Date: 20000531
Docket: IMM-2403-99
BETWEEN:
KUN-CHENG TSENG
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
O"KEEFE J.
[1] This is an application for judicial review by Kun-Cheng Tseng ("applicant") of the decision of visa officer Amy Ma dated April 8, 1999, wherein she denied the applicant"s application for permanent residence in Canada.
[2] The applicant, a resident of Taiwan, applied for an immigrant visa on June 24, 1996 as a member of the investor class. The applicant listed his wife and two children as accompanying dependents.
[3] The applicant indicated in his application that he had experience directing and controlling three companies.
[4] In order to assess his business expertise and experience, the visa officer interviewed the applicant at the Canadian Consulate in Los Angeles on March 10, 1997. At that time, she tentatively approved the application, pending the receipt of Taiwan Government documentation which was requested as verification of the applicant"s business experience. These documents were requested as the visa officer determined there was a discrepancy in the documents already provided to her. The applicant was asked by letter dated June 7, 1997 to provide registration cards [Taiwan Government Share Purchase Record] showing current shareholdings for the companies listed in the application, as well as registration cards showing his initial share purchase and any significant changes in his shareholdings. The applicant was to apply to the Taiwanese Government Office, which issued his company license and request that it provide this information to the Canadian Trade Office in Taiwan. The Canadian Trade Office would compare the information on the registration cards with the information in the applicant"s application and forward the results to the visa officer. The applicant was given 45 days to obtain the information.
[5] The applicant requested the information from the Government of China in June, 1997. As well, his agent wrote to the visa officer on January 14, 1998 to determine whether the visa officer had received the information. The visa officer replied that she had not received the requested information.
[6] On August 17, 1998, the visa officer wrote to the applicant and again requested the information. The visa officer gave the applicant 45 days to submit the information. Another letter was sent to the applicant by the visa officer on January 6, 1999 with the same request, requiring the information be submitted within 30 days.
[7] On February 2, 1999, the applicant"s agent wrote to the visa officer enclosing a document sent to the applicant by the Taiwan Government, which showed that the registration for Wei Chen Co. Ltd. had been dismissed. The letter also stated that the applicant would still apply for the registration card for this company and that Mr. Tseng had reapplied for the registration card for Koun Foun Industry Co. Ltd. The letter also requested a further extension of 30 days and informed the visa officer that the applicant was doing everything he could do to comply with her request.
[8] On April 8, 1999, the visa officer refused to grant the applicant permanent residence.
Issue
[9] Did the visa officer make a reviewable error in the process of refusing to grant permanent residence status to the applicant?
Law
[10] The visa officer is given the authority to assess and determine the admissibility of the applicant to Canada under subsection 9(2) of the Immigration Act, 1976-77, c. 52 ("Act"):
| 9(2) Assessment by visa officer - An application for an immigrant's visa shall be assessed by a visa officer for the purpose of determining whether the person making the application and every dependant of that person appear to be persons who may be granted landing. |
9(2) Examen par l'agent des visas - Le cas du demandeur de visa d'immigrant est apprécié par l'agent des visas qui détermine si le demandeur et chacune des personnes à sa charge semblent répondre aux critères de l'établissement. |
| [11] The investor class is a prescribed class of immigrants to Canada as set out by |
section 6.11 of the Immigration Regulations, 1978 ("Regulations"):
| 6.11 The investor class is hereby prescribed as a class of persons who may be granted landing on the basis of their business experience, accumulated net worth and intention to make investments in Canada that meet the standards set out in these Regulations. |
6.11 La catégorie des investisseurs est une catégorie réglementaire de personnes qui peuvent se voir octroyer le droit d'établissement sur le fondement de l'expérience de l'exploitation d'une entreprise, de la possession d'un avoir net accumulé et de l'intention d'investir au Canada conformément aux normes énoncées dans le présent règlement. |
| [12] The definition of "investor" is set out in section 2 of the Regulations: |
| "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 $800,000; |
"_investisseur_" Immigrant qui répond aux critères suivants : a) il a exploité, contrôlé ou dirigé avec succès une entreprise; b) il a indiqué par écrit au ministre qu'il a fait ou a l'intention de faire un placement; c) il possède un avoir net d'au moins 800 000_$, accumulé par ses propres efforts. |
| [13] Subsection 9(3) of the Act states as follows: |
| 9(3) Duty to answer questions - 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. |
9(3) Obligations - 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. |
| [14] And paragraph 19(2)(d) states as follows: |
| 19(2) Inadmissible classes where entry permitted (2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes: (d) persons who cannot or do not fulfil or comply with any of the conditions or requirements of this Act or the regulations or any orders or directions lawfully made or given under this Act or the regulations. |
| 19(2) Autorisation de séjour à des personnes non admissibles (2) Appartiennent à une catégorie non admissible les immigrants et, sous réserve du paragraphe (3), les visiteurs qui_: d) soit ne se conforment pas aux conditions prévues à la présente loi et à ses règlements ou aux mesures ou instructions qui en procèdent, soit ne peuvent le faire. |
| Analysis and Decision |
| [15] The applicant submits that the visa officer erred in law by requiring the |
| submission of the documents and fettered her discretion by requiring the provision of this extraneous material in order to grant an immigrant visa. The applicant submits as well, that the conclusion that the applicant had not complied with the request for documents was perverse. The applicant finally submits that the request for the documents was not lawfully made or given under the Act in that the visa officer did not require the requested information in order to satisfy herself as to the applicant"s admissibility to Canada. |
| [16] For its part, the respondent submits that the applicant admitted that he has not |
complied with the requirement that documents be submitted and it further submits that the request for the documents was lawfully made in that it was relevant to the determination of whether the applicant was admissible to Canada. Further, to assess his admissibility, the officer had to determine if he had successfully operated, controlled or directed a business.
[17] The only matter in issue before the visa officer with respect to the applicant was
whether or not he met the requirements of paragraph 2(1)(a) of the Regulations. All other requirements of this section have been satisfied.
[18] The applicant was requested by the visa officer to supply information concerning
three companies with which he was involved, in order to assess his business experience for the purpose of paragraph 2(1)(a) of the Regulations.
[19_] A rather circuitous route was prescribed for the delivery of the required
information. The applicant was to request the Taiwanese Government to send the requested information to the Canadian Government Trade Office in Taipei where the information would be compared to the information provided by the applicant in his application. The results of the comparison would then be sent by the Canadian Government Trade Office to the visa officer. It is apparent that the applicant has little control over the process and no knowledge as to when the process is completed.
[20] In any event, some documentation was received, but the documentation with
respect to the company, Wei Chen Co. Ltd. was not received. From the correspondence, it is very obvious that the applicant was having difficulty in getting the Taiwanese Government to send the documentation.
[21] The failure of an applicant to comply with directions of the visa officer does not
automatically render an applicant inadmissible, but rather, such a determination is dependant upon the circumstances of the particular case (see Kang v. Canada (M.E.I.) [1981] 2 F.C. 809 (F.C.A.)).
[22] A review of the visa officer"s decision contained in her April 8, 1999 letter to the applicant reveals that the applicant was rejected on the basis of non-compliance with her instructions to provide documentation respecting share purchases.
[23] From a review of the record, it appears that information was received concerning Koun Foun Industry Co. Ltd. I might add that all that is required by paragraph 2(1)(a) of the Regulations is evidence that an applicant has "successfully operated, controlled or directed a business (emphasis added).
[24] It is my opinion that the visa officer, in light of the additional documentation that was provided to her, should have determined the applicant"s admissibility on the basis of the material before her and determine whether the evidence was sufficient to establish that the applicant had "successfully operated, controlled or directed a business". It is clear on the face of the record, that she did not do this. The application was dismissed for the reason that the requested documentation was not provided. The visa officer misdirected herself as to applicable law and thus, made an error in law on the face of the record. When she made her decision, she was not applying the right test and thus, was not correct.
[25] For the reasons stated above, I would allow the application for judicial review and direct that the application be heard before a different visa officer. Counsel for the parties will be provided with an opportunity to make a request for certification of a serious question of general importance. Counsel for the respondent shall file written representations, if any, on or before June 5, 2000, concerning the certification of a serious question of general importance. Counsel for the applicant shall file a written response, if any, on or before June 12, 2000.
"John A. O"Keefe"
J.F.C.C.
Ottawa, Ontario
May 31, 2000