Date: 20010516
Docket: IMM-295-00
Neutral citation: 2001 FCT 493
Ottawa, Ontario, Wednesday the 16th day of May 2001
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] The applicant, Ms. Galvis Panqueva, is a 44 year old citizen of Colombia who applied for permanent residence in Canada in the investor category. She brings this application for judicial review from the decision of a visa officer at the Canadian Consulate General in New York, United States of America, dated December 22, 1999, whereby the visa officer refused Ms. Galvis Panqueva's application for permanent residence.
FACTS
[2] In addition to being married with three young children, since 1979 Ms. Galvis Panqueva has worked for American Airlines as a Bogota-based flight attendant. Ms. Galvis Panqueva also operated from 1987 to 1998 a business which sold toys and children's merchandise.
[3] The reasons for refusing Ms. Galvis Panqueva's application were set out as follows in the visa officer's refusal letter:
You claimed a personal net worth in excess of CAD$500,000. However, you have not been able to satisfy me that you have accumulated a net worth of $500,000 through your own efforts.
You have been working for American Airlines since 1979 as a Bogota Based Flight Attendant. As per your reference letter, you received an "average monthly salary" of US $2,786.00 and a bonus of US $153.00. You claimed to have earned during your entire period of employment with the company (20 years) a gross income of CAD $330,553. Making allowance for taxation, food, clothing and shelter, I do not find it credible that your employment income could produce savings of this level. Further, your starting salary was significantly lower than your present salary, further diminishing the likelihood.
Your wealth could not come out of your business income either. You claimed to have been a store owner from May 1987 to June 1998. However, the financial data presented at interview were from 1992 to 1998. A breakdown of your business profits as per your own report is as follows:
1998 CAD$ 622.00
1997 3,202.00
1996 3,868.00
1995 4,513.00
1994 4,323.00
1993 5,443.00
1992 7,434.00
Since the store you owned has been closed, I am not satisfied with the financial documents presented at interview. Also, I have difficulty with the number of hours you spent at the store during those past 6 years. You went to a great deal of efforts trying to convince me that you were the person who had either operated, controlled or directed that business.
You mentioned at the interview that you closed your business because of low profits. You also stated that you had another store which was opened in 1990 and closed down either in 1994 or 1995 for lack of profits. Coupled with your inability to discuss the financial aspects and overall management of these businesses, I cannot conclude that you have "successfully" operated, controlled or directed a business.
I am not satisfied that you meet the definition of an investor and consequently, I have refused your application for permanent residence in Canada.
[4] Ms. Galvis Panqueva swore an affidavit in support of her application for judicial review and was not cross-examined on that affidavit. No affidavit was filed by the visa officer.
PRELIMINARY MATTER
[5] At the outset of the oral argument, one procedural matter was raised. The respondent failed to file any responding affidavit or record within the time required by the rules. A motion brought by the respondent for an extension of time was dismissed, and no appeal was taken from that order. The applicant therefore objected that counsel for the respondent ought not to be permitted to address oral argument to the Court. It was argued that in the absence of written submissions the applicant would be prejudiced by allowing oral argument because she would not know what submissions would be advanced to the Court by the respondent.
[6] In response, the respondent argued that there would be no prejudice if the respondent's argument was limited to responding to the applicant's submissions without raising any new issue.
[7] Rule 11 of the Federal Court Immigration Rules, 1993, SOR/93-22, requires a respondent who opposes an application to serve on the other parties a memorandum of argument. While that rule is mandatory in its wording, Rule 55 of the Federal Court Rules, 1998 (made applicable to applications for judicial review of a decision of a visa officer by sub-rule 4(2) of the Federal Court Immigration Rules, 1993) allows the Court, in special circumstances, on motion, to dispense with compliance with the rules.
[8] It is a serious matter for a party to fail to comply with the requirements of the rules of this Court with respect to the filing of documents. Notwithstanding that, the applicant has since the filing of the respondent's notice of appearance known of the respondent's intent to oppose this application. I see no prejudice to the applicant if the respondent's right of argument is limited as proposed by the Minister's counsel. For those reasons, I considered that the just determination of this proceeding required that the respondent be given leave to make a responsive argument and at the hearing I gave leave to that effect.
ISSUES
[9] Ms. Galvis Panqueva asserts that the visa officer committed the following reviewable errors:
(i) The visa officer erred in fact and in law by determining that she failed to meet the definition of "investor" as defined in subsection 2(1) of the Immigration Regulations, 1978, SOR/78-172 ("Regulations");
(ii) The visa officer denied her procedural fairness by failing to advise her of, and failing to give to her an opportunity to address, concerns which the visa officer had with respect to the information provided in support of the application; and
(iii) The visa officer's notes and refusal letter contained errors on the face of the record and inconsistencies.
ANALYSIS
[10] The applicant raised a related issue as to the consequence of the failure of the respondent to file an affidavit from the visa officer verifying the contents of the CAIPS notes.
[11] In Wang v. Canada (Minister of Employment and Immigration), [1991] 2 F.C. 165 (F.C.A.), the Federal Court of Appeal held that notes made by a visa officer during an interview were not acceptable as proof of the truth of their contents where no affidavit averring to the truth of their contents was filed.
[12] I accept that the CAIPS notes do not prove the underlying facts which they record so that Ms. Galvis Panqueva's version of events, as sworn to in her affidavit, must be accepted unless otherwise contradicted by material in the tribunal record.
[13] On this basis, I turn to consider the issues raised by Ms. Galvis Panqueva.
(i) Did the visa officer err by determining that the applicant failed to meet the definition of "investor" as defined in subsection 2(1) of the Regulations?
[14] At the material time, an investor was defined to mean:
| "investor" means an immigrant who (a) has successfully operated, controlled or directed a business, (b) has made a minimum investment since the date of the investor's application for an immigrant visa as an investor, and (c) has a net worth, accumulated by the immigrant's own endeavours, (i) where the immigrant makes an investment referred to in subparagraph (a)(i) or (ii), (b)(i), (c)(i) or (ii), (d)(i) or (ii) or (e)(i) or (ii) of the definition "minimum investment", of at least $500,000. |
« investisseur » Immigrant qui satisfait aux critères suivants: a) il a exploité, contrôlé ou dirigé avec succès une entreprise; b) il a fait un placement minimal depuis la date de sa demande de visa d'immigrant à titre d'investisseur; c) il a accumulé par ses propres efforts: i) un avoir net d'au moins 500 000 $, dans le cas d'un immigrant qui fait un placement visé aux sous-alinéas a)(i) ou (ii), b)(i), c)(i) ou (ii), d)(i) ou (ii) ou e)(i) ou (ii) de la définition de « placement minimal » . |
|
The refusal letter shows that Ms. Galvis Panqueva failed to satisfy the visa officer that she met either part (a) or part (c) of the definition.
[15] With respect to part (a) of the definition, Ms. Galvis Panqueva asserted that the visa officer erred in failing to conclude that she operated, controlled or directed her business. Ms. Galvis Panqueva asserted that:
i. The record shows that the visa officer failed to consider each of the criteria of operation, control or direction of a business distinctly and separately;
ii. The visa officer was wrong in stating that Ms. Galvis Panqueva was unable to discuss the financial aspects and overall management of her business;
iii. All of the documents presented showed that Ms. Galvis Panqueva was the owner of the stores and the banks recognized her as the person in control of the finances for the store; and
iv. Ms. Galvis Panqueva was able to answer all of the questions asked of her about her employees, the hours she worked at the store and where she purchased her merchandise.
In the result, it was said that the visa officer had no basis to conclude that Ms. Galvis Panqueva was not in control, operation or direction of the business.
[16] With respect to the first concern, the visa officer noted in the refusal letter that "[y]ou went to a great deal of efforts trying to convince me that you were the person who had either operated, controlled or directed that business." In view of the use of the word "either" by the visa officer, I cannot conclude that she failed to assess the applicant separately and distinctly with respect to each of the criteria.
[17] With respect to the remaining concerns, while the documentation in the record showed Ms. Galvis Panqueva to have been the owner of her stores, they are not per se determinative of the issues of operation, control or direction of the business. As to her inability to answer questions about the financial aspects of her business and overall management of the store, Ms. Galvis Panqueva admitted in her affidavit that she was unable to answer the only question put to her which was the profitability of the store in 1994.
[18] As to the visa officer's finding that she could not conclude that Ms. Galvis Panqueva had "successfully" operated, controlled or directed the business, the businesses' profits were accurately set out in the refusal letter. Profits had declined over the years. One store closed due to lack of profits and there was no evidence as to why the other store was closed.
[19] On that evidence I cannot find that the conclusion of the visa officer as to the success of the business was so unreasonable as to be reviewable. Even accepting on the basis of Ms. Galvis Panqueva's evidence that the visa officer erred in stating that the business (as opposed to one store) was closed due to lack of profit, this, in light of the undoubted and unexplained evidence as to declining profits, in my view did not vitiate the visa officer's conclusion that the applicant had not "successfully" operated or directed a business.
[20] With respect to part (c) of the definition of investor, the applicant asserted that the visa officer erred in determining that she failed to meet this part of the definition because the uncontradicted financial documents provided by her showed that the value of her property, investments, pension, savings from her job with American Airlines and profits from her store exceeded $500,000.
[21] The statement of net worth filed with Ms. Galvis Panqueva's application calculated her net worth to be $820,275 comprised of the total income from American Airlines over 20 years of $330,553, the total profit from her business in the amount of $29,405 and the value of savings, a pension plan, and properties valued at $314,351.
[22] Ms. Galvis Panqueva swore that the visa officer asked her if she had deducted food, taxation, clothing or shelter costs from this gross amount and that she replied that she had not because she thought the requirement was to show how she had accumulated her net worth.
[23] Further, the definition of the investor requires assets to have been accumulated through an applicant's own endeavours. It was reasonable to infer that the assets shown in Ms. Galvis Panqueva's net worth statement, if a result of her own endeavours, must have come from the proceeds of her salary with American Airlines or her business profits. Hence there was an element of double-counting in the net worth statement.
[24] On the basis of the applicant's own net worth statement, and these obvious concerns, I cannot conclude that the visa officer erred in concluding that Ms. Galvis Panqueva had not satisfied her that she had accumulated a net worth of $500,000 through her own efforts.
(ii) Did the visa officer deny Ms. Galvis Panqueva procedural fairness by failing to advise of and give her an opportunity to address the visa officer's concerns?
[25] On Ms. Galvis Panqueva's behalf it was asserted that while the visa officer had concerns with respect to her financial documents, the number of hours the applicant worked at her store, the applicant's apparent inability to discuss the financial aspects and overall management of her business, and the applicant's apparent confusion, the applicant was not advised of any of these concerns and so was denied procedural fairness.
[26] In response, the Minister submitted that the concerns of the visa officer centered around whether the applicant had satisfied the requirements of the definition of an investor. It was said that it was not for the visa officer to provide a running commentary of her concerns thus affording a second, or several opportunities to satisfy the visa officer on points which the applicant either overlooked or failed to address.
[27] In Bhatia v. Canada (Minister of Citizenship and Immigration) (2000), 3 Imm. L.R. (3d) 241 (F.C.T.D.) Cullen J. articulated the relevant responsibilities of a visa officer as follows:
[para9] In my opinion, there is little doubt that it is not the role of a visa officer to offer help, advice or assistance to the applicant in making his or her case for admission. As put by Associate Chief Justice Jerome in Hajariwala,
It is also important to emphasize that the Immigration Act in S. 6 requires those seeking landing in Canada must satisfy an immigration officer that they meet the selection standards set out in the Immigration Regulations, 1978. It is clearly, therefore, the responsibility of the applicant to produce all relevant information which may assist his application. The extent to which immigration officers may wish to offer assistance, counselling or advice may be a matter of individual preference or even a matter of departmental policy from time to time, but it is not an obligation that is imposed upon the officers by the Act or Regulations.
[para10] It is incumbent upon the visa officer, however, to actively interview an applicant, seeking the information required by the officer in order to come to a fair and balanced conclusion.
[para11] It is my opinion that in this case the visa officer did not violate the principles of fundamental justice or procedural fairness in the conduct of the interview of the applicant. General questions were asked of the applicant regarding his job which were followed up by more and more specific questions. In my opinion, the procedure calls for an interview, not an inquisition. Visa officers, when faced with ambiguity or uncertainty, should delve deeper and seek more specific answers from applicants. The applicant was given the opportunity to demonstrate his technical expertise by the officer's increasingly technical questions.
[28] In my respectful view, this accurately summarizes the obligations of a visa officer in respect of conducting a selection interview.
[29] In the case before me, I rely upon the evidence of Ms. Galvis Panqueva as to what transpired at the interview.
[30] On a careful reading of her affidavit, Ms. Galvis Panqueva swore that the interview took between two and one half to three hours, and that during the course of the interview the visa officer asked how many days a month she worked; what business experience she had, what business her store did; how many employees Ms. Galvis Panqueva had; how much she paid her full-time employees; whether she had proof that the business existed; whether Ms. Galvis Panqueva had a business license for the store; why the vendor of the property on which the business was located had the same last name; whether Ms. Galvis Panqueva had other information on her business; whether the applicant brought any proof of the existence of the second store; where toys were purchased from; whether she made or lost money in her business; what the profits were for 1994; why the applicant did not remember the profits in 1994; whether the applicant had other business experience; how the applicant accumulated her personal net worth; and whether she deducted food, taxation, clothing or shelter from her summary of earnings.
[31] On that evidence, I cannot conclude that the visa officer violated the principles of natural justice in the conduct of the interview. The visa officer conducted an active interview. General and specific questions were asked, all relevant to the definition of an investor. Ms. Galvis Panqueva was given the opportunity to meet the onus upon her to satisfy the visa officer that she met the definition as an investor and she failed to persuade the visa officer of her eligibility. The visa officer was not obliged to provide a running account of her concerns.
(iii) Do the visa officer's notes and refusal letter contain inconsistencies which provide a ground for review?
[32] This issue was not pursued in oral argument. I have reviewed the inconsistencies relied on, and conclude that none amount to material errors which could have affected the decision of the visa officer. For example, the visa officer apparently erroneously stated that Ms. Galvis Panqueva purchased goods for resale from local manufacturers when in fact she stated that she bought from local importers. Whether the goods were purchased from a manufacturer or an importer was of no consequence to the officer's decision.
CONCLUSION
[33] Notwithstanding the able and thorough submissions of counsel for the applicant, I have concluded that the application for judicial review should be dismissed.
[34] The respondent posed no serious question for certification and the applicant posed no question other than potentially one as to the use which may be made of CAIPS notes. As my conclusions are not based upon the content, or lack thereof, of the CAIPS notes, I do not find this issue to be determinative of an appeal. Therefore no question will be certified.
ORDER
[35] IT IS HEREBY ORDERED THAT:
The application for judicial review is dismissed.
"Eleanor R. Dawson"