Martirossian v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1119

                                                                                                                                            Date: 20011016

                                                                                                                               Docket: IMM-5482-00

Neutral Citation: 2001 FCT 1119

BETWEEN:

GAGIK MARTIROSSIAN

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

BLAIS J.

[1]         This is an application for judicial review of the decision of the visa officer Andrée Blouin dated September 11, 2000, rejecting the application for permanent residence of the applicant in the "investor" class.

FACTS

[2]         The applicant is an Armenian born September 10, 1962 in Kirovakan. He is a citizen of Russia. His wife, Alla Kalamkarian was born December 13, 1964 in Moscow and his two twin daughters, Elen Martirossian and Diana Martirossian, were born August 28, 1992 in Moscow. They are all citizens of Russia.

[3]         On October 14, 1997, the Canadian Embassy in Paris received the applicant's application for permanent residence in the "investor" class and accordingly, under the Canada-Quebec Accord, set the applicant's assessment process in motion.

[4]         On July 20, 1999, an agent of the Canadian intelligence services met with the applicant in Paris.

[5]         The security decision was rendered November 10, 1999.

[6]         Shortly afterwards, the applicant's permanent residence file was turned over to a foreign service officer, Andrée Blouin ("visa officer"), for her to finalize. She then proceeded in the normal course with a full review of the documents contained in the applicant's file.

[7]         As she was not satisfied with the legal aspect of the transactions through which the applicant appeared to have accumulated his assets, the visa officer summoned him to an interview. She asked him to bring a personal bank statement covering the last two years and some documentation that could establish the origin of his financial resources.

[8]         The applicant alleges that he had earned US$750,000 with Gorros & K. Ltd. during 1996 and 1997 for the sale and marketing of perfumes. The applicant's file contained no indication concerning other sources of income or other income-earning activities.

[9]         On May 25, 2000, the visa officer met with the applicant for an interview with the participation of an interpreter.

[10]       At the outset of the interview, the visa officer informed the applicant that the purpose of the interview was to ensure that the money he reported had been obtained by legal means.

[11]       During the interview, the visa officer emphasized at some length the applicant's duty to demonstrate that his assets originate from legal sources.

[12]       The visa officer informed the applicant that she was not convinced of the legitimacy of the transactions he said he had performed on behalf of Gorros & K. Ltd.

[13]       The officer repeated that it was up to the applicant to demonstrate the legality of his transactions. She invited him to provide any additional document that might justify his allegations.

[14]       In the days following the interview, the applicant supplied certain documents, including some letters attesting that the applicant was an employee of Gorros & K. Ltd. Once again, there was no documentation indicating the origin of the applicant's assets.

[15]       After reviewing the applicant's file in its entirety, the visa officer rejected the application on the ground that he had not provided the requisite documents and consequently had not demonstrated that he did not belong to the class of inadmissible persons under the Immigration Act (the "Act").

[16]       The applicant's counsel, referring to the recent decision of the Federal Court of Appeal in Guo Yong Biao v. Minister of Citizenship and Immigration, [2001] F.C.J. no. 338 (F.C.A.), informed the Court that the applicant had agreed to drop a number of grounds alleged in his written documents.

[17]       The arguments retained by the applicant are the following:

1.          The officer's conclusion in regard to the insufficiency of evidence is unreasonable and improper;

2.          The process by which this conclusion was reached was unfair and inconsistent with the principles of natural justice;

3.          The burden of proof required of the applicant was too heavy.

[18]       In my opinion, the visa officer did not err in concluding that the applicant had failed to demonstrate the legality of the origin of his funds.

[19]       The visa officer was quite justified, in the circumstances, to question the origin of the applicant's funds and state her dissatisfaction with the evidence he presented in this regard.

[20]       The visa officer gave the applicant an opportunity to clarify the origin of his assets. In her affidavit of December 19, 2000, the visa officer wrote:

[Translation] I emphasized at some length the need to present this information and the applicant's responsibility to demonstrate to me that his assets had been lawfully acquired.

[21]       Subsection 9(3) of the Act states:

[22]       The facts indicate that the visa officer gave the applicant an opportunity to produce any evidence of the origin of his assets. After his interview of May 25, 2000, she invited him to send any additional evidence to convince her of the legitimacy of his funds. Under subsection 9(4) of the Act, the visa officer had a duty to verify whether the money accumulated by the applicant originated in legal activities.

[23]       The facts in Biao v. MCI, [2000] 2 F.C. 348 (F.C.T.D.) bear a very close resemblance to those in the case at bar. In Biao, the applicant, who planned to settle in Quebec, had presented an application for permanent residence in the "investor" class. The applicant had not supplied satisfactory evidence in relation to the source of his funds, notwithstanding the requests made in this regard by the visa officer pursuant to subsection 9(3) of the Act. Nadon J. ruled that:

The visa officer had the power to request these documents by virtue of the Immigration Act, subsection 9(3) and the applicant had the burden of proving that his entry into Canada would not contravene the Act. The applicant had not met the obligation imposed by subsection 9(3) nor had he discharged the burden set out in section 8. A visa officer has both the right and the duty to require an applicant to produce documents which the officer believes are necessary to consider an application.

[24]       Nadon J. referred to the case of Kaur v. MCI (1995), 98 F.T.R. 91 (F.C.T.D.) and said:

Where documentation is properly sought by the visa officer and is not produced, the applicant cannot be granted admission, as she is a person who has not complied with a request lawfully made under the Immigration Act.

[25]       The facts in Hao v. MCI, [2000] F.C.J. No. 2013 (F.C.T.D.), are likewise similar to those in the case at bar, since the applicant had made his application for permanent residence in the "investor" class, but had not presented sufficient evidence to enable the visa officer to draw a favourable conclusion. Pinard J. stated:

In my view, the visa officer's contention was proper and he denied the visa on appropriate grounds, namely, that in the absence of the documentation he had requested, he was unable to verify the admissibility of the applicant with respect to section 19 of the Act.

[26]       In the case at bar, the visa officer gave the applicant the opportunity to present additional evidence to persuade her of the lawful source of his assets. He did not manage to persuade her, so the visa officer was justified in refusing the application for permanent residence since the applicant was then in breach of subsection 9(3) of the Act.

[27]       It is clear, from a detailed examination of the evidence in this case, that there is nothing in the applicant's file that would allow the visa officer to find that the transactions were legitimate. There is no invoice, no receipt, no document attesting delivery, no bill of lading, no acknowledgement, no payment of transportation costs, no evidence of payment of customs fees or anything whatsoever that might have demonstrated the existence and the legality of the sales.

[28]       Moreover, I carefully examined the handwritten notes of the visa officer, and in particular the final reference at page 4 of the panel's record, dated August 20, 2000:

[Translation] There is nothing that would allow us, beyond any doubt, to establish that these assets were obtained lawfully.

[29]       The applicant's counsel argued that in this reference the officer used a harsher standard of review than is normal. Furthermore, both parties appear to agree that the Act has not established the burden of proof that the applicant had to meet. Subsection 8(1) of the Act reads:

[30]       Subsection 9(3) reads:

[31]       Based on my reading of the visa officer's notes, the applicant has not persuaded me that the visa officer used an unreasonable standard in the circumstances.

[32]       As I said earlier, the visa officer gave the applicant an opportunity to present additional evidence to persuade her of the lawful source of his assets and the applicant did not manage to persuade her.

[33]       The applicant has the onus of convincing the visa officer and he clearly failed to discharge that onus.

[34]       In this case, the visa officer, Andrée Blouin, evaluated the applicant's case according to the particular circumstances and made the appropriate checks. However, the applicant was unable to discharge the onus that was on him.

[35]       The visa officer never suggested that the applicant was involved in unlawful activities. But, to eliminate that possibility, she wanted the applicant to prove a complete absence of unlawful activity. That is why the origin of the applicant's funds was an extremely relevant factor in connection with his admissibility, a matter that fell within the competence of the visa officer. In fact, without accusing the applicant of anything, it is reasonable to think, absent proof to the contrary, that the large sums acquired by the applicant might originate in illegal activities contemplated by section 19 of the Act such as, for example, money laundering, fraud, organized crime or black market transactions.

[36]       The visa officer was dissatisfied by the evidence, for during his interview the applicant produced only bank statements. The applicant was unaware and is still unaware that a bank statement proves only the possession of financial resources, not its origin. He says, in his affidavit of November 17, 2000:

[Translation] Indeed, I produced various bank statements, filed in support of my affidavit as Exhibit A-6; furthermore, the visa officer had in her file various contracts and receipts establishing my business relations during the years 1996 and 1997 that were the source of the funds I had, the said documents are filed as Exhibit A-7 in support of this affidavit.

[37]       Exhibit A-7 contains a few simple contracts and seven (7) documents entitled "ACCEPTANCE CERTIFICATS" [sic] that refer to the amounts of the transactions. These documents do not show how the applicant earned this money. [My emphasis]

[38]       The applicant failed to demonstrate that he does not belong to an inadmissible class and thus the visa officer rejected his application.

[39]       In conclusion, I am of the opinion that the application for judicial review should be dismissed.

[40]       The applicant suggests the following question:

[Translation] What is the nature of the burden of proof imposed on an immigrant by section 8(1) of the Immigration Act?

[41]       The respondent filed some written notes in opposition to certification.

[42]       I agree with the arguments put forward by counsel for the respondent. Parliament decided to give the visa officer the discretion to evaluate the evidence presented. Cases must be judged on their merits. The suggested question is not of general importance and will not be certified.

Pierre Blais

Judge

OTTAWA, ONTARIO

October 16, 2001

Certified true translation

Suzanne M. Gauthier, LL.L., Trad. a.

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET NO:                          IMM-5482-00

STYLE:                                       Gagik Martirossian v. Minister of Citizenship and Immigration

PLACE OF HEARING:            Montréal, Quebec

DATE OF HEARING: October 9, 2001

REASONS FOR ORDER OF BLAIS J.

DATED:                                     October 16, 2001

APPEARANCES:

Jacques Beauchemin                                                                       FOR THE APPLICANT

Greg Moore                                                                                    FOR THE RESPONDENT

SOLICITORS OF RECORD:

Jacques Beauchemin                                                                       FOR THE APPLICANT

Morris Rosenberg                                                                           FOR THE RESPONDENT

Deputy Attorney General of Canada