Date: 20081118
Docket: IMM-970-08
Citation: 2008 FC 1284
Ottawa, Ontario, November 18, 2008
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
LI,
DI TANG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for leave pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) to commence an
application for judicial review of a decision of a visa officer (the officer) dated
December 14, 2007, where the officer determined that Li, Di Tang (the
Applicant) does not meet the requirements for the issuance of a work permit.
I. Issues
[2]
This
application presents the following questions:
1. What
is the appropriate standard of review?
2. Did
the officer err in deciding not to grant the work permit?
3. Did
the offer breach the principles of natural justice by not affording the
Applicant the opportunity to be heard in an interview?
4. Are
the officer’s reasons adequate?
[3]
The
application for judicial review shall be allowed for the following reasons.
II. Factual
Background
[4]
The
Applicant is a 34 year old citizen of the People’s Republic of China (PRC or
China) who was offered a job at the Silver Dragon Restaurant in Halifax, Nova Scotia. The
employment offer remained in effect until July 31, 2008 to provide the
Applicant sufficient time to obtain a work permit.
[5]
Service
Canada issued a positive Labour Market Opinion (LMO) and validated the offer of
employment. The Applicant then applied for a two-year work permit to the
Canadian Consulate in Shanghai, China, on December 13,
2007. Obtaining a positive LMO is one of the requirements for a work permit.
[6]
The
following day, on December 14, 2007, the Applicant was told to come collect his
documents and refusal letter.
III. Decision
Under Review
[7]
The
visa officer denied the application because he was not satisfied that the Applicant
would leave Canada upon the
expiry of the work permit.
[8]
The
Applicant had to establish that he meets all the requirements of Part 11 of the
Immigration and Refugee Protection Regulations, SOR/2002-227 (the
Regulations), pertaining to the worker class. Specifically, the Applicant must
satisfy the visa officer that he will not contravene the conditions of
admission and that he does not belong to a category of persons inadmissible
under the Act. The Applicant must also satisfy the visa officer that
his intentions are bona fide and that he will leave Canada by the end
of the period authorized for his stay.
[9]
The
officer’s Computer Assisted Immigration Processing System (CAIPS) notes state
the following reasons, among other information, for refusing the Applicant’s
work permit application:
PA HAS NO TRAVEL HISTORY
APP IS SINGLE, WITH LIM FAM TIES IN PRC
…
PC’S LATES RESTAURANT JOB IN SHANGHAI AS
A COOK SINCE SEP06, MTHLY SAL RMB 5,500; APPROX $9400.00 CDN ANNUAL; NO PROMISE
OF JOB BEING RETAINED TIL HE RTNS TO PRC FROM XIAN YUE HIEN RESTAURANT;
JOB IN CAN TO PAY $30K ANNUAL, 3XS
HIGHER, THUS INCENTIVE TO REMAIN BEYOND APPROVED TIME IN CANADA IS VERY HIGH;
PC IN LATEST JOB LESS THAN 1 YEAR AND
ALREADY LOOKING TO CHANGE EMPLOYERS;
…
APPLT HAS FAILED TO DEMONSTRATE THAT HE
IS WELL ESTABLISHED IN PRC AND/OR HAS SUFFICIENT TIES TO ENSURE DEPARTURE FROM
CDA AT THE END OF HIS AUTHORIZED STAY;
BASED ON ALL INFO SUBMITTED - I’M NOT
SATISFIED THAT APPLT IS A BF VISITOR TO CDA WHO WOULD DEPART CANADA AS
REQUIRED;
IV. Pertinent
Legislation
[10]
The
relevant statutory provisions are attached to these reasons as Schedule “A”.
V. Analysis
A. What is the appropriate standard
of review?
[11]
The
Applicant submits that the Court should accord less deference for the decision
of certain administrative entities, given the exposure of the Court to the
factual domain in which these tribunals operate. The Applicant believes the
Court’s experience in these factual domains should constitute the expertise
needed to override the different boards’ jurisdictions in their own domains of
expertise.
[12]
The
Respondent argues that the Applicant disregards the fact that expertise is also
very much understood as the advantage that trial-level deciders have over
reviewing courts because of the opportunity they are provided to try and weigh
the evidence first-hand.
[13]
The
Respondent submits that the standard of review that applies to factual issues
in the context of immigration practice and federal statutory practice more
generally, is found at subsection 18.1(4)(d) of the Federal Courts Act,
R.S., 1985, c. F-7 (Sketchley v. Canada (Attorney General), 2005 FCA
404, [2006] 3 F.C.R. 392). The statutory standard of review for questions of
fact has traditionally been associated with the standard of patent
unreasonableness which commands the highest possible degree of deference to a
board’s decisions. According to the Respondent, this Court has recently ruled
that Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190, did not open the door to a lesser degree of deference than the degree
that existed prior to the abolition of patent unreasonableness standard (Bielecki
v. Canada (Minister of
Citizenship and Immigration), 2008 FC 442, 166 A.C.W.S. (3d) 305).
Therefore, as it applies to judicial review in the domain of immigration or
refugee law, Dunsmuir does not change the analytical process and the
Applicant’s attempt to argue otherwise is unnecessary.
[14]
The
standard of review applicable to a visa officer’s decision was considered by
the Court in Hassani v. Canada (Minister of Citizenship and Immigration),
2006 FC 1283, [2007] 3 F.C.R. 501, where it was noted that in the context of a
visa officer’s general decision, the applicable standard of review was patent
reasonableness.
[15]
Following
the recent decision in Dunsmuir, the question of whether the visa
officer erred in their factual assessment of the application is reviewable
according to the new standard of reasonableness.
[16]
As
a result, this Court will only intervene to review a visa officer’s decision if
it does not fall “within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir, above, at paragraph
47). For a decision to be reasonable there must be justification, transparency
and intelligibility within the decision making process.
[17]
Furthermore,
questions of procedural fairness should always be assessed on a correctness
standard (Ellis-Don Ltd. v. Ontario (Labour Relations
Board),
2001 SCC 4, [2001] 1 S.C.R. 221 at paragraph 65). When a breach of the duty of
fairness is found, the decision should generally be set aside (Sketchley,
above, at paragraph 54).
B. Did the officer err in
deciding not to grant the work permit?
[18]
According
to the Applicant, as set out in section 3 of the Act, job validations exist to
relieve Canadian employers from manpower shortages. The Applicant submits that
there is no logic between the consideration of the facts and the officer’s
conclusion in the case at bar.
[19]
The
Applicant did not want to ask for a letter from his current employer until the
uncertainty of his obtaining a work permit was sorted out. However, the
Applicant did provide corroboration of his experience as a cook by providing
confirmation of his employment from 2004 until 2006. He also provided evidence
of his current employment at Xianyehien Restaurant with a “Certificate of Post”
and photos of himself at work in the kitchen. If the officer required an actual
employment letter, this should have been communicated to the Applicant.
[20]
Furthermore,
the Applicant argues that the fact that he has worked in six different
restaurants is inconclusive of an intention to stay in Canada, let alone
overstay. This reasoning should have been explained by the officer.
[21]
The
Applicant submits that applicants must not guess beforehand what interrogations
or problems officers may still have after they have filed the required
documentation. The decision maker should ask for any additional information
which may be needed to assess the Applicant’s application.
[22]
The
Respondent submits that according to the Document Checklist, the Applicant was
required to submit an original letter with the address and phone number of his
current work unit stating his current position, duties, income and benefits. If
it was impossible for the Applicant to submit any proof of his actual
employment, this should have been mentioned in his letter, the same way it was
done for all other unobtainable certificates referred to in his application.
[23]
Furthermore,
the Respondent alleges that it is the responsibility of the Applicant to
provide the visa officer with all necessary material in support of his
application (Madan v. Canada (Minister of Citizenship and Immigration),
(1999) 172 F.T.R. 262, 90 A.C.W.S. (3d) 465 (F.C.T.D.); Kostev v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 913, 107 A.C.W.S. (3d) 1066).
The visa officer had no obligation to seek further information when the Applicant
was aware of the onus he had to meet.
[24]
The
fact that the Applicant will receive three times the salary he used to receive in
China may perhaps
be conclusive of an incentive to stay, but this is only the case when the cost
of living is also considered. The difference in the cost of living in Canada
and China was not
considered in the case at bar, therefore the Applicant submits that this
conclusion by the officer was unreasonable.
[25]
The
Respondent argues that it was certainly more than reasonable for the visa
officer to consider the fact that the Applicant would triple his salary while
working in Canada as an
incentive to stay.
[26]
The
Applicant contends that if a travel history without overstays can be indicative
of good faith, having no travel history is inconclusive of whether a person
will overstay. The conclusion would postulate that people who never travelled
are more likely to overstay; a conclusion that would be illogical because not
having travelled tells nothing about offending (Ogunfowora v. Canada (Minister of
Citizenship and Immigration), 2007 FC 471, 157 A.C.W.S. (3d) 628).
[27]
The
Applicant submits that the officer’s conclusion that he has limited family ties
in PRC is unreasonable. Being single, in a country with a one-child policy, does
not permit the officer to automatically conclude that the Applicant has limited
family ties. The Applicant’s father, mother and brother all live in China. This does
not make it more likely that the Applicant will want to stay in another
country, let alone overstay (Zhang v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1493, 244 F.T.R. 299). The
Applicant believes this was a gross generalization. At the very least, this
conclusion would have called for a further investigation by the officer of the
Applicant’s family ties and establishment.
[28]
The
Applicant advances that the officer needs to show a probability of the
occurrence or a serious possibility of overstaying or breaching the
conditions of his work permit. The officer cannot satisfy himself of a simple
possibility, as this would amount to speculation. The Applicant believes the
considerations in this case do not allow the conclusion that the Applicant will
have an incentive to stay, let alone overstay.
[29]
Even
if the officer’s conclusion that the Applicant has an incentive to stay is
found to be reasonable, this would not be enough to deny the Applicant a visa.
The Applicant submits that if he had an incentive to stay, he would ask for an
extension of his visa or anything that is likely to entitle him to what he is
seeking.
[30]
From
the officer’s CAIPS notes and the information provided in the Applicant’s
application, I find that the visa officer has made no serious attempt to
determine the strength of the ties of the Applicant to China. According
to the Act, the burden of proof rests on the Applicant, who has attempted to
discharge this duty by providing information on his family in China, as well as
employment and education information. I find the officer did not sufficiently
take into account the fact that the Applicant’s family ties to China are quite
strong, since he has no family members elsewhere than in PRC (Zhang,
above). On this basis, I believe that the refusal of the visa was based on an
erroneous finding of fact, which did not take into account the material
evidence which was presented.
C.
Did the officer breach the principles of natural justice by not affording the
Applicant the opportunity to be heard in an interview?
[31]
The
refusal of the Applicant’s application was on paper and he was never interviewed.
The Applicant filed his application on December 13, 2007 and was told to pick
up his documents and refusal letter at the Canadian Consulate the very next
day.
[32]
The
Applicant is aware that due process does not necessarily require an interview,
but according to Regulation 200(1): “an officer shall issue a work
permit to a foreign national if, following an examination, it is established
that…” According to the Applicant, there would be no need to specify an
“examination” if the decision could be made on paper. The Applicant believes
that the meaning of “examination” depends on the context of each case and that
an interview may be more prudent when it comes to forming a reasonable opinion
on something more elusive such as an overstay or an offence under the law.
[33]
The
Applicant argues that the officer’s conclusion was based on a generalized
criteria, no sufficient establishment and ties, instead of the specifics of
this case pertaining to the possibility of an overstay (Bonilla v. Canada (Minister of
Citizenship and Immigration), 2007 FC 20, 154 A.C.W.S. (3d) 692).
[34]
The
Respondent believes it is important to put the Applicant’s procedural fairness
arguments in context (Qin v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 815, 116 A.C.W.S. (3d) 100 at
paragraphs 5 to 7). According to the Respondent, the visa officer was not
obliged to interview the Applicant or to take other steps to allow him to
respond to his concerns. The onus does not shift to the visa officer to
interview the Applicant or to take other steps to satisfy his concerns arising
from the documents he did provide (Chow v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 996, 211 F.T.R. 90.
[35]
There
is no statutory right to an interview (Ali v. Canada (Minister of Citizenship
and Immigration), (1998) 151 F.T.R. 1, 79 A.C.W.S. (3d) 140 at paragraph
28). However, procedural fairness requires that an Applicant be given the
opportunity to respond to an officer’s concerns under certain circumstances. When
no extrinsic evidence is relied on, it is unclear when it is necessary to
afford an Applicant an interview or a right to respond. Yet, the jurisprudence
suggests that there will be a right to respond under certain circumstances.
[36]
In
Bonilla, above, at paragraph 27, the Court concluded that:
This is not a case in which the
applicant’s application itself was incomplete, but a situation where the
officer subjectively formed an opinion that the applicant would not return to Colombia following the completion of
her studies. In my view, the officer in this situation should have allowed the
applicant an opportunity to respond to his concerns. The applicant had no way
of knowing that the visa officer would act upon his view that those in their
“formative years” may not study in Canada
for a four year period, since they would be unlikely to leave the country. The
visa officer’s failure to give the applicant an opportunity to respond to his
concerns, on the facts of this case, amounted to a breach of the rules of
natural justice. …
[37]
In
the case at bar, there is nothing in the Applicant’s application, other than
the reference to the higher salary in Canada, to suggest the Applicant intends
to stay in Canada permanently.
[38]
Furthermore,
the Applicant had no way of knowing that the officer would rely on the
Applicant’s higher salary in Canada, the fact that he often changed jobs in
China, the fact that his employment history was difficult to obtain or that he
apparently had limited family ties in PRC. In the case at bar, an interview
would have been appropriate for the Applicant to explain the extent of his
family ties in China. He would have been able to communicate the
information which is provided in his further affidavit. The Court finds that the
visa officer’s failure to give the Applicant an opportunity to respond to his
concerns, on the facts of this case, amounted to a breach of the rules of
natural justice.
[39]
It
is therefore unnecessary to address the last issue.
[40]
The
parties have not presented any question of important general importance and
none arises.
JUDGMENT
THIS COURT
ORDERS that the application for
judicial review be allowed. The matter is referred to a different visa
officer for redetermination. No question is certified.
“Michel
Beaudry”
Schedule “A”
Pertinent legislation
Immigration
and Refugee Protection Regulations, SOR/2002-227 (the Regulations) 200(1) and
200(3): work permits
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200. (1) Subject to subsections (2) and (3),
an officer shall issue a work permit to a foreign national if, following an
examination, it is established that
(a) the
foreign national applied for it in accordance with Division 2;
(b) the
foreign national will leave Canada by the end of the period authorized
for their stay under Division 2 of Part 9;
(c) the
foreign national
(i) is described
in section 206, 207 or 208,
(ii) intends
to perform work described in section 204 or 205, or
(iii) has been
offered employment and an officer has determined under section 203 that the
offer is genuine and that the employment is likely to result in a neutral or
positive effect on the labour market in Canada; and
(d) [Repealed,
SOR/2004-167, s. 56]
(e) the
requirements of section 30 are met.
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200. (1) Sous réserve des
paragraphes (2) et (3), l’agent délivre un permis de travail à l’étranger si,
à l’issue d’un contrôle, les éléments suivants sont établis :
a)
l’étranger a demandé un permis de travail conformément à la section 2;
b)
il quittera le Canada à la fin de la période de séjour qui lui est applicable
au titre de la section 2 de la partie 9;
c)
il se trouve dans l’une des situations suivantes :
(i)
il est visé par les articles 206, 207 ou 208,
(ii)
il entend exercer un travail visé aux articles 204 ou 205,
(iii)
il s’est vu présenter une offre d’emploi et l’agent a, en application de
l’article 203, conclu que cette offre est authentique et que l’exécution du
travail par l’étranger est susceptible d’avoir des effets positifs ou neutres
sur le marché du travail canadien;
d)
[Abrogé, DORS/2004-167, art. 56]
e)
il satisfait aux exigences prévues à l’article 30.
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(3) An officer
shall not issue a work permit to a foreign national if
(a) there are
reasonable grounds to believe that the foreign national is unable to perform
the work sought;
(b) in the
case of a foreign national who intends to work in the Province of Quebec and
does not hold a Certificat d'acceptation du Québec, a determination under
section 203 is required and the laws of that Province require that the
foreign national hold a Certificat d'acceptation du Québec;
(c) the
specific work that the foreign national intends to perform is likely to
adversely affect the settlement of any labour dispute in progress or the
employment of any person involved in the dispute, unless all or almost all of
the workers involved in the labour dispute are not Canadian citizens or
permanent residents and the hiring of workers to replace the workers involved
in the labour dispute is not prohibited by the Canadian law applicable in the
province where the workers involved in the labour dispute are employed;
(d) the
foreign national seeks to enter Canada as a live-in caregiver and the foreign
national does not meet the requirements of section 112; or
(e) the
foreign national has engaged in unauthorized study or work in Canada or has failed to comply with a condition of a previous
permit or authorization unless
(i) a period
of six months has elapsed since the cessation of the unauthorized work or
study or failure to comply with a condition,
(ii) the study
or work was unauthorized by reason only that the foreign national did not
comply with conditions imposed under paragraph 185(a), any of subparagraphs
185(b)(i) to (iii) or paragraph 185(c);
(iii) section
206 applies to them; or
(iv) the
foreign national was subsequently issued a temporary resident permit under
subsection 24(1) of the Act.
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(3)
Le permis de travail ne peut être délivré à l’étranger dans les cas
suivants :
a)
l’agent a des motifs raisonnables de croire que l’étranger est incapable
d’exercer l’emploi pour lequel le permis de travail est demandé;
b)
l’étranger qui cherche à travailler dans la province de Québec ne détient pas
le certificat d’acceptation qu’exige la législation de cette province et est
assujetti à la décision prévue à l’article 203;
c)
le travail spécifique pour lequel l’étranger demande le permis est
susceptible de nuire au règlement de tout conflit de travail en cours ou à
l’emploi de toute personne touchée par ce conflit, à moins que la totalité ou
la quasi-totalité des salariés touchés par le conflit de travail ne soient ni
des citoyens canadiens ni des résidents permanents et que l’embauche de
salariés pour les remplacer ne soit pas interdite par le droit canadien
applicable dans la province où travaillent les salariés visés;
d)
l’étranger cherche à entrer au Canada et à faire partie de la catégorie des
aides familiaux, à moins qu’il ne se conforme à l’article 112;
e)
il a poursuivi des études ou exercé un emploi au Canada sans autorisation ou
permis ou a enfreint les conditions de l’autorisation ou du permis qui lui a
été délivré, sauf dans les cas suivants :
(i)
une période de six mois s’est écoulée depuis les faits reprochés,
(ii)
ses études ou son travail n’ont pas été autorisés pour la seule raison que
les conditions visées à l’alinéa 185a), aux sous-alinéas 185b)(i) à (iii) ou
à l’alinéa 185c) n’ont pas été respectées,
(iii)
il est visé par l’article 206,
(iv)
il s’est subséquemment vu délivrer un permis de séjour temporaire au titre du
paragraphe 24(1) de la Loi.
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Regulations
203(1) and 203(3): effect on the labour market
|
203. (1) On application under Division 2
for a work permit made by a foreign national other than a foreign national
referred to in subparagraphs 200(1)(c)(i) and (ii), an officer shall
determine, on the basis of an opinion provided by the Department of Human
Resources Development, if the job offer is genuine and if the employment of
the foreign national is likely to have a neutral or positive effect on the
labour market in Canada.
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203. (1) Sur demande de permis de
travail présentée conformément à la section 2 par un étranger, autre que
celui visé à l’un des sous-alinéas 200(1)c)(i) et (ii), l’agent décide, en se
fondant sur l’avis du ministère du Développement des ressources humaines, si
l’offre d’emploi est authentique et si l’exécution du travail par l’étranger
est susceptible d’avoir des effets positifs ou neutres sur le marché du
travail canadien.
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(3) An opinion
provided by the Department of Human Resources Development shall be based on
the following factors:
(a) whether
the employment of the foreign national is likely to result in direct job
creation or job retention for Canadian citizens or permanent residents;
(b) whether
the employment of the foreign national is likely to result in the creation or
transfer of skills and knowledge for the benefit of Canadian citizens or
permanent residents;
(c) whether
the employment of the foreign national is likely to fill a labour shortage;
(d) whether
the wages offered to the foreign national are consistent with the prevailing
wage rate for the occupation and whether the working conditions meet
generally accepted Canadian standards;
(e) whether
the employer has made, or has agreed to make, reasonable efforts to hire or
train Canadian citizens or permanent residents; and
(f) whether
the employment of the foreign national is likely to adversely affect the
settlement of any labour dispute in progress or the employment of any person
involved in the dispute.
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(3)
Le ministère du Développement des ressources humaines fonde son avis sur les
facteurs suivants :
a)
l’exécution du travail par l’étranger est susceptible d’entraîner la création
directe ou le maintien d’emplois pour des citoyens canadiens ou des résidents
permanents;
b)
l’exécution du travail par l’étranger est susceptible d’entraîner le
développement ou le transfert de compétences ou de connaissances au profit
des citoyens canadiens ou des résidents permanents;
c)
l’exécution du travail par l’étranger est susceptible de résorber une pénurie
de main-d’oeuvre;
d)
le salaire offert à l’étranger correspond aux taux de salaires courants pour
cette profession et les conditions de travail qui lui sont offertes satisfont
aux normes canadiennes généralement acceptées;
e)
l’employeur a fait ou accepté de faire des efforts raisonnables pour
embaucher ou former des citoyens canadiens ou des résidents permanents;
f)
le travail de l’étranger est susceptible de nuire au règlement d’un conflit
de travail en cours ou à l’emploi de toute personne touchée par ce conflit.
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