Date: 20020411
Docket: IMM-1959-01
Neutral citation: 2002 FCT 395
BETWEEN:
ZHANG ANFU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
AMENDED REASONS FOR ORDER AND ORDER
(To amend Reasons for Order and Order dated April 9, 2002)
INTRODUCTION
[1] Mr Zhang Anfu ("Applicant") seeks judicial review of the decision of Ms. Colleen Wong ( "Visa Officer"), dated March 12, 2001. In her decision, the Visa Officer refused the Applicant's application for permanent residence in Canada under the "investor" category.
FACTS
[2] The Applicant is a citizen of China. He submitted an application for permanent residence in Canada in the "investor" category pursuant to the Immigration Act, R.S.C. 1985, c. I-2, as amended, and the Immigration Regulations, SOR/78-172. The Applicant's wife and daughter are included in his application.
[3] Following screening of his application, the Applicant was selected for an interview which was scheduled for March 9, 2001. At the interview, the Applicant provided information about his university education and subsequent employment history. He claimed that while working with the Yingfang Group of machinery construction of the Commission of Science and Technology for National Defence, he earned a total of RMB 5 million during the 42-month period while employed there. He said that he received an annual salary of RMB 300,000.00 together with performance bonuses and a 30% profit sharing while working with this company.
[4] He was next employed as a manager of a construction project with the Chengdu Huaxing Building Company, during the period 1990 to 1994. He earned a total of RMB 15 million consisting of an annual salary of RMB 800,000.00 and a 45% profit sharing.
[5] In 1994, the Applicant established his own business, that is the Sichuan Province Dongfu Furniture Company Ltd. He said that he invested RMB 9.6 million in this business which was primarily involved in the design, importation and sale of office and household
furniture. The Applicant is a principal shareholder, general manager and legal representative of the company. The company has prospered under his direction and has earned a total net profit between 1995 and 2001 of CDN $2,709,565.00.
[6] The Visa Officer, was satisfied that the Applicant had successfully operated, controlled or directed his business but was not satisfied that he had accumulated $500,000.00 through his own endeavours. In particular, she was not satisfied as to the source of the Applicant's initial investment in the business of RMB 9.6 million.
[7] When the Applicant was asked if he had any record, in particular documentary records, to substantiate his income from 1986 to 1994, he said that he did not. The Visa Officer did not believe that the Applicant had in fact earned the income he claimed to have earned between 1986 to 1995, and advised him of her concerns in this regard. She also advised him that his application would be refused and the reason for that refusal. This decision was confirmed in a letter dated March 12, 2001. In her letter, the Visa Officer referred to the definition of "investor" in the Regulations and said as follows:
The Immigration Regulations define "investor" as follows:
"investor" means an immigrant who
(a) has successfully operated, controlled or directed a business, (b) had 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;
I have determined that you do not meet the definition of investor for the following reasons.
I am not satisfied that you have a net worth, accumulated through your own endeavours, of at least $500,000.
(Tribunal Record, pages 6 - 7)
ISSUES
[8] The following issues arise from this application:
(i) Did the Visa Officer err in law in relying on the Applicant's failure to provide documentary proof of the source of his investment fund for her decision that he did not meet the definition of investor?
(ii) Did the Visa Officer breach the duty of fairness by failing to provide the Applicant with an opportunity to respond to her concerns?
APPLICANT'S SUBMISSIONS
[9] The Applicant argues that by producing evidence of his accumulation of approximately CDN $2 million through the successful management of his company, he has satisfied the criteria of investor as set out in the Regulations, section 2(1).
[10] He also argues that the Visa Officer breached the duty of procedural fairness owed to him by failing to provide sufficient notice that he was required to bring proof of the source of his investment fund to his interview.
[11] As well, the Applicant argues that the Visa Officer breached the duty of procedural fairness by failing to give him an opportunity to submit the required documents following the interview.
RESPONDENT'S SUBMISSIONS
[12] The Respondent argues that pursuant to section 9(3) of the Act, the Visa Officer is authorized to request documentation for the purpose of assessing whether a prospective immigrant meets the statutory requirements. This means that it is reasonable for a visa officer to request proof of an applicant's fund and that a failure to comply with this is sufficient ground for refusing an application. In this regard, the Respondent relies on Li v. Canada (Minister of Citizenship and Immigration), [2001] FCT 837, _[2001] F.C.J. No. 1204 (F.C.T.D.) (QL).
[13] Further, the Respondent argues that the Visa Officer is not obliged by the principles of procedural fairness to provide an opportunity to an Applicant to respond to concerns that arise directly from the Act and Regulations which she is bound to follow. Here, the Respondent relies on Yu v. Minister of Employment and Immigration (1990), 36 F.T.R. 296 and Ali v. Canada (Minister of Citizenship and Immigration) (1998), 43 Imm. L.R. (2d) 264 (F.C.T.D.).
[14] The Respondent argues that the Applicant knew or ought to have known that he was required to satisfy the Visa Officer as to the source of his investment fund.
ANALYSIS
[15] The definition of "investor" as found in section 2(1) of the Regulations, in effect when the Applicant applied, provides as follows:
|
"investor" means an immigrant who (a) has successfully operated, controlled or directed a business, (b) had 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 accumulé par ses propres efforts; (i) unavoir net d'au moins 500 000 $, dans le cas d'un immigrant qui fait un placement visé aux sous-alinéas a)(i) ou (ii), b)(i), c)(i) ou 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 définition de « « placement minimal » » . |
[16] The standard of review applicable to discretionary decisions of a visa officer is set out in Chiu Chee To v. Canada (Minister of Employment and Immigration) (22 May 1996), Doc. A-172-93, [1996] F.C.J. No. 696 (F.C.A.). Here, the Federal Court of Appeal adopted the test set out by the Supreme Court of Canada in Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2 at pages 7 - 8:
It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. 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.
[17] The first issue is whether it was reasonable for the Visa Officer to question the source of funds used by the Applicant to start his business.
[18] In Biao v. Canada (Minister of Citizenship and Immigration) (1999), 177 F.T.R. 190 (F.C.T.D.), Nadon J., as he then was, dealt with a similar issue. In Biao, supra, the applicant had not provided satisfactory evidence relevant to the source of his funds in his application for permanent residence as a member of the "investor" class. The Court said as follows at page 196:
[21] The visa officer had the power to request these documents by virtue of s. 9(3) of the Act and the applicant had the burden of proving that his entry into Canada would not contravene the Act. The applicant did not meet this obligation under s. 9(3) nor did he discharge himself of the burden set out in s. 8 of the Act. ...
...
[22] This court has held that a visa officer has both the right and the duty to require an applicant to produce documents which the officer believes are necessary for him or her to consider an application. ...
[19] In the present case, the Applicant acknowledged, through counsel at the hearing, that it was reasonable for the Visa Officer to enquire as to the source of his "seed capital" with which he established his business. If that enquiry was reasonable, then it was reasonable for the Visa Officer to conclude that the Applicant had failed to satisfy her concerns in that regard, in the absence of any supporting documentation as to his earnings.
[20] The affidavit filed by the Visa Officer set forth some reasons for her disquiet. The Applicant was a recent graduate from a university when he commenced his employment with the Yingfang Group. He said that he was earning an annual salary of RMB 300,000.00, as well as participating in profit sharing. He was still a young man when he moved to employment with the Chengdu Company where he stated an annual salary of RMB 800,000.00, together with a 45% profit sharing. The Visa Officer was not satisfied that a recent university graduate would be earning such significant income so soon after completing his studies.
[21] According to the record, the Applicant produced no document or any other evidence to allay these concerns. There is a conflict in the affidavit evidence filed because in his affidavit filed in this proceeding, the Applicant said he sought the opportunity to seek supporting documentation relative to his earnings from the Chengdu Company. In her affidavit, the Visa Officer said that he did not raise that point at the interview.
[22] In any event, the Visa Officer was in a position to assess the credibility of the Applicant. Her concerns about the source of his investment fund in 1994 were legitimate and reasonable. Having regard to the deference due to a decision made by a visa officer, absent any breach of procedural fairness, I conclude that her decision was reasonable and her decision should not be disturbed.
[23] As to the alleged breach of procedural fairness, I refer to Ali v. Canada (Minister of Citizenship and Immigration), supra, where Teitelbaum J. expressed the view that a visa officer is subject only to a limited duty to communicate concerns to an applicant. An applicant should assume that any concerns will arise directly from the Act and Regulations. Since the onus lies upon an applicant to establish that he has met the statutory criteria for entry into Canada, it is reasonable to assume that an applicant would acquaint himself with those requirements beforehand.
[24] I agree with the submissions made by the Respondent that the Applicant should have known that the Visa Officer would require him to substantiate his claim, including the source of his investment fund. Accordingly, I dismiss his argument in this regard.
[25] In the result, the application for judicial review is dismissed. Counsel for the Applicant submitted the following question for certification:
Is it a relevant consideration that the initial capital that an investor-applicant uses to accumulate net worth has to be from the personal endeavours of the investor-applicant?
I will certify the proposed question.
ORDER
The application for judicial review is dismissed.
The following question is hereby certified under section 83(1) of the Immigration Act, R.S.C. 1985, c. I-2, for the consideration of the Federal Court of Appeal:
Is it a relevant consideration that the initial capital that an investor-applicant uses to accumulate net worth has to be from the personal endeavours of the investor-applicant?
"E. Heneghan"
____________________________
J.F.C.C.
Ottawa, Ontario
April 11, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1959-01
STYLE OF CAUSE: Zhang Anfu v. MCI
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: April 2, 2002
AMENDED REASONS FOR ORDER AND ORDER OF THE COURT BY: Heneghan J.
DATED: April 11, 2002
APPEARANCES:
Rudolf J. Kischer FOR APPLICANT
Helen Park FOR RESPONDENT
SOLICITORS OF RECORD:
Rudolf J. Kischer FOR APPLICANT
Vancouver, British Columbia
Deputy Attorney General of Canada FOR RESPONDENT
Department of Justice
Vancouver, British Columbia