Date: 20020513
Docket: IMM-4464-01
Neutral Citation: 2002 FCT 531
Between:
CHANG, WEN-PIN, c/o Lo & Wong Investment
Consultants Ltd, Unit 2007 Emperor Group Centre,
288 Hennessy Road, Wanchai, Hong Kong,
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION, c/o Justice Department,
Complexe Guy Favreau, 200 west René-Lévesque,
East Tower, 5th Floor, Montreal (Quebec), H2Z 1X4
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This an application for judicial review with respect to the decision of Pascal Laurin, a visa officer (the officer) at the Canadian High Commission in Singapore dated August 17, 2001, determining that the applicant did not meet the requirements for immigration to Canada under the investor category.
[2] The applicant's application in that category could not succeed as he had provided contradictory information and was evasive at the interview. As well, the applicant was unable to satisfy the officer that he met the requirements of the Immigration Act, R.S.C. 1985, c. I-2 (the Act) and the Immigration Regulations, 1978, SOR/78-172 (the Regulations). In his decision, the officer stated:
At interview, you mentioned to me that you sold one of the properties you inherited in 1995 for the sum of 20 millions Taiwanese dollars. I therefore asked you to provide documents to support the sale of the land. Subsequently, your consultant replied on your behalf, in a letter dated June 12, 2001, that you did not sell any of the properties you inherited. This fact is contradictory to what you told me at interview. Based on this information and on your answers to my questions at interview, I must conclude that you deliberately did not answer truthfully to some of my questions.
Moreover, based on a comprehensive review of the documents submitted and based on the information you provided at interview, I am not satisfied that your funds were earned from legal and legitimate sources. For example, you said that your business did not declare your salary and bonus of approximately 2.7 millions Taiwanese dollars a year. You further added that in Taiwan you have different ways of doing business.
Based on the contradictory information you provided at interview and your evasiveness in answering my questions at interview, I cannot accept that your source of funds has been by legal and legitimate means. Your failure to adequately account for the legality of the origins of your personal net worth renders you inadmissible to Canada.
[. . .]
You have been unable to satisfy me that you meet the requirements of the Act and regulations as stated above and I must therefore refuse your application.
[3] In Chiu Chee To v. Minister of Employment and Immigration (May 22, 1996), A-172-93, the Federal Court of Appeal set out the standard of review for discretionary decisions by visa officers with respect to applications for immigration. This standard is the same as the one adopted by the Supreme Court of Canada in Maple Lodge Farms Limited v. Government of Canada et al., [1982] 2 S.C.R. 2, where Mr. Justice McIntyre stated at pages 7 to 8:
. . . It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere. . . .
[4] The applicant essentially argues that the officer based his decision on an erroneous finding of fact that he made capriciously and without regard to the evidence before him. After having examined the facts and evidence surrounding this case, I feel it was reasonable for the officer to question the applicant on the origins of his personal net worth and to conclude that the information submitted was unsatisfactory.
[5] Subsection 8(1) of the Act clearly states that the burden of proof that one's admission would not be contrary to the Act and Regulations rests on the person seeking entry. Having reviewed the evidence pertinent to this file as well as the parties' submissions, I feel that the applicant did not discharge himself of his burden to prove his admissibility.
[6] Based on the officer's Computer Assisted Immigration Processing System (CAIPS) notes as well as his affidavit, the officer gave the applicant the opportunity to submit evidence supporting the origins of his personal net worth. During the interview, the applicant stated that he had inherited 150 million NT, and then later modified his story. He also explained that the construction company he owns does not declare his salary or bonus of 2.7 million NT a year.
[7] The facts of this case are analogous to those in Biao v. Canada (M.C.I.), [2000] 2 F.C. 348 (T.D.), where the applicant who planned to settle in Quebec, had presented an application for permanent residence in the "investor" class. The applicant had not supplied satisfactory evidence in relation to the source of his funds, notwithstanding the requests made in this regard by the visa officer pursuant to subsection 9(3) of the Act. Justice Nadon expressed the following:
[21] The visa officer had the power to request these documents by virtue of subsection 9(3) of the Act and the applicant had the burden of proving that his entry into Canada would not contravene the Act. The applicant did not meet his obligation under subsection 9(3) nor did he discharged himself of the burden set out in section 8 of the Act. As a result, the visa officer could not be satisfied that admitting the applicant would not contravene the Act and accordingly, it was within his authority to deny the application. . . .
[22] This Court has held that a visa officer has both the right and the duty to require an applicant to produce documents which the officer believes are necessary for him or her to consider an application. Rothstein J., in Kaur v. Minister of Employment and Immigration et al. (1995), 98 F.T.R. 91 (F.C.T.D.), at page 92 opined as follows:
Where documentation is properly sought by the visa officer and is not produced, the applicant cannot be granted admission, as she is a person who has not complied with a request lawfully made under the Immigration Act.
[8] Further, in Hao v. Minister of Citizenship and Immigration (December 7, 2000), IMM-3466-99, [2000] F.C.J. No. 2013 (T.D.)(QL), I expressed the following when an applicant had made his application for permanent residence in the "investor" class, but had not presented sufficient evidence to enable the visa officer to draw a favourable conclusion:
[10] In my view, the visa officer's contention was proper and he denied the visa on appropriate grounds, namely, that in the absence of the documentation he had requested, he was unable to verify the admissibility of the applicant with respect to section 19 of the Act.
[9] In my view, it was entirely reasonable for the officer to determine that the source of the applicant's personal net worth was not legal nor legitimate. The letter dated June 12, 2001 submitted by the applicant's consultant clearly indicates that in fact the applicant had not sold any land that he inherited from his father. This contradicts the applicant's already confusing and contradictory statements made during the interview. I feel therefore that the applicant failed to provide satisfactory information and the officer was consequently justified to refuse his request as permanent resident pursuant to subsections 9(3) and 9(4) of the Act.
[10] I now turn to another issue raised by the applicant who, in his written memorandum, submits that the officer acted unfairly during the interview demonstrating a reasonable apprehension of bias.
[11] The visa officer, in the present case, did assess the applicant's ability to become successfully established in Canada and in so doing, discovered that the applicant was not cooperative, avoided answering questions and was contradictory in his answers. The officer's CAIPS notes provide a reflection of the impression of the applicant at the interview. Thus, a visa officer cannot be accused of breaching the principles of natural justice and procedural fairness because he noted his candid impression of an applicant in his CAIPS notes. There is simply no evidence that the officer has failed to maintain a level of decorum conducive to an open and fair exchange during the time in which the applicant was attempting to meet the selection criteria (see Jiang v. Canada (M.C.I.) (1997), 138 F.T.R. 230). In my view, an informed person, viewing the matter realistically and practically, and having thought the matter through, would not, on the evidence before me, determine that the officer is bias (see Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369 at 386).
[12] For the foregoing reasons, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
May 13, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4464-01
STYLE OF CAUSE: Chang, Wen-Pin v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 9, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: May 13, 2002
APPEARANCES:
Jean-François Bertrand FOR THE APPLICANT
Michel Synnott FOR THE RESPONDENT
SOLICITORS OF RECORD:
Bertrand, Deslauriers FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario