Docket: IMM-2766-11
Citation: 2011 FC 1362
Toronto,
Ontario, November 24, 2011
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
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ROMAN MOLEV
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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 ORDER AND ORDER
[1]
The
present Application concerns the rejection of the Applicant’s application for
permanent residence under the Federal Investor program. The application was
refused on the basis of the Applicant’s perceived failure to prove a single
fact in a highly complex evidentiary scenario.
[2]
The
Applicant is a Russian citizen who is registered sole owner of a business and,
in support of his application, has stated his net worth to be approximately $
1,000,000 CAD. The Applicant’s wife, also a citizen of Russia, was
included in the application as a dependent.
[3]
Subsection
88(1) of the Immigration and Refugee Protection Regulations, SOR
2002-207 (2010), defines an investor as a foreign national who has business
experience, a legally obtained minimum net worth of at least $800, 000, and who
indicates in writing that he or she intends to make, or has already made, an
investment. The Visa Officer in the present case defined “net worth” in the
following way:
Subsection 88(1) of the Regulations 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.
(Application Record, p.7)
The following list of documents supplied by
the Applicant in support of his application discloses the complexity of the
financial evidence produced:
·
Application for
permanent residence;
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Diplomas for the
Applicant and his wife;
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Reference letter for
Applicant;
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Explanatory note from
Applicant regarding his net worth;
·
Certificate of state
registration of right for wife’s apartment (Lenina prospect, 9-3);
·
Transcript from the
register of the self-regulating society of appraisers,
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Appraisal report,
·
Certificate of state
registration of rights for Applicant’s plot of land (Sadovaya Street, 16);
·
Certificates of state
registration of rights for the house on aim plot of land;
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Appraisal report;
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Sales agreement
(Sadovaya Street, 16);
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Loan agreement;
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Letter from Regiobank
regarding Applicant’s mortgage loan;
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Applicant’s
certificate of registration as a tax payer (without translation);
·
Certificate of
registration of Applicant as an entrepreneur (without translation);
·
Staff list for
Applicant’s business (2009);
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Staff list for
Applicant’s business (2008);
·
Balance of account
(January 2009 — October 2009);
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Balance of account
(August 2007— January 2008);
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Balance of account
(October 2006— February 2010);
·
List of goods
register in storage for the period of January 1,2010 to February 24, 2010;
·
Financial highlights for
2009;
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Tax declaration for
third quarter of 2009;
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Tax declaration for
second quarter of 2009;
·
Register of data of
individuals income for 2008;
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Tax declaration for
2008;
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Tax declaration for
2007;
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Tax declarations for
first through fourth quarters of 2006;
·
Register of data of
individuals income for 2006;
·
Certificate from
Regiobank advising that loan of 38 million roubles that Applicant took from
bank on October 30, 2006 was fully repaid on August 26, 2009;
·
Certificate from
Regiobank advising that Applicant has had an account with them since October
13, 2006;
·
Lease contract for
non-residential premises.
(Application
Record, CAIPS Note p. 9)
The Visa Officer’s reason for rejecting the
Applicant’s application is expressed in the decision letter presently under
review:
You have not satisfied me that
you have a legally obtained minimum net worth of at least $800,000 because you
have not provided documentary evidence to support the stated net worth of your
business.
(Application
Record, p. 7)
[4]
I
find that the key issue for determination is whether the Visa Officer was
required to give the Applicant a reasonable opportunity to establish that the
evidence submitted proves the fact found to be so important. The Applicant
argues that the decision breached the duty of procedural fairness by failing to
adhere the Guidelines expressed in the CIC Overseas Processing Manual OP9 at
paragraphs 5.15 and 11.2:
When the officer has concerns about
eligibility or admissibility, the applicant must be given a fair opportunity to
correct or contradict those concerns. The applicant must be given an
opportunity to rebut the content of any negative provincial assessment that may
influence the final decision.
[…]
When the veracity of the
documentation is in doubt, the officer should first request further
documentation.
[5]
Indeed,
following receipt of the Visa Officer’s decision, then Counsel for the
Applicant made a request to the Visa Officer to re-open the decision to allow
the Applicant an opportunity to meet the Visa Officer’s concern. This request
was denied.
[6]
Given
the complexity of the evidence, it is understandable why the Visa Officer was
in doubt. In my opinion, the Visa Officer’s failure to resolve the doubt by
following the Guidelines constitutes a breach in the duty of fairness owed to
the Applicant. As a result I find that the decision under review was rendered
in reviewable error.
ORDER
THIS COURT
ORDERS that the decision is set aside and the matter is referred back
for redetermination.
There is no
question to certify.
“Douglas
R. Campbell”
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