Ottawa, Ontario, October 12, 2006
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review pursuant to subsection 72(2)(d) of the Immigration and Refugee Protection Act (the Act) of a decision dated March 9, 2006, by a Visa Officer, from the Canadian High Commission, Immigration Section, Islamabad, Pakistan rejecting the applicant’s application for Canadian permanent resident status under the Investor category.
ISSUES
[2] This application raises the following issues:
1. Did the Visa Officer breach the duty of fairness and fail to observe the principles of natural justice by not affording the applicant an opportunity to address her concerns?
2. Did the Visa Officer base her decision on an erroneous finding of the facts or was her conclusion made in a perverse or capricious manner and without regard to the material before her, including ignoring the income tax returns from 2000 to 2005?
[3] For the following reasons, the answer to both questions is negative and the present application shall be dismissed.
BACKGROUND
[4] The applicant is a businessman and citizen of Pakistan.
[5] He completed his education in 1970 and started working as a self-employed from 1970 to 1976. Since that date, he has worked as a partner in Dr. Salim Ahmed & Co. Importer & Trader of Homeopathic Medicines.
[6] The applicant has a total net worth of $1,076,948 Cdn, out of which $737,500 Cdn is in the form of real estate and $90,134 Cdn in bank deposits. The estimated current market value of the applicant’s share in the business is $249,314 Cdn (page 7 of the Computer Assisted Immigration Processing System (CAIPS) notes).
[7] According to the CAIPS entries, the applicant applied for Canadian permanent resident status as an entrepreneur on November 20, 2003. However, on September 1, 2005, the respondent received a letter from a consultant advising that the applicant wished to change his immigration category to investor.
[8] On December 29, 2005, the applicant was invited to an interview scheduled for March 9, 2006, in order to assess the applicant’s eligibility and determine whether he met the requirements of the Act. The letter provided a detailed account of what was expected of the applicant before and during the assessment interview, including the following at page 3:
A decision will be made on your case at the interview, based on the documents presented at that time.
[9] The Visa Officer interviewed the applicant on March 9, 2006, not on February 7, 2006, as stated by the applicant. The Visa Officer rendered her decision denying his application on the same day as the interview. The decision, along with original documents, was sent to the applicant on March 11, 2006. On March 13, 2006, the respondent received a letter from the applicant’s consultant. However, no action on this communication was required since the application had already been refused.
DECISION UNDER REVIEW
[10] Based on the information available at the time of the assessment interview, the Visa Officer refused the application for permanent residence under the investor category because the applicant failed to adequately account for the origins of his net worth. In other words, the applicant failed to satisfy the Visa Officer that his personal net worth met the requirements of the Act.
PERTINENT LEGISLATION
[11] Below are the relevant parts of the definition of “Investor” as set out in subsection 88(1) of the Immigration and Refugee Protection Regulations (the Regulations):
|
88. (1) The definitions in this subsection apply in this Division. investor” « investisseur » “investor” means a foreign national who (a) has business experience;
(b) has a legally obtained net worth of at least $800,000; and
(c) indicates in writing to an officer that they intend to make or have made an investment. (investisseur)
“net worth” « avoir net » “net worth”, in respect of (a) an investor, other than an investor selected by a province, means the fair market value of all of the assets of the investor and their spouse or common-law partner minus the fair market value of all of their liabilities;
. . . |
88. (1) Les définitions qui suivent s’appliquent à la présente section. « investisseur » “ investor ” « investisseur » Étranger qui, à la fois : a) a de l’expérience dans l’exploitation d’une entreprise; b) a un avoir net d’au moins 800 000 $ qu’il a obtenu licitement; c) a indiqué par écrit à l’agent qu’il a l’intention de faire ou a fait un placement. (investor)
« avoir net » “ net worth ” « avoir net » a) S’agissant d’un investisseur, autre qu’un investisseur sélectionné par une province, s’entend de la juste valeur marchande de tous les éléments d’actif de l’investisseur et de son époux ou conjoint de fait, diminuée de la juste valeur marchande de tous leurs éléments de passif; . . . |
ANALYSIS
1. Breach of duty of fairness and principles of natural justice
Standard of Review
[12] With respect to this first issue, it is settled law that questions of the principles of procedural fairness and natural justice, are 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 (Ha v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 174 (F.C.A.) (QL), 2004 FCA 49; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 and Shi v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 1490 (F.C.T.D.) (QL), 2005 FC 1224).
Application to duty of fairness and principles of natural justice
[13] During the interview, the Visa Officer expressed concerns about how the applicant had accumulated his wealth and asked if he could provide further documentation to satisfy her of the sources of the applicant’s funds. The Visa Officer states in her decision that the applicant replied that he did not have any further documentation and at no time did he advise that he would be sending within thirty days of the interview, the necessary proof from his accountant showing that he was exempt from filing and paying personal income tax.
[14] In Liu v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 1289 (F.C.T.D.) (QL), 2006 FC 1025, Mr. Justice de Montigny dealt with the same issue on similar facts to this case. Indeed, the Visa Officer in Liu had expressed concerns about the legitimacy of the applicant’s source of funds during the assessment interview of his application for permanent residence under the investor class. At paragraph 16, the Court held as follows:
It seems to me the Visa Officer went beyond what was expected. The officer was under no obligation to alert Mr. Liu of these concerns since they were about matters that arose directly from Mr. Liu's own evidence and from the requirements of the Act and of the Regulations. An applicant's failure to provide adequate, sufficient or credible proof with respect to his visa application does not trigger a duty to inform the applicant in order for him to submit further proof to address the finding of the officer with respect to the inadequacy, deficiency or lack of credibility: Oei v. Canada (Minister of Citizenship and Immigration), 2002 FCT 466, 221 F.T.R. 112, [2002] F.C.J. No. 600 (F.C.T.D.) (QL); Sheikh v. Canada (Minister of Citizenship and Immigration), 2003 FCT 272, [2003] F.C.J. No. 377 (F.C.) (QL); Naghashian v. Canada (Minister of Citizenship and Immigration), 2003 FCT 504, [2003] F.C.J. No. 654 (F.C.T.D.) (QL); Ali v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 472 (F.C.T.D.) (QL); Yu v. Canada (Minister of Employment and Immigration) (1990), 11 Imm. L.R.(2d) 176, [1990] F.C.J. No. 704 (F.C.T.D.) (QL); Ashgar v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1091 (F.C.T.D.) (QL); Heer v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1357, 215 F.T.R. 57, [2001] F.C.J. 1853 (F.C.T.D.) (QL); Bashir v. Canada (Minister of Citizenship and Immigration), 2002 FCT 868, [2002] F.C.J. No. 1144 (F.C.T.D.) (QL).
[15] As in Liu, the Visa Officer in this case went over and beyond her duty of fairness. The Visa Officer is under no obligation to apprise the applicant of concerns unless these concerns deal with extrinsic evidence.
[16] There is some discrepancy in the affidavit evidence. On the one hand, the Visa Officer states that she advised the applicant that his failure to adequately account for the origins of his personal net worth made it impossible for her to complete a comprehensive and proper assessment in his case. The Visa Officer then gave the applicant an opportunity to respond and he replied that he did not have any further documentation to present. On the other hand, the applicant’s affidavit states that he offered to file evidence showing that he did not have to file a personal income tax return or pay personal income tax.
[17] The letter dated December 29, 2003, which invited the applicant to the assessment interview on March 9, 2006, stated clearly the purpose of the interview. The applicant was informed in significant detail that the assessment interview was final and that a decision would be made on the applicant’s case at the interview, based on the documents presented at that time. While the Visa Officer did exercise her discretion and went beyond her duty of fairness to ask the applicant if he had further proof of the source of his income, opportunity which he declined, it would be to put too onerous a task on the Visa Officer to go beyond the stated purpose in the letter of invitation to the assessment interview.
[18] Based on a review of the CAIPS entries, which are dated the same date as the decision, as well as the evidence from both parties, the Court finds that the Visa Officer did not breach her duty of fairness to the applicant. Although there was no obligation to do so, the Visa Officer did express her misgivings and invited the applicant to provide further documentation to persuade her that his wealth was not gleaned from illegitimate sources. Unfortunately, the applicant said he had no further information. I attach greater weight to the Visa Officer’s affidavit about what took place during the interview because the CAIPS entries were done the same day and there is no mention that the applicant would have the opportunity to submit further documentation (Oei v. Canada (Minister of Citizenship and Immigration), 2002 FCT 466, [2002] F.C.J. No. 600 (F.C.T.D.) (QL)).
[19] The information the applicant subsequently provided was simply too late and arrived after the decision was made. There was no request from the applicant to reopen the case. Instead, the applicant filed this application for judicial review. As a result, he ought to have exhausted all other recourses, including requesting that the decision be reopened to submit the new documentation, before seeking judicial review of the decision.
[20] Notwithstanding the discrepancy in the affidavits and the subsequent submission of documents by the applicant, the Visa Officer was under no duty to apprise the applicant of her concerns. I conclude therefore that the Visa Officer committed no error of law or fact. She neither breached her duty of fairness nor failed to observe the principles of natural justice. The Visa Officer refused the applicant’s application based on the evidence before her. The applicant failed to discharge himself of the onus to respect the terms of his application for permanent residence under the investor program. The applicant failed to clearly establish that his net worth was not gained by illegitimate means.
[21] I would therefore rule against the applicant’s position with respect to the issue of the duty of fairness and the observance of the principles of natural justice.
2. Erroneous findings of facts
Standard of review
[22] The standard of review applicable to discretionary decisions of a Visa Officer regarding the investor category is patent unreasonableness. In Hua v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 2106 (F.C.T.D.) (QL), 2004 FC 1647, a decision involving similar facts as in the present case, Mr. Justice Teitlebaum at paragraphs 25-28, held:
There is a considerable amount of controversy with respect to the standard of review applicable to a visa officer's decision pertaining to a permanent resident application based on the investor immigrant category. The majority of the case law on this issue seems to have indeed adopted the criteria set out in Maple Lodge but not in accordance with the Applicant's interpretation. I agree with the Respondent that the decision in Maple Lodge does not stand for the principle that the applicable standard of review is reasonableness simpliciter.
In fact, I believe that it sets out the idea that a high level of deference should be granted to discretionary decisions: To v. Canada (Minister of Employment and Immigration), [1996] F.C.J. Np. 696. In Li v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1204, Heneghan J. held:
The decision which is the subject of the application is a discretionary decision made by the Visa Officer. In the absence of evidence that the Visa Officer ignored relevant evidence or took extraneous matters into consideration, the decision will receive judicial deference. (par. 11)
Although jurisprudence indicates that Maple Lodge is widely applied in these circumstances, there does seem to be a set conclusion as to whether it imports the standard of patent unreasonableness or reasonableness simpliciter.
Nevertheless, because the decision, in my opinion, is a discretionary one, I am satisfied that the test is patent unreasonableness as deference must be accorded the visa officer's decision.
[23] In Anfu v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 536 (F.C.T.D.) (QL), 2002 FCT 395, Madam Justice Heneghan dealt with a similar issue on similar facts and held that these fact specific issues imply that there is a high degree of deference to the Visa Officer whose decisions are discretionary.
Erroneous findings of fact
[24] The applicant argues that the Visa Officer made an erroneous finding of fact and without regard to the material before her, including ignoring the income tax returns from 2000 to 2005. The respondent correctly points out that the applicant did not file with the Court copies of his income tax returns from 2000 to 2005.
[25] Moreover, the CAIPS notes do not confirm the applicant’s position that the respondent ignored its income tax for the five years in question. According to CAIPS, the respondent did not receive a complete set of the applicant’s business income tax returns for the period in question. A review of the CAIPS entries indicates the following:
FN [the applicant] provided audit reports for yrs 2001 to 2005 prepared by Amjad Ali & Company Chartered Accountants. Provided photocopy of 2005 income tax return (1st page only) no other pages submitted for 2005. Also submitted income tax returns for yrs 2000/1/3 & 2004. Consultant has stated that 2002 income tax return is misplaced.
…
Requested personal income tax returns. FN states he has never filed income tax returns nor pays taxes because he pays taxes on his imports & that is all he has to do.
[26] The Court finds that the Visa Officer did not ignore the available income tax returns. I share the opinion of the respondent that the business income tax returns – not personal income tax returns filed by the applicant did not provide the evidence necessary to show the legal and legitimate source of his net worth.
[27] The parties did not submit questions for certification.
JUDGMENT
THIS COURT ORDERS that this application is dismissed. No serious question is certified.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1901-06
STYLE OF CAUSE: SALIM AHMED
and THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: October 4, 2006
APPEARANCES:
Daniel Latulippe FOR RESPONDENT
SOLICITORS OF RECORD:
Guy P. Major FOR APPLICANT
Montreal, Quebec
John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
Montreal, Quebec