Date: 20011002
Docket: IMM-4999-00
Montréal, Quebec, October 2, 2001
Present: THE HONOURABLE MR. JUSTICE NADON
Between:
NICOLAI KLETSOV
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
The application for judicial review is dismissed.
Marc Nadon
J.
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
Date: 20011002
Docket: IMM-4999-00
Neutral Citation: 2001 FCT 1076
Between:
NICOLAI KLETSOV
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
NADON J.
[1] This is an application for judicial review of the decision rendered August 2, 2000 by visa officer Mary Coulter, refusing the applicant's request for permanent residence.
[2] The applicant, a businessman of Russian citizenship, has been working in the shipping industry for over 20 years. Between 1970 and 1978 he shipped as an officer aboard vessels of the Russian merchant marine, employed by Far East Shipping and the Baltic Shipping Company. Between 1978 and 1997, he was employed by Baltic Shipping. More particularly, he was, from 1978 to 1994, the superintendent of the "Group Traffic" division and, from 1994 to 1997, he headed up the "Lumber Cargo" division.
[3] The experience he acquired during his years with Baltic Shipping led the applicant to become involved with other shipping companies such as the North-Western Transport Company, Monaco Shipping Company, Welbeck Enterprises Inc. and Neva Transport Trading. His involvement in these various maritime transportation companies is said to have enabled him to accumulate some very substantial financial assets. This financial success was apparently at the origin of his decision to immigrate to Canada, and more particularly to Quebec in the context of the Immigrant Investor Program.
[4] In September 1998, the applicant filled out an application for a Certificat de sélection du Québec in the business person category and the investor sub-category. His file was then sent to the Service d'immigration du Québec in Vienna, Austria. The applicant says he supplied the Service d'immigration du Québec with all the relevant documentation concerning the origin of his assets. The applicant is also said to have transferred $350,000 to Lévesque, Beaubien, Geoffrion, Inc. to be held in trust, as required by the relevant Quebec regulations.
[5] In February 1999, Immigration Québec issued a certificate of selection in favour of the applicant. Having now obtained the Quebec certificate of selection, the applicant filed an application for permanent residence with the Canadian High Commission in London, England. This application was transferred in April 1999 to the visa section of the Canadian Embassy in Moscow.
[6] On May 4, 1999, following a review of this application for permanent residence, a visa officer decided that an interview was necessary in order to verify the origin of the applicant's assets.
[7] On November 5, 1999, the Visa Section of the Canadian Embassy in Moscow informed the applicant that an interview had been scheduled for November 16, 1999 at 2:30 p.m. The main reason for the interview to which the applicant was summoned was to verify the origin of his assets, which amounted to Cdn $872,699. At the end of the interview, Ms. Coulter informed the applicant that she still had some doubts concerning the legal origin of his assets. She therefore asked him to send her a copy of the following documents:
1. the 1997 court order under which the Baltic Shipping Company was to sell its assets and pay the wages and bonuses of its employees;
2. the audited financial statements of Welbeck Enterprises Inc. (for the years 1996, 1997, 1998 and 1999), and of Monaco Shipping Company (for the years 1992, 1993, 1994 and 1995);
3. his tax assessments for the years since 1992;
4. his bank records for the years since 1992; and
5. the proof of sale (and the value) of his shares in Monaco Shipping Company.
8. On July 3, 2000, Ms. Coulter examined the additional documentation submitted by the applicant and concluded that the documents she had requested of the applicant following the November 16, 1999 interview were not included. Consequently, Ms. Coulter notified the applicant in a letter dated August 2, 2000 that his application for permanent residence was refused. Ms. Coulter's letter reads as follows:
This refers to your application for permanent residence in Canada.
I regret to advise you that your application has been refused.
You have not complied with our instructions of 17 November, 1999 requesting:
1. Copy of the 1997 Court Order instructing Baltic Shipping Company to sell assets and pay the salaries and bonuses of employees;
2. Audited financial statements for Welbeck Enterprises INC. (1996-present), and Monaco Shipping Company (1992-1995);
3. Individual Tax Assessment for the years 1992 to the present;
4. Bank Deposit Records for the years 1992 to present.
In regard to point 1, you failed to provide us with the documentation requested (i.e. a full copy of the 1997 Court Order). Instead, you sent us copy of a newspaper article pertaining to Court Order, Court Order pertaining to a particular vessel and letter from a captain of the port authority confirming execution of a court order against a vessel. All documentation submitted pertains to salaries only, not bonuses of employees of Baltic Shipping Company.
You have therefore failed to comply with the requirements of subsection 9(3) of the Immigration Act, which reads:
9.(3) Every person shall answer truthfully all questions put to that person by a visa officer and shall produce such documentation as may be required by the visa officer for the purpose of establishing that his admission would not be contrary to this Act or the regulations.
As you have failed to provide the requested documentation in order to explain the source of your personal net worth, I am not satisfied that you are admissible to Canada.
I am therefore unable to issue you and your dependent an immigrant visa pursuant to paragraph 9(1)(a) of the Immigration Regulations, 1978.
Should you wish to apply for permanent residence at a later date, a new application with a new fee is required. The new application would be processed according to the Canadian Immigration Act and Regulations in effect at that time.
Since your application has been refused, you are entitled to a refund to the Right of Landing Fee that you paid when you submitted your application. You may come to our office in person to collect the refund of this fee or send us an authorisation letter for a representative to collect the fee on your behalf.
I realize this decision may be a disappointment to you and regret that it could not be favourable.
[9] In paragraphs 23 and 24 of his memorandum of fact and law, the applicant submits that the following two points are in dispute:
[Translation]
23. There are two kinds of issues. The main one has to do with the origin of the funds, as regards identifying on what authority this aspect of the review of an application for permanent residence in Canada rests in view of the particular context in which such an application is presented by a person holding a Quebec certificate of selection.
24. Then there is the issue of identifying, in view of the standard of review applicable to the decisions of visa officers and the conclusions of the previous question, whether the decision rendered by Ms. Mary Coulter is reasonable, is situated within the framework of her area of jurisdiction and whether it was rendered in accordance with the law and in the compliance with the rules of natural justice or procedural fairness to which the applicant was entitled.
[10] Concerning the first issue, the applicant, in paragraph 34 of his memorandum of fact and law, advances the following argument:
[Translation]
34. The applicant's first proposition is consequently as follows. A person seeking permanent residence who is the holder of a Quebec certificate of selection should not have to have the legality of the origin of the funds in support of his application reviewed. The examination by a visa officer should be confined to his eligibility on grounds of criminal record or threat to the security of the country or his medical eligibility. Moreover, the officer should not be able to challenge the eligibility of a candidate selected by Quebec unless there are reasonable grounds to believe that the candidate belongs to a criminal group or has some relationship with crime. The intervention of the visa officers and the limits of their jurisdiction in this regard should be circumscribed accordingly.
[11] In my opinion, this is the same argument as the one made to me by the applicant in Biao v. Canada (M.C.I.), [2000] 2 F.C. 348. Here is how I summarized the applicant's argument in that case, at pages 355-56:
[11] The applicant makes a distinction between verifying criminality and verifying the source of funds and submits that the lawfulness of an investor's source of funds is considered by Quebec before the issuance of a certificate of selection. The applicant points to the definition of "investor" set out in subsection 21(d ) of the Regulation respecting the selection of foreign nationals and argues that the verification of an applicant's qualifications for this category falls exclusively within Quebec's jurisdiction. The provision reads as follows:
21. . . .
(d) is designated as an "investor" if:
i. he has at least 3 years of experience in management:
- in a farming commercial or industrial business that is profitable and legal;
. . .
ii. he has net assets of at least $500 000 that he has accumulated through legal economic activities;
. . .
iii. he comes to settle and to invest in Québec in accordance with the provisions of this Regulation;
[12] The applicant also relies on the following provisions of the Canada-Québec Accord, which provide that once Quebec has issued a certificate of selection, Canada must admit the immigrant as long as s/he does not belong to an inadmissible category of persons as defined by the Act. Paragraph 12(b) of the Accord provides:
12. . . .
(b) Canada shall admit any immigrant destined to Québec who meets Québec's selection criteria, if the immigrant is not in an inadmissible class under the law of Canada.
Further, with respect to immigrants in the investor category, paragraph 3a) of Annex D of the Accord stipulates:
3. The parties agree to maintain the following mechanisms applicable to the admission of investor immigrants destined to Québec:
a) Where an immigrant investor satisfied the requirements of the Québec regulations respecting the selection of foreign nationals, including the definition of investors, minimum investment, eligible business or commercial venture and guarantee, Canada shall then, subject to statutory requirements for admission to Canada, issue that immigrant an immigrant visa.
[13] The applicant submits that, when the visa officer asked for proof of his source of funds, the visa officer imported criteria not envisaged by the Act to assess his admissibility, and consequently, fettered his discretion.
[12] At pages 358-59, I rejected the applicant's argument in the following words:
[19] The main issue in this case is whether the visa officer acted outside his jurisdiction when he requested proof of the applicant's source of funds. Related to this issue is whether assessing an applicant's admissibility can include a verification of his source of funds.
[20] In the present case, the visa officer was concerned about the origin of the applicant's assets because, notwithstanding an annual revenue of approximately $12,500, the applicant declared a personal net worth of $1,911,000. In my view, the visa officer's request was proper and he denied the visa on appropriate grounds, namely, that he was unable to verify the admissibility of the applicant with respect to section 19 of the Act without the documentation he had requested on numerous occasions.
[21] The visa officer had the power to request these documents by virtue of subsection 9(3) of the Act and the applicant had the burden of proving that his entry into Canada would not contravene the Act. The applicant did not meet his obligation under subsection 9(3) nor did he discharge himself of the burden set out in section 8 of the Act. As a result, the visa officer could not be satisfied that admitting the applicant would not contravene the Act and accordingly, it was within his authority to deny the application. As subsection 9(4) [as am. by S.C. 1992, c. 49, s. 4] of the Act states:
9. . . .
(4) Subject to subsection (5), where a visa officer is satisfied that it would not be contrary to this Act or the regulations to grant landing or entry, as the case may be, to a person who has made an application pursuant to subsection (1) and to the person's dependants, the visa officer may issue a visa to that person and to each of that person's accompanying dependants for the purpose of identifying the holder thereof as an immigrant or a visitor, as the case may be, who, in the opinion of the visa officer, meets the requirements of this Act and the regulations.
[22] This Court has held that a visa officer has both the right and the duty to require an applicant to produce documents which the officer believes are necessary for him or her to consider an application. Rothstein J., in Kaur v. Minister of Employment and Immigration et al. (1995), 98 F.T.R. 91 (F.C.T.D.), at page 92 opined as follows:
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.
[23] When the visa officer sought proof of the applicant's funds in order to determine whether the applicant was admissible, he was not acting outside his jurisdiction. Paragraph 12(a) of the Canada-Québec Accord makes it perfectly clear that Quebec has exclusive jurisdiction over selection and Canada has exclusive jurisdiction over admissibility. However, neither the spirit nor the letter of the Accord precludes federal immigration authorities from verifying the origin of an applicant's assets in order to be able to determine whether that applicant should be granted admission to Canada. On the contrary, section 26 of Annex A of the Accord provides for an exchange of information and documents between Canada and Quebec so that each may exercise its proper authority:
26. . . . the parties will provide each other with all information and all documents necessary to the exercise of their responsibilities under the Accord.
Thus, both the provincial and the federal authorities may examine the source of an applicant's funds, the former for the purpose of selection, and the latter for the purpose of admissibility.
[24] In the circumstances of this case, it was appropriate, in my view, for the visa officer to verify the source of the applicant's funds, given the great disparity between his annual income and his personal net worth. The visa officer's request was lawful and reasonable, as the documents sought related to the question of admissibility.
[13] However, notwithstanding the rejection of the applicant's argument, I certified the following question:
Does the Canada-Québec Accord limit the jurisdiction of the visa officer to question the source of funds of a Quebec-destined applicant for permanent residence in Canada, in order to establish the applicant's admissibility?
[14] The applicant appealed my decision, and the Federal Court of Appeal, in a unanimous decision rendered February 28, 2001, dismissed the appeal. In particular, the Court of Appeal answered the certified question in the negative. In paragraphs 1 and 2 of his reasons, Mr. Justice Létourneau states on behalf of the Court:
It seems clear to the Court that there is no incompatibility in the powers and duties of the two signatories of the Canada-Quebec Accord regarding immigration to Quebec. Clause 12 of that Accord states that the federal government has the authority to admit immigrants to Quebec and that it is the Government of Quebec which has the responsibility and powers of selecting immigrants wishing to settle in Quebec. Naturally the selection by the Quebec authorities is made and conducted from among the eligible immigrants. Clause 12(d) of the Accord expressly recognizes this, as follows:
12. Subject to sections 13 to 20:
(1) Québec has sole responsibility for the selection of immigrants destined to that province and Canada has sole responsibility for the admission of immigrants to that province.
(2) Canada shall admit any immigrant destined to Québec who meets Québec's selection criteria, if the immigrant is not in an inadmissible class under the law of Canada.
(3) Canada shall not admit any immigrant into Québec who does not meet Québec's selection criteria.
[2] On the actual merits of the appeal, we feel that the motions judge made no error when he concluded that the visa officer was justified in denying the application for permanent residence in Canada made by the appellant on the ground that the latter had not provided the necessary documents establishing that his admission to Canada did not contravene the Immigration Act, R.S.C. 1985, c. I-2, as amended, and the regulations made thereunder, as required in ss. 8 and 9 of the said Act.
[15] Consequently, I am of the opinion that the applicant's argument concerning the first issue should be dismissed.
[16] As to the second issue, I am also of the opinion that the applicant's argument should be dismissed. In my opinion, in light of the evidence before the visa officer, she cannot be criticized as having rendered an unreasonable decision. In her letter to the applicant of August 2, 2000, the visa officer concludes as follows:
You have therefore failed to comply with the requirements of subsection 9(3) of the Immigration Act, which reads:
9.(3) Every person shall answer truthfully all questions put to that person by a visa officer and shall produce such documentation as may be required by the visa officer for the purpose of establishing that his admission would not be contrary to this Act or the regulations.
As you have failed to provide the requested documentation in order to explain the source of your personal net worth, I am not satisfied that you are admissible to Canada.
[17] A careful reading of the record satisfies me that the evidence was sufficient to allow the visa officer to conclude that the applicant had not established the legal origin of his assets. It is worth recalling that under section 8(1) of the Regulations it is incumbent on a person seeking to enter Canada to prove that he is entitled to do so or that his admission would not be contrary to the Immigration Act or the regulations thereunder. Unfortunately for the applicant, the visa officer concluded that he had not discharged that onus. In reaching her conclusion, the visa officer in my opinion committed no error in fact or in law that might warrant my intervention.
[18] The applicant also pleads that he "[Translation] has been prejudiced in his completely legitimate expectations in opposition to the unnecessary duplication of the review of his application". He also cites the unnecessary delays in the processing of his application for landing in Canada. In my opinion, there is no basis for these submissions and they must be rejected.
[19] For these reasons, the application for judicial review will be dismissed.
Marc Nadon
J.
MONTRÉAL, Quebec
October 2, 2001
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20011002
Docket: IMM-4999-00
Between:
NICOLAI KLETSOV
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: IMM-4999-00
STYLE: NIKOLAI KLETSOV
Applicant
- and -
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 3, 2001
REASONS FOR ORDER OF NADON J.
DATED: October 2, 2001
APPEARANCES:
Pier Bélisle FOR THE APPLICANT
Thi My Dung Tran FOR THE RESPONDENT
SOLICITORS OF RECORD:
Kaufman Laramée FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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