Date: 20080520
Docket: IMM-3537-07
Citation: 2008 FC 625
Vancouver, British Columbia, May 20, 2008
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
YING
QUAN LU
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 by Manager Brian Beaupre at
the Canadian Consulate General in Hong Kong dated July 6, 2007, refusing the Applicant’s
application for permanent residence in Canada. Mr. Beaupre concluded that the Applicant
misrepresented the legality of his accumulated personal net worth and business
and was therefore inadmissible to Canada on grounds of misrepresentation under
paragraph 40(1)(a) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27.
I. Background
[2]
Mr. Lu is a 46-year-old citizen of the People’s Republic of China. On
May 23, 2005, he filed an application for permanent residence in Canada
under the economic class, investor category. He is the general manager of the
New Western City Water-washing Factory in Xintang, China. He listed a personal
net worth of CDN $1.2 million as of the lock-in date of May 23, 2005.
[3]
A visa officer concluded that a verification of the documents submitted
with the application was required and the Quality Assurance (QA) unit was asked
to verify the authenticity of: (1) the existence of the Applicant’s business; (2)
his role in that business; and (3) an audit report issued by Guangzhou Zengxin
Certified Public Accountants Co. Ltd. (the CPA firm), which had been submitted
by the Applicant with his visa application.
[4]
On April 19, 2007, the visa officer received a verification report from
the QA unit, which revealed a concern regarding the authenticity of the CPA
firm’s audit report, which it found to be fraudulent. The verification form in
the Certified Record summarizes its finding as follows:
03Apr07: We
have contacted this CPA firm in the past. I called the CPA firm and talked to
Ms. Deng and faxed the audit report to her for checking.
15:56pm: I
called Ms. Deng and she confirmed that the audit report was not issued by them.
She said that the stamp was a bit too small and the auditor Li Lian Hua should
have left in 2002. Ms. Deng mentioned that Li was about 70-80 years old and it
was not possible for him to sign an audit report dated in 2005. This is because
he is overage and not qualified to sign an audit report. In addition, an audit
report required two signatures and this one had one signature.
[5]
In response to the verification report, the visa officer issued the
Applicant a letter of concern, dated May 7, 2007, which stated in part:
This is to
advise you of my serious concern that you do not appear to qualify for
selection as an investor. I note that when [sic] Guangzhou Zengxin Certified
Public Accountants Co. Ltd., the CPA firm confirmed that they did not issue the
No. 1212 audit report which you submitted with your application. I was also
informed that the CPA, whose name appeared as the preparer of the report, has
already retired and has no authority to sign an audit report. This led to my
concern on the legality and legitimacy of the accumulation of your personal net
worth.
I would
therefore request that you send me any information or documents which you
consider might respond to this concern within sixty (60) days. I must also
advise you that failure to disabuse me of my concern could lead to the refusal
of your application pursuant to subsections 11(1) and 16(1) of Canada’s Immigration
and Refugee Protection Act.
[6]
On June 26, 2007, the Applicant responded by forwarding a letter from
the CPA firm addressing the visa officer’s concerns by describing the situation
as a misunderstanding. Specifically, the letter from the CPA firm stated:
Our accounting firm has been
serving Mr. Lu Yingquan [sic] as accountant and auditor of his accounting
statements for many years. As our accountant previously serving Mr. Lu is of
old age and has been retired already. When your representative called us for
inquiry, the person who received the call was not well informed and therefore
replied that there was no such person he asked for. This has caused a big
misunderstanding. We are very sorry about it. We are writing this letter to
express our apology for this.
[7]
The Applicant’s response also included audit reports from 2005 and 2006,
as well as information relating to the Applicant’s son, who had been studying
in Canada since January 2007.
[8]
On July 3, 2007, the visa officer considered the Applicant’s additional
submissions, including the letter provided by the CPA firm. In the Computer
Assisted Immigration Processing System notes (the CAIPS notes), the visa
officer recorded the following observations:
Response from
applicant reviewed. Applicant failed to address the concern that the audit
report No. 1212 being fraudulent. When the CPA firm was contacted, the firm
confirmed that they did not issue the aforementioned audit report. In addition,
the CPA whose name appeared on the report has already retired in 2002. Noted
that the report was issued in 2005. In response to the concern raised,
applicant submitted a report for a different time period. Applicant also
submitted a ltr from the CPA firm stating that it was a misunderstanding.
However, we have been doing verification with the said CPA firm in the past and
have been clearly told that the report was fraudulent.
[9]
Accordingly, the visa officer forwarded the Applicant’s file to Manager
Beaupre for consideration of whether the Applicant should be found inadmissible
for misrepresentation under paragraph 40(1)(a) of the Act. After reviewing the
file, Manager Beaupre concluded that a misrepresentation had occurred and that
the Applicant was inadmissible.
[10]
The Applicant was notified by letter of July 6, 2007, that his
application for permanent residence had been refused. The letter stated, in
part:
On your
application we received on May 23, 2005, you misrepresented or withheld the
following material facts:
- the legality
of your accumulated personal net worth and your business.
I reached this
determination because verification of the audit report No. 1212 from
Guangzhou Zengxin Certified Public Accountants Co. Ltd. was found to be
fraudulent. You have been clearly notified of the concern on May 7, 2007. After
reviewing the additional documents you submitted on June 26, 2007 in response
to the concern raised, I am still not satisfied that the report you submitted
was not fraudulent. The misrepresentation or withholding of this/these material
fact(s) induced or could have induced errors in the administration of the Act.
II. Issues
[11]
The Applicant raises two issues for consideration:
a.
Did Manager Beaupre err in concluding that the Applicant was
inadmissible due to misrepresentation? and
b.
Did the Respondent breach the duty of fairness in arriving at the
impugned decision?
III. Standard of Review
[12]
In light of the recent Supreme Court of Canada decision in Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9 (QL), it is clear
that the standard of review of this decision is reasonableness. This implies,
as the Supreme Court held at paragraph 49 of Dunsmuir, that this Court
should give “due consideration to the determinations of decision makers” when
reaching a conclusion.
[13]
Regarding the second issue raised by the Applicant, the standard of
review is correctness. Accordingly, if a breach of procedural fairness
occurred, no deference is due and the decision will be set aside: Sketchley
v. Canada (Attorney General), 2005 FCA 404, [2006] 3 F.C.R.
392.
IV. Analysis
A. Did Manager Beaupre err in
concluding that the Applicant was inadmissible due to misrepresentation?
[14]
Subsection 12(2) of the Act states that foreign nationals may be
selected as members of the economic class on the basis of their ability to
become economically established in Canada. The evidentiary burden lies
with the Applicant. Under paragraph 40(1)(a), an applicant for permanent
residence is inadmissible to Canada for misrepresenting or withholding a
material fact. The section, which is set out below, is not dependent on whether
the misrepresentation was intentional:
|
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;
|
[15]
The Applicant argues that the recommendation of the visa officer and the
decision of Manager Beaupre are unreasonable because they were premised on
communications between the Consulate and the CPA firm that were not disclosed
within their correspondence to the Applicant, or in the CAIPS notes. As the Applicant
states in his written submissions at paragraph 16:
Review of all
the material raises questions as to when the CPA Firm was contacted, by what
means, by whom at the Immigration section, to whom did they speak with at the
CPA Firm and what exactly was said.
[16]
On this basis, the Applicant submits that the lack of detail raises
questions as to the reasonableness of the decision and the consideration given
to his response to the concerns raised.
[17]
The Applicant further argues that the letter from the CPA firm properly
addresses the concerns raised regarding the audit report, and that Manager
Beaupre had no evidentiary foundation for disbelieving either the Applicant or
the explanation provided for in the CPA firm’s letter.
[18]
The recommendation of the visa officer and the refusal of Manager
Beaupre need to be assessed against the following two considerations: (1) was
the information provided to the Applicant sufficient to adequately address the
concerns raised in the visa officer’s May 7, 2007 letter; and (2) if so, was
the Applicant’s response to the concerns such that Manager Beaupre’s conclusion
was unreasonable?
[19]
With respect to the first consideration, the record establishes that the
visa officer’s recommendation was premised on a verification report conducted
by the QA unit. The question is whether the Respondent was required to disclose
that specific information to the Applicant or whether the concerns set out in
the May 7, 2007 letter were sufficient. In my view, the letter of concern from
the visa officer sufficiently conveyed the concerns and that disclosure of the
specifics in the verification report was not required.
[20]
While the verification report from the QA unit outlined a number of
reasons why the document was considered fraudulent, the primary reason was that
it was signed by an accountant who retired in 2002, three years before the
audit report was issued. In light of this finding, the visa officer issued a
letter of concern to the Applicant, which stated that the CPA firm did not
issue the audit report in question. Further, the visa officer noted the reason
for this conclusion, stating: “I was informed that the CPA, whose name appeared
as the preparer of the report, has already retired and has no authority to sign
an audit report.”
[21]
Given these reasons, it is clear that the Applicant was being asked to
provide an explanation as to why the report was signed by an accountant who
retired sometime prior to the report’s creation. Alternatively, he could have
asked the CPA firm to confirm the validity of the audit report in question. On
this basis, I cannot find that the Applicant was given insufficient information
to be able to provide an adequate response to the query.
[22]
As noted, the Applicant also states that the decision was unreasonable
in that the response provided in the letter from the CPA firm sufficiently
addressed any concerns raised in the visa officer’s May 7, 2007 letter. Having
reviewed the letter in question, I cannot concur with that view. In order to
effectively address the visa officer’s concerns, it would have been necessary
that the letter from the CPA firm, at the very least, account for why the
report was signed by an accountant who had retired some time before the audit
report was issued.
[23]
The CPA firm’s response does not address the visa officer’s explicit
concern of why the report was signed by an accountant that had allegedly
retired before it was produced, nor does it actually confirm that the audit
report submitted by the Applicant was a true document.
[24]
On this basis, I must conclude that the CPA firm’s letter does not
adequately address the express concerns of the visa officer in the May 7, 2007
letter. Accordingly, since the visa officer provided the Applicant with a
sufficient explanation of the concern over the authenticity of the audit
report, and since the letter from the CPA firm did not adequately address those
concerns, I cannot find any reviewable error in the decision of Manager
Beaupre. For these reasons, this application cannot be allowed on grounds that
the decision was unreasonable.
[25]
The Applicant relies on the decision of Mr. Justice Harrington in Guo
v. Canada (Minister of Citizenship and Immigration), 2006 FC 626,
[2006] F.C.J. No. 795, for the proposition that the Respondent had no evidentiary
basis to disbelieve the Applicant’s explanation or the CPA letter. However,
in this case, the response simply failed to address the real concerns of the
visa officer.
B. Did the Respondent
breach the duty of fairness in arriving at the impugned decision?
[26]
The Applicant further argues that the visa officer and Manager Beaupre
breached the rules of procedural fairness in reaching the decision in question.
The argument of the Applicant was that the visa officer and Manager Beaupre did
not carefully document the reasons for their concern in their notes and did not
provide the Applicant with all the information needed to properly address those
concerns. It is submitted that in failing to properly document these concerns,
the visa officer and Manager Beaupre “unfairly limited” the Applicant’s ability
to respond to the concerns, and compromised his “ability to provide new
information or question the officer’s interpretation of the facts.”
[27]
In support, the Applicant relies on the decision of Mr. Justice Gibson
in Menon v. Canada (Minister of Citizenship and Immigration),
2005 FC 1273, 53 Imm. L.R. (3d) 85. In that case, Mr. Justice Gibson recognized
that a high degree of fairness is required when assessing whether the applicant
committed a misrepresentation in his or her application for permanent
residence. I agree. However, the duty of fairness is properly satisfied
where the applicant is given a reasonable opportunity in all of the circumstances
to meaningfully participate in the decision-making process: Haghighi v. Canada
(Minister of Citizenship and Immigration), [2000] 4 F.C. 407 (C.A.).
[28]
In this case, concern was raised over the authenticity of the audit
report submitted by the Applicant as proof of his accumulated net worth. As I
have already concluded, the visa officer properly conveyed these concerns to
the Applicant in the letter of concern dated May 7, 2007. In my view, this
letter and the 60 days that the Applicant was given to respond to those very
specific concerns was sufficient to give him a reasonable opportunity to
meaningfully address the concerns raised. Accordingly, I cannot find that the Applicant’s
procedural rights were breached in reaching the decision at issue.
V. Conclusion
[29]
On this basis, and for the foregoing reasons, this application for judicial
review must be dismissed.
[30]
I must add that it was truly unfortunate for Mr. Lu that no one provided
the response to the Consulate that was attempted by his counsel to be included
in the Record before this Court, namely, an affidavit from the CPA firm
attesting that the 2005 audit report that was being questioned was bona fide.
As was agreed to by all at the hearing of this matter, that affidavit did not
form part of the record before the decision-maker and cannot form part of the
record before this Court. However, as was also agreed to by all, had that
affidavit been submitted in response to the query of the visa officer, Mr. Lu’s
application would most likely have been accepted by the Manager. The fact that
it was not submitted prior to the decision being rendered is not, in any part,
the fault of the Respondent, nor can it change this Court’s decision. However,
should Mr. Lu decide to submit another application, I trust that these reasons
and the affidavit of the CPA firm that was attempted to be filed here will be
included with that application as evidence that despite the findings of the Manager,
the 2005 audit report was valid.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. This
application for judicial review is dismissed; and
2. There
is no certified question.
“Russel
W. Zinn”
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