Date:
20101207
Docket:
IMM-2231-10
Citation:
2010 FC 1230
Ottawa, Ontario,
December 7, 2010
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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WEN HU ZHOU
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Applicant
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and
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CANADA (MINISTER OF CITIZENSHIP
& IMMIGRATION)
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Zhou, pursuant to section
72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, asks
the Court to set aside a decision refusing his application for a permanent
resident visa as a member of the provincial nominee class.
[2]
For the reasons that follow, his
application is dismissed.
Background
[3]
Mr.
Zhou is a Chinese citizen. He applied and was selected by British Columbia as
a Provincial Nominee on May 6, 2009. He had arranged employment with Togi
Garments Ltd. and submitted his application for permanent residence to the
Canadian Embassy in Beijing.
[4]
By
letter dated November 17, 2009, the visa officer processing the application
requested that Mr. Zhou provide additional documentation proving the source of
his income and the profitability of the companies where he had been employed.
The officer provided a list of documents the applicant was to provide, which
included a completed Schedule 4A, a form normally required to be completed by
provincial nominees immigrating under the business, entrepreneur, or
self-employed categories; however, Mr. Zhou was not immigrating under any of
these categories.
[5]
Mr.
Zhou submitted Schedule 4A but was unable to provide all of the documents
requested by the officer. In her decision, the officer wrote that the
applicant’s failure to adequately account for his net worth made it impossible
for her to complete a comprehensive and proper assessment of his
admissibility. The basis for the decision reached is summarized in the
following passages from the officer’s letter, dated February 12, 2010:
In order for your application to
succeed, you must satisfy me that you meet all of the requirements of IRPA and
the regulations, including a determination that you are not a member of an
inadmissible class of persons described in subsections 34-42. Your failure to adequately
account for the origins of your net worth makes it impossible for me to
complete a comprehensive and proper assessment of admissibility in your case.
Subsection 16(1) of the Immigration
and Refugee Protection Act requires that a person who makes an application
must answer truthfully all questions put to them for the purposes of the
examination and must produce all relevant evidence and documents that the
officer reasonably requires. You do not meet these requirements because you
have not complied with my request for evidence to satisfy me that your personal
net worth and income were derived from legal and legitimate sources.
…
Subsection 11(1) of the Act
provides that a foreign national must, before entering Canada, apply to an officer for a visa or 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.
Based on the information that is
available, I am not satisfied that you are not inadmissible and that you meet
the requirements of the Act for the reasons explained above. I am therefore
refusing your application.
[6]
The
relevant statutory provisions are reproduced in Annex A.
[7]
The
applicant challenges this decision on a number of grounds including the reasonableness
of the request to submit additional documents, the sufficiency of the reasons
provided, the jurisdiction of the officer to refuse his application in light his
acceptance as a provincial nominee, and the jurisdiction of the officer to
refuse the visa based on ss. 11 and 16 of the Act.
[8]
The
respondent cited Chang v Canada (Minister of Citizenship and Immigration),
2002 FCT 531 at para 7, and Anfu v Canada (Minister of Citizenship and
Immigration), 2002 FCT 395 at paras. 18 and 23, in support of its
submission that this Court has “consistently held that a visa officer has both
the right and the duty to require an applicant to produce documents which the
officer believes are necessary for him or her to consider an application”.
[9]
I
agree with the applicant that care must be taken in relying on these decisions.
First, they both involved visa applications under the investor category, unlike
the application at hand. Second, and more importantly, both decisions refer
and rely upon the 1999 decision of this Court in Biao v Canada (Minister of
Citizenship and Immigration), 177 F.T.R. 190 (T.D.), aff’d 2001 FCA 43,
which in turn relied on a decision of Justice Rothstein, as he then was, in Kaur
v Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 756
(T.D.). These decisions considered the language of s. 9(3) of the former Immigration
Act, R.S.C. 1985, c. I-2 which, in relevant part, provided that “every
person … shall produce such documentation as may be required by the visa
officer for the purpose of establishing that his admission would not be
contrary to this Act or the regulations.” Section 16(1) of the current Act
provides, in relevant part, that an applicant must produce “all relevant
evidence and documents that the officer reasonably requires” [emphasis
added]. Accordingly, it is no longer the case that an officer has unfettered
discretion in demanding documents from an applicant; the request is subject to
review if there is an allegation that the decision was based on the failure to
provide documents requested where they were not reasonably required.
[10]
Notwithstanding
the addition of a reasonableness test, I reject the applicant’s submission that
the officer’s request that the applicant
submit Schedule 4A and the associated documents was unreasonable. The request
for further documentation related to concerns surrounding admissibility and,
contrary to the applicant’s submission, did not violate s. 15(2) of the Act,
which provides that examination of whether a foreign national complies with
applicable selection criteria shall be conducted solely on the basis of
documents delivered by the province. Although Schedule 4A is normally used for
applicants in the business, entrepreneur, or self-employed class, in this case
Schedule 4A was being used as a means to provide information and documents to
the officer in order that she could determine whether or not the applicant was
inadmissible pursuant to ss. 34 to 42 of the Act, independently of the
requirements of the Provincial Nominee Program. The applicant’s objection
amounts to a focus on form over substance.
[11]
The applicant says that the
refusal of his application appears to be based on an alleged inadequacy in his explanation
as to the origins of funds, but that the origin of funds is neither a selection
criteria nor an inadmissibility factor. The applicant says that the negative
decision must have been based on inadmissibility considerations but the officer
made no specific finding that the applicant was inadmissible; rather the
officer stated that an admissibility determination is not possible because of
the lack of information.
[12]
The applicant says that because
the officer did not find him inadmissible, the refusal decision must be set
aside because the officer lacked the jurisdiction to refuse the application.
He relies of the obiter comments of Justice Kelen in Chen v Canada (Minister of Citizenship and Immigration), 2007 FC 41, where he stated, at
paragraph 18, that:
Paragraph 9(1)(a)
of the Act provides that the applicant shall be granted permanent resident
status because he met the Québec selection criteria as an investor immigration
unless found inadmissible. The visa officer did not find the applicant
inadmissible; rather, the visa officer said he could not be “satisfied that the
applicant is not inadmissible”. This is not a finding that the applicant is
inadmissible. If the visa officer concluded that Mr. Chen was not truthfully
answering questions about his source of funds as required under section 16 of
the Act, the visa officer could have found Mr. Chen inadmissible under sections
40 or 41 of the Act. He did not do so, and did not have the jurisdiction to
deny a permanent resident visa to Mr. Chen under paragraph 9(1)(a) of the Act.
[13]
The
applicant’s reliance on Chen and on Belkacem v Canada (Minister of Citizenship and Immigration), 2008 FC 375, as to the jurisdiction
of the officer to refuse a visa application absent a finding of inadmissibility
is misplaced. Both Chen and Belkacem involved decisions made by
the Province of Quebec under the Canada–Québec Accord relating to
Immigration and Temporary Admission of Aliens. Section 12(a)
of that Accord provides that “Québec has sole responsibility for the selection
of immigrants destined to that province and Canada has sole responsibility for
the admission of immigrants to that province.” Because Québec has sole
responsibility for the selection of foreign nationals who intend to reside in
that Province, s. 9(1)(a) of the Act applies. It was that provision that was
relied on by the Court in both cases as suggesting that the officer had no jurisdiction
to deny a visa absent a finding of inadmissibility.
[14]
The
agreement with British Columbia under which Mr. Zhou was nominated does not
give sole responsibility to British Columbia for selection of foreign nationals
for immigration. Section 7.1(b) of the Canada-British Columbia Immigration
Agreement provides that “Canada will have responsibility for … determining
selection criteria and selecting foreign nationals, taking into account the
role of British Columbia in nominating Provincial Nominees.” Because the
province does not have sole responsibility to select foreign nationals, s. 9(1)
of the Act does not apply. Section 9(1) provides that:
9.
(1) Where a province has, under a federal-provincial agreement, sole
responsibility for the selection of a foreign national who intends to
reside in that province as a permanent resident, the following provisions apply
to that foreign national … [emphasis added]
[15]
The
last issue raised by the applicant is whether the additional documents the
officer sought were “documents that the officer reasonably requires” within the
meaning of s. 16(1) of the Act.
[16]
To
assess whether documents are reasonably required by an officer, one must
understand why they are being requested. The applicant asserts that the
officer never stated which ground of inadmissibility in ss. 34 to 42 of the Act
was of concern and therefore the reasonableness of the request cannot be
determined.
[17]
What
the officer did clearly state to the applicant in the fairness letter was that
she was seeking evidence to satisfy her that the applicant’s “personal net
worth and income were derived from legal and legitimate sources.” It is
evident that the officer’s concerns
related to the source of the applicant’s funds and that her admissibility
concerns related to one or more of criminality, organized criminality, or
misrepresentation. On these facts, I do not accept that the officer at this
stage of her inquiry was required to specify which particular ground of
inadmissibility was of concern. The information sought was clearly relevant to
any of the three mentioned grounds and that is sufficient to establish that it
was reasonably required.
[18]
I agree with the applicant that
asking the applicant to provide documents from previous employers showing the
employers’ profitability may be an unreasonable request given that the
applicant was a mere employee and not a shareholder or director of those
businesses. However, the applicant provided an explanation in each case where
he was unable to provide a document and the officer appears to have considered
and accepted those explanations. The officer writes:
I
have taken into account your explanation that some of the documents are no
longer available due to the passage of time and to the fact that the companies
operating from 1994 to 2000 have closed down, yet the complete absence of any
third party, reliable financial evidence of the origins of your income during
those years remains a concern. Furthermore, you have not provided satisfactory
evidence of the regular accumulation of your personal savings as required.
In any event, the denial of the visa was
not based on the refusal or inability to provide this information.
[19]
The
officer was concerned about the origin of the income from that period because
the applicant asserted that in 2000 he established a company with a total
personal investment of RMB400,000. This company’s assets have increased
significantly and his share is now valued at more than RMB2,000,000.
[20]
The
applicant stated that he earned approximately RMB700,000 between 1994 and 1999
from his employment with Gaoyou Nanjiao Materials Supplying and Marketing Company
and RMB650,000 between 1998 and 2000 from his employment with Gaoyou Tianyu
Packaging Factory.
[21]
The
applicant was asked to provide documents showing the accumulation of his
personal savings from 1978 to the present. In response he wrote:
Because
I was used to consume in cash on most occasions, I only have a few current
accounts. Furthermore, the computer system of local bank in Gaoyou City, P.R. China is keeping updating, so the transaction record of the past cannot be
inquired. Therefore, I can only provide the history record of the following
three current accounts. [sic]
None of the information presented pre-dates
2009.
[22]
The
applicant submits that the officer acted unreasonably in failing to consider
the evidence presented and the explanations offered when the documents
requested were not available. In my view, the applicant’s disagreement is with
the assessment of the weight the officer gave to the information that he did provide.
The applicant was effectively asking the officer to accept his word that he had
earned and saved the necessary funds from his employment in the years preceding
the incorporation of his business in order to invest in his business, without
offering any objective support for that assertion. Given the little
information the applicant was able to provide to the officer, the decision that
the officer reached, that she was unable to satisfy herself that his income and
assets were derived from legal and legitimate sources, cannot be said to be
unreasonable.
[23]
For
these reasons the application must be dismissed.
[24]
The
applicant proposes three questions for certification. The respondent opposes
certification of any of them.
[25]
The
first two questions proposed are:
1. Does a visa
officer have jurisdiction to refuse an accepted provincial nominee under
paragraph 9(1)(a) of the Immigration and Refugee Protection Act in the
absence of an admissibility finding?
2. Does paragraph
9(1)(a) create an exception to the power of a visa officer to refuse an
accepted provincial nominee under ss. 11(1) and 16(1) of Immigration and
Refugee Protection Act?
[26]
Having
found that s. 9(1) of the Act does not apply to the facts of this case because British Columbia does not have sole authority to select immigrants, the questions posed
would not be dispositive of an appeal.
[27]
The
third question proposed is:
3. Is it
reasonable for a visa officer to require a skilled worker or non-business
category applicant to obtain from his former employer business documents such
as financial statements and tax statements to prove the profitability of the
employer’s company in relation to the applicant’s source of funds?
[28]
The
response to the proposed question would only be dispositive of an appeal in
this case if the officer had refused the visa because the applicant had failed
to provide the information referenced in the question. In this case, the
officer’s decision was not based on the failure to provide that information but
the lack of other information showing the applicant’s accumulation of wealth;
the question would thus not be dispositive of an appeal.
[29]
As
the questions would not be dispositive of an appeal, they are not proper
questions to certify: Zazai v Canada (Minister of Citizenship and
Immigration), 2004 FCA 89.
JUDGMENT
THIS COURT’S JUDGMENT is
that this
application is dismissed and no question is certified.
“Russel W. Zinn”
ANNEX A
Immigration and Refugee Protection Act, S.C. 2001, c. 27
Loi sur l’immigration et la protection des réfugiés, C.S. 2001,
ch. 27
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9.
(1) Where a province has, under a federal-provincial agreement, sole
responsibility for the selection of a foreign national who intends to reside
in that province as a permanent resident, the following provisions apply to
that foreign national, unless the agreement provides otherwise:
(a)
the foreign national, unless inadmissible under this Act, shall be granted
permanent resident status if the foreign national meets the province’s
selection criteria;
...
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 may 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) 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.
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9.
(1) Lorsqu’une province a, sous le régime d’un accord, la responsabilité
exclusive de sélection de l’étranger qui cherche à s’y établir comme résident
permanent, les règles suivantes s’appliquent à celui-ci sauf stipulation
contraire de l’accord :
a)
le statut de résident permanent est octroyé à l’étranger qui répond aux
critères de sélection de la province et n’est pas interdit de territoire;
...
11.
(1) L’étranger doit, préalablement à son entrée au Canada, demander à l’agent
les visa et autres documents requis par règlement. L’agent peut les délivrer
sur preuve, à la suite d’un contrôle, que l’étranger n’est pas interdit de
territoire et se conforme à la présente loi.
...
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 éléments de preuve pertinents et présenter les visa et
documents requis.
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