Date: 20031216
Docket: IMM-5541-01
Citation: 2003 FC 1474
Toronto, Ontario December 16th, 2003
Present: The Honourable Madam Justice Heneghan
BETWEEN:
ZHENG YU XU
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Zheng Yu Xu (the "Applicant") seeks judicial review of the decision of Visa Officer Ayesha Rekhi (the "Visa Officer"). In her decision dated November 7, 2001, the Visa Officer refused the Applicant's application for permanent residence in Canada.
[2] The Applicant, a citizen of the People's Republic of China, submitted his application for permanent residence in Canada to the Canadian Consulate General in Hong Kong on or about March 31, 1999. He applied in the category of investor and declared his net worth as CDN $826,675.00, including CDN $257,474.00 in bank deposits. He also declared that he had been employed as a Vice President of Chitai Qingchunbao Pharmaceutical Co. Ltd. The Applicant also made the requisite investment in the Prince Edward Island Government Economic Development (IV) Fund Inc.
[3] The Applicant's authorized representative received a letter dated May 29, 1999, requesting additional documentation. Two items were marked with an "X": 1) fully completed Application for Permanent Residence forms and 2) original police Certificates of Good Conduct. The Applicant understood that the markings meant that he was only required to submit those specific items, although the typewritten list forwarded by the Consulate General included other items. The Computer Assisted Immigration Processing System ("CAIPS") notes showed receipt of the two identified documents by the Consulate.
[4] On September 30, 1999, an "interview advance letter" was sent to the Applicant, advising that an interview would be required and that his file had been placed in the interview queue.
[5] On September 10, 2001, an "interview call in letter" was sent to the Applicant, informing him that his interview had been scheduled for November 6, 2001. Due to incorrect address information, this package was returned to the Consulate. On October 11, 2001, the Applicant's authorized agent was informed by the Canadian Consulate that the Applicant's interview was scheduled for November 6, 2001. This communication from the Consulate was in the form of a handwritten note on the reply section of a "Case Enquiry" that had been sent to the Consulate by the authorized agent on August 21, 2001, inquiring about the status of the Applicant's file and also advising of a change of address for the authorized agent.
[6] The "interview call in letter" was sent to the Applicant's authorized agent on October 23, 2001. That letter stated that on the day of the interview, the Applicant should submit "any documents that were requested in a previous letter AND/OR any documents marked on the attached list(s) for our review prior to interview".
[7] On November 6, 2001, the Applicant attended the interview, together with his wife and son. Upon arrival, he was provided with a list of documents that were to be available for the interviewing officer to review. The interview was conducted with the assistance of an interpreter when the Applicant confirmed that he understood the interpreter.
[8] In a letter dated November 7, 2001, the Visa Officer refused the Applicant's application on the grounds that he did not meet the requirements for immigration to Canada in the Investor Category. She concluded that the Applicant had failed to demonstrate that he had successfully controlled, operated or directed a business, and that he had earned the requisite net worth by his own endeavours. As well, the Visa Officer found that the Applicant had failed to demonstrate the source of a considerable part of his net worth.
[9] The dispositive issue in this application for judicial review is whether the Visa Officer breached the duty of procedural fairness showed to the Applicant by failing to provide him with the opportunity to respond to her concerns about his eligibility, in particular her concerns about the sufficiency of the documents that he provided. The Applicant argues that the Visa Officer committed such a breach of procedural fairness. The Respondent, on the other hand, submits that the Visa Officer complied with the requisite duty of procedural fairness and the Applicant bore sole responsibility to remedy any deficiencies in his supporting material.
[10] It is well established that the decision of a visa officer in the exercise of a statutory discretion will remain undisturbed on judicial review unless the decision was made without regard to relevant evidence, reliance upon irrelevant and extraneous considerations, or involved the breach of procedural fairness. In this regard, I refer to To v. Canada (Minister of Employment and Immigration) (May 22, 1996, A-172-93, F.CA.) where the Court applied the following test from Maple Lodge Farms Limited v. Canada, [1982] 2 S.C.R. 2 at pages 7-8:
...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. ...
[11] The law is equally well established that a prospective immigrant bears the burden of showing that his or her admission into Canada complies with the applicable statutory scheme. The prevailing legislation when the Applicant submitted his application was the Immigration Act, R.S.C. 1985, c. I-2, as amended. Section 8 of that statute, now repealed, provided as follows:
| 8. (1) Where a person seeks to come into Canada, the burden of proving that that person has a right to come into Canada or that his admission would not be contrary to this Act or the regulations rests on that person. (2) Every person seeking to come into Canada shall be presumed to be an immigrant until that person satisfies the immigration officer examining him or the adjudicator presiding at his inquiry that he is not an immigrant. |
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8. (1) Il incombe à quiconque cherche à entrer au Canada de prouver qu'il en a le droit ou que le fait d'y être admis ne contreviendrait pas à la présente loi ni à ses règlements. (2) Quiconque cherche à entrer au Canada est présumé être immigrant tant qu'il n'a pas convaincu du contraire l'agent d'immigration qui l'interroge ou l'arbitre qui mène l'enquête.
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[12] In Madan v. Canada (Minister of Citizenship and Immigration) (1999), 172 F.T.R. 262, Evans J. (as he then was) made the following statements in relation to a person seeking admission into Canada as a member of the independent immigrant category, but the principle is equally applicable here:
It is well established that it is the responsibility of a visa applicant to put before the officer all the material necessary for a favourable decision to be made. Hence, visa officers are under no general legal duty to ask for clarification or for additional information before rejecting a visa application on the ground that the material submitted was insufficient to satisfy the officer that the applicant had met the relevant selection criteria.
[13] The problem in the present case is that deficiencies, ambiguities and errors in the certified tribunal record raise questions about the sufficiency of the information provided to the Applicant by the Respondent's agents and employees in the Canadian Consulate General in Hong Kong, sufficient to cast doubt on the degree of procedural fairness afforded to the Applicant. As an illustration, I refer to the absence from the tribunal record of the interview package, allegedly sent to the Applicant on or about September 10, 2001. The letter inviting the Applicant for an interview on November 6, 2001 referred to a list of documents to be produced. That letter refers to the supplementary documents in the following terms:
In addition, you must submit to us at - 11 a.m. - on the day of your interview any documents that were requested in a previous letter AND/OR any documents marked on the attached list(s) for our review prior to interview. [Emphasis added]
[14] However, no documents were "marked" on the attached list in which original documents were requested for production. The Applicant did not bring original documents to the interview, and when he offered to obtain originals, with the exception of his pay stubs and the original of an internal company memo listing the directors of the company, the Visa Officer refused to provide that opportunity. According to the transcript of the cross-examination of the Visa Officer upon her affidavit filed in this proceeding, she doubted the veracity of such further documentation that may be produced by the Applicant and said:
A. When the applicant stated during the interview - - toward the end of the interview I should stipulate, that he could get me anything that I wanted what [sic] regard to documentation, I advised him that that seems problematic to me, given that as the interview had progressed, when asked, for example, if he had further substantiating documentation with regard to income, for example, what he had given me was all he had or could get.
I advised the applicant that, given those statements, to now state that he could get me anything and given that in the context of our experience, our office's experience with China and the ease with which it is to manufacture or produce documentation, I decided to say no to the request to provide more.
[15] Finally, I note that the CAIPS notes maintained by the Visa Officer record the date of the interview as November 7, 2001, but the interview was conducted on November 6, 2001. As with the other factors noted above, this mis-recording of the interview date, by itself, is a small matter. However, this error, when considered in conjunction with the defects noted above, raises questions about the fairness with which this Applicant was treated. Having regard to the cumulative effect of these problems, I conclude that the application for judicial review should be allowed and the matter remitted to another visa officer for redetermination in accordance with the law. There is no question for certification arising.
ORDER
The application for judicial review is allowed and the matter remitted to another visa officer for redetermination in accordance with the law. There is no question for certification arising.
"E. Heneghan"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5541-01
STYLE OF CAUSE: ZHENG YU XU
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: DECEMBER 15, 2003
REASONS FOR ORDER
AND ORDER: HENEGHAN J.
DATED: DECEMBER 16, 2003
APPEARANCES:
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FOR THE APPLICANT
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FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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Barrister & Solicitor Don Mills, Ontario |
FOR THE APPLICANT |
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Deputy Attorney General of Canada Toronto, Ontario |
FOR THE RESPONDENT |
FEDERAL COURT
TRIAL DIVISION
Date: 20031216
Docket: IMM-5541-01
BETWEEN:
ZHENG YU XU
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER