Date: 19990120
Docket: IMM-1377-98
BETWEEN:
JIANMIN HE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM J.
[1] This is an application for judicial review pursuant to s. 18.1 of the Federal Court Act, of the decision of a visa officer dated April 22, 1998 dismissing the applicant's application for permanent residence in Canada. The applicant seeks an order of certiorari quashing the decision of the visa officer and an order of mandamus directing the respondent Minister to process the applicant's application for permanent residence in the investor category under the Immigration Act and Regulations which were in force at the time the application for permanent residence was submitted, as well as an order declaring the visa officer's decision was erroneous.
FACTS
[2] The applicant filed an application for permanent residence in Canada on or about January 6, 1997 under the Investor category. By letter dated December 3, 1997, the applicant was asked to bring to the interview a list of documents, including the three most recent years of audited financial statements and corresponding profit tax assessments. On February 24, 1998, the applicant brought to the interview 34 monthly financial statements of his company Golden State Industrial Co. Ltd., corresponding monthly tax receipts from municipal government authorities for tax paid based on those financial statements, and an audit report prepared by Sui Dong, Certified Public Accountants. The interview was conducted in the applicant's language, Cantonese, since he does not speak English. On February 25, 1998, the visa officer dismissed the applicant's application for permanent residence.
Decision
[3] The visa officer determined that the applicant did not meet the definition of investor under the Immigration Regulations for the following reasons:
| During your personal interview on 24 February, 1998 at the Consulate, we have discussed your business, Golden State Industrial Co. Ltd. established in the PRC in July 1993. You stated that you had invested RMB400,000 as start up capital and you became major shareholder of this company. You further stated that in June 1997 there was a change of shares and you became 33.33% shareholder in this business. At interview you had provided insufficient business or financial documents for Golden State Industrial Co. Ltd. You further claimed that you had been running another business, Guangzhou Da Feng Trading Co. between 1989 to 1993 and you had made good profits in this business. However, you have failed to provide any evidence to substantiate your claim. |
| Furthermore, you have failed to provide satisfactory evidence that your net worth is the result of your own endeavours. You stated that your high start up capital in Golden State Industrial Co. Ltd. and the property investments in 1994 and 1995 acquired from your previous business profits between 1989 to 1993. Based on the above factors, in the absence of any verifiable documentary proof of your business involvement and the business performance from your present or previous businesses, you have failed to satisfy me that you have successfully controlled, operated or directed a business and that your claimed personal net worth is accumulated through your own endeavours or through your own business efforts, as required by the definition of investor. (underlining mine) |
PARTIES' POSITION
[4] The applicant submits that the visa officer committed the following reviewable errors. Firstly, the visa officer denied the applicant procedural fairness by failing to advise him that business documents relating to his previous company, Guangzhou Da Feng Trading Co., would be required at the interview, and failed to give the applicant the opportunity to provide crucial evidence demonstrating that his net worth is the result of his own endeavours. Secondly, the visa officer erred in concluding that the applicant had failed to show the profitability of the business and that his net worth had been accumulated through his own endeavours or business efforts on the basis that the audit report prepared by Sui Dong, Certified Public Accountants, which included a business valuation, could not be accepted because the assessments did not constitute "reliable and verifiable documents to confirm this amount". There is no such requirement that financial statements be verified by an international accounting firm.
[5] The visa officer also erred in failing to give the applicant the opportunity to obtain a business performance assessment confirming his claims regarding the successful operation as the officer stated she had done with other applicants in the past to confirm claims made regarding the successful operation of a business.
[6] In response to the applicant's submissions the respondent Minister submits that the visa officer did not err in its conclusion. The visa officer did not fail to inform or to provide the applicant an opportunity to submit business documents with respect to his previous company. When asked the source of his start up capital in Golden State Industrial Co. Ltd. in 1993, the applicant explained that the funds were acquired in part through his business profits in his previous company Da Feng between 1989 and 1993, and that he was unable to provide evidence concerning this business because it had ceased operating in 1993 and that he had not kept any document. The officer concluded that the applicant was unable to demonstrate that his claimed net worth had been accumulated by his own endeavours. Also, when asked to provide evidence that he operated Da Feng on a profitable basis, the applicant answered negatively. Had he answered in the affirmative, the respondent would have given him more time to produce such evidence.
[7] The applicant was also asked at the interview whether he wanted to submit any additional information, including any evidence from his previous company Da Feng. In light of the applicant having no other information to substantiate the fact that his claimed net worth had been accumulated by his own endeavours, the officer determined that there was no purpose in asking the applicant to submit a business performance assessment of his current company from a verifiable source because he was unable to demonstrate that his net worth was accumulated by his own endeavour.
[8] With respect to the reliability of self-generated documents, it is argued that the applicant was informed by virtue of the "Additional Business Checklist" in the application kit given to the applicant that the applicant was recommended to obtain an independent and objective assessment of the business performance of his business by an international accounting firm, and listed six of them. Further, it is argued that the assessment of documentary evidence is a question of fact for the determination of the officer. The visa officer evaluated and considered all material submitted by the applicant, advised him of his concerns regarding the reliability of the material and concluded that there was no purpose in requesting a business assessment for Golden State Industrial Co. Ltd.
ISSUES
[9] The applicant raises the following issues:
| 1) is self-generation a ground to reject financial documents, as all financial documents are self-generated? |
| 2) Where the applicant is only a minority shareholder in his own business, for immigration purposes, should there be some evidentiary value to documents signed and approved by all shareholders, only one or whom is seeking immigration? |
| 3) If documents are admissible as a business record under the Canada Evidence Act, should some weight be given to them by a visa officer, especially where there is no evidence suggesting that the statements are false? |
| 4) Are the statements made by the officer as the unaccountability of the evidence of Certified Public Accountants in China or the lack of international standards perverse? |
ANALYSIS
[10] In this application for permanent residence, the applicant had to show to the satisfaction of the visa officer that he qualified as an investor under the Immigration Act and Regulations. The definition of investor in s. 2(1) of the Immigration Regulations provides:
| "Investor means an immigrant |
| (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) ... of at least $500.000... |
[11] The visa officer concluded that the applicant had not established that he had successfully operated, controlled or directed a business, and that his accumulated net worth of at least $500,000 had been accumulated by his own endeavours.
[12] The applicant's arguments relate to the visa officer's determination not to accept the financial statements submitted by the applicant because they are unreliable and unverified. In short, this argument related to the weight and probity of internally produced financial documents which were not verified by an international firm of accountants.
[13] Firstly, the applicant argues that the visa officer erred in refusing to accept the documents because they were self-generated financial statements. It is submitted that internally driven rules and regulations of what is and what is not acceptable proof are no more than directions which do not have the effect and force of law. It is also submitted that where documents are admissible as business records under the Canada Evidence Act, such documents should be given some weight by the visa officer, especially where there is no evidence to suggest that the documents are false. The applicant further submits that it does not lie in the jurisdiction of the visa officer to submit that the local tax authority was fraudulent or without jurisdiction in the absence of specific evidence; the maxim omnia praesumuntur rite acte esse applies: where acts are of an official nature or require the concurrence of official persons a presumption arises in favour of their due execution: (Kane v. Governors of the University of British Columbia, [1980] 1 S.C.R. 1105.) Also, the applicant argues that the visa officer's decision to deny admission of evidence for the reason that it was produced by a local Certified Public Accountant in China or that it did not conform to international standards is perverse.
[14] In my view, the issue is not whether the documentary evidence is or is not admissible but what weight should be given to such documents. Proceedings before an administrative tribunal should be distinguished from legal proceedings to which the Canada Evidence Act applies. As submitted by the respondent Minister, the Canada Evidence Act strictly applies to legal proceedings, not administrative tribunals. The assessment of documentary evidence, including its weight and probity, falls within the realm of the visa officer's authority. Where the visa officer's determination of fact is based on all the materials before him and is not perversely made, there is no reason for this court to intervene. Further, while it is true that directions are not laws and do not have the same effect of law, directions should be followed when they do not conflict with binding legislation. I am satisfied that the visa officer's determination not to give "any weight" to the documents (financial statements and the receipts) to be an error of law. Unless the visa officer had some evidence that the said documents were fraudulent or false, and no such evidence exists, then it was for her to give the documents some weight in her consideration. I am satisfied that the visa officer rejected these documents out of hand and for the sole reason that the documents were not certified or audited by one of the six accounting firms recommended by the visa officer where the application for permanent residence was made.
[15] The applicant also submits that the definition of investor found in paragraph 2(1)(c) of the Immigration Regulations does not require that the "very first dollar used to create the Applicant's current net worth has to be from his own endeavours".
[16] It is argued that Golden States Industrial was created with the start up capital of RMB400,000 and as of June 12, 1997, his shares of the total owner's equity was RMB4,767,515.79 as audited by Sui Dong Certified Public Accountants. The difference between the start up capital and his equity is from his own endeavours and which sum is equivalent to more than 500,000 Canadian dollars.
[17] In my view, this interpretation conflicts with the plain reading of the section, and this argument is without merit. Further, the applicant's contention that the visa officer erred in failing to give him the opportunity to produce evidence relating to his previous business Da Feng is also without merit. The evidence introduced by way of affidavit shows that the applicant was given the opportunity to introduce evidence relating to his previous business and claimed throughout the interview that such documents did not exist.
[18] The applicant also submitted that the officer failed to give him the opportunity to obtain a business performance assessment. The respondent Minister suggested that given that the applicant stated and reiterated in the interview that such documents establishing that his claimed net worth had been accumulated through his own endeavours were no longer available, there was no purpose in asking the applicant to obtain a business performance assessment. The applicant was also informed of the visa officer's concerns with respect to the probative value of the financial statements.
CONCLUSION
[19] The applicant was informed by letter and by virtue of the application kit of the information required for the interview, and was informed of the visa officer's concerns regarding the evidence at the interview. Also, the applicant was given the opportunity to submit statements relating to his previous company Da Feng. However, the applicant was unable to show to the satisfaction of the visa officer that he met the definition of investor under the Regulations. More specifically, the applicant did not show evidence to support his claim that his accumulated net worth was amassed through his own endeavours.
[20] Nevertheless, I am satisfied that the reasons given by the visa officer not to give any weight to the 34 monthly financial statements and the tax receipts, because they were not certified by an accounting firm acceptable by the visa officer is a serious error by the visa officer.
[21] Unless the visa officer had some evidence that the audit by the Chinese accounting firm used by the applicant should not be accepted, then, I am satisfied, the audit should be accepted and some weight, as the visa officer deems appropriate in using her discretion reasonably, should be given to those documents.
[22] Because of this error, I allow the judicial review application and return this matter to a differently designated visa officer for a new assessment of the applicant's application for permanent residence in Canada.
"Max M. Teitelbaum"
Judge
TORONTO, ONTARIO
January 20, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1377-98
| STYLE OF CAUSE: JIANMIN HE |
and -
| THE MINISTER OF CITIZENSHIP AND |
IMMIGRATION
DATE OF HEARING: TUESDAY, JANUARY 19, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: TEITELBAUM, J.
DATED: WEDNESDAY, JANUARY 20, 1999
APPEARANCES: Mr. Cecil L. Rotenberg, Q.C.
For the Applicant
Mr. Stephen H. Gold
For the Respondent
SOLICITORS OF RECORD: Cecil L. Rotenberg, Q.C.
Barrister & Solicitor
255 Duncan Mill Road
Suite 808
Don Mills, Ontario
M3B 3H9
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990120
Docket: IMM-1377-98
Between:
JIANMIN HE
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER