Date: 20031001
Docket: IMM-2622-02
Citation: 2003 FC 1134
BETWEEN:
HE CHUN LEI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.
[1] This is an application for judicial review of a decision by a visa officer dated May 7, 2002 refusing the application for permanent residence of He Chun Lei (the applicant).
[2] On May 26, 2000, the applicant received his Certificat de sélection du Québec, indicating that he had been selected as an investor immigrant.
[3] On January 22, 2002, the applicant was summoned to an interview since the documentation he had submitted was not sufficient to establish with certainty that the declared funds had been lawfully obtained.
[4] On March 18, 2002, the applicant reported for his interview with the officer at the Canadian Embassy in Beijing.
[5] During the interview, the applicant explained that in 1990 he started up an initial company on his own in which he had to invest 50,000 RMB. The visa officer also asked him how he was able to invest US$255,000.00 to start up his business in 1993. The officer considered these amounts to be very high given the salary of the applicant in the previous years: in 1990, he was earning at most 100 RMB per month, with the possibility of an average bonus of 300 to 500 RMB.
[6] The applicant stated that he had accumulated these sums by using his savings, some loans from friends and the money he was making with his photography. At the end of the interview, the officer asked him to provide any additional evidence to support his statements within 30 days following the interview and advised him that his application might be refused if he did not file any additional information.
[7] On May 7, 2002, the officer delivered a negative decision on the application for permanent residence on the ground that the applicant had not convinced him that the money he had accumulated was derived from legitimate sources, and thus that he had failed to demonstrate that he did not fall within any of the inadmissible classes described in subsection 19(1) of the Immigration Act, R.S.C., 1985, c. I-2 (the Act).
[8] The Federal Court of Appeal, in To v. Canada (M.E.I.), [1996] F.C.J. No. 696, confirmed that the standard of review applicable to decisions of visa officers was the one laid down in Maple Lodge Farms Limited v. Government of Canada et al., [1982] 2 S.C.R. 2 at pp. 7-8. McIntyre J. held that:
Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.
[9] The applicant essentially submits that the officer erred in finding that the applicant was unable to justify through documentation the origin of his funds.
[10] Subsection 9(3) of the Act clearly states that the officer is entitled to demand such documentation as may be required to establish that the applicant's admission to Canada would not be contrary to the Act or the regulations. The officer's concern was not with the origin of the assets accumulated in recent years but rather with the way in which the applicant had accumulated enough money to start up his initial businesses, which are the source of his current assets. The officer had to satisfy himself that the money that was acquired did not originate from unlawful activities covered by section 19 of the Act such as fraud or money laundering.
[11] When questioned at the interview, the applicant answered that he had used his savings, a loan from a friend and some revenues from photos he had taken for others. However, he provided no documentary evidence in support.
[12] It was reasonable for the officer, being dissatisfied with the explanations offered, to require some additional evidence within a reasonable time. He cannot be criticized for any breach of natural justice since the applicant knew that the officer had some concerns about the accumulation of his funds prior to 1993 and that a refusal to supply the necessary documentation might entail a refusal of his application.
[13] Since the applicant did not supply this documentation, it was reasonable for the visa officer to conclude that the applicant had failed to demonstrate satisfactorily the lawfulness of the origin of the funds in relation to the start-up of these initial companies.
[14] For all these reasons, the application for judicial review is dismissed.
[15] Counsel for the applicant asked that the following question be certified:
Does a visa officer have a duty to know the legal and cultural context in which he must issue a decision? If not, do the presumptions raised by the officer against the applicant amount to the unreasonable exercise of his jurisdiction?
[16] Counsel has not persuaded me that the proposed question is decisive to the outcome of this case. No question will be certified, therefore.
"Daniele Tremblay-Lamer"
Judge
Certified true translation
Suzanne Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
SOLICITORS OF RECORD
DOCKET: IMM-2622-02
STYLE: HE CHUN LEI and THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: September 25, 2003
REASONS FOR ORDER
AND ORDER OF: The Honourable Madam Justice Danièle Tremblay-Lamer
DATED: October 1, 2003
APPEARANCES:
Sylvie Tardif for the applicant
Edith Savard for the respondent
SOLICITORS OF RECORD:
Sylvie Tardif for the applicant
1310 Greene Avenue
Suite 750
Westmount, Quebec
H3Z 2B2
Morris Rosenberg for the respondent
Deputy Attorney General of Canada
Department of Justice
Quebec Regional Office
Guy-Favreau Complex
200 René-Lévesque Blvd. W.,
East Tower, 5th Floor
Montréal, Quebec
H2Z 1X4