Docket: IMM-5936-14
Citation:
2015 FC 594
Toronto, Ontario, May 6,
2015
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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JIANMIN WU
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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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JUDGMENT AND REASONS
(Judgment rendered on the bench)
I.
Overview
[1]
The onus rests upon an Applicant to submit a
complete application containing adequate supporting documentation, and it is “not for the visa officer to wait and to offer the applicant a
second, or several opportunities to satisfy the visa officer on necessary
points which the applicant may have overlooked” (Prasad v Canada
(Minister of Citizenship and Immigration), [1996] FCJ 453 at para 7).
[2]
The Court notes that the Applicant provides the
Court with explanations and evidence in support of his original request to the
visa officer for an extension of time; however, this evidence was not put
before the visa officer and cannot be considered for the purpose of judicial
review of the officer’s decision.
II.
Introduction
[3]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA] of a visa officer’s decision dated June 4, 2014,
denying the Applicant’s permanent residence application.
III.
Factual Background
[4]
The Applicant is a citizen of China who is the
independent director of Migao Corporation Group Co., Ltd., the Chief Operating
Officer and Director of Meize Energy Industries Holding Limited, and General
Manager and Legal Representative of Shenyang Yutao Investment Consulting Co.,
Ltd.
[5]
The Applicant holds a Bachelor’s degree in
Applied Computer Science and a Master’s in Electrical Engineering from the University of Technology of Dalian, China.
[6]
Seeking to immigrate to Canada with his family and with plans to establish a company in Prince Edward Island [PEI] in the area of facilitating the creation of wind farms, the Applicant was successfully
nominated by the province of PEI for the Provincial Nominee Program under the
Business Impact category 100% ownership stream, on May 28, 2013.
[7]
On August 20, 2013, the Applicant submitted an
application for permanent residence at the federal level, with the help of an
immigration consulting firm in China and through a qualified agent in PEI.
[8]
On March 17, 2014, the Hong Kong Consulate
General requested that the Applicant submit his passport and the Right to
Permanent Residence fee by May 16, 2014. This request was received by the
Applicant’s immigration consultant at its Canadian office, who then forwarded
to the Beijing office; however, this request was initially missed by staff in Beijing and only noticed approximately one week after the deadline.
[9]
A request for an extension of time for
submitting the requested documents was submitted by the Applicant’s agent on May
26, 2014, via email. In the request, the agent explained that the Applicant “has been traveling extensively and has not been able to
surrender the passport to date. They require an extension to July 17, 2014 in
order to complete current travels” (Email from Chris Somers to the
Immigration Section in Hong Kong, Applicant’s Record, at p 45).
[10]
The Applicant’s request for an extension of time
was denied by a visa officer on June 2, 2014 and on June 4, 2014, a
visa officer of the Canadian Consulate in Hong Kong advised the Applicant that
his application for permanent residence was denied for failing to provide the
requested documents, and therefore for failing to comply with subsection 50(1)
of the Immigration and Refugee Protection Regulations, SOR/2002-227
[Regulations] and subsection 16(1) of the IRPA.
[11]
The Applicant’s requested passport was received
by the Hong Kong consulate after the date of the officer’s decision, on
June 6, 2014.
[12]
The provisions relied upon by the visa officer
read as follow:
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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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Documents – Permanent residents
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Documents : résidents permanents
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50. (1) In addition to the permanent
resident visa required of a foreign national who is a member of a class
referred to in subsection 70(2), a foreign national seeking to become a
permanent resident must hold
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50. (1)
En plus du visa de résident permanent que doit détenir l’étranger membre
d’une catégorie prévue au paragraphe 70(2), l’étranger qui entend devenir
résident permanent doit détenir l’un des documents suivants :
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(a) a passport, other than a diplomatic, official or
similar passport, that was issued by the country of which the foreign
national is a citizen or national;
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a) un
passeport — autre qu’un passeport diplomatique, officiel ou de même nature —
qui lui a été délivré par le pays dont il est citoyen ou ressortissant;
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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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Obligation – answer truthfully
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Obligation du demandeur
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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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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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IV.
Issues
[13]
The central issues raised by the application are
the following:
a)
Did the visa officer breach its duty of
procedural fairness?
b)
Is the visa officer’s decision reasonable?
V.
Standard of Review
[14]
Issues of procedural fairness are questions of
law which must be reviewed on the non-deferential standard of correctness,
whereas the visa officer’s ultimate decision to deny the Applicant’s permanent
residence application is reviewable on a standard of reasonableness (Torres
v Canada (Minister of Citizenship and Immigration), 2011 FC 818 at para 26;
Sketchley v Canada (Attorney General), 2005 FCA 404 at para 53; Re:Sound
v Fitness Industry Council of Canada, 2014 FCA 48 at para 34; Canada
(Citizenship and Immigration) v Khosa, [2009] 1 S.C.R. 339 at para 43).
VI.
Analysis
[15]
As held by the Supreme Court of Canada, the
concept of procedural fairness is contextual and varies in accordance with the
particular facts of each case (Dunsmuir v New Brunswick, [2008] 1 SCR
190 at paras 77 and 79 [Dunsmuir]).
[16]
The factors relevant to determine the content of
the duty of fairness include: (1) the nature of the decision to be made and
process followed in making it; (2) the nature of the statutory scheme and the
terms of the statute pursuant to which the body operates; (3) the importance of
the decision to the individual or individuals affected; (4) the legitimate
expectations of the person challenging the decision; and (5) the choices of
procedure made by the agency itself (Baker v Canada (Minister of Citizenship
and Immigration), [1999] 2 S.C.R. 817).
[17]
The Applicant submits that the importance of the
decision to the individual, the legitimate expectations and the choice of
procedures of the visa officer favour a higher degree of procedural fairness;
on the other hand, the Respondent argues that the duty of fairness in this
case, involving an administrative decision-maker, is more limited than on one
involving a quasi-judicial tribunal where the obligation to confront an
Applicant may be more stringent.
[18]
The Court is of the view that the threshold of
the duty of procedural fairness in the decision-making process under review is
on the lower end of the spectrum. Such as stated by Justice Michael L. Phelan
in Nabin v Canada (Minister of Citizenship and Immigration), 2008 FC 200
at paras 7 and 8:
[7] The case law in this Court is consistent;
the burden of establishing entitlement to a visa rests on an applicant. This
burden includes the responsibility to produce all relevant information which
may assist the application. There is no general requirement that visa
officers engage in a form of dialogue as to the completeness or adequacy of
materials filed.
[8] The exception to the absence of any
obligation on a visa officer to give notice of concerns about filed materials
is where there are concerns about the credibility, accuracy or genuineness
of the information submitted or extrinsic evidence arises with respect to that
information (see Olorunshola v. Canada (Minister of Citizenship and
Immigration), [2007] F.C.J. No. 1383, 2007 FC 1056, paras. 30-37).
[My emphasis.]
[19]
The Applicant further submits that the visa
officer erred in fettering its discretion in refusing to allow the requested
extension of time.
[20]
In the decision Ching-Chu v Canada (Minister
of Citizenship and Immigration), 2007 FC 855 at para 24 [Ching-Chu],
relied upon by the Applicant, Justice Michael A. Kelen found that a visa
officer has a duty to consider a request for an extension before refusing it
and that an outright categorical denial of such a request amounts to a
fettering of discretion:
[25] The visa officer fettered his discretion
by categorically stating he never grants extensions of time to file additional
information. If the officer had considered the request for an extension,
exercised his discretion, and then concluded that no extension will be granted
for the following reason, then this decision would be legal. But by
fettering his discretion, the visa officer is refusing to consider exercising
his discretion, which is illegal. See Yhap v. Canada (Minister of Employment
and Immigration), [1990] 1 F.C. 722 (T.D.) per Jerome A.C.J. at 739:
[Emphasis added.]
The importance of flexibility in the
adoption of policy or guidelines as a means of structuring discretion is
highlighted by D.P. Jones and A.S. de Villars in Principles of
Administrative Law, where the difference between "general" and
"inflexible" policy is described at page 137:
... the existence of discretion
implies the absence of a rule dictating the result in each case; the essence of
discretion is that it can be exercised differently in different cases. Each
case must be looked at individually, on its own merits. Anything, therefore,
which requires a delegate to exercise his discretion in a particular way may
illegally limit the ambit of his power. A delegate who thus fetters his
discretion commits a jurisdictional error which is capable of judicial review....
[Emphasis in original.]
[21]
In the case at bar, in contrast to the situation
in Ching-Chu, above, there is no indication that the officer refused to exercise
his discretion or that he failed to contemplate the particular merits of the
Applicant’s application. Rather, the visa officer’s reasons, as they appear in
the notes contained in the Global Case Management System [GCMS], indicate that
the officer considered the Applicant’s explanation supporting his request (that
he had been traveling extensively) and found that a two-month extension was not
justified in the circumstances. Notably, the officer noted the absence of
explanation as to why the Applicant was unable to request an extension of time
within the time limit of 60 days, as well as the absence of evidence supporting
the Applicant’s request, such as evidence of travels (Officer’s GCMS Notes,
Certified Tribunal Record, at p 6). These findings led the visa officer to
conclude that the Applicant failed to meet the requirements of the IRPA and its
Regulations.
[22]
The Court notes that the Applicant provides the
Court with explanations and evidence in support of his original request to the
visa officer for an extension of time; however, this evidence was not put
before the visa officer and cannot be considered for the purpose of judicial
review of the officer’s decision.
[23]
The onus rests upon the Applicant to submit a
complete application containing adequate supporting documentation, and it is “not for the visa officer to wait and to offer the applicant a
second, or several opportunities to satisfy the visa officer on necessary
points which the applicant may have overlooked” (Prasad above).
[24]
The Court finds that the visa officer’s decision
falls within the range of reasonable outcomes which are defensible in respect
of the facts and law (Dunsmuir, above at para 47; Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at para 14).
VII.
Conclusion
[25]
In light of the foregoing, the application is
dismissed.
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