Ottawa, Ontario, March 29, 2006
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Applicant, Yongcun Zhen, applied for a permanent resident visa to enter Canada as an entrepreneur under s.98 Immigration and Refugee Protection Regulations. The overall handling of his visa application leaves much to be desired; however, the issue in this application is limited to the fairness of the process followed leading up to his interview in Beijing on May 16, 2005 and culminating in the refusal of a visa by letter dated May 18, 2005.
Procedural Background
[2] The Applicant's visa application was submitted to the Canadian Consulate General in Buffalo, New Yorkin October of 2001. He was seeking admission to Canada with the view to opening a restaurant in Vancouver involving a capital investment of $200,000.00. The application was supported by financial documentation intended to establish the criteria for eligibility.
[3] It took a full year for the Department of Citizenship and Immigration (Department) to acknowledge by letter the visa application. The Department advised the Applicant's counsel that an interview would be carried out in Seattle in approximately six (6) months. Nothing further was heard from the Department until March 18, 2003 when the Applicant's counsel received a letter from the Canadian Consulate General in Buffalo confirming that the file had been transferred to Seattle. Later that year in the course of checking the status of the visa application via the internet, the Applicant's counsel was shocked to see that the Department had noted the application as "withdrawn". At about the same time, a letter went out from the Canadian Embassy (Embassy) in Beijing advising the Applicant that his application had been transferred to that office.
[4] The Department, through the Embassy in Beijing, then sent a form letter to the Applicant dated December 17, 2004 requesting a considerable amount of additional documentary material which included a request for financial statements, profit/loss statements and balance sheets for 2001 to 2004 supported by English translations. The Department also requested an updated personal net worth statement, copies of business licenses, copies of tax registration certificates and historical bank statements. It would appear that much of the requested information was provided by the Applicant's counsel and sent to the Embassy by letter dated March 14, 2005.
[5] The Department then sent a further form letter to the Applicant dated April 18, 2005 advising him that he would be interviewed at the Embassy office on Monday, May 16, 2005. This letter contained a request for a considerable volume of additional documentary evidence some of which had already apparently been received. The letter indicated that the additional material should be delivered at the time of the scheduled interview. Basically, the Department was seeking a complete financial history from the Applicant demonstrating the accumulation of his personal net worth since 1987. It is also clear from the request that the Department realized that at least some of the requested documentation was in the hands of third parties or would require verification by third parties. The request for documents also included complete monthly tax records from 1987 to present, all original sales contracts, property certificates and purchase tax invoices for real estate, copies of all business licences from 1987, annual income statements and capital verification reports, and company audits for all companies which he had managed or owned from 1987 to present. All of the requested documentation was required to be translated into either English or French.
[6] The Applicant filed an affidavit in support of this application confirming that, on the advice of his counsel, he endeavoured to obtain as much of the requested documentation as he could before the interview and that he intended to seek additional time to provide the necessary notarization, translation and third party audit work which was required. The Applicant's affidavit also notes that the Chinese May Day holidays took place between the receipt of the request for information from the Department and the date of the scheduled interview. His affidavit states that this holiday further compromised his ability to obtain the requested documents from third-party sources.
[7] The Applicant's affidavit states that when he met with the visa officer, Brad Sapp, on May 16, 2005, he presented all of the documentary material which he had been able to assemble up to that point and offered in further explanation that some of the requested documentation was no longer available to him. This included certain banking records which had been returned to his bank. The affidavit also indicates that there were certain translation difficulties during the interview which led to some confusion about the nature of the documentation which was required by the visa officer.
[8] The Applicant deposes very clearly in his affidavit that he requested that Mr. Sapp allow him thirty (30) days to obtain the additional financial information requested and to have it translated and notarized. He said that he had had insufficient time to have the requested audit work completed and that his local CPA firm had told him that they could only start this work after May 20, 2005. Because the Applicant operated his businesses as proprietorships, he deposed that audited financial statements were not legally required and, in the result, were not immediately available for production when the Embassy requested them.
[9] Because the Respondent chose not to file an affidavit and did not cross-examine the Applicant on his affidavit, I am left with uncontradicted evidence that a request for more time to produce the required documents had been made during the May 16th interview and that the Applicant believed that that additional time would be afforded to him. In the absence of any challenge to this evidence by the Respondent, I am left with no other option but to accept the Applicant's affidavit material at face value and I do so.
[10] Within two (2) days of the Applicant's interview, Mr. Sapp wrote to him to advise that his visa application was rejected because of a failure to adequately document that his personal net worth was derived from legal and legitimate sources. In the result, Mr. Sapp was not satisfied that the Applicant was not a member of an inadmissible class.
Issue
Did the handling of the Applicant's visa application give rise to a breach of the rules of natural justice?
Analysis
[11] This is a case involving procedural fairness. Because this issue is one involving the content of the duty of procedural fairness, the standard of review is one of simple correctness and does not require a pragmatic and functional approach: see Ha v. Canada (Minister of Citizenship and Immigration) 2004 FCA 49, [2004] 3 F.C.R. 195, [2004] F.C.J. No. 174 (F.C.A.).
[12] The Applicant has deposed in his affidavit that he was not given a reasonable opportunity to satisfy the Department's requests for financial records in support of his claim for a visa. He correctly points out that the visa officer's demands were voluminous and required notarized, translated and, in some cases, audited financial records spanning a period of twenty (20) years. At least some of those records were in the hands of third parties. The Applicant was given only three (3) weeks to comply with these demands and his request for an additional thirty (30) days to respond was effectively denied by the immediate rejection of his application.
[13] The Respondent has not filed an affidavit to challenge the Applicant's description of the interview and, in particular, the request for a 30-day period of abeyance. The visa officer's CAIPS notes of the interview are contained within the official record and they make no mention of a request by the Applicant for more time; however, they do indicate that the issue of the availability of documentary evidence was discussed at length.
[14] The Respondent argues that the Applicant carried the burden of establishing his entitlement to a visa and was effectively on notice of the need to clearly document that claim. The Respondent relies, in part, upon language in the visa application form advising of the need to present financial records sufficient to demonstrate that assets were legally obtained. That form also advises applicants that they may be required to produce additional financial documents upon request. The Respondent also relies upon several case authorities which have held that a visa officer has no duty to request more evidence in support of a visa application and that the onus rests upon an applicant to produce what is needed at the first instance: see Asghar v. Canada (Minister of Citizenship and Immigration) [1997] F.C.J. 1091; Wohlmayer v. Canada (Minister of Citizenship and Immigration) 2002 FCT 155, [2002] F.C.J. No. 196; and Chen v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 275.
[15] The fundamental weakness of the Respondent's argument is that no person in the position of the Applicant would reasonably assume from the time of the initial application that he would be required to produce documents of the scope and temporal range demanded by the Department. This is not to say that the Department was not entitled to request that financial history but only that it cannot reasonably be heard to say that the Applicant ought to have anticipated that need in advance.
[16] The visa officer's request for twenty (20) years of financial records supported, in part, by third-party verifications went beyond what is normally required by the Department. This is borne out by the Department's Overseas Processing Manual 8 which indicates that financial statements for five (5) years are the usual requirement and that the need for third-party audit verification would be rare because "most small businesses are extremely unlikely to have been audited".
[17] I have no difficulty with the reasoning of the cases relied upon by the Respondent but they are all different from the facts of this case. Here it was the visa officer who requested the documentary history but then failed to afford a reasonable opportunity to the Applicant to comply with the request. The handling of this application did not conform to the obligation confirmed by Baker v. Canada(Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39 at para. 28 that an individual seriously affected by an administrative decision "should have the opportunity to present [his] case fully and fairly".
[18] While the decision to deny the Applicant's visa was one which could have been reasonably made on the evidence presented, that outcome is by no means certain had the Applicant been given the time he requested. I am satisfied that the Applicant's visa application was not handled with the degree of fairness required and I will order that the application be reconsidered by a different visa officer. Given the lengthy delays already experienced by this Applicant in the handling of his claim, it would be desirable if the Department treated this matter with some urgency.
[19] I am not persuaded that the facts of this case are sufficient to justify an award of costs: There was no evidence of bad faith nor was the position taken by the Minister unreasonable.
JUDGMENT
THIS COURT ORDERS that the decision of the visa officer is set aside with the matter to be remitted to a different visa officer for reconsideration.
" R. L. Barnes "
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3580-05
STYLE OF CAUSE: YONGCUN ZHEN
v.
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MARCH 23, 2006
APPEARANCES:
| JOSEPH R.YOUNG
|
|
| VANITA GOELA
|
SOLICITORS OF RECORD:
|
JOSEPH R.YOUNG LL.B TORONTO, ONTARIO
|
|
| JOHN H.SIMS, Q.C. DEPUTY ATTORNEY GENERAL OF CANADA TORONTO
|