Date: 20110209
Docket: IMM-3554-10
Citation: 2011 FC 142
Ottawa, Ontario, February 9,
2011
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
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SHU LIANG SUN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
present Reasons for Judgment and Judgment pertain to a decision from Visa
Officer Chung, from the Canadian consulate in Hong Kong, refusing to grant the
Applicant status as a permanent resident in the Investor Class under the
provisions of the Immigration and Refugee Protection Act, SC 2001, c 27
(“IRPA”). Leave was granted by Justice Mosley on November 3, 2010.
[2]
The
Visa Officer received Mr. Sun’s application for Permanent Residence under the
Investor Class on April 11, 2007. On October 13, 2008, the Visa Officer sent an
email to the Applicant’s immigration consultant asking that supporting
documents and the application be submitted by February 10, 2009. This deadline
was extended to May 18, 2009. The full application was received on May 11,
2009. Concerned about the source of Mr. Sun’s funds, more particularly the loan
from his brother-in-law Mr. Li, the Visa Officer sent a letter on March 11,
2010 (the “fairness letter”), outlining the concerns about the absence of
sufficient and substantiated proof of the origin of the seed capital borrowed
from Mr. Li. The Applicant was given thirty (30) days to respond to this
letter, which he did. The Visa Officer was not satisfied with the additional
evidence put forth by the Applicant and rejected his permanent residency
application, on the grounds that the legality of the source of Mr. Sun’s funds
was not ascertained.
The Applicable Law
[3]
The
Immigration and Refugee Protection Regulations, SOR 2002/227 (“IRPR”) set
out various criteria to meet the Investor Class category for Permanent
Residency. Generally, section 90 states the following:
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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.
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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.
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[4]
As
indicated, section 88 of the IRPR indicates what the Investor Class consists
of. More precisely, at issue was the requirement provided by the definition of
“investor” that the Applicant was required to show he had “legally obtained” a
net worth of at least $800,000. To meet this burden, section 10(1)(c) of the
IRPR provides the following:
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Form
and content of application
10.
(1) Subject to paragraphs 28(b) to (d), an application under these
Regulations shall
(…)
(c)
include all information and documents required by these Regulations, as well
as any other evidence required by the Act;
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Forme
et contenu de la demande
10.
(1) Sous réserve des alinéas 28b) à d), toute demande au titre du présent règlement
:
(…)
c)
comporte les renseignements et documents exigés par le présent règlement et
est accompagnée des autres pièces justificatives exigées par la Loi;
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[5]
This
requirement is complemented by the following provisions of IRPA:
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Examination
by officer
15.
(1) An officer is authorized to proceed with an examination where a person
makes an application to the officer in accordance with this Act.
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Pouvoir
de l’agent
15.
(1) L’agent peut procéder à un contrôle dans le cadre de toute demande qui
lui est faite au titre de la présente loi.
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Obligation
— answer truthfully
16.
(1) A person who makes an application must answer truthfully all questions
put to them for the purpose of the examination and must produce a visa and
all relevant evidence and documents that the officer reasonably requires.
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Obligation
du demandeur
16.
(1) L’auteur d’une demande au titre de la présente loi doit répondre
véridiquement aux questions qui lui sont posées lors du contrôle, donner les
renseignements et tous éléments de preuve pertinents et présenter les visa et
documents requis.
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[6]
Hence,
the burden is on the Applicant to provide the evidence to establish that his
net worth of at least $800,000 was “legally obtained”.
The Standard
of Review
[7]
The
core issue put forth by the Applicant is that of the Visa Officer’s
appreciation of the evidence put forth by the Applicant in regards to the
source of his funds. The Applicant hints that this is a procedural fairness
question to be reviewed on the standard of correctness, as it is argued that
the fairness letter sent was not clear enough to give the Applicant a
reasonable opportunity to respond to the concerns. Furthermore, it is argued
that there was no evidence that the funds were obtained illegally, making the
Visa Officer’s concerns unreasonable. Also, it is said that the Visa Officer
did not meaningfully address the evidence submitted in response to the fairness
letter.
[8]
As
a fairness letter was sent and the Applicant responded to it, there is nothing
to suggest a breach of procedural fairness. As will be seen, the content
of the fairness letter was clear.
[9]
It
is clear that the issue arising is one of the Visa Officer’s assessment of the
evidence put forward by the Applicant. It is reviewable under the standard
of reasonableness, as it is a determination of fact and law (Dunsmuir v New
Brunswick,
2008 SCC 9). Although not stated explicitly, the reasonableness standard was
adopted by Justice Zinn in Vassan v Canada (Citizenship
and Immigration), 2009 FC 1049.
The Fairness
Letter
[10]
The
Visa Officer’s fairness letter is argued to have been unclear in regards to
what information needed to be put forward to satisfy the “legality” requirement
to meet the Investor Class requirements. It is thus relevant to reproduce the
relevant elements of this letter in order to address the Applicant’s argument
in regards to its clarity and assuage concerns about procedural fairness:
This is to advise you of my serious
concern that you do not appear to qualify for selection as an investor. In
order to qualify under the investor class for immigration to Canada you must identify all assets
and liabilities, which make up your personal net worth, and satisfy an
officer as to the source of your funds and assets, including demonstrating that
they were legally obtained.
Based on the documentation you have
submitted, I am concerned that you have not sufficiently demonstrated the source
of your funds or that they have been legally obtained and that you are not
inadmissible. I would like to remind you that the onus is on you, the
applicant, to demonstrate when you obtained your funds, how they were obtained,
the source and method of transfer, and that all the taxation and other
applicable laws were complied with. Specifically, you appeared to have borrowed RMB 1,9
million yuan from your brother-in-law, Li Qiu Bin, in 1998 to set up your
business. Hence, you failed to present sufficient and substantiated proof for
the origin of your seed capital. [emphasis added]
[11]
It
is clear that this letter sets out the Visa Officer’s concerns with Mr. Sun’s
application. Basically, more detail was sought on the loan given by Mr. Li, his
brother-in-law. The letter indicates particular aspects of this loan: how funds
were obtained, source and method of transfer, taxation and legal requirements
met. As Mr. Sun brought forth evidence to answer these concerns, it is
thus clear that procedural fairness was not breached. The Visa Officer did not
make a determination before the Applicant’s response was received, as the CAIPS
notes indicate. Hence, the Applicant fails in his argument that there was a
breach of procedural fairness or that the letter was unclear. In this respect,
the findings are very similar to those made in Li v Canada (Minister of
Citizenship and Immigration), 2006 FC 599. Further, the Applicant’s
submissions did not present any information or documentation supporting his
argument that the fairness letter was imprecise or unclear, other than stating
that “what is absent in this request is a specific request for the source of
the money that was loaned by Mr. Li to the applicant” and that it was unclear
that what was sought was the source of Mr. Li’s funds.
[12]
Section
16(1) of IRPA sets out that the Applicant has to oblige to a reasonable and
relevant request for documentation by the Officer. In this case, it is clear
that the information sought was relevant for processing the permanent residence
application. It inquires about the legitimacy of the “seed capital” in order to
establish a “legally obtained minimum net worth.” Also, the information
pertaining to the loan in 1998 (which was the seed capital of the Applicant’s
business), was not unreasonable in the circumstances and nothing in the file
indicates that obtaining such information was beyond Mr. Sun’s grasp.
The
Reasonableness of the Visa Officer’s Decision
[13]
Reviewing
a decision on the reasonableness standard of review has very clear
implications. The Court must not re-weigh the evidence, or substitute its
decision for that of the Visa Officer. Rather, the Court must address whether
the decision falls within the range of reasonable and acceptable outcomes
defensible in fact and in law (Dunsmuir, above, at para. 47).
[14]
The
Applicant was awarded, by way of a fairness letter, the opportunity to address
the Visa Officer’s concerns. The CAIPS notes indicate that this additional
information was indeed considered, which was further confirmed by the Visa Officer’s
affidavit. More precisely, the CAIPS notes indicated that “the LTR [sic]
from brother-in-law merely stated that he had lent Applicant RMB2M [sic].
No substantiated evidence submitted for how brother-in-law was able to
accumulate funds to lend to applicant. Applicant has already been reminded of
onus on him to demonstrate source of funds”.
[15]
The
only arguably new information submitted after the fairness letter in regards to
the source of the funds comes from Mr. Li’s affidavit. Here, it is said that
the funds loaned to the Applicant “came from my income accumulated from my work
for years and engagement in trade”. Surely, this does not address the concerns
set out in the fairness letter. More specific evidence was required, namely to
ensure that the funds were indeed “legally obtained”. It was the Officer’s duty
to verify that the net worth was legally obtained and that the Applicant met
the requirements to be considered an “investor” within the meaning of the
definition set out in section 88(1) of the IRPR. This determination requires
precise information, as the fairness letter implied. As the Visa Officer noted,
the statements of Messrs. Li and Sun do not amount to “substantiated evidence”.
[16]
The
Visa Officer’s request for information by way of the fairness letter was
“reasonably required”, as indicated by subsection 16(1) of IRPA. Also, as case
law recognizes, there was no need for the Visa Officer to suggest that the
Applicant was involved in illegal activity before seeking additional
information (Martirossian v Canada (Citizenship and
Immigration), 2001 FCT 1119). The Visa Officer needed to verify that the
funds were obtained legally, as was required by the IRPR. This need was clearly
stated in the fairness letter and the Applicant failed to meaningfully address
the concerns raised.
[17]
As
such, the impugned decision is reasonable and falls within the range of
acceptable outcomes defensible in fact and law. The application is denied.
[18]
No
question is submitted for certification, and none arises.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is dismissed.
No question is certified.
“Simon Noël”
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