Date: 20110627
Docket: IMM-6324-10
Citation: 2011 FC 784
Ottawa, Ontario, June 27,
2011
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
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GUOFEI XU
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application by Guofei Xu seeking judicial review of a decision by a visa
officer in Beijing,
China refusing her
application for a permanent resident visa in the skilled worker category. The
visa officer found that Ms. Xu had misrepresented an offer of arranged
Canadian employment and, in the result, she was determined to be inadmissible
under ss 40(1) of the Immigration Refugee and Protection Act, SC 2001, c27,
(IRPA).
Background
[2]
Guofei
Xu is a citizen of the People’s Republic of China (China). In 2005
she began studies at Laurentian University and the following year she graduated
with a diploma in Global Business Administration. In early 2007, Ms. Xu
obtained a work permit from the Respondent and shortly thereafter she began
working for The Manco Group (Manco) as an office coordinator in Toronto. After her
work permit expired in January 2008, Ms. Xu returned to China.
[3]
In
December 2008 Manco offered Ms. Xu permanent employment as an office
coordinator in its Toronto office with a plan to involve her in the set up
of an affiliated office in China. The offer of employment included a
starting salary of $39,800.00 per annum and benefits. On December 18, 2008
Manco applied to Service Canada for an Arranged Employment Opinion (AEO) and on
March 8, 2009 the AEO was issued with the following caveat:
This positive AEO, including the annex, must
be submitted by the skilled worker to CIC as part of her permanent residency
application. This AEO confirmation is only one of CIC’s many requirements in
issuing a permanent resident visa. It does not authorize the individual to
enter, remain or work in Canada. That decision is the
responsibility of the CIC.
[4]
Ms. Xu
made her application for a permanent resident visa in the Federal Skilled
Worker Class in May 2009. In order to verify the genuineness of Manco’s offer of
employment, a visa officer at the Canadian Embassy in Beijing, China asked
Ms. Xu to provide corroborating income tax information for Manco and
photographs of its business premises.
[5]
The
President of Manco, Tony Mansour, responded by letter dated October 15, 2009.
He provided the available documentation and pointed out that two of the
requested Canada Revenue Agency (CRA) forms were not applicable to Manco. On
December 17, 2009 the visa officer requested Manco’s 2008 T2 corporate tax
return and payroll list and its 2008 Business Notice of Assessment. By letter
dated January 20, 2010 Mr. Mansour refused to provide the additional
requested documentation on the following basis:
We were surprised to know that you are
requesting additional corporate tax information from us. Please be advised
that we are a private corporation and are not obliged to disclose such
information/documentation to any government agencies other than Revenue Canada. We are just trying to re-employ an
employee whom we hired before, for an ordinary position of office coordinator,
not a senior position with very high salary. And we have sufficient financial
resources to cover that.
Moreover, for your information, when we
applied for the AEO for Belinda to Service Canada, as Applicant in that
application, we have followed Service Canada’s instructions and provided
complete information and documentation to them.
Back in October 2009, as request by you,
we already provided to your office a lot of additional information and documents
including our payroll information concerning the specific payroll account that
Belinda is to be placed. We believe that would be sufficient enough for you to
make your judgment. Therefore, we believe that you are asking too much and not
in a position to provide such further documentation as you requested.
[Emphasis in the original]
[6]
The
visa officer was not satisfied with Manco's response and sent a fairness letter
on March 30, 2010 to Ms. Xu setting out the following concerns:
I have reasonable grounds to believe that
you have not fulfilled the requirement put upon you by section 16(1) of the Immigration
and Refugee Protection Act which states:
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.
Specifically, I have concerns that the
offer of employment in the Arranged Employment Opinion is not genuine and has
been obtained solely for the purpose of meeting the requirements of the Skilled
Worker Program and subsequently receiving permanent resident status in Canada.
I have reviewed the financial and tax
documents provided from your intended employer in Canada, The Manco Group. Based on these
documents, I am not satisfied that this employer has the ability and intent to
pay the wage offered ($39,800 per year) as per the Arranged Employment Opinion
for the following reasons:
- Based on the 2008 T4 Summary of
Remuneration provided, the total employment income paid to employees was
$51,925 with a total number of 4 T4 slips filed. This is an average of $12,981
per T4 slip filed.
- Although requested, you did not provide
a copy of the 2008 T2 - Corporation Income Tax Return and Business Notice of
Assessment from your intended employer.
- Although requested, you did not provide
a payroll list indicating present employees and salaries paid from your
intended employer.
Based on the above, I also have concerns
that you are not likely to accept and carry out the employment offered upon
arrival in Canada.
Please note that if it is found that you
have engaged in misrepresentation in submitting your application for permanent
residence in Canada, you may be found to be
inadmissible under section 40(1)(a) of the Immigration and Refugee
Protection Act. A finding of such inadmissibility would render you
inadmissible to Canada for a period of two years
according to section 40(2)(a):
40(1) A permanent resident or
a foreign national is inadmissible for misrepresentation
(a) for directly or indirectly
misrepresenting or withholding material facts relating to a relevant matter
that induces or could induce an error in the administration of this Act
40(2) The following provisions
govern subsection (1):
(a) the permanent resident or the foreign
national continues to be inadmissible for misrepresentation for a period of two
years following, in the case of a determination outside Canada, a final determination of
inadmissibility under subsection (1) or, in the case of determination in Canada, the date the removal order
is enforced.
I would like to give you an opportunity
to respond to this information. I will afford you 30 days from the receipt of
this letter to make any representations in this regard. Please use the address
noted at the top of the letter for all correspondence and clearly indicate your
file number. If you do not respond to this request within the time outlined
above, your application will be refused.
[7]
Mr. Mansour
responded by letter dated April 9, 2010 stating that he was “shocked” by the
suggestion of a misrepresentation. He attempted to explain the significance of
some of the information he had previously provided but he again refused to
submit Manco’s corporate tax information on the basis that he was “not obliged”
to do so. He concluded with the statement that the visa officer’s allegation
of misrepresentation “is truly insulting and groundless”.
[8]
Once
again the visa officer was unsatisfied with Manco’s response and Ms. Xu’s
application for a visa was rejected by letter dated June 11, 2010. The visa
officer’s file notes provide the following rationale for the decision:
I HAVE CONSIDERED THE ABOVE INFORMATION,
BUT IT HAS NOT ALLEVIATED MY CONCERNS THAT THIS IS NOT A GENUINE OFFER OF
EMPLOYMENT. WE HAVE NOT RECEIVED SUFFICIENT INFORMATION FROM THE AEO EMPLOYER
TO BE SATISFIED THAT THIS COMPANY HAS SUFFICIENT RESOURCES TO HIRE THE
APPLICANT AT THE WAGE STATED IN THE AEO ($39,800 PER YEAR). THE APPLICANT WAS
ASKED TO PROVIDE A COPY OF THE 2008 T2 CORPORATION INCOME TAX RETURN, THE
BUSINESS NOTICE OF ASSESSMENT, AND THE PAYROLL LIST FROM THE AEO EMPLOYER. NONE
OF THESE WERE PROVIDED, AND THEREFORE IT IS NOT POSSIBLE TO HAVE AN ACCURATE
PICTURE OF THE COMPANY’S FINANCIAL HEALTH IN ORDER TO DETERMINE WHETHER THE COMPANY
INDEED HAS THE RESOURCES TO PAY THE APPLICANT’S SALARY.
IN MY OPINION, THE APPLICANT HAS MISREPRESENTED
THE FACT THAT THERE IS A GENUINE OFFER OF EMPLOYMENT BY PROVIDING AN ARRANGED
EMPLOYMENT OPINION FROM A COMPANY THAT, BASED ON FINANCIAL DOCUMENTS PROVIDED,
DOES NOT HAVE THE ABILITY TO PAY THE WAGE OFFERED IN THE AEO. THIS COULD HAVE
LED TO AN ERROR IN THE ADMINISTRATION OF THE ACT BECAUSE IT COULD HAVE LED AN
OFFICER TO BE SATISFIED THAT THE APPLICANT MET THE REQUIREMENTS OF THE ACT WITH
RESPECT TO BEING ELIGIBLE FOR PROCESSING AS A SKILLED WORKER UNDER THE
MINISTERIAL INSTRUCTIONS, AND ALSO WITH RESPECT TO POINTS AWARDED FOR ARRANGED EMPLOYMENT.
AS THIS IS NOT A GENUINE OFFER OF
EMPLOYMENT, I HAVE ALSO REMOVED THE 15 POINTS ASSOCIATED WITH AN AEO, BRINGING
THE APPLICANT’S POINTS TOTAL TO 58.
I THEREFORE RECOMMEND THAT THE APPLICANT
BE MADE INADMISSIBLE TO CANADA UNDER SECTION A40 OF THE ACT.
[9]
It
is from this decision that this application for judicial review arises.
Issue
[10]
Was
the visa officer’s decision unreasonable and made without appropriate regard to
the evidence?
Analysis
[11]
I
agree with counsel for the Respondent that the issues raised on this
application are ones of mixed fact and law which attract the deferential
standard of review of reasonableness: see Cao v Canada (MCI), 2010 FC
450, 367 FTR 153.
[12]
Ms. Xu
contends that the visa officer’s decision was unreasonable and made without due
regard to the evidence. She argues that the visa officer failed to consider
Manco’s explanations of the tax information it had produced which, in her view,
ought to have displaced any concern that Manco’s offer of employment was not
genuine.
[13]
The
fundamental problem with this is that Manco’s attempted explanation of its
submitted tax information did not make a convincing case for its ability to
employ Ms. Xu particularly in the face of its deliberate refusal to submit
the corporate tax information requested by the visa officer.
[14]
The
employer may have been correct in its assertion that it had no legal obligation
to provide the supporting payroll and income tax evidence requested by the visa
officer. This information was, however, clearly relevant and reasonably
considered to be necessary to address the visa officer’s stated concern about the
genuineness of the employment offer. It was not the employer’s role to decide
what information would be sufficient to establish the genuineness of its
employment offer and the visa officer had no obligation to accept Manco’s
assurances in the absence of the requested corroborating evidence. In the face
of the intransigence of the employer, it should not have been a surprise to
anyone involved that Ms. Xu’s application was rejected.
[15]
The
suggestion that the visa officer did not consider the employer’s explanation of
its submitted tax records is belied by the visa officer’s express file
references to that information. The heart of the visa officer’s decision was
that Manco had deliberately refused to produce material payroll information and
that it was “not possible to have an accurate picture of the company’s
financial health in order to determine [if it had] the resources to pay [Ms. Xu’s]
salary”. This was the basis for the visa officer's removal of 15 points from
the eligibility assessment leaving Ms. Xu with insufficient points to
qualify. These were eminently reasonable conclusions and there is no basis to
set them aside on judicial review.
[16]
The
visa officer’s misrepresentation finding is, however, problematic. A finding
of misrepresentation under section 40 of the IRPA is a serious matter which
should not be made in the absence of clear and convincing evidence: see Baseer
v Canada, 2004 FC
1005, 256 FTR 318. While a withholding of material
information may be a basis for a finding of misrepresentation, here the refusal
was that of Manco and not Ms. Xu. There is nothing in the record to show
that Ms. Xu was complicit in the employer’s decision – a decision which
was apparently made for business reasons. The visa officer’s decision makes a
completely unsupported leap from the reasonable finding of insufficiency of
evidence to one of misrepresentation. A misrepresentation is not proved where
the evidence is found only insufficient to establish the necessary criteria for
admissibility. As a result, I find that the misrepresentation finding was made
without regard to the evidence and must be set aside.
[17]
What
remains is the visa officer's decision to reject Ms. Xu's visa application
on the merits. As noted above, there is no basis to interfere with that part
of the decision.
Conclusion
[18]
This
application for judicial review is allowed in part. The visa officer’s finding
of a misrepresentation under section 40 of the IPRA is set aside but the
underlying finding that Ms. Xu had failed to establish an entitlement to a
permanent resident visa is upheld.
[19]
Neither
party proposed a certified question and no issue of general importance arises
on this record.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the visa officer’s finding of a misrepresentation
under section 40 of the IPRA is hereby set aside but in all other respects the
application is dismissed.
"R.L.
Barnes"
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