Date: 20081110
Docket: IMM-1592-08
Citation: 2008 FC 1253
Ottawa, Ontario, November 10, 2008
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
CHENG
DONG LIU
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Cheng Dong Liu applied to the Canadian
Embassy in Beijing for a
two-year work permit. He was one of 99 applicants seeking jobs at a meat
processing plant in Alberta
called XL Foods Inc. A visa officer denied Mr. Liu the work permit. The other
applicants were turned down, too.
[2]
The officer discovered, through anonymous tips and an
ensuing investigation, that the applicants were part of an illegal recruitment
scheme which required them to pay heavy fees to intermediate parties (e.g.
recruiters, agents and managers). In addition, the officer learned that some of
the applicants did not really have the required experience to carry out the
jobs they were seeking in Canada. Apparently, the applicants were told to deny knowledge of the
scheme if asked. In the officer’s view, these circumstances made it
unlikely that Mr. Liu would return to China when his permit expired.
[3]
The sole issue is whether Mr. Liu was treated unfairly. Mr. Liu argues
that it was unfair for the officer to deny him an opportunity to respond to the
information about the recruitment scheme that the officer had received from
outside sources. Mr. Liu argues that the officer’s decision should be
overturned. I agree that Mr. Liu was treated unfairly and must, therefore,
allow this application for judicial review.
I.
Factual Background
[4]
Mr. Liu filed his application for a temporary work permit in October
2007. The following month, the officer received two anonymous letters providing
detailed information relating to the group of applicants seeking temporary work
permits in Canada. The letters alleged that applicants were paying fees to
various parties to assist them in gaining entry to Canada. The fees were
substantial – as much as $3,000 up front, and up to $15,000 on issuance of a
visa. Employers were getting kick-backs for providing workers with some basic
skills, which applicants overstated in their applications. The letters gave the
names of the agencies and meat processing plants involved.
[5]
The officer consulted with colleagues at the Australian Embassy because Australia
was also admitting workers under a similar program. Officials from both
embassies investigated the situation by visiting companies allegedly providing
workers. They questioned employees and managers and discovered that the
information they had previously received was substantially accurate.
[6]
In turn, twelve of the applicants were interviewed at the Canadian
Embassy. They confirmed that fees were paid, although the amounts they
mentioned were substantially lower than those reported by others. They did
confirm, however, that their experience as butchers simply involved the use of
knives, while the prospective Alberta employer required experience with power
tools.
II. The
Officer’s Decision
[7]
The officer noted that the applicants would earn a salary of about
$19,700 to $22,300 at their desired jobs in Alberta. He questioned why they would
pay up to $15,000 to recruiters and agents, just for the chance of earning such
a modest salary for two years in Canada. They would expend most of their
take-home pay in the first year just repaying their debt. The officer also
noted that Mr. Liu had few opportunities to advance his prospects in China.
Accordingly, he was not satisfied that Mr. Liu would return there after two
years.
[8]
In the end, the officer concluded that the purpose of the recruitment scheme
was to provide applicants entry to Canada with a view to long-term or permanent
residence, not just a two-year stint at an Alberta abattoir.
III. Did
the Officer Treat Mr. Liu Unfairly?
[9]
The Minister concedes that, generally speaking, decision-makers cannot
rely on extrinsic evidence without providing the persons affected with an
opportunity to respond to it. However, the Minister argues that, in the
circumstances of this case, Mr. Liu can be assumed to have known what the
officer’s concerns were. Given that all of the applicants were represented by
the same immigration consultant and the same recruiting agency, news of the
investigation by Canadian and Australian officials probably spread quickly
among the applicants.
[10]
Further, the Minister argues that providing Mr. Liu with an opportunity
to respond would have been pointless because he could not have said anything
that would have allayed the officer’s concerns. The results of the
investigation were clear. In the same vein, the Minister argues that sending
Mr. Liu’s application back for reconsideration would be a futile exercise since
the result would inevitably be the same.
[11]
I think that the Minister is correct in pointing out that the applicants,
including Mr. Liu, probably knew about the investigation, and were aware that
Canadian officials were concerned about the illegal recruitment scheme and the
applicants’ qualifications for the Alberta jobs. But, if this is so, Mr. Liu
can also be assumed to have known that several applicants were given interviews
at which they would have had a chance to address those concerns. In the
circumstances, he would not have realized that it was incumbent on him to
respond on his own. As Justice Marshall Rothstein has observed, the “question
is whether the applicant had the opportunity of dealing with the evidence” (Dasent
v. Canada (Minister of Citizenship and Immigration), [1994]
F.C.J. No. 1902, at para. 21). Mr. Liu did not have that opportunity.
[12]
As for the question whether a response would have been pointless and,
therefore, a reconsideration of Mr. Liu’s application would be futile, I cannot
agree with the Minister’s position. The investigation disclosed a range of
recruitment fees. The officer acknowledges that the initial amount was between
$300 and $3,000. Yet, the officer states that he would not have “accorded much
weight to any Applicants’ denial that he had not paid an inordinately high
recruitment fee” and “would have expected the applicant to deny this high
recruitment fee in order to disguise his real purpose for coming to Canada”.
[13]
Of course, it is open to an officer to disbelieve an applicant, but only
after giving the applicant a fair chance to respond to concerns arising from
extrinsic sources. The Minister cited case law to the effect that there is no
unfairness in circumstances where there is no way that the applicant could
satisfactorily respond to the officer’s concern: Talwar v. Canada
(Minister of Citizenship and Immigration), 2002 FCT 702; Lord’s
Evangelical Church of Deliverance and Prayer of Toronto v. Canada,
2004 FCA 397. In Talwar, the question was whether the applicant
could respond to a legal restriction on the amount of money he could take out
of India. Justice Carolyn Layden-Stevenson concluded that the applicant could
not respond to something he was powerless to change. In the Lord’s
Evangelical Church case, the Federal Court of Appeal held that, even if the
appellant had been treated unfairly, there was no point setting aside the decision
because the outcome would inevitably have been the same given there were other
grounds to support it. In my view, these cases do not assist the Minister. It
is not clear to me that Mr. Liu was powerless to address the officer’s
concerns. And the officer’s decision was based solely on the question whether
Mr. Liu would return to Canada after two years. Given that the officer’s
conclusion on that point was based primarily on concerns that Mr. Liu had no
chance to address, it is not clear to me that the result would inevitably be
the same.
IV. Conclusion
and Disposition
[14]
Mr. Liu was treated unfairly because he had no chance to respond to the
extrinsic information on which the officer’s decision was based. Accordingly, I
will grant this application for judicial review and order a reconsideration of
Mr. Liu’s application for a temporary work permit by another officer. Neither
party proposed a question of general importance for me to certify, and none is
stated.
JUDGMENT
THIS COURT’S JUDGMENT is
that
1.
The
application for judicial review is allowed.
2.
Mr. Liu’s application for a temporary work permit is referred back
to another officer for reconsideration.
3. No
questions of general importance are stated.
“James
W. O’Reilly”
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