Date:
20121029
Docket:
IMM-1881-12
Citation:
2012 FC 1239
Ottawa, Ontario,
this 29th day of October 2012
Present: The
Honourable Mr. Justice Pinard
BETWEEN:
XIE, Zhenchuan
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, S.C. 2001, c. 27 (the “Act”) of a decision by a
visa officer (the “officer”) at the Embassy of Canada in Beijing, China. In the decision, the officer refused the applicant’s application for a work permit in Canada.
[2]
The
applicant is a 26-year-old citizen of China.
[3]
From
September 2003 to July 2006 the applicant studied culinary art at the high
school level. From July 2007 to present he has worked as a “Third Wok Chef” in
Cantonese cuisine in Guangzhou, China.
[4]
The
applicant’s father, mother and only sibling, a sister, all live in Guangzhou.
[5]
On
October 24, 2011 the applicant submitted a work permit application at the
Embassy of Canada in Beijing. The applicant stated he had a job offer from a
Canadian Chinese restaurant located in Enderby, British Columbia.
[6]
The
applicant submitted a declaration along with his application in which he
explained why he would not remain in Canada after his authorized stay. He also
stated he is the heir to a four-storey building owned by his father presently
worth approximately 3 million RMB. The applicant submitted a declaration from
his father to this effect.
* * *
* * * * *
[7]
The
officer communicated her decision in a standard form letter dated January 5,
2012. The officer stated she was not satisfied that the applicant would leave
Canada at the end of his authorized stay because of the applicant’s travel
history, current employment situation, personal assets and financial status.
[8]
The
officer stated four reasons for her decision in the Global Case Management
System (“GCMS”) notes. First, the officer found that because the applicant has
a medium occupational level in his field and a high school level of education,
it would likely be easy to re-staff the applicant’s current position in China. Second, the officer found that the documents submitted by the applicant showed “modest savings” and two “modest-size
properties” under his father’s name and did not
demonstrate the applicant was sufficiently established in China. Third, the officer was not satisfied that the applicant had a strong incentive to
depart Canada at the end of his authorized stay because the officer researched
job postings for cooks in Guangdong, the Chinese province in which the
applicant resides, and found that the applicant’s prospective employment in
Canada offered a higher income than what was being offered to cooks in
Guangdong. Finally, the officer found that the applicant’s lack of any travel
outside of China, along with his strong family ties to Canada and modest income did not add weight to his establishment in China.
[9]
The
officer noted that she did not consider interviewing the applicant because
there were no concerns beyond the evidence submitted that should be put to the
applicant.
[10]
The
issues raised by the present application for judicial review are the following:
1. Did the officer err in
finding that the applicant’s current position in China would be easy to
re-staff?
2. Did the officer err in
her analysis of the applicant’s financial establishment and the incentive to
work in Canada?
3. Did the officer err in
her analysis of the applicant’s travel history?
4. Did the officer breach
the duty of procedural fairness?
5. Did the officer give
proper weight to the applicant’s declaration?
[11]
The
decision to issue or refuse a temporary resident visa involves a determination
of mixed fact and law and it is to be reviewed on the reasonableness standard.
Such decisions are generally afforded deference by this Court (Obeng v. The
Minister of Citizenship and Immigration, 2008 FC 754, 330 F.T.R. 196 at
para 21; Ngalamulume v. The Minister of Citizenship and Immigration,
2009 FC 1268, 362 F.T.R. 42 at paras 15-16; Huang v. The Minister of
Citizenship and Immigration, 2012 FC 145 at para 4 [Huang]).
[12]
However,
the issue of whether the officer had the obligation to interview the applicant
is an issue of procedural fairness that should be assessed on the correctness
standard (Bravo v. The Minister of Citizenship and Immigration, 2010 CF
411 at para 9; Huang at para 4).
* * *
* * * * *
1. Did the
officer err in finding that the applicant’s current position in China would be easy to re-staff?
[13]
In
my opinion, the officer analyzed the facility with which the applicant’s
position will be replaced in China for the purpose of determining whether the
applicant had demonstrated he was well established in China. The officer subsequently considered various factors, including the applicant’s
demonstrated establishment in China, to analyze the fundamental issue of
whether the applicant would stay in Canada illegally after his authorized stay.
Therefore, the officer did not have to explain how the Chinese employer’s
ability to re-staff the position related to whether the applicant would leave Canada at the end of his authorized stay.
[14]
I
agree with the respondent that Huang is similar to the present case. The
officer in Huang also considered whether the applicant could be easily
replaced in his job as a cook in China. This consideration was one of many
factors that supported the officer’s finding that the applicant had not
demonstrated he was well established in China. This Court did not find the
officer’s analysis on this point to be unreasonable. Similarly, I am of the
view that the officer in the present case did not err in finding that the
applicant’s position in China would be easy to re-staff.
2. Did the
officer err in her analysis of the applicant’s financial establishment and the
incentive to work in Canada?
[15]
Although
a financial incentive, on its own, cannot justify the refusal of a work permit,
it may be considered along with other evidence regarding the applicant’s
establishment in China (see Huang at para 9).
[16]
I
agree with the respondent that the officer did not err in her analysis of the
applicant’s economic situation. The officer did not base her analysis solely on
the financial incentive for the applicant to work in Canada. She also
considered the evidence of the applicant’s financial establishment in China and evidence concerning his career ties to China in determining whether he was established in China. Therefore, in my opinion, the officer did not commit a reviewable error in this
regard.
3. Did the officer err
in her analysis of the applicant’s travel history?
[17]
The
officer in the present case considered whether the applicant’s international
travel history could support a finding of establishment in China. The officer did not draw an adverse inference from the travel history and thus
committed no reviewable error (see Huang at para 11).
4. Did
the officer breach the duty of procedural fairness?
[18]
First,
this Court’s decision in Sekhon v. The Minister of Citizenship and
Immigration, 2008 FC 561, the sole authority cited by the applicant on this
issue, does not convince me that it was incumbent on the officer to give the
applicant an opportunity to contest the officer’s findings that the applicant’s
savings were modest and that the applicant’s father’s properties were of
modest-size. In contrast to Sekhon, the officer in the present case did
not doubt that the applicant was genuinely interested in working as a cook in Canada.
[19]
Second,
the authority cited by the applicant does not convince me that the officer’s
finding of a financial incentive to remain in Canada illegally was a
generalization to which the applicant was entitled to respond. Bonilla v.
The Minister of Citizenship and Immigration, 2007 FC 20, relied upon by the
applicant, is distinct in my view because the generalization made in that case
was a broad stereotype, while the officer’s opinion in the present case, that
there is a financial incentive for the applicant to remain in Canada, is based
on evidence of the salary differential.
[20]
Regarding
the third procedural fairness issue raised by the applicant, the case law
teaches that generally, where an officer has extrinsic information of which the
applicant is unaware, the applicant should be given the opportunity to disabuse
the officer of any concerns arising from that evidence (Huang at para 7;
Gu v. The Minister of Citizenship and Immigration, 2010 FC 522 at
paras 23 to 25). In Huang, this Court found that the applicant was not
entitled to an interview because the officer relied only on materials submitted
by, or known to, the applicant.
[21]
In
the present case, the officer relied on job postings for cooks in the
applicant’s province and compared this information with the salary offered by
the applicant’s prospective employer in Canada. I believe the applicant would
have likely been aware of the range of salaries for cooks in his province.
Therefore, no reviewable error was made by the officer by failing to give the
applicant the opportunity to respond to this evidence.
[22]
Regarding
the fourth procedural fairness issue raised by the applicant, the authority
relied upon by the applicant does not convince me that, because the officer did
not believe the applicant would leave Canada at the end of his authorized stay,
the applicant was entitled to an interview. The authority cited by the
applicant does not demonstrate that these circumstances give rise to an
entitlement to an interview.
5. Did
the officer give proper weight to the applicant’s declaration?
[23]
Finally,
the applicant argues that the officer ignored the declaration he filed with his
work permit application.
[24]
The
applicant relies on Justice Martineau’s decisions in Cao v. Minister of
Citizenship and Immigration, 2010 FC 941 [Cao] and Huang,
above. He argues that the officer in the present case had a duty to view the
statements in the declaration the applicant filed in support of his work permit
application in light of the totality of the evidence and the applicant’s
personal circumstances.
[25]
The
applicant submits in his oral pleadings that such declarations are a means for
the applicant to convey considerations to the officer which can not be
communicated in the work permit application form. Relying on Cao and Huang,
the applicant submits that this Court has found such declarations are not
“banal.”
[26]
The
respondent admits in oral pleadings that the officer’s decision does not refer
to statements the applicant made in his declaration. However, the respondent
argues that based on this Court’s guidance in Cao and Huang, the
officer did not have a duty to do so. The respondent submits that the officer’s
statement in her affidavit that she considered all of the evidence put forth by
the applicant is consistent with the burden imposed on officers in the case
law.
[27]
I
agree with the applicant that the officer’s decision in this case does not
comply with Justice Martineau’s guidance in Cao and Huang.
[28]
The
applicant in Cao was also a Chinese citizen who was offered employment
as a cook in a Chinese restaurant in Canada. Like the declaration before the
officer in the present case, the applicant in Cao had submitted a
declaration along with his work permit application that directly addressed the
question of illegally overstaying a temporary work permit. As part of his
decision to allow the application for judicial review in Cao, Justice
Martineau stated the following regarding how an officer must weigh such a
declaration:
[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.
[Emphasis added.]
[29]
In
Huang, Justice Martineau repeated this guidance and concluded that the
officer in that case had committed no reviewable error in the manner the
officer dealt with the declaration:
[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.
[Emphasis added.]
[30]
More
generally, a court will be reluctant to defer to an administrative
decision-maker’s decision where the reasons consider in detail the evidence
supporting the decision but do not refer to important evidence pointing to a
different conclusion:
[17] However, the more
important the evidence that is not mentioned specifically and analyzed in the
agency’s reasons, the more willing a court may be to infer from the silence
that the agency made an erroneous finding of fact “without regard to the
evidence”: Bains v. Canada (Minister of Employment and Immigration)
(1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency’s burden of
explanation increases with the relevance of the evidence in question to the
disputed facts. Thus, a blanket statement that the agency has considered all
the evidence will not suffice when the evidence omitted from any discussion in
the reasons appears squarely to contradict the agency’s finding of fact.
Moreover, when the agency refers in some detail to evidence supporting its
finding, but is silent on evidence pointing to the opposite conclusion, it
may be easier to infer that the agency overlooked the contradictory evidence when
making its finding of fact.
[Emphasis added.]
(stated by Justice Evans in Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immigration), [1998] F.C.J. No. 1425 at paragraph 17 [Cepeda-Gutierrez],
and reiterated by the Federal Court of Appeal in Hinzman v. Canada (Minister of Citizenship and Immigration), 2007 FCA 171 at para 60)
[31]
In
his declaration, the applicant stated that he would obey Canadian law and
regulations and leave the country before his work permit expires. He stated
that his prospective employer in Canada will pay for his return ticket to China only if the applicant leaves Canada before the expiry of his work permit. He declared that he
understood that overstaying his work permit could result in limiting his
opportunities to travel internationally in the future, as well as limiting the
opportunities of his family members, and as a result he would never stay in Canada illegally. The applicant stated he was very close with his mother, father and sister
in China, as well as his girlfriend, and he did not want to be separated from
his family or his girlfriend on a long term basis.
[32]
In
contrast to Huang, the officer’s GCMS notes in the case at bar made no
acknowledgement of the statements in the applicant’s declaration. For instance,
the officer did not acknowledge the applicant’s close personal ties in China and the other reasons for why the applicant would return to China before his work permit
expires.
[33]
I
note that the officer stated in her affidavit that she considered all the
evidence put forth by the applicant and that she stated in her cover letter for
the decision that she had carefully reviewed all the documentation in the
application. The officer did not make any such statement in the GCMS notes. I
am of the opinion that a blanket statement of having considered all the
evidence does not suffice to meet the burden on the officer as established in Huang
and Cao in dealing with a declaration in a work permit application. In
her decision the officer did not directly weigh the statements in the
declarations against the other evidence, for example by acknowledging the
statements in a manner like the officer did in Huang, at para 13.
[34]
Moreover,
the officer in the present case considered in detail the evidence supporting
her decision, namely the employer’s ability to re-staff the applicant’s
position in China, the applicant’s financial establishment in China and the applicant’s incentive to work in Canada. Yet the officer failed to refer specifically
to the applicant’s declaration, which was important and direct evidence
pointing to the conclusion that the applicant would leave Canada at the end of his authorized stay. In these circumstances, based on this Court’s
guidance in Cepeda-Gutierrez at paragraph 17, it is more easily open to
this Court to infer that the officer committed a reviewable error by failing to
directly refer to the statements in the declaration.
[35]
Therefore,
in my view the officer committed a reviewable error by failing to weigh the
applicant’s declarations in light of the totality of the evidence and the
personal circumstances of the applicant.
* * *
* * * * *
[36]
For
the above-mentioned reasons, this application for judicial review is allowed
and the matter is referred back to a different visa officer for
reconsideration.
[37]
I
agree with counsel for the parties that this is not a matter for certification.
JUDGMENT
The applicant’s
application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27, is allowed. The decision by a
visa officer at the Embassy of Canada in Beijing, China, is set aside and the
matter is sent back for redetermination by a different visa officer.
“Yvon
Pinard”
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