations the units of assessment awarded would have been 59 or less under the CCDO and NOC.

10. It is usually an easy exercise for an experienced officer to be able to look at the occupational demand factor, ETF/SVP, education and language and be able to determine if a person will meet the requisite units of assessment, particularly if those numbers are low. There are times that I may make calculations on paper to determine the total units of assessment. I recall in this particular case that I was able to calculate in my head that the applicant would not meet adequate units of assessment (70) to be approved for immigration to Canada.

[9]      Counsel for the applicant argues that the visa officer's decision should be set aside for two reasons: (i) the applicant was not made aware that the visa officer was concerned that his documents failed to demonstrate that he had accumulated the net worth he asserted as a result of his own endeavours, and (ii) she did not undertake the formal assessment of alternate occupations for which the applicant might qualify as set out in Birioulin v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 222.

[10]      I am not persuaded by these arguments. The applicant was applying under the investor category. It is his responsibility to provide the appropriate documentation to the visa officer to satisfy the requirements for admission under that category. Even if he was not made aware at the time of the interview that the documents he had provided were considered by the visa officer to be inadequate, he was so informed by the letter of April 8, 1997. The relevant portion of the letter reads:

In your letter of March 10, it is stated that I retained original documents to review them more thoroughly, that I would advise if further documentation was required and I would check the investment fund. What actually happened at interview was that there were discrepancies regarding what your client's actual sales for his business were and what his documents revealed. Your client was advised that I needed to be satisfied that his net worth was accumulated through his own endeavors and that his income supported his net worth. It was made clear at interview that Mr. Wu was required to address the discrepancies discussed at interview by providing supporting documents revealing actual sales and his income.

[11]      Counsel for the applicant argues that the visa officer should have communicated with him and his client again, as a result of the letter in response that counsel sent (supra, para. 5), and given them an opportunity to respond to her concerns about the inadequacy of the documentation that had been sent before rejecting the application. It is argued that the failure to do so constitutes a breach of the rules of fairness.

[12]      I am not persuaded that a breach of the rules of fairness occurred. There is jurisprudence that indicates that visa officers should give individuals an opportunity to answer concerns the visa officer has that might lead to a negative decision but this does not have to go on indefinitely. In this case, the visa officer made clear in her April 8, 1997, letter the concerns she had about the applicant's business documents. The material that was sent in reply (summaries from private books, the letter of a customer, letters from two wholesale suppliers, the admission that the applicant had no actual receipts) was so far off the mark of what was required, that I cannot see that the visa officer was required, yet again, to ask the applicant to support his claim with reliable documentary proof of earned income. He had no actual sales receipts, he did not give his true income in his tax returns, and his explanation for not doing so was not supported by any official documentation establishing the veracity of that explanation.

[13]      With respect to the argument that there was no formal assessment of the applicant under alternative occupational categories, there was no duty on the visa officer to consider the applicant in alternative occupations under the independent immigrant category, since he was not applying under that category; he was applying as an investor. In Birioulin, the visa officer failed to consider an applicant under one of the occupations he specifically requested be considered. Furthermore, the visa officer erred in failing to consider him under this occupation based on the preliminary conclusion that the applicant did not have sufficient experience. In Mr. Wu's case, the visa officer gave the applicant full credit for his experience under each occupation she considered. I do not find it surprising that an experienced visa officer would be able to do this assessment as she said she did, by adding up the units of assessment in her head.

[14]      For the reasons given, this application for judicial review is dismissed.

    

                                 Judge

OTTAWA, ONTARIO

July 7, 1999

__________________

     ¹      Notice of Interview, Application Record, pages 8-9. This document is not on the Tribunal Record. The visa officer explained in cross-examination that the interview letter is not always kept on the file.