Date: 20020410
Docket: IMM-2956-99
Neutral Citation: 2002 FCT 412
Toronto, Ontario, Wednesday, the 10th day of April, 2002
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
Tun Yuan HSUEH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The Applicant in the present case seeks judicial review of a visa officer's decision of May 25, 1999, refusing the Applicant's application for permanent residence in Canada as a "self-employed person".
[2] The Applicant is a citizen of Taiwan who applied for permanent residence in the self-employed category on November 7, 1997, as a Pet Shop Owner/Pet Groomer. The Visa Officer conducted an interview with the Applicant and his wife on November 12, 1998. During the interview, the Visa Officer noted that there was an inconsistency in the financial statements of the Applicant's business in Taiwan. The Applicant stated that his business generated over $100,000 annually in profit. However, tax documents indicated that the business turnover was only $42,000 with assessable profits of $24,000 per year.
[3] This factor proved to be the Visa Officer's sole concern. She advised the Applicant that she was satisfied that he met the definition of a self-employed person but that this was conditional on his being able to provide credible proof of income. The Visa Officer indicated that this was required to "substantiate both the legal accumulation of funds and the performance of the business which he presented in support of his abilities to establish a business which would create an employment opportunity for himself".
[4] The Visa Officer advised the Applicant to provide either of the following within 60 days of the interview:
1 Audited financial statements for the past 3 years; or,
2 An independent review of the performance and value of his business by an international accounting firm.
[5] In a written response, on January 6, 1999, the Applicant informed the Visa Officer that her specific request could not be complied with as follows:
I know you requested audited statements however, it would be impossible to where no records were kept to perform either of the two requested, namely, an audited statement or an independent review. The actual independent review is provided by the Tax Department who performs an assessment which is not erring on the side of the applicant. The acceptance of that imputed tax is evidence of a weighty kind that the business is profitable to the extent of the tax imputed. The basis of that inference is that people do not pay tax where they do not have to. If it were cheaper not to pay the imputed tax, but rather on some profit and loss statement, then the applicant would have done so (Applicant's Application Record, p.15).
[6] Instead, the Applicant provided unaudited financial statements for 1995-97, which indicated profits of over $100,000 annually, inventory and banking records, and an unaudited balance sheet.
[7] In addition, the Applicant provided a letter from Diwan, Ernst & Young, chartered accountants, confirming that an audit could not be conducted because of the failure to keep records and that the Applicant's income was imputed for tax purposes. The letter went on to explain that while the Applicant was required under Taiwan law to keep accounting records and supporting documents for a minimum of three years, the law also provided for special imputation procedures for various small businesses, including the Applicant's. Since the Applicant did not keep sufficient records, tax treatment was based on a special ruling from the tax authorities for self-employed businesses.
[8] There was no suggestion on the record of criminal or civil liability for wrongdoing.
[9] After reviewing this additional information, the Visa Officer was not satisfied that the Applicant met the definition of a self-employed person. The following reasons were stated in the refusal letter:
I am not satisfied that you have had the opportunity to acquire the abilities necessary to establish or purchase a business in Canada that would create an employment opportunity for yourself. You have failed to keep daily accounting records as required by Taiwan law since establishing the business presented in support of your application, making it impossible to verify the claimed true performance of the business. The fact that you are unfamiliar with or choose to ignore the laws in the environment in which your business currently operates further confirms my decision as to your ability to successfully establish a business in Canada (Tribunal Record, p.3).
[10] I find that on the evidence of this case, the Visa Officer knew in the course of reaching her decision that the Applicant could not provide audited statements, but nevertheless made it a requirement. In my opinion, this requirement works a manifest unfairness to the Applicant. Consequently, I consider the decision to be patently unreasonable.
ORDER
1. Accordingly, the Visa Officer's decision is set aside and the matter is referred back to a different visa officer for redetermination on the direction that it be conducted on the basis of the financial evidence supplied by the Applicant without audited statements. I further direct that redetermination be determined on the law as it existed on the date of the decision reviewed herein, being May 24, 1999.
"Douglas R. Campbell"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-2956-99
STYLE OF CAUSE: TUN YUAN HSUEH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
DATE OF HEARING: TUESDAY, APRIL 9, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: WEDNESDAY, APRIL 10, 2002
APPEARANCES BY: Mr. Cecil L. Rotenberg, Q.C.
For the Applicant
Mr. Martin E. Anderson
For the Respondent
SOLICITORS OF RECORD: Cecil L. Rotenberg, Q.C.
Barrister & Solicitor
255 Duncan Mill Road
Suite 108
Toronto, Ontario
M3B 3H9
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020410
Docket: IMM-2956-99
BETWEEN:
TUN YUAN HSUEH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER