Jiang v. Canada (Minister of Citizenship and Immigration), 2002 FCT 64

Date: 20020118

Docket: IMM-2799-01

Neutral citation: 2002 FCT 64

BETWEEN:

                                                                        JIAN JIANG

                                                                                                                                                     Applicant

                                                                                 and

                                                   THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

                                                                                                                                               Respondent

                                              REASONS FOR ORDER AND ORDER

ROULEAU J.

[1]                  This is an application for judicial review from the decision of a visa officer who, by letter dated May 3, 2001, refused the applicant's application for permanent residence in Canada. The applicant is seeking an Order that would quash the decision of the visa officer and require the respondent to provide a favourable response to his application. In the alternative, he requests that the matter be sent back for redetermination by another visa officer.

[2]                  The applicant, a Chinese citizen, applied for permanent residence in the business category, as an "investor". His application was received by the respondent on March 15, 1999. He is married and has one child.

[3]                  At the time he made his application, the applicant was Chairman of the Board and General Manager of Qingdao Resources Distribution Center ("QRDC"), a sales company that dealt in metals, construction, and commercial decoration materials. He had been involved in the business since May 1995. From these business activities, the applicant alleges to have accumulated a net worth of over CDN$ 1 million and provided evidence of as much to the visa officer.

[4]                  On May 27, 1999, the application was reviewed by a Program Assistant who recommended that the applicant be interviewed in order to assess whether he met the criteria under the investor category. The applicant was sent two documents, "Supplement List I" and "Supplement List II", which recommended various documents that the applicant should bring to the interview.

[5]                  On December 29, 2000, another Program Assistant sent the applicant a further letter informing him that his interview had been scheduled for March 9, 2001, almost two years after the application had been received. The standard forms, "Supplement List I" and "Supplement List II", were again enclosed. However, the applicant was not actually interviewed by the visa officer until May 3, 2001.

[6]                  At the time of the interview, the applicant had started a new business, Qingdao Yaxing Property Development Co. Ltd. (QYPDCL"), and was now focussing his attention on his new venture, although it did not form the basis of his application. QRDC apparently ceased operations in January 2000. The questions during the interview focussed mostly on QYPDCL, his new enterprise.

[7]                  The visa officer was not satisfied that the applicant had either earned his personal net worth through his own endeavours or directed, operated, or controlled a business. At paragraph 13 of his affidavit, the visa officer says:

... I told the Applicant that I was not satisfied that he met the definition of an "investor" under the Regulations, because I did not accept his explanation of his investment into that company and the profit that he earned.

The decision seems to have turned largely on the question of credibility.

[8]                  The visa officer was troubled by two factors in particular. First, the applicant said that he would earn RMB 20 million from a RMB 60 million project that QYPDCL had started in May 2000. The visa officer asked whether the applicant had invested RMB 40 million into the project. The applicant stated the he had in fact invested RMB 10 million. When asked about the source of the money, the applicant replied that it was actually more like RMB 8 or 9 million; that the money was invested in installments and that his first installment was for RMB 3 million, which was enough to purchase the land and which brought in certain revenues that he continued to reinvest. Based on this, the visa officer found that the applicant's evidence was inconsistent.

[9]                  Concerning the new enterprise, the applicant was questioned whether the 250 housing units, which QYPDCL was building, had been sold. He replied yes but that procedures in China were slow and that invoices would not be issued until the end of 2001. Nevertheless, he stated that RMB 60 million had been received from approximately 200 clients. The visa officer found it implausible that the applicant could collect RMB 60 million from some 200 clients when the units were not completed yet and no invoices had been issued. He then asked how the RMB 60 million had been spent but the applicant had no documentary evidence to support his answer.

[10]            In his affidavit, the visa officer also attests to why he focussed his questions on QYPDCL. He suggests that the applicant advised him during the interview that he was no longer working with QRDC but with QYPDCL, that he had earned large amounts of money with QYPDCL (which would have significantly increased his net worth), and because the value of his shares in QYPDCL were worth almost ten times as much as his shares in QRDC.

[11]            Did the visa officer fail to consider relevant information or breach the principles of natural justice when he refused the applicant's application for permanent residence?

[12]            The applicant argues that the visa officer ignored the evidence regarding the applicant's involvement with QRDC; that the definition of "investor", prescribed by subsection 2(1) of the Immigration Regulations, 1978, SOR/78-172, as amended (the "Regulations") and which is written in the past tense, is not limited to an applicant's current business activities and would include all successful operations, control or direction of a previous business. Furthermore, that the visa officer did not provide any reasons why the evidence was rejected.

[13]            It is also submitted that the visa officer should have provided the applicant with a reasonable opportunity to ally his concerns; that he failed to provide the applicant with reasonable time after the interview to provide documentary evidence relating to QYPDCL; the principles of natural justice were violated.

[14]            The respondent submits that the visa officer did not ignore the applicant's evidence regarding QRDC as questions were asked on this subject during the interview but that it was reasonable for the officer to focus on QYPDCL. It is argued that he was entitled to assess whether the applicant had successfully operated, controlled or directed a business by asking questions to determine if the applicant had sufficient business acumen he claimed to have. When the visa officer found that applicant's responses to be inadequate, it was reasonably open to the visa officer to dispose of the application for permanent residence in its entirety. The visa officer is in the best position to assess the applicant's credibility.

[15]            In the respondent's view, the applicant was also given an adequate opportunity to respond to the visa officer's concerns. In this case, the documents required were specifically requested in the standard forms that were sent to the applicant before the interview. It is also alleged that the visa officer expressed his concerns to the applicant during the interview. Finally, it is argued that there is no ground for arguing unfairness if a visa officer does not give the applicant an opportunity to respond to concerns that arise directly from the Immigration Act, R.S.C. 1985, c. I-2 and the Regulations, which the visa officer is bound to follow.

[16]            The applicant states that he provided sufficient information to the respondent in March 1999 to show that he was an "investor". The definition that was applied by the visa officer is as follows (Regulations, s. 2(1), as it then was):

[17]            There is nothing in this definition that would preclude the visa officer from considering the evidence regarding the applicant's initial involvement in QRDC. If this evidence could have established that the applicant was indeed an "investor", as he argues it did, then the visa officer was under an obligation to consider it. This evidence was uncontradicted and survived the visa officer's credibility screening. The visa officer failed to consider relevant information and thereby committed a reviewable error. In fact, it seems that the visa officer's concerns could have easily been allayed by documentary evidence, if he had chosen to review it.

[18]            Furthermore, while credibility findings should only be disturbed in extreme cases, the visa officer's reasoning here is suspect. His finding that the applicant's clients would not advance money to him before the project was complete and before invoices had been issued is speculative. It was reasonable for the applicant to expect that his interview would be based on his achievements at QRDC, which after all formed the basis of his application.

[19]            More importantly, if the visa officer was to reject the evidence regarding QYPDCL altogether at least he should have given notice of his intention to the applicant and provided him with an opportunity to respond. The fact that the visa officer would rely exclusively on information from QYPDCL was not obvious to the applicant, nor should it have been despite even the standard forms that were forwarded to him. At various times during the interview the applicant had advanced that he could provide the documents that the visa officer was requesting. Nevertheless, he rejected the application on the very same day as the interview. In doing so, the visa officer acted unfairly and committed another reviewable error.

[20]            This application for judicial review should be allowed and the decision of the visa officer be set aside and I refer the matter back for redetermination by another visa officer.

(Sgd.) "P. Rouleau"                 Judge

Vancouver, British Columbia

January 18, 2002

                                                   FEDERAL COURT OF CANADA

                                                                    TRIAL DIVISION

                             NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                      IMM-2799-01

STYLE OF CAUSE:                    Jian Jiang v. The Minister of Citizenship and Immigration

PLACE OF HEARING:              Vancouver, British Columbia

DATE OF HEARING:                  January 17, 2002

REASONS FOR ORDER OF THE COURT BY: Rouleau J.

DATED:                                          January 18, 2002

APPEARANCES:                    

Dennis Tanack                                                                            FOR APPLICANT

Kim Shane                                                                                    FOR RESPONDENT

SOLICITORS OF RECORD:

Dennis Tanack                                                                            FOR APPLICANT

Vancouver, British Columbia

Deputy Attorney General of Canada                                      FOR RESPONDENT

Vancouver, British Columbia