Ottawa, Ontario, 29 November, 2005
PRESENT: THE HONOURABLE MR. JUSTICE HARRINGTON
BETWEEN:
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] Mr. Huang was denied his permanent resident visa because, in the opinion of the Canadian visa officer, he had made material misrepresentations that could induce an error in the administration of the Immigration and Refugee Protection Act (IRPA).
[2] At the close of oral argument I said I would be granting judicial review of that decision and remitting the matter back for a fresh determination by a different officer. I said I would be relying on two truisms. One is that you cannot judge a book by its cover. The other which comes to us
from Oliver Wendell Holmes, Jr., is that the law is not logic, it is experience. The thing about truisms is that they are mostly true, most of the time.
[3] Mr. Huang had applied to the Newfoundland and Labrador Provincial Nominee Program, which arises from an agreement with the Federal government. Nevertheless the applicant must be admissible under the IRPA. The officers who considered his file were concerned with his financial interest in a Chinese company. He submitted a verification report from an audit firm which confirmed he had an 80% interest in a construction company. However the document indicated the commercial concern was a sole proprietorship. How can one own 80% of a sole proprietorship? The audit firm was contacted and first said the report was a fraud, as no such report was in the file. It later recanted saying it had been in the course of moving and the report had not yet made its way into the file. There was also concern because Mr. Huang said the business began in 1998, while the audit firm said it began in 1994.
[4] Section 40(1)(a) of IRPA provides:
| 40. (1) A permanent resident or a foreign national is inadmissible for misrepresentation (a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act; |
40. (1) Emportent interdiction de territoire pour fausses déclarations les faits suivants : a) directement ou indirectement, faire une présentation erronée sur un fait important quant à un objet pertinent, ou une réticence sur ce fait, ce qui entraîne ou risque d'entraîner une erreur dans l'application de la présente loi; |
[5] It has been suggested that while the finding of misrepresentation is subject to a patent unreasonableness standard, the inducement portion of s. 40 may be reviewed on a reasonableness simpliciter standard (Bellido v. Canada (M.C.I.), 2005 FC 452. If there had been a misrepresentation it would have induced error. Thus the matter is to be reviewed on a patent unreasonableness standard (Zhang v. Canada (M.C.I.) 2005 CF 1313).
[6] As to the audit report, the evidence of the firm had to be taken as a whole. One cannot simply pick and choose. The explanation of the initial error was eminently reasonable. This Court has seen many the case where the Ministry has misfiled or late filed. If there was still doubt there should have been more follow-up.
[7] As to the impossibility of owning 80% of a sole proprietorship, the explanation and documents were to the effect that under Chinese law the distinction was between individual (meaning private) and collective ownership. During argument, I referred to what was once known in Quebec as the Partnership Declaration Office. Registration was not limited to partnerships, but also extended to sole proprietorships and corporations carrying on business in virtue of extra-provincial licences. The assessment by the officer should not been based on an internal logic. Doubts ncould have been resolved by further investigation.
[8] Finally, as to the date the enterprise was founded, the record shows that it was originally founded as a collective enterprise in 1994 but converted to private enterprise in 1998. That is when Mr. Huang got his Business Licence. There was no misrepresentation.
ORDER
THIS COURT HEREBY ORDERS THAT:
1. The judicial review is granted.
2. The matter is referred back for a fresh determination by a different officer.
3. There is no question to certify.
"Sean Harrington"
JUDGE
Ottawa (Ontario)
November 29, 2005
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3696-05
STYLE OF CAUSE: FA AN HUANG
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: November 24, 2005
REASONS FOR ORDER: JUSTICE HARRINGTON
APPEARANCES:
| Me Stephen J. Fogarty
|
|
| Me Thi My Dung Tran
|
SOLICITORS OF RECORD:
| Harvey & Associates LLP Montreal, Quebec
|
|
| John H. Sims, Q.C. Deputy Attorney General of Canada |