Docket: IMM-3046-11
Citation: 2012 FC 145
Ottawa, Ontario, February 8, 2012
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
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HUANG, ZHAI NING
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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 the second time that the applicant challenges the legality of a decision of
the Canadian Embassy in China refusing the issuance of a work permit. The
impugned decision, dated April 21, 2011, concludes once again that the applicant
has failed to satisfy the Visa Officer that he will leave Canada by the end
of his authorized stay. Accordingly, the applicant is not a genuine temporary
resident pursuant to sections 197 and 200 of the Immigration and Refugee
Protection Regulations, SOR/2002-227.
[2]
The
applicant, a Chinese citizen, is a cook in Tibet, who has
been recruited to work for a Cantonese restaurant in Alberta for a two
year contract. He is 35 years old, single, and has no children. The applicant’s
step-mother and three sisters live in Alberta. He also has a brother
and a sister residing in Tibet. In February 2007, he applied for a work
permit which was refused. He filed a second application in January 2010 which
was also denied. In January 2011, the Court set aside the officer’s decision
and sent the application back for re-determination by another officer. The
applicant was required to resubmit all supporting documentary evidence and
update his application. The applicant reapplied and, on April 21, 2011, his
application was again refused, leading to the present judicial review proceeding.
[3]
That
said, the Visa Officer specifically took account of the applicant’s declaration
attesting to the warning given to the applicant by his potential Canadian employer
with respect to the consequences of work permit contravention. The Visa Officer
did not consider interviewing the applicant. Essentially, the Visa Officer found
that the applicant could be easily replaced at his previous job; he had an
income on the lower end of Chinese society; he did not provide evidence of any
assets in China aside from an expired 30000 CNY bank book deposit; he presented
no evidence of international travel; he remained registered in Guangdong
province despite working and living in Tibet; and he had family in Canada in
the same town where his job is located. On this evidence, the Visa Officer determined
that the applicant had not demonstrated that he was well established in China. The Visa Officer
also noted the financial incentive for the applicant to work in Canada and the
“pull-factor” of the presence of his siblings in Canada.
Consequently, the Officer was not satisfied that the applicant will depart Canada at the end
of the authorized stay and accordingly refused his application for a work
permit.
[4]
The
standard of review of visa officers’ decisions for a temporary work permit is
that of reasonableness and considerable deference should be accorded to the
Visa Officer’s decision (Dunsmuir v New Brunswick, 2008 SCC 9; Li v Canada (Minister of
Citizenship and Immigration), 2008 CF 1284; Ngalamulume
v Canada (Minister of Citizenship and Immigration),
2009 FC 1268 at paras 15-16). However, the issue of whether procedural
fairness required that the Visa Officer conduct an interview should be assessed
on a correctness standard (Bravo v Canada (Minister of
Citizenship and Immigration), 2010 FC 411 at para 9).
[5]
I
have determined that the application for judicial review must fail. Although at
the hearing before this Court, applicant’s counsel questioned the
reasonableness of each and all of the findings of fact mentioned in the CAIPS
notes, it is more convenient to regroup by themes the main arguments made in
this regard by the applicant. Moreover, at the outset, I wish to underline that
the fact that the previous judicial review application was allowed by the Court
is not determinative. Indeed, I am entirely satisfied that the Visa Officer,
who is a different person, took a fresh look at the evidence before making a
new decision.
Failing to interview
the applicant
[6]
The
applicant submits that an interview was required in his case. He argues that
where the application demonstrates ineligibility on its face, a paper
examination is sufficient but where an officer comes to a conclusion based on speculation
that an applicant will commit an offence by overstaying, an interview should be
conducted. No further corroboration other than what had been actually provided
(i.e. the offer of employment in Canada) was needed in the
circumstances. An interview was further warranted by the Visa Officer’s reference
to the bank note which was submitted as evidence by the applicant to show his
assets. The Visa Officer noted that the bank note expired in November 2010 and that
the applicant failed to demonstrate savings or funds with any other documents.
The applicant argues that should the Officer really wonder where the money is,
the applicant could have been called to an interview to tell him. The applicant
submits that as the applicant’s passport was being renewed and unavailable for
submission, the Officer erred in a negative finding based on the applicant appearing
to remain registered in Guangdong but residing and
working in Tibet. It is
submitted that natural justice would require this “appearance” to be confirmed
by way of letter or interview.
[7]
The
applicant’s arguments are unconvincing. Case law teaches that where an
applicant fails to meet the evidentiary onus of satisfying the Visa Officer
that they will leave Canada at the end of their authorized stay, an
interview is not a statutory requirement. It is the applicants who bears the
onus of providing visa officers with thorough applications in the first place (Lu
v Canada (Minister of Citizenship and Immigration), 2002 FCT 440 at para
11; Dhillon v Canada (Minister of Citizenship and Immigration), 2009 FC
614 at paras 30-32; Bonilla v Canada (Minister of Citizenship and Immigration),
2007 FC 20 at para 22 [Bollina]). Generally, where an officer has
extrinsic information of which the applicant is unaware, an opportunity to
respond should be made available to the applicant to disabuse the officer of
any concerns arising from that evidence (Ling v Canada (Minister of
Citizenship and Immigration), 2003 FC 1198 at para 16; Chow
v Canada (Minister of Citizenship and Immigration),
2001 FCT 996 at para 14). A similar exception is found where the
officer’s conclusion is based on a subjective consideration rather that on
objective evidence (Bollina, above, at para 27; Yuan v Canada
(Minister of Citizenship and Immigration),
[2001] FCJ 1852 at para 12). This is not the case
here. In this instance, the Visa Officer relied only on materials submitted by
or known to the applicant and so he was not required to conduct an interview. By
themselves, the expired bank note, the lack of any other financial records or
documentation to confirm residency and registration, are relevant to assess
financial capability and his degree of establishment in China (for example, the
applicant does not own a house in China). Thus, no reviewable error has been
made in this regard by the Visa Officer.
Considering a
financial incentive
[8]
The
applicant further submits that the Visa Officer failed to establish a link
between his assessment and his conclusion that the applicant would overstay his
temporary work permit. He argues that having a financial incentive to stay in Canada is not
illegal and not necessarily indicative of a desire to stay illegally. In
support of this position, the applicant relies upon Cao v Canada (Minister of
Citizenship and Immigration), 2010 FC 941 [Cao], in which the
Court stated that a financial incentive, present in virtually all applications
for temporary work permits, cannot be held against the applicant. Further, the
applicant states that the Visa Officer is required to consider the difference
in cost of living between Canada and China.
[9]
In fact, the Court
has repeatedly stressed that a financial incentive, on its own, cannot justify
an application refusal (Rengasamy v Canada
(Minister of Citizenship and Immigration), 2009 FC 1229; Cao, above).
This factor cannot discount every other evidence proffered by the applicant. However,
a review of the Visa Officer’s CAIPS notes reveals that this factor was not
given inordinate weight – it was a factor considered in light of the lack of
evidence establishing the applicant’s ties to China,
either familial or financial. There is no reviewable error in this instance.
Finding a
negative inference on lack of international travel
[10]
The
applicant takes issue with the Visa Officer’s argument that a negative
inference can be drawn from the applicant’s lack of international travel. The
applicant relies upon Ogunfowora v Canada (Minister of
Citizenship and Immigration), 2007 FC 471 at para 42, to argue that though
lack of travel may be a consideration that “does not assist the applicants, on
the other hand, it cannot hurt their application, since they have no negative
travel. Thus this factor alone could not have been strong enough to overweigh
the strong evidence to the contrary”. The applicant submits that this was an
argument advanced in the first application, and subsequently confirmed by the
Court.
[11]
In
the CAIPS notes, the Visa Officer stated: “The applicant has presented no
evidence of previous international travel. International travel has become a
sign of affluence in China and is one of the
factors I consider when assessing if an applicant is established”. An
applicant’s travel history cannot overweigh strong evidence to the contrary and
cannot hurt the applicant. It remains, however, a relevant factor to be
considered (Obeng v Canada
(Minister of Citizenship and Immigration), 2008
FC 754 at para 13).
In the case at bar, the applicant failed to establish sufficient economic or
family ties with his country, had a nominal source of income and no verifiable
proof of savings. The Visa Officer looked to the applicant’s history of travel
in order to support a finding of establishment, not to make one. This was not a
reviewable error.
Disregarding
the applicant’s statement
[12]
The
applicant further takes issue with the Visa Officer’s failure to give proper weight
to the applicant’s declaration which was neither challenged nor put into
question. This statement addressed the question of illegally overstaying the
work permit and articulates the applicant’s clear understanding of the
consequences of doing so, and his undertaking to leave when required.
[13]
The
Court has recognized that declarations of this sort, though not banal, cannot
be presumed to be true and must be viewed in light of the totality of the
evidence and the personal circumstances of the applicant; viewing them
otherwise would amount to a policy where a declaration would be all that was
required to prove that an applicant would not overstay his permit (Cao, above,
at para 13). In the CAIPS notes, the Visa Officer acknowledged the applicant’s
statements, and determined that “these declarations however are not
disinterested and could not be forced upon him”. This is not an unreasonable
inference in the Court’s opinion.
[14]
In
final analysis, the Court finds that the Visa Officer reviewed all the evidence
that was made available to him and his decision is not unreasonable. The onus
was on the applicant to show that he would leave Canada by the end of
his authorized stay. To be clear, the Visa Officer did not have to conclude
that the applicant would overstay. Any suggestion that the applicant’s good
faith or credibility should have been taken into account is misplaced in this
case. No finding to the contrary was made by the Visa Officer as is apparent
from a reading of the CAIPS notes. Furthermore, this does not constitute a
positive factor in favour of the applicant or otherwise displace relevant
countervailing concerns (Donkor v Canada
(Minister of Citizenship and Immigration), 2011
FC 141 at para 13).
[15]
The
Visa Officer was entitled to assess the applicant’s establishment in China having
regard to his employment, his financial savings and his familial ties. The Visa
Officer considered that the applicant was an unmarried male with family in Canada, with no
dependants, no job to return to in China and no assets. The
Officer did not draw unreasonable inferences and natural justice was not
breached in his failure to conduct an interview with the applicant. As
mentioned earlier, the duty of fairness does not necessarily require an oral
hearing in every case and a decision not to dialogue with the applicant was not
incorrect in the circumstances.
[16]
The
present application for judicial review shall therefore be dismissed. No
question of general importance has been proposed by counsel to the Court.
JUDGMENT
THIS COURT ADJUDGES that the application for
judicial review is dismissed. No question is certified.
“Luc
Martineau”
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