Unsurprising, this has been going on for years and everyone involved in immigration knows that document fraud is rampant in Beijing. they should take these occupations off the list immediately, there are hardly any qualified candidates who use them and they are a magnet for fraudsters. the "cooks' have always been a visa problem, not only in Beijing, but also in New Delhi, as they are occupations easy to "document" through fraudulent means.
Fake Chinese chefs arriving in Ontario Canada News Toronto Sun
Fake Chinese chefs arriving in Ontario
By TOM GODFREY, Toronto Sun
Last Updated: March 9, 2011 5:54pm
Canadian Embassy officials in Beijing have turned up the heat on Chinese nationals posing as chefs to fraudulently obtain visas to enter Canada under a provincial work program.
The so-called Chinese dim sum and gourmet cooks use phoney letters they claim are from Canadian restaurants offering them a job because of their skill.
The letters are given to embassy officials to obtain a visa under a provincial nominee program since there is a demand for the cooks in Ontario.
Documents obtained through a Freedom of Information Act request by lawyer Richard Kurland show smugglers are abusing the program to slip people into Canada.
“Beijing has experienced a consistent incidence of fraud for cases submitted under the provincial nominee category,” said a report that was drafted by immigration official, Francesca Imperato.
The April 2010 “Fraud in the Provincial Nominee Program in Beijing” report said in 2009, about 129 cases were refused visas due to misrepresentation.
“The most common occupation where fraud was identified was that of cooks with a total of 36 fraudulent cases,” Imperato said.
The report said visa officers in Beijing were busy in 2009 by intercepting eight bogus welders, six fake electricians and three phoney business managers, many of whom had letters of employment promised by some Ontario firms that did not exist.
“In 2009 the misrepresentation was determined as a result of field investigations an or by telephone verifications,” the report said, adding the remaining fraudulent cases involved lower skilled occupations.
The immigration scam involving phoney chefs first surfaced in 1998 when Canadian Embassy staffers in Bejing began encountering a rash of fraudulent cooking certificates.
Many of the chefs arrive here and claim refugee status or head to the U.S., officials said.
Kurland said its about time Ottawa crack down on the illegal workers.
“Immigration officials can check a degree or diploma but they can’t check if someone is a dim sum chef,” Kurland said. “The workers are being given a heads up that the government is checking their documents.”
About 1,000 foreign workers are brought to work yearly in Ontario under the nominee program.
Canada also requires police officers, journalists, machinists, truck drivers, secretaries, dressmakers and accountants, according to the 2011 national occupations list.
Thursday, March 10, 2011
Tuesday, March 8, 2011
CONTRADICTIONS OBVIOUS IN SPONSORSHIP CASE
Somewhat humorous narrative, but the contradictions are transparent... Note also that the applicant is a failed refugee claimant who was ordered deported; she seems to have been in the country for several years claiming various status. These types of cases should be an example of why we need costs orders against those who just want to stall or engage in mulitple applications.
George v. Canada (Minister of Citizenship and Immigration)
Anthony Curtis George, appellant, and
Minister of Citizenship and Immigration, respondent
[2010] I.A.D.D. No. 980
[2010] D.S.A.I. no 980
No. TA8-12926
Immigration and Refugee Board of Canada
Immigration Appeal Division
Toronto, Ontario
Panel: Benjamin R. Dolin, D. Collison, S. J. Morris
Heard: March 30, 2010.
Decision: June 25, 2010.
(27 paras.)
_______________________________________
Sponsorship
Reasons for Decision
Introduction
1 These are the reasons for the decision in the appeal of Anthony Curtis GEORGE (the appellant) from the refusal of an application for a permanent resident visa made by Janine Francine DOYLE (the applicant). The appellant married the applicant in June 2007 and attempted to sponsor her as a member of the family class. The application was refused because a visa officer determined that the marriage is not genuine and was entered into primarily for the purpose of acquiring status under the Immigration and Refugee Protection Act (IRPA).
Issue and Decision
2 To succeed on appeal, the appellant must show either that the marriage is genuine or that it was not entered into for the purpose of the applicant gaining privilege under the Act; i.e., that section 4 of the Immigration and Refugee Protection Regulations (the Regulations) does not apply.
3 Having considered the evidence and submissions of the parties, I find that the appellant has not met his onus.
4 The appeal is dismissed.
Background
5 The applicant is a 30 year old citizen of St. Vincent and the Grenadines. She has two children: a son born in 1997, and a daughter born in 2000. Leaving her children with her mother, the applicant came to Canada as a visitor in December 2001. She applied to extend her stay in Canada, but was denied. She then claimed refugee status, indicating that she feared for her life in St. Vincent after having witnessed a drug deal. Her refugee claim was rejected and she was ordered to leave Canada in October 2002. She did not depart for some time.
6 The appellant is a 52 year old Canadian citizen. He is originally from Trinidad and Tobago. He claims to have met the applicant in 2002 when the applicant was employed by his sister as a nanny in Toronto. The appellant testified that in late 2003 they began a romantic relationship and dated for a number of years. He also indicated that on January 1, 2007 he proposed to the applicant.
7 At the time of the alleged proposal, there was an outstanding removal against the applicant. The appellant claimed to have been unaware of her immigration problems until they decided to marry. At some point in the spring of 2007, the applicant received a letter requesting that she attend a pre-removal interview. The appellant and applicant married in a small ceremony at Toronto City Hall on June 4, 2007. The applicant boarded a plane and departed Canada the next day.
8 When the appellant commenced a sponsorship application, the applicant was required to attend a visa post interview. Following the interview, a refusal letter was issued in which the visa officer enumerated the following concerns:
• - When asked about the development of their relationship, the applicant mostly spoke of her immigration history.
• - She demonstrated little knowledge of her sponsor.
• - Even though the appellant works as a professional photographer, there were hardly any photographs of the two from their claimed years of dating.
• - The applicant's immigration history and the fact that they married the day before she departed Canada suggests that she married the appellant simply to gain status in Canada.
9 The appellant, who was represented by counsel, testified at the de novo hearing. The applicant testified by teleconference. The appellant's mother, Joan George, and the appellant's friend and colleague, Alff Henry, also testified. Documentation was submitted, which included, inter alia, letters from friends and family, internet chat records, photographs and financial records.1 Having run out of hearing time, the appellant and respondent were invited to provide written submissions. The appellant's submissions were received April 13, 2010, the Minister's response was filed April 30, 2010, and a final reply was tendered by the appellant on May 7, 2010.
Analysis and Findings of Fact
10 Section 4 of the Regulations reads as follows:
• 4. Bad faith - For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner, a conjugal partner or an adopted child of a person if the marriage, common-law partnership, conjugal partnership or adoption is not genuine and was entered into primarily for the purpose of acquiring any status or privilege under the Act.
11 The test involved thus comprises two prongs. To succeed on appeal, the appellant must prove, on a balance of probabilities, either that the marriage to the applicant is genuine or that it was not entered into primarily for the purpose of acquiring status under the Immigration and Refugee Protection Act (IRPA). As confirmed by the Supreme Court of Canada in F.H. v. McDougall,2 the evidence must always be clear, convincing, and cogent in order to satisfy the balance of probabilities test.
The Appellant's Position
12 Counsel for the appellant submits that the visa officer over-emphasized the applicant's immigration history in reaching the conclusion that her marriage to the appellant is not bona fide. Counsel argues that the appellant's viva voce testimony was forthright and that there were no significant discrepancies, contradictions or inconsistencies. He provided a history of the development of their relationship. Although he could not recall certain specific dates and events, his evidence is supported by letters from family and friends, as well as the viva voce testimony of his mother.
The Minister's Position
13 The Minister characterizes the applicant's marriage to the appellant as a last ditch effort to obtain status in Canada after a series of immigration applications failed. Her application for a work permit was refused, her refugee claim was rejected and a Pre-Removal Risk Assessment was unsuccessful. Her decision to marry only came when removal was imminent. Counsel for the Minister further submits that neither the appellant nor applicant were credible witnesses as their evidence of a long dating history was inconsistent and implausible. The appellant's claim that he was not aware of the applicant's immigration history and had no knowledge of the basis of her refugee claim suggests that they did not have a close relationship and his inability to recall specific dates and milestones, such as their first sexual encounter, undermined his credibility.
14 In his written submissions, counsel for the Minister enumerates a number of other concerns, including:
• - The appellant is 22 years older than the applicant, and their testimony that the age difference was not an issue was not believable.
• - It is unreasonable that the appellant would propose marriage without first meeting the applicant's children.
• - The marriage was hastily planned and poorly attended.
Analysis
15 There exists a presumption in law that sworn testimony should be considered truthful, unless there is good reason to doubt its veracity.3 Inconsistency and implausibility may be taken into consideration in assessing the credibility of testimony, in addition to its rationality and common sense.4
16 In this appeal, there were a number of problematic areas, but I found two significant discrepancies to be particularly troublesome.
17 First of all, the appellant and applicant were both asked if they used birth control when the appellant visited St. Vincent in 2008. He testified that they did not, but she claimed they used both condoms and the pill. No explanation has been offered for this contradiction. (Indeed, it is not even mentioned in the written submissions of either counsel.) I might accept that the appellant did not know the applicant was on the pill, but for him to state that they did not use any birth control when she says he wore condoms clearly undermines their claim of a sexual relationship on that trip.
18 Secondly, the appellant testified that he first found out about the applicant's "immigration problems" in March or April of 2007 (i.e., after they had already decided to marry), but did not know about her refugee claim until after his sponsorship was refused and he saw the Appeal Record. At the time of the appeal hearing, the appellant claimed that he had still not spoken to the applicant about her refugee claim and was not aware what it was based upon. In contrast, the applicant testified that after they got engaged, she told him everything about her immigration situation, including her refugee claim. She could not recall the precise date, but confirmed that she told him about her refugee proceedings before she left Canada in June 2007.
19 The discrepancies identified by counsel for the Minister with respect to the history of their relationship were not, to my mind, as problematic. In the case Valverde v. Canada (Citizenship and Immigration), the court held that minor inconsistencies are to be expected in these types of cases. In that case, Justice Barnes recalled the Lerner and Loewe lyrics from the song "I Remember It Well", which suggests that marital memories can be fleeting:5
He: We met at nine
She: We met at eight
He: I was on time
She: No, you were late
He: Ah, yes, I remember it well...
20 That said, the contradictory evidence with respect to the use of contraceptives in 2008 and the appellant's knowledge of the applicant's refugee claim must be seen in a different light. It would be unreasonable for the appellant to forget that he used condoms during his last period of intimacy with the applicant. The most likely explanation for this discrepancy is that they did not, in fact, have sexual relations during that trip, which supports the Minister's contention that this is a union of convenience entered into by the appellant to help the applicant obtain status.
21 Their inconsistent testimony about when the appellant found out about the applicant's refugee claim was problematic from two angles. Apart from being a significant contradiction, it is inconsistent with a genuine relationship that the appellant would not share in this knowledge. Indeed, he seemed to have little interest in knowing about it at present, even though the applicant had claimed that her life might be in danger if she returned to her home country, and her rejected claim was an obvious concern for the visa officer who assessed the sponsorship.
22 In addition to the above, I also find that the appellant has failed to satisfactorily address the applicant's poor performance at the visa post interview. They did not dispute the accuracy of the CAIPS notes, which indicated that the applicant could provide little information about the development of their relationship and the appellant's employment, and she did not know his residential address. Also problematic was the applicant's explanation regarding the paucity of photographs of them together, despite the fact that the appellant is a professional photographer and their claim that they had dated for several years in Canada. The appellant claimed that he does not like to take photographs unless it is for his work, but when asked about photographs of them at events or activities in her Sponsored Spouse Questionnaire, the applicant indicated that the appellant "was always the photographer."6 The appellant's only explanation was that the applicant might have misunderstood the question being posed of her.
23 Finally, there was a discrepancy relating to when the applicant claimed to have accepted the appellant's proposal of marriage. At the visa post, she claimed that she did not accept until over a month later, on Valentine's Day.7 When asked in her Sponsored Spouse Questionnaire about celebrating the engagement, however, she indicated that they told everyone of their engagement on January 2.8 When asked about this contradiction, the applicant tried unconvincingly to suggest that although she agreed to marry him right away, she did not accept "wholeheartedly" until Valentine's Day. Her testimony in this regard made no sense whatsoever.
Conclusion
24 I did not find the appellant and applicant to be credible and do not accept as plausible the appellant's claims regarding his lack of knowledge of the applicant's immigration problems. When examined in the context of her immigration history and their hasty wedding, it seems more likely than not that the appellant agreed to marry the applicant to help her obtain status and that he is not being truthful about his knowledge of her past attempts to remain in Canada by whatever means possible.
25 I also note the Federal Court decision in Roopchand v. Canada (Citizenship and Immigration), [2007] FC 1108, where it was held, at paragraph 4:
• As a practical matter, a person's intent is not likely to be successfully tested by a grilling cross-examination designed to elicit an admission of fraud or dishonesty. Rather, in the usual case, the trier of fact will draw inferences from such things as inconsistent or contradictory statements made by the parties, the knowledge the parties have about each other and their shared history, the nature, frequency and content of communications between the parties, any financial support, and any previous attempt by the applicant spouse to gain admission to Canada.
26 Although reasonably well scripted, there are a number of clear inconsistencies that undermined their viva voce evidence. In these circumstances, the evidence of other family members and friends that they believe the relationship to be genuine is insufficient to establish that section 4 of the Regulations does not apply to this marriage.
27 The appeal is dismissed.
NOTICE OF DECISION
The appeal is dismissed.
"Benjamin R. Dolin"
"D. Collison"
"S. Morris"
25 June 2010
George v. Canada (Minister of Citizenship and Immigration)
Anthony Curtis George, appellant, and
Minister of Citizenship and Immigration, respondent
[2010] I.A.D.D. No. 980
[2010] D.S.A.I. no 980
No. TA8-12926
Immigration and Refugee Board of Canada
Immigration Appeal Division
Toronto, Ontario
Panel: Benjamin R. Dolin, D. Collison, S. J. Morris
Heard: March 30, 2010.
Decision: June 25, 2010.
(27 paras.)
_______________________________________
Sponsorship
Reasons for Decision
Introduction
1 These are the reasons for the decision in the appeal of Anthony Curtis GEORGE (the appellant) from the refusal of an application for a permanent resident visa made by Janine Francine DOYLE (the applicant). The appellant married the applicant in June 2007 and attempted to sponsor her as a member of the family class. The application was refused because a visa officer determined that the marriage is not genuine and was entered into primarily for the purpose of acquiring status under the Immigration and Refugee Protection Act (IRPA).
Issue and Decision
2 To succeed on appeal, the appellant must show either that the marriage is genuine or that it was not entered into for the purpose of the applicant gaining privilege under the Act; i.e., that section 4 of the Immigration and Refugee Protection Regulations (the Regulations) does not apply.
3 Having considered the evidence and submissions of the parties, I find that the appellant has not met his onus.
4 The appeal is dismissed.
Background
5 The applicant is a 30 year old citizen of St. Vincent and the Grenadines. She has two children: a son born in 1997, and a daughter born in 2000. Leaving her children with her mother, the applicant came to Canada as a visitor in December 2001. She applied to extend her stay in Canada, but was denied. She then claimed refugee status, indicating that she feared for her life in St. Vincent after having witnessed a drug deal. Her refugee claim was rejected and she was ordered to leave Canada in October 2002. She did not depart for some time.
6 The appellant is a 52 year old Canadian citizen. He is originally from Trinidad and Tobago. He claims to have met the applicant in 2002 when the applicant was employed by his sister as a nanny in Toronto. The appellant testified that in late 2003 they began a romantic relationship and dated for a number of years. He also indicated that on January 1, 2007 he proposed to the applicant.
7 At the time of the alleged proposal, there was an outstanding removal against the applicant. The appellant claimed to have been unaware of her immigration problems until they decided to marry. At some point in the spring of 2007, the applicant received a letter requesting that she attend a pre-removal interview. The appellant and applicant married in a small ceremony at Toronto City Hall on June 4, 2007. The applicant boarded a plane and departed Canada the next day.
8 When the appellant commenced a sponsorship application, the applicant was required to attend a visa post interview. Following the interview, a refusal letter was issued in which the visa officer enumerated the following concerns:
• - When asked about the development of their relationship, the applicant mostly spoke of her immigration history.
• - She demonstrated little knowledge of her sponsor.
• - Even though the appellant works as a professional photographer, there were hardly any photographs of the two from their claimed years of dating.
• - The applicant's immigration history and the fact that they married the day before she departed Canada suggests that she married the appellant simply to gain status in Canada.
9 The appellant, who was represented by counsel, testified at the de novo hearing. The applicant testified by teleconference. The appellant's mother, Joan George, and the appellant's friend and colleague, Alff Henry, also testified. Documentation was submitted, which included, inter alia, letters from friends and family, internet chat records, photographs and financial records.1 Having run out of hearing time, the appellant and respondent were invited to provide written submissions. The appellant's submissions were received April 13, 2010, the Minister's response was filed April 30, 2010, and a final reply was tendered by the appellant on May 7, 2010.
Analysis and Findings of Fact
10 Section 4 of the Regulations reads as follows:
• 4. Bad faith - For the purposes of these Regulations, a foreign national shall not be considered a spouse, a common-law partner, a conjugal partner or an adopted child of a person if the marriage, common-law partnership, conjugal partnership or adoption is not genuine and was entered into primarily for the purpose of acquiring any status or privilege under the Act.
11 The test involved thus comprises two prongs. To succeed on appeal, the appellant must prove, on a balance of probabilities, either that the marriage to the applicant is genuine or that it was not entered into primarily for the purpose of acquiring status under the Immigration and Refugee Protection Act (IRPA). As confirmed by the Supreme Court of Canada in F.H. v. McDougall,2 the evidence must always be clear, convincing, and cogent in order to satisfy the balance of probabilities test.
The Appellant's Position
12 Counsel for the appellant submits that the visa officer over-emphasized the applicant's immigration history in reaching the conclusion that her marriage to the appellant is not bona fide. Counsel argues that the appellant's viva voce testimony was forthright and that there were no significant discrepancies, contradictions or inconsistencies. He provided a history of the development of their relationship. Although he could not recall certain specific dates and events, his evidence is supported by letters from family and friends, as well as the viva voce testimony of his mother.
The Minister's Position
13 The Minister characterizes the applicant's marriage to the appellant as a last ditch effort to obtain status in Canada after a series of immigration applications failed. Her application for a work permit was refused, her refugee claim was rejected and a Pre-Removal Risk Assessment was unsuccessful. Her decision to marry only came when removal was imminent. Counsel for the Minister further submits that neither the appellant nor applicant were credible witnesses as their evidence of a long dating history was inconsistent and implausible. The appellant's claim that he was not aware of the applicant's immigration history and had no knowledge of the basis of her refugee claim suggests that they did not have a close relationship and his inability to recall specific dates and milestones, such as their first sexual encounter, undermined his credibility.
14 In his written submissions, counsel for the Minister enumerates a number of other concerns, including:
• - The appellant is 22 years older than the applicant, and their testimony that the age difference was not an issue was not believable.
• - It is unreasonable that the appellant would propose marriage without first meeting the applicant's children.
• - The marriage was hastily planned and poorly attended.
Analysis
15 There exists a presumption in law that sworn testimony should be considered truthful, unless there is good reason to doubt its veracity.3 Inconsistency and implausibility may be taken into consideration in assessing the credibility of testimony, in addition to its rationality and common sense.4
16 In this appeal, there were a number of problematic areas, but I found two significant discrepancies to be particularly troublesome.
17 First of all, the appellant and applicant were both asked if they used birth control when the appellant visited St. Vincent in 2008. He testified that they did not, but she claimed they used both condoms and the pill. No explanation has been offered for this contradiction. (Indeed, it is not even mentioned in the written submissions of either counsel.) I might accept that the appellant did not know the applicant was on the pill, but for him to state that they did not use any birth control when she says he wore condoms clearly undermines their claim of a sexual relationship on that trip.
18 Secondly, the appellant testified that he first found out about the applicant's "immigration problems" in March or April of 2007 (i.e., after they had already decided to marry), but did not know about her refugee claim until after his sponsorship was refused and he saw the Appeal Record. At the time of the appeal hearing, the appellant claimed that he had still not spoken to the applicant about her refugee claim and was not aware what it was based upon. In contrast, the applicant testified that after they got engaged, she told him everything about her immigration situation, including her refugee claim. She could not recall the precise date, but confirmed that she told him about her refugee proceedings before she left Canada in June 2007.
19 The discrepancies identified by counsel for the Minister with respect to the history of their relationship were not, to my mind, as problematic. In the case Valverde v. Canada (Citizenship and Immigration), the court held that minor inconsistencies are to be expected in these types of cases. In that case, Justice Barnes recalled the Lerner and Loewe lyrics from the song "I Remember It Well", which suggests that marital memories can be fleeting:5
He: We met at nine
She: We met at eight
He: I was on time
She: No, you were late
He: Ah, yes, I remember it well...
20 That said, the contradictory evidence with respect to the use of contraceptives in 2008 and the appellant's knowledge of the applicant's refugee claim must be seen in a different light. It would be unreasonable for the appellant to forget that he used condoms during his last period of intimacy with the applicant. The most likely explanation for this discrepancy is that they did not, in fact, have sexual relations during that trip, which supports the Minister's contention that this is a union of convenience entered into by the appellant to help the applicant obtain status.
21 Their inconsistent testimony about when the appellant found out about the applicant's refugee claim was problematic from two angles. Apart from being a significant contradiction, it is inconsistent with a genuine relationship that the appellant would not share in this knowledge. Indeed, he seemed to have little interest in knowing about it at present, even though the applicant had claimed that her life might be in danger if she returned to her home country, and her rejected claim was an obvious concern for the visa officer who assessed the sponsorship.
22 In addition to the above, I also find that the appellant has failed to satisfactorily address the applicant's poor performance at the visa post interview. They did not dispute the accuracy of the CAIPS notes, which indicated that the applicant could provide little information about the development of their relationship and the appellant's employment, and she did not know his residential address. Also problematic was the applicant's explanation regarding the paucity of photographs of them together, despite the fact that the appellant is a professional photographer and their claim that they had dated for several years in Canada. The appellant claimed that he does not like to take photographs unless it is for his work, but when asked about photographs of them at events or activities in her Sponsored Spouse Questionnaire, the applicant indicated that the appellant "was always the photographer."6 The appellant's only explanation was that the applicant might have misunderstood the question being posed of her.
23 Finally, there was a discrepancy relating to when the applicant claimed to have accepted the appellant's proposal of marriage. At the visa post, she claimed that she did not accept until over a month later, on Valentine's Day.7 When asked in her Sponsored Spouse Questionnaire about celebrating the engagement, however, she indicated that they told everyone of their engagement on January 2.8 When asked about this contradiction, the applicant tried unconvincingly to suggest that although she agreed to marry him right away, she did not accept "wholeheartedly" until Valentine's Day. Her testimony in this regard made no sense whatsoever.
Conclusion
24 I did not find the appellant and applicant to be credible and do not accept as plausible the appellant's claims regarding his lack of knowledge of the applicant's immigration problems. When examined in the context of her immigration history and their hasty wedding, it seems more likely than not that the appellant agreed to marry the applicant to help her obtain status and that he is not being truthful about his knowledge of her past attempts to remain in Canada by whatever means possible.
25 I also note the Federal Court decision in Roopchand v. Canada (Citizenship and Immigration), [2007] FC 1108, where it was held, at paragraph 4:
• As a practical matter, a person's intent is not likely to be successfully tested by a grilling cross-examination designed to elicit an admission of fraud or dishonesty. Rather, in the usual case, the trier of fact will draw inferences from such things as inconsistent or contradictory statements made by the parties, the knowledge the parties have about each other and their shared history, the nature, frequency and content of communications between the parties, any financial support, and any previous attempt by the applicant spouse to gain admission to Canada.
26 Although reasonably well scripted, there are a number of clear inconsistencies that undermined their viva voce evidence. In these circumstances, the evidence of other family members and friends that they believe the relationship to be genuine is insufficient to establish that section 4 of the Regulations does not apply to this marriage.
27 The appeal is dismissed.
NOTICE OF DECISION
The appeal is dismissed.
"Benjamin R. Dolin"
"D. Collison"
"S. Morris"
25 June 2010
Sunday, March 6, 2011
VISA FRAUD ON THE SPOTLIGHT IN SRI LANKA
See article below from a Sri Lankan major newspaper. The lesson from the article below: hire ONLY qualified, recognized lawyers specialized in immigration law. Many law Societies in Canada also grant the designation of "Certified Specialist" to their most qualified members. I hold that designation, and so do many of my colleagues.Why would anyone hire a risky "consultant" when they can hire a lawyer with qualifications and experience in the field?
With respect to the comment below attributed to the High Commissioner on the need to be represented, applicants must remember that representing themselves carry risks. As the old adage goes, "those who represent themselves have a fool for a client and a fool for a lawyer". If it were so easy to get a visa, why would there be so many immigration lawyers?
Good legal representation costs money, and generally you get what you pay for. Good representation is not simply filling out forms, but rather a thorough assessment of the applicant, his chances of successful migration, the appropriate visa category, and professional submissions. Those who want"help filling out forms" jeopardize their chances of success.
Watch Out For That (Visa) Fraud The Sunday Leader
Watch Out For That (Visa) Fraud
By Maryam Azwer
The Canadian High Commission last week warned the public against possible visa fraud through misleading advertisements by agents promising visas to Canada. People were being cheated out of large sums of money, the High Commission warned, by “unscrupulous operators” who gave the public false hopes.
These visa agents, or visa consultancy agents, are everywhere. Their little boards stick out among the sea of others along the Galle Road, their advertisements flood your daily newspapers and the internet.
When The Sunday Leader probed further into the matter, it was to discover that while these agents promise to make the tedious job of applying for a visa much easier, they will charge very high fees for it, and it does not necessarily mean that you will get that visa.
No matter what they say, or how much people pay, there is no guarantee whatsoever – no matter how legitimate their operations are (or how legitimate they say they are).
Speaking exclusively to The Sunday Leader, Canadian High Commissioner Bruce Levy explained that there were a variety of ways people could be misled into believing they can be guaranteed a visa.
The three most common examples, he said, were organisations claiming to be experts on Canadian visa applications, an educational institution or someone acting on behalf of an educational agency assuring visas if their courses are taken, and agencies offering work-related training that would help secure a visa.
“All of these efforts may well be legal,” said Levy, “but what we want to warn people against is that… at the end of the day they still have to go through a process. The fact that someone has taken a course ultimately won’t influence the decision.”
So Why Do They Use Agents?
For a variety of reasons. While some believe that it gives them a greater chance of obtaining a visa, others just need some help.
According to Aruna Samarasinghe, who heads the Supreme Lanka visa consultancy firm, most clients are unsure of how to get about the process of applying for a visa. Some need help to simply fill in their applications, he says.
“We usually charge around Rs.15,000 – 20,000, for those who are reapplying after being rejected. If they are applying for the first time, we charge a maximum of Rs. 10,000 and sometimes much less if they only need help filling in their forms,” said Samarasinghe, who also claims that most other agencies charge up to Rs. 50,000, perhaps more, for their services.
In the event of a visa rejection, he said, the firm did not offer a refund because they never guaranteed a visa in the first place.
CEO of The Visa Centre, Dale Rabot, too said that his firm did not offer clients guaranteed visas to, or employment in, countries like Canada. People nevertheless required the services of his firm, he claimed, because applying for a visa “is a highly complex business.”
Taking a smoother route through this “highly complex business” however, does not come cheap.
Rabot said his firm charged a professional fee of Rs. 115,000 which was refundable if the application was rejected, and an additional fee of Rs. 48,000 to be paid upon signing of the contract which he says is to cover expenses — and is non-refundable.
He also claimed that his clients were fully aware that The Visa Centre did not “guarantee nor influence the success or processing time of the client’s application.” However, he added that not all agencies played by the same rules.
“There are so many false advertisements around, and most Sri Lankans get caught to this. They also think that the higher the price they pay, the faster they can go,” said Rabot.
Need No Middleman
Commenting on the operations of these agencies, the Canadian High Commissioner said that Canada did recognise immigration consultants, and that agents listed with the Canadian Society of Immigration Consultants could be found on the website www.csis-scci.ca.
He added, however, that this did not mean the Canadian Government recommended these consultants.
“The process of applying for a visa does not require a third party to get involved,” said High Commissioner Levy.
“I do realise that sometimes paperwork and red-tape does seem daunting…[but] I would advise a person who is asked to pay a significant sum of money to look more closely. That should set off alarm bells.”
The consultants’ services, he said, may be legitimate, but “it crosses the line when they say that they can guarantee a visa, because they (applicants) cannot be guaranteed a visa.”
The issue also hurt Canada’s relationship with Sri Lanka, Levy said, when a visa was rejected.
The rejection, after all, came despite one’s belief that the agent with the attractive advertisement in the paper could actually help them, and instead left them with no visa and an empty wallet.
With respect to the comment below attributed to the High Commissioner on the need to be represented, applicants must remember that representing themselves carry risks. As the old adage goes, "those who represent themselves have a fool for a client and a fool for a lawyer". If it were so easy to get a visa, why would there be so many immigration lawyers?
Good legal representation costs money, and generally you get what you pay for. Good representation is not simply filling out forms, but rather a thorough assessment of the applicant, his chances of successful migration, the appropriate visa category, and professional submissions. Those who want"help filling out forms" jeopardize their chances of success.
Watch Out For That (Visa) Fraud The Sunday Leader
Watch Out For That (Visa) Fraud
By Maryam Azwer
The Canadian High Commission last week warned the public against possible visa fraud through misleading advertisements by agents promising visas to Canada. People were being cheated out of large sums of money, the High Commission warned, by “unscrupulous operators” who gave the public false hopes.
These visa agents, or visa consultancy agents, are everywhere. Their little boards stick out among the sea of others along the Galle Road, their advertisements flood your daily newspapers and the internet.
When The Sunday Leader probed further into the matter, it was to discover that while these agents promise to make the tedious job of applying for a visa much easier, they will charge very high fees for it, and it does not necessarily mean that you will get that visa.
No matter what they say, or how much people pay, there is no guarantee whatsoever – no matter how legitimate their operations are (or how legitimate they say they are).
Speaking exclusively to The Sunday Leader, Canadian High Commissioner Bruce Levy explained that there were a variety of ways people could be misled into believing they can be guaranteed a visa.
The three most common examples, he said, were organisations claiming to be experts on Canadian visa applications, an educational institution or someone acting on behalf of an educational agency assuring visas if their courses are taken, and agencies offering work-related training that would help secure a visa.
“All of these efforts may well be legal,” said Levy, “but what we want to warn people against is that… at the end of the day they still have to go through a process. The fact that someone has taken a course ultimately won’t influence the decision.”
So Why Do They Use Agents?
For a variety of reasons. While some believe that it gives them a greater chance of obtaining a visa, others just need some help.
According to Aruna Samarasinghe, who heads the Supreme Lanka visa consultancy firm, most clients are unsure of how to get about the process of applying for a visa. Some need help to simply fill in their applications, he says.
“We usually charge around Rs.15,000 – 20,000, for those who are reapplying after being rejected. If they are applying for the first time, we charge a maximum of Rs. 10,000 and sometimes much less if they only need help filling in their forms,” said Samarasinghe, who also claims that most other agencies charge up to Rs. 50,000, perhaps more, for their services.
In the event of a visa rejection, he said, the firm did not offer a refund because they never guaranteed a visa in the first place.
CEO of The Visa Centre, Dale Rabot, too said that his firm did not offer clients guaranteed visas to, or employment in, countries like Canada. People nevertheless required the services of his firm, he claimed, because applying for a visa “is a highly complex business.”
Taking a smoother route through this “highly complex business” however, does not come cheap.
Rabot said his firm charged a professional fee of Rs. 115,000 which was refundable if the application was rejected, and an additional fee of Rs. 48,000 to be paid upon signing of the contract which he says is to cover expenses — and is non-refundable.
He also claimed that his clients were fully aware that The Visa Centre did not “guarantee nor influence the success or processing time of the client’s application.” However, he added that not all agencies played by the same rules.
“There are so many false advertisements around, and most Sri Lankans get caught to this. They also think that the higher the price they pay, the faster they can go,” said Rabot.
Need No Middleman
Commenting on the operations of these agencies, the Canadian High Commissioner said that Canada did recognise immigration consultants, and that agents listed with the Canadian Society of Immigration Consultants could be found on the website www.csis-scci.ca.
He added, however, that this did not mean the Canadian Government recommended these consultants.
“The process of applying for a visa does not require a third party to get involved,” said High Commissioner Levy.
“I do realise that sometimes paperwork and red-tape does seem daunting…[but] I would advise a person who is asked to pay a significant sum of money to look more closely. That should set off alarm bells.”
The consultants’ services, he said, may be legitimate, but “it crosses the line when they say that they can guarantee a visa, because they (applicants) cannot be guaranteed a visa.”
The issue also hurt Canada’s relationship with Sri Lanka, Levy said, when a visa was rejected.
The rejection, after all, came despite one’s belief that the agent with the attractive advertisement in the paper could actually help them, and instead left them with no visa and an empty wallet.
Saturday, March 5, 2011
MASSIVE IMMIGRATION CONSULTANT FRAUD INVESTIGATION MAY BE GROWING
More than 1000 applicants appear to be involved in residency and citizenship scam. This is massive, probably the largest immigration fraudulent scheme ever reported. I am sure that there are a lot of nervous people out there today....
Applicants are cautioned to engage only reputable lawyers with a recognized track record to handle their applications, and to shun those who make promises or offer to assist applicants to present false information to obtain a benefit though misrepresentation or fraudulent means.
More charges may come in immigration fraud case - Nova Scotia - CBC News
March 4, 2011
More charges may come in immigration fraud case
By CBC News
A Halifax-based immigration consultant accused of fraud in helping foreign nationals obtain Canadian citizenship could soon face additional charges.
A Halifax-based immigration consultant accused of fraud in helping foreign nationals obtain Canadian citizenship could soon face additional charges.
Hassan Al-Awaid of Bedford did not appear in court Friday morning as scheduled to face the 53 counts under various immigration laws.
Crown Prosecutor Tim McLaughlin said Friday that the sheer volume of paperwork means it could be many months before a Halifax man charged with helping foreign nationals fraudulently become Canadian residents and citizens enters a plea
Hassan Al-Awaid, 57, is the president of Canadian Commercial Group, a company offering help to immigrants. He faces 53 charges, including 22 counts of counselling/misrepresentation, 22 counts of misrepresentation, and nine counts of false representation under the Citizenship Act.
"The initial seizure was a room 20 by 40 full of documents," said McLaughlin of the files the RCMP found.
The RCMP investigation into 1,100 files of fraudulent residency and Canadian citizenship began four years ago after the group that regulates immigration consultants stripped Al-Awaid of his license.
He's accused of advising foreigners to apply for passports claiming they lived in Canada when they did not. That number is likely to grow according to RCMP.
"We're looking very closely at each and every one of those 1,100 files. Where it's established that residency has not been met or has been obtained fraudulently, those people will not receive their citizenship," said Jon Stone, director of communications for Citizenship and Immigration.
Stone said at least 100 of those files look suspicious and most of the applicants are living outside Canada, some of whom will have their citizenship revoked.
Al-Awaid has dual citizenship-the RCMP don't consider him a flight risk and have returned his passports.
"It's anybody guess why anybody would do this, but Canadian citizenship is a very valuable commodity," said Stone.
Immigration Minister Jason Kenney said Wednesday that Ottawa has zero tolerance for immigration fraud.
In a statement, Kenney said Ottawa would use the full strength of Canadian law to track down immigrants who obtained their citizenship papers with false documents and where evidence permits will revoke their citizenship.
Kenney, commenting on the Al-Awaid case, said Canadian citizenship is not something to be bought and sold by crooked consultants.
If found guilty, Al-Awaid could face a fine and up to five years in jail.
Applicants are cautioned to engage only reputable lawyers with a recognized track record to handle their applications, and to shun those who make promises or offer to assist applicants to present false information to obtain a benefit though misrepresentation or fraudulent means.
More charges may come in immigration fraud case - Nova Scotia - CBC News
March 4, 2011
More charges may come in immigration fraud case
By CBC News
A Halifax-based immigration consultant accused of fraud in helping foreign nationals obtain Canadian citizenship could soon face additional charges.
A Halifax-based immigration consultant accused of fraud in helping foreign nationals obtain Canadian citizenship could soon face additional charges.
Hassan Al-Awaid of Bedford did not appear in court Friday morning as scheduled to face the 53 counts under various immigration laws.
Crown Prosecutor Tim McLaughlin said Friday that the sheer volume of paperwork means it could be many months before a Halifax man charged with helping foreign nationals fraudulently become Canadian residents and citizens enters a plea
Hassan Al-Awaid, 57, is the president of Canadian Commercial Group, a company offering help to immigrants. He faces 53 charges, including 22 counts of counselling/misrepresentation, 22 counts of misrepresentation, and nine counts of false representation under the Citizenship Act.
"The initial seizure was a room 20 by 40 full of documents," said McLaughlin of the files the RCMP found.
The RCMP investigation into 1,100 files of fraudulent residency and Canadian citizenship began four years ago after the group that regulates immigration consultants stripped Al-Awaid of his license.
He's accused of advising foreigners to apply for passports claiming they lived in Canada when they did not. That number is likely to grow according to RCMP.
"We're looking very closely at each and every one of those 1,100 files. Where it's established that residency has not been met or has been obtained fraudulently, those people will not receive their citizenship," said Jon Stone, director of communications for Citizenship and Immigration.
Stone said at least 100 of those files look suspicious and most of the applicants are living outside Canada, some of whom will have their citizenship revoked.
Al-Awaid has dual citizenship-the RCMP don't consider him a flight risk and have returned his passports.
"It's anybody guess why anybody would do this, but Canadian citizenship is a very valuable commodity," said Stone.
Immigration Minister Jason Kenney said Wednesday that Ottawa has zero tolerance for immigration fraud.
In a statement, Kenney said Ottawa would use the full strength of Canadian law to track down immigrants who obtained their citizenship papers with false documents and where evidence permits will revoke their citizenship.
Kenney, commenting on the Al-Awaid case, said Canadian citizenship is not something to be bought and sold by crooked consultants.
If found guilty, Al-Awaid could face a fine and up to five years in jail.
Thursday, March 3, 2011
SURROGACY NOT ENOUGH TO OBTAIN VISA
This is perhaps one of the most unusual cases I have ever read: an applicant argues that she must come to Canada to serve as a surrogate for her sister. The visa officer concluded that she may not leave Canada at the end of her visit and refused the application. The court upheld the refusal. You really do not see cases like this every day...
Donkor v. Canada (Minister of Citizenship and Immigration)
Between
Monica Donkor, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2011] F.C.J. No. 165
2011 FC 141
Docket IMM-2426-10
Federal Court
Toronto, Ontario
Rennie J.
Heard: January 24, 2011.
Judgment: February 8, 2011.
(15 paras.)
________________________________________
REASONS FOR JUDGMENT AND JUDGMENT
1 RENNIE J.:-- This is an application to quash a decision dated March 4, 2010 of a Visa Officer at the High Commission in Accra, Ghana, denying the applicant's application for a Temporary Resident Visa (TRV). The applicant sought to come to Canada to serve as the surrogate mother for her sister's child. The visa request was denied on the basis that the Officer was not satisfied that the applicant would leave Canada at the end of her stay in Canada. The applicant seeks to set aside the decision and have the matter remitted to another visa officer for consideration. The standard of review of this decision is reasonableness, which can only be assessed if the decision is first situated in the legislative, regulatory and policy context in which it is taken.
2 At law, a foreign national seeking to enter Canada is considered to be an immigrant. In consequence, the law imposes an obligation on the foreign national seeking to enter Canada for a period of temporary residence to establish that they will leave Canada by the end of the period authorized for their stay. The Immigration and Refugee Protection Act (IRPA) provides:
• 11.(1) A foreign national must before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act.
• 20. (1) Every foreign national, other than a foreign national referred to in section 19, who seeks to enter or remain in Canada must establish,
• [...]
• b) to become a temporary resident, that they hold the visa or other document required under the regulations and will leave Canada by the end of the period authorized for their stay. [Emphasis added]
* * *
• 11.(1) L'étranger doit, préalablement à son entrée au Canada, demander à l'agent les visa et autres documents requis par règlement. L'agent peut les délivrer sur preuve, à la suite d'un contrôle, que l'étranger n'est pas interdit de territoire et se conforme à la présente loi.
• 20. (1) L'étranger non visé à l'article 19 qui cherche à entrer au Canada ou à y séjourner est tenu de prouver :
• [...]
• b) pour devenir un résident temporaire, qu'il détient les visa ou autres documents requis par règlement et aura quitté le Canada à la fin de la période de séjour autorisée. [Notre soulignement]
3 The IRPA Regulations, SOR 2002-207, s. 179 states that a visa officer shall issue a TRV to a foreign national if, following an examination, it is established that the foreign national will leave Canada by the end of their stay. Operational guidance is given to visa officers in the Temporary Residence Manual (OP11) which indicates that in assessing an application an officer is to have regard to specific areas of concern including the purpose of the trip, its duration, the extent of family ties in Canada, ties to the country of residence, means of support in Canada, ability to leave Canada, whether the applicant intends to study or work in Canada, prior travel history and the existence of any serious medical condition.
4 In the decision of March 4, 2010 the Visa Officer concluded that he was not satisfied that the applicant would leave Canada at the end of her stay as a temporary resident. In reaching this decision, the Officer noted, in particular, the applicant's travel history, family ties in Canada and in her country of residence, her limited employment prospects in her country of residence, and her personal assets and financial status. Nor was the Officer satisfied that the applicant had sufficient funds, including income or assets, to carry out her stated purpose in going to Canada or to maintain herself while in Canada and to affect her departure.
5 The Visa Officer also concluded that the applicant had limited establishment in Ghana. The Computer Assisted Immigration Processing System (CAIPS) notes of the interview indicate that the applicant was not married, had no children and did not own a home. She lived with her sister and her brother-in-law in a house which was owned by her brother-in-law and worked in her sister's clothing store in Accra. The applicant had modest financial assets and limited employment prospects. The Officer put his concerns to the applicant directly:
• You are single, have no children, you do not own any assets, you have very limited funds - These factors do not satisfy me that you have strong ties to Ghana...
• My sister and her husband wants a child. That is why I am going.
• You are the applicant so you need to satisfy me that you would leave Canada by the end of the period authorized for your stay.
• I am going because of my sister and her husband. I am not going to remain in Canada.
• [...]
• I am refusing your application because I am not satisfied that you have strong ties to Ghana and that you will leave Canada by the end of the period authorized for your stay.
• If we are talking in terms of money and property then I don't have. If we are talking in terms of myself. I know I will come back.
6 The Visa Officer, on the evidence before him, had reason to be cautious. Several of the objective criteria or indicia which the Officer was directed by statute to consider were reasonably triggered by the applicant's evidence.
7 To be weighed in the balance, however, was the applicant's assertion that she would return to Ghana and that the sole purpose of her trip was to serve as the surrogate mother for her sister's child. As well, while the statutory scheme did not allow for the posting of a bond, the applicant's sister and husband had offered to do so as further assurance that the applicant would return to Ghana after the birth of the child. The record also contains medical evidence as to the applicant's ability to have children and statutory declarations by the Canadian sister as to the purpose of the trip and her ability to support her sister when in Canada. The applicant's sister and husband are well established in Canada, are employed respectively as a nurse and pharmacist and earn substantial income.
8 It is in this context that counsel for the applicant contends that the decision is unreasonable. He argues, forcefully, that the Visa Officer did not presume good faith and had no basis to doubt the legitimacy of the purpose of the trip or the applicant's statement that she would return. Counsel also argues that reliance on the absence of travel history was unreasonable, as everyone has to make their first trip.
9 Travel history is a relevant consideration and can be a positive consideration when an applicant demonstrates a history of leaving and returning to their country of residence. However, in this case, it could not be a positive factor that weighed in the applicant's favour, or support the applicant in satisfying the onus that the legislation places on her. It would be, at best, neutral. Indeed, the CAIPS notes do not indicate that the lack of travel history was a significant factor in the Officer's consideration.
10 With respect to the Officer's treatment of financial considerations, I accept that the issuance of a visitor's visa should not be limited to only individuals of means. However, the absence of any significant financial ties to her country of residence was clearly a relevant, and objective factor which the Visa Officer was obligated to take into account; Duong v Canada (Minister of Citizenship and Immigration) 2003 FC 834.
11 With respect to the consideration of family ties and establishment that would support the conclusion that the applicant would return to Ghana, the Visa Officer also had before him evidence that the applicant had three sisters and a father living in Ghana. Apart from their existence, and her relationship with the sister with whom she lived, there was no indication whatsoever as to the nature and extent of her relationship with her family in Ghana. All the Officer knew, on the information before him, was that the applicant was prepared to leave them from a period of 18 months, the projected length of the surrogacy. In contrast, the Visa Officer had before him, in the form of affidavits, statutory declarations and the interview with the applicant, clear evidence that the applicant was very close to her Canadian sister. This could be presumed from the proposed surrogacy arrangement.
12 The applicant contends that the Visa Officer ignored the purpose of the visit and that if the Officer had regard to the legitimate reasons which underlie its purpose, he would not have rejected the application. The decision, however, does not indicate that the Visa Officer rejected the application because of its purpose. The "purpose of visit" was not checked as a factor of concern. Similarly, the Visa Officer noted the statutory declaration, the letters provided by the doctor and the proposed bond.
13 The legislation requires that the applicant discharge the onus on her to establish that she would return to her country of residence. The altruism or bona fides of the purpose for coming to Canada does not translate into positive factors which would necessarily satisfy an officer that the applicant would return to her county of origin or otherwise displace relevant countervailing concerns. The allegation that the Officer presumed bad faith on the part of the applicant fails for the same reason. The Visa Officer is under a duty to be satisfied that the applicant will return to her country of origin and the onus is on the applicant to satisfy the officer to that effect. The Visa Officer did not assume or discount the bona fides of the purpose of the trip or make any assumptions. The record indicates that he relied solely on the evidence before him.
14 This Court, as a reviewing Court, cannot substitute its own appreciation of the evidence for that of the decision maker or substitute its view of the appropriate solution or remedy; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, para. 29. Here, the Officer considered all of the relevant factors and took no irrelevant factors into account. The decision falls within the range of possible acceptable outcomes that are defensible in respect of the law and the facts before the Officer. For these reasons, the application will be dismissed.
15 No question of general importance was put forward for certification, and none will be certified.
JUDGMENT
THIS COURT'S JUDGMENT is that the application for judicial review be and is hereby dismissed. No question for certification has been proposed and none arises.
RENNIE J.
Donkor v. Canada (Minister of Citizenship and Immigration)
Between
Monica Donkor, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2011] F.C.J. No. 165
2011 FC 141
Docket IMM-2426-10
Federal Court
Toronto, Ontario
Rennie J.
Heard: January 24, 2011.
Judgment: February 8, 2011.
(15 paras.)
________________________________________
REASONS FOR JUDGMENT AND JUDGMENT
1 RENNIE J.:-- This is an application to quash a decision dated March 4, 2010 of a Visa Officer at the High Commission in Accra, Ghana, denying the applicant's application for a Temporary Resident Visa (TRV). The applicant sought to come to Canada to serve as the surrogate mother for her sister's child. The visa request was denied on the basis that the Officer was not satisfied that the applicant would leave Canada at the end of her stay in Canada. The applicant seeks to set aside the decision and have the matter remitted to another visa officer for consideration. The standard of review of this decision is reasonableness, which can only be assessed if the decision is first situated in the legislative, regulatory and policy context in which it is taken.
2 At law, a foreign national seeking to enter Canada is considered to be an immigrant. In consequence, the law imposes an obligation on the foreign national seeking to enter Canada for a period of temporary residence to establish that they will leave Canada by the end of the period authorized for their stay. The Immigration and Refugee Protection Act (IRPA) provides:
• 11.(1) A foreign national must before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act.
• 20. (1) Every foreign national, other than a foreign national referred to in section 19, who seeks to enter or remain in Canada must establish,
• [...]
• b) to become a temporary resident, that they hold the visa or other document required under the regulations and will leave Canada by the end of the period authorized for their stay. [Emphasis added]
* * *
• 11.(1) L'étranger doit, préalablement à son entrée au Canada, demander à l'agent les visa et autres documents requis par règlement. L'agent peut les délivrer sur preuve, à la suite d'un contrôle, que l'étranger n'est pas interdit de territoire et se conforme à la présente loi.
• 20. (1) L'étranger non visé à l'article 19 qui cherche à entrer au Canada ou à y séjourner est tenu de prouver :
• [...]
• b) pour devenir un résident temporaire, qu'il détient les visa ou autres documents requis par règlement et aura quitté le Canada à la fin de la période de séjour autorisée. [Notre soulignement]
3 The IRPA Regulations, SOR 2002-207, s. 179 states that a visa officer shall issue a TRV to a foreign national if, following an examination, it is established that the foreign national will leave Canada by the end of their stay. Operational guidance is given to visa officers in the Temporary Residence Manual (OP11) which indicates that in assessing an application an officer is to have regard to specific areas of concern including the purpose of the trip, its duration, the extent of family ties in Canada, ties to the country of residence, means of support in Canada, ability to leave Canada, whether the applicant intends to study or work in Canada, prior travel history and the existence of any serious medical condition.
4 In the decision of March 4, 2010 the Visa Officer concluded that he was not satisfied that the applicant would leave Canada at the end of her stay as a temporary resident. In reaching this decision, the Officer noted, in particular, the applicant's travel history, family ties in Canada and in her country of residence, her limited employment prospects in her country of residence, and her personal assets and financial status. Nor was the Officer satisfied that the applicant had sufficient funds, including income or assets, to carry out her stated purpose in going to Canada or to maintain herself while in Canada and to affect her departure.
5 The Visa Officer also concluded that the applicant had limited establishment in Ghana. The Computer Assisted Immigration Processing System (CAIPS) notes of the interview indicate that the applicant was not married, had no children and did not own a home. She lived with her sister and her brother-in-law in a house which was owned by her brother-in-law and worked in her sister's clothing store in Accra. The applicant had modest financial assets and limited employment prospects. The Officer put his concerns to the applicant directly:
• You are single, have no children, you do not own any assets, you have very limited funds - These factors do not satisfy me that you have strong ties to Ghana...
• My sister and her husband wants a child. That is why I am going.
• You are the applicant so you need to satisfy me that you would leave Canada by the end of the period authorized for your stay.
• I am going because of my sister and her husband. I am not going to remain in Canada.
• [...]
• I am refusing your application because I am not satisfied that you have strong ties to Ghana and that you will leave Canada by the end of the period authorized for your stay.
• If we are talking in terms of money and property then I don't have. If we are talking in terms of myself. I know I will come back.
6 The Visa Officer, on the evidence before him, had reason to be cautious. Several of the objective criteria or indicia which the Officer was directed by statute to consider were reasonably triggered by the applicant's evidence.
7 To be weighed in the balance, however, was the applicant's assertion that she would return to Ghana and that the sole purpose of her trip was to serve as the surrogate mother for her sister's child. As well, while the statutory scheme did not allow for the posting of a bond, the applicant's sister and husband had offered to do so as further assurance that the applicant would return to Ghana after the birth of the child. The record also contains medical evidence as to the applicant's ability to have children and statutory declarations by the Canadian sister as to the purpose of the trip and her ability to support her sister when in Canada. The applicant's sister and husband are well established in Canada, are employed respectively as a nurse and pharmacist and earn substantial income.
8 It is in this context that counsel for the applicant contends that the decision is unreasonable. He argues, forcefully, that the Visa Officer did not presume good faith and had no basis to doubt the legitimacy of the purpose of the trip or the applicant's statement that she would return. Counsel also argues that reliance on the absence of travel history was unreasonable, as everyone has to make their first trip.
9 Travel history is a relevant consideration and can be a positive consideration when an applicant demonstrates a history of leaving and returning to their country of residence. However, in this case, it could not be a positive factor that weighed in the applicant's favour, or support the applicant in satisfying the onus that the legislation places on her. It would be, at best, neutral. Indeed, the CAIPS notes do not indicate that the lack of travel history was a significant factor in the Officer's consideration.
10 With respect to the Officer's treatment of financial considerations, I accept that the issuance of a visitor's visa should not be limited to only individuals of means. However, the absence of any significant financial ties to her country of residence was clearly a relevant, and objective factor which the Visa Officer was obligated to take into account; Duong v Canada (Minister of Citizenship and Immigration) 2003 FC 834.
11 With respect to the consideration of family ties and establishment that would support the conclusion that the applicant would return to Ghana, the Visa Officer also had before him evidence that the applicant had three sisters and a father living in Ghana. Apart from their existence, and her relationship with the sister with whom she lived, there was no indication whatsoever as to the nature and extent of her relationship with her family in Ghana. All the Officer knew, on the information before him, was that the applicant was prepared to leave them from a period of 18 months, the projected length of the surrogacy. In contrast, the Visa Officer had before him, in the form of affidavits, statutory declarations and the interview with the applicant, clear evidence that the applicant was very close to her Canadian sister. This could be presumed from the proposed surrogacy arrangement.
12 The applicant contends that the Visa Officer ignored the purpose of the visit and that if the Officer had regard to the legitimate reasons which underlie its purpose, he would not have rejected the application. The decision, however, does not indicate that the Visa Officer rejected the application because of its purpose. The "purpose of visit" was not checked as a factor of concern. Similarly, the Visa Officer noted the statutory declaration, the letters provided by the doctor and the proposed bond.
13 The legislation requires that the applicant discharge the onus on her to establish that she would return to her country of residence. The altruism or bona fides of the purpose for coming to Canada does not translate into positive factors which would necessarily satisfy an officer that the applicant would return to her county of origin or otherwise displace relevant countervailing concerns. The allegation that the Officer presumed bad faith on the part of the applicant fails for the same reason. The Visa Officer is under a duty to be satisfied that the applicant will return to her country of origin and the onus is on the applicant to satisfy the officer to that effect. The Visa Officer did not assume or discount the bona fides of the purpose of the trip or make any assumptions. The record indicates that he relied solely on the evidence before him.
14 This Court, as a reviewing Court, cannot substitute its own appreciation of the evidence for that of the decision maker or substitute its view of the appropriate solution or remedy; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, para. 29. Here, the Officer considered all of the relevant factors and took no irrelevant factors into account. The decision falls within the range of possible acceptable outcomes that are defensible in respect of the law and the facts before the Officer. For these reasons, the application will be dismissed.
15 No question of general importance was put forward for certification, and none will be certified.
JUDGMENT
THIS COURT'S JUDGMENT is that the application for judicial review be and is hereby dismissed. No question for certification has been proposed and none arises.
RENNIE J.
INVESTOR MUST PROVIDE FULL DISCLOSURE OF SOURCE OF FUNDS
In this Investor Class case, the visa officer requested further information from an applicant regarding the nature of a loan made by a family member. the court held that the information was reasonably required and that the visa officer did not need the suspicion of criminal activity before requiring the information. Failure to satisfy the visa officer resulted in refusal of the application.
Sun v. Canada (Minister of Citizenship and Immigration)
Between Shu Liang Sun, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2011] F.C.J. No. 166
2011 FC 142
Docket IMM-3554-10
Federal Court
Vancouver, British Columbia
Noël J.
Heard: February 2, 2011.
Judgment: February 9, 2011.
(18 paras.)
_____________________________________
REASONS FOR JUDGMENT AND JUDGMENT
1 NOËL J.:-- The present Reasons for Judgment and Judgment pertain to a decision from Visa Officer Chung, from the Canadian consulate in Hong Kong, refusing to grant the Applicant status as a permanent resident in the Investor Class under the provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"). Leave was granted by Justice Mosley on November 3, 2010.
2 The Visa Officer received Mr. Sun's application for Permanent Residence under the Investor Class on April 11, 2007. On October 13, 2008, the Visa Officer sent an email to the Applicant's immigration consultant asking that supporting documents and the application be submitted by February 10, 2009. This deadline was extended to May 18, 2009. The full application was received on May 11, 2009. Concerned about the source of Mr. Sun's funds, more particularly the loan from his brother-in-law Mr. Li, the Visa Officer sent a letter on March 11, 2010 (the "fairness letter"), outlining the concerns about the absence of sufficient and substantiated proof of the origin of the seed capital borrowed from Mr. Li. The Applicant was given thirty (30) days to respond to this letter, which he did. The Visa Officer was not satisfied with the additional evidence put forth by the Applicant and rejected his permanent residency application, on the grounds that the legality of the source of Mr. Sun's funds was not ascertained.
The Applicable Law
3 The Immigration and Refugee Protection Regulations, SOR 2002/227 ("IRPR") set out various criteria to meet the Investor Class category for Permanent Residency. Generally, section 90 states the following:
• Members of the class
• 90. (1) For the purposes of subsection 12(2) of the Act, the investor class is hereby prescribed as a class of persons who may become permanent residents on the basis of their ability to become economically established in Canada and who are investors within the meaning of subsection 88(1).
• Minimal requirements
• (2) If a foreign national who makes an application as a member of the investor class is not an investor within the meaning of subsection 88(1), the application shall be refused and no further assessment is required.
* * *
• Qualité
• 90. (1) Pour l'application du paragraphe 12(2) de la Loi, la catégorie des investisseurs est une catégorie réglementaire de personnes qui peuvent devenir résidents permanents du fait de leur capacité à réussir leur établissement économique au Canada et qui sont des investisseurs au sens du paragraphe 88(1).
• Exigences minimales
• (2) Si le demandeur au titre de la catégorie des investisseurs n'est pas un investisseur au sens du paragraphe 88(1), l'agent met fin à l'examen de la demande et la rejette.
4 As indicated, section 88 of the IRPR indicates what the Investor Class consists of. More precisely, at issue was the requirement provided by the definition of "investor" that the Applicant was required to show he had "legally obtained" a net worth of at least $800,000. To meet this burden, section 10(1)(c) of the IRPR provides the following:
• Form and content of application
• 10. (1) Subject to paragraphs 28(b) to (d), an application under these Regulations shall
• (...)
• (c) include all information and documents required by these Regulations, as well as any other evidence required by the Act;
* * *
• Forme et contenu de la demande
• 10. (1) Sous réserve des alinéas 28b) à d), toute demande au titre du présent règlement :
• (...)
• c) comporte les renseignements et documents exigés par le présent règlement et est accompagnée des autres pièces justificatives exigées par la Loi;
5 This requirement is complemented by the following provisions of IRPA:
• Examination by officer
• 15. (1) An officer is authorized to proceed with an examination where a person makes an application to the officer in accordance with this Act.
• Obligation -- answer truthfully
• 16. (1) A person who makes an application must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires.
* * *
• Pouvoir de l'agent
• 15. (1) L'agent peut procéder à un contrôle dans le cadre de toute demande qui lui est faite au titre de la présente loi.
• Obligation du demandeur
• 16. (1) L'auteur d'une demande au titre de la présente loi doit répondre véridiquement aux questions qui lui sont posées lors du contrôle, donner les renseignements et tous éléments de preuve pertinents et présenter les visa et documents requis.
6 Hence, the burden is on the Applicant to provide the evidence to establish that his net worth of at least $800,000 was "legally obtained".
The Standard of Review
7 The core issue put forth by the Applicant is that of the Visa Officer's appreciation of the evidence put forth by the Applicant in regards to the source of his funds. The Applicant hints that this is a procedural fairness question to be reviewed on the standard of correctness, as it is argued that the fairness letter sent was not clear enough to give the Applicant a reasonable opportunity to respond to the concerns. Furthermore, it is argued that there was no evidence that the funds were obtained illegally, making the Visa Officer's concerns unreasonable. Also, it is said that the Visa Officer did not meaningfully address the evidence submitted in response to the fairness letter.
8 As a fairness letter was sent and the Applicant responded to it, there is nothing to suggest a breach of procedural fairness. As will be seen, the content of the fairness letter was clear.
9 It is clear that the issue arising is one of the Visa Officer's assessment of the evidence put forward by the Applicant. It is reviewable under the standard of reasonableness, as it is a determination of fact and law (Dunsmuir v. New Brunswick, 2008 SCC 9). Although not stated explicitly, the reasonableness standard was adopted by Justice Zinn in Vassan v. Canada (Citizenship and Immigration), 2009 FC 1049.
The Fairness Letter
10 The Visa Officer's fairness letter is argued to have been unclear in regards to what information needed to be put forward to satisfy the "legality" requirement to meet the Investor Class requirements. It is thus relevant to reproduce the relevant elements of this letter in order to address the Applicant's argument in regards to its clarity and assuage concerns about procedural fairness:
• This is to advise you of my serious concern that you do not appear to qualify for selection as an investor. In order to qualify under the investor class for immigration to Canada you must identify all assets and liabilities, which make up your personal net worth, and satisfy an officer as to the source of your funds and assets, including demonstrating that they were legally obtained.
• Based on the documentation you have submitted, I am concerned that you have not sufficiently demonstrated the source of your funds or that they have been legally obtained and that you are not inadmissible. I would like to remind you that the onus is on you, the applicant, to demonstrate when you obtained your funds, how they were obtained, the source and method of transfer, and that all the taxation and other applicable laws were complied with. Specifically, you appeared to have borrowed RMB 1,9 million yuan from your brother-in-law, Li Qiu Bin, in 1998 to set up your business. Hence, you failed to present sufficient and substantiated proof for the origin of your seed capital. [emphasis added]
11 It is clear that this letter sets out the Visa Officer's concerns with Mr. Sun's application. Basically, more detail was sought on the loan given by Mr. Li, his brother-in-law. The letter indicates particular aspects of this loan: how funds were obtained, source and method of transfer, taxation and legal requirements met. As Mr. Sun brought forth evidence to answer these concerns, it is thus clear that procedural fairness was not breached. The Visa Officer did not make a determination before the Applicant's response was received, as the CAIPS notes indicate. Hence, the Applicant fails in his argument that there was a breach of procedural fairness or that the letter was unclear. In this respect, the findings are very similar to those made in Li v. Canada (Minister of Citizenship and Immigration), 2006 FC 599. Further, the Applicant's submissions did not present any information or documentation supporting his argument that the fairness letter was imprecise or unclear, other than stating that "what is absent in this request is a specific request for the source of the money that was loaned by Mr. Li to the applicant" and that it was unclear that what was sought was the source of Mr. Li's funds.
12 Section 16(1) of IRPA sets out that the Applicant has to oblige to a reasonable and relevant request for documentation by the Officer. In this case, it is clear that the information sought was relevant for processing the permanent residence application. It inquires about the legitimacy of the "seed capital" in order to establish a "legally obtained minimum net worth." Also, the information pertaining to the loan in 1998 (which was the seed capital of the Applicant's business), was not unreasonable in the circumstances and nothing in the file indicates that obtaining such information was beyond Mr. Sun's grasp.
The Reasonableness of the Visa Officer's Decision
13 Reviewing a decision on the reasonableness standard of review has very clear implications. The Court must not re-weigh the evidence, or substitute its decision for that of the Visa Officer. Rather, the Court must address whether the decision falls within the range of reasonable and acceptable outcomes defensible in fact and in law (Dunsmuir, above, at para. 47).
14 The Applicant was awarded, by way of a fairness letter, the opportunity to address the Visa Officer's concerns. The CAIPS notes indicate that this additional information was indeed considered, which was further confirmed by the Visa Officer's affidavit. More precisely, the CAIPS notes indicated that "the LTR [sic] from brother-in-law merely stated that he had lent Applicant RMB2M [sic]. No substantiated evidence submitted for how brother-in-law was able to accumulate funds to lend to applicant. Applicant has already been reminded of onus on him to demonstrate source of funds".
15 The only arguably new information submitted after the fairness letter in regards to the source of the funds comes from Mr. Li's affidavit. Here, it is said that the funds loaned to the Applicant "came from my income accumulated from my work for years and engagement in trade". Surely, this does not address the concerns set out in the fairness letter. More specific evidence was required, namely to ensure that the funds were indeed "legally obtained". It was the Officer's duty to verify that the net worth was legally obtained and that the Applicant met the requirements to be considered an "investor" within the meaning of the definition set out in section 88(1) of the IRPR. This determination requires precise information, as the fairness letter implied. As the Visa Officer noted, the statements of Messrs. Li and Sun do not amount to "substantiated evidence".
16 The Visa Officer's request for information by way of the fairness letter was "reasonably required", as indicated by subsection 16(1) of IRPA. Also, as case law recognizes, there was no need for the Visa Officer to suggest that the Applicant was involved in illegal activity before seeking additional information (Martirossian v. Canada (Citizenship and Immigration), 2001 FCT 1119). The Visa Officer needed to verify that the funds were obtained legally, as was required by the IRPR. This need was clearly stated in the fairness letter and the Applicant failed to meaningfully address the concerns raised.
17 As such, the impugned decision is reasonable and falls within the range of acceptable outcomes defensible in fact and law. The application is denied.
18 No question is submitted for certification, and none arises.
JUDGMENT
THIS COURT'S JUDGMENT is that the application for judicial review is dismissed. No question is certified.
NOËL J.
Sun v. Canada (Minister of Citizenship and Immigration)
Between Shu Liang Sun, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2011] F.C.J. No. 166
2011 FC 142
Docket IMM-3554-10
Federal Court
Vancouver, British Columbia
Noël J.
Heard: February 2, 2011.
Judgment: February 9, 2011.
(18 paras.)
_____________________________________
REASONS FOR JUDGMENT AND JUDGMENT
1 NOËL J.:-- The present Reasons for Judgment and Judgment pertain to a decision from Visa Officer Chung, from the Canadian consulate in Hong Kong, refusing to grant the Applicant status as a permanent resident in the Investor Class under the provisions of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA"). Leave was granted by Justice Mosley on November 3, 2010.
2 The Visa Officer received Mr. Sun's application for Permanent Residence under the Investor Class on April 11, 2007. On October 13, 2008, the Visa Officer sent an email to the Applicant's immigration consultant asking that supporting documents and the application be submitted by February 10, 2009. This deadline was extended to May 18, 2009. The full application was received on May 11, 2009. Concerned about the source of Mr. Sun's funds, more particularly the loan from his brother-in-law Mr. Li, the Visa Officer sent a letter on March 11, 2010 (the "fairness letter"), outlining the concerns about the absence of sufficient and substantiated proof of the origin of the seed capital borrowed from Mr. Li. The Applicant was given thirty (30) days to respond to this letter, which he did. The Visa Officer was not satisfied with the additional evidence put forth by the Applicant and rejected his permanent residency application, on the grounds that the legality of the source of Mr. Sun's funds was not ascertained.
The Applicable Law
3 The Immigration and Refugee Protection Regulations, SOR 2002/227 ("IRPR") set out various criteria to meet the Investor Class category for Permanent Residency. Generally, section 90 states the following:
• Members of the class
• 90. (1) For the purposes of subsection 12(2) of the Act, the investor class is hereby prescribed as a class of persons who may become permanent residents on the basis of their ability to become economically established in Canada and who are investors within the meaning of subsection 88(1).
• Minimal requirements
• (2) If a foreign national who makes an application as a member of the investor class is not an investor within the meaning of subsection 88(1), the application shall be refused and no further assessment is required.
* * *
• Qualité
• 90. (1) Pour l'application du paragraphe 12(2) de la Loi, la catégorie des investisseurs est une catégorie réglementaire de personnes qui peuvent devenir résidents permanents du fait de leur capacité à réussir leur établissement économique au Canada et qui sont des investisseurs au sens du paragraphe 88(1).
• Exigences minimales
• (2) Si le demandeur au titre de la catégorie des investisseurs n'est pas un investisseur au sens du paragraphe 88(1), l'agent met fin à l'examen de la demande et la rejette.
4 As indicated, section 88 of the IRPR indicates what the Investor Class consists of. More precisely, at issue was the requirement provided by the definition of "investor" that the Applicant was required to show he had "legally obtained" a net worth of at least $800,000. To meet this burden, section 10(1)(c) of the IRPR provides the following:
• Form and content of application
• 10. (1) Subject to paragraphs 28(b) to (d), an application under these Regulations shall
• (...)
• (c) include all information and documents required by these Regulations, as well as any other evidence required by the Act;
* * *
• Forme et contenu de la demande
• 10. (1) Sous réserve des alinéas 28b) à d), toute demande au titre du présent règlement :
• (...)
• c) comporte les renseignements et documents exigés par le présent règlement et est accompagnée des autres pièces justificatives exigées par la Loi;
5 This requirement is complemented by the following provisions of IRPA:
• Examination by officer
• 15. (1) An officer is authorized to proceed with an examination where a person makes an application to the officer in accordance with this Act.
• Obligation -- answer truthfully
• 16. (1) A person who makes an application must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires.
* * *
• Pouvoir de l'agent
• 15. (1) L'agent peut procéder à un contrôle dans le cadre de toute demande qui lui est faite au titre de la présente loi.
• Obligation du demandeur
• 16. (1) L'auteur d'une demande au titre de la présente loi doit répondre véridiquement aux questions qui lui sont posées lors du contrôle, donner les renseignements et tous éléments de preuve pertinents et présenter les visa et documents requis.
6 Hence, the burden is on the Applicant to provide the evidence to establish that his net worth of at least $800,000 was "legally obtained".
The Standard of Review
7 The core issue put forth by the Applicant is that of the Visa Officer's appreciation of the evidence put forth by the Applicant in regards to the source of his funds. The Applicant hints that this is a procedural fairness question to be reviewed on the standard of correctness, as it is argued that the fairness letter sent was not clear enough to give the Applicant a reasonable opportunity to respond to the concerns. Furthermore, it is argued that there was no evidence that the funds were obtained illegally, making the Visa Officer's concerns unreasonable. Also, it is said that the Visa Officer did not meaningfully address the evidence submitted in response to the fairness letter.
8 As a fairness letter was sent and the Applicant responded to it, there is nothing to suggest a breach of procedural fairness. As will be seen, the content of the fairness letter was clear.
9 It is clear that the issue arising is one of the Visa Officer's assessment of the evidence put forward by the Applicant. It is reviewable under the standard of reasonableness, as it is a determination of fact and law (Dunsmuir v. New Brunswick, 2008 SCC 9). Although not stated explicitly, the reasonableness standard was adopted by Justice Zinn in Vassan v. Canada (Citizenship and Immigration), 2009 FC 1049.
The Fairness Letter
10 The Visa Officer's fairness letter is argued to have been unclear in regards to what information needed to be put forward to satisfy the "legality" requirement to meet the Investor Class requirements. It is thus relevant to reproduce the relevant elements of this letter in order to address the Applicant's argument in regards to its clarity and assuage concerns about procedural fairness:
• This is to advise you of my serious concern that you do not appear to qualify for selection as an investor. In order to qualify under the investor class for immigration to Canada you must identify all assets and liabilities, which make up your personal net worth, and satisfy an officer as to the source of your funds and assets, including demonstrating that they were legally obtained.
• Based on the documentation you have submitted, I am concerned that you have not sufficiently demonstrated the source of your funds or that they have been legally obtained and that you are not inadmissible. I would like to remind you that the onus is on you, the applicant, to demonstrate when you obtained your funds, how they were obtained, the source and method of transfer, and that all the taxation and other applicable laws were complied with. Specifically, you appeared to have borrowed RMB 1,9 million yuan from your brother-in-law, Li Qiu Bin, in 1998 to set up your business. Hence, you failed to present sufficient and substantiated proof for the origin of your seed capital. [emphasis added]
11 It is clear that this letter sets out the Visa Officer's concerns with Mr. Sun's application. Basically, more detail was sought on the loan given by Mr. Li, his brother-in-law. The letter indicates particular aspects of this loan: how funds were obtained, source and method of transfer, taxation and legal requirements met. As Mr. Sun brought forth evidence to answer these concerns, it is thus clear that procedural fairness was not breached. The Visa Officer did not make a determination before the Applicant's response was received, as the CAIPS notes indicate. Hence, the Applicant fails in his argument that there was a breach of procedural fairness or that the letter was unclear. In this respect, the findings are very similar to those made in Li v. Canada (Minister of Citizenship and Immigration), 2006 FC 599. Further, the Applicant's submissions did not present any information or documentation supporting his argument that the fairness letter was imprecise or unclear, other than stating that "what is absent in this request is a specific request for the source of the money that was loaned by Mr. Li to the applicant" and that it was unclear that what was sought was the source of Mr. Li's funds.
12 Section 16(1) of IRPA sets out that the Applicant has to oblige to a reasonable and relevant request for documentation by the Officer. In this case, it is clear that the information sought was relevant for processing the permanent residence application. It inquires about the legitimacy of the "seed capital" in order to establish a "legally obtained minimum net worth." Also, the information pertaining to the loan in 1998 (which was the seed capital of the Applicant's business), was not unreasonable in the circumstances and nothing in the file indicates that obtaining such information was beyond Mr. Sun's grasp.
The Reasonableness of the Visa Officer's Decision
13 Reviewing a decision on the reasonableness standard of review has very clear implications. The Court must not re-weigh the evidence, or substitute its decision for that of the Visa Officer. Rather, the Court must address whether the decision falls within the range of reasonable and acceptable outcomes defensible in fact and in law (Dunsmuir, above, at para. 47).
14 The Applicant was awarded, by way of a fairness letter, the opportunity to address the Visa Officer's concerns. The CAIPS notes indicate that this additional information was indeed considered, which was further confirmed by the Visa Officer's affidavit. More precisely, the CAIPS notes indicated that "the LTR [sic] from brother-in-law merely stated that he had lent Applicant RMB2M [sic]. No substantiated evidence submitted for how brother-in-law was able to accumulate funds to lend to applicant. Applicant has already been reminded of onus on him to demonstrate source of funds".
15 The only arguably new information submitted after the fairness letter in regards to the source of the funds comes from Mr. Li's affidavit. Here, it is said that the funds loaned to the Applicant "came from my income accumulated from my work for years and engagement in trade". Surely, this does not address the concerns set out in the fairness letter. More specific evidence was required, namely to ensure that the funds were indeed "legally obtained". It was the Officer's duty to verify that the net worth was legally obtained and that the Applicant met the requirements to be considered an "investor" within the meaning of the definition set out in section 88(1) of the IRPR. This determination requires precise information, as the fairness letter implied. As the Visa Officer noted, the statements of Messrs. Li and Sun do not amount to "substantiated evidence".
16 The Visa Officer's request for information by way of the fairness letter was "reasonably required", as indicated by subsection 16(1) of IRPA. Also, as case law recognizes, there was no need for the Visa Officer to suggest that the Applicant was involved in illegal activity before seeking additional information (Martirossian v. Canada (Citizenship and Immigration), 2001 FCT 1119). The Visa Officer needed to verify that the funds were obtained legally, as was required by the IRPR. This need was clearly stated in the fairness letter and the Applicant failed to meaningfully address the concerns raised.
17 As such, the impugned decision is reasonable and falls within the range of acceptable outcomes defensible in fact and law. The application is denied.
18 No question is submitted for certification, and none arises.
JUDGMENT
THIS COURT'S JUDGMENT is that the application for judicial review is dismissed. No question is certified.
NOËL J.
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