Date: 20040527
Docket: IMM-4532-03
Citation: 2004 FC 770
Between:
XU HUI LAN
Applicant
And:
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ROULEAU J.
[1] This is an application for judicial review of the decision by visa officer Candace Brooks dated April 2, 2003, dismissing the application for permanent residence made by the applicant in the "immigrant investor" class.
[2] On June 18, 2001, the applicant received her Certificat de sélection du Québec, having been selected as an immigrant investor following an interview with Gilles Cyr, immigration counsellor, at the Délégation du Québec in Hong Kong. On March 24, 2003, the applicant went to her selection interview with the visa officer at the Canadian Consulate General in Hong Kong.
[3] On April 2, 2003, the officer dismissed the applicant's application for permanent residence because she had not complied with subsection 16(1) of the Immigration and Refugee Protection Act (the Act). The visa officer wrote to the applicant to inform her that her application for permanent residence had been denied. The letter, in part, reads as follows:
Specifically you have failed to comply with the requirements of Subsection 16(1) of Canada's Immigration and Refugee Protection Act reads as follow:
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.
You do not meet the requirements of subsection 16(1) because you have not complied with my request to satisfactorily demonstrate the origins of your personal net worth.
[4] It appears from the notes in the CAIPS computer system that the visa officer was not persuaded that the applicant's funds came from legal and legitimate sources.
[5] The applicant having failed to provide the relevant documents requested by the visa officer (pay stubs, etc.) establishing the revenues accumulated by the applicant between 1984 and 1989 in the Chengdu Vegetable Company, the officer determined that this failure by the applicant made her inadmissible to Canada. The notes of the CAIPS computer system state:
Any pay stubs/salary receipts from the period of time she worked for the company? - No, at the time the system was not complete. (Explain?) PI then said that she had the pay stubs. I asked to see them. She said she did not bring them to the interview. Explains that she paid tax on all of them. Give her her paperwork back and ask her to find the documents that demonstrate she paid tax on them. States that she only has the most recent three years tax receipts. Ask if she was paid in cash? Yes. Where did the cash go? States she invested all in the Chengdu mattress company. I request the documents to show the deposits being entered in the bank. States that she does not have the bankbooks as proof that she deposited the money in the bank. Did not think she d apply for immigration at that time so she threw them away already. Now says the same for the pay stubs - cannot provide any indication that she was paid the stated salary and bonuses.
Summary: Worked for five years for Chengdu vegetable, ended in Feb 1989. No evidence of income/savings - confirm with PI that this is the case. PI confirms.
CHENGDU GREAT WALL MATTRESS
. . .
What did she have to do to become a partner? Shows me some papers.
Certification
She had to make an investment. The registered capital was 4 million. She got 10% so she invested 400 000. Where did the 400 000 come from? Savings of her whole family including her husband's. More than 200 000 came from her work. (No proof of this, as established above, since documents have been thrown away.
. . .
Conclusion: I am not satisfied regarding the source of funds used to make the initial investment in the Chengdu Great Wall Mattress Plant. There is no paper trail of earnings or savings leading up to the investment made in this company and made on the responses made to my questioning. I have concerns regarding the credibility of the applicant and her spouse. I am not satisfied that the applicant's initial investment in the mattress plant was legally obtained.
[6] The applicant claims that the visa officer erred in law in finding that she had not proved the legal origin of her assets. She submitted that the officer erred in her interpretation of the selection criteria in effect at the time that the applicant's application for permanent residence was made.
[7] Further, the applicant argues that the visa officer was unreasonable in requiring documents that had been issued more than 15 years ago.
[8] Moreover, the applicant is of the opinion that the visa officer violated the principles of natural justice by not clearly stating her concerns and by not giving the applicant the opportunity to respond to her doubts regarding the inadequate documentary evidence on the origin of her assets and the probable result of that inadequate documentation.
[9] In order to allow a visa application, the visa officer must be convinced that the prospective immigrant is a person admissible to Canada. Subsection 11(1) of the Act requires that "A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document shall be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act."
[10] Under the Act, the visa officer is bound to refuse to issue a visa to an applicant who has not fulfilled the obligations provided in subsection 16(1) of the Act which reads:
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.
[11] As we can observe on reading this provision, in order for the failure to provide documents to justify the refusal to issue a visa, these documents must be relevant, in light of the circumstances of the file under review. Thus, the visa officer's request for documents must be somewhat reasonable. The English version of this provision confirms this interpretation since the legislator states therein:
. . . a visa and all relevant evidence and documents that the officer reasonably requ must produce ires.
(Emphasis added.)
[12] It must therefore be determined in this case whether it was relevant to require documentary evidence of revenues earned by the applicant between 1984 and 1989. The evidence in the record shows that at the hearing the applicant submitted into evidence her financial statements dating from 1996, as well as her bank certificates, in order to establish the value of her current assets. The value of the applicant's shares in her company, which make up the majority of the assets declared on her application for permanent residence, was established by the financial statements of the company going back to 1996.
[13] Since the visa officer did not dispute the authenticity and the probative value of these documents, it is my opinion that it was possible to determine based on these documents that the applicant's current assets, primarily accumulated in recent years, were obtained legally and legitimately and, therefore, that it was not at all necessary to require documentary evidence of the revenue accumulated between 1984 and 1989 in order to ascertain that the current assets of the applicant were derived from lawful activities and not criminal activities.
[14] Yet, the only concern of the visa officer that led her to her decision to refuse was the source of the applicant's revenues accumulated in the years between 1984 and 1989. The approach advocated by the visa officer cannot hold because it put too heavy a burden on the applicant.
[15] In fact, it was unreasonable to require the applicant to produce documents which are difficult if not impossible to access, for a period so long ago, which are also without relevance or of very little relevance with regard to the legality of the funds indicated on her application for permanent residence.
[16] Consequently, the visa officer erred in basing her decision refusing the application solely on the applicant's inability to provide documents from over 15 years ago and which were not really relevant to the applicant's application for permanent residence.
[17] This error in itself warrants the Court's intervention since the lack of documentation for which the applicant was reproached cannot in itself serve as a basis for the visa officer's decision to refuse the application.
[18] For the above reasons, this application is allowed. The visa officer's decision shall be set aside and the matter referred back to another visa officer for a new interview and redetermination in accordance with these reasons.
"P. Rouleau"
JUDGE
OTTAWA, Ontario
May 27, 2004
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
STYLE OF CAUSE: XU HUI LAN v. MCI
DATE OF HEARING May 18, 2004
APPEARANCES:
Sylvie Tardif FOR THE APPLICANT
Michel Pépin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Sylvie Tardif
Montréal, Quebec FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR THE RESPONDENT