Date: 20071022
Docket: IMM-1438-07
Citation: 2007 FC 1090
Montreal, Quebec, October
22, 2007
PRESENT: The Honourable Mr. Justice Blais
BETWEEN:
VIRASOUK
KASISAVANH
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of
a decision rendered by the visa officer Marthe Dufour, dated February 9, 2007,
wherein the visa officer denied the application for permanent residence.
BACKGROUND
[2]
Virasouk
Kasisavanh (the applicant) was born December 16, 1956 in Laos and is a
citizen of France.
[3]
On
April 26, 2005, selection certificates were issued by the Quebec provincial
authorities to the applicant and four members of his family.
[4]
He
attended a first interview at the Canadian Embassy in Paris, France on
March 15, 2006 and a second interview on September 22, 2006.
DECISION UNDER REVIEW
[5]
In
a letter dated February 9, 2007, the visa officer refused the permanent
resident visa application made by the applicant as an entrepreneur selected by
the Province
of Quebec, mainly on
the basis that the applicant had failed to provide the necessary information to
establish that the funds he declared in his application were legally obtained.
ISSUES
[6]
The
following issues are raised in this judicial review application:
1) Did the visa
officer err by concluding that the applicant did not meet the requirements of
the Regulations to be issued a permanent resident visa?
2) Did the visa
officer breach the duty of procedural fairness owed to the applicant?
PERTINENT LEGISLATION
Immigration and Refugee
Protection Regulations, S.O.R./2002-227
|
88. (1) The definitions in this
subsection apply in this Division.
[…]
"entrepreneur" means a
foreign national who
(a) has business
experience;
(b) has a legally obtained minimum net worth; and
[…]
|
88. (1) Les définitions qui suivent
s’appliquent à la présente section.
[…]
«entrepreneur » Étranger
qui, à la fois :
a) a de l’expérience dans l’exploitation d’une entreprise;
b) a
l’avoir net minimal et l’a obtenu licitement;
[…]
|
STANDARD OF REVIEW
[7]
It
is trite law that decisions of visa officers are discretionary decisions based
essentially on factual assessments and as such, deference must be shown by the
Court when reviewing such decisions. As Justice Yves de
Montigny wrote in Sadiki Ouafae v. Minister of Citizenship and Immigration,
2005 FC 459 (also cited by the Federal Court of Appeal in Boni v. Canada (Minister of
Citizenship and Immigration), 2006 FCA 68 at paragraph 7) at
paragraphs 18 and 19:
18 Opinion
on the appropriate standard of review for decisions by visa officers is divided
and appears to have spawned seemingly contradictory decisions. In some cases,
reasonableness simpliciter was the chosen standard (see, inter alia,
Yaghoubian v. Canada (M.C.I.), [2003]
FCT 615; Zheng v. Canada (M.C.I), [2000]
F.C.J. No. 31, IMM-3809-98; Lu v. Canada (M.C.I.), [1999]
F.C.J. No. 1907, IMM-414-99). In other decisions, patent unreasonableness
was chosen instead (see, for example, Khouta v. Canada (M.C.I .),
[2003]
F.C.J. No. 1143, 2003
FC 893; Kalia v. Canada (M.C.I.), [2002]
F.C.J. No. 998, 2002
FCT 731).
19 And yet, on closer inspection,
these decisions are not irreconcilable. The reason for the different choices is
essentially that the nature of the decision under review by this Court depends
on the context. Thus it goes without saying that the appropriate standard of
review for a discretionary decision by a visa officer assessing a prospective
immigrant's occupational experience is patent unreasonableness. Where the visa
officer's decision is based on an assessment of the facts, this Court will not
intervene unless it can be shown that the decision is based on an erroneous
finding of fact made in a perverse or capricious manner.
[8]
In the present case, the appropriate standard of review
concerning the admissibility of the applicant for permanent residence is patent
unreasonableness, since it concerns an assessment of the origin of the
applicant’s funds which is a pure question of facts.
[9]
However, allegations of a breach of procedural fairness
will be reviewed on a standard of correctness (Ellis-Don Ltd. v. Ontario
(Labour Relations Board), [2001] 1
S.C.R. 221, at paragraph 65).
ANALYSIS
1) Did the visa officer
err by concluding that the applicant did not meet the requirements of the Regulations
to be issued a permanent resident visa?
[10]
The
applicant alleges that the visa officer’s conclusion regarding the applicant’s
residency application and his net worth is patently unreasonable.
[11]
The
applicant submitted several documents concerning his net worth. However the
documents revealed nothing about the source of his funds. The applicant failed
to demonstrate how he was able to save $301,164 with the income reported in
those documents. Even though he had not worked since September 2003 and had
stayed in Canada as a tourist
for two years.
[12]
In
another decision concerning an application for judicial review, Martirossian v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 1119, I wrote at paragraphs 35 and
36:
[35]
The visa officer never suggested that the applicant
was involved in unlawful activities. But, to eliminate that possibility, she
wanted the applicant to prove a complete absence of unlawful activity. That is
why the origin of the applicant's funds was an extremely relevant factor in
connection with his admissibility, a matter that fell within the competence of
the visa officer. In fact, without accusing the applicant of anything, it is
reasonable to think, absent proof to the contrary, that the large sums acquired
by the applicant might originate in illegal activities contemplated by section
19 of the Act such as, for example, money laundering, fraud, organized crime or
black market transactions.
[36]
The visa officer was dissatisfied by the evidence,
for during his interview the applicant produced only bank statements. The
applicant was unaware and is still unaware that a bank statement proves only
the possession of financial resources, not its origin. […]
[13]
In
the case at bar, some of the money can be linked to lawful activities, but the
documents provided are clearly insufficient to explain the entire net worth of
the applicant.
[14]
At
the interview held on March 15, 2006, when questioned about crucial information
concerning the source of funds - his past employments, the source of the money
that he had lent to a business, whether had declared the sale of shares in 1994
- the applicant simply did not remember any of that information. Basically, the
money he now had came from savings without any indication - besides savings
accounts since 1990, low priced lodging and family allowances - as to how he
could have saved so much with a very ordinary wage from 1998 to 2002 to support
his family.
[15]
The
applicant has not been able to demonstrate a patent and unreasonable mistake in
the decision rendered by the visa officer. Thus, I find no reason to interfere
with the visa officer’s decision.
2.
Did the visa officer breach the duty of procedural fairness owed to the
applicant?
[16]
The
applicant alleges that the visa officer did not act fairly and that during the
interview, he was not given the opportunity to know the case against his
application.
[17]
A
review of the record clearly shows that the applicant was aware of the
importance of documents proving that his net worth came from licit activities.
[18]
In
a letter to the Canadian Embassy dated May 15, 2006, the applicant stated that
he had brought all the necessary documents to the March 15, 2006 interview.
However, in that same letter, the applicant also recognized that the visa
officer had asked him to provide more documents justifying his income, specifically,
his declaration of personal incomes from 1989 to 1997 and of professional
incomes from 2000 to 2002.
[19]
In
the letter, the applicant justifies the fact that he could not submit the documents
because he could not reach the person who kept those documents and because the Tax Center does
not keep records for such a long period of time.
[20]
It
is important to note here that, according to the CAIPS notes, duplicates of tax
declarations can be easily obtained in France.
[21]
On
October 2, 2006, the applicant sent another letter with documents attached
purporting to complete the evidence that was already before the visa officer
during the interviews. Those documents are insufficient to explain the source of
the applicant’s funds and indicate that on that date, the applicant was aware
that the source of his net wealth was still at issue.
[22]
The
applicant alleges that the visa officer ignored those documents. First, as I
mentioned earlier, the documents were of no help concerning the legality of the
origin of the applicant’s funds and second, the applicant has not rebutted the
presumption that the officer has considered all of the evidence before (Hassan v. Canada (Minister of Employment and Immigration)
(1992), 147 N.R. 317
(F.C.A.), [1992] F.C.J. No. 946
(QL); Shah v. Canada (Minister of Public Security and
Emergency Preparedness, 2007 FC 132,
[2007] F.C.J. No. 185
(QL)).
[23]
The
applicant submits that the officer failed to consider the interview of
September 22, 2006. While it is true that this interview is first mentioned in
the CAIPS notes entry of October 16, 2006, it is clear from the refusal letter
that the visa officer based her decision on the absence of documents lawfully requested
of the applicant and necessary to verify the admissibility of the applicant.
[24]
Finally,
failing to follow the findings of the Quebec Immigration Board does not
constitute a breach of fairness. In fact, Justice Gilles Letourneau, for the
Federal Court of Appeal, in Biao v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 43 held, at paragraph 1:
We
consider that this appeal should be dismissed with costs and that this question
certified by the motions judge should be answered in the negative:
Does
the Canada-Quebec Accord limit the jurisdiction of the visa officer to question
the source of funds of a Quebec-destined applicant for permanent residence in Canada, in order to establish the applicant's admissibility? […]
The federal authorities
not being limited in their jurisdiction to question the source of funds for the
purpose of admissibility, they are clearly not limited, nor bound to the Quebec findings concerning
selection requirements unless the applicant does not meet those criteria for
selection.
[25]
For
all the above reasons, I see no breach of procedural fairness in the present
case.
[26]
Therefore,
the intervention of the Court is not warranted in this case.
[27]
Neither
counsel suggested questions for certification.
JUDGMENT
[1] The application
is denied.
[2] No questions
for certification.
“Pierre
Blais”
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