Date: 20100217
Docket: IMM-3857-09
Citation: 2010 FC 162
Toronto, Ontario, February 17, 2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
NI,
ANLING
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a decision of a visa officer rejecting
the applicant's application to immigrate to Canada as a member of the Provincial Nominee
Class. The officer determined that the applicant had misrepresented himself
and was therefore inadmissible.
[2]
Despite
the able submissions made by counsel on behalf of the applicant, this
application for judicial review is denied.
BACKGROUND
[3]
Anling
Ni is a citizen of China. On May 30, 2008, he applied to immigrate to Canada as a member
of the Provincial Nominee Class.
[4]
On
January 23, 2009, Mr. Ni received correspondence from the officer informing him
that his application had been reviewed, but that there were reasonable grounds
to believe that he had failed to answer truthfully on his application.
Specifically, the officer was concerned with the authenticity of the income tax
certificate provided by Mr. Ni.
[5]
The
officer advised Mr. Ni that he contacted the local tax office which had purportedly
issued the income tax certificate. It informed him that both the stamp and the
letterhead that appeared on the tax certificate were not authentic. The
officer’s note on this reads as follows:
Contacted the Branch at 021-65079263.
Ms. Wu answered the phone. She requested to send a fax to them to the same
telephone number. Called Ms. Wu again after sending a fax to them. Ms. Wu
confirmed that the tax certificate was not issued by them. She further
informed that their stamp of the branch is not in that way and their letterhead
of the certificate letter is not in that way either. So the certificate should
be counterfeit. [Emphasis added]
[6]
The
officer wrote to Mr. Ni on January 23, 2009, informing him that “I have grounds
to believe that you have submitted a fraudulent individual income tax
certificate as proof of your income from 2004 to 2008.” He provided the
applicant with an opportunity to respond and make representations within 30
days.
[7]
The
company that was acting as the applicant’s immigration consultant responded under
cover of February 23, 2009, submitting the following:
a.
An
Investigation Certificate issued by the National Tax Bureau of Hongkou Branch
of Shanghai
City;
b.
A
Tax Certificate issued by National Tax Bureau of Hongkou Branch of Shanghai City; and
c.
A
Declaration made by Mr. Ni.
[8]
The
Investigation Certificate stated that the local tax office was not qualified to
issue the tax certificate in question to foreign countries, but stated that the
original tax certificate “was truly issued by our No. 11 tax branch office.”
The Tax Certificate was effectively a reissue of information provided in the
original suspect tax certificate. In his declaration, Mr. Ni states that he
was given a regular tax certificate because he did not inform the office that
the certificate was for foreign purposes. Mr. Ni states that he later learned
that tax certificates for foreign purposes must be issued by a more senior tax
office. Mr. Ni also states that he learned, from speaking with the local tax
office, that his original tax certificate was deemed not authentic because the
stamp became obscured in the faxing process. Mr. Ni further states that the
letterhead on the original certificate was put there at his request, on the
advice of his immigration consultant.
[9]
On
May 17, 2009, the officer wrote Mr. Ni informing him that he was not satisfied
with his response, and that his application was rejected. The officer
determined that the applicant was inadmissible under s. 40(1)(a) of the Immigration and Refugee
Protection Act,
R.S.C. 2001, c. 27 because he submitted a fraudulent tax certificate as proof
of his legally accumulated income.
Section 40(1)(a) provides as follows:
|
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;
|
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;
|
[10]
The
officer in his letter outlined the same concern with respect to the income tax
certificate as had been previously stated and continued: “You were given an
opportunity to address these concerns but your reply did not alleviate my
concerns.”
[11]
The
officer's reasons for rejecting the applicant's explanations are not contained
in the May 17, 2009 letter; these reasons can be found in the officer's notes.
The officer found that it was not credible that the local tax office would
state that the certificate was not issued by them solely on the basis that the
stamp appeared distorted. The officer also found that it was not credible that
the local tax office would put a letterhead on the certificate at the request
of the applicant. The officer also stated that it was not clear why the
applicant asked the local tax office to issue the certificate instead of going
directly to the higher office, as he later did. The officer concluded that the
applicant's “response is not credible and appears self-serving.”
ISSUE
[12]
The
applicant submitted one issue to the Court: Did the Visa Officer err in determining
that the applicant was inadmissible under paragraph 40(1)(a) of the Act because
the applicant submitted a fraudulent individual income tax certificate as proof
of his legally accumulated income from 2004 to 2008?
ANALYSIS
[13]
Both
parties agree that the standard of review is reasonableness.
[14]
The
applicant submits that he gave a full and complete answer to the officer's
concerns and submits that the officer's credibility finding was capricious in
that it ignored or inadequately addressed the investigation certificate
provided by the national tax office as well as the re-issued tax certificate.
The applicant further submits that the officer erred by stating that the tax
certificate was provided as proof of the applicant's income. In his memorandum
the applicant also submits that the officer erred by noting that the stamps on
the investigation certificate and the re-issued certificate were the same as
the original certificate when in fact they were different. This was not
pursued in oral argument. The applicant is correct in this observation;
however, it was not material to the officer's decision and therefore does not
amount to a reviewable error.
[15]
The
applicant submits that a high degree of fairness is owed when making
misrepresentation findings: Menon v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1273. He submits that the officer did
not provide sufficient fairness to him.
[16]
The
applicant also submits that his case is analogous to Guo v. Canada (Minister of
Citizenship and Immigration), 2006 FC 626, where judicial review was granted
by this Court.
[17]
I do
not accept the submission that the officer erred in stating that the tax certificate was
provided as proof of the applicant's income. The applicant's employment status
and the fact that he had paid taxes were relevant to the legitimacy of his
income, which in turn was relevant to his admissibility under the Provincial
Nominee Class. In his notes the officer writes: “This misrepresentation was
made so that the applicant could demonstrate that his income from 2004 to 2008
was accumulated by legal means and thus he could appear to have met the
requirements for obtaining a permanent resident visa as a provincial nominee.”
I agree. The certificate was provided not to support the amount of income made
in those years but to support his position that the income was generated
legitimately, a requirement of the Canadian authorities, and thus it was
provided as proof of the applicant’s income.
[18]
I
agree with the applicant that a high degree of fairness is required in
misrepresentation determinations. This is why the officer sent the applicant a
procedural fairness letter expressly raising his concerns and permitting the
applicant to file a response. This is what fairness required in the
circumstances and the officer met that burden. It does not require that the
officer blindly accept the response to the fairness letter without question.
The officer is required to assess whether the response satisfies and alleviates
his concerns. That decision is reviewed, as stated, on the reasonableness
standard.
[19]
The
officer determined that the applicant had submitted a non-authentic tax
certificate in support of his application, and he was not satisfied with the
clarification provided by the applicant. Specifically, the officer says that
his initial concerns are not addressed because:
1.
He
found it not credible that the local tax office would inform him that the
original certificate was not issued by it “only because the stamp appeared
distorted”, as the applicant said;
2.
He
found it was not credible that the local tax office would put a letterhead on
the certificate only because the applicant asked it to do so; and
3.
It
was not clear why the applicant would go to the local tax office initially to
obtain the certificate rather than the higher level officer as he did when he
received the fairness letter.
[20]
I
find the first two findings on credibility or implausibility are reasonable
based on the material before the officer. The documents did not address the
plausibility of the local tax office rejecting the original tax certificate on
the basis of how the office's stamp appeared in the fax transmission from the
officer, nor did they explain the plausibility of the local tax office putting
a false letterhead on the original tax certificate at the request of the
applicant.
[21]
These
findings undoubtedly weighed in the officer’s assessment of the third point
above. The applicant explained that he did not know he needed to go to a
higher authority to obtain a tax certificate for foreign immigration purposes.
Given his earlier findings, the officer found the response to be “not credible
and self-serving.” That finding was reasonably open to him based on the
record.
[22]
This
case is distinguishable from Guo. In Guo, Justice Harrington
held that “there was simply no evidentiary record to allow the
immigration officer to disbelieve the applicant, and consequently he granted
the application for judicial review. In this case, there was an evidentiary
record upon which the officer could disbelieve the applicant. The question is
not whether this Court would reach the same decision if faced with the same
evidence, but whether the officer's decision was reasonable.
[23]
Faced
with an applicant who, at best, provided an improper, if not fraudulent tax
certificate in support of his application, it was open to the officer to weight
the supplementary documentation accordingly. The officer provided a
transparent and intelligible justification of why he doubted the applicant's
response to his January 23, 2009 letter. The officer's credibility
determination clearly fell within the range of possible outcomes which were
defensible in respect of the facts and law of this case. It cannot be said
that the officer's credibility determination was unreasonable.
[24]
For
these reasons this application is dismissed.
[25]
Neither
party proposed a question for certification and in my view there is none.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. This
application for judicial review is denied; and
2. No
question is certified.
"Russel W. Zinn"
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