Date: 20110613
Docket: IMM-4988-10
Citation: 2011
FC 677
Ottawa, Ontario,
June 13, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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ZHI MING YE
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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]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, RSC 2001, c 27 (the Act) for judicial review of a
decision of a designated immigration officer of the Canadian Consulate General
in Hong Kong, China (the officer), dated June 23, 2010, wherein the officer
determined that the applicant did not meet the requirements for a permanent
resident visa as an investor.
[2]
The applicant requests that the decision of the officer be set
aside and the application remitted for redetermination by a different officer.
Background
[3]
Zhi
Ming Ye (the applicant) was born on January 2, 1966 and is a citizen of the
People’s Republic of China. He is currently a vice
general manager of a handbag manufacturing company.
[4]
On
June 25, 2008, the applicant submitted an application for permanent residence
in Canada as a member of the
investor class. He declared that he had an estimated personal net worth (PNW)
of C$864,000, of which C$332,000 was from a property located at Production Team
12 in Renhe Township, Renhe District Commune, Baiyun District, Guangzhou, China
(the property).
[5]
The
application was refused on May 12, 2010. The applicant subsequently submitted
further documentation and the officer reconsidered the application, but it was
again refused on June 23, 2010.
Officer’s Decision
[6]
The
officer found that pursuant to subsection 12(2) of the Act and subsection 90(1)
of the Immigration and Refugee Protection
Regulations,
SOR/2002-227, (the Regulations), a foreign national may become
a permanent resident based on his or her ability to become economically
established in Canada as an investor defined in subsection 88(1) of
the Regulations.
[7]
At
the time, subsection 88(1) defined an investor as a foreign national who (a)
has business experience, (b) has a legally obtained minimum net worth of at
least $800,000 and (c) intends to make an investment.
[8]
Subsection
88(1) also defines net worth as, in respect of the foreign national and their
spouse or common-law partner, the fair market value of all their assets minus
the fair market value of all their liabilities.
[9]
The
officer was not satisfied that the applicant had a minimum net worth of at
least $800,000. The officer’s concern was with the value of the property noted
above.
[10]
The
officer found that:
1. The applicant had
not demonstrated that he has ownership of the land on which the property was
built;
2. The applicant had
the right to construct houses and related facilities for personal residential
purposes, but had built a five storey building with a commercial store on the
ground floor, apparently violating the terms of the use for the land; and
3. The applicant only
had the right to transfer the use of the land to the members of the same
collective economic organization. However, the appraisal report submitted by
the applicant stated that the property was appraised based on free
transferability on the open market. The officer was not satisfied that the
appraisal report accurately reflected the fair market value of the property.
[11]
The
officer concluded that the applicant had not presented sufficient and credible
evidence of his ability to meet the minimum PNW requirement for an investor.
Issues
[12]
The
applicant submitted the following issue for consideration:
Did the officer err in
excluding the value of the property from the applicant’s assets, or reducing
its value to zero?
[13]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the officer err
in finding that the applicant had not demonstrated a personal net worth of at
least $800,000?
3. Did the officer
breach the applicant’s right to procedural fairness?
Applicant’s Written Submissions
[14]
The
applicant submits that the officer’s reasons were not adequate as it was
unclear how the value of the property was treated. The applicant submits that
it was unreasonable for the officer to determine that the value of the property
was zero due to perceived problems with the appraisal report. If the officer
had concerns about the use of the terms “open market” and “free
transferability” in the appraisal, she ought to have convened an interview to
disabuse those concerns. Failure to do so was a breach of procedural fairness.
[15]
The
applicant also argues that the appraisal company clearly understood the nature
of the property by stating that it was a land using certificate which the
applicant held and including the certificate in the appendix of the appraisal.
The appraisal company also compared similar property in the area to reach the
appraisal. The applicant submits that the term market value does not suggest
the appraisal company valued the property as if it were not subject to the
requirements of the land use certificate. Rather, market value takes into
account the highest and best use of the property.
[16]
Further,
the applicant argues that the land use certificate gives the applicant the
right to build and own buildings on the land covered by the certificate, as
well as the right to transfer the certificate to others in the collective. Thus,
the buildings and land use certificate itself were assets of the applicant.
[17]
Finally,
the applicant submits that it was unreasonable for the officer to find that an
alleged breach of the land use certificate resulted in the property being of no
or little value. There was no evidence to suggest the effect of the commercial
store on the ability to transfer the land use certificate.
Respondent’s Written Submissions
[18]
The
respondent emphasizes that the onus was on the applicant to provide all
necessary and credible supporting documentation to the immigration officer in
support his application. The evidence provided by the applicant on the value of
the property was ambiguous. The applicant acknowledged this by stating that it
was not clear what impact the violation of the land use certificate would have
on the property. The respondent submits that ambiguous evidence is not
sufficient to meet the onus on the applicant that he has a PNW of at least
$800,000.
[19]
The
respondent also submits that while the applicant has argued that the appraisal
company did take into account the transfer restrictions on the land use certificate,
this is merely an alternative view of the evidence. It does not demonstrate the
officer’s interpretation of the evidence was unreasonable. The conflicting
evidence is ambiguous and the officer was not required to request a new
valuation.
[20]
Finally,
the respondent submits that the officer provided the applicant an opportunity
to respond to her concerns by accepting new evidence and reconsidering the
application. She was not required to provide the applicant a further
opportunity to clarify his application.
Analysis and Decision
[21]
Issue
1
What is the appropriate
standard of review?
The
officer found that the applicant did not have sufficient PNW to be an investor
under section 90 of the Regulations. This was a finding of fact. The Supreme
Court emphasized in Khosa v Canada
(Minister of Citizenship and Immigration),
2009 SCC 12, [2009] 1 S.C.R. 339, at paragraph 46, that
paragraph 18.1(4)(d) of the Federal Courts Act, RS, 1985, c F-7, demonstrates that Parliament intended for the Court to afford a
high degree of defence to administrative fact finding. This finding will
therefore be reviewed on the reasonableness standard.
[22]
The applicant has also raised issues of
procedural fairness which will be assessed on the correctness standard (see Khosa
above, at paragraph 43).
[23]
Issue 2
Did the
officer err in finding that the applicant had not demonstrated a personal net
worth of at least $800,000?
Generally, the
onus is on the applicant to provide evidence to support his application. As Mr.
Justice Paul Crampton stated in Pan v Canada (Minister of
Citizenship and Immigration), 2010 FC 838 at
paragraph 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.
[24]
The
duty, in this case, was for the applicant to show that he had a PNW of at least
$800,000
as per the version of subsection 88(1) of the Regulations at the time of the
application. The applicant included the appraisal of the Renhe township
property as evidence of his PNW.
[25]
The
immigration officer took issue with the fact that the applicant did not own the
land on which the buildings were constructed and could not transfer the land to
others outside of his collective and yet, the appraisal of the property was
based on a “complete property right and free transferability in open market”.
[26]
The
applicant submitted a letter from the appraisal company in his additional
materials for reconsideration of the application. In this letter, the appraisal
company explains Chinese land use rights and details the restrictions on
properties that have land use certificates. However, the letter does not state
that the appraisal company took into consideration the land use certificate
restrictions when appraising the property in question. This is confusing at
best.
[27]
The
onus was on the applicant to demonstrate through sufficient and credible
evidence, not ambiguous evidence, that he had a personal net worth of at least
$800,000. I cannot find that the immigration officer’s interpretation of the
appraisal report and additional materials was unreasonable. Therefore, the
conclusion that the applicant had not clearly shown he had a PNW of at least
$800,000 was also not unreasonable.
[28]
Issue
3
Did the officer breach the
applicant’s right to procedural fairness?
The officer did not breach
procedural fairness for the following reasons.
[29]
As
noted above, the onus is on the applicant to satisfy the officer of all parts
of his application. The case law specifies that an immigration officer is not
under a duty to inform the applicant about any concerns regarding the
application which arise directly from the requirements of the legislation or
regulations (see Hassani v Canada (Minister of
Citizenship and Immigration), 2006 FC 1283 at paragraphs 23 and 24). Neither
is the officer under an obligation to ask for additional information where the
applicant’s material is insufficient (see Madan v Canada (Minister of
Citizenship and Immigration) (1999), 172 FTR 262 (FCTD), [1999] FCJ No
1198 (QL) at paragraph 6).
[30]
However,
an immigration officer is obligated to inform the applicant of any concerns
related to the veracity of documents and will be required to make further
inquires (see Hassani above, at paragraph 24).
[31]
The
Regulations define investor in subsection 88(1) as a person with a PNW of at
least $800,000. The onus was on the applicant to demonstrate that he met this
requirement which included demonstrating clearly that he owned the property and
that its value put him above the required PNW necessary.
[32]
The
officer refused the applicant’s application initially because the applicant had
not proven ownership as required by the Regulations. She sent a letter of
refusal indicating her concerns with the appraisal report in particular. The
applicant then submitted additional materials and requested the officer to
reconsider. The officer considered these materials and reassessed the
application finding that the applicant had not assuaged her concerns that the
applicant did not meet the $800,000 requirement in the Regulations. The officer
was not obliged to provide the applicant with further opportunities to satisfy
her concerns.
[33]
I
would therefore dismiss the application for judicial review.
[34]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[35]
IT IS
ORDERED that the
application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Immigration and Refugee
Protection Act, RS 2001, c 27)
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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.
72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under this
Act is commenced by making an application for leave to the Court.
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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.
72. (1) Le contrôle judiciaire
par la Cour fédérale de toute mesure — décision, ordonnance, question ou
affaire — prise dans le cadre de la présente loi est subordonné au dépôt
d’une demande d’autorisation.
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Immigration and Refugee
Protection Regulations (SOR/2002-227)
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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).
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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).
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