Date: 20091014
Docket: IMM-1006-09
Citation: 2009
FC 1040
WINNIPEG, MANITOBA,
OCTOBER 14, 2009
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
LI
FENG MEI
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
applicant is a 39 year-old citizen and resident of China. He made an application for permanent
residence in Canada through the Manitoba
Provincial Nominee Program. As a result of an investigation, the respondent
advised the applicant that he did not comply with the provincial selection
criteria. The applicant was given 30 days to address the visa officer’s
concerns. No response having been received after almost three months, the
application for permanent residence was refused. The applicant now brings this
application for judicial review of the refusal, claiming that he did send a
response letter within the 30 days delay.
THE FACTS
[2]
On
December 20, 2007, Manitoba nominated the applicant for
permanent residence status essentially because of his experience as an ethnic
cook. As a result, the applicant, his spouse and his son made an application
for permanent residence status with Citizenship and Immigration Canada (“CIC”) on
December 31, 2007.
[3]
In the
application, the applicant stated he had been employed as a second cook at
Mingxing Seafood Restaurant since February 2007, which was corroborated by a
letter from his employer.
[4]
On May 20,
2008, CIC conducted a visit at Mingxing Seafood Restaurant to verify the work
experience of the applicant. The agents from CIC questioned the applicant and
the head cook about the applicant’s employment. They found contradictions in
their respective statements; they also found 9 “cheat sheets” all similar to
the applicant’s certificate of employment and, according to CIC, indicating
that the restaurant is not adverse to confirm employment of staff that do not
work for them.
[5]
On July
14, 2008, CIC notified the Manitoba’s Immigration department of
the situation, and also sent a letter to the applicant informing him about the
results of the May 20th visit and about its intention to determine
him inadmissible pursuant to section 16 and 40 of the Immigration and
Refugee Protection Act (“the Act”). The same letter (the “fairness
letter”) gave him 30 days from its receipt to make any representations in this
regard, including reliable and verifiable proof of employment.
[6]
According
to the applicant’s affidavit, he received that letter on August 1st,
2008, and sent a letter in response on August 12, 2008. That evidence is
uncontradicted, and no attempt was made to cross-examine the applicant on his
affidavit. As a result, it must be taken as established, and the respondent
did not question the applicant’s assertion.
[7]
On
November 19, 2008, the Manitoba Labour and Immigration Department sent a letter
to the applicant withdrawing the Certificate of Nomination for the reason that
the applicant submitted false documents relevant to his selection as a Manitoba
Nominee.
[8]
On January
4, 2009, CIC send a letter to the applicant refusing his permanent residence
visa because Manitoba withdrew his Certificate of Selection and because he
misrepresented or withheld information about his employment as a cook at
Mingxing Seafood Restaurant.
THE IMPUGNED DECISION
[9]
The
Officer first referred to section 40(1)(a) of the Act, according to
which a foreign national is inadmissible for misrepresentation if he directly
or indirectly misrepresents or withholds material facts relating to a relevant
matter that induces or could induce an error in the administration of the Act.
Pursuant to section 40(2)(a), the foreign national continues to be inadmissible
for misrepresentation for a period of two years following a final determination
of inadmissibility under subsection 40(1)(a).
[10]
The
Officer goes on stating that the applicant misrepresented his work experience
as a cook in order to meet the work experience requirement of the provincial
nominees program. He explicitly stated that the applicant had an opportunity
to address his concerns but did not reply. He found, therefore, that the
applicant is inadmissible pursuant to paragraph 40(1)(a) of the Act..
[11]
The
Officer then referred to subsections 15(1) and (2) of the Act, according
to which an officer is authorized to proceed with an examination where a person
makes an application, that examination being conducted solely on the basis of
documents delivered by the province. The Officer was also satisfied that the
applicant did not meet the requirement of subsection 15(2) of the Act
because the Province of Manitoba having withdrawn the nomination certificate
issued under the Manitoba provincial Nominee Program.
[12]
For these
two reasons, the Officer refused the application, and declared the applicant
inadmissible for a period of two years from the date of his letter.
THE ISSUE
[13]
Both
parties agree it is impossible to say the decision would have been the same had
the visa officer received and considered the response of the applicant. The
only issue to be determined on this application for judicial review is therefore
limited: should the response letter sent by the applicant be deemed to have
been received by the visa officer, and therefore was the decision made without
consideration of that letter a breach of procedural fairness?
ANALYSIS
[14]
There is
no dispute that questions of procedural fairness must be reviewed against a
standard of correctness: Ha v. Canada (Minister of Citizenship and
Immigration), 2004 FCA 49; Chrétien v. Canada (Commission of Inquiry into the Sponsorship Program and
Advertising Activities, Gomery Commission), 2008 FC 802; Sketchley, v. Canada (Attorney General), 2005 FCA 404.
[15]
It is also
well established since the decision of the Supreme Court in Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, that a duty
of procedural fairness applies to the decisions of administrative
decision-makers, whether their decision affects the rights, privileges or
interests of an individual; however, as the Court was prompt to add, the
content and the requirements of that duty will vary according to the
circumstances.
[16]
Several
factors have been recognized as relevant in determining the procedures required
by the common law duty of procedural fairness in any given set of
circumstances. They include the nature of the decision being made and the
process followed, the nature of the statutory scheme, the importance of the
decision to the individual affected, the legitimate expectations of the person
challenging the decision, and finally the choice of procedure made by the
agency itself. Applying these factors, it has been decided that the duty of
fairness is limited in cases of permanent residence applications made from
outside Canada. Illustrative of that
jurisprudence is the following quote from the decision of Justice Yvon Pinard
in Fargoodarzi v. Canada (Minister of Citizenship and Immigration), 2008 FC 90, at para.12:
Although all administrative
decision-makers have a duty of fairness toward those who are directly affected
by their decisions, the content of this duty will vary depending on the context
of the decision (Knight v. Indian Head School Division No. 19,
[1990] 1 S.C.R. 653 (S.C.C.)). If the Court finds that this duty has been
breached, the decision must be quashed and the issue sent back to a new
decision-maker (Li v. Canada (Minister of Citizenship and Immigration), 2006 FC 1109, [2006] F.C.J.
No. 1409 (F.C.)). In this case, the decision in question is a visa officer’s
decision on an application for permanent residence, and the duty of fairness
has been determined to be at the relatively low end of the spectrum in this
context, due to the absence of a legal right to permanent residence, the fact
that the burden is on the applicant to establish her eligibility, the less
serious impact on the applicant that the decision typically has, compared with
the removal of a benefit, and the public interest in containing administrative
costs (Khan v. Canada (Minister of Citizenship and Immigration)
(2001), [2002] 2 F.C. 413 (Fed. C.A.)).
[17]
In the
case at bar, a number of factors tend to limit the requirements of the duty of
fairness. First of all, the nature of the decision made by the visa officer
was clearly of an administrative nature. The applicant tried to argue that the
possibility to respond to the Officer’s concern made the decision more formal; but
the fairness letter does not fundamentally alter the nature of the decision
made, which is administrative, not judicial.
[18]
The second
factor to be considered is the nature of the statutory scheme. It is true that
there is no appeal procedure, although there is always the possibility of bringing
an application for leave and judicial review before this Court. Moreover, the
decision does not bar the applicant from submitting a new application. Counsel
for the applicant contended that a second application would be quickly
dismissed, as it could be argued that the applicant already had the opportunity
to have his case assessed, but this is pure speculation. Indeed, the applicant
could explain in his second application why his first application was rejected
and provide his response to the first visa Officer’s concerns as part of his
second application.
[19]
As to the
importance of the decision to the individual, I would venture the following
comments. While a decision on a refugee or an H&C application will
normally have a greater impact on an applicant’s life than an overseas
application for permanent residence, I agree with the applicant that the
inland-overseas distinction should not always be determinative. Each case must
be considered on its merits, and the decision to emigrate and to seek permanent
residence in another country may be of momentous importance to an individual.
In the case at bar, however, there is no evidence before the Court suggesting
that being granted permanent resident status was of such crucial importance to
the applicant or his family. On this basis, this case is distinguishable from
the decisions of this Court dealing with refugee and H&C applications.
[20]
I am
prepared to accept that the determination made pursuant to s. 40(1)(a) of the Act
to the effect that the applicant is inadmissible for two years makes the
decision somewhat more significant, but, as the respondent emphasized, this
finding cuts both ways. If the consequences of being held to have
misrepresented material facts were so important to the applicant, he should
have taken steps to ensure that his response was effectively received by the
visa officer. Yet, the applicant never contacted the consulate or attempted to
follow up on his response letter to make sure it had been received. In
addition to this, the decision was not made immediately after the expiry of the
30 day period he was given to respond, but more than three months after the
fairness letter was sent to the applicant.
[21]
Counsel
for the applicant submitted that the respondent could have specified the manner
of transmission in the fairness letter. It could have stated, for example,
that there must be receipt within thirty days, not just a response within
thirty days. It could have imposed an obligation on the applicant to follow-up
and make sure that the information was in fact received. The fact that the
respondent chose not to do any of this therefore created a legitimate
expectation that regular mail was acceptable.
[22]
The fact
that no particular procedure is set out as to the proper way to communicate
with a visa office is certainly an indication that regular mail is considered
an acceptable means to send documents, but it doesn’t detract from the general
rule that the burden is on the applicant to satisfy a visa officer that he
complies with all the requirements of the Act and its Regulations. Non-citizens
and non-permanent residents have no right to enter Canada. It was incumbent on the applicant,
having been told by the visa Officer that there were reasonable grounds to
believe that he had misrepresented his employment and having been invited to
respond to these concerns, to make sure his response was received by the visa
officer within the set time period of 30 days from his receipt of the fairness
letter.
[23]
Counsel
for the applicant submitted that it is practically impossible for an applicant
to verify if a letter sent has been received by the visa post or the visa
officer, and that forcing an applicant to follow up on communications sent would
add a further step to an already complicated process. There are three possible
answers to the applicant’s argument. First, there is no evidence before me
substantiating such a claim. Second, in a world of modern telecommunications,
there are various and inexpensive means to minimize the risks of non delivery
and to ensure that documents have effectively been received by their addressee
and to track them. Third, the respondent always has the option to provide that
a document sent is deemed to have been received after a specified period of
time, as is the case for documents sent by the Refugee Protection Division, the
Immigration Division and the Immigration Appeal Division: see Refugee
Protection Division Rules, SOR/2002-228, rule 35(1); Immigration Division
Rules, SOR/2002-229, rule 31; Immigration Appeal Division Rules,
SOR/2002-230, rule 36. In the absence of such rules, it cannot be assumed that
a document sent is received, and the burden is on the applicant to make sure
that it has been effectively received if there is any doubt.
[24]
Having so
found, I am therefore of the view that the duty of fairness was not breached in
this case, and there are accordingly no grounds for setting aside the decision
under review. The visa officer was entitled to make a decision based on the
documents in his possession. The applicant was made aware of the Officer’s
concern, and it was up to him to assuage these concerns within the time delay
he was provided. While unfortunate, this result was not beyond the applicant’s
ability to prevent.
[25]
At the end
of the hearing, counsel for the applicant proposed a certified question to the
Court. Counsel for the respondent asked permission to make representations
with respect to that proposed question after having had an opportunity to see
the reasons for the decision. I granted that permission, and I will therefore
allow the applicant seven days from the release of these reasons to make
representations with respect to his proposed certified question, and a further seven
days to the respondent to file a response.
ORDER
THIS COURT ORDERS that this application for judicial
review is dismissed. A separate order will be made to deal with any proposal
for a certified question.
"Yves
de Montigny"
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1006-09
STYLE OF CAUSE: LI
FENG MEI v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF
HEARING: Winnipeg, Manitoba
DATE OF
HEARING: October
13, 2009
REASONS FOR ORDER: de MONTIGNY J.
DATED: October
14, 2009
APPEARANCES:
|
David Matas
|
FOR THE APPLICANT
|
|
Nalini Reddy
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
David Matas
Barrister and
Solicitor
Winnipeg, Manitoba
|
FOR THE APPLICANT
|
|
John H. Sims,
Q.C.
Deputy
Attorney General of Canada
Vancouver,
British Columbia
|
FOR THE RESPONDENT
|
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