Date: 20040216
Docket: IMM-306-02
Citation: 2004 FC 239
OTTAWA, ONTARIO, THE 16th DAY OF FEBRUARY 2004
Present: THE HONOURABLE MR. JUSTICE LUC MARTINEAU
BETWEEN:
MR. WU LU
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant, a citizen of the People's Republic of China, is seeking a judicial review of a decision by Mrs. Jeen Kim, visa officer, dated December 28, 2001, refusing the applicant's application for permanent residence under the class of immigrant investors who intend to reside in Quebec.
[2] After obtaining a Certificat de sélection du Québec, the applicant was called for an interview by the visa officer. The correspondence indicated that the applicant had to explain how he had started his business and how he had raised his capital. He also had to provide a list of original documents, such as proof of the stock transactions made, as well as all supporting documents attesting to the source of his funds.
[3] The interview took place on November 29, 2001. The applicant's wife was also present. During the interview, the visa officer asked the applicant several questions about his employment history, his income, as well as the source and the accumulation of his assets. It is evident that the visa officer was entertaining serious doubts about the origin of the funds. She had also noted certain contradictions with respect to the applicant's employment income. The applicant explained, with supporting computerized statements, that he had accumulated a large part of his wealth through stock transactions. He also provided explanations about his considerable employment income. Despite his explanations, at the end of the interview, the visa officer shared her concerns with the applicant and asked him what independently verifiable documentation he could provide about how his funds had been obtained. The applicant replied that all of the documentation had been prepared by his lawyer and that he did not know what kind of documents to provide. He told her that he could only provide those documents.
[4] On December 28, 2001, the visa officer reviewed the application form, the documentation in the record, as well as the notes she had taken during the interview. The visa officer refused the application for permanent residence because she was not convinced that the applicant's admission into Canada would not be contrary to the Immigration Act, R.S.C. (1985), c. I-2 (the Act) and the Immigration Regulations, 1978, SOR/78-172 (the Regulations).
[5] First, the applicant alleges that the visa officer had an aggressive attitude and tone towards him. The applicant suggests that the visa officer's doubts were evidence of a very widespread prejudice towards investor candidates from a country like China, where there seems to be quite a high incidence of administrative corruption.
[6] Obviously, the applicant has not discharged his burden of proving that the visa officer did not fulfilled her duty of procedural fairness or that there is a reasonable apprehension of bias. The allegations about inappropriate conduct are denied by the visa officer, who also signed a detailed affidavit. There was no examination and this Court is not able to assess the credibility of the affiants. On this point, Tremblay-Lamer J., in Wang v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1083 (F.C.T.D.) (QL) states at paragraph 24:
In my view, despite the fact that the parties disagree over what actually transpired during the interview, it still remains that in matters of judicial review, the burden is on the applicant to show that the tribunal has not complied with procedural fairness or has not acted fairly or reasonably (Fehr v. Canada (National Parole Board) (1995), 93 F.T.R. 161. Based on the evidence before me, I am not satisfied that the applicant has succeeded in establishing that there was a reasonable apprehension of bias on the part of the immigration officer.
[7] That said, even assuming that the visa officer might have had an aggressive tone, "an informed person, viewing the matter realistically and practically - and having thought the matter through" (Committee for Justice and Liberty et al. v. Canada (National Energy Board), [1978] 1 S.C.R. 369 at pages 394 and 395), would conclude that, under the circumstances of this case, such conduct does not give rise to a reasonable apprehension of bias (Moneim v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1977 (F.C.T.D.) (QL), at paragraph 12; and P. Garant, Droit administratif, 4th edition; vol. 2 (Cowansville (Qc): Éditions Yvon Blais, 1996) at page 393).
[8] The applicant also alleges that the visa officer's quick and general enumeration of points of doubt, and her failure to specify the documents required to clarify these points, amounts to a breach of procedural fairness. The applicant further alleges that the visa officer refused him the right to consult his documentation in order to respond to her questions. These allegations, too, are unfounded. The visa officer did indeed point out to the applicant the shortcomings in his file. In addition, the notes entered in the Computer Assisted Immigration Processing System (CAIPS) clearly indicate that the applicant had, in fact, consulted his documentation during the interview. Finally, it was not up to the visa officer to tell the applicant what other documents should have been provided.
[9] Pursuant to the Act, a person who wants to settle in Canada has the burden of proving that his admission would not be contrary to the Act or the regulations thereunder. It is the visa officer who issues the visas, insofar as he is satisfied that it would not be contrary to the Act and the regulations to grant landing to the person applying and his accompanying dependants. The following provisions of the Act are relevant:
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8(1) Burden of proof - Where a person seeks to come into Canada, the burden of providing that that person has a right to come into Canada or that his admission would not be contrary to this Act or the regulations rests upon that person.
9(3) Duty to answer questions - Every person shall answer truthfully all questions put to that person by a visa officer and shall produce such documentation as may be required by the visa officer for the purpose of establishing that his admission would not be contrary to this Act or the regulations.
9(4) Issuance of visa - subject to subsection (5), where a visa officer is satisfied that it would not be contrary to this Act or the regulations to grant landing or entry, as the case may be, to a person who has made an application pursuant to subsection (1) and to the person's dependants, the visa office may issue a visa to that person and to each of that Person's accompanying dependants for purpose of identifying the holder thereof as an immigrant or a visitor, as the case may be, who, in the opinion of the visa officer, meets the requirements of this Act and the regulations.
8 (1) Charge de la preuve - Il incombe à quiconque cherche à entrer au Canada de prouver qu'il en a le droit ou que le fait d'y être admis ne contreviendrait pas à la présente loi ni à ses règlements.
9(3) Obligations - Toute personne doit répondre franchement aux questions de l'agent des visas et produire toutes les pièces qu'exige celui-ci pour établir que son admission ne contreviendrait pas à la présente loi ni à ses règlements.
9(4) Délivrance de visas - Sous réserve du paragraphe (5), l'agent des visas qui est convaincu que l'établissement ou le séjour au Canada du demandeur et des personnes à sa charge ne contreviendrait pas à la présente loi ni à ses règlements peut délivrer à ce dernier et aux personnes à charge qui l'accompagnent un visa précisant leur qualité d'immigrant ou de visiteur et attestant qu'à son avis, ils satisfont aux exigences de la présente loi et de ses règlements.
[10] In this case, the applicant had to provide the visa officer with all the material necessary in order to show that he was not inadmissible to Canada (Madan v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1198 (F.C.T.D.) (QL), at paragraph 6). Moreover, it is acknowledged that a visa officer does not have the duty to confront the visa applicant with his concerns (Naghashian v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 654 (F.C.T.D.) (QL); and Oei v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 600 (F.C.T.D.) (QL), at paragraph 37). Notwithstanding this general observation, the notes in the file show that the applicant was repeatedly confronted with the visa officer's concerns. The applicant was therefore at liberty to present any additional documentary evidence before the officer rendered her decision. The applicant never asked the visa officer for more time to provide additional documents. The visa officer did not, therefore, act unreasonably.
[11] Second, the applicant submits that the visa officer made erroneous findings of fact and that her decision is "unreasonable" because the applicant provided all the documentation available and gave reasonable explanations about his past earnings and the source of his funds. In this respect, I note that some of the judges from this Court have applied the reasonableness simpliciter standard, including O'Keefe J. in Yin v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 985 (F.C.T.D.) (QL), at paragraph 20, while others, like MacKay J. in Kalia v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 998 (F.C.T.D.) (QL), have applied the standard of the patently unreasonable decision. Even in applying the most exacting standard, I am of the opinion that the visa officer's decision is supported by reasons that withstand a somewhat probing examination; in any event, the visa officer's decision is therefore not unreasonable.
[12] Let us clarify the issue of jurisdiction right away. As it was pointed out earlier, the applicant obtained his Certificat de sélection du Québec after providing various documents establishing the origin of his assets, the very documents that were found to be unsatisfactory by the visa officer. That said, it was clearly established in Biao v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 338 (F.C.A.) (QL), that the visa officer always has the jurisdiction to ask the visa applicant to provide supporting documents attesting to the source of his funds. In fact, the visa officer must be able to determine if the visa applicant is, in fact, admissible under the Act, notwithstanding the Canada-Quebec Accord.
[13] In Martirossian v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1538 (F.C.T.D.) (QL), Blais J. dismissed an application for judicial review to set aside a visa officer's decision refusing an application for permanent residence because the applicant in question had not proved that he did not belong to an inadmissible class (as set out in section 19 of the Act, in particular). Blais J. states as follows at paragraphs 35-39:
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.
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. He says, in his affidavit of November 17, 2000:
[Translation] Indeed, I produced various bank statements, filed in support of my affidavit as Exhibit A-6; furthermore, the visa officer had in her file various contracts and receipts establishing my business relations during the years 1996 and 1997 that were the source of the funds I had, the said documents are filed as Exhibit A-7 in support of this affidavit.
Exhibit A-7 contains a few simple contracts and seven (7) documents entitled "ACCEPTANCE CERTIFICATS" [sic] that refer to the amounts of the transactions. These documents do not show how the applicant earned this money.
The applicant failed to demonstrate that he does not belong to an inadmissible class and thus the visa officer rejected his application.
In conclusion, I am of the opinion that the application for judicial review should be dismissed.
[Emphasis added]
[14] In this case, the visa officer was not persuaded that the applicant was admissible to Canada. Here, the decision to refuse the application for permanent residence is based on several contradictions, implausibilities and shortcomings noted in the applicant's supporting documents concerning the accumulation of his fortune, particularly:
a) The contradictions about the income and bonus earned at Guangdong Province Foreign Trading Base Co.;
b) The contradictions and omissions concerning the employment and the employment income at Hai Nan H.K. Macau International Trust & Investment Co. Ltd.;
c) The applicant's inability to provide independent proof of his earnings at Hai Nan H.K. Macau International Trust & Investment Co. Ltd., such as receipts for income tax paid on the earnings earned there;
d) The applicant's vague answers about the stock investments that he allegedly made, including his inability to name any of the three companies in which in had invested all of his savings in 1991 and which increased his capital from $120,000 yuan to 800 000 yuan in about one year and a half;
e) The applicant's inability to provide supporting documents, other than the computer printouts, to attest to his stock transactions, as, for example, original receipts of his sales and acquisitions of shares.
[15] After examining all of the evidence in the record, I am of the opinion that the visa officer's decision was reasonable under the circumstances. That said, I considered the affidavit of Pierre Saint-Louis, dated October 30, 2002. However, I note that he gives his opinion on several subjects and that the affidavit includes information that was not given to the visa officer. It is settled law that at the time of an application for judicial review, the Court must determine whether the decision was reasonable given the evidence that was before the decision-maker. Thus, the only relevant evidence is that which was before the visa officer (Kim v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1103 (F.C.T.D.) (QL)).
[16] In this case, the inferences and the findings of fact made by the visa officer are not capricious or arbitrary and her reasoning is justifiable under the circumstances. Consequently, this Court cannot substitute its personal opinion for that of the visa officer (Khan v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 13 (F.C.T.D.) (QL), at paragraph 1; and Chu v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1152 (F.C.T.D.) (QL), at paragraph 2). There is therefore no basis for the Court to review the visa officer's decision.
[17] In conclusion, this application must be dismissed. Moreover, there is no question of general importance raised in this matter.
ORDER
THE COURT ORDERS that the application for judicial review be dismissed. No question of general importance will be certified.
"Luc Martineau"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-306-02
STYLE OF CAUSE: MR. WU LU v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: FEBRUARY 5, 2004
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE MARTINEAU
DATE OF REASONS: FEBRUARY 16, 2004
APPEARANCES:
MAURICE MOUSSEAU FOR THE APPLICANT
SÉBASTIEN DASYLVA FOR THE RESPONDENT
SOLICITORS OF RECORD:
MAURICE MOUSSEAU FOR THE APPLICANT
MONTRÉAL, QUEBEC
MORRIS ROSENBERG FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL
OF CANADA