Date: 20100921
Docket: IMM-795-10
Citation: 2010 FC 941
Montréal, Quebec, September 21,
2010
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
CAO,
CHAO QIAO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Chao Qiao Cao, the applicant, is a 27-year-old citizen
of the People’s Republic of China (China). Due to his position as
Head Chef in the Urumqi branch of a large chain of restaurants in China, he has been offered to work as a cook at a new Chinese
restaurant in Rouyn-Noranda, Québec. He challenges the legality of a decision
made by a visa officer (the officer) refusing his application for a temporary
work permit.
[2]
The officer is not satisfied that the applicant is a
genuine visitor who will leave Canada upon the expiry of his work permit mainly
because the latter has insufficient financial and personal ties to China,
considering that the applicant’s family is small, his salary in China is modest
in light of his relatively high position, he has limited advancement
opportunities in China and he would not gain experience readily bankable upon
his return to China.
[3]
The officer’s factual assessment is to be reviewed on the
reasonableness standard (Dhillon v. Canada (Minister of Citizenship and Immigration),
2009 FC 614, 347 F.T.R. 24 (Eng.) at
paragraph 19). For the reasons hereunder, the Court finds that the visa
officer’s conclusion does not fall within the range of possible, acceptable
outcomes which are defensible in respect of the facts and the law.
[4]
The applicant has the burden of proof to satisfy the
officer that he is a bona fide visitor to Canada and will, indeed, leave the country once his temporary work permit has
expired. One large component of this is proving sufficient ties to one’s home
country. It is clear, on the face of the record, that the applicant discharged
himself of this burden of proof, which must not be insurmountable in the
circumstances.
[5]
In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. Thus, a decision that is nominally
based on the facts of the case, but in reality draws on generalities and
assumptions, will normally fail to meet this standard.
[6]
Essentially, the officer rejected the applicant’s request
to obtain a temporary work permit because the pull factor to remain in Canada is strong, but in light of the evidence and case law, such
an assumption is simply insufficient to justify this result. More specifically,
the officer’s analysis is superficial and not axed on the file at hand.
[7]
As is the case with virtually all applicants for temporary
work permits, there is a financial incentive to work in Canada. This fact cannot be held against an applicant, as to do
so would result in the rejection of the vast majority of such applications (Rengasamy
v. Canada (Minister of
Citizenship & Immigration), 2009 FC 1229, 86 Imm.
L.R. (3d) 106 at paragraph 14). There must be objective reasons to reasonably
question the motivation of an applicant. Just to cite a few examples, past
immigration attempts, overstaying in other countries, a criminal past, may
provide sufficient basis to doubt that an applicant will leave Canada by the end of the authorized period.
[8]
In the case at bar, the officer has made no serious effort
to test the strength of the applicant’s ties to China, especially given that he
has no family elsewhere (Li v. Canada (Minister of Citizenship &
Immigration), 2008 FC 1284, 76 Imm. L.R. (3d) 265 at paragraph 30), and
that there is ample proof of the links that the applicant has with China,
supported by the submission of all requisite documents, as well as extra
documents:
a.
The applicant has a wife and one child (the maximum
possible, under China’s one-child policy) who would both remain in China;
b.
The applicant’s parents and brother also remain in China;
c.
The applicant’s wife owns a house in China, as seen in the copy of the deed, which the officer did
not comment on;
d.
The applicant and his wife have also amassed fairly
substantial savings, as seen in the photocopy of the bank certificate. (The
officer stated that the photocopy was of poor quality with no apparent security
features; however, a photocopy was all that was required and the officer made
no attempt to see the original document).
[9]
In Dhanoa v. Canada (Minister of Citizenship &
Immigration), 2009 CarswellNat 2159, 2009 FC 729 (Dhanoa), the Court
recently set aside the refusal to grant a temporary work permit because the
officer was not convinced that the applicant’s family ties in India were
sufficient to outweigh the socio-economic opportunities in Canada. Mr. Dhanoa
was offered a job as a construction worker in Canada at a much higher salary than he was currently earning in India. On the other hand, he was married with two children, was
working on his family farm and was untraveled.
[10]
Specifically, my colleague Justice Harrington writes at
paragraph 16:
The thought that [the
applicant] would abandon his wife and children in order to take advantage of
better socioeconomic opportunities here is distasteful. It is rather
sanctimonious to suggest that our society is more of a draw for him than India, where he
would be in the bosom of his family, simply because he would have 30 pieces of
silver in his pocket. As per Timothy 6:10 "for the love of money is the
root of all evil."
[11]
The impugned decision is unreasonable not simply because it
is stereotypical, but also because it relies on the very factor which would
induce someone to come here temporarily in the first place as the main reason
for keeping that person out (Dhanoa, paragraph 18). But there is more to
say in this case. In addition to providing all existing documentation to
support the above ties to China, the applicant also submitted a declaration whose probative value and
relevancy has not been seriously challenged or put into question, either by the
officer or the respondent.
[12]
This declaration directly addresses the question of
illegally overstaying a temporary work permit. The applicant states at
paragraphs 8 and 9 that both his Canadian employer and his Immigration
Consultant had warned him of the perils of overstaying in Canada:
8.
My Canadian employer also warns me that I have to behave myself according to
Canadian law and regulations and that including I must leave Canada before the expiry of my Work Permit, otherwise he will
immediately discharge me and take off my privileges with no compensation. I
fully understand this warning.
9.
My Consultant has explained to me in detail as well as warned me that if I do
not fulfil my promise and leave Canada before the expiry date of my work
permit, I shall become illegal and shall then lose my foreign worker status and
privileges, I shall be subjected to the penalty of Canadian laws, I shall be
deported and I will not be able to get back to Canada. This will also affect
the opportunities for me to go to other countries. This may even deprive the
members of my family of the opportunities in future to go to Canada or other countries to work, to study or to reside, etc. I
fully understand this. That is why I will never overstay in Canada illegally because I will not be that stupid to spoil my own
and my family’s future.
[13]
The decision to submit the applicant’s declaration is not a
banal gesture. The declaration is a clear statement that the applicant
understands the consequences of overstaying his welcome in Canada, and for this reason, it will not happen. It cannot be
presumed to be true, as the policy considerations of such a blanket approach
would be disastrous: every applicant would simply submit a similar declaration
in order to “prove” that he would not overstay his temporary permit. However,
the statements made in this declaration must be weighed by the officer in light
of the totality of the evidence and the personal circumstances of the
applicant.
[14]
Before this Court, the learned counsel of the respondent
also relayed the fact that the usefulness of work experience gained in a small
Chinese restaurant in Rouyn-Noranda is questionable, particularly in light of
the applicant’s lack of advancement opportunities at his present employer.
However, no evidence was produced questioning the validity of the job offer,
nor any other elements of the applicant’s submissions. If credibility were an
issue, this should have been stated closely by the officer.
[15]
In final analysis, the Court notes that the applicant did
everything in his power to satisfy the officer that he would leave Canada at the expiry of his work permit. The conclusion reached
by the officer that the applicant has not met his burden of proof is
unreasonable and must be set aside. The matter shall be returned to the
Canadian Embassy in Beijing, China for redetermination by another officer. No question of general importance has been raised by counsel and none
shall be certified.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that the application for judicial review be allowed. The
decision of the officer denying a temporary work permit is set aside and the
matter returned to the Canadian Embassy in Beijing, China for
redetermination by another officer.
“Luc Martineau”
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