Date: 20001018
Docket: IMM-1400-99
BETWEEN:
CAO HUIQIAO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HANSEN J.
[1] On April 24, 1997, Cao Huiqiao, a citizen of the People's Republic of China, applied for permanent residence in Canada under the entrepreneur category. In this judicial review, he challenges the visa officer's February 23, 1999 decision refusing his application.
[2] The applicant asserts two grounds for judicial review: that he was denied procedural fairness, because the visa officer refused his application without responding to his offer to provide further information; and, that the visa officer based her decision on erroneous findings of fact.
[3] The applicant states that he owns, and operates the Renhe Town Xicheng Brickyard ("Xicheng Brickyard"), which he founded in 1985. Prior to this, he worked as a factory manager. The applicant also states he worked with another company in the building business called Shiqiang Enterprises Dev. Co. Ltd.("Shiqiang").
[4] Given his experience and his contacts in the Chinese construction industry and his awareness of a growing market for drywall, he planned to establish himself in Canada as an exporter of drywall to China.
[5] On June 1, 1998, the applicant attended an interview with the visa officer at Detroit, Michigan. From the outset, there was confusion over the applicant's employment status, specifically whether he was an independent businessman as he claimed, owning 100% of his own operation, whether he was an employee of another company, or whether the company he claimed to own was merely a subsidiary of a larger business interest. The confusion seems to have arisen because the applicant had business associations with other than with Xicheng Brickyard. In fact, in 1998 he had travelled to Canada as a Sales Consultant and Sales Manager for Shiqiang to participate in the "Asia Pacific Business & Trade Convention" in Toronto.
[6] His attendance at this Trade Convention and his association with Shiqiang became a focus of his interview. Despite the presence of an interpreter, the applicant was unable to clarify satisfactorily the nature of this relationship. The officer's CAIPS notes state "... he does not understand. I show him Shiqiang Enterprises letter. He cannot explain... language problem ...".1 Ultimately, the applicant's inability to explain his working relationship with Shiqiang was a significant factor in casting doubt on his ownership of the Xicheng Brickyard.
[7] Following the interview, the visa officer requested further documentation in support of the application, which was provided on August 14, 1998. On October 15 , 1998, having had no response, the applicant wrote the visa officer to determine what, if any additional documentation was required to facilitate his application. Having received no response, he wrote again on November 10, 1998, and again on December 3, 1998. On December 8, 1998, the visa officer replied, requesting further documentation establishing the applicant's net worth and links between him and the Xicheng Brickyard.
[8] The applicant informed the visa officer that although these materials had already been submitted, he would comply with the request. On January 5, 1999, he provided additional materials.
[9] These materials included a Lawyer's Witness Certificate dated December 12, 1998, which states as follows:
| Mr. Cao Hui Qiao registered and founded Renhe Town Xicheng Brickyard Guangzhou City at Baiyaun District Administration for Industry and Commerce of Guangzhou City on July 3, 1993. He is a private enterprise and owns 100% shares (Attached hereto with the business licence). The net profit of Renhe Town Xicheng Brickyard Guangzhou City on November 30, 1998 was RMB.5,836,964.39 Yuan (Attached hereto with the Financial Statement). |
| Mr. Cao Hui Qiao now has four houses, the total value is RMB.984,785.00Yuan, approximately equals to CDN 200,000.00. |
| Mr. Cao Hui Qiao maintained an account at China Construction Bank with the amount of HK$750,436.60 which approximately equals to CDN150,000.00 and RMB640,000.00Yuan which approximately equals to CDN.120,000.00 (Attached hereto with the Notarial Certificate) |
| Mrs. Cao (Luo Hui Ling) maintained an account at China Construction Bank with the amount of RMB.351,869.93Yuan which approximately equals to CDN.65,000.00 (Attached hereto with the Notarial Certificate).2 |
[10] The financial statement referred to in this certificate included the Balance sheet and Profit Statememt for Xicheng Brickyard. Also included with the materials was a certificate from Shiqiang, printed on Shiqiang Enterprises Development Co. Ltd. letterhead. The certificate explains what initially called into doubt the applicant's claim to 100% ownership of the Xicheng Brickyard: his attendance at the Trade Convention under the auspices of Shiqiang. The certificate reads as follows:
| Our company attended the Asia Pacific Business & Trade Convention which is held at the Toronto Trade & Exhibition Center in Toronto, Canada from March to August 1998, and exhibited the showcase in the exhibition. |
| Because Mr. Cao (in Xicheng Brickfield) is the expert of manufacture and use in the building materials and wear-resisting brick, etc, out company, hereby, engages Mr. Cao as our Sales consultant and Sales Manager in order to cooperating our company's business work during the exhibition in Canada.3 |
[11] The documents submitted were accompanied by notarial certificates attesting to their authenticity.
[12] In the refusal letter dated February 23, 1999, the visa officer cites several reasons for denying the application. First, she explains that the applicant's experience was "... only work experience in a state-run business and then your [his] own partially owned Brick Factory in China. Your experience running the factory in China does not convince me that you have the ability to make a significant contribution to the Canadian economy..."4
[13] The record, however, contains no evidence on which to base the statement that the applicant is only a part owner of the Xicheng Brickyard. On the contrary, the Lawyer's Witness Certificate attests to the applicant's 100% ownership. This is further corroborated by the business licence submitted by the applicant. As well, the letter from Shiqiang resolved the confusion at the time of the interview surrounding the working relationship between Shiqiang and the applicant.
[14] Second, the visa officer's refusal letter states "... I cannot be sure that you actually have the assets you claim..." The applicant, however, submitted documentation setting out both his personal and business financial affairs.5 As the visa officer does not appear to question the authenticity of the documentation, and in the absence of any evidence to suggest that the applicant does not own these assets, the visa officer's statement is without foundation.
[15] Third, the officer's refusal letter states "... While you have listed some of your assets, you have not shown any liabilities at all, which is not feasible in an on-going business such as a factory ..."[emphasis added]. This statement does not accord with the contents of the tribunal record. The Balance Sheet for the Xicheng Brickyard contains a list of the usual liabilities, such as short term loans, accounts payable, long term loans, and other long term liabilities, one would ordinarily expect to find in the balance sheet of a business. This statement by the visa officer is clearly not supported by the evidence.
[16] Although not made in the context of an immigration matter, the Federal Court of Appeal's statement in Stelco Inc. v British Steel Canada Inc.6 is particularly instructive when a tribunal's decision is impugned on the ground that the evidence does not support the findings of fact:
| Where a federal administrative tribunal's decision is impugned on the ground that it is based on findings of fact that are not supported by the evidence, the starting point of the analysis is the standard of review prescribed in Federal Court Act, paragraph 18.1(4)(d). That is, the question is whether the tribunal's finding was "made in a perverse or capricious manner or without regard for the material before it". It does not advance matters to try to determine whether this equates to a "patently unreasonable" or an "unreasonable simpliciter" standard....When a tribunal bases a discretionary decision on findings of fact, a reviewing court must examine those findings to ensure that they are rationally based on the material before the tribunal...In order to establish that the Tribunal committed a reviewable error, the applicant and the interveners had to demonstrate on the balance of probabilities that the Tribunal's finding was not rationally supported by any material before it. |
[17] In this case, the visa officer's decision was based on findings of fact with respect to the applicant's ownership of Xicheng Brickyard, his assets and the liabilities of Xicheng Brickyard which are not supported by the evidence. As these were key findings in terms of the applicant's experience and therefore his ability to establish a business in Canada, the decision must be set aside.
[18] Having so concluded, it is not necessary to deal with the issue of fairness raised by the applicant.
[19] Accordingly, the decision dated February 23, 1999 is set aside and the matter is remitted back for reconsideration by a different visa officer.
[20] Neither party submitted a question for certification.
"Dolores M. Hansen"
J.F.C.C.
OTTAWA, ONTARIO
October 18, 2000
__________________
1 Certified Record at pages 13-15.
2 Certified Record at pages 113-114.
3 Certified Record at page 52.
4 Certified Record at page 2.
5 Certified Record at pages 30-59.
6 [2000] 3 F.C. 282 at 284, [2000] F.C.J. No. 286.
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