Date: 20020712
Neutral citation: 2002 FCT 789
Ottawa, Ontario, July 12, 2002
Before: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
Docket: IMM-1211-01
ACHOT SARKISSIAN
Plaintiff
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
Docket: IMM-1212-01
ARTOUR SARKISSIAN
Plaintiff
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
Docket: IMM-1216-01
ABRIK SARKISSIAN
Plaintiff
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of three decisions by the visa officer Valérie Feldman on February 8, 2001, denying the applications for permanent residence as investors filed by the plaintiffs.
POINTS AT ISSUE
[2] Did the visa officer make a patently unreasonable decision in concluding that the plaintiffs had not established the legality of the source of their funds?
[3] Was the decision accompanied by sufficient reasons to allow the plaintiffs to exercise their remedies against it?
[4] The answer to the first question is no. The answer to the second question is yes.
FACTS
[5] The three plaintiffs are brothers, citizens of Russia, originally from Baku in Azerbaidjan.
[6] As the plaintiffs wished to establish permanent residence in Quebec, they obtained three certificates of selection from the Quebec Department of Relations with the Citizens and Immigration on July 2, 1999.
[7] On July 7, 1999, the Canadian Embassy in Paris received applications for permanent residence from the plaintiffs as investors and initiated the evaluation process.
[8] On October 6 and 12, 1999, preliminary decisions were made on the plaintiffs' permanent residence applications.
[9] On June 30, 2000, after reviewing the file, the security audit section found that a detailed review of the permanent residence applications was necessary and summoned the plaintiffs to an interview on October 17, 2000.
[10] The purpose of that interview was to determine their eligibility under s. 19 of the Immigration Act, R.S.C. 1985, c. I-2 (hereinafter "the Act").
[11] At the start of each interview, the visa officer informed the plaintiffs of her concerns about the source of the funds they had declared.
[12] None of the three plaintiffs was able to satisfy the visa officer's concerns.
[13] The latter rejected the applications, ruling that the plaintiffs were not able to indicate the source of their funds, which gave rise to questions about the legitimacy and legality of the means they had used to obtain the money.
[14] She concluded that the plaintiffs could not establish in a documented and satisfactory way that they did not fall into one of the inadmissible classes of persons described in s. 19 of the Act.
VISA OFFICER'S DECISION
[15] Valérie Feldman wrote three letters to each of the plaintiffs, dated February 8, 2001. In the letter to Artour Sarkissian, she wrote:
[TRANSLATION]
The Immigration Act states very clearly that it is the applicant's responsibility to show that his or her admission would not be contrary to the Act and Regulations. Your inability to establish the source of your personal resources gives rise to questions about the legitimacy and legality of the means you used to obtain that money . . . [My emphasis.]
[16] Similarly, in her letter to the plaintiff Abrik Sarkissian, she wrote:
[TRANSLATION]
At the interview in Paris on October 17, 2000 you stated you had accumulated your financial resources through your involvement in your own company. Your answers were not consistent and your statements contradicted those of your brothers. Your current assets are significant and no logical explanation was given during the interview. [My emphasis.]
[17] These paragraphs were also contained in the letter to the plaintiff Achot Sarkissian.
PLAINTIFF'S POSITION
[18] The plaintiffs argued that they had answered all the questions asked at the interview honestly and frankly.
[19] The plaintiffs alleged that the evidence submitted to the visa officer was not viewed negatively by the latter and that she should have accepted this evidence as true, valid and authentic.
[20] The plaintiffs further alleged that the decisions were wrong as the questions put by the visa officer about the legitimacy and legality of the means used by the plaintiffs to obtain their money is based only on speculation or conjecture.
[21] Finally, the plaintiffs maintained that the visa officer dismissed their applications on the ground that they fell within one of the inadmissible classes of persons under s. 19 of the Act.
DEFENDANT'S POSITION
[22] The defendant alleged that the Canada-Quebec Agreement provides that it is the function of the province of Quebec to control the selection of immigrants destined for that province, but the admission of immigrants is still under the exclusive authority of the federal government.
[23] The defendant added that under subsection 8(1) of the Act it is for the plaintiffs to establish the legality and legitimacy of the sources of funds to the visa officer.
[24] The defendant mentioned that the visa officer had examined the evidence submitted by the plaintiffs and found that that evidence was insufficient.
[25] Further, the visa officer was right to conclude that the plaintiffs had not established in a documented and satisfactory way the legality of the source of their funds.
[26] In concluding, the defendant stated that the documentation filed by the plaintiffs did not in any way establish the source of their funds nor did it explain the many contradictions in their testimony about the source of their funds.
ANALYSIS
Applicable standard of review
[27] In Chiu Chee To v. Canada (Minister of Employment and Immigration), [1996] F.C.J. No. 696 (QL) (F.C.A.), the Federal Court of Appeal indicated the standard of review that should be applied to the discretionary decisions of a visa officer on immigration applications, as being that of the patently unreasonable decision. Further, in Maple Lodge Farms Limited v. Government of Canada, [1982] 2 S.C.R. 2, McIntyre J. wrote at 7 and 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. [my emphasis.]
Points at issue
[28] Did the visa officer err in concluding that the plaintiffs had not established the legality of the source of their funds?
[29] I feel that the visa officer was right to wonder about the source of the plaintiffs' funds and to indicate that she was not satisfied with the evidence they submitted in that regard.
[30] Under subsection 9(4) of the Act, the officer could inquire into the source of money belonging to the plaintiffs and question them about it.
[31] I mention below a few extracts from the CAIPS notes (Computer Assisted Immigration Processing System) made by the visa officer, clearly indicating that she had concerns about the legality and legitimacy of the source of the plaintiffs' funds. At Part II, pp. 5-6 of the certified record of the plaintiff Abrik Sarkissian, there is the following:
Answers are vague and discrepancies raised again between answers from three brothers. Having reviewed the documents on file and after the interview I have concerns that the sole activity is not the furniture manufacturing (and his distribution company). Is not able to answer questions on his company in a coherent manner. At times all are running the business (combined business) at other times during the interview he states that they each have their own business. Declared funds not in line with potential earnings from the companies. Net worth over 6 million for 3 . . . I have serious doubts as to the credibility of the applicant. He has not been able to disabuse me of my concerns has in fact only raised them.
I informed applicant that I had concerns about the source of funds and funds declared. He had no comments. [My emphasis.]
[32] There is the following concerning Achot Sarkissian, at Part II, p. 18 of his certified record:
I told the applicant that I would be reviewing the information on his application and the information he gave me at the interview but that I still had some serious concerns about the funds that they had been able to accumulate in such a short period of time. No response.
I have reviewed the elements obtained form [sic] the interview and also the documents on file and I find that I have not been disabused of my concerns over the question of source of funds and actual funds . . . I am not convinced that he is telling my [sic] the truth and I find it worrisome that he would be able to transfer one million dollars out of Russia in such a short period of time from revenues generated from a furniture business. Applicant hesitates before answering, sometime [sic] does not answer the questions. [My emphasis.]
[33] As to Artour Sarkissian, at Part II, p. 12 of his certified record there is the following:
Declared net worth and potential earnings do not fit. Applicants [sic] hesitates when he responds, answers are vague . . . Applicant has not disabused me of my concerns over the source of funds declared has in fact raised them. Applicant informed of my concerns. He states that they are honest people, he cannot understand why I would doubt this. Would not accept refusal based on assumption that they are dishonest people . . . [My emphasis.]
[34] It is clear from these three extracts that the visa officer had concerns about the legality and legitimacy of the source of the plaintiffs' funds.
[35] Biao v. Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 348 (T.D.), is very similar to the facts at issue. Nadon J. (as he then was) considered, at para. 24:
In the circumstances of this case, it was appropriate, in my view, for the visa officer to verify the source of the applicant's funds, given the great disparity between his annual income and his personal net worth. The visa officer's request was lawful and reasonable, as the documents sought related to the question of admissibility. [My emphasis.]
[36] Also in Biao, supra, Nadon J. referred to Kaur v. Minister of Employment and Immigration et al. (1995), 98 F.T.R. 91 (F.C.T.D.) and mentioned at para. 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 p. 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. [My emphasis.]
[37] In Hao v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 2013 (QL) (F.C.T.D.), Pinard J. also said the following at para. 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. [My emphasis.]
[38] I consider that the visa officer was right to deny the permanent residence application. There is nothing in the plaintiffs' file to suggest these were legitimate transactions. The documents submitted are financial statements and bank account statements. There was no receipt or document indicating delivery, bill of lading, voucher or payment of transportation costs that could establish the existence of furniture sales.
[39] I also consider relevant the visa officer's questions about the source of the large sums acquired by the plaintiffs and her conclusion that the latter had not satisfied her that the money did not come from an illicit or illegal source.
[40] Were the decisions by the visa officer accompanied by sufficient reasons to enable the plaintiffs to exercise their remedies against the latter?
[41] In my opinion, the decision rendered was accompanied by sufficient reasons. I could see from reading the disputed decisions that the plaintiffs were able to use all available means to convince the visa officer by explaining the origin of their financial resources.
[42] The CAIPS notes were the bases of the decisions made by the visa officer. This principle was confirmed by Blanchard J. in Nooshinravan v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 909 (QL) (F.C.T.D.), para. 10:
In my opinion, CAIPS notes are not part of the Tribunal Record but rather constitute reasons for the decision. This is the same approach adopted by Madam Justice Reed in Chou v. Canada (Minister of Citizenship and Immigration), and Mr. Justice Pelletier in Tajgardoon v. Canada (Minister of Citizenship and Immigration), among others. [Footnote omitted. My emphasis.]
[43] I am satisfied that the plaintiffs were able to see from reading the disputed decisions why the visa officer concluded that they had not discharged their burden of showing that their admission to Canada did not contravene the Act or Regulations, as they were unable to justify the origin or source of the significant amount of money which they claimed to have.
APPLICABLE LEGISLATION
[44] Subsection 8(1) of the Act sets out the burden of proof on anyone wishing to come into Canada.
| 8. (1) Where a person seeks to come into Canada, the burden of proving 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 on that person. |
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8. (1) 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.
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[45] Section 9 of the Act deals with visa applications and special authorizations. Subsection 9(3) requires every person to answer truthfully all questions put to that person by a visa officer.
| 9. (3) 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.
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9. (3) 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.
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[46] Subsection 9(4) concerns the issuing of a visa when the visa officer is satisfied that it would not be contrary to this Act or the regulations to grant the plaintiff landing or entry.
| 9. (4) 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 officer may issue a visa to that person and to each of that person's accompanying dependants for the 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.
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9. (4) 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. |
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[47] In a similar recent case Blais J. ruled, in Martirossian v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1538 (QL) (F.C.T.D.), at paras. 15, 18, 19, 22 and 35, in favour of a visa officer who was questioning the source of the plaintiff's funds. I concur with Blais J.'s comments and I consider that the visa officer was right to make the decisions regarding the plaintiffs in the case at bar.
[48] The parties did not suggest certification of a serious question of general importance.
[49] For these reasons, this application for judicial review is dismissed without costs.
ORDER
THE COURT ORDERS that:
1. This application for judicial review is dismissed without costs.
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"Michel Beaudry Judge |
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
FILE: IMM-1211-01
STYLE OF CAUSE: ACHOT SARKISSIAN and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
FILE: IMM-1212-01
STYLE OF CAUSE: ARTOUR SARKISSIAN and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
FILE: IMM-1216-01
STYLE OF CAUSE: ABRIK SARKISSIAN and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 7, 2002
REASONS FOR ORDER BY: BEAUDRY J.
DATE OF REASONS: July 12, 2002
APPEARANCES:
Jacques Beauchemin FOR THE PLAINTIFF
Caroline Doyon FOR THE DEFENDANT
SOLICITORS OF RECORD:
Alarie, Legault, Beauchemin, Paquin FOR THE PLAINTIFF
Montréal, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Montréal, Quebec