Date: 20091015
Docket: IMM-1357-09
Citation: 2009 FC 1049
Vancouver, British Columbia, October
15, 2009
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
AVTAR
SINGH VASSAN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review, pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, of a Designated Immigration
Officer’s decision dated January 15, 2009, rejecting the Applicant’s
application for a permanent resident visa as a member of the investor class.
For the reasons that follow, this application is dismissed.
BACKGROUND
[2]
Mr.
Vassan is a citizen of India. He has degrees in mechanical and civil
engineering and states that he has operated a construction business for 28
years and a farming business for 20 years.
[3]
On
February 29, 2008, the High Commission of Canada in New Delhi, India, received
Mr. Vassan’s application for a permanent resident visa as a member of the
investor class. This application was supported by three volumes of
documents detailing Mr. Vassan’s business activities and assets.
[4]
Mr.
Vassan’s application was assessed and an in-person interview was held on
January 15, 2009. Later that same day, the Officer wrote to Mr. Vassan
informing him that his application had been rejected because he did not meet
the requirements of the investor class.
[5]
The
term “investor” is defined in subsection 88(1) of the Immigration and
Refugee Protection Regulations, as follows:
|
"investor"
« investisseur »
"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.
|
« investisseur »
"investor"
« 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.
|
[6]
The
principal ground on which the Officer relied in reaching his decision to reject
the application was his finding that “you have not satisfied me that you have a
legally obtained minimum net worth of at least $800,000.”
[7]
The
Officer found that the Applicant lacked credibility. The Officer noted that Mr.
Vassan had failed to list his construction business on a previous application
for permanent residence submitted in 2007 under the self-employed class and
that he had provided no explanation for this omission. The Officer drew a
negative inference from this fact particularly because the Applicant now claimed
that the construction business was his primary business. The Officer also noted
the lack of documentation regarding the construction business which raised questions
regarding its existence.
[8]
The
Officer asked the Applicant about the net profit of his construction business.
The Applicant responded that the net profit for the year ending March 31, 2008
was 154,000 INR. The Officer asked the Applicant what his main expenses
were for this business. The Applicant replied that they were for labour in the
range of 28,000-30,000 INR. The Officer pointed him to the Applicant’s income and
expense account for the year, which listed net profit as nil and labour costs
of 398,500 INR. The Applicant was unable to explain this inconsistency, and
again the Officer drew a negative credibility inference as a result.
[9]
The
Officer summarized the Applicant’s submissions regarding his land holdings and
agricultural business, as well as the full-time equivalent employees employed
in this business. The Officer stated that the Applicant had provided no
books of accounts for the business because he did not maintain books of
accounts for this business. The Officer stated that the Applicant had estimated
his average annual agricultural income at 150,000 INR.
[10]
The
Officer noted that the Applicant stated his bank balance at 6,200,000 INR. The
Officer posed to the Applicant that given his reported business profit it was
difficult to see how he had accumulated such wealth. The Officer stated that
the Applicant agreed with this statement but offered nothing further by way of
explanation.
[11]
The
Officer determined that the Applicant had not provided evidence to support that
he had legally obtained his net worth in excess of $800,000. Therefore,
the Officer concluded that the Applicant did not meet the definition of
“investor” and he rejected the application.
ISSUE
[12]
The
Applicant raises only a single issue: “Did the visa officer base his decision
in a perverse or capricious manner or without regard to the material before
him, by ignoring evidence before him or by taking irrelevant considerations
into account in reaching his decision?”
ANALYSIS
[13]
The
Applicant submits that it is clear on the face of the record that the Officer
made the adverse credibility finding on an incorrect finding of fact. In the
CAIPS notes, the Officer records the following:
I told him that on his
previous SE2 appl he had stated that he was a farmer. I asked him why he didn’t
state at that time that he was also doing construction work which he now claims
to be his main occupation. PI agreed that he didn’t state on that appl that he
has construction business. He, however, didn’t provide any explanation for this
inconsistent info.
[14]
The
Applicant submits that the error of fact is evident in the above statement as
well in the Officer’s affidavit filed in this proceeding. He submits that the
record clearly shows that he did not state in that earlier application that he
was only a farmer. He points to the application form at page 174 of the record
where in response to the question asking the Applicant for his current
occupation he writes “Agriculturist & Builder”. Thus, he submits the Officer
erred in the view he took that the Applicant had only stated that his
occupation was farmer in that earlier application.
[15]
That
submission is persuasive only if one ignores the remainder of the application.
As was pointed out by the Respondent, the four-page letter accompanying the
application, which forms a part of the application, makes no reference at all
to the Applicant’s occupation as a “builder”. It deals solely and
exclusively with his farming operation. That document sets out the Applicant’s
net assets as $1,898,986 and states that “it is evident from the above [figure]
that the applicant has been successfully managing his agricultural business.”
In short, the only reference to any other business other than farming is the
single word “builder” in response to the question as to occupation.
[16]
The
discrepancies between his statements in the cover letter dated February 2007
and his statements given to the Officer in January 2009 are stark. In 2007 he
devotes his maximum time to his farming business and all of his assets relate to
that business. In 2009 he is principally a contractor, the farm requires very
little of his time as it runs largely on its own. His evidence to the Officer
concerning the major expense of the construction business misstates the cost of
labour by a multiple of at least 13 and his estimate of profit is 154,000 INR
more than the nil that is shown on his books! He offers no explanation for these
discrepancies.
[17]
The
record quite simply does not support the Applicant’s position that the Officer’s
adverse finding on credibility was based on an erroneous finding of fact or
that it was in any way unreasonable given the statements of the Applicant in
the two applications, taken with his further statements made at the oral
hearing and especially in light of his inability to provide any explanation for
the inconsistencies. This Officer’s decision was not unreasonable; in my view
his decision was the only one that could be drawn from the evidence before him.
[18]
Neither
party proposed a question for certification, nor is there one.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
- This application
for judicial review is dismissed; and
- No question is
certified.
“Russel
W. Zinn”
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