Docket: IMM-88-05
Ottawa, Ontario, this 8th day of September, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
JUN QING SHI
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] In 2000, the Applicant, Mr. Jun Qing Shi, applied for immigration to Canada as an Investor in the Business Category destined to the Province of Quebec. In October 2002, he received a Certificat de sélection du Québec evidencing that he had been selected for permanent residence by the Province of Quebec. His application for immigration to Canada was refused in a decision dated November 8, 2004 on the basis that visa officer Aarts (the "visa officer") was "not satisfied of how you accumulated your personal net worth and am not satisfied that you meet the requirements of the [Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA")] and the Immigration and Refugee Protection Regulations (the "Regulations")]". Specifically, the visa officer cited s. 11(1) and s. 16(1) of the IRPA. Mr. Shi seeks judicial review of that decision.
Issues
[2] Although other issues were raised in his written submissions, at the hearing of this matter, Mr. Shi's arguments raised only the following issues:
- Did the visa officer have jurisdiction to refuse Mr. Shi, who had been selected as an investor in the Business Category by the Province of Quebec, on the grounds that he failed to meet the requirements of s. 11(1) and s. 16(1) of the IRPA?
- Was the decision of the visa officer to refuse the application made without regard to the evidence?
- Was it procedurally unfair for an officer who did not interview Mr. Shi to make the final decision?
Standard of Review
[3] The first issue regarding jurisdiction is a legal question for which the standard of review is correctness. The third issue, which involves a question of procedural fairness, is to be adjudged on the basis of whether the visa officer respected the principles of natural justice; no determination of standard of review is required. However, with respect to the second issue, the visa officer's discretionary decision should be accorded the highest level of deference by this Court. In Hua v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 2106, a case involving facts and a decision very similar to that before me, Justice Teitelbaum concluded that the standard of review was one of patent unreasonableness. At a minimum, the Court should not intervene unless it can be shown that the visa officer ignored relevant evidence or relied on irrelevant or extraneous considerations (Maple Lodge Farms Ltd. v. Canada), [1982] 2 S.C.R. 2, at pp. 7-8; To v. Canada (Minister of Employment and Immigration), [1996] F.C.J. No. 696, at para. 3 (F.C.A.)).
Decision of the Visa Officer
[4] The relevant portions of the visa officer's decision to reject Mr. Shi's application are as follows:
... Subsection 11(1) of the Immigration and Refugee Protection Act 2001 states:
11(1) 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.
Furthermore, subsection 16(1) states:
16(1) 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.
In order to complete the assessment of your application, you were interviewed at our office on 17 September 2003. At the conclusion of the interview, checks were conducted to verify information presented in support of your application. Results of those checks raised concerns about how your funds were accumulated. A letter was sent to you advising of our concerns and you were provided you [sic] with the opportunity to respond. Based on a review of all of the information on the file, I am not satisfied of how you accumulated your personal net worth and am not satisfied that you meet the requirements of the Act and the Regulations, as stated above. Therefore, I must refuse your application.
Issue #1: Applicability of s. 16(1) of IRPA
[5] It is well-established that the Canada-Quebec Accord does not 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 (Biao v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 338, affirming [2000] 2 F.C. 348). While Quebec may select persons for admission to that province, admissibility is determined pursuant to Canada's IRPA. Both provincial and federal authorities may examine the source of an Applicant's funds, the former for the purpose of selection and the latter for the purpose of admissibility. Mr. Shi does not dispute the mandate of the federal government. However, he submits that s. 16(1), under which the visa officer purported to find him inadmissible, is inapplicable. Section 16(1) of the IRPA is as follows:
| 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.
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L'auteur d'une demande au titre de la présente loi doit répondre véridiquement aux questions qui lui sont posées lors du contrôle, donner les renseignements et tous éléments de preuve pertinents et présenter les visa et documents requis.
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[6] Mr. Shi points out that the inadmissibility provisions of the IRPA are set out in "Division 4 - Inadmissibility" of the IRPA, and not in s. 16. Sections 34 to 41 describe various ways that a permanent resident or foreign national may be determined to be inadmissible to Canada. For example, a person may be inadmissible for misrepresentation (s. 40) or for non-compliance with the IRPA (s. 41). Mr. Shi argues that, in the absence of a determination under one of these provisions, the visa officer cannot find that he is inadmissible.
[7] The primary flaw in Mr. Shi's reasoning is that the officer did not make a finding of inadmissibility; rather, he dismissed Mr. Shi's application. Section 11(1) provides that an application for visa or other entry document may be refused on two different grounds: (a) because the foreign national is inadmissible; or (b) because he does not meet the requirements of the IRPA. In this case, the visa officer's decision was based on two findings:
- The visa officer was not satisfied on how Mr. Shi had accumulated his wealth; and
- The visa officer was not satisfied that Mr. Shi met the requirements of s. 11(1) and s. 16(1) of the Act.
[8] The officer made no finding of inadmissibility pursuant to any of the provisions in sections 34 to 41. Had the visa officer found Mr. Shi to be inadmissible to Canada under those provisions, the consequences would have extended far beyond the refusal of his permanent residence application. For example, pursuant to s. 179 of the Regulations, he would not be able to acquire a temporary resident visa as a member of the visitor, worker or student class; for such a visa, a foreign national must show that he is not inadmissible (Regulations, s. 179(e)). Even though Mr. Shi's application for permanent residence has been denied, he may still (subject to examination and other application criteria) be eligible to visit Canada.
[9] Secondly, Mr. Shi argues that s. 16(1) only applies where the person being interviewed already holds a visa. He points to the words in s. 16(1) that the applicant "must produce a visa". Since Mr. Shi does not hold a visa, he submits that s. 16(1) cannot be intended to apply to him.
[10] The complete phrase in question is "A person who makes an application . . . must produce a visa and all relevant evidence and documents that the officer reasonably requires". Mr. Shi urges me to interpret the words "that the officer reasonably requires" as modifying only the word "documents", thereby limiting the application of s. 16(1) to examinations conducted when a person already holds a visa. The result is that s. 16(1) would only apply to persons examined at a port of entry, since only this class of persons subject to examination would already hold visas. This very narrow interpretation would be inconsistent with Division 2 of the IRPA which is not restricted to certain types of examinations. Section 15(1) authorizes an officer to proceed with an examination "where a person makes an application to the officer in accordance with this Act".
[11] It also follows from the interpretation proposed by Mr. Shi that there is no statutory provision in the IRPA that requires an applicant for permanent residence to answer questions truthfully and provide any relevant documents requested by the visa officer. If s. 16(1) is not intended to apply to Mr. Shi, what does?
[12] The alternative interpretation is that the words "that the officer reasonably requires" applies both to "a visa" and to "all evidence and other documents". With this meaning, an applicant is required to produce such documentation as the officer "reasonably requires", be it a visa, evidence or other documents. Since it would not be reasonable for an officer to request a visa when one has not yet been issued, there is no requirement for Mr. Shi to produce a visa.
[13] The French language version of the provision accords with this more reasonable interpretation. In French, the words used are that "L'auteur d'une demande . . . doit . . . présenter les visa et documents requis." The placement of the qualifier "requis" and the use of the plural article "les" before "visa et documents" is a clear statement that a visa need only be produced if required by the officer. Logically, if no visa exists, it will not be requested or required.
[14] Thus, the result is that s. 16(1) applies whenever an applicant under the IRPA is the subject of an examination and not just when he already holds a visa.
[15] In conclusion on this issue, I am satisfied that, in refusing Mr. Shi's application for permanent residence, the officer neither made a finding that Mr. Shi was inadmissible as that term is used in sections 32 to 43 of the IRPA nor was required to do so. I am also satisfied that s. 16(1) applies to Mr. Shi even though he did not already hold a visa. The visa officer was correct in his application of s. 11(1) and s. 16(1) of the IRPA.
Issue #2: Was the decision patently unreasonable?
[16] I will begin by stating that Mr. Shi bears the burden in this matter. It is up to an applicant to convince the officer that he meets the requirements of the IRPA. With respect to the Investor Business Class, a significant and logical component of that burden is the requirement to demonstrate how an applicant gained the funds he is using as the basis of his application. Absent persuasive evidence on how those funds were accumulated, that burden has not been satisfied and the application will be refused. As stated by Justice Blais in Martirossian v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1538, at para. 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.
[17] The visa officer's conclusion was that Mr. Shi had failed to satisfy him: (a) of how he accumulated his personal net worth; and (b) that he met the requirements of IRPA. Given the high degree of deference to be given to the visa officer, the question is whether there was any evidence to support this conclusion.
[18] From the beginning of the review of his file, concerns about the legality of the source or accumulation of funds were identified. The Computer Assisted Immigration Processing System ("CAIPS") notes show a number of concerns:
- There was very little proof provided to show how Mr. Shi accumulated 3 million RMB between 1982 and 1990 as he stated and how he accumulated 9.8 RMB between 1990 and 1997;
- The fixed assets of one of the companies appeared to be very high for the size of the company, raising the question of possible illegal activities;
- Profits from one of the companies increased 300% between 1997 and 1998; while possible, this was unusual;
- There was a lack of documentation explaining the yearly dividends received from the companies and how these dividends were earned.
[19] After an interview in September 2003, the visa officer requested verification of business and education documents submitted by Mr. Shi. In particular, the file was referred to the Anti-Fraud Unit for quality assurance verification of information and documents on file. The Anti-Fraud Unit provided a response that two of the tax certificates were not genuine. In particular, the issuing tax office for one of the tax certificates confirmed that the document was fake and that the amount of tax payment shown on the certificate for the year 2000 was inconsistent with the tax office records. It appears that the amount of tax Mr. Shi claims to have paid in that year was 10 times higher than the actual amount of paid tax.
[20] In a fairness letter dated October 5, 2004, the visa officer advised Mr. Shi of the fraudulent certificate and allowed him 30 days to respond. The relevant portion of that letter reads as follows:
Following a review of your application for permanent residence in Canada, our office made telephone inquiries to verify tax documentation provided in support of your application. The verification uncovered serious discrepancies in the information submitted with your application and these call into question the authenticity of your accumulation of your personal net wealth.
Specifically, our office discovered that the tax document purported to be issued by the Shenyang Local Tax Bureau Helping Branch is fraudulent . . .
The result of the verification suggests that you have submitted a false document. Misrepresentation such as this may result in the refusal of your application.
[21] In response to this letter, Mr. Shi denied that the certificate was not genuine and produced photocopies of tax receipts which, when added, corresponded to the 2000 total tax paid on the certificate in question.
[22] In essence, Mr. Shi argues that this additional evidence refutes adequately the allegation that the document was fake. However, in my view, this argument does not show an appreciation for the level of deference owed to the visa officer who was under the duty and the responsibility to weigh all of the evidence before him.
[23] In applying a high degree of deference to the decision of the visa officer, it is not sufficient to show that the evidence before the visa officer could have led to a different conclusion. Rather, to show an error, Mr. Shi would have to demonstrate that there was no evidence before the officer that could have led to the conclusion in question. Here, the officer concluded that Mr. Shi had supplied fraudulent information on the amount of tax that he had paid. What evidence was before him?
[24] First, there was the tax certificate which had been determined to be fraudulent by an independent third party with no interest in the outcome. The certificate had two problems: (i) it was a fake that had not been issued by the tax office; and (ii) the amount of tax shown for 2000 was grossly higher than that recorded by the tax office. Although Mr. Shi now submits that the Anti-Fraud Unit could have made an error, he did not attempt to obtain evidence from the tax office that would refute the Anti-Fraud Unit finding or submit the document to another third party to confirm its veracity. If Mr. Shi had felt that the tax office erred, it would have been sensible of him to approach the tax office immediately to rectify the situation. In spite of having 30 days to do so, he failed to take any such action.
[25] Second, the documents that Mr. Shi submitted in response consisted of photocopies of tax receipts that added up to the claimed amount. No originals were submitted. Even if these receipts totalled the alleged amount of tax paid, they did not address the issue that the certificate itself was fraudulent. Mr. Shi produced no response to the allegation that the certificate itself was a fake and instead produced only unsubstantiated photocopies to address the discrepancy in the amount of tax paid for the 2000 tax year.
[26] Mr. Shi submits that, since the tax certificate was sent to the Anti-Fraud Unit, the visa officer should not have dismissed the photocopies of the tax receipts without sending those documents to the Anti-Fraud Unit. I see no need for the officer to have done so. Mr. Shi bears the burden of providing reliable evidence. Having been made aware that the officer was concerned with the authenticity of his documents, it was up to Mr. Shi to provide persuasive evidence in response; photocopies simply did not satisfy the officer. It was not the visa officer's responsibility to conduct further examinations.
[27] Nor, as alleged by Mr. Shi, is there any evidence that the visa officer had conclusively determined that the evidence was fraudulent prior to the submissions of Mr. Shi.
[28] There is no question that, for purposes of his determination, the visa officer put considerable weight on the fraudulent tax certificate. Mr. Shi argues that it was unreasonable for the officer to reject the application solely on the basis of the tax certificate which, he submits, does not go to how his wealth was accumulated. He asserts that the officer ignored other evidence such as an independently prepared Business Performance Report. I do not agree. There is no evidence that evidence was ignored. How the evidence is to be weighed is within the exclusive domain of the visa officer. Further, Mr. Shi was well aware of the importance attached to the tax certificate. In the fairness letter dated October 5, 2004, Mr. Shi was told directly that the visa officer was concerned with how his funds were accumulated in view of the certification of the fraudulent tax certificate. Further, it seems to me that a fraudulent tax certificate is relevant to the question before the officer both because its authenticity has not been demonstrated and because it shows a much higher level of tax paid than can be conclusively confirmed.
[29] In summary on this point, the officer reviewed the further documents submitted and weighed them with the other evidence he had. I am satisfied that the visa officer's conclusion was based on the evidence and that he did not ignore relevant evidence or rely on irrelevant or extraneous considerations. There is no error.
Issue #3: Procedural Fairness
[30] Although Mr. Shi alleges procedural unfairness, in his submissions, he fails to explain how the transfer of his file from one visa officer to another after the interview could have led to a breach of procedural fairness in this case. A review of the record demonstrates that, while another officer commenced the assessment of the application, visa officer Aarts reviewed all of the documentation on file, the CAIPS notes and all other matters related to the file. Accordingly, I see no breach of fairness and no need to address the third issue further.
Conclusion
[31] For the above reasons, the application will be dismissed.
Question for Certification
[32] Mr. Shi proposes the following questions for certification:
1. Whether subsection 16(1) of IRPA is applicable to a Quebec Investor Applicant
or any applicant who is overseas seeking a visa to come to Canada.
2. Whether the inability to prove one's source of funds is in itself an inadmissibility under IRPA even if is unrelated to criminality and if so whether this inadmissibility ground shall apply to all categories of applicants and not just investors selected by Quebec.
3. Whether a federal Visa Officer has jurisdiction to refuse an investor applicant selected by the Province of Quebec on grounds that he has failed to meet the requirements of IRPA and not on grounds that his is found to be inadmissible as per the classes of inadmissible persons under sections 32 to 43 of IRPA.
[33] In my view, the second question is one that is not determinative of this application for judicial review. The first and third questions, as modified to reflect my reasons in this application, are determinative and would apply to all investor applicants. Accordingly, I will certify the following two questions:
a) Is s. 16(1) of IRPA applicable to an applicant applying for a visa to come to Canada?
b) Does a visa officer have jurisdiction to refuse an investor applicant on grounds that he has failed to meet the requirements of IRPA and not on grounds that he is found to be inadmissible as per the classes of inadmissible persons under sections 32 to 43 of IRPA?
ORDER
This Court orders that:
1. The application is dismissed; and
2. The following questions are certified:
a) Is s. 16(1) of IRPA applicable to an applicant applying for a visa to
come to Canada?
b) Does a visa officer have jurisdiction to refuse an investor applicant on grounds that he has failed to meet the requirements of IRPA and not on grounds that he is found to be inadmissible as per the classes of inadmissible persons under sections 32 to 43 of IRPA?
"Judith A. Snider"
______________________________
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-88-05
STYLE OF CAUSE: JUN QING SHI v. THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: August 12, 2005
REASONS FOR ORDER
AND ORDER: The Honourable Madam Justice Snider
APPEARANCES:
Mr. Lawrence Wong FOR APPLICANT
Ms. Helen Park FOR RESPONDENT
SOLICITORS OF RECORD:
Wong Pederson Law Offices FOR APPLICANT
Vancouver, BC
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General for Canada