Date: 20030317
Docket: IMM-1591-02
Neutral citation: 2003 FCT 315
Vancouver, British Columbia, Monday, the 17th day of March, 2003
Present: THE HONOURABLE MADAM JUSTICE DAWSON
BETWEEN:
YURI USHENIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
DAWSON J.
[1] Yuri Ushenin brings this application for judicial review of the decision of a visa officer at the Canadian Embassy at Moscow, Russia, dated March 6, 2002, which refused his application for permanent residence in Canada in the investor category.
[2] At the material time the definition of "investor" contained in the Immigration Regulations, 1978, SOR/78-172 was:
"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, or
(ii) where the immigrant makes an investment referred to in subparagraph (a)(iii), (b)(ii), (c)(iii) (d)(iii) or (e)(iii) of the definition "minimum investment", of at least $700,000;
* * *
"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 accumuleé par ses propres efforts:
(i) un avoir net d'au moins 500 000 $, dans le cas d'un immigrant qui fair 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",
(ii) un avoir net d'au moins 700 000 $, dans le cas d'un immigrant qui fait un placement visé aux sous-alinéas a)(iii), b)(ii), c)(iii), d)(iii) ou e)(iii) de la definition de "placement minimal".
THE DECISION OF THE VISA OFFICER
[3] The visa officer was satisfied that Mr. Ushenin met the first and second element of the definition of investor, but was not satisfied that he had accumulated the necessary net worth by his own endeavours. The officer concluded that the information provided by Mr. Ushenin, both orally and in writing, in support of his accumulation of net worth was not credible on four grounds which were cited in the refusal letter. They were:
(i) Mr. Ushenin claimed to have worked as a consultant for a Swiss company "Aldeco" from October 1998 to March 1999, and to have generated income during that period of $497,000.00 (US). However, this employment was not referenced in Mr. Ushenin's work history in his original application for permanent residence.
(ii) On the original personal net worth statement he provided, Mr. Ushenin misstated the purchase prices of his real property holdings.
(iii) Five of the seven contracts Mr. Ushenin said he was engaged to close for Aldeco appeared to predate his departure from his prior employer, and appeared to contradict his claim that while at his prior employer he did not know he would later be working with Aldeco. The aluminum that was the subject of all seven contracts was sourced from the applicant's previous employer, Krasnoyorsk Aluminum Plant.
(iv) Mr. Ushenin claimed to currently be employed by Bizana Investment Ltd. and to earn $50,000 (US) per annum plus commissions pursuant to his contract with Bizana, but this was contrary to article 6.2 of his written contract with the company.
[4] On Mr. Ushenin's behalf, it is asserted that the visa officer erred in finding Mr. Ushenin's explanation as to how his funds were accumulated to be incredible. Each of the four grounds the visa officer relied upon in rejecting his claim is said to be unreasonable or made in breach of the duty of fairness.
STANDARD OF REVIEW
[5] With respect to the applicable standard of review, an application to be admitted to Canada as an immigrant gives rise to a discretionary decision on the part of a visa officer, which is required to be exercised on the basis of specific statutory criteria. Where that statutory discretion has been exercised in good faith and in accordance with the principles of natural justice, and where reliance has not been placed upon irrelevant or extraneous considerations, a reviewing court is not to interfere. See Maple Lodge Farms Limited v. Government of Canada, [1982] 2 S.C.R. 2 at pages 7-8; To v. Canada (Minister of Employment and Immigration), [1996] F.C.J. No. 696 (FCA) at para. 3; Jang v. Canada (Minister of Citizenship and Immigration), 2001 FCA 312 at para. 12.
SCOPE OF THE DUTY OF FAIRNESS
[6] In Ali v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 468, Mr. Justice Teitelbaum considered the scope of the duty of fairness owed by a visa officer to make an applicant aware of the officer's concerns, and to provide an opportunity to respond to those concerns. At paragraph 17 of his reasons, Mr. Justice Teitelbaum quoted with approval the comments of Mr. Justice MacKay in Yu v. Canada (Minister of Employment and Immigration) (1990), 11 Imm. L.R. (2d) 176 (F.C.T.D.) at page 187 as follows:
In my view, there is no ground for arguing unfairness in the process merely because the visa officer at the interview of the applicant does not stress all of the concerns he may have that arise directly from the Act and Regulations that he is bound to follow in his assessment of the application. The Act and Regulations pertinent to admission are available to applicants whose task is to establish to the satisfaction of the visa officer that they meet the criteria set out, and that their admissions to Canada would not be contrary to the Act.
Justice Teitelbaum went on to write at paragraphs 19 and 20 of his decision:
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.
[7] More recently, Mr. Justice Rouleau characterized the duty to alert an applicant to an officer's concerns to arise when the applicant "cannot reasonably be aware of what is worrying the officer or when the [officer] obtains extrinsic evidence". See: Oei v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 600 at paragraph 35.
[8] I agree that this jurisprudence properly reflects the duty owed by a visa officer in this circumstance.
ANALYSIS
[9] Turning to the application of these principles to the present case, I am satisfied that the visa officer breached the duty of fairness owed to Mr. Ushenin in coming to her conclusion that the contracts Mr. Ushenin provided from Aldeco did not support his claim to commission income, and in coming to her conclusion that Mr. Ushenin's contract with Bizana Investment Ltd. did not support his claim of income from that source.
THE PERCEIVED INCONSISTENCY IN THE ALDECO CONTRACTS
[10] The visa officer determined that Mr. Ushenin's claim to have been retained as a consultant to Aldeco was not credible on the basis that five of the seven contracts he indicated he was engaged to close appeared to predate his departure from his prior employer.
[11] Prior to the interview Mr. Ushenin raised, by way of a letter from his counsel to the embassy, the issue of the dates shown on the contracts. Counsel advised that the seven transactions were "exhibited" by the contracts that had been provided, noted that some of the documents predated Mr. Ushenin's employment with Aldeco and explained that the deals were only closed by means of Mr. Ushenin's intervention with the contracting parties after his retainer by Aldeco. Mr. Ushenin submits that having presented the documents to the visa officer, having raised the issue before the interview, and having provided this explanation through his counsel, in the absence of questions from the visa officer during the interview it was reasonable for him to conclude that he need not provide any further explanation to the officer.
[12] The bulk of the visa officer's concerns, as I am able to understand them, arose from the dates on the contract documents, including the delivery dates. Significantly, the documents which gave rise to the officer's concerns, while signed by Aldeco as seller, were not signed by the buyer. Mr. Ushenin says, in fact, that each document is more akin to an offer, which is why his counsel advised that the contracts were only closed as a result of Mr. Ushenin's subsequent efforts.
[13] I accept the submission advanced by Mr. Ushenin that in light of the fact that the documents were unsigned by the proposed buyer and therefore not conclusive on the point, and the fact that the officer did not ask any questions at the interview with respect to the documents or his counsel's explanation, Mr. Ushenin could not know that the officer had remaining concerns about his involvement in closing the deals. In my view, fairness required the officer to advise Mr. Ushenin of the basis for her concern arising from her interpretation of the documents so as to give him the opportunity to explain his involvement and the significance of the absence of the buyers' signatures on the documents. In depriving him of that opportunity, the duty of fairness was breached. Given the inchoate nature of the documents, Mr. Ushenin was entitled to address the visa officer's concern that arose from the dates on the documents, as well as the concern that was created due to his comment at the interview that he never knew the source of metal that he was obliged to sell was sourced.
THE BIZANA CONTRACT
[14] Mr. Ushenin submits that he was not aware that the visa officer thought his information with respect to remuneration from Bizana was inconsistent with the contractual document he produced. From a review of the file, particularly the CAIPS notes, it appears that the visa officer only arrived at this conclusion of inconsistency after the interview, when studying the contractual document and interpreting one clause in the contract. The apparent contradiction was, therefore, never put to Mr. Ushenin.
[15] On the Minister's behalf it is argued that there was no duty to confront Mr. Ushenin with the officer's concern because the inconsistency arose from evidence which he himself had provided. However, more accurately, the inconsistency arose from the officer's interpretation of a legal document.
[16] In my view, even if the visa officer properly construed the document it may well be that if advised of the officer's concern, information was available to explain the apparent inconsistency. For example, it may be that some of the monies which Mr. Ushenin received were for services performed outside the scope of the contract, or there may be a mutual belief between the contracting parties that the contractual provision at issue applies only to payments from outside parties as Mr. Ushenin says.
[17] To paraphrase the words of Mr. Justice Rouleau in Oei, supra, the concern that the visa officer had after the interview as a result of her review of the written contract was not so obvious that Mr. Ushenin ought reasonably to have been "aware of what was worrying the officer". In my view, the duty of fairness required the officer to alert Mr. Ushenin of her concerns. This may have been done by correspondence, and so would not necessarily have required reconvening another interview.
CONCLUSION
[18] The effect of the officer's failure to comply with the duty of fairness is that it is necessary to set aside the decision of the officer, and to remit the matter for redetermination before a different officer.
[19] In view of the fact that the parties agree that it may not be possible for this matter to be reviewed prior to March 31, 2003, Mr. Ushenin asks that he have the right to address additional submissions to the new reviewing officer. I agree that it is reasonable to permit him to make written submissions to the new reviewing officer as to how his application is affected by the new regulatory scheme.
[20] Counsel posed no question for certification and no question arises on this record.
ORDER
[21] IT IS HEREBY ORDERED THAT:
1. The application for judicial review is allowed and the decision of the visa officer dated March 6, 2002, is hereby set aside. The matter is remitted for redetermination before a different officer.
2. Mr. Ushenin may, if he wishes, make submissions in writing to the new reviewing officer as to the impact of the new regulatory scheme upon his application.
(Sgd.) "Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-1591-02
STYLE OF CAUSE: Yuri Ushenin v. M.C.I.
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: March 11, 2003
REASONS FOR ORDER AND ORDER
OF THE HONOURABLE MADAM JUSTICE DAWSON
DATED: March 17, 2003
APPEARANCES:
Mr. James C. Gill FOR THE APPLICANT
Ms. Helen Park FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Green & Spiegel Law Corporation FOR THE APPLICANT
Vancouver, B.C.
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada