Docket: IMM-223-21
Citation: 2022 FC 576
Ottawa, Ontario, April 22, 2022
PRESENT: Mr. Justice Gascon
| BETWEEN:
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| ANH THOA QUAN
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| Applicant
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| and
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| THE MINISTER OF CITIZENSHIP
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| AND IMMIGRATION
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| Respondent
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JUDGMENT AND REASONS
I.
Overview
[1] The applicant, Ms. Anh Thoa Quan, is seeking judicial review of a permanent residence decision rendered on November 17, 2020 [Decision] by an officer [Officer] of the Migration section of the High Commission of Canada in Singapore. In the Decision, the Officer dismissed the request for permanent residence in Canada that Ms. Quan had made under the Québec Investor class pursuant to subsections 11(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] and 90(2) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR]. The Officer rejected the request because he/she was not satisfied that Ms. Quan truly intended to reside in Québec.
[2] Ms. Quan seeks to have the Decision set aside and referred back to a different officer for redetermination. She claims that the Officer’s conclusion that she has not demonstrated a genuine intent to reside in Québec is unreasonable. She further submits that the Officer breached the duty of procedural fairness by failing to notify her of his/her specific concerns with her application prior to the interview she was convened to.
[3] Having considered the evidence before the Officer and the applicable law, I can find no basis for overturning the Officer’s Decision. The Officer did explain, with references to the evidence, why Ms. Quan’s request was denied and why he/she was not satisfied that Ms. Quan intended to reside in Québec. The Decision is based on an internally coherent and rational chain of analysis and it is justified in relation to the facts and law that constrain the Officer. Furthermore, in all respects, the Officer met the procedural fairness requirements in dealing with Ms. Quan’s application. There are therefore no grounds to justify this Court’s intervention.
II.
Background
A.
The factual context
[4] Ms. Quan is a citizen of Vietnam. She was born in January 1962, is married and has two adult children.
[5] Ms. Quan is now retired, but used to be a corporate officer for two corporations. She worked primarily in accounting and business consulting. Her husband works in machinery technology in the maritime industry. The couple has a net worth exceeding $2 million, including bonds, stocks and properties, and they plan to bring more than $1.3 million to Canada in liquidity.
[6] Ms. Quan allegedly wants to open a Vietnamese restaurant in the Chinatown neighbourhood in Montreal, Québec. In 2015, Ms. Quan applied for a Certificat de sélection du Québec [CSQ] in the Investor class. The CSQ was approved in 2016. Following the approval, Ms. Quan applied for permanent residence. At the time, Ms. Quan’s spouse and son were included as dependents in her application.
[7] In October 2020, Ms. Quan was requested to attend an interview with the Officer at the High Commission of Canada in Vietnam. The interview was held on November 3, 2020. Two weeks later, on November 17, 2020, Ms. Quan’s application for permanent residence was dismissed on the basis that the Officer was not satisfied that she had the requisite intent to reside in Québec, as required by subsection 90(2) of the IRPR. Ms. Quan’s request for reconsideration was also dismissed.
B.
The Officer’s Decision
[8] As is often the case for this type of application, the Decision itself is brief and adds up to only a few lines. However, the Global Case Management System [GCMS] notes taken by the Officer, which form part of the Decision, provide further light on the analysis conducted by the Officer and on the grounds for refusing Ms. Quan’s application. In this case, the Officer identified several concerns that, in his/her view, raised doubts as to Ms. Quan’s intent to reside in Québec.
[9] First, the Officer noted that Ms. Quan displayed no direct knowledge of the restaurant business during the interview, and that she had no experience managing a restaurant. Before retiring, Ms. Quan worked as an accountant and she allegedly had been a business consultant for restaurants in Vietnam in the past, though this allegation remains unsupported by evidence. The Officer further noted that Ms. Quan seemed unaware of the different regulatory and licensing requirements that apply to restaurants in Québec. Additionally, Ms. Quan said that, if she could not get a permit, she could still cook for acquaintances at home. This comment made the Officer wonder whether Ms. Quan truly had an interest in starting a business in Québec.
[10] Second, the Officer was concerned by the fact that the Quan family had stronger ties to the province of British Columbia than to Québec. Indeed, Ms. Quan’s son has studied in British Columbia for two years in the past. Ms. Quan’s brother-in-law also resides in British Columbia. The Officer further noted that the Quan family explored living in British Columbia in 2013. In short, the Officer found Ms. Quan’s declaration of interest for the province of Québec unconvincing.
[11] Third, the Officer noted that Ms. Quan had incoherent views regarding the issue of family reunification. Ms. Quan was particularly emotional during the interview when discussing the issue of family reunification, given that her daughter is too old to be considered as an eligible dependent. However, Ms. Quan suddenly changed her views on the issue, and stated that her family’s priority was to move to Montreal, with or without her daughter.
[12] These various concerns led the Officer to doubt that Ms. Quan intended to reside in the nominating province of Québec. The Officer thus declared Ms. Quan ineligible for permanent residency under subsection 90(2) of the IRPR and her application was refused.
C.
The relevant provisions
[13] The relevant legislative provisions are subsections 11(1) and 12(2) of the IRPA, as well as subsection 90(2) of the IRPR. They respectively read as follows:
| 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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| […]
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[…]
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| 12. (2) A foreign national may be selected as a member of the economic class on the basis of their ability to become economically established in Canada.
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12. (2) La sélection des étrangers de la catégorie « immigration économique » se fait en fonction de leur capacité à réussir leur établissement économique au Canada.
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| IN BLANK
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EN BLANC
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| 90. (1) Class – For the purposes of subsection 12(2) of the Act, the Quebec investor class is prescribed as a class of persons who may become permanent residents on the basis of their ability to become economically established in Canada.
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90. 1 Catégorie – Pour l’application du paragraphe 12(2) de la Loi, la catégorie des investisseurs (Québec) est une catégorie réglementaire de personnes qui peuvent devenir résidents permanents du fait de leur capacité à réussir leur établissement économique au Canada.
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| (2) Member of class – A foreign national is a member of the Quebec investor class if they
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(2) Qualité – Fait partie de la catégorie des investisseurs (Québec) l’étranger qui satisfait aux exigences suivantes :
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| (a) intend to reside in Quebec; and
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a) il cherche à s’établir dans la province de Québec;
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| (b) are named in a Certificat de sélection du Québec issued by Quebec.
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b) il est visé par un certificat de sélection du Québec délivré par cette province.
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D.
The standard of review
[14] The parties agree that the decisions of permanent residence visa officers are reviewable against the standard of reasonableness, as set out in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] (Tran v Canada (Citizenship and Immigration), 2021 FC 721 [Tran] at para 16; Rabbani v Canada (Citizenship and Immigration), 2020 FC 257 [Rabbani] at para 15). There is no reason to conclude otherwise, as the circumstances germane to this first issue do not lend themselves to the application of any of the exceptions to the presumption of reasonableness identified by the Supreme Court of Canada (Vavilov at para 17).
[15] Regarding the actual content of the reasonableness standard, the Vavilov framework does not represent a marked departure from the Supreme Court’s previous approach, as set out in Dunsmuir v New Brunswick, 2008 SCC 9 and its progeny, which was based on the “hallmarks of reasonableness,”
namely justification, transparency and intelligibility (Vavilov at para 99). The reviewing court must consider “the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome,”
to determine whether the decision is “based on an internally coherent and rational chain of analysis”
and is “justified in relation to the facts and law that constrain the decision maker”
(Vavilov at paras 83, 85; Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67 at paras 2, 31).
[16] Before a decision can be set aside on the basis that it is unreasonable, the reviewing court must be satisfied that “there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency”
(Vavilov at para 100). An assessment of the reasonableness of a decision must be robust, but it must remain sensitive to and respectful of the administrative decision maker (Vavilov at paras 12–13). Reasonableness review is an approach anchored in the principle of judicial restraint and in a respect for the distinct role and specialized knowledge of administrative decision makers (Vavilov at paras 13, 75, 93). In other words, the approach to be followed by the reviewing court is one of deference, especially with respect to findings of facts and the weighing of evidence. Absent exceptional circumstances, the reviewing court will not interfere with an administrative decision maker’s factual findings (Vavilov at paras 125–126).
[17] Turning to the issue of procedural fairness, the approach to be taken has not changed following Vavilov (Vavilov at para 23). It has typically been held that correctness is the applicable standard of review for determining whether a decision maker complies with the duty of procedural fairness and the principles of fundamental justice (Mission Institution v Khela, 2014 SCC 24 at para 79; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43).
[18] However, the Federal Court of Appeal has affirmed that questions of procedural fairness are not truly decided according to any particular standard of review. Rather, it is a legal question to be answered by the reviewing court, and the court must be satisfied that the procedure was fair having regard to all of the circumstances (Lipskaia v Canada (Attorney General), 2019 FCA 267 at para 14; Canadian Airport Workers Union v International Association of Machinists and Aerospace Workers, 2019 FCA 263 at paras 24–25; Perez v Hull, 2019 FCA 238 at para 18; Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 [CPR] at para 54; Tiben v Canada (Citizenship and Immigration), 2020 FC 965 at paras 17–18). This assessment includes the five, non-exhaustive contextual factors set out in Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (Vavilov at para 77).
[19] Therefore, the ultimate question raised when procedural fairness and alleged breaches of fundamental justice are the object of an application for judicial review is whether, taking into account the particular context and circumstances at issue, the process followed by the administrative decision maker was fair and offered the affected parties a right to be heard as well as a full and fair opportunity to know and respond to the case against them (CPR at para 56; Huang v Canada (Citizenship and Immigration), 2018 FC 940 at paras 51–54). No deference is owed to the decision maker on issues of procedural fairness.
III.
Analysis
[20] An immigration officer granting a visa must generally be satisfied that an applicant meets the requirements of the IRPA (subsection 11(1)). Subsection 12(2) of the IRPA further provides that certain categories exist for applicants who seek to move to Canada for economic reasons, for which the specific requirements are set out in the IRPR. The IRPR provides that an applicant with economic reasons to move to Québec can apply for a visa as part of the Québec Investor class, which grants permanent residence based on the applicant’s ability to become economically established in the province. Subsection 90(2) of the IRPR states that, to become a member of that class, an applicant must: 1) have a CSQ; and 2) have the intent to reside in the province. There are no other requirements under the Québec Investor class.
[21] Ms. Quan argues the Officer’s conclusion that she did not have the requisite intent to reside in Québec is unreasonable. She submits that she has provided ample evidence showing her intent to open a business in Québec, and that she provided adequate answers to every concern raised by the Officer during the interview. Rather than grounding his/her conclusion on the evidence provided, says Ms. Quan, the Officer preferred to speculate about her intent.
[22] Ms. Quan further submits the Officer applied the wrong test to determine if she indeed had the requisite intent. In her view, the Officer wrongly believed that he/she had to be “satisfied”
– a highly subjective standard – that Ms. Quan held such intent. Ms. Quan does not dispute it is indeed the standard set out in subsection 11(1) of the IRPA. However, she maintains the relevant test is found in paragraph 70(1)c) of the IRPR, which sets out that an officer shall issue a permanent resident visa to a foreign national if, following an examination, it is established that the foreign national is a member of the particular class in question. Ms. Quan claims that this latter standard is more objective in nature, and that it is the adequate one in her circumstances.
[23] Despite the very able submissions made by counsel for Ms. Quan, I am not convinced that the Officer’s Decision is unreasonable.
[24] I acknowledge there seems to be no definite standard to meet by a visa applicant who seeks to demonstrate that he/she has the intent to reside in Québec. That said, it is clear from the case law that determining the “intent”
of an applicant is an exercise infused with subjectivity. Indeed, the law is clear that a visa officer has a large degree of discretion when determining the “intent”
of an applicant to reside in a given province, as he/she is allowed to take into account all available indicia at his/her disposal (Tran at para 33; Yaman v Canada (Citizenship and Immigration), 2021 FC 584 [Yaman] at para 29; Rabbani at para 43; Dhaliwal v Canada (Citizenship and Immigration), 2016 FC 131 [Dhaliwal] at para 31).
[25] Ms. Quan submits that it was unreasonable for the Officer to doubt her intention of residing in Québec, as her affidavit confirmed that information. To Ms. Quan, the information contained in an affidavit is presumed true unless there is a valid reason to doubt its truthfulness – which was not the case here. In support of her submissions, Ms. Quan relies on the oft-quoted decision of the Federal Court of Appeal in Maldonado v Canada (Minister of Employment and Immigration), [1980] 2 FC 302 [Maldonado] at para 5), where the court held that the evidence contained in an affidavit is presumed credible. However, this precedent is a no assistance to Ms. Quan in this case, as Maldonado applies to evidence provided by refugee claimants, not by visa applicants.
[26] Furthermore, as submitted by the Minister, the Federal Court of Appeal has confirmed that a visa officer can, in the context of an interview, question and seek clarification of an applicant’s statements (Kisana v Canada (Citizenship and Immigration), 2009 FCA 189 [Kisana] at para 29). The purpose of an interview is not to merely challenge the credibility of an applicant’s statements, but it also serves to ascertain the sufficiency of those statements to support an application (Kisana at para 29). Here, the Officer had concerns about Ms. Quan’s application and her intention to reside in Québec, and questions were asked with the purpose of addressing these concerns. Unfortunately for Ms. Quan, her answers only fuelled the Officer’s doubts regarding her application.
[27] I concede that the Officer was in error in drawing a negative inference of intention from the sole fact that Ms. Quan’s son had studied in British Columbia for two years. This Court’s case law has indeed found that there is little connection between the decision of a child to study in a given institution outside of Québec, and the intent of parents to reside in the province (Yaman at paras 31–32; Dhaliwal at para 33). I can detect no particular circumstance in this case which would allow me to come to a different conclusion, especially given that Ms. Quan’s son now resides in Vietnam, and not in British Columbia.
[28] Having said that, I am not persuaded that this error made by the Officer is sufficient to make the Decision internally incoherent or irrational as to render it unreasonable. I am satisfied that this was merely one of several concerns that the Officer had singled out regarding Ms. Quan’s intent to reside in Québec. Vavilov asks reviewing courts to refrain from dwelling on the minor errors and missteps made by a decision maker in a decision, and to rather intervene only when its flaws are central to its reasoning or its conclusion (Vavilov at para 100). This is not the case here. Additionally, I point out that the Decision put greater emphasis on the inability of Ms. Quan to respond directly to the questions than on the fact that her son had studied in British Columbia in the past.
[29] The Officer’s GCMS notes are detailed and reflect the fact that the Officer considered all the evidence provided by Ms. Quan, but was not ultimately satisfied about her intent to reside in Québec. It was certainly open to the Officer to rely on factors such as: Ms. Quan’s limited knowledge and experience of the restaurant business and about her future business plans; her reference to the possibility of cooking at home; her lack of any proficiency in French (and basic proficiency in English); her single visit to Québec in July 2016; and her limited awareness of food safety and licensing requirements to establish a restaurant in Québec. For these reasons, I find that it was not unreasonable for the Officer to determine that Ms. Quan had not proven that she had the requisite intent to reside in Québec in order to be granted permanent residence.
[30] In the end, Ms. Quan’s submissions essentially express her disagreement with the Officer’s Decision and assessment of the evidence. On judicial review, the role of the Court is not to reweigh the evidence on the record or to substitute its own conclusions to those of visa officers. Visa officers have a broad discretion when rendering decisions under the IRPA and the IRPR, and their decisions are entitled to a high degree of deference from the Court given their specialized expertise (Sharma v Canada (Citizenship and Immigration), 2020 FC 381 [Sharma] at paras 21–22).
B.
Did the Officer breach the duty of procedural fairness by failing to notify Ms. Quan of his/her specific concerns with her application prior to the interview?
[31] Ms. Quan submits that she should have been sent a fairness letter informing her of the Officer’s specific concerns with her application. Ms. Quan admits that she received a letter inviting her to an interview at the High Commission of Canada in Vietnam to clarify some issues with her application. However, the Officer’s concerns were unspecified. Ms. Quan concedes that the duty of procedural fairness of a visa officer sits at the lower end of the spectrum, but she submits that the duty still requires that an applicant be informed of the particular concerns regarding his/her application (Canada v (Minister of Citizenship and Immigration) v Patel, 2002 FCA 55 at para 10; Khan v Canada (Minister of Citizenship and Immigration), 2001 FCA 345, para 31-32 Lv v Canada (Citizenship and Immigration), 2018 FC 935 [Lv] at para 22).
[32] Again, despite the able submissions made by her counsel, I do not agree with Ms. Quan’s submissions and, in my view, no breach of procedural fairness occurred here.
[33] As pointed out by the Minister, this Court has determined on several occasions that immigration officers have no obligation to share their concerns regarding the evidence submitted in support of a permanent residence application when these concerns arise directly from one of the requirements of the statutes and regulations (Naboulsi v Canada (Citizenship and Immigration), 2019 FC 1651, at para 92; Zeeshan v Canada (Citizenship and Immigration), 2013 FC 248 at paras 33, 46; Rukmangathan v Canada (Minister of Citizenship and Immigration), 2004 FC 284 at para 23). In the case of Ms. Quan, subsection 90(2) of the IRPR only requires two things from an aspiring Québec Investor class member: 1) a CSQ; and 2) the intent of residing in the province. Ms. Quan had obtained her CSQ in 2016. Logically enough, Ms. Quan must have had an inkling that the Officer’s concerns pertained to the second of the two elements she had to prove to obtain her permanent residence visa, namely, her intent to reside in Québec.
[34] Procedural fairness does not require visa applicants to be given the opportunity to respond to concerns about information that they are aware of and have provided themselves. In this case, the reasons given by the Officer in the Decision were not based on extrinsic evidence, but rather on concerns about information that Ms. Quan had herself provided. More generally, it is well accepted that visa officers do not have a duty or legal obligation to seek to clarify a deficient application, to reach out and make an applicant’s case, to apprise an applicant about concerns arising directly from the legislation or regulations, to provide the applicant with a running score at every step of the application process, or to offer further opportunities to respond to continuing concerns or deficiencies (Sharma at para 32; Lv at para 23). To impose such an obligation would be akin to giving advance notice of a negative decision, an obligation that the Court has expressly rejected on many occasions. In the context of a visa officer’s decision on an application for permanent residence, the duty of fairness is quite low and easily met “due to the absence of a legal right to permanent residence, the fact that the burden is on the applicant to establish [his/her] eligibility, the less serious impact on the applicant that the decision typically has, compared with the removal of a benefit, and the public interest in containing administrative costs”
(Tahereh v Canada (Citizenship and Immigration), 2008 FC 90 at para 12).
[35] The onus is on visa applicants to put together applications that are convincing, to anticipate adverse inferences contained in the evidence and address them, and to demonstrate that they have a right to enter Canada. Procedural fairness does not arise whenever an officer has concerns that an applicant could not reasonably have anticipated (Singh v Canada (Citizenship and Immigration), 2012 FC 526 at para 52).
[36] In this case, I do not agree that Ms. Quan can complain of being taken by surprise as the Officer’s concerns arose from a specific requirement of the IRPR for the Québec Investor class. Moreover, at the interview, the Officer laid out those specific concerns and gave Ms. Quan the opportunity to respond to each of them and to disabuse the Officer of his/her concerns. At no point did Ms. Quan voice any objection or suggest that she did not understand the concerns expressed by the Officer; on the contrary, she provided a response to each of them, but that was not enough to satisfy the Officer. I further observe that, following the interview, Ms. Quan did not send any further evidence to the Officer, before the issuance of the Decision.
[37] In her submissions to the Court, Ms. Quan heavily relied on two precedents from this Court, Toki v Canada (Immigration, Refugee and Citizenship), 2017 FC 606 [Toki] and Yaman, maintaining that they support her contention that the Officer had a duty to inform her of the specific concerns he/she had about her intention to reside in Québec. In my view, those two cases are distinguishable from Ms. Quan’s situation.
[38] In Toki, the officer had concluded that the alleged place of work was fraudulent and that Mr. Toki had deliberately misrepresented his employment experience. The Court found that, in his fairness letter, the officer violated procedural fairness by failing to be specific enough about the exact nature of his concerns with Mr. Toki’s application. However, in that case, counsel had specifically requested details about the officer’s concerns, and Mr. Toki had not benefited from an interview. He therefore did not have an opportunity to respond to the officer’s concerns. Moreover, the duty of fairness on the part of the officer was heightened by the fact that a potential consequence flowing from the refusal was a finding of misrepresentation and inadmissibility to Canada for five years pursuant to section 40 of the IRPA. No issue of misrepresentation arises in the case of Ms. Quan.
[39] Turning to Yaman, I acknowledge that the facts therein closely mirror the situation of Ms. Quan. In that matter, the issue revolved around the intention to reside in Québec and the failure of the convocation letter for an interview to lay out the specific concerns that the officer had about Mr. Yaman’s intentions. As is the situation for Ms. Quan, the officer in Yaman only disclosed his specific concerns with the application at the interview. The Court found that notice was provided only “late in the interview process”
and that it “did not afford an opportunity […] to address the Officer’s concerns in any meaningful way, nor focus his answers, during most of the interview, to the Officer’s specific concerns”
(Yaman at paras 23–26).
[40] In the case of Ms. Quan, the convocation letter sent to her specified she had to satisfy the Officer that she meets the “eligibility requirements of the category”
in which she was applying. It is clear, and should have been known by Ms. Quan, that the only legislative requirement at stake in her case was her intention to live in Québec. With respect, I am of the view that requiring the Officer to provide, prior to the interview, more specificity about his/her concerns when they arise from a discrete regulatory requirement would raise the duty of procedural fairness over and above the low end of the spectrum where it resides. In the current circumstances, there was a specific, well-identifiable requirement for the Québec Investor class, namely, the intention to reside in Québec, which Ms. Quan ought to have been aware of and to which she was given a full opportunity to respond.
[41] Furthermore, I cannot detect any evidence of procedural unfairness in the transcript of the interview. Ms. Quan was given an opportunity to respond to every concern raised by the Officer, and was able to participate meaningfully in the interview process (AB v Canada (Citizenship and Immigration), 2020 FC 461 at paras 29–30; Amiri v Canada (Citizenship and Immigration), 2019 FC 205 at paras 35–36). Each of the Officer’s four concerns was laid out in detail and, each time, Ms. Quan was given an opportunity to respond. Ms. Quan’s suggestion that she may not have been given an opportunity to be heard and to disabuse the Officer of his/her concerns simply do not hold water and do not reflect the actual contents of the Decision or the facts surrounding the treatment of her application.
[42] In sum, looking at the Decision as a whole, I am convinced that the administrative process followed by the Officer achieved the level of procedural fairness required by the circumstances of this matter, and that there was no breach of the duty of procedural fairness.
IV.
Conclusion
[43] For the reasons set forth above, this application for judicial review is dismissed. Although Ms. Quan would have preferred a different decision, I am satisfied that the Officer reasonably considered the evidence before him/her and adequately explained why he/she was not satisfied, on a balance of probabilities, that Ms. Quan had the intention to reside in Québec. On a reasonableness standard, it is sufficient that the reasons detailed in the Decision demonstrate that the conclusion is based on an internally coherent and rational chain of analysis and that it is justified in relation to the facts and law that constrain the decision maker. Furthermore, in all respects, the Officer met the applicable procedural fairness requirements in dealing with Ms. Quan’s application. Therefore, the Decision is not vitiated by any error that would warrant the Court’s intervention.
[44] There are no questions of general importance to be certified.
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