Federal Court Decisions

 

Date: 20070213

Docket: IMM-1110-06

IMM-1112-06

 

Citation: 2007 FC 159

Ottawa, Ontario, February 13, 2007

PRESENT:     The Honourable Mr. Justice Simon Noël

 

BETWEEN:

XIAO HUI LU

Applicant

and

 

MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, ch. 27 (IRPA) of a decision of the Immigration Section of the Consulate General of Canada in Hong Kong (Consulate General) dated December 19, 2005 refusing Xiao Hui Lu’s (Applicant) application for permanent residence on the basis that he is inadmissible to Canada due to misrepresentation.  The decision of the Immigration Section was communicated to the Applicant in two parts; a letter from Brian Beaupre (Manager Beaupre), Immigration Operations Manager in the Immigration Section of the Consulate General and a letter from Yvonne Tsang, Immigration Officer in the Immigration Section of the Consulate General.  Both letters were dated December 19, 2005 and were received by the Applicant on December 31, 2005. 

 

[2]               The Applicant initially brought two applications for judicial review, both were granted leave.  The judicial review of Manager Beaupre’s decision being file IMM-1110-06 and the judicial review of Officer Tsang’s decision being file IMM-1112-06.  By order of the Court the two files were joined.

 

I.  Facts

 

[3]               On October 8, 2004 the Applicant, a citizen of China made an application for permanent residence in Canada as a member of the “investor” category.

 

[4]               In his application for permanent residence, the Applicant indicated that from June 1998 to the present he was “Board Chairman/General Manager” of Beijing Meige Decoration and Fitment Co. (Beijing Meige), a company specializing in “indoor and outdoor house decoration”.  The Applicant also indicated in his permanent residence application that he owned a 33% interest in the company, the company’s registered capital stood at 5,000,000 Yuan and that it had net assets valued at 17,044,645.26 Yuan.  Thus, according to the Applicant, his share of the company was worth 5,624,732.93 Yuan or 839,512 CDN.  Additionally, the Applicant valued his personal net worth at 1,263,107 CDN.

 

 

[5]               In support of his net personal worth and the value of his stocks in Beijing Meige, the Applicant produced capital validation reports.  Such reports are prepared by outside auditors and they document the evolution of one’s contribution to a corporation or otherwise over a period of years.  The Applicant, in the case at bar, submitted four such reports, namely reports for 1996, 1998, 2000 and 2001. 

 

[6]               On May 23, 2005 the Applicant’s permanent residence application was paper-screened at the Consulate General.  From this scan, there appeared to be contradictions that existed between the Applicant’s household registration papers and the residence and employment information contained in his application.  The Applicant was asked to explain these contradictions.  The explanation he provided was deemed acceptable by Officer Tsang who was assigned to the file.  Consequently, on July 22, 2005 permanent resident visas were printed for the Applicant and his dependents.

 

[7]               On August 1, 2005 the Applicant’s permanent residence application was randomly selected to undergo routine quality assurance checks by the Migration Integrity Unit.  A report on these checks (Quality Assurance Report) was completed on August 9, 2005 and reviewed by Officer Tsang.  The Quality Assurance Report raised questions as to the validity of the capital validation report dated August 27, 2001 (2001 capital validation report), prepared by Beijing Jing Cheng, a certified public accountants (CPA) firm. 

 

[8]               Given the questions raised by the Quality Assurance Report, the Consulate General inquired about the 2001 capital validation report to Ms. Lu, one of the two accountants who had supposedly signed off on the report.  In response to the inquiries, Ms. Lu confirmed on August 8, 2005 that the 2001 capital validation report contained no reference number, which was unusual and which prevented the report’s authenticity from being verified and that the signature appearing at the end of the report was not hers.  The following day, Ms. Lu reaffirmed that it was not her signature that appeared at the end of the 2001 capital validation report.   

 

[9]               On August 17, 2005 another member of the staff of Beijing Jing Chen, Ms. Zhang, in the course of providing document verification results pertaining to an unrelated immigration application, told Consulate General officials that the 2001 capital validation report was genuine as the firm had been able to locate their copy of the report based on its issuance date.

 

[10]           Ms. Zhang also told Consulate General officials that she did not know why Ms. Lu claimed that it was not her signature that appeared on the 2001 capital validation report.  After speaking to Ms. Zhang, Ms. Lu was once again contacted by Consulate General officials.  Ms. Lu once again confirmed that it was not her signature that appeared at the end of the Applicant’s 2001 capital validation report.  Ms. Lu added that if Ms. Zhang could locate the report in the firm’s archives, the 2001 capital validation report must be genuine, and that possibly someone had signed the report on her behalf.

 

[11]           On September 28, 2005 staff of the Consulate General visited the offices of Beijing Jing Chen.  At that time, Ms. Lu once again affirmed that it was not her signature that appeared on the 2001 capital validation report.  Moreover, Ms. Lu reiterated that another auditor may have signed the report on her behalf, as this had been permissible as per the firm’s policy prior to 2002.  Ms. Lu also advised the Consulate General staff that the only person with access to Beijing Jing Chen’s archives was Ms. Zhang who was unavailable. 

 

[12]           The following day, staff of the Consulate General revisited the firm.  They were once again unsuccessful in obtaining the firm’s copy of the 2001 capital validation report.  First, Ms. Zhang refused to produce a copy of the report saying that it could not be produced without her Director’s consent, but refused to provide her Director’s contact information.  Second, both Ms. Zhang and Ms. Lu now advised the Consulate General staff that no capital validation report could be found without a reference number.  Third, when pressed, Ms. Zhang said that she had been able to find a copy of the 2001 capital validation report, but that this report was in the firm’s archives, and the only person with the key to the archives was out of the office.

 

[13]           On October 17, 2005, Officer Tsang sent the Applicant a letter detailing the findings made by the Consulate General staff relating to his application for permanent residence.  In that letter Officer Tsang stated that she had “serious concerns that [he] does not meet the requirements of the Act”, as it appeared that the 2001 capital validation report was fraudulent and that Beijing Jing Chen was in collusion with him.  The Applicant was given 60 days to submit information or documentation in response to Officer Tsang’s concerns. 

 

[14]           On November 14, 2005, the Applicant sent a letter to Officer Tsang stating that he had met with the Director of Beijing Jing Chen, Mr. Buer Pan, who confirmed the authenticity of the 2001 capital validation report and explained that the staff’s “working style” was the reason behind the confusion relating to the 2001 capital validation report. 

 

[15]           On November 16, 2005, Mr. Pan sent a letter to Officer Tsang in which he confirmed that the 2001 capital validation report was authentic.  In that letter, Mr. Pan attempted to explain Beijing Jing Chen’s staff actions.  First he stated that Ms. Lu was being “cautious” and did not want to confirm her signature due to the illegibility of her signature that appeared in the version of the capital validation report presented to her.  Second, that Ms. Zhang had in fact found a copy of the 2001 capital validation report by its issuance date, but refused to provide it to Consulate General staff when they visited the firm as they failed to produce identification upon request. 

 

[16]           After reviewing Mr. Pan’s letter, Officer Tsang concluded that Mr. Lu was inadmissible to Canada.  In her letter to the Applicant dated December 19, 2005, Officer Tsang wrote “…because you a person described under subsection 16(1) of IRPA and subsections 34 to 42 of the Immigration and Refugee Protection Act … you are therefore criminally inadmissible to Canada.”

 

 

 

 

[17]           In Manager Beaupre’s letter to the Applicant also dated December 19, 2005, he wrote:

 

… I have reasonable grounds to believe that you had submitted a fraudulent document in support of your immigration application.  This misrepresentation or withholding of such material fact induced or could have induced errors in the administration of the Act because

 

1) I would not have realized that you have contravened subsection 16(1) of the Immigration Act which states that a person who makes an application must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant experience and documents that the officer reasonably requires

 

2) As a result of the information contained in the fraudulent Description of Alteration Registration Capital Validation dated 27 August 2001 submitted by you, I could have been led to believe that part of your personal net worth was accumulated legally through your claimed, total investment made to Beijing Meige Decoration and Fitment Co. Ltd.

 

As a result, you are inadmissible to Canada for a period of two years from the date of this letter. 

 

[18]           Mr. Lu received both Officer Tsang and Manager Beaupre’s letters on December 31, 2005. 

 

II. Statutory Framework

 

[19]           The following provisions of IRPA are of importance to the review of the decision to deny the Applicant permanent residence in Canada.

 

 

 

 

 

 

III. Issues

 

(1)   Did the Applicant’s receipt of letters from both Manager Beaupre and Officer Tsang, explaining why he was found to be inadmissible to Canada, violate procedural fairness?

(2)   Did Manager Beaupre err in concluding that the Applicant was inadmissible due to misrepresentation?

(3)   Did Officer Tsang’s letter provide insufficient reasons as to why the Applicant’s permanent residence application was being denied and as such violate procedural fairness?

 

 

 

(4)   Did Officer Tsang err in law by stating that the Applicant was “criminally inadmissible” when in fact the Applicant was found to be inadmissible due to misrepresentation?

 

IV. Analysis

 

(1)   Did the Applicant’s receipt of letters from both Manager Beaupre and Officer Tsang, explaining why he was found to be inadmissible to Canada, violate procedural fairness?

 

[20]           The Applicant received the letters of Manager Beaupre and Officer Tsang, both dated December 19, 2005, on December 31, 2005.  Officer Tsang’s letter was more general than the one sent by Manager Beaupre.  However, when read together, it is clear that the Immigration Section of the Consulate General determined that the Applicant contravened subsection 16(1) of IRPA, which states that a person who makes an immigration application must truthfully answer all questions put to them and must produce all relevant documents that an officer reasonably requires, and as such was inadmissible to Canada due to misrepresentation, pursuant to paragraph 40(1)(a) of IRPA.

 

 

 

 

 

 

[21]           I do not see how the fact that the Immigration Section of the Consulate General sent two letters to the Applicant, which when read together provide a detailed explanation as to the factual background relating to the Applicant’s permanent resident application, the steps taken by the Consulate General to verify the information the Applicant provided and the reasons why the Applicant was considered inadmissible to Canada could constitute a violation of procedural fairness.  These two letters do not contradict themselves.  Thus, in my opinion the fact that the Applicant received two letters only clarified the reasons as to why his application for permanent residence was denied and in no way prejudiced him.   

 

(2)   Did Manager Beaupre err in concluding that the Applicant was inadmissible due to misrepresentation?

 

[22]           The conclusion of Manager Beaupre that the Applicant made misrepresentations in his permanent residence application is a finding of fact.  It is well established that findings of fact made by immigration officers are reviewable on the standard of patent unreasonableness (Boni v. Canada (Minister of Citizenship and Immigration), 2006 FCA 68, at paras. 7 and 8).  In the case at hand, Manager Beaupre found that the 2001 capital validation report submitted by the Applicant, as part of his application for permanent residence, was not authentic.  As such, Manager Beaupre determined that the Applicant was inadmissible to Canada due to misrepresentation pursuant to paragraph 40(1)(a) of IRPA. 

 

[23]           Manager Beaupre’s finding that the 2001 capital validation report was not authentic is not patently unreasonable.  There is ample evidence supporting this finding, notably the following:

 

-         there was no reference number on the 2001 capital validation report, which is unusual for such a document and which constituted a major obstacle in terms of verifying the authenticity of the document;

-         Ms. Lu, one of the auditors who allegedly signed the 2001 capital validation report, stated repeatedly that the signature at the end of the report was not hers;

-         inquiries into the validity of the 2001 capital validation report did nothing to dispel the doubts raised regarding the authenticity of the document as the staff of Beijing Chen Jing constantly changed their story as to the authenticity of the document;

-         the explanations given by the Applicant and the Director of Beijing Chen Jing did not explain the various stories that the staff of Beijing Chen Jing told the Consulate General in what concerns the 2001 capital validation report. 

 

[24]           Thus, the finding of Manager Beaupre that the 2001 capital validation report was not authentic was reasonable given the evidence and as such the intervention of the Court is not justified.

 

(3)   Did Officer Tsang’s letter provide insufficient reasons as to why the Applicant’s permanent residence application was being denied and as such violate procedural fairness?

 

[25]           On its own Officer Tsang’s letter does not state the specific section of IRPA under which the Applicant was found to be inadmissible.  Officer Tsang’s letter merely states that “because you are a person described in subsection 16(1) and subsections 34 to 42 of the Immigration and Refugee Protection Act… you are therefore … inadmissible to Canada.”  This being said, as previously mentioned, the Applicant received letters from both Officer Tsang and Manager Beaupre.  Manager Beaupre in his letter specified that the Applicant was inadmissible to Canada pursuant to paragraph 40(1)(a) of IRPA.  As the letters of Manager Beaupre and Officer Tsang were received the same date (December 31, 2005), were written the same date (December 19, 2005) and were sent by the same office, namely the Immigration Section of the Consulate General in Hong Kong, I see no reason why they cannot be considered together and why the Applicant when reading the letters together would not have had a clear understanding as to the reasons why he was found to be inadmissible to Canada.

 

(4)   Did Officer Tsang err in law by stating that the Applicant was “criminally inadmissible” when in fact the Applicant was found to be inadmissible due to misrepresentation?

 

[26]           In her letter Officer Tsang stated “As you are a person described in subsections 34 to 42 of the Immigration Act, you are therefore criminally inadmissible to Canada”.  Sections 34 to 42 of IRPA are the sections of the Act which establish the reasons why a person may be deemed inadmissible to Canada.  It happens to be that one of these reasons is inadmissibility due to criminality. 

[27]           In the case at hand there is no indication that the Applicant had any sort of criminal record that would make him inadmissible due to criminality.  Justice Blanchard in Zhong v. Canada (Minister of Citizenship and Immigration), 2004 FC 1636 at paragraph 24, states:

While it may have been open to the Officer, on the evidence, to find that conflicting and/or insufficient evidence had been presented to satisfy the Officer that the Applicant's net worth is derived from legal and legitimate sources, such a finding does not necessarily lead to a determination that the Applicant is a member of an inadmissible class of persons described in subsection 36(2) of the IRPA. A person does not become a member of the inadmissible class of persons described in subsection 36(2) for the sole reason that he has violated a prescription of the IRPA or the Regulations. (See Kang v. Canada (Minister of Citizenship & Immigration) [1981]2 F.C. 807 (F.C.A.) at paragraph 6).

 

[Emphasis added]

 

I am in total agreement with Justice Blanchard, a person who provides conflicting evidence or does not provide truthful answer to an immigration officer does not become “criminally inadmissible”.   

 

[28]           The Respondent explicitly states that Officer Tsang’s role was to assess whether the Applicant met the requirements of subsection 11(1) of IRPA, namely Officer Tsang was to determine whether she was satisfied that the Applicant met the requirements of IRPA and was not inadmissible.  Officer Tsang’s letter demonstrates that she was not satisfied that the Applicant met the requirements of IRPA as she had determined that the Applicant had not been truthful in his dealings with immigration authorities, and as such violated section 16 of IRPA.   The fact that Officer Tsang then went on to state that the Applicant was inadmissible to Canada, did overstep Officer Tsang’s role in assessing the Applicant’s permanent residence application.  This being said, the CAIPS notes do indicate that Officer Tsang recommended to Manager Beaupre that the Applicant be found inadmissible under paragraph 40(1)(a) of IRPA.  However, a final determination as to the inadmissibility of the Applicant was left to Manager Beaupre. 

 

[29]           Although Officer Tsang did overstep her role in the evaluation of the Applicant’s permanent residence application, I do not believe her actions constitute an error of law.  The fact that Officer Tsang wrote in her letter to the Applicant that “you are therefore criminally inadmissible to Canada” is in my opinion an error which can be associated to a typographical error and it is not of a conclusive nature.  As previously mentioned in the two letters received by the Applicant on December 31, 2005, Officer Tsang’s was the more broad, setting out in general terms the facts at issue and the reasons why the Applicant’s permanent residence application was refused.  Given that she did not specify under which specific provision of IRPA the Applicant was found to be inadmissible, and given the in-depth reasons provided to the Applicant as to why he was found inadmissible in Officer Beaupre’s letter, Officer Tsang, although she makes reference to the “inadmissibility” provisions of IRPA, did not conclude that the Applicant was inadmissible due to criminality under section 36 of the Act. 

 

[30]           Justice Russell in Petrova v. Canada (Minister of Citizenship and Immigration), 2004 FC 506, addressed the implications of a typographical error in a decision’s makers reasons under review by the Court.  At paragraph 51 of Petrova, above, Justice Russell writes:

When a mistake is typographical in nature, the Court should not interfere with the decision, especially if the error does not appear to have been a misunderstanding of the evidence. Nadon J. in Sandhu v. M.C.I. stated the following regarding a typographical error in that case:

 

... It is clear from reading the record that the Refugee Division did not misunderstand the situation regarding the visit of two men noted by the plaintiff. The plaintiff testified that two men visited Pritam Singh's room. He did not testify that those individuals visited him, and I feel sure that the word "claimant" contained in the sentence:

 

The claimant told the police that on two occasions he saw two individuals whom he could not identify visiting the claimant in his room...

 

is a typographical mistake. In any case, if there is an error it is not a conclusive error and certainly could not justify intervention by the Court.

 

Sandhu v. Canada (Minister of Citizenship and Immigration), 2002 FCT 134

 

In my view, there is no reason why the error made by Officer Tsang should result in the Court intervening in the case at bar.  There is no indication in Officer Tsang’s letter that she misunderstood the evidence before her and as such believed the Applicant was inadmissible under section 36 of IRPA due to criminality, or that Officer Tsang believed that providing untruthful information made the Applicant inadmissible due to criminality, as was the case in Zhong, above.

 

[31]           This being said, the word “criminally inadmissible” may negatively affect the Applicant’s ability to enter Canada in the future.  Consequently, for good measure, I ask the Minister to take all efforts to clear any reference to the Applicant being “criminally admissible” from the records.

 

[32]           In summary, the fact that Officer Tsang added the word “criminally” before stating that, as per the general inadmissible provisions in IRPA the Applicant was inadmissible to Canada, is an inconclusive error which does not impact on the main substance of the decision and cannot justify the intervention of this Court. 

 

 

 

 

V.  Conclusion   

 

[33]           For the reasons stated above, there is no basis on which the Court may intervene in the case at bar.  As such the application for judicial review is dismissed. 

 

[34]           The parties were invited to submit a question for certification, but none were submitted. 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

THIS COURT ORDERS THAT:

 

-                  The applications for judicial review in files IMM-1110-06 and IMM-1112-06 are dismissed.

-                  The Respondent must inform whom it may concern in file IMM-1112-06, as to what must be done to rectify the record, in light of paragraphs 31 and 32 of the reasons for judgment.

-                  No questions are certified.

 

 

“Simon Noël”

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

DOCKET:                                          IMM-1110-06

                                                            IMM-1112-06

 

STYLE OF CAUSE:                          XIAO HUI LU

-AND-

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

 

 

PLACE OF HEARING:                    Montreal, Quebec

 

DATE OF HEARING:                      February 8, 2006

 

REASONS FOR JUDGMENT:       The Honourable Mr. Justice Simon Noël          

 

DATED:                                             February 13, 2007

 

 

 

APPEARANCES:

 

Mr. Stephen J. Fogarty	FOR THE APPLICANT(S)
Me François Joyal	FOR THE RESPONDENT(S)

 

SOLICITORS OF RECORD:

 

Me Stephen J. Fogarty 288 St-Jacques, 3rd Floor Montreal, Quebec H2Y 1N1	FOR THE APPLICANT(S)
Me François Joyal Guy-Favreau Complexe 200 René-Lévesque Blvd West East Tower, 12th Floor Montreal, QC H2Z 1X4	FOR THE RESPONDENT(S)