Date: 20001207
Docket: IMM-3466-99
Between :
ZHANG HAO, residing and domiciled at No. 9, Row 6,
East Compound of Tianshuiyuan, Chaoyang District,
Beijing, P.R. China
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION, C/O Depute Attorney General of Canada,
Department of Justice, having an office at
Complex Guy-Favreau, 200, René-Lévesque West,
East Tower, 5thFloor in the city and district of Montreal,
Province of Quebec;
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] The applicant seeks judicial review of the decision of visa officer Daniel A. Vaughan (the visa officer) rendered on June 3, 1999, at the Canadian Consulate General in Hong Kong, refusing his application for permanent residence in the "Investor Category".
[2] On January 14, 1998, the applicant filed his application for permanent residence in the "Investor Category".
[3] On December 14, 1998, the visa officer held an interview with the applicant to determine whether he met the requirements for permanent residence in Canada in that category as set out in the Immigration Act, R.S.C. 1985, c. I-2 (the Act).
[4] At the end of the interview, the visa officer informed the applicant that based on the information submitted, the application would be refused due to a lack of evidence notably relating to:
| - insufficient proof of the source of the money used by the applicant to establish his business in 1995; |
| - no proof of income to purchase a property valued at approximately $450,000; |
| - insufficient proof of the applicant's Personal Net Worth (PNW); |
| - concerns regarding the applicant's capacity to run his company; |
| - no proof of other income. |
[5] The visa officer informed the applicant that these concerns could possibly be addressed by the submission of a Business Performance Assessment (BPA).
[6] On June 2, 1999, the visa officer reviewed the BPA received on March 18, 1999 and determined that it did not address the issue of the sources of the funds. Therefore, the visa officer concluded that the requirements of subsection 9(3) of the Act had not been met and consequently refused the application.
[7] He notified the applicant of his decision by letter dated June 3, 1999. The letter reads, in part, as follows:
| You do not meet the requirements of subsection 9(3) because you have not complied with my request made at interview on December 14, 1998 and by letter dated December 17, 1998 for proof of the sources of the money used by you to establish your business, Beijing Fengsheng Times Science and Technology Centre, in 1995. I have reviewed the Business Performance Assessment submitted by you in response to this request, but the information contained in the BPA is insufficient to establish the sources of the funds used to establish the business. No additional evidence of the sources of these funds has been submitted. You have therefore not complied with my request to establish the sources of the investment capital for this business, and have therefore not complied with subsection 9(3) of the Immigration Act. |
[8] The proper scope of judicial review for the exercise of discretion by a statutory authority is the one stated by the Supreme Court of Canada in Maple Lodge Farms Limited v. Government of Canada et al., [1982] 2 S.C.R. 2, at pages 7 and 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. . . . |
[9] As I stated in Chou v. The Minister of Citizenship and Immigration (November 16, 1999), IMM-5982-98:
| . . . Moreover, under subsection 8(1) of the Immigration Act, the onus is on the applicant to show that he or she has a right to come into Canada. This means that it is the responsibility of the applicant to produce all relevant information which may assist his or her application. |
[10] In my view, the visa officer's contention was proper and he denied the visa on appropriate grounds, namely, that in the absence of the documentation he had requested, he was unable to verify the admissibility of the applicant with respect to section 19 of the Act.
[11] The issue before me is strikingly similar to the one in Biao v. Canada (The Minister of Citizenship and Immigration), [2000] 2 F.C. 348, in which the visa officer was also concerned about the origin of the applicant's assets. As stated by Nadon J. at pages 358 and 359:
| [21] The visa officer had the power to request these documents by virtue of subsection 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 subsection 9(3) nor did he discharge himself of the burden set out in section 8 of the Act. As a result, the visa officer could not be satisfied that admitting the applicant would not contravene the Act and accordingly, it was within his authority to deny the application. As subsection 9(4) [as am. by S.C. 1992, c. 49, s. 4] of the Act states: |
| 9. . . . |
| (4) Subject to subsection (5), where a visa officer is satisfied that it would not be contrary to this Act or the regulations to grant landing or entry, as the case may be, to a person who has made an application pursuant to subsection (1) and to the person's dependants, the visa officer may issue a visa to that person and to each of that person's accompanying dependants for the purpose of identifying the holder thereof as an immigrant or a visitor, as the case may be, who in the opinion of the visa officer, meets the requirements of this Act and the regulations. |
| [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. Rothstein J., in Kaur v. Minister of Employment and Immigration et al. (1995), 98 F.T.R. 91 (F.C.T.D.), at page 92 opined as follows: |
| Where documentation is properly sought by the visa officer and is not produced, the applicant cannot be granted admission, as she is a person who has not complied with a request lawfully made under the Immigration Act. |
| [. . .] |
| Thus, both the provincial and the federal authorities may examine the source of an applicant's funds, the former for the purpose of selection, and the latter for the purpose of admissibility. |
[12] Alternatively, the applicant raises the issue of procedural fairness. However, as stated by Muldoon J. in Asghar v. Minister of Citizenship and Immigration (August 21, 1997), IMM-2114-96, the duty of procedural fairness:
| . . . does not arise merely because the visa officer has not been convinced, after weighing the evidence, that the application is well-founded. The visa officer's task is precisely to weigh the evidence submitted by the applicant. |
[13] Having reviewed the tribunal record, concentrating on the visa officer's Computer Assisted Immigration Processing System notes and the BPA of the applicant, I am satisfied that the visa officer who conducted the interview assessed the record reasonably. It is clear in the present case that the visa officer exercised his discretion in good faith, based on the evidence and/or lack of evidence before him. There is no proof that the principles of natural justice have been violated, nor that considerations irrelevant or extraneous to the statutory purpose of the Act have been relied upon.
[14] For all the above reasons, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
December 7, 2000