Date: 20020426
Docket: IMM-2099-01
OTTAWA, Ontario, April 26, 2002
BEFORE: Rouleau J.
BETWEEN:
MARCELINUS OEI
Plaintiff
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
ORDER
[1] The application for judicial review is dismissed.
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"P. Rouleau"
JUDGE |
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
Date: 20020426
Docket: IMM-2099-01
Neutral citation: 2002 FCT 466
BETWEEN:
MARCELINUS OEI
Plaintiff
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Defendant
REASONS FOR ORDER
ROULEAU J.
[1] This is an application for judicial review based on s. 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, from a decision by the visa officer Kwee Luan Tan ("the visa officer") on March 20, 2001, dismissing the plaintiff's application for permanent residence in the investor category because of his failure to establish the legality of his sources of income and funds. The plaintiff asked the Court to order that the visa officer's decision be quashed and a new interview held with the plaintiff at the Canadian High Commission in Singapore by a visa officer other than Kwee Luan Tan.
[2] The plaintiff is a citizen of Indonesia, married and the father of four children. Since 1980 he has held a university Bachelor's degree in economics and has been in the timber business for over 11 years. He is also president, executive director and majority shareholder (50%) of PT Sumbar Kembang Agung, a leader in the timber industry in Indonesia. The plaintiff holds certificates of selection for himself and his family in the business investor category issued by the Quebec Immigration Service in Hong Kong on April 18, 2000.
[3] On July 19, 2000, the plaintiff's application for permanent residence in the investor category, and the Quebec certificates of selection, were received by the Canadian High Commission in Singapore. On October 21, 2000, the plaintiff's application for permanent residence was given its first assessment, from which it was decided that the question of his admissibility to Canada had to be examined and his income sources established. On November 16, 2000, the plaintiff's income sources were given a painstaking review from documents which were in his file at the time. Following that review it was decided that an interview with the plaintiff was necessary to give him an opportunity to provide clarification about the nature of his business and his sources of income and enable him to establish his admissibility to Canada.
[4] On or about January 22, 2001, the plaintiff was summoned to an interview by the Canadian High Commission for March 20, 2001. The invitation letter was accompanied by a list of documents to be provided, including evidence about his financial assets and those of his business, along with his tax returns for the last three years (the following documents were requested: PERSONAL ASSETS; PERSONAL INCOME TAX STATEMENTS FOR THE PAST 3 YEARS; BUSINESS ASSETS; BUSINESS INCOME TAX STATEMENTS/RETURNS (SUBMITTED AND ASSESSED BY THE APPROPRIATE GOVERNMENT TAXATION DEPARTMENT) FOR THE LAST 3 YEARS). This letter also indicated that only a Mandarin Chinese interpreter was available and free of charge, and that for any other language the person interviewed had to provide his own interpreter and pay the cost of doing so.
[5] On March 20, 2001, the plaintiff appeared for the interview without his own interpreter and neither before nor during the interview did he ask for an interpreter to be present. The interview took place entirely in English. Although the plaintiff's mother tongue was not indicated in his affidavit, it appeared from his application for permanent residence that he speaks English and understands this language with difficulty.
[6] The hand-written CAIPS notes (Computer Assisted Immigration Processing System) of the visa officer who conducted the interview indicated that she told the plaintiff the purpose of the interview was to determine his admissibility to Canada. The plaintiff was then asked to explain his sources of income:
AT THE BEGINING OF THE INTERVIEW I ASKED "HAVE YOU DECLARED ALL YOUR INCOME TO THE GOVERNMENT? APPLICANT ANSWERED "NO". I THEN ASKED HIM TO EXPLAIN HOW HE COULD BE STUDYING AND WORKING FOR HIS UNCLE AT THE SAME TIME. ASKED HIM TO EXPLAIN HOW HE COULD HAVE ACCUMULATED US$ 1.35 MILLION AND US$100K IN PROPERTY FROM 1976 TO 1988 AT THE TIME OF HIS RESIGNATION. APPLICANT COULD NOT GIVE A LOGICAL EXPLANATION. (NOTE : HIS FIXED DEPOSIT IS KEPT IN BNP BANK IN SINGAPORE).
THE ANNUAL INCOME TAX NOTIFICATION LETTER (TRANSLATED COPIES WHICH HAVE CONVERTED INDONESIAN RUPIAHS TO US DOLLARS) SUBMITTED BY APPLICANT SHOWED THAT HIS BUSINESS PROFIT TOGETHER WITH HIS SALARY WERE APPROXIMATELY US$50K FOR 1995. US$71K FOR 1996. US$89K FOR 1997 AND US$92K FOR 1998. QUERY THE AUTHENTICITY OF THESE DOCS AND ITS TRANSLATION. THERE IS ALSO NO INDICATION OF THE CONVERSION RATE FROM RUPIAHS TO US DOLLARS FOR ALL THE YEARS.
I ASKED IF HE HAD 2 SETS OF ACCOUNTS? APPLICANT STATED THAT THE COMPANY HAD KEPT ONE SET OF ACCOUNT FOR THE GOVT AND ONE SET OF ACCOUNT FOR THE COMPANY. THEY PAID TAX "UNDER THE TABLE TO THE GOVT AUDITOR AND ACCORDINGLY TO APPLICANT IF THEY WERE TO PAY THE OFFICIAL TAX TO GOVERNMENT. THEY WOULD NOT BE ABLE TO CONDUCT BUSINESS IN INDONESIA. THE TAX DOCUMENTS FOR 1999 AND 2000 HAVE NOT BEEN TRANSLATED AND I WAS UNABLE TO VERIFY THEM.
[7] The plaintiff did not establish the source of his funds to the visa officer's satisfaction. Moreover, as the visa officer's CAIPS notes indicate, she told the plaintiff at the interview of her concerns about the fact that he had not satisfactorily established the source of his funds:
I TOLD APPLICANT THAT HIS WAS A CASE OF TAX EVASION AND THAT THERE WAS NO WAY FOR ME TO VERIFY THE LEGALITY OF HIS SOURCE OF INCOME. APPLICANT ASKED HOW HE COULD MAKE IT LEGAL AS THIS WAS HOW THEY WOULD OPERATE IN INDONESIA. I TOLD HIM THIS WAS NOT ACCEPTABLE ACCRODING TO CND IMMIGRATION REGULATIONS.
[8] At the conclusion of the interview, the visa officer explained to the plaintiff why she was rejecting his application for permanent residence. He attempted once again to explain that he did not have to pay taxes on his term deposit since it had already been taxed at a 15% rate on the interest. He also asked for a review of the visa officer's decision, without asking to submit further information and/or more documents in support of his evidence. The visa officer reviewed her decision after the interview, but decided to maintain her rejection, as she felt that the plaintiff was
unable to justify the source of his funds, and this cast doubt on the legitimacy and legality of the means he had used to obtain them.
[9] Accordingly, in her decision of March 20, 2001, the visa officer concluded that the plaintiff had not shown that he did not fall in any of the categories of persons inadmissible to Canada described in s. 19 of the Immigration Act, R.S.C. 1985, c. I-2 ("the Act"), and rejected the plaintiff's application for permanent residence as follows:
I HAVE CAREFULLY ASSESSED THE INFORMATION YOU HAVE PROVIDED IN SUPPORT OF YOUR APPLICATION. YOUR APPLICATION HAS BEEN REFUSED FOR THE REASONS BELOW.
YOU SUBMITTED AN APPLICATION FOR PERMANENT RESIDENCE IN CANADA ALONG WITH A CERTIFICATE OF SELECTION (CSQ) ISSUED BY THE QUEBEC IMMIGRATION SERVICE UNDER THE INVESTOR CATEGORY. FOLLOWING A REVIEW OF DOCUMENTS PROVIDED, WE REQUESTED THAT YOU FURNISH EVIDENCE AS TO THE ORIGINS OF YOUR PERSONAL NET WORTH TO SUBSTANTIATE YOUR CLAIM THAT THESE FUNDS WERE DERIVED FROM LEGAL AND LEGITIMATE SOURCES.
A COMPREHENSIVE REVIEW OF ALL DOCUMENTS SUBMITTED DOES NOT PROVIDE SUBSTANTIATION THAT YOUR FUNDS WERE EARNED FROM LEGAL AND LEGITIMATE SOURCES. YOU EXPLAINED THAT THE SOURCE OF YOUR ASSETS FROM 1976 TO 1987 WAS FROM THE DIRECTORSHIP OF YOUR UNCLE'S COMPANY AND YOU DID NOT PAY ANY TAX FOR THE ACCUMULATED INCOME WHICH WAS US$1,35 MILLION. YOU STATED THAT YOUR COMPANY, PT SUMBAR KEMBANG AGUNG WHICH YOU HAD 50% SHARE HAD KEPT 2 SETS OF ACCOUNTS, ONE SET FOR THE GOVERNMENT AND ONE SET FOR THE COMPANY. YOU FURTHER EXPLAINED THAT TAX WAS PAID "UNDER THE TABLE" TO THE GOVERNMENT AUDITOR AS WITHOUT DOING THIS IT WOULD NOT BE POSSIBLE TO CONDUCT BUSINESS IN INDONESIA.
FOR YOUR APPLICATION TO SUCCEED, YOU MUST DEMONSTRATE THAT YOUR ADMISSION TO CANADA WOULD NOT BE CONTRARY TO ANY PROVISIONS OF THE IMMIGRATION ACT AND REGULATIONS. THE IMMIGRATION ACT CLEARLY PLACES THE BURDEN OF PROOF ON THE APPLICANT. WITHOUT CREDIBLE AND VERIFIABLE SUPPORTING DOCUMENTS AND BASED ON YOUR OWN ADMISSION OF TAX EVASION, I AM NOT SATISFIED 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.
[10] That is the decision at issue here.
[11] The chief question raised by this judicial review is whether the visa officer infringed the rules of natural justice for the plaintiff by not giving him an opportunity to resolve her doubts about the insufficiency of the documentary evidence on the origin of the money and her assessment of the verbal evidence and finding of tax evasion. The case at bar also raises the question of whether the visa officer infringed the rules of natural justice for the plaintiff in her conduct of the interview of March 20, 2001.
[12] First, the plaintiff submitted that the visa officer did not give him an opportunity to resolve her doubts about the inadequate documentation for the origin of the funds. For the visa officer to conclude that the plaintiff was admissible, she had to rely on evidence of a documentary and/or verbal nature exclusively submitted by the plaintiff. The documentary evidence was that already present in the plaintiff's file on the day of the interview and what he was asked to produce at the interview, namely documents relating to the origin of his funds for the last three years. The plaintiff submitted that it appeared from a document entered in the record of the Court by the visa officer that she admitted that the plaintiff had brought the documentary evidence, as requested, to prove the origin of his funds for the last three years.
[13] The plaintiff submitted that there was no evidence in the record to suggest that any document whatever dealing with earlier years was requested of him. At the same time, the CAIPS notes indicated that the interview of March 20, 2001 was convened specifically because the officer, having reviewed the file, was concerned by the funds accumulated by the plaintiff since 1976 and did not understand how in 1989 he was able to accumulate the property and bank deposits he said he owned in the year 2000. Thus, according to the plaintiff, it appeared that apart from the visa officer's indication that she wanted more documentation, he had met his obligation to produce the documents requested.
[14] The plaintiff submitted that in view of her dissatisfaction about the adequacy of the documents presented it was up to the visa officer to tell the plaintiff of this and possibly request that he provide further documents, which the CAIPS notes indicated that she did not do. It was also for the visa officer, if she was not satisfied with the authenticity of the documents before her, not only to inform the plaintiff of this and allow him to resolve her concerns, but also to give him the opportunity to produce other documents which she would have regarded as more reliable, and she did not do this either.
[15] The plaintiff submitted that this Court's decisions have several times consistently held that the visa officer not only has a right but a duty to act in this way in such circumstances. Accordingly, despite the duty to act fairly, the visa officer decided to keep quiet about her doubts and concerns regarding the validity and sufficiency of the documentary evidence submitted by the plaintiff and denied the plaintiff's application for permanent residence on the ground that the documents submitted provided no explanation that his funds derived from legal and legitimate sources, as indicated in her letter of March 20, 2001. Although the plaintiff asked her how he could make his situation legal, the visa officer maintained her rejection. Further, although the plaintiff tried to explain his tax situation with further details, the visa officer indicated that she would review her decision but left him no hope as to the result of her subsequent review. In doing so, she infringed the rules of natural justice.
[16] The plaintiff further submitted that the visa officer did not give him an opportunity to resolve her doubts about her assessment of the verbal evidence and conclusion of tax evasion. The plaintiff noted that the visa officer indicated in her affidavit that it was her practice to prepare her questions in advance in order to give her time to write the reply during the interview, and nothing indicated in her affidavit and/or in the CAIPS notes that she went beyond the limits of the four questions prepared and put to plaintiffs. The plaintiff submitted that while in her affidavit the visa officer stated that it was her practice to repeat her questions to ensure that she was understood, there was nothing in the evidence to indicate that in the plaintiff's interview she acted in keeping with her practice. Accordingly, when she received replies which gave her concern or prompted doubts about the plaintiff's admissibility, the visa officer did not add other questions to clarify, confirm or correct her impression of inadmissibility.
[17] The plaintiff noted that despite the difficulty he had with English and the content of the interview, it appeared from the CAIPS notes that the visa officer at no time offered or suggested an interpreter to the plaintiff. She proceeded with the interview without concerning herself about whether her questions were properly understood by the plaintiff or ensuring that the replies given to her actually responded to her questions. The plaintiff also noted that his affidavit and that of the visa officer contradicted each other on several points, in particular where the visa officer stated that the plaintiff had no difficulty understanding and replying to her in English in the interview, whereas the plaintiff maintained the contrary, bearing in mind the fact that he was nervous because of the importance of the interview and had indicated on his application for permanent residence that he had difficulty in English.
[18] The plaintiff submitted that the difference between the two affidavits lay in the fact that the visa officer did not fully remember how the interview took place. He noted that although nearly seven months had elapsed since the interview when the officer prepared her affidavit, and she had held many other interviews with candidates, her comments were very definite in view of the limited recollection she probably had of the interview at that time. Since prima facie the CAIPS notes cannot be used to contradict one or other of the affidavits, the question then is to decide on the credibility of these contradictory versions. The plaintiff submitted that as between the version of the officer, whose only recollection of the interview was that the plaintiff did not tell her he had difficulties in English, and that of the plaintiff, who had a clear recollection as the interview was extremely important for him, the latter's version should be preferred.
[19] Further, the CAIPS notes, a copy which the officer maintained was an accurate copy of what happened at the interview, show that the officer concluded from one of the replies given by the plaintiff that he was, as she wrote, [TRANSLATION] "a case" of tax evasion. The plaintiff submitted that neither in these notes nor in the officer's affidavit does it appear that any other question was asked, that any opportunity whatever was provided for the plaintiff to correct this conclusion, whether verbally or by the eventual production of documents, and so reassure the visa officer. In this regard, the plaintiff noted that his affidavit clearly indicated he had not had an opportunity to correct this conclusion by the officer, and that this is confirmed by the CAIPS notes.
[20] The plaintiff submitted that the visa officer had the right and duty to ensure throughout the interview that the plaintiff was answering all possible questions regarding the origin of his funds. The way the interview proceeded should have prompted the visa officer to question him further, as Cullen J. indicated in Bhatia v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 98. She preferred to confine herself to her four questions prepared in advance and her impressions. For these reasons, the plaintiff submitted that the visa officer failed in her duty to act fairly towards the plaintiff, and thus the officer's refusal to grant him a visa was improper in fact and in law and should be quashed.
[21] Additionally, the plaintiff submitted that the visa officer infringed the rules of natural justice in the conduct of the interview. The plaintiff noted that the visa officer stated in her affidavit that she never conducted rapid interviews. Nonetheless, her CAIPS notes demonstrate an interview around four questions on the plaintiff's tax returns and taxes and his company over a period of 25 years. Those notes support the plaintiff's allegation that the interview was short and rapid and contradict the version of the officer's affidavit on this point if that version had to be applied to the interview. Moreover, the officer's version is not specific on her attitude and does not deal with her conduct with the plaintiff on the day of the interview since she does not mention that she remembered it.
[22] The plaintiff submitted that on reading the CAIPS notes it is to say the least surprising to see that after the basic presentations the first question put to the plaintiff was "have you declared all your income to the government?". The fact of asking this question first, in the plaintiff's submission, could only give the interview an inquisitorial tone and already denoted some animosity. Then, immediately after this question, when the plaintiff had just answered [TRANSLATION] "no", the officer began another line of questioning without further inquiry as to what the "no" might mean. It further appeared from the CAIPS notes that the visa officer noted that her second question about the plaintiff's financial dealings over the last 25 years had been given no logical explanation. Once again, she decided not to go any further along that line and preferred to jump ahead to the next question, namely whether the plaintiff had two series of accounts. The plaintiff answered by saying that his company had two and that the government auditor was [TRANSLATION] "paid under the table", otherwise he could not do business in Indonesia. Once again, the visa officer made a note without going any further than to say that the plaintiff was a [TRANSLATION] "case" of tax evasion.
[23] The plaintiff submitted that the visa officer had a duty to conduct an interview so as to clarify the questions which another officer had raised about the plaintiff's file, and not to conduct a cross-examination as in a criminal proceeding. She had a legal duty to give him the necessary latitude to answer her questions calmly, when he was making efforts to appear at his best, speaking English [TRANSLATION] "with difficulty". She also had a duty to ensure that he had an opportunity to answer fully the questions that she asked. In failing or refusing to do so, she failed to perform her duty to act fairly toward the plaintiff and accordingly her refusal to grant him a visa should be quashed, since it was improper in fact and in law.
[24] The defendant, for his part, submitted that the plaintiff could not maintain that he had submitted all the documents requested on the origin of his money. In this regard, as the CAIPS notes indicated, he submitted tax documents (Annual Income Tax Notification Letters) for 1995, 1996, 1997 and 1998. The figures in those documents appear to have all been converted to U.S. dollars, without any indication as to the figures they corresponded to in Indonesian currency or what rates were used for each of the years in making the conversion to U.S. funds. The visa officer accordingly asked the plaintiff if he maintained two separate accounting systems, one for the government and the other for his company. He then admitted that this was the case and that the taxes were paid to the government auditor under the table, as without this he could not have continued doing business in Indonesia. The plaintiff thus expressly admitted that the tax documents he submitted to establish his income sources reflected a practice of tax evasion. Accordingly, the defendant submitted, they could not be used to credibly establish his sources of income for the purposes of his permanent residence application.
[25] The defendant further noted that, when confronted with the illegal nature of his documents, the plaintiff had absolutely nothing to say except to ask how he could legalize what was illegal in Canada. Further, for the last two years (1999 and 2000), the plaintiff submitted untranslated documents, contrary to what was required by the invitation letter of January 22, 2001. Accordingly, the visa officer was unable to verify the plaintiff's tax returns for 1999 and 2000.
[26] As to the argument that the visa officer did not give him an opportunity to resolve her doubts about the inadequacy of the documentation on the origin of the funds and gave him no opportunity to clarify this, the defendant submitted that the CAIPS notes clearly established that the visa officer had indeed told him that his documents reflected an illegal practice, and that in such circumstances they could not be used to check his sources of income. Contrary to what he maintained in his affidavit, he also did not request to be allowed to submit further information and/or other documents about the source of his funds. He simply asked how he could make his documents legal, since that was how one proceeded in his country. In short, the defendant submitted that the record showed the plaintiff had not filed documents enabling the visa officer to adequately assess his sources of income, even though he was duly informed of the officer's concerns about this.
[27] Further, the defendant submitted that the plaintiff's arguments were based on a false premise and so clearly could not be considered by this Court. The plaintiff's argument was based on the premise that it was because of his failure to produce documents covering the years prior to 1989 that his application for permanent residence failed. The plaintiff relied in this regard on the invitation letter of January 22, 2001, which did not mention documents prior to 1989. In short, if we believe the plaintiff, he was penalized for not filing documents which he was never asked to file. The defendant submitted, first, that it was improper for the plaintiff, and contrary to the very wording of the visa officer's decision, to say that check marks appearing on the invitation letter constituted an admission by the officer that he had met the obligation of establishing the legality and legitimacy of his income sources. Further, it is true that the visa officer asked the plaintiff to orally explain how he could have accumulated US$1.35 million and acquired property worth US$100,000 during this period, which the plaintiff was unable to do. The defendant submitted that the visa officer never required documents for the years prior to 1989 and that the plaintiff's application for permanent residence did not fail because such documents were not filed. It was the fact that for 1995 to 2000 he filed untranslated documents which were not reliable that caused his application to fail.
[28] Further, contrary to what the plaintiff maintained in his affidavit, the defendant submitted that during the interview he gave no indication about the problems he had with proceeding in English. Accordingly, the visa officer had no reason to be concerned about whether he was understanding her questions, since his replies, which were satisfactory, showed that he did understand the questions she was asking him and had no difficulty expressing himself in English. Further, in response to the allegations in the plaintiff's affidavit that the visa officer conducted a rapid, brusque and inquisitorial interview, the defendant submitted that the visa officer's affidavit indicated that this was in no way the case and that the CAIPS notes mentioned no special difficulty the plaintiff had in this regard during the interview.
[29] As to the weight to be given the respective affidavits of the plaintiff and the officer, the defendant submitted that the officer obviously had no interest in the outcome of the matter, whereas the plaintiff clearly had such an interest. Accordingly, greater weight should be given to the testimony of a disinterested person than to that of the person who was primarily concerned in a case. Further, the defendant submitted that the plaintiff could have cross-examined the visa officer and nothing prevented him from doing so. However, he chose not to do so and, in the defendant's submission, the plaintiff cannot now question what was stated in the officer's affidavit. Additionally, the defendant submitted that the plaintiff had the burden of convincing the Court in this judicial review. Accordingly, to the extent that his argument was largely based on what he said about the way his interview was conducted, the plaintiff in order to succeed had to persuade the Court that his allegations in this regard were true. However, the defendant submitted, if the Court is not able to see where the truth lies, it must necessarily conclude that the plaintiff has not discharged the burden upon him of establishing the truth of the facts alleged by him. It is well settled that when a Court cannot determine where the truth lies, it must rule against the party who has the burden of proof.
[30] The defendant submitted that based on well-settled case law, the visa officer did more than was required by the duty to act fairly in the circumstances when she pointed out to the plaintiff that his evidence did not enable her to determine the source of his assets. The defendant submitted that the officer had no duty to question the plaintiff so as to assist him to complete his evidence. The burden was completely on the plaintiff. The facts showed that the officer made her concerns known to the plaintiff and asked him all the relevant questions, thereby going beyond her duty. Accordingly, the defendant asked the Court to dismiss the plaintiff's application for judicial review.
[31] After painstakingly reviewing the written submissions and affidavits filed by the parties and examining the visa officer's CAIPS notes, I feel that the latter was right to dismiss the plaintiff's application for permanent residence because of an important deficiency, namely the fact that the plaintiff did not produce acceptable and credible documentary evidence to establish the source of his funds. I also feel that she did not infringe any rule of natural justice that would warrant this Court's intervention.
[32] Section 8(1) of the Act imposes on the plaintiff the burden of establishing that his admission to Canada does not contravene the Act and its Regulations. Section 9(3) and (4) of the Act also provides the following:
| Duty to answer questions
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.
Issuance of visa
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 defendants 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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Obligations
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.
Délivrance de visas
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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[33] Further, the definition of "investor" in the Immigration Regulations, 1978, SOR/78-172, provides that this is a person who has accumulated property by his own efforts and so from legitimate sources:
| 2. (1) "investor" means an immigrant who (a) has successfully operated, controlled or directed a business, (b) indicates to the Minister, in writing, that they intend to make an investment or have made an investment, and (c) has a net worth, accumulated by their own endeavours, of at least $800,000.
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2. (1) « _investisseur_ » Immigrant qui répond aux critères suivants : a) il a exploité, contrôlé ou dirigé avec succès une entreprise; b) il a indiqué par écrit au ministre qu'il a fait ou a l'intention de faire un placement; c) il possède un avoir net d'au moins 800 000_$, accumulé par ses propres efforts. |
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[34] The visa officer was thus required to refuse to issue the plaintiff a visa if he had not fulfilled the obligations laid down in the Act.
[35] As to the plaintiff's argument that the visa officer did not give him an opportunity to resolve her doubts about the inadequacy of the documentation on the origin of the funds, and did not give him an opportunity to complete the evidence, it must be noted that the visa officer does not always have a duty to tell a plaintiff what concerns her about the file submitted to her. This Court's decisions have clearly established that the duty only exists when the plaintiff cannot reasonably be aware of what is worrying the officer or when the latter obtains extrinsic evidence. Accordingly, the visa officer did not have this duty when what was worrying her was specified and clearly identified in the Act or Regulations, as for example the requirement that plaintiffs establish that they have the right to be admitted to Canada. A plaintiff must know the Act and its implementing Regulations and assume that the visa officer's concerns will result directly from the Act and Regulations. In Mehboob Ali v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 948 (QL), at para. 19-21 (T.D.), Teitelbaum J. in fact said the following about this:
It appears that the duty to apprise the applicant of the visa officer's concerns is limited. Given that the applicant must establish that he has met certain criteria to enter Canada, the applicant should assume that the visa officer's concerns will arise directly from the Act or the Regulations. This does not mean that the visa officer should remain silent throughout the interview while the applicant states his case. The visa officer should lead the interview and attempt to draw out relevant information about the application. What it does mean is if, for example, an applicant for a visitor's visa has provided weak evidence supporting his position that he has sufficient ties to his home country to ensure his return, then the visa officer does not have to apprise the applicant of this concern. Such a concern arises directly from the Act and the Regulations. It may be preferable if the visa officer would inform the applicant of this concern but failure to do so does not violate the duty of fairness.
On the other hand, the prime example of when a visa officer should inform the applicant of his concerns is when the visa officer has obtained extrinsic evidence. In that situation, the applicant should have the opportunity to disabuse the officer of any concerns that may arise from that evidence.
In essence, where an interview is necessary to assess an applicant, the duty of fairness requires that the visa officer thoroughly interview the applicant on factors relevant to the claim and give the applicant an opportunity to respond to allegations or assumptions of which the applicant could not be reasonably aware.
[36] More recently, Kelen J. wrote the following in Nawab Singh Heer v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1853 (QL), at para. 19 (T.D.):
While the duty to act fairly requires that the applicant be given the opportunity to address any prejudicial information relevant to their case, this duty to act fairly does not relieve the applicant from the onus to satisfy the visa officer that the applicant has met the requirements set out in the Act and Regulations. The visa officer is under no duty to request that better further evidence be produced; Shaikh v. Canada (1998), 156 F.T.R. 136 (F.C.T.D.) at 140.
[37] The plaintiff objected that the visa officer did not question him sufficiently in the interview. In particular, he objected that she did not ask any questions to clarify her doubts about his admissibility. According to the case law, a visa officer has no duty to question the plaintiff so as to help him complete his evidence about the source of his funds: Harjariwala v. Canada (Minister of Employment and Immigration), [1998] F.C.J. No. 1021 (QL), at para. 7 (T.D.); Heer, supra, at paras. 21-25. The burden is entirely on the plaintiff. In my view, the visa officer in the case at bar did not have to tell the plaintiff that his documents did not enable her to check the source of his financial assets and ask him to provide further evidence, since he could not have been unaware that, in order for his permanent residence application to be allowed, he had to establish that he was not contravening the Act and its implementing Regulations. In order to do this, he had to explain the source of his personal resources, as otherwise serious questions arose about the legitimacy and legality of the means he used to obtain them, and that was in fact the case here. This is not a case in which the plaintiff had no opportunity to respond to allegations or assumptions which he could not reasonably have known, or one in which the officer obtained and relied upon extrinsic evidence to the detriment of the plaintiff, without giving him a chance to say anything.
[38] In any event, in my opinion it is clear from reading the CAIPS notes that the visa officer asked the plaintiff all the relevant questions, and told him of her concerns, but the answers which he gave her did not enable her to conclude that his funds came from credible and legal sources. Seeing his documents for 1995-1998, she asked if he kept two separate sets of accounts, one for the government and one for his company. The plaintiff answered that he did, adding that he paid his taxes to a government auditor under the table. In view of this admission, the visa officer clearly indicated to the plaintiff that this fact, which he had disclosed himself, meant that his documents were not credible and his sources of income could not be checked. Further, when the plaintiff asked her how he could legalize what was illegal, the officer indicated that illegal documents like those he was submitting did not meet the requirements of the Regulations. The visa officer also asked the plaintiff how prior to 1989 he could have accumulated US$1.35 million and acquired property of US$100,000, and the plaintiff gave no satisfactory explanation of this. In my view, such a clear situation did not require any other questions to be asked. Moreover, neither in his affidavit nor his submissions did the plaintiff indicate that the officer could have done more to throw light on his application for permanent residence.
[39] Additionally, the plaintiff's argument that his application for permanent residence failed since he did not produce documents for the years prior to 1989, which he had never been asked to produce, cannot be accepted. His case is simply that of a person who has presented documents in support of his application, revealing facts likely to lead a reasonable person to doubt their evidentiary value. Accordingly, the plaintiff's application for permanent residence failed solely because the documents he submitted, and for which he was asked, were not found reliable.
[40] As regards the problems speaking in English allegedly caused the plaintiff at the interview, I note that the plaintiff was told in the invitation letter of January 22, 2001 that he was required to provide an interpreter for any language other than Mandarin Chinese. Not only did the plaintiff not request the services of an interpreter, he did not mention his problems with English during the interview. In this regard, there is no question that the plaintiff made absolutely no mention to the visa officer of the problems which he says he had during the interview. Moreover, it appears from his affidavit and his written submissions that he did not say he did anything about this, while for her part the officer stated in her affidavit that he did not mention any comprehension problems to her. Additionally, it appeared from the evidence that the plaintiff's replies to the questions put to him by the officer were such that it was impossible for the latter to realize he was having problems understanding the meaning of her questions and speaking in English. In view of these facts, I can only conclude that if the plaintiff did experience problems during the interview he should have told the officer of them, and he did not do this.
[41] On the plaintiff's argument that the rapid, brusque and inquisitorial nature of the interview was a breach of the rules of natural justice, which warranted this Court's intervention, I note that the plaintiff did not indicate what special circumstances might have led the officer to alter her usual method of proceeding in his case alone. The CAIPS notes also do not disclose any special problem during the interview, which the plaintiff complained of to the officer.
[42] In my view, the Court should attach greater weight to the visa officer's testimony about what took place during the interview, for the following reasons. First, it is corroborated by the notes she recopied into the CAIPS system, which make absolutely no mention of problems communicating with the plaintiff, whereas there is nothing to support or confirm the plaintiff's allegations. Further, the officer's notes were re-transcribed into the CAIPS the day after the interview with the plaintiff, namely March 21, 2001, when the events were still fresh in her memory, and the plaintiff's affidavit, on the other hand, dates from August 31, 2001, over five months after the interview. In my opinion the fact that the CAIPS notes, which corroborate the officer's testimony, were contemporaneous is a sufficient reason to prefer her testimony to that of the plaintiff. Finally, it should be noted that it was only when the decision was made on March 20, 2001 that the plaintiff made any objection regarding the substance and form of the interview. This objection to procedure should in my opinion have been made in limine litis and could not be raised once the decision was rendered, when the individual had fully accepted the procedure leading up to the decision. In these circumstances, therefore, the plaintiff has only himself to blame.
[43] For all these reasons, I dismiss the instant application for judicial review on the basis that it is without foundation in fact or in law.
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JUDGE |
OTTAWA, Ontario
April 26, 2002
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: IMM-2099-01
STYLE OF CAUSE: Marcelinus Oei v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: April 23, 2002
REASONS FOR ORDER BY: ROULEAU J.
DATED: April 26, 2002
APPEARANCES:
Patricia Gamliel FOR THE APPLICANT
Guy Lamb FOR THE RESPONDENT
SOLICITORS OF RECORD:
Gamliel & Valai FOR THE APPLICANT
Attorneys
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada