Date:
20120920
Docket:
IMM-1444-12
Citation:
2012 FC 1099
Ottawa, Ontario,
September 20, 2012
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
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LI ZHI LI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant seeks judicial review of a decision of Immigration Officer S. M.
Board (Officer), dated November 15, 2011, refusing the applicant’s application
for a temporary resident visa and finding the applicant inadmissible pursuant
to section 40(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c
27
(IRPA). For the
reasons that follow the application is dismissed.
Facts
[2]
The
applicant, Li Zhi Li, is a citizen of China. He was invited to visit Canada by his son who is a permanent resident. He applied for a temporary resident visa
(TRV) on three occasions and has been refused each time, the most recent of
which is the subject of this application.
[3]
The
third application for a TRV was initially denied on August 13, 2010. The
applicant applied for judicial review of that refusal and the respondent
consented to refer the application back for re-determination. The applicant
was invited to make updated submissions for the application in December 2010,
but since the application had been returned to the applicant in its entirety,
the applicant submitted a new TRV application.
[4]
As
indicated by the Computer Assisted Immigration Processing System (CAIPS) notes,
in January 2011, a visa officer noticed that the property certificates appeared
unusual and referred the application to the Anti-Fraud Unit. An investigation
confirmed the certificates to be inauthentic. An immigration officer sent the
applicant a letter, dated April 25, 2011, giving him the opportunity to respond
to this issue.
[5]
In
response to this letter (the “fairness letter”), the applicant states that he
submitted a response to prove that he did in fact own the two properties. He
states that he submitted hydro bills, and demolition documents for one
property. He states that he did not keep copies of those documents and they
were never returned to him.
[6]
The
Officer refused the application on the following grounds: he was not satisfied
the applicant or his son had sufficient funds for the applicant’s visit; he was
not satisfied that the applicant was sufficiently established in China to leave
at the end of his authorized stay in Canada; and the applicant had submitted
inauthentic documents in support of his application.
[7]
The
Officer sent an additional letter on the same date, finding that the applicant
misrepresented a material fact that could have induced an error in the
administration of the IRPA. The Officer found that the applicant
misrepresented his property holdings, submitted as evidence of his level of
establishment and ties in China. The Officer therefore found the applicant
inadmissible for a period of two years, pursuant to section 40(1)(a) of the IRPA.
[8]
In
the CAIPS notes the Officer reviewed the history of the application, noted the
discovery of the fraudulent documents, and further noted that the applicant did
not respond to the April 25, 2011 fairness letter. Regarding the applicant’s
level of establishment, the Officer noted that he had a spouse in China but also noted he had a son in Canada and therefore his family ties were split. Furthermore,
the fact that the applicant submitted inauthentic property documents undermined
his credibility as a genuine visitor. The application was therefore refused
and the applicant was found inadmissible.
Standard of Review and Issue
[9]
In
issue is whether the Officer breached the principles of procedural fairness
and, if not, whether the Officer’s decision was reasonable.
[10]
Matters
of procedural fairness are reviewable on a standard of correctness: Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339,
whereas the
merits of the decision are reviewable on a standard of reasonableness.
Analysis
Did the Officer breach the principles of
procedural fairness?
[11]
The
applicant submits that the Officer breached the duty of fairness by relying on
extrinsic evidence in reaching his decision. While the applicant was advised
that there was a concern about the authenticity of the property certificates the
Officer did not disclose the evidence on which this concern was based and thus
did not provide the applicant an opportunity to respond to the concerns.
[12]
The
respondent argues that the Officer complied with the duty of fairness by
raising the concern about the property certificates to the applicant. The
respondent submits that the Officer was not required to disclose the specific
evidence underlying the concern to comply with procedural fairness. The
respondent emphasizes that, in any event, the applicant submitted no response
to the procedural fairness letter and therefore it was open to the Officer to
find the applicant inadmissible.
[13]
I
agree with the respondent that the Officer’s letter informed the applicant of
the suspicion that he submitted a fraudulent property certificate and therefore
was sufficient to comply with the duty of fairness. The letter informed the
applicant of the case to meet and gave him an opportunity to respond: Baybazarov
v Canada (Minister of Citizenship and Immigration), 2010 FC 665. The onus
rested on the applicant to respond to those concerns.
[14]
The
applicant’s son states in his affidavit that the applicant submitted hydro
bills and the demolition agreement for one of the properties as further proof
of his ownership. Documents matching that description can be found in the
Certified Tribunal Record at pages 24-37. They are undated and unsigned.
There is no identification of date of receipt. Nor did the applicant keep
copies of the documents themselves or documents establishing transmittal. The
applicant contends however, that a response was provided, and was not
considered by the Officer.
[15]
In
my view, this evidence did not respond to or discharge the onus on the
applicant to respond to the fairness letter: Mei v Canada (Citizenship and Immigration), 2009 FC 1040. It was incumbent on the applicant,
having been told that there were reasonable grounds to believe that the
documents were not authentic, to respond, both to the substance of the concern
and to ensure that the process by which the response was delivered was
effective.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review be
and is hereby dismissed. There is no question for certification.
"Donald J.
Rennie"
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