Date: 19990811
Docket: IMM-4330-98
BETWEEN:
WAH FONG CHAN,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
MULDOON J.
[1] The applicant challenges by way of judicial review the decision, dated 23 July, 1998, made by Gregory Chubak, vice consul at the Canadian consulate in Hong Kong, which determined that the applicant failed to satisfy the requirements of the investor category, pursuant to the Immigration Regulations , 1978, SOR 78/192 (the Regulations). The applicant seeks an order setting aside the decision and asks that the matter be referred back to a different visa officer for redetermination.
Background
[2] The applicant, Wan Fong Chan, is a citizen of Hong Kong. She first sought admission under the entrepreneur category in 1988; her application was denied in April 1989 because of her son"s medical condition. The applicant submitted a second application in 1993, under the investor category. She had invested $250,000 in the Canadian Maple Leaf Fund (Alberta) Ltd. (the "fund"). That application, however, was denied as well in April 1995 on the ground that the applicant had failed to provide medical information to vitiate her son"s possible medical inadmissibility. The applicant disputes receiving any request for additional medical information, and asserts that on the advice of a Ms. S. Dragan, second secretary at the consulate, she reapplied, on 28 September, 1995, for the third time. The resulting denial of that third application is now before the Court in this application for judicial review.
[3] The applicant was interviewed at the consulate by a visa officer, Mr. D. Solomon (although he is not the author of the decision under review), on 12 January, 1996. Apparently, there was some confusion at the outset of the interview, because the applicant was informed that she had not provided the necessary documents. The applicant had personally delivered the documents in question some ten days earlier, and after a search, the documents were found by consulate staff. The interview proceeded, but no decision was forthcoming.
[4] The applicant wrote to the consulate on 4 May, 1996, in order to confirm that the family had completed a second set of medical examinations, as well as to inquire as to the existence of any outstanding matters pertaining to her application (tribunal record, p. 94). The applicant states that she again inquired of the consulate, by letters dated 13 August and 23 September, 1997, as to the status of her application (tribunal record, pp. 90-91). She received no responses to these inquiries. On 24 October, 1997, the applicant received a letter informing her that she would have to attend another interview (tribunal record, p. 89).
[5] The applicant was interviewed on 3 April, 1998, by vice consul Gregory Chubak. It was at this point that the applicant was told that the investment she had made in the fund applied only for her 1993 application for permanent residence, the second application she had submitted. The vice consul gave the applicant two months in order to comply with the requirement to submit a new investment, as well as any other requirements.
[6] After the interview, the applicant contacted the fund"s manager to inform him of what had to be done. The fund manager wrote to the consulate on 24 April, 1998, inquiring as to why the applicant"s investment had not been transferred from her second application to the current application, something which had apparently been done in the past (tribunal record, p. 23). It is not clear whether the fund manager received any response to this letter. On 14 May, 1998, the fund"s managing director sent a letter to Citizenship and Immigration on the applicant"s behalf, seeking the department"s intervention, which it had similarly provided in the past (applicant"s record, tab2, applicant"s affidavit, exhibit D).
[7] On 18 May, 1998, the applicant wrote to the vice consul and informed him that she was having difficulties securing a full refund of her investment because her application had not been refused, as per the offering memorandum (tribunal record, p. 20). The applicant also stated that at any rate she would not be eligible for a refund for 60 days, thus exceeding the vice consul"s deadline which was set to expire on 3 June, 1998. She asked for his assistance in clarifying the matter as soon as possible.
[8] The applicant attended the consulate on 12 June, 1998, and spoke with the vice consul"s assistant, Ms. Law, about the problems she was encountering. According to the applicant, Ms. Law suggested that the applicant use the 1993 fund subscription if she had the fund"s manager restate and amend the subscription because time was running out, and the applicant would not be able to purchase another investment before the deadline expired.
[9] On 22 June, 1998, the fund"s president, Mr. Eric Kong, wrote to the consulate to confirm that the applicant had reinvested the $250 000 (tribunal record, p. 4). A copy of the amended and restated subscription agreement was provided to the consulate (tribunal record, pp. 7-12).
| [10] Notwithstanding all of this, the applicant received a letter, on 23 July, 1998, informing her that her application for permanent residence was being denied because she was unable to meet the requirements of the investor category:You do not meet this definition of investor because you have not made the required minimum investment as prescribed in section 9(1)(b )(iii) of the Immigration Regulations, 1978. An investment made in support of a previous and heretofore refused application is insufficient in this case as was fully explained at interview on April 03, 1998, subsequently by letter of April 30, 1998, and again in person on June 12, 1998. At interview and by subsequent letter you were fully apprised of the outstanding requirement to provide proof that an investment had been made since the date of application. |
| Since you have failed to provide satisfactory proof that you have made a minimum investment and as such do not meet the definition of investor, I am not authorized to issue an immigrant visa to you. Accordingly, I have refused your application as you have not satisfied the burden under section 8(1) of the Immigration Act of proving that you have a right to come to Canada or that your admission would not be contrary to the Act or regulations. |
(Tribunal record, pp. 1-2)
The letter ends on a rather perfunctory, and perhaps ironic, note, thanking the applicant for her interest in Canada.
Applicant" s Position
[11] The applicant submits that the vice consul erred by refusing to accept the amended subscription, thus making a perverse and capricious finding that the applicant did not meet the definition of investor.
[12] The applicant contends that the Immigration Act and Regulations do not expressly prohibit an investor from investing in the same fund in which she had previously invested, nor do they prohibit renewing an existing subscription.
[13] The applicant also argues that the doctrine of estoppel by representation is applicable in these circumstances. She relied on the advice of the vice consul"s assistant, Ms. Law, who suggested the applicant amend and restate her original subscription. The applicant relies on Lidder v. MEI (1992), 16 Imm.L.R. (2d) 241 (F.C.A.), in support of this argument.
[14] The applicant contends that the vice consul"s two month deadline effectively prevented her from obtaining a new investment once she was informed that her 1993 investment was unacceptable.
Respondent" s Position
[15] The respondent maintains that the applicant"s restated and amended investment subscription is unacceptable because it amounts only to a transfer and not to an entirely new investment, as per the Regulations. The respondent states that the fund into which the applicant made her 1993 investment closed shortly thereafter, and thus, she cannot make a new investment into a fund that has already closed.
[16] The respondent submits that the doctrine of estoppel is not applicable to this case. The vice consul"s and his assistant"s CAIPS notes indicate their efforts to explain to the applicant that a new investment was required. The respondent also denies that the vice consul"s assistant provided the applicant with any incorrect information, and argues that, in any event, the Minister cannot be deemed to have acted in contravention of a statute. The respondent provides no sworn evidence of such denial.
Issue
[17] Whether the vice consul erred in refusing to accept the applicant"s restated and amended subscription as an investment pursuant to subparagraph 9(1)(b )(iii) of the Regulations.
Analysis
| [18] Subparagraph 9(1)(b)(iii) of the Immigration Regulations provides:9(1) Subject to subsection (1.01) and section 11, where an immigrant other than a member of the family class, an assisted relative or a Convention refugee seeking resettlement makes an application for a visa, a visa officer may issue an immigrant visa to him and his accompanying dependents if |
| (b) where the immigrant and the immigrant"s accompanying dependents intend to reside in a place in Canada other than the Province of Quebec, on the basis of the assessment of the immigrant or the spouse of that immigrant in accordance with section 8, and |
(iii) in the case of an investor other than an investor in a province, the investor is awarded at least 25 units of assessment and, since applying for an immigrant visa as an investor, has made a minimum investment described in paragraph (a), (c) or (d) of the definition of "minimum investment" in subsection 2(1) ...
Subsection 2(1) of the Regulations states:
| "investor" means an immigrant who |
| (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) 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... . |
[19] The question to be decided is whether the applicant"s amended and restated subscription in the fund qualifies as an investment within the meaning of subparagraph 9(1)(b )(iii) of the Regulations, viz., does it amount to an investment since applying for an immigrant visa as an investor?
| [20] The pertinent portion of the text of the amended and restated subscription agreement, which is signed and dated 22 June 1998, reads as follows:WHEREAS the undersigned (the "Subscriber" or, the "Investor") has entered into a subscription agreement (the "Former Subscription Agreement") dated December 1, 1993 with The Canadian Maple Leaf Fund (Alberta) Ltd. (the "Company") and the Subscription Trustee. |
AND WHEREAS the parties wish to amend and restate the Former Subscription Agreement with this Agreement.
[21] Nothing in the text of the Regulations states that a reinvestment is not an acceptable form of investment; nor do the Regulations prohibit investing in the same fund. All that is required of the putative immigrant is to make an investment after applying for permanent residence under the investor category. The applicant took her existing investment and had the subscription amended and restated, thus locking her funds in for a further fixed period of time.
[22] Why should this reinvestment not count as an investment? The consulate has had the applicant"s application since September 1995; it has been assessed by three different visa officers, and it was not until the interview on 3 April, 1998 that the applicant was informed that her application was not up to snuff " despite her earlier written inquiries as to the status of her application and whether she need do anything to perfect it. As well, the vice consul imposed an arbitrary deadline of two months for the applicant to remedy the situation. It is difficult to fathom this sense of urgency after some thirty months had passed, especially as the applicant informed the consulate of the difficulties she was having securing a refund of her investment, making reference to a 60 day waiting period.
[23] It is also troubling to note the fund manager"s letter of 24 April, 1998, which indicates that in the past, such investments had been transferred to subsequent applications and been accepted (however, this point is not further elaborated on insofar as particulars are concerned).
[24] With regard to the applicant"s argument that the doctrine of estoppel should be applied, the applicant relies on Lidder v. MEI. In that case, Desjardins J.A. noted that for estoppel by representation to be successfully invoked, the following elements must be present: a representation of fact made with the intention that it be acted upon or that a reasonable person would assume that it was intended to be acted upon; the applicant acted upon the representation; and she altered her position in reliance upon the representation and thereby suffered prejudice.
[25] In the instant case, the applicant contends that the vice consul"s assistant, Ms. Law, suggested she restate and amend her existing subscription in order to perfect the application. The applicant did just that; accordingly, she altered her position by reinvesting the monies in the fund for a fixed term. The elements as set out in Lidder are present in this case.
[26] With regard to the respondent"s denial that the vice consul"s assistant ever provided such advice, the respondent has not filed any affidavit evidence to rebut or contradict the applicant"s version. If the respondent intends the denial to have any weight, affidavit evidence should have been tendered. The only evidence before the Court on this point is the applicant"s affidavit, which indicates that the vice consul"s assistant advised her to proceed in a particular manner regarding her application. Indeed, the CAIPS notes for 12 June, 1998 are silent on the matter of any advice Ms. Law may have given the applicant, or whether a restated and amended subscription would suffice. The notes for that date state,PI [person interviewed] CAME IN TODAY. EXPLAINED TO PI THAT OLD INVESTMENT WAS FOR APPLICATION PREVIOUSLY REFUSED AND DOES NOT CONSTITUTE A MINIMUM INVESTMENT FOR THIS APPLICATION. ADVISED PI THAT NEW INVESTMENT REQUIRED. IF NO PROOF OF NEW INVESTMENT BY 30 JUN 98, CASE WILL BE REFUSED. ALSO ADVISED PI THAT SON, RONALD WILL CEASE TO BE A DEPENDENT AT END OF JUNE AND WILL NOT BE ELIGIBLE ON SUBSEQUENT APPLICATION.
[27] In Wang Jing Yan v. MCI (IMM-2202-98, 3 June 1999), Cullen J. held that in the absence of a sworn affidavit from the visa officer, attesting to what had transpired at the interview, the applicant"s version as set out in his sworn and uncontradicted affidavit must be presumed to be true. The respondent had submitted an affidavit sworn by an articling student, with the visa officer"s CAIPS notes attached as an exhibit; however, the articling student merely identified the notes and could not have deposed to the truth of their contents as only the visa officer could do that. In any event, the CAIPS notes were silent on the disputed portion of the interview.
[28] Thus, the respondent"s denial of Ms. Law"s advice is not supported by any sworn affidavit evidence on that point. The only evidence is that of the applicant and it does not appear to have been effectively rebutted by the respondent.
[29] The Lidder elements have been met and if the Regulations do not permit a reinvestment such as the applicant"s, then the doctrine of estoppel by representation may be more appropriate in these circumstances. The ultimate consideration is that the consulate had the applicant"s application for thirty months before it issued a negative decision; three visa officers handled the file; no one responded to the applicant"s repeated inquiries as to the status of her application; and she was not informed of her application"s fatal defect until the last moment, when it was nearly impossible for her to act in a manner to correct it. She approached the consulate with a view to clarifying her situation, received advice, and acted on it, all to her detriment. And for this, she was politely thanked for her interest in Canada.
[30] The application is allowed. Another responsible official should grant permanent residence in accordance with the law, to the applicant in the investor category, thus setting aside Mr. Chubak"s decision dated July 24, 1998, all in accordance with s. 9(1)(b )(iii) of the Immigration Regulations, 1978 and s. 8(1) of the Immigration Act, as the applicant seeks.
(Sgd.) "F.C. Muldoon"
Judge
Vancouver, British Columbia
11 August 1999
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
HEARING DATED: August 10, 1999
COURT NO.: IMM-4330-98
STYLE OF CAUSE: Wah Fong Chan
v.
The Minister of Citizenship and Immigration
PLACE OF HEARING: Vancouver, British Columbia
REASONS FOR ORDER OF MULDOON J.
dated August 11, 1999
APPEARANCES:
| Bediako Buahene for the Applicant |
Mark Sheardown for the Respondent
SOLICITORS OF RECORD:
| Bediako Buahene for the Applicant |
Barrister and Solicitor
| Vancouver, BC |
Morris Rosenberg for the Respondent
Deputy Attorney General
of Canada