Ottawa, Ontario, September 26, 2005
PRESENT: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review filed under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act), against a decision by the Immigration Program Manager, Brian Ralph Hudson (Manager), of the Canadian Embassy in Beijing (embassy), People's Republic of China, dated November 18, 2004, denying the visa application of Yu Mei Zhang (applicant).
RELEVANT FACTS
[2] On August 4, 1999, the applicant filed an application for a permanent resident visa. She received her Quebec Selection Certificate (QSC) from the Quebec government's immigration authorities on July 31, 2001.
[3] On May 29, 2002, the applicant reported for an interview with a visa officer at the embassy in order to determine her admissibility.
[4] During the interview, the applicant stated that she had acquired a significant amount of money through financial transactions carried out by a brokerage company called Heilongjian BeiYa Futures Co. Ltd. (BeiYa Futures).
[5] The visa officer wrote in his notes that the applicant seemed credible to him during the interview.
[6] However, after reviewing the record, the visa officer noted that the applicant had filed copies of transaction receipts carried out by BeiYa Futures, but that the applicant had not filed anything tracing the history of her transactions.
[7] An employee of the embassy called BeiYa Futures to confirm the transactions. The employee was referred to the Director of the administration department, Mr. Zhang, who told him that he needed personal information regarding the applicant in order to make the verifications. The embassy employee could not disclose personal information because of the Privacy Act,R.S. 1985, c. P-21.
[8] On August 16, 2002, a letter was sent to the applicant asking her to provide documentation in relation to money acquired through her transactions which could be verified with the appropriate authorities. The applicant responded to the embassy's request by providing an unsigned letter dated September 16, 2002, in which the brokerage company confirmed that the applicant had an account with BeiYa Futures from 1995 to 1999 and that during that period, she had made a profit of 3,000,000 RMB.
[9] An employee of the embassy was referred once again to Mr. Zhang to verify the contents of this letter. Mr. Zhang stated that his company had never issued a letter certifying the applicant's revenues. On December 24, 2003, a letter was sent to the applicant to inform her of what Mr. Zhang had said.
[10] On January 15, 2004, the applicant sent to the embassy a letter signed by Miao Ying, General Manager of BeiYa Futures, once again attesting to the existence of an account and to the profits obtained by the applicant and certifying that the employee Zhang was not personally aware of the applicant's transactions.
[11] From August 9 to 26, 2004, the embassy made several attempts to contact Miao Ying to verify the information contained in the letter dated January 15, 2004. Miao Ying was never available, her secretary did not know when he or she would return nor how to reach him or her.
[12] On November 18, 2004, the Manager dismissed the applicant's visa application.
ISSUES
[13] 1. Did the Manager err in applying paragraph 40(1)(a) of the Act?
2. Was there a breach of the principles of natural justice in this matter?
ANALYSIS
1. Did the Manager err in applying paragraph 40(1)(a) of the Act?
[14] Paragraph 40(1)(a) of the Act states the following:
| 40(1) A permanent resident or a foreign national is inadmissible for misrepresentation.
|
40(1) Emportent interdiction de territoire pour fausses déclarations les faits suivants
|
| (a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act; |
a) directement ou indirectement, faire une présentation erronée sur un fait important quant à un objet pertinent, ou une réticence sur ce fait, ce qui entraîne ou risque d'entraîner une erreur dans l'application de la présente loi |
Paragraph 40(1)(a) of the Act: Standard of proof
[15] The Manager used the balance of probabilities for the evidence in his decision to deny the applicant's visa application based on a violation of paragraph 40(1)(a) of the Act. The applicant claims that the standard of proof that the Manager should have used to determine whether there had been a breach of paragraph 40(1)(a) of the Act is certainly much higher than that of a balance of probabilities, given the significant criminal consequences that decision would have on her and on the members of her family.
[16] In this case, the respondent's interpretation to the effect that the appropriate standard of proof for paragraph 40(1)(a) is a balance of probabilities seems reasonable. The decision that is the subject of this judicial review bears on a matter of administrative procedure in an immigration context. The inadmissibility resulting from a breach of paragraph 40(1)(a) is not a criminal offence, nor does it result in criminal consequences. Therefore, the appropriate standard of review for criminal matters - proof beyond a reasonable doubt - has no place. The Manager need not meet a standard of proof higher than the balance of probabilities.
[17] Snider J. in Bellido v. Canada (Minister of Citizenship and Immigration) 2005 FC 452, sets out a test made up of two requirements to determine inadmissibility within the meaning of paragraph 40(1)(a) of the Act. This test requires: (1) a misrepresentation and (2) that that misrepresentation be material to the point of inducing an error in the administration of the Act. At paragraph 27, Snider J. elaborates on the standard of review and the two parts of paragraph 40(1)(a) of the Act:
The standard of review in the first of these matters is, in my view, patent unreasonableness. These are determinations of fact, which the Visa Officer is in the best position to assess. Without coming to a final determination on the second factor, I will accept that the standard of review is reasonableness simpliciter.
[18] With regard to the first part, Snider J. indicates that the standard of review is that of patent unreasonableness. With respect to the second part, Snider J. does not make a final decision but accepts a standard of simpliciter. However, in the other two cases, Mendiratta v. Canada (Minister of Citizenship and Immigration) 2005 FC 293, at paragraphs 13 and 14 and Pierre-Louis v. Canada (Minister of Citizenship and Immigration) 2005 FC 377, at paragraphs 13 and 14, the appropriate standard of review for paragraph 40(1)(a) is that of patent unreasonableness. I believe that even if the second part of paragraph 40(1)(a) is that of simpliciter, the Manager's decision is entirely reasonable in this case.
[19] With respect to the first part of paragraph 40(1)(a), the determinations on the applicant's misrepresentations appear to be based on several contradictions on the part of the applicant. The evidence filed by the applicant - the copies of transaction statements - to show the source of the majority of her assets was not sufficient. The applicant was asked to provide additional evidence that could be verified by the appropriate authorities.
[20] Following this request, the applicant submitted an unsigned letter, stating simply that the applicant had an account with BeiYa Futures from 1995 to 1999. A visa officer contacted Mr. Zhang to verify the authenticity of the letter. He stated that his company had never issued such a letter. The applicant, who had been informed of the developments, provided a second letter signed by Miao Ying, General Manager at BeiYa Futures. The embassy attempted to verify the contents of this letter on several occasions, but it was impossible for it to reach Miao Ying.
[21] I believe that the respondent was correct to put more weight on Mr. Zhang's statements than on Miao Ying's letter. Mr. Zhang was the person that the embassy had referred for the verification of the transaction revenues. Further, Miao Ying could not be reached and the applicant was not able to provide an explanation.
[22] With respect to the second part of paragraph 40(1)(a), the respondent argued that Manager could determine based on the evidence in the record that there was a misrepresentation on a material fact regarding a relevant subject that could induce an error in the administration of the Act. This material fact is the source of the applicant's funds. In Biao v. Canada (Minister of Citizenship and Immigration) 2001 FCA 43,the Federal Court of Appeal states at paragraph 2, that a visa officer would be justified in denying an application for permanent residence if the approval of the application would contravene the Act.
. . . the visa officer was justified in denying the application for permanent residence in Canada made by the appellant on the ground that the latter had not provided the necessary documents establishing that his admission to Canada did not contravene the Immigration Act . . .
[23] In a case where the applicant does not establish the source of her money, which is required by the Act, the visa officer is justified in denying the visa application. Therefore, misrepresenting the source of the funds is a material fact.
[24] In Li v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 1204, at paragraph 11, Heneghan J. states the following:
The decision which is the subject of the application is a discretionary decision made by the Visa Officer. In the absence of evidence that the Visa Officer ignored relevant evidence or took extraneous matters into consideration, the decision will receive judicial deference.
[25] I do not believe that the Manager disregarded relevant evidence or took extraneous matters into consideration; therefore, as Heneghan J. stated, the courts should in this case defer to the decision.
2. Was there a breach of the principles of natural justice in this matter?
[26] The applicant submits that the Manager became involved too late in the process and that, on that basis, he did not have enough knowledge of the matter to make a decision. In response, the respondent argues that the fact that the decision-maker is not the person who held the interview or who made the verifications does not amount to a breach of procedural fairness.
[27] In Mirzaii v. Canada (Minister of Citizenship and Immigration) 2003 FCT 213, Heneghan J. states at paragraph 8 that a decision to issue a visa is a discretionary administrative decision and that it is therefore completely normal to rely on information gathered by an assistant.
In deciding whether to issue a visa, the Visa Officer is making an administrative decision involving the exercise of discretion. He was entitled to rely on information gathered by an assistant see Silion v. Canada (Minister of Citizenship and Immigration (1999), 173 F.T.R. 302. There is no evidence that Ms. Taheri did anything more than obtain information from the Applicant. The actual decision was made by the Visa Officer who was justified in relying on the facts obtained in the interview and recorded by Ms. Taheri in the CAIPS notes.
[28] Heneghan J. refers to Silion v. Canada (Minister of Citizenship and Immigration [1999] F.C.J. No. 1390, where Mackay J. stated at paragraph 11, that in matters of administrative decisions, the rule of "he who hears must decide" does not apply.
The decision is essentially an administrative one, made in the exercise of discretion by the visa officer. There is no requirement in the circumstances of this or any other case that he personally interview a visa applicant. There may be circumstances where failure to do so could constitute unfairness, but I am not persuaded that is the case here. Here the IPO did interview the applicant and reported on the results of that interview. That report was considered by the visa officer who made the decision. Staff processing and reporting on applications is a normal part of many administrative processes and it is not surprising it was here that followed. This is not a circumstance of a judicial or quasi-judicial decision by the visa officer which would attract the principle that he who hears must decide, or the reverse that he who decides must hear the applicant.
[29] I believe that the case law is clear on the fact that the manager need not personally conduct the interviews and the research. In conclusion, I do not think that in this case there was a violation of the principles of natural justice or of procedural fairness.
ORDER
THE COURT ORDERS THAT:
1. The application for judicial review be dismissed;
2. No question was submitted for certification.
"Pierre Blais"
JUDGE
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-823-05
STYLE OF CAUSE:
YU MEI ZHANG
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: September 20, 2005
REASONS FOR ORDER AND ORDER: THE HONOURABLE MR. JUSTICE BLAIS
DATE: September 26, 2005
APPEARANCES:
Sylvie Tardif FOR THE APPLICANT
Marie-Claude Demers FOR THE RESPONDENT
SOLICITORS OF RECORD:
Sylvie Tardif FOR THE APPLICANT
Montréal, Quebec
John H. Sims FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec