Date:
20130503
Docket:
IMM-6269-12
Citation:
2013 FC 465
Ottawa, Ontario,
May 3, 2013
PRESENT: The
Honourable Mr. Justice Scott
BETWEEN:
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CHENGZE ZHOU
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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
I. Introduction
[1]
This
is an application by Mr. Chengze Zhou (the Applicant) for judicial review of a
decision rendered by immigration officer Jaylene Hamilton (the Officer) on May
23, 2012, wherein the Officer, pursuant to paragraph 179(b) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 [IRPR], refused the
Applicant’s application for a temporary resident visa (the Application) on the
basis that she was not satisfied he would leave Canada at the end of his
authorized stay.
[2]
For
the following reasons, this application for judicial review is dismissed.
II. Facts
[3]
The
Applicant is a 56-year-old citizen of the People’s Republic of China (PRC). On or about May 17, 2012, the Applicant applied for a temporary resident visa
for the stated purpose of business exploration in Canada.
[4]
On
or about May 23, 2012, the Officer considered the Application and the
supporting documents submitted by the Applicant. The Officer entered the
reasons for her refusal in the Global Case Management System (GCMS) and
determined that the Applicant was not a genuine visitor who would leave at the
end of his authorized stay.
[5]
The
Officer’s reasons for refusing the Applicant’s Application, as entered in the
GCMS, read as follows:
Applicant seeks entry for exploratory visit to Canada. Applicant has limited previous travel. Applicant has submitted limited evidence in
support of his ability to invest in Canada (largely in form of unverifiable
photocopied documents and poor quality computer generated print outs).
Applicant has submitted limited evidence of personal establishment in PRC. Bank
docs show mostly large recent lump sum deposits which appear incommensurate
with stated income, evidence of funds history are [sic] computer
generated print outs with no verifiable security features. Other docs in
support of establishment are largely in the form of photocopies with no
verifiable security features. I am not satisfied that the applicant is a
genuine visitor to Canada who will depart Canada at the end of the period for
authorized stay.
[6]
The
Officer advised the Applicant that his Application was refused by letter dated
May 23, 2012.
III. Legislation
[7]
Subsections
11(1), 20(1) and 22(1) of the Immigration and Refugee Protection Act, SC 2001,
c 2, and section 179 of the IRPR provide as follows:
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Immigration
and Refugee Protection Act, SC 2001, c 27
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Loi
sur l'immigration et la protection des réfugiés, LC 2001, c 27
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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.
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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.
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20.
(1) Every foreign national, other than a foreign national referred to in
section 19, who seeks to enter or remain in Canada must establish,
. . .
(b) to become a
temporary resident, that they hold the visa or other document required under the
regulations and will leave Canada by the end of the period authorized for
their stay.
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20.
(1) L’étranger non visé à l’article 19 qui cherche à entrer au Canada ou à y
séjourner est tenu de prouver :
[…]
b) pour devenir un résident
temporaire, qu’il détient les visa ou autres documents requis par règlement
et aura quitté le Canada à la fin de la période de séjour autorisée.
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22.
(1) A foreign national becomes a temporary resident if an officer is
satisfied that the foreign national has applied for that status, has met the
obligations set out in paragraph 20(1)(b) and is not inadmissible.
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22.
(1) Devient résident temporaire l’étranger dont l’agent constate qu’il a
demandé ce statut, s’est déchargé des obligations prévues à l’alinéa 20(1)b)
et n’est pas interdit de territoire.
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Immigration
and Refugee Protection Regulations, SOR/2002-227
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Règlement
sur l'immigration et la protection des réfugiés, DORS/2002-227
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179.
An officer shall issue a temporary resident visa to a foreign national if,
following an examination, it is established that the foreign national
(a)
has applied in accordance with these Regulations for a temporary resident
visa as a member of the visitor, worker or student class;
(b)
will leave Canada by the end of the period authorized for their stay under
Division 2;
(c)
holds a passport or other document that they may use to enter the country
that issued it or another country;
(d)
meets the requirements applicable to that class;
(e)
is not inadmissible; and
(f)
meets the requirements of subsections 30(2) and (3), if they must submit to a
medical examination under paragraph 16(2)(b) of the Act.
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179.
L’agent délivre un visa de résident temporaire à l’étranger si, à l’issue
d’un contrôle, les éléments suivants sont établis :
a) l’étranger en a fait,
conformément au présent règlement, la demande au titre de la catégorie des
visiteurs, des travailleurs ou des étudiants;
b) il quittera le Canada à la
fin de la période de séjour autorisée qui lui est applicable au titre de la
section 2;
c) il est titulaire d’un
passeport ou autre document qui lui permet d’entrer dans le pays qui l’a
délivré ou dans un autre pays;
d) il se conforme aux exigences
applicables à cette catégorie;
e) il n’est pas interdit de
territoire;
f) s’il est tenu de se soumettre
à une visite médicale en application du paragraphe 16(2) de la Loi, il
satisfait aux exigences prévues aux paragraphes 30(2) et (3).
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IV. Issues and standard of review
A. Issues
1. Did
the Officer err in refusing the Applicant’s Application?
2. Did
the Officer breach the duty of procedural fairness in failing to notify the
Applicant of her concerns regarding his Application?
B. Standard of review
[8]
The
standard of review for a visa officer’s refusal to issue a temporary resident
visa because the officer does not believe an applicant would leave Canada after
his or her authorized period of stay is reasonableness (see Doret v Canada (Minister
of Citizenship and Immigration), 2009 FC 447 at para 19). Visa officers are
recognized as having expertise in assessing applications for temporary resident
visas, and the Court must, therefore, show deference to their decisions on
judicial review (see Ngalamulume v Canada (Minister of Citizenship and
Immigration), 2009 FC 1268 at para 16).
[9]
The
question of whether the Officer should have notified the Applicant of her
concerns regarding the adequacy or credibility of the documents he provided
raises natural justice or procedural fairness issues. Where such issues arise,
no deference is due and the Court must verify whether the requirements of
procedural fairness have been followed (see Lawal v Canada (Minister of Citizenship
and Immigration), 2008 FC 861 at para 15; C.U.P.E. v Ontario (Minister
of Labour), 2003 SCC 29 at para 100, [2003] 1 S.C.R. 539; Jin v Canada (Minister
of Citizenship and Immigration), 2008 FC 1129, at para 13). That said, the
level of procedural fairness owed by the Officer in this case was minimal (see Cha
v Canada (Minister of Citizenship and Immigration), 2006 FCA 126 at para 23,
[2007] 1 FCR 409; Zhang v Canada (Minister of Citizenship and Immigration),
2006 FC 1381 at para 37).
V. Parties’ submissions
A. Applicant’s submissions
[10]
The
Applicant alleges that the Officer committed a reviewable error by failing to
consider all of the evidence before her and provide adequate reasons for not
issuing the visa. The Applicant notes that the fact that it was necessary for
the Officer to elaborate on her reasons for refusing the visa in an affidavit
is indicative of their inadequacy (see for example Ogunfowora v Canada (Minister
of Citizenship and Immigration), 2007 FC 471, and Canada (Minister of Citizenship
and Immigration) v Wong, 2009 FC 1085).
[11]
The
Applicant further submits that the Officer’s decision is unreasonable in light
of the nature and volume of the documents filed with his visa application. The
documents in question included the following: notarized copies of the
business licences for Ziyun Real Estate Developments Co., Ltd. (Ziyun) and
Huayang Capital Investments Co., Ltd. (Huayang); the articles of association
for both of the above-mentioned companies along with the balance sheet for
Ziyun, which indicates, among other things, that the value of the Applicant’s
share of the equity in Ziyun is at least CAD$7.31 million; a survey posted on
the government of Liaoning province’s website indicating that Ziyun is the
number two real estate development firm in Anshan City; and a notarized copy of
the Applicant’s property certificate.
[12]
The
Officer’s conclusion that the amounts deposited as a lump sum in his bank
account were incommensurate with his stated income ignores the fact, it is
argued, that the Applicant’s stated wage does not reflect his asset level as a
high net worth business owner. Furthermore, the Officer’s conclusion that the
Applicant had limited travel experience was unfair, given that his passport was
issued in January 2010 and he had travelled to Korea and Japan in August 2011
and made a six-country trip to Europe (with stops in Italy and Geneva) in
January 2012.
[13]
In
addition, the Applicant argues that he received invitations from “credible
officers” in British Columbia who had themselves conducted a due diligence investigation
regarding his capacity to invest in Canada and that “on this score alone, the
Visa Officer should have given the Applicant the opportunity to pursue his
submission that the purpose of the visit is business exploration” (Applicant’s
Memorandum of Argument, para 34).
[14]
Finally,
the Applicant maintains that the Officer breached the duty of procedural fairness
in failing to alert him of her concerns regarding his visa application. The
Officer’s conclusion was based on a negative credibility finding with respect
to the evidence he had adduced and in such instances officers are required to
provide an applicant an opportunity to respond (see Hassani v Canada
(Minister of Citizenship and Immigration), 2006 FC 1283 at para 24 [Hassani]).
In addition, the Officer made reference to extrinsic and unknown evidence when
she noted that the Applicant’s documents did not bear the security features
that often appear on original documents in China (e.g. serial numbers,
ultraviolet security features, watermarks, etc.). She was therefore under an
obligation to alert the Applicant to this concern (see Nadarasa v Canada (Minister of Citizenship and Immigration), 2009 FC 1112 at para 26 [Nadarasa]).
B. Respondent’s submissions
[15]
The
Respondent submits that the Officer’s decision was reasonable and that the
allegation that the Officer failed to provide sufficient reasons for her decision
is without merit. The Respondent maintains that the GCMS Notes are intelligible
and sufficiently explain why the Applicant’s visa was refused. The Officer
clearly indicated that the documentary evidence submitted was inadequate
because it was mostly in the form of “unverifiable photocopied documents
and poor quality computer generated print outs”. As for the Applicant’s claim
regarding the Officer’s affidavit, the Respondent maintains that the affidavit
does not go beyond the content of the GCMS Notes or the certified record. The
affidavit simply highlights the fact that the publicly available document
checklist indicates that original bank statements were required, and provides
slight elaboration on what the Officer meant by “verifiable security features”.
[16]
Regarding
the Applicant’s claim that the Officer failed to analyze all of the evidence
adduced, the Respondent submits that visa officers are presumed to have
considered all of the evidence before them and that there is nothing to suggest
the Officer failed to do so in this case.
[17]
As
for the
Applicant’s claim that the Officer was required to alert him to her concerns
with the evidence he had submitted, the Respondent cites this Court’s decision
in Liu v Canada (Minister of Citizenship and Immigration), 2006 FC 1025
at para 16 [Liu], where it is stated that
[A]n
applicant’s failure to provide adequate, sufficient or credible proof with
respect to his visa application does not trigger a duty to inform the applicant
in order for him to submit further proof to address the finding of the officer
with respect to the inadequacy, deficiency or lack of credibility. . . .
[18]
Finally,
the Respondent maintains that the GCMS Notes only refer to the documents
provided by the Applicant and that the document checklist stating the
requirement for original documents was completed and submitted by the
Applicant. The Applicant’s claim that the Officer relied on external evidence
in drawing her conclusions is consequently unfounded.
VI. Analysis
1. Did
the Officer err in refusing the Applicant’s Application?
[19]
The
Applicant alleges that the Officer committed a reviewable error by failing to
consider all of the evidence before her and provide adequate reasons for not
issuing the visa. The Respondent insists that the Officer considered all of the
evidence and provided clear and intelligible reasons for refusing issuance of
the visa.
[20]
The
Court agrees with the Respondent for the following reasons. Firstly, the
Officer is presumed to have reviewed all of the evidence (Florea v Canada
(Minister of Employment and Immigration), [1993] FCJ No 598 (QL) (FCA)) and
is not required to make reference to every document submitted (Hassan v
Canada (Minister of Employment and Immigration) (1992), 147 NR 317, [1992]
FCJ No 946 (QL) (FCA)). Upon reading the Officer’s GCMS Notes, the Court finds
that she clearly considered all the evidence adduced by the Applicant. The
Officer acknowledged that the Applicant had received invitations in accordance
with the Checklist for Personal or Professional Affairs (Attending an
Academic Conference, Exploratory Visits, Legal Matters) (the Checklist)
(see GCMS Notes 6 and 7). The Officer also assessed documents related to the
Applicant’s previous travel, his income, his financial assets and his personal establishment
in the PRC, and indicated that the documents failed to convince her that he
could invest in Canada and would return to the PRC, thereby justifying her
refusal.
[21]
As
the Respondent correctly submitted, an officer’s duty to provide reasons when evaluating
a temporary resident visa application is minimal (see Singh v Canada (Minister of Citizenship and Immigration), 2009 FC 621 at para 9). An administrative
tribunal’s reasons are sufficient if they “allow the reviewing court to
understand why the tribunal made its decision and permit it to determine
whether the conclusion is within the range of acceptable outcomes” (Newfoundland
and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at para 16, [2011] 3 S.C.R. 708). In this case, the reasons
clearly indicate that the Officer refused the application primarily because the
Applicant failed to provide appropriate documentation.
[22]
The
Applicant’s most important argument is that the Officer’s conclusion is
unreasonable in light of the nature and volume of the documents filed with his
visa application. The documents in question included the following: notarized
copies of the business licences for Ziyun and Huayang; the articles
of association for both of the above-mentioned companies along with the balance
sheet for Ziyun, which indicates, among other things, that the value of the
Applicant’s share of the equity in Ziyun is at least CAD$7.31 million; a survey
posted on the government of Liaoning province’s website indicating that Ziyun
is the number two real estate development firm in Anshan City; and a notarized
copy of the Applicant’s property certificate.
[23]
During
the hearing, counsel for the Applicant claimed that the Officer had failed to
consider all the documentation submitted because with the rejection letter he
only received part of all the documentation he had presented. The Court has reviewed
the certified tribunal record and must reject that argument as it is clear from
the GCMS Notes that all
the documentation was reviewed. It is also clear that the Officer did consider
the application as one relating to an exploratory visit even though it was
initially submitted as relating to company-to-company business.
[24]
The
Applicant submits that the Officer’s conclusion that the amounts deposited as a
lump sum in his bank account are incommensurate with his stated income ignores
the fact that the Applicant’s stated wage does not reflect his asset level as a
high net worth business owner. Furthermore, the Officer’s conclusion that the Applicant
had limited travel experience was unfair given that his passport was issued in
January 2010 and he had travelled to Korea and Japan in August 2011 and made a
six-country trip to Europe (with stops in Italy and Geneva) in January 2012.
[25]
Finally,
the Applicant argues that he received invitations from “credible officers” in
British Columbia who had themselves conducted a due diligence investigation
regarding his capacity to invest in Canada and that “on this score alone, the
Visa Officer should have given the Applicant the opportunity to pursue his
submission that the purpose of the visit is business exploration” (Applicant’s
Memorandum of Argument, para 34).
[26]
While
the Court acknowledges that the Officer’s assessment of the Applicant’s travel
experience was unfair, the Officer’s principal justification for refusing the
application was the inadequacy of the documents submitted in support of the
application. According to the Checklist, the Applicant was required to submit
“original bank documents showing financial history over several months” and
evidence of assets in China such as an “original property certificate”. The
Officer found the documents submitted by the Applicant inadequate because they
were “largely in form of unverifiable photocopied documents and poor quality
computer generated print outs”. Given the Applicant’s failure to fulfill the
Checklist requirement to provide original documents attesting his ability to
invest in Canada, the Court finds that the Officer’s decision refusing to issue
a temporary resident visa fell “within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (Dunsmuir v New
Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190).
2. Did
the Officer breach the duty of procedural fairness in failing to notify the
Applicant of her concerns regarding his Application?
[27]
Was
the Officer required to alert the Applicant to the inadequacy of the documents
he submitted?
[28]
The
case law of this Court is clear in establishing that an officer is under no
obligation to alert an applicant to his or her concerns regarding an
application because of the unsatisfactory nature of the evidence provided. The
“onus is on the Applicant to provide all relevant supporting documentation and
sufficient credible evidence in support of his application” (Pacheco Silva v
Canada (Minister of Citizenship and Immigration), 2007 FC 733 at para 20;
see also Lam v Canada (Minister of Citizenship and Immigration) (1998),
152 FTR 316 (FCTD); Liu, at para 16). Furthermore, an officer need not
notify an applicant of his or her concern where it “arises directly from the
requirements of the legislation or related regulations” (Hassani, at
para 24). In this case, the Officer’s concerns regarding the Applicant’s funds
and assets arose directly from the requirements of the IRPR (see
paragraphs 179(b) and (d)).
[29]
While
it is true that a duty to notify does arise “where the credibility, accuracy or
genuine nature of information submitted by the applicant in support of their
application is the basis of the visa officer’s concern” (Hassani, at
para 24), the Officer in this case was not questioning the credibility of the
documents so much as their failure to meet the Checklist requirement that
satisfactory evidence be provided. Had the Applicant filed original bank
statements and had the Officer questioned their authenticity, then the duty of
fairness would have required the Officer to alert the Applicant to her
concerns.
[30]
The
Applicant lastly alleges that the Officer introduced an extrinsic and unknown
requirement when she made reference to the security features that often appear
on original documents in China (e.g. serial numbers, ultraviolet security
features, watermarks, etc.). The Applicant argues that in such instances an officer
must afford an applicant an opportunity to respond or to provide documents with
such features (see Nadarasa, at para 26). The Court disagrees. The
Officer made reference to the security features simply to explain why original
documents are required.
[31]
In
sum, this application will be denied because the Court finds that the Officer
properly considered the evidence presented by the Applicant and provided
adequate reasons for its rejection.
JUDGMENT
THIS
COURT’S JUDGMENT is that
1.
The
application is dismissed; and
2.
There
is no question of general interest to certify.
"André F.J.
Scott"
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