Docket: IMM-7572-10
Citation: 2011 FC 1098
Ottawa, Ontario, September 26,
2011
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
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WANG JING HUI
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Applicant
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and
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MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review by Wang Jing Hui challenging a decision
by a Visa Officer at the Canadian Embassy in Beijing, China denying his
application for a permanent resident visa. The impugned decision was made on
September 27, 2010 and it was based on a finding of misrepresentation under s
40 of the Immigration Refugee and Protection Act, SC 2001, c27, [IRPA].
Mr. Hui contends that he was denied procedural fairness by the Visa
Officer and that the misrepresentation finding was unreasonable. For the
reasons that follow I am dismissing Mr. Hui’s application.
[2]
Mr. Hui
was an approved nominee under the Saskatchewan Immigrant Nominee Program as a
member of the skilled-worker class. On December 17, 2008, he applied for a
permanent resident visa through the Canadian Embassy in Beijing. His
application included an offer of arranged employment as a chef with the Husky
Family Restaurant in Rosetown, Saskatchewan.
Mr. Hui also declared that he had worked as a chef in China since 1996
and had current employment with the Shenglin Restaurant in Dalian, China.
[3]
On
June 11, 2009 the Embassy wrote to Mr. Hui requesting, among other things,
a recent letter of employment and a copy of his school diploma. Mr. Hui
provided letters confirming his employment and education but claimed that his
diploma had been lost. The Visa Officer then sought to verify this information
by making telephone enquiries to Mr. Hui’s school and to his employer.
These checks were supportive but the persons contacted were either neighbours
or related to Mr. Hui. In the result, the Visa Officer determined that a
site visit by the Embassy Anti-Fraud Unit (AFU) was required.
[4]
The
AFU investigator attended at the place of Mr. Hui’s employment and spoke
with the head chef, Mr. Yu. Mr. Yu said that he had worked at the
restaurant for 2 to 3 months but did not know the name of his predecessor.
Only one of the 5 remaining kitchen staff claimed to know Mr. Hui. The Restaurant
Manager (Mr. Hui’s relative who had signed the employment letter) told the
investigator that Mr. Hui had worked at the restaurant but had left. She
also said that there was no documentary record of Mr. Hui’s past
employment. The investigator then called Mr. Hui and was told that after
10 years of employment at the Shenglin Restaurant he had quit his job 6 weeks
earlier to work at the nearby Jinlin Restaurant. The investigator noted that
if this was true, Mr. Hui’s employment at the Shenglin Restaurant would
have overlapped with that of the current head chef, Mr. Yu, who claimed to
have no knowledge of Mr. Hui. The investigator concluded his report in
the following way:
Conclusion: Fraud with collusion.
The applicant said that he had had been working at Shenglin Restaurant for 10
years and was Head Chef until he left 1 ½ months prior to the site visit. The
actual Head Chef at the restaurant started working there 2-3 months prior to
the site visit and was working there as Head Chef when the applicant says that
he was Head Chef. The Head Chef did not know the applicant and all but one
of the kitchen staff said that they did not know the applicant. There is
no paperwork or documentation that shows the applicant was working there - the
only confirmation of employment was from the restaurant manager who has
indicated that they are ‘relatives’.
[Emphasis added.]
[5]
On
April 28, 2010, the Visa Officer wrote to Mr. Hui to advise him that there
were grounds to believe that he had misrepresented his employment as a chef at
the Shenglin Restaurant. The Visa Officer also provided the details of the AFU
investigation which was described as persuasive evidence of a
misrepresentation. The Visa Officer appropriately invited Mr. Hui to
respond and he did so with a lengthy explanation for the apparent discrepancies
in his employment history. Among other things, he denied that his employment
had ever overlapped with that of Mr. Yu and he attributed the AFU
investigator’s contrary finding to a possible clerical error. He offered no explanation
for the failure of most of the other kitchen staff to acknowledge his
employment beyond inviting the Visa Officer to call a current employee,
Mr. Weng. Mr. Hui supplemented his response with photos showing him
outside of the restaurant and attending a birthday party inside the
restaurant. He also produced an envelope addressed to him at the Shenglin
Restaurant and a health record stating that he worked there. He also provided
contact information for several persons who he claimed could verify his
employment history.
[6]
Notwithstanding
Mr. Hui’s response, the Visa Officer rejected his claim on the ground of
misrepresentation. The Visa Officer did accept that Mr. Hui produced
sufficient evidence to establish a connection to the Shenglin Restaurant but
that it was insufficient to substantiate the duration of any employment or the
levels of work experience he had declared. The Visa Officer concluded his
reasons in the following way:
I have reviewed the applicant’s
submission and I am not satisfied it has addressed our concerns. The
explanations provided as to why the applicant temporarily left his job at
Shenglin Restaurant between September 2009 and April 2010 appears self-serving.
It is not credible that the applicant happened to leave his job exactly at the
time when we conducted our verifications between Sept and Nov 2009 and returned
to the restaurant afterwards. It is also not credible that none of the kitchen
staff working a the restaurant at the time of our visit knew the PA, except one
employee, even though the PA stated to have worked there until September 2009.
The further documents submitted by the
applicant do not overcome the concern raised by the telephone verification. It
is commonly understood at this visa office, and is my experience, that
improperly issued and inauthentic documents, including inauthentic stamped and
notarized documents, are easily obtained in China. I do not consider that requesting a
verification of these supplementary documents will address my concerns because
the applicant has been alerted as to the possibility of telephone
verifications, and under these circumstances verifying authorities may have
been co-opted to provide false verifications. I therefore give less weight to
these documents than to the information provided in the telephone verification.
It is noted, and it was confirmed by the
applicant in his reply, that no paper records existed at the restaurant to
prove the PA’s employment there since 2001. Though the agent stated that this
fact is not uncommon in China, the fact that no records
existed at all remains a concern. The few pieces of evidence provided by the
applicant in his reply, may prove that the PA was at some point connected to or
working at the restaurant, but cannot testify to the length of employment and
cook experience of the PA as stated on file.
I have noted the references and numbers
provided by the PA in his reply, however I do not consider that contacting
these references at this time would address my concerns because they are
provided by the applicant after our verifications and cannot be therefore considered
reliable sources of impartial information.
Based on the evidence available, on a
balance of probabilities, the PA misrepresented his employment as a cook at
Shenglin Restaurant. The misrepresentation or withholding of this material made
the applicant appear to meet the work experience requirement in order to receive
a provincial nominee certificate and this would have enabled the applicant to
obtain a permanent resident visa as a provincial nominee.
As a result, I recommend refusal of this
case for misrepresentation pursuant to section A40(1) of the IRPA.
[7]
Mr. Hui
contends that the Visa Officer failed to consider his submissions in a fair and
balanced way and that he essentially fettered his discretion by holding that
the supplementary materials presented were unreliable and unverifiable. I do
not agree. The materials Mr. Hui produced in response to the Visa
Officer’s fairness letter were appropriately given minimal weight. In the face
of the serious discrepancies identified in Mr. Hui’s story by the AFU
investigator, something more than two inconclusive photos, a postal envelope
and a health record were obviously required. The Visa Officer’s fairness
letter gave explicit notice to Mr. Hui that his declared employment
history was in doubt. It was Mr. Hui’s obligation to present the
strongest possible corroborating evidence. Instead of marshalling meaningful
evidence, he attempted to shift the evidentiary burden to the Visa Officer to
conduct further enquiries. Although it was perhaps not the most prudent
statement for the Visa Officer to discount in advance the reliability of the
sources Mr. Hui had identified, the fact remains that Mr. Hui had the
obligation to produce that evidence. He had no legal right to impose an
investigative burden on the Visa Officer and the Visa Officer cannot be faulted
for declining Mr. Hui’s invitation.
[8]
A
fettering argument might have arisen if Mr. Hui had produced any
significant corroborating evidence which was then rejected in a perfunctory
way. But here the evidence Mr. Hui submitted was of limited value in
responding to the Visa Officer’s stated concerns. It was inconclusive and it
was given the weight it deserved – that is, that the Visa Officer accepted that
Mr. Hui had established some sort of connection to the Shenglin Restaurant
but nothing more. That was a reasonable conclusion and it cannot be
successfully attacked on judicial review.
[9]
Mr. Hui’s
remaining complaints involve either the weighing or the interpretation of
evidence. These are not appropriate matters for judicial review. While it is
true that some of the evidence was open to a different interpretation, the Visa
Officer’s approach cannot be faulted for that reason.
[10]
It
was also open to Mr. Hui to produce affidavits or other reliable evidence
to address the point he now makes that the kitchen staff did not deny any
knowledge of his employment but merely remained mute when approached. That, of
course, is not how the AFU investigator interpreted their responses (ie. “The
Head Chef did not know the applicant and all but one of the kitchen staff said
that they did not know the applicant”) and it was reasonable for the Visa
Officer to adopt this view of their evidence.
[11]
Mr. Hui’s
misrepresentations and omissions were sufficient to support a finding under s 40
of the IRPA. The fact alone that he did not bother to report his
alleged change of employment until weeks later when he was confronted by the
AFU investigator is a serious breach of the duty of candour and it reasonably
supports an inference that he was covering up the true facts of his employment
in China.
[12]
Mr. Hui
also contends that the Visa Officer breached the duty of fairness by failing to
consult with officials from Saskatchewan before his claim was
rejected. This argument has no merit. Article 4.10 of the Canada-Saskatchewan
Immigration Agreement requires Canada to notify Saskatchewan of the
reasons for a possible refusal of a provincial nominee. Here that was done when
Canada copied Saskatchewan with the
Visa Officer’s fairness letter and Saskatchewan declined to intervene.
Canada met its
contractual obligations and no further duty was owed to Mr. Hui.
[13]
For
the foregoing reasons, this application for judicial review is dismissed.
[14]
Neither
party proposed a certified question and no issue of general importance arises
on this record.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is dismissed.
"R.L.
Barnes"
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