Liao v. Canada (Minister of Citizenship and Immigration), docket IMM-2380-99

Date: 20000616

Docket: IMM-2380-99

BETWEEN:

            

     CHU PING LIAO

                                     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION

                                     Respondent

     REASONS FOR ORDER

GIBSON J.:

INTRODUCTION

[1]      These reasons arise out of an application for judicial review of a decision of a visa officer made at the Canadian Consulate General in Hong Kong and dated the 20^th of April, 1999 wherein the visa officer rejected the applicant"s application for permanent residence in Canada in the investor category on the basis that the visa officer was not satisfied that the applicant had successfully controlled, operated or directed a business and therefore did not fall within the definition "investor" in subsection 2(1) of the Immigration Regulations, 1978¹.

BACKGROUND

[2]      According to the copy of the applicant"s application for permanent residence in Canada that forms part of the materials (the "Tribunal Record") transmitted to the Court pursuant to Rule 318 of the Federal Court Rules, 1998², the applicant is a citizen of the People"s Republic of China born at Shenzhen, Guangdong on the 9^th of February, 1965. He graduated from Shenzhen University in 1988 with a Bachelors Degree in Economics. Since graduation, he has been employed in four businesses, the two most important of which, for the purposes of this application, are Bao"an Post and Telecommunications Bureau and Honbo Communication Investment and Development Corporation.

THE DECISION UNDER REVIEW

[3]      After quoting the definition "investor" from the Immigration Regulations, 1978 , as it read at the relevant time, the visa officer wrote:

You made claims at interview to have operated the Ping Qi store successfully in China between 1988 and 1991. However, no reliable documentation has been provided to substantiate this claim.

When asked to describe your responsibilities at the Honbo Communication Investment and Development Corporation between 1993 and 1996, you stated that you were appointed to subcontract the management of the Trade Department.

In your position subcontracting with Honbo, you stated that you did not make final decisions with respect to hiring, purchasing or direction issues on which you made recommendations. You stated that final decisions were made on your recommendations by either the General Manager or the Board of Directors, or by both.

You now describe yourself as a current employee of Honbo, by your own admission taking direction from the General Manager.

I am not satisfied that you had or have the authority at Honbo to make decisions at a level that would indicate that you were or are in a position to control, operate, or direct the business activities of this company.

As regards your involvement in the Parason Company between 1997 and the present time, your responses at interview regarding this company were limited. You appeared unfamiliar with the details of the business activities of this company.

Based on your responses, I am not satisfied that you have successfully operated, controlled or directed this company.

Based on the foregoing, I am not satisfied that you have successfully controlled, operated or directed a business. I am therefore not satisfied that you meet the definition of investor.

THE LEGAL FRAMEWORK

[4]      At the relevant time, the definition "investor" in subsection 2(1) of the Immigration Regulations, 1978 , read as follows:

"investor" means an immigrant who

"investisseur" Immigrant qui satisfait aux critères suivants

(a) has successfully operated, controlled or directed a business,

(b) has made a minimum investment since the date of the investor"s application for an immigrant visa as a investor, and

(c) has a net worth, accumulated by the immigrant"s own endeavours,

i) where the immigrant makes an investment referred to in subparagraph (a)(i) or (ii), (b)(i), (c)(i) or (ii), (d)(i) or (ii) or (e)(i) or (ii) of the definition "minimum investment", of at least $500,000, or

(ii) where the immigrant makes an investment referred to in subparagraph (a)(iii), (b)(ii), (c)(iii), (d)(iii) or (e)(iii) of the definition "minimum investment", of at least $700,000;

(a) il a exploité, contrôlé ou dirigé avec succès une entreprise;

(b) il a fait un placement minimal depuis la date de sa demande de visa d"immigrant à titre d"investisseur;

(c) il a accumulé par ses propres efforts:

(i) un avoir net d"au moins 500 000 $, dans le cas d"un immigrant qui fait un placement visé aux sous-alinéas a)(i) ou (ii), b)(i), c)(i) ou (ii), d)(i) ou (ii) ou e)(i) ou (ii) de la définition de "placement minimal",

(ii) un avoir net d"au moins 700 000 $, dans le cas d"un immigrant qui fait un placement visé aux sous-alinéas a)(iii), b)(ii), c)(iii), d)(iii) ou e)(iii) de la définition de "placement minimal" .

The term "mininum investment" was, at the relevant time, also defined in subsection 2(1) of the Immigration Regulations, 1978 . By virtue of the definition "immigrant" in subsection 2(1) of the Immigration Act³, the applicant, as a person who was seeking landing, was an "immigrant".

THE ISSUES

[5]      At the hearing of this application for judicial review, counsel were in agreement that only two issues were before the Court. Those issues can be briefly stated as follows: first, did the visa officer err in law and deny the applicant procedural fairness by failing to assess the applicant with respect to each of the criteria set out in the definition "investor"; more specifically, did the visa officer err in law in failing to fully assess whether this applicant operated or directed any of the businesses with which he was associated; counsel were further in agreement that the visa officer"s assessment was only in dispute with respect to the applicant"s involvement with Honbo and Bao"an; and second, in light of the fact that the visa officer submitted no affidavit on this application for judicial review, could the respondent rely on the CAIPs notes and handwritten notes forming part of the Tribunal Record for the purpose of establishing the factual framework of what occurred on the applicant"s application for permanent residence in Canada.

POSITIONS OF THE PARTIES

[6]      Counsel for the applicant urged that the material properly before the Court, thus he urged, excluding the CAIPs notes and handwritten notes forming part of the Tribunal Record, clearly demonstrated that the visa officer, in assessing the applicant"s experience in the operation, control and direction of businesses focussed, virtually exclusively, on the aspect of "control" to the exclusion of operation and direction. Counsel relied on Koo v. Canada (Minister of Citizenship and Immigration)⁴, and cases cited therein for the propositions that the phrase "operated, controlled or directed" is disjunctive which is to say that it is sufficient for an applicant to demonstrate that he or she has successfully performed any one of the three functions and he or she need not demonstrate that he or she has performed all of them or any one in preference to the others, and further, that it is not necessary to successfully operate, control, or direct an entire conglomerate if it can be demonstrated that the applicant was responsible for the operation, control or direction of an integral, profit-generating part of the conglomerate. Counsel directed my attention to an organization chart at page 31 of the Tribunal Record and to material at pages 96 and 97 of the Tribunal Record as demonstrating that the applicant successfully operated a major component of Honbo as a virtually separate entity with very substantial responsibilities in the marketing area, notwithstanding that ultimate control and direction may well have remained with more senior managers and the Board of Directors of Honbo.

[7]      By contrast, counsel for the respondent, urged that, in particular, the applicant"s own affidavit filed in support of his application for judicial review demonstrated that he did none of operate, control and direct a business, no matter how that business might be defined. He urged that the applicant"s affidavit demonstrated that operation, control and direction in every case within the applicant"s business experience for which significant evidence was available, remained with others.

ANALYSIS

[8]      It is trite to say that the onus is on an applicant seeking to come to Canada as a permanent resident to demonstrate that he or she fully meets the requirements of Canadian law. In the case of this applicant, that onus extended to demonstrating to the satisfaction of the visa officer that the applicant successfully operated, controlled or directed a business. Whatever conclusion I might have arrived at on the basis of the totality of the material that was before the visa officer, I am satisfied that the visa officer"s conclusion that the applicant had failed to meet the onus to demonstrate that he had successfully operated, controlled or directed a business was reasonably open to him. I reach this conclusion after a careful review of the Tribunal Record and the application records of the applicant and the respondent and without any reference whatsoever to the CAIPs notes and handwritten notes forming part of the Tribunal Record.

[9]      In light of my foregoing conclusion, I need not turn to the second issue as to the status of the CAIPs notes and handwritten notes forming part of the Tribunal Record in the absence of an affidavit from the visa officer attesting to the circumstances in which those notes were made and as to the truth and accuracy of their substance. I will, nonetheless, comment very briefly.

[10]      Counsel acknowledged that this issue has been before the Federal Court of Appeal and this Court on a number of occasions. Perhaps the most recent reported decision on the subject is that of Madame Justice Reed in Chou v. Canada (Minister of Citizenship and Immigration)⁵.

[11]      Madame Justice Reed, after quoting at length from the decision of the Federal Court of Appeal in Wang v. Canada (Minister of Employment and Immigration)⁶ where the notes in question were handwritten notes of a visa officer, wrote at paragraph 8 of her reasons:

The CAIPs notes entered into the computer by a visa officer are not different in kind from the handwritten notes of a visa officer. The only difference is the method of recording; the one being typewritten, the other handwritten.

There are many decisions that follow the Wang decision [where the Court found no justification for deviating from evidentiary norms with respect to handwritten notes and no legal basis for acceding to the view that the notes should be accepted as proof of the truth of their contents even though no affidavit attesting to that truth is filed]. ... In those decisions, the visa officer did not file an affidavit attesting to the veracity of the notes or the conduct of the interview. Also, the decision in Wang was recently cited with approval by the Federal Court of Appeal in Moldeveanu v. Canada (Minister of Citizenship and Immigration) (1999), 1 Imm. L.R. (3d) 105 (F.C.A.).

Counsel for the respondent argues that those decisions were rendered under the old Rules and that it is now common practice for the Court to allow the respondent to rely on the CAIPs notes as evidence of what occurred at the interview, without an affidavit having been filed by the officer.

I am reluctant to rely on decisions of my colleagues, which may have allowed reliance on the CAIPs notes even though no affidavit was filed by the visa officer, unless there is an indication that my colleagues had their attention drawn to the long line of jurisprudence set out above, to which I was referred in Hailing Qiu, ... . [some citations omitted]

[12]      After referring to the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration)⁷ where the Court adopted notes appearing on the tribunal record as reasons for the decision under review, Madame Justice Reed continued:

I accept, then, that the CAIPs notes should be admitted as part of the record, that is, as the reasons for the decision under review. However, the underlying facts on which they rely must be independently proven. In the absence of a visa officer"s affidavit attesting to the truth of what he or she recorded as having been said at the interview, the notes have no status as evidence of such.

[13]      I would adopt the foregoing words of Madame Justice Reed as my own if I were required to decide on the issue of the status of CAIPs notes and handwritten notes appearing in the Tribunal Record in this matter.

CONCLUSION

[14]      Based upon the foregoing analysis, I conclude that this application for judicial review must be dismissed.

CERTIFICATION OF A QUESTION

[15]      The applicant shall have ten (10) days from the date of the issuance of these reasons to make representations on certification of a question, having first served them on counsel for the respondent. Counsel for the respondent shall have ten (10) days thereafter within which to serve and file responding representations. The applicant may, within three (3) working days of the service on him of the respondent"s response, file any reply.

COSTS

[16]      Costs will follow the event.

                             (Sgd.) "Frederick E. Gibson"

Judge

Vancouver, British Columbia

June 16, 2000

     FEDERAL COURT OF CANADA

     IMMIGRATION DIVISION

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  IMM-2380-99

STYLE OF CAUSE:          Chu Ping Liao v. MCI

    

PLACE OF HEARING:          Toronto, Ontario

DATE OF HEARING:          June 8, 2000

REASONS FOR ORDER OF      GIBSON, J

DATED:                  June 16, 2000

APPEARANCES:

Mr. Cecil L. Rotenberg          For the Applicant

Mr. Kevin Lunney              For the Respondent

SOLICITORS OF RECORD:

Cecil L. Rotenberg

Barrister and Solicitor          For the Applicant

Morris Rosenberg

Deputy Attorney

General of Canada              For the Respondent

__________________

¹      SOR/78 - 172.

²      SOR/98 - 106.

³      R.S.C. 1985, c. I-2.

⁴      (1998), 43 Imm. L.R. (2d) 251 (F.C.T.D.).

⁵      [2000] F.C. J. No. 314 (Q.L.) (F.C.T.D.).

⁶      [1991] 2 F.C. 165 (F.C.A.).

⁷      [1999] 2 S.C. R. 817.