Date: 20100824
Docket: IMM-5339-09
Citation: 2010 FC 838
Ottawa,
Ontario,
August 24, 2010
PRESENT: The Honourable Mr. Justice Crampton
BETWEEN:
Qun Huan PAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant, Qun Huan Pan, is a citizen and resident of China. In July 2005, she
applied for permanent residence in Canada under the provisions applicable to the investor
class.
[2]
In
August 2009, her application was rejected. Ms. Pan seeks to have that decision
set aside and remitted to another visa officer for re-determination on the grounds
that the visa officer who made that decision erred by:
(i)
failing
to make his decision in accordance with the principles of procedural fairness;
and
(ii) basing his
decision on erroneous findings of fact made in a perverse or capricious manner
and without regard to the material before him.
[3]
For
the reasons that follow, this application is dismissed.
I. Background
[4]
According
to the information provided by Ms. Pan, she has worked in the auto parts
industry since 1984. From July 1993 to December 2001, she worked as a senior
manager with a vehicle fittings company. In 2002 she opened her own business.
[5]
In
support of her application, she submitted a significant amount of documentation
to establish, among other things, that she had a legally obtained net worth of
at least $800,000 and had business experience, as required by subsection 88(1)
of the Immigration and Refugee Protection Regulations, SOR 2002-227 (“Regulations”).
[6]
In
June 2007, an initial screening officer identified “a few discrepancies” in the
information provided by Ms. Pan and recommended that she be requested to attend
an interview. Among other things, those discrepancies included the following:
(i)
she
apparently only invested $60,000 in her new business, even though she claimed
to have earned significant amounts of money prior to starting that business;
(ii)
the
audited financial information she provided appeared to be self-serving (because
there was no requirement for "individually-owned" companies to
prepare audited financial statements) and was prepared by someone who was
believed to have worked with immigration consultants to provide backdated
consolidated financial reports for other immigration applicants; and
(iii) the registered capital
of her company appeared to be too low to manage a business with the reported
level of annual gross revenues.
[7]
In
June 2009, she was sent a letter requesting her to provide updated information
and to attend an interview. Among other things, the information that was
requested at that time included an Updated Personal Net Worth Statement with
supporting documentation and an Updated Statement detailing the accumulation of
her funds.
[8]
During
Ms. Pan’s interview at the Canadian Consulate General in Hong Kong in August
2009, visa officer Tyler Arrell (the “Visa Officer”) focused his questions on (i)
the activities of her business, in particular the products sold by that
business; and (ii) how she was able to generate sales of RMB$2.4 million in
2002, given that she reported an investment of only RMB$60,000 in that business.
After repeated questioning on the latter matter, Ms. Pan disclosed that she
contributed a further amount of “about RMB$200,000” to the business.
[9]
Towards
the end of that interview, the Visa Officer expressed his concerns that Ms. Pan
may not have the business experience or sufficient legally obtained net worth
required to become a permanent resident as a member of the investor class. With
respect to business experience, he noted that she was unable to describe the
details of her business. Regarding her net worth, he noted that the information
she had provided did not demonstrate or substantiate how she was able to obtain
sales at the level she had claimed to achieve.
[10]
In
response, Ms. Pan simply noted that (i) RMB$60,000 is the minimum requirement
to open up a company, (ii) she didn’t know she was required to include in her
financial statements her contribution to the company of RMB$200,000 in personal
savings, and (iii) the sales of RMB$2.4 million achieved in 2002 was in part due
to the fact that a number of loyal customers followed her from her previous job.
II. The Decision Under Review
[11]
In a
short letter, dated August 19, 2009, the Visa Officer informed Ms. Pan that her
application had not been approved.
[12]
After
reviewing the provisions in s. 12(2) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA), and subsections 88(1), 90(1) and
90(2) of the Regulations, the letter informed Ms. Pan that she had not
satisfied the Visa Officer that she had a legally obtained minimum net worth of
at least $800,000. The letter proceeded to identify the following concerns that
arose from the information that Ms. Pan had provided in her documentation and
at her interview:
- The
initial investment of RMB$60,000 into your company does not appear to be
sufficient to have obtained the stated sales of RMB$2.4 million in the first
year of operation.
- Your statement that you invested an additional
RMB$200,000 into the company contradicts the information provided, is
unsubstantiated and raises concerns as to the accuracy of the documentation you
provided.
- You were unable to clearly describe the
business operations or provide specific details regarding what the company
sells, raising doubts as to your role in the business and whether the declared
funds were in fact earned by you in the business.
[13]
The
Visa Officer’s letter then added: “You were informed of these concerns at the interview
and your statement that customers from your previous employment began to do
business with your company did not overcome these concerns.”
[14]
Based
on the foregoing, the Visa Officer stated that Ms. Pan had not satisfied him
that her personal net worth had been legally obtained, and that therefore she
did not meet the requirements of subsection 90(2) of the Regulations.
III. Relevant
Legislation
[15]
The basis for granting a foreign national permanent residence on
the basis of the membership in an economic class is set forth in subsection
12(2) of the IRPA, which provides as follows:
|
Economic immigration
12.(2) A foreign national may be selected as a member of the economic
class on the basis of their ability to become economically established in Canada.
|
Immigration économique
12.(2) La sélection des étrangers de la catégorie « immigration
économique » se fait en fonction de leur capacité à réussir leur
établissement économique au Canada.
|
[16]
The
specific requirements that must be met to be granted permanent residence as a
member of the investor class are set forth in subsections 88(1), 90(1) and
90(2) of the Regulations, which state:
|
Definitions
88. (1) The definitions in this subsection
apply in this Division.
…
“investor”
means a foreign national who
(a) has
business experience;
(b) has a
legally obtained net worth of at least $800,000; and
(c) indicates
in writing to an officer that they intend to make or have made an investment.
…
Members of
the class
90. (1) For the purposes of subsection
12(2) of the Act, the investor class is hereby prescribed as a class of
persons who may become permanent residents on the basis of their ability to
become economically established in Canada and who are investors within the
meaning of subsection 88(1).
Minimal
requirements
(2) If a
foreign national who makes an application as a member of the investor class
is not an investor within the meaning of subsection 88(1), the application
shall be refused and no further assessment is required.
|
Définitions
88.
(1) Les
définitions qui suivent s’appliquent à la présente section.
…
« investisseur »
Étranger qui, à la fois :
a)
a de l’expérience dans l’exploitation d’une entreprise;
b)
a un avoir net d’au moins 800 000 $ qu’il a obtenu licitement;
c)
a indiqué par écrit à l’agent qu’il a l’intention de faire ou a fait un
placement.
…
Qualité
90.
(1)
Pour
l’application du paragraphe 12(2) de la Loi, la catégorie des investisseurs
est une catégorie réglementaire de personnes qui peuvent devenir résidents
permanents du fait de leur capacité à réussir leur établissement économique
au Canada et qui sont des investisseurs au sens du paragraphe 88(1).
Exigences
minimales
(2) Si le demandeur au titre de la
catégorie des investisseurs n’est pas un investisseur au sens du paragraphe
88(1), l’agent met fin à l’examen de la demande et la rejette.
|
IV. The Standard of Review
[17]
The issue
that Ms. Pan has raised with respect to procedural fairness is reviewable on a
standard of correctness (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paras. 55
and 79; Canada (Citizenship and Immigration) v. Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339, at para. 43).
[18]
The issue that has been raised with respect to whether the Visa
Officer based his decision on erroneous findings of fact made in a
perverse or capricious manner and without regard to the material before him, is
reviewable on a standard of reasonableness (Dunsmuir, above, at paras.
47 and 53).
[19]
In Khosa, above, at para. 59, reasonableness was articulated
by Justice Ian Binnie as follows:
[…] Where the reasonableness standard applies, it requires
deference. Reviewing courts cannot substitute their own appreciation of the
appropriate solution, but must rather determine if the outcome falls within
"a range of possible, acceptable outcomes which are defensible in respect
of the facts and law" (Dunsmuir, at para. 47). There might be more
than one reasonable outcome. However, as long as the process and the outcome
fit comfortably with the principles of justification, transparency and
intelligibility, it is not open to a reviewing court to substitute its own view
of a preferable outcome.
V. Analysis
A. Did the Visa Officer fail to
make his decision in accordance with the principles of procedural fairness?
[20]
Ms.
Pan submits that the Visa Officer failed to make his decision in accordance
with the minimum degree of procedural fairness owed to her in this case,
because he failed to (i) inform her of his concerns regarding the documentation
she had provided and to provide her with an opportunity to submit further
documentation, and (ii) provide her with an opportunity to respond to extrinsic
evidence.
[21]
With
respect to the first of these points, Ms. Pan referred to Citizenship and
Immigration Canada’s Overseas Processing Manual, which states, at paragraph
5.15 of Chapter 9 (OP 9): “When an officer has concerns about eligibility or
admissibility, the applicant must be given a fair opportunity to correct or
contradict these concerns.” She further noted that paragraph 11.2 of OP 9
states: “When the veracity of the documentation is in doubt, the officer should
first request further documentation.” She asserted that these guidelines
reflect the minimum duty of fairness that was owed to her and that this duty
further requires that a visa officer allow applicants to (i) respond to any
concerns that the visa officer has with respect to the application, and (ii)
explain inconsistencies in the evidence.
[22]
To
support her position that she was not accorded the minimum requirements of
procedural fairness, Ms. Pan referred to the computer assisted immigration
processing system (CAIPS) notes taken by the initial screening officer who
reviewed her application in June 2007. As mentioned at paragraph 6(ii) above,
among other things, those notes stated that the audited financial information she
provided appeared to be self-serving and were prepared by someone who was
believed to have worked with immigration consultants to provide backdated
consolidated financial reports for other immigration applicants.
[23]
Ms.
Pan relies on those CAIPS notes to submit that the Visa Officer did not accept
the audited financial statements as reliable proof of her company’s financial
record, and that he failed to inform her of these concerns or to request further
documentation relating to her financial statements. She maintains that the
letter sent to her in June 2009 did not suggest that the previously provided
documentation was considered insufficient and did not contain any specific
request for further documentation regarding the financial statements of her
business. She contrasts the contents of that letter with CAIPS notes made by the
Visa Officer immediately following her interview, which state: “Applicant’s
statement that she invested an additional RMB$200,000 into the company
contradicts the information provided, is unsubstantiated, and raises concerns
as to the accuracy of the documentation provided.”
[24]
Leaving
aside the issue of whether the guidelines set forth in OP 9 accurately reflect the
minimum requirements of procedural fairness that are legally required to be
accorded to visa applicants (Parmar v. Canada (Minister of Citizenship and
Immigration) (1997), 139 F.T.R. 203, at paras. 12 and 13), I disagree with
Ms. Pan’s assertions regarding the manner in which the Visa Officer dealt with
his concerns in relation to the documentation she had provided. In my view, the
Visa Officer did not fall short of the minimum requirements of procedural
fairness in this regard.
[25]
The
extent of procedural fairness applicable in any given situation is variable (Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817,
at para. 21; Sketchley v. Canada (Attorney General), 2005 FCA 404, at
para. 113).
[26]
In
the case of visa applicants, the minimum degree of procedural fairness to which
they are entitled is
at the low end of the spectrum (Chiau v. Canada (Minister of
Citizenship and Immigration), [2001] 2 F.C. 297, at para. 41 (C.A.); Khan
v. Canada (Minister of Citizenship and Immigration), 2001 FCA 345, [2002] 2
F.C. 413, at paras. 30-32; Patel v. Canada (Minister of
Citizenship and Immigration), 2002 FCA 55, 23 Imm. L.R. (3d) 161, at para.
10).
[27]
In
general, the onus is on a visa applicant to put his best foot forward by
providing all relevant supporting documentation and sufficient credible
evidence in support of his application. The onus does not shift to the visa officer
and there is no entitlement to a personal interview if the application is
ambiguous or supporting material is not included (Silva v. Canada (Minister of
Citizenship and Immigration), 2007 FC 733, at para. 20).
[28]
In
addition, a
visa officer has no legal obligation to seek to clarify a deficient application
(Sharma
v. Canada (Minister of Citizenship and Immigration), 2009 FC 786, at para. 8; Fernandez
v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 994, at para. 13; Dhillon
v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 574,
at para. 4),
to reach out and make the applicant’s case (Mazumder v. Canada (Minister of Citizenship
and Immigration),
2005 FC 444, at para. 14), to apprise an applicant of concerns relating to
whether the requirements set out in the legislation have been met (Ayyalasomayajula
v. Canada (Minister of Citizenship and Immigration), 2007 FC 248, at para.
18), or to provide the applicant with a “running-score” at every step of the
application process (Covrig v. Canada (Minister of Citizenship and
Immigration), [1995] F.C.J. No. 1413, at para. 21). To impose
such an obligation on a visa officer would be akin to requiring a visa officer
to give advance notice of a negative decision, an obligation that has been
expressly rejected (Ahmed v. Canada (Minister of Citizenship and
Immigration), [1997] F.C.J. No. 940 (QL); Sharma, above).
[29]
In
this particular case, the duty of fairness owed to Ms. Pan was more than met
when she was:
i.
provided
with a full opportunity to submit whatever materials she thought might assist
her to establish the requirements listed in subsection 88(1) of the Regulations;
ii.
informed
in June 2009 that she had not yet met those requirements and was requested to
provide updated information and supporting documentation, among other things,
to establish her net worth and to provide greater detail with respect to the accumulation
of her personal net worth;
iii.
invited
to attend an interview at which she was asked to provide additional information
with respect to the products sold by her business, to explain how she was able
to achieve such an “extremely high” level of annual sales in 2002 given her
reported initial investment of only RMB$60,000;
iv.
informed
by the Visa Officer towards the end of the interview that he continued to have
concerns that she had still not demonstrated that she had the requisite
business experience or sufficient legally obtained net worth to become a
permanent resident as a member of the investor class;
v.
told
why the Visa Officer continued to have those concerns;
vi.
provided
with one last opportunity to respond to those concerns; and
vii.
subsequently
provided with detailed reasons explaining why her application was refused.
[30]
The
letter sent to Ms. Pan in June 2009 explicitly informed her that the
information she had submitted in support of her application had failed to
satisfy an officer that she met the requirements of the IRPA. That letter also
explicitly requested additional financial information “attached with supporting
documents to prove your net worth” and “detailing the accumulation of your
funds.” Contrary to her assertions, as of the time that Ms. Pan received that
letter, she was put on clear notice that (i) the information she had provided
previously was considered insufficient, and (ii) further documentation
regarding the financial statements of her business was required.
[31]
Moreover,
at her interview in August 2009, the Visa Officer explicitly identified on two
separate occasions his concerns regarding the financial documentation that she
had submitted; and on both occasions he provided Ms. Pan with a further
opportunity to clarify the apparent inconsistencies that he had identified. Unfortunately,
the inconsistent responses provided by Ms. Pan failed to address those concerns
and may well have strengthened them. Contrary to Ms. Pan’s assertions, the
questions put to her by the Visa Officer during their interview clearly raised
the issue of the accuracy of the financial information that she had previously
submitted. In the final analysis, Ms. Pan failed to adequately avail herself of
the opportunities that she was thereby afforded to address the Visa Officer’s
concerns.
[32]
When
the Visa Officer first asked how Ms. Pan’s company could have achieved a level
of sales of RMB$2.4 million in its first year of operation, with an initial
investment of only RMB$60,000, she replied: “The business grew rapidly over the
years.” When pressed again on this point, she stated that loyal customers from
her previous job had followed her to her new company. When further pressed, she
explained that the audited financial statements of her business only identified
an initial investment of RMB$60,000 because that was the minimum requirement to
open the business. It was not until she was then pressed yet again on this
point that she finally revealed that she contributed RMB$200,000 of her
personal savings to the company. Even then, she was not able to provide any
substantiation for this assertion, notwithstanding the fact that the Visa
Officer explicitly noted, towards the end of the interview, that he was
concerned that (i) the documentation she provided did not demonstrate that her
company was able to obtain sales at the level she had claimed, and (ii) she had
not provided any substantiation to support her claim that she had injected
additional funds into the company.
[33]
Turning
to Ms. Pan’s claim that the Visa Officer failed to provide her with an
opportunity to address extrinsic evidence, she submits that he relied on the
extrinsic evidence that was included in the CAIPS notes made in June 2007 by
the initial screening officer. Specifically, she submits that the Visa Officer
relied upon evidence that her financial statements had been “prepared by Liu Xi
who has been partnered with the same immigration reps to provide backdated
consolidated financial reports for immigrants to Canada.” She asserts that she had no way of knowing
that the Visa Officer was suspicious of the Liu Xi accounting firm, because she
was never presented with an opportunity to address this evidence.
[34]
I am
unable to agree with Ms. Pan’s submission that the Visa Officer breached a duty
of fairness owed to her by failing to provide her with an opportunity to
address that evidence.
[35]
There
is no indication in the Visa Officer’s decision, in his CAIPS notes, or
elsewhere that he relied on this extrinsic evidence that had been identified by
the initial screening officer. As explained in the Visa Officer’s decision, Ms.
Pan’s application was refused because she had not satisfied him that she had a
legally obtained minimum net worth of at least $800,000. In turn, the Visa Officer
explained that he was not satisfied on this point for the precise reasons that
he conveyed to her in her interview in August 2009, which are discussed above
at paragraphs 12 and 32. Those reasons concerned Ms. Pan’s inability to
satisfactorily address issues that arose from the contents of her financial
statements, as opposed to the identity of the person who prepared those
financial statements.
[36]
This
Court’s decisions in Chen v. Canada (Minister of Citizenship and Immigration), [2007] F.C.J. No. 65, Kniazeva
v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 336,
and Muliadi v. Canada (Minister of Employment
and Immigration),
[1986] 2 F.C. 205 are distinguishable.
[37]
In Chen,
above, at para. 14, the applicant’s application was denied after it was
discovered, unbeknownst to him, that certain of his client contracts were
fraudulent. That decision was set aside on the basis that the applicant had not
been provided an opportunity to address all of the fraud reports that had been
reviewed by the visa officer. In contrast to the case at bar, that extrinsic
evidence was clearly relied upon by the visa officer and was clearly central
and important to the visa officer’s decision.
[38]
Similarly,
in Kniazeva, above at paras. 23-24, the applicant’s application was
denied after the Visa Officer relied on extrinsic evidence that was supplied by
a senior manager at one of her former places of employment. That evidence suggested
that the applicant had only worked part time with the company in question. As a
result of that evidence, the applicant was awarded fewer points than she
otherwise may have been awarded in the assessment of her application for
permanent residence in the skilled worker class. This Court found that that
extrinsic evidence gave rise to a “critical discrepancy” with the information
provided by the applicant, and that the visa officer’s reliance on this
evidence may have had an impact on his overall decision. As a result, the Court
concluded that the visa officer had breached his duty of procedural fairness to
the applicant by not affording her the opportunity to address that evidence.
[39]
Likewise,
in Muliadi, above, at paras. 14-16, the appellant’s application for
permanent residence was rejected after the visa officer relied upon a negative
assessment of his business proposal that had been provided by the Province of Ontario. The appellant was not
informed of that assessment or provided with an opportunity to address its
contents prior to the visa officer’s final decision on his application.
[40]
By
contrast, as noted above, in the case at bar, there is no indication that the
extrinsic evidence in question was relied upon by the Visa Officer or had a
material impact on his decision. As confirmed in Bavili v. Canada (Minister of
Citizenship and Immigration), 2009 FC 945, at paras. 47-48, there is no duty
to disclose extrinsic evidence that is not relied upon.
[41]
For
the foregoing reasons, I conclude that the Visa Officer did not breach his duty
of procedural fairness towards Ms. Pan.
B. Did
the Visa Officer base his decision on erroneous
findings of fact made
in a perverse or capricious manner and without regard to the material before
him?
[42]
Ms.
Pan submits that it was unreasonable for the Visa Officer to conclude that the information
she provided in her interview and in the documentation submitted in support of
her application raised doubts as to her role in her company and as to whether
the declared earnings of the company were in fact earned by the company. She
further asserts that, in concluding
that she had not established that she had a legally obtained minimum net worth
of at least $800,000, the Visa Officer reached his decision without regard
to the evidence before him. In addition, she submits that there was no
evidentiary foundation for the Visa Officer’s concerns regarding the level of
annual sales of her business, as reflected in the audited financial statements
of the business.
[43]
I
disagree.
[44]
With
respect to her role in the company, the Visa Officer’s concerns arose from Ms.
Pan’s inability to provide sufficient details regarding what her company sells.
When asked what her business does, Ms. Pan replied that the business sells parts
for vans and private cars. The following exchange then took place:
“Q: What part do you sell the most?
A: 5M, 6BG1, Z22.
Q: What does 5M do?
A: It’s for taxi.
Q: What part of the car does it go in?
A: In the front of the taxi, so that
you can turn on the car smoothly. It’s for taxi.
Q: I’m concerned that you are unable
to explain what it is that your business sells.
A: We sell auto parts. Including
motors.
Q: I want to know what parts you sell?
A:
We sell the parts individually to whole.”
[45]
There
was no further discussion of this issue.
[46]
I
am unable to conclude that it was unreasonable for the Visa Officer to have
been left with doubts regarding Ms. Pan’s role in the business, as a result of
the foregoing exchange. While that exchange, alone, may not have given me the
same doubts, had I been the Visa Officer, I am satisfied that the Visa
Officer’s conclusion on this point was well within the “range of
possible, acceptable outcomes which are defensible in respect of the facts and
law” (Dunsmuir, above, at para. 47). On an application for judicial
review, this Court’s task is not to reweigh the evidence.
[47]
As
to the declared earnings and annual sales of her company, the Visa Officer
raised a concern during the interview regarding how Ms. Pan’s company could
have achieved sales of RMB$2.4 million in its first year given that she had
only invested RMB$60,000 in the company. He observed that, based on such a
small initial investment, it would have been necessary for her to turn over her
entire inventory approximately 40 times in order to achieve that level of
sales.
[48]
As
noted at paragraph 32 above, over the course of repeated questioning by the
Visa Officer, Ms. Pan provided several different explanations for how her
company was able to achieve RMB$2.4 million in sales in its first year. Based
on that verbal exchange, I am satisfied that it was not unreasonable for the
Visa Officer to conclude that Ms. Pan’s statement that she “invested an
additional RMB$200,000 into the company contradicts information provided, is
unsubstantiated and raises concerns as to the accuracy of the documentation”.
[49]
Finally,
given the discrepancies in the information that Ms. Pan provided with respect
to her financial affairs, I am satisfied that it was reasonably open to the
Visa Officer to conclude that Ms. Pan had not satisfied him that she had a
legally obtained minimum net worth of at least $800,000. Ms. Pan was provided
numerous opportunities to address the Visa Officer’s concerns regarding this
issue. Unfortunately, she failed to avail herself of those opportunities. In my
view, after considering all of the information provided by Ms. Pan, it was
entirely reasonable for the Visa Officer to have been left with doubts
regarding whether Ms. Pan met this requirement of paragraph 88(1)(b) of the Regulations
and the requirements of section 90.
[50]
The
onus was on Ms. Pan to provide sufficient credible evidence in support of her
application. Unfortunately, she did not meet that onus.
[51]
The
Visa Officer’s conclusions were all reasonably open to him and his decision fit
comfortably with the principles of justification, transparency and
intelligibility (Khosa, above, at para. 59).
VI. Conclusion
[52]
This
application is dismissed.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES THAT this application is dismissed.
"Paul
S. Crampton"
_____________________________
Judge
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