Date: 20100426
Docket: IMM-5104-09
Citation: 2010 FC 444
Ottawa, Ontario, April 26,
2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
JUNJI
OZAWA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for
judicial review, pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, R.S.C. 2001, c. 27, of a decision by a Visa Officer
rejecting Junji Ozawa’s application for a work permit. For the reasons that
follow this application is dismissed
Background
[2]
Junji
Ozawa is a citizen of Japan. He is a hair stylist
and also a shareholder in Hack Enterprises Inc. d.b.a. Hive Hair Spa, which is
incorporated in the province of British Columbia.
[3]
Mr.
Ozawa came to Canada on February 2, 2007 on
a working holiday visa and worked as a hair salon manager and stylist. This
visa expired on February 1, 2008. Mr. Ozawa overstayed this visa, but applied
for restoration of status on April 24, 2008. On July 21, 2008, he was issued a
visitor visa valid until August 1, 2008. Mr. Ozawa again overstayed his visa,
which was again restored, this time until March 15, 2009. He left Canada on March 13, 2009 and
returned on April 3, 2009. He was granted a 6 month visitor visa (valid
to October 3, 2009) at the Vancouver International Airport.
[4]
Mr.
Ozawa attempted to obtain a Labour Market Opinion to work as a salon manager
for his business, but this application was rejected on the basis that he, the
applicant, was effectively self-employed. Mr. Ozawa was instructed to apply
directly to the visa office.
[5]
On
June 10, 2009, a section 44 Report was issued against Mr. Ozawa on the basis
that he had been observed working at his business without a valid work permit.
This report was never challenged by the applicant. An admissibility hearing
was never held because Mr. Ozawa departed voluntarily from Canada on July 13, 2009.
Before leaving, Mr. Ozawa submitted a work permit application to the Canadian
Embassy in Tokyo, Japan.
[6]
On
July 21, 2009, the officer rejected Mr. Ozawa’s application for a work permit.
The officer determined that “based on a careful review of the information”
provided, the applicant did “not meet the requirements of [sic] for a
work permit.”
[7]
The
officer determined that the applicant was unlikely to leave Canada at the end
of his temporary stay because he had a history of overstaying and contravening
the Act and because he had poor employment prospects in Japan. Further,
the officer determined that the applicant had not “answered all questions
truthfully” as is required by subsection 16(1) of the Act. In particular, the
officer questioned how the applicant could list his current employment in Japan
as having a duration of 12 months when he was in Vancouver within that
period.
[8]
The
officer also determined that the applicant had engaged in unauthorized work in Canada and had
overstayed his visa. The officer concluded, on the basis of subsection
200(3)(e) of the Immigration and Refugee Protection Regulations,
SOR/2002-227, that the applicant was therefore barred from being issued a work
permit until January 13, 2010.
[9]
Consequently,
the officer rejected the applicant’s application for a work permit. It is this
decision that the applicant asks this Court to set aside.
Issues
[10]
The applicant raises the following
issues:
1. What is the standard of review;
2. Whether the officer err in law because she ignored or
misconstrued key evidence; and
3. Whether the officer breached the principles of natural
justice.
Analysis
1. What is
the standard of review?
[11]
Both
parties agree, as do I, that questions of natural justice are reviewed on the
correctness standard: Level v. Canada (Minister of
Citizenship and Immigration), 2008 FC 227, and factual determinations
are reviewed on the reasonableness standard: Dunsmuir v. New
Brunswick,
2008 SCC 9. Accordingly, the standard of review for the second issue above is
reasonableness and the standard for the third issue above is correctness.
2. Whether the officer err in
law because she ignored or misconstrued key evidence.
[12]
The
applicant submits that the officer’s decision was unreasonable because his
temporary resident status was restored and he therefore did not overstay his
visa as the officer determined. The applicant further submits that the
officer’s decision was unreasonable because she failed to consider the
requirements of the departmental guidelines that require more flexibility for
self-employed applicants, such as Mr. Ozawa. The applicant contends that it is
not clear on what basis the officer determined that he would not leave Canada because the
subcategory boxes were not checked. The applicant argues that communication
issues with the immigration officer impugn the section 44 Report that was
issued.
[13]
The
respondent submits that any mistakes the officer made do not impugn the
determinative aspects of his decision. The respondent contends that the
applicant cannot, at this stage, challenge the section 44 Report issued against
him and, in any event, it was properly issued. The respondent submits that the
following conclusions were reasonably made: that the applicant had contravened
conditions of his admission by working without a work permit and that he had
been untruthful on his application. The respondent submits that these findings
are determinative of the application.
[14]
It
is evident to me that the officer made a number of errors in assessing the
applicant’s application for a work permit.
[15]
The
officer incorrectly stated that the applicant had previously overstayed his
temporary resident visas. The Regulations provide that a restoration of one’s temporary
resident status has the legal effect of curing any breach of the length of stay
requirement inherent in the original temporary resident visa. Thus, where an
applicant, such as Mr. Ozawa, successfully restores his or her temporary
resident status, it cannot be said, as this officer did, that they overstayed.
[16]
The
officer’s error in this regard undermines much of her determination that the
applicant would not leave after the expiration of his work permit.
[17]
Where
the officer did not err was in her assessment of the applicant’s credibility
and prior violation of his temporary resident status conditions. The officer
drew reasonable negative inferences based on the applicant’s misrepresentation
on his application and based on inconsistencies in that application. The
applicant states that his mistakes are explainable, but he provided the officer
with no such explanation. It was reasonable for the officer to base her decision,
in part, on these negative credibility inferences.
[18]
More
importantly, the officer’s reliance on the section 44 Report on Inadmissibility
that was issued against the applicant was both valid and determinative of the
underlying application. A section 44 Report was issued because a different
officer observed the applicant “cutting hair” at the business without a work
permit. He told the officer who attended at his premises that he did 3 to 4
hair cuts each day he is at the salon. The applicant argues either that that
officer made a mistake in her assessment or that he was not in law “working”
because he was not an employee of the business.
[19]
The
applicant never challenged the validity of the section 44 Report because he
voluntarily left Canada. Because he left Canada, an
admissibility hearing was never conducted by the Immigration Division of the
Immigration and Refugee Board. As a result, a formal finding of
inadmissibility was never made against the applicant and a removal order was
never issued. The applicant provided an affidavit in which he attests that “At
no point [was] I served by [sic] any document by the Canadian Border
Services Agency (CBSA) or signed any document to the effect that I was found
engaged in unauthorized work in Canada.” However, the record
contains a copy of the section 44 Report together with a direction to attend at
an interview. The applicant quickly obtained legal counsel who thereafter
communicated with the respondent. In such circumstances, it cannot be
reasonably maintained that he was unaware of the content of the section 44 Report.
[20]
The
section 44 Report was made on the basis that the applicant had worked without a
work permit in violation of the Act and Regulations.
[21]
“Work”
is defined in section 2 of the Regulations as follows:
|
“work”
means an activity for which wages are paid or commission is earned, or that
is in direct competition with the activities of Canadian citizens or
permanent residents in the Canadian labour market.
|
«
travail » Activité qui donne lieu au paiement d’un salaire ou d’une
commission, ou qui est en concurrence directe avec les activités des citoyens
canadiens ou des résidents permanents sur le marché du travail au Canada.
|
[22]
Juneja
v. Canada (Minister of
Citizenship and Immigration), 2007 FC 301, which is relied on by the
respondent for the proposition that the applicant was engaged in work, is
distinguishable from the facts at hand. In Juneja, the applicant
entered into a contingent wage agreement with a car dealership whereby he began
working but was not paid wages. The agreement between the parties was that the
applicant would be paid in the future, for his unpaid hours, if and when he
obtained a work permit. The Board determined that this was “work” within the
meaning of the Regulations. Justice Barnes upheld this determination on
judicial review.
[23]
In
this case, there was no contingent wage agreement. It is not clear at all
whether the applicant may be considered to be an employee of the business.
What is clear is that he is both a shareholder and director of the corporation.
In my view, the definition of “work” in the Regulations may not capture the
normal activities of shareholders or directors where they are not paid wages or
commissions for these activities. However, as soon as a shareholder or
director provides a service to the corporation that is outside the normal role
of a shareholder or director, that person “is in direct competition with the
activities of Canadian citizens or permanent residents in the Canadian labour
market” and is therefore “working” within the meaning of the Regulations. Such
service provided by the shareholder or director could have been purchased by
the corporation from a Canadian citizen or permanent resident and its provision
therefore constitutes work.
[24]
The
officer observed the applicant cutting hair. This activity would constitute
“work”. In any event, the applicant did not seek judicial review of the section
44 Report, and therefore it was reasonably open to the officer in this case to rely
on that report’s conclusion that the applicant had been observed working
without a permit in contravention of the Act and Regulations.
[25]
Subsection
200(3)(e) of the Regulations states:
|
(e)
the foreign national has engaged in unauthorized study or work in Canada or has failed to comply
with a condition of a previous permit or authorization unless
(i) a period of six months has elapsed
since the cessation of the unauthorized work or study or failure to comply
with a condition,
(ii) the study or work was unauthorized
by reason only that the foreign national did not comply with conditions
imposed under paragraph 185(a), any of subparagraphs 185(b)(i) to (iii) or
paragraph 185(c);
(iii) section 206 applies to them; or
(iv) the foreign national was
subsequently issued a temporary resident permit under subsection 24(1) of the
Act.
|
e)
il a poursuivi des études ou exercé un emploi au Canada sans autorisation ou
permis ou a enfreint les conditions de l’autorisation ou du permis qui lui a
été délivré, sauf dans les cas suivants :
(i) une période de six mois s’est
écoulée depuis les faits reprochés,
(ii) ses études ou son travail n’ont
pas été autorisés pour la seule raison que les conditions visées à l’alinéa
185a), aux sous-alinéas 185b)(i) à (iii) ou à l’alinéa 185c) n’ont pas été
respectées,
(iii) il est visé par l’article 206,
(iv) il s’est subséquemment vu délivrer
un permis de séjour temporaire au titre du paragraphe 24(1) de la Loi.
|
[26]
Relying
on the section 44 Report as evidence that the applicant had engaged in
unauthorized work, the officer determined that the Regulations prevented her
from issuing a work permit until January 13, 2010. Implicit in this
determination is a finding that subsections (ii)-(iv) did not apply to the
applicant and that the applicant did not cease his unauthorized work until the
date he left Canada on July 13, 2009. The
applicant does not raise any challenge to the implicit application of
subsections (ii)-(iv), and I can see no reason why he would be captured by these
subsections. Giving the applicant the benefit of the doubt, and presuming that
he ceased working without authorization as of the date of the section 44 Report,
on June 10, 2009, the officer was legally barred from issuing him a work permit
until after December 10, 2009.
[27]
The
officer’s decision was rendered July 21, 2009 and therefore no result other
than a rejection was legally permissible. Not only was the officer’s decision
reasonable, it was the only decision that she could have reached. On
this basis, this application for judicial review must be dismissed.
3. Whether the officer breached the principles of natural
justice.
[28]
The
applicant submits that the officer breached natural justice by failing to give
him an opportunity to respond to his concerns and by signing the refusal letter
as a “visa officer” when in fact she was a “non-immigrant officer”.
[29]
I
agree with the respondent that the officer was not relying on information that
was not in the possession of the applicant; she was relying on the applicant’s
own submissions. As this Court has stated in Arwinder Singh v. Canada (Minister of
Citizenship and Immigration), 2009 FC 621, a visa officer is only
obligated to conduct an interview where she has information of which the
applicant is not aware. Not only was the applicant aware of these facts, they
were within his own submissions. The onus was on the applicant to explain the
apparent inconsistencies in his application and he must bear the risk of
rejection when he fails to do so. Natural justice did not require the officer
to conduct an interview of the applicant in the circumstances of this case.
[30]
The
submission with respect to the title used by the officer in the decision is
also without merit. How the officer signed the refusal letter has no impact on
the fairness provided to the applicant. The case relied on by the applicant, Valentinov
v. Canada (Minister of
Citizenship and Immigration) (1998), 143 F.T.R. 46 (T.D.), was decided
under the old Act and is not applicable to the current Act. The respondent is
correct that “visa officer” is not a defined term under the Act or Regulations,
and that a “non-immigrant officer” has the jurisdiction to issue the decision
under review in this application.
Conclusion
[31]
The
applicant acknowledged at the hearing that the section 44 Report barred the
officer from issuing the applicant a work permit for a period of six months.
Counsel stated that the applicant’s concern was the finding that he had
overstayed his temporary resident visa, and that this finding would colour any
subsequent application. Counsel for the respondent conceded that the officer
erred in that respect and that the actions taken by the applicant meant that he
had not, in law, overstayed the visa. I have agreed with that characterization
and thus, the applicant ought not to have this false finding adversely affect
any future application.
[32]
However,
the applicant was found to have worked without authorization. He was also
found to have provided inconsistent and untruthful answers on his application.
These findings were reasonably made and support the officer’s refusal of the
applicant’s work permit application even though the officer erred in finding
that the applicant had previously overstayed his visas. It cannot be said that
the decision on his visa application was unreasonable.
[33]
In
the circumstances of this case, the officer was not obligated to conduct an
interview to provide the applicant an opportunity to explain the apparent
inconsistencies in his application material. If an explanation was available,
as the applicant now asserts, the onus was on him to provide it with his
application materials. The officer did not breach the applicant’s right to
natural justice.
[34]
This
application for judicial review is dismissed. Neither party proposed a
question for certification; no question meets the test for certification on the
facts disclosed in the record.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that
1.
This
application for judicial review is dismissed; and
2.
No
question is certified.
“Russel
W. Zinn”
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