Date:
20130411
Docket:
IMM-8323-12
Citation:
2013 FC 364
Ottawa, Ontario, April 11, 2013
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
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FU RONG
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Applicant
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and
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THE 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 under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act] of a decision by the
Economic Unit Supervisor at the Canadian Embassy in Beijing [the officer],
dated June 28, 2012. The officer refused the applicant’s application for a
permanent resident visa as a member of a provincial nominee class on the basis
that she was inadmissible to Canada for misrepresentation under paragraph 40(1)(a)
of the Act.
FACTS
[2]
The
applicant is a citizen of China. On June 10, 2009, the Province of Manitoba nominated her for permanent residence in Canada under its Provincial Nominee Program,
along with her spouse and daughter.
[3]
The
applicant stated on Schedule 1 to her application that since January 2004 she
had worked for the Tangshan Huaxin Electromechanical company.
[4]
On
March 10, 2011, a visa officer asked that telephone verification of the
applicant’s employment as an accountant at the Tangshan Huaxin
Electromechanical Plant [the company] be conducted. This request was forwarded
to the Anti-Fraud Unit of the Canadian Embassy in Beijing.
[5]
On
March 26, 2012, a member of the Anti-Fraud Unit [referred to as “RHO” in the Computer Assisted Immigration Processing System (CAIPS) notes] phoned the
company to verify the applicant’s employment. An individual answered claiming
to be Mr. Han, the receptionist in the administration office. He confirmed the
company’s name and address and said the name of the company’s boss was Song
Xiaowen, but he did not have Song Xiaowen’s contact information. He stated the
company had 30 to 40 employees, including three accountants (surnamed Song, Li
and Han). He did not know who the applicant was. He also stated the company was
on leave that day and he was the only one available in the office.
[6]
RHO
proceeded to phone the applicant. RHO wrote in the CAIPS notes that the
applicant first stated she was at work that day, but then said she was not in
the office but was in Qinjuangdao on a business trip, given that her
supervisor, Song Shufen, had sent her there to see a client. She explained that
because her company was having a difficult time, she needed to do some sales
even though she was an accountant. RHO also noted that the applicant could not
provide her boss’ full name and that the applicant stated the company had
around 10 office staff and around 100 workers. She stated there were two other
accountants with the company, and their names were Yu Huibua and Zhai Xiaofang.
The applicant also told RHO that the company was not on leave that day and she
was only able to provide the company’s phone number after shuffling through
some papers.
[7]
The
two phone calls raised concerns for a visa officer that the applicant had
misrepresented her employment experience as an accountant with the company. On
April 3, 2012, this visa officer sent a procedural fairness letter [the
fairness letter] to the applicant, detailing the discrepancies between the
conversations with her and Mr. Han and inviting her to make representations
within 45 days.
[8]
In
response to the fairness letter, the applicant provided a personal statement
attempting to respond to the visa officer’s concerns about discrepancies in the
phone conversations. She also submitted the company’s business license and
payroll records, as well as two letters signed by representatives of her
employer which stated that she was employed as Director of Bookkeeping since
January 2004. The letters also responded to other concerns raised in the fairness
letter.
THE IMPUGNED
DECISION
[9]
The
officer concluded that the applicant was inadmissible to Canada under paragraph
40(1)(a) of the Act because she misrepresented her employment as an accountant
/ Director of Bookkeeping at the Tangshan Huaxin Electromechanical Plant and
that she would remain inadmissible for two years pursuant to paragraph
40(2)(a).
[10]
She
came to this determination through the results of the telephone verifications
performed on March 26, 2012 and that the applicant’s reply to the fairness letter
did not alleviate the officer’s concerns.
[11]
In
the CAIPS notes, the officer explained why the applicant had not alleviated the
concerns outlined in the fairness letter:
-
Her
explanation for the initial inconsistency related to her whereabouts when she
was called on March 26, 2012, namely that she was not yet completely awake and
did not want to make a bad impression, was self-serving and not credible;
-
The
applicant could not provide the full name of the boss of the company. Her
explanation that he was rarely at the factory was self-serving, not credible,
and simply did not make sense given that the boss was the person that recruited
her, was the head of the company, and was a relative of her supervisor;
-
The
applicant’s explanations for why the information provided by Mr. Han was
incorrect were not credible; and
-
The
applicant had not provided updated employment information to support her claim
that her duties now included business travel in order to make sales for the
company.
[12]
In
the CAIPS notes, the officer also noted that the applicant’s reply to the
fairness letter raised an additional discrepancy: the payroll records she
submitted indicated her time wage as RMB 3200 per month and did not list a real
wage, while the applicant’s employment letter on file stated that she earned
RMB 4000 per month.
[13]
The
officer noted that she would not request a verification of the documents in the
applicant’s reply to the fairness letter because the references could not be
considered reliably impartial and the verifying authorities may have been
co-opted to provide false verifications. Accordingly, she accorded less weight
to the documents than to the information provided in the telephone
verification.
[14]
The
issue in the present application is whether the officer erred in refusing the
applicant’s application.
ARGUMENTS AND
ANALYSIS
Applicant’s
argument
[15]
The
applicant submits the officer erred by accepting Mr. Han’s evidence without any
doubt, in spite of the fact that the number of employees stated by Mr. Han
contradicted the information obtained about the company online and that Mr. Han
could not provide the Embassy with:
-
the
full names of the people that he said were the accountants in the Plant;
-
the
phone number of Song Xiaowen, who he considered to be the boss;
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the
actual accountants in the Plant, according to the applicant;
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the
actual ownership situation of the Plant, given that his evidence about the
ownership had been contradicted by the business license the applicant provided
to the Embassy; and
-
confirmation
that the applicant was employed at the Plant, in spite of later confirmation by
payroll records.
[16]
The
applicant affirms Mr. Han was inexperienced at the time the Embassy called him
and on his probationary period at the time. She notes the following:
- the
English translation of an email she sent the Embassy following their phone call
with her, both “volunteer” and “temporary personnel” were used to describe Mr.
Han;
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In
the letter from her employer that she submitted to the Embassy following the
procedural fairness letter, Mr. Han was described as a “temporary member”; and
-
Mr.
Han did not appear on the payroll records for March, 2012. He received payment
by way of adjustments to the April payroll.
[17]
The
applicant emphasizes that the officer erred by not giving any positive
consideration to the credible documentation she submitted in response to the
fairness letter to support her statements during her telephone interview,
including a letter of certification signed by the three highest representatives
of her company, payroll records, and business license. For example, the officer
failed to consider that the payroll records confirmed the applicant’s
employment, and instead found that the payroll records indicated a wage for the
applicant that was inconsistent with the wage indicated in her employment
letter on file.
[18]
The
officer also erred by deciding without proper analysis that verifying
authorities may have been co-opted to provide false verifications. There was
absolutely no evidence that the applicant may have co-opted verifying
authorities and, in any case, she would not have needed to do so since
she had actually been employed by the Plant since 2004. The officer failed to
consider, among other things, whether the applicant had sufficient means to
co-opt verifying authorities, how the letter of certification would have been
signed by all three of the highest representatives of the Plant, whether the
Plant or the applicant would have created false payroll records and submitted
them to the Embassy, or whether the documents submitted by the Plant could have
been verified in some objective way.
Respondent’s
argument
[19]
The
respondent submits it was entirely reasonable for the officer to rely on the
inconsistencies and concerns she noted in the CAIPS notes to find that the applicant
had misrepresented her employment at the Plant and that none of the applicant’s
minor factual concerns vitiate the officer’s decision.
[20]
Contrary
to the applicant’s assertions, it was reasonably open for the officer to impugn
the applicant’s credibility based on the different answers Mr. Han gave
regarding the names of the accountants at the Plant and the ownership situation
of the Plant. Unlike the applicant’s submissions in response to the fairness
letter, there was nothing self-serving about Mr. Han’s evidence. He gave
straight answers to the questions he was asked. As there was no consequence to
Mr. Han admitting that he did not know the answers to the questions he was
asked, the respondent submits his evidence was inherently reliable.
[21]
Moreover
for the respondent, the officer considered the documents and notarized
statements that the applicant submitted in response to the fairness letter and
reasonably assigned them little weight, as she found they were self-serving and
not credible. Regarding the payroll records in particular, they were considered
by the officer, but in the face of a contradiction in the applicant’s own
evidence, the officer reasonably drew an adverse inference and no positive
consideration was warranted.
[22]
Even
if the officer’s comments regarding false verifications were improper in any
way, which the respondent denies, the officer was simply providing reasons as
to why the applicant was not afforded a procedural step to which she was not
otherwise entitled.
[23]
I
disagree with the respondent’s position for the following reasons.
[24]
The
applicant provided numerous documents to respond to the fairness letter:
- a personal
statement responding to the concerns raised in the fairness letter;
- a notarized
letter (the “letter of certification”) signed by the company’s legal
representative, original legal representative, and the person in charge of
finance and marketing, corroborating the information in the
above-mentioned personal statement and indicating that Mr. Han did not
know most of the company’s administrative staff when he spoke with the
Canadian Embassy;
- a letter
from the company’s original legal representative, corroborating the
information the applicant provided to the Canadian Embassy over the phone
and explaining that the person who answered the phone at the Plant was
unfamiliar with the company’s staff;
- the
company’s business license, which corroborated the applicant’s and
employer’s statements that the company’s legal representative had recently
changed; and
- the
company’s payroll records from December 2011 to March 2012, all of which
listed the applicant’s name.
[25]
The
officer’s reasons for preferring the information provided by Mr. Han over the
information provided by the applicant and her employer were as follows (in the
CAIPS notes):
The further documents submitted by the applicant do
not overcome the concerns 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.
I gave more weight to the telephone verification
report than to the information provided subsequent to the receipt of our
procedural fairness letter, as this appeared to have been prepared for
presentation purposes only. Now that the Applicant has been alerted to our
concerns, any further verifications of this information will not yield accurate
results as the verifying authorities are now aware of the circumstances and may
have been co-opted to provide false verifications.
I do not consider that contacting the references
provided by the applicant would address my concerns because they are provided
by the applicant after she received our letter of concern and cannot therefore
be considered reliable sources of impartial information.
[Emphasis added]
[26]
In
my view, the officer failed to adequately explain why she preferred a telephone
conversation with the employer’s receptionist over the information provided by
the applicant and her employer in response to the fairness letter. By relying
on the information Mr. Han provided over the telephone, the officer essentially
found that the company’s December 2011 to March 2012 payroll records were
falsified and that the company representatives were either not telling the
truth in their letters or that the letters themselves were falsified. The officer
did not explain why these documents were rejected. Rather, the officer’s CAIPS
notes focus on minor inconsistencies between the information the applicant and
Mr. Han gave over the phone, even though these inconsistencies were reasonably
and consistently explained in the documents provided by the applicant and her
employer. Moreover, many of the inconsistencies which concerned the officer
were only peripheral to the core issue of whether the applicant had
misrepresented her employment.
[27]
The
officer’s focus on the information provided by Mr. Han to the exclusion of the
documentary evidence suggests a closed mind with disregard for the documentary
evidence and an absence of any true weighing of the positive and negative
evidence (Paulino v Canada (Citizenship and Immigration), 2010 FC
542 at paras 59-62).
[28]
Furthermore,
in my opinion the officer erred in fact by stating that the applicant did not
address the inconsistency between her and Mr. Han’s answers regarding the
number of staff employed by the company. The applicant did indeed address this
inconsistency. The officer ignored the fact that in the notarized letter from
company management that the applicant submitted as part of her response to the
fairness letter, the management explained that the Plant had more than 100
employees, but because the Plant had suffered a heavy loss in production in
recent years, most of the employees had left the Plant on holiday and only a
small number of the employees had stayed in the Plant to process incoming
materials.
[29]
I
am also perplexed by the officer’s statement that “under these circumstances
verifying authorities may have been co-opted to provide false verifications”.
As noted by the applicant, there was no evidence before the officer that the
applicant may have co-opted the authorities who verified her work experience
and the accuracy of the information she gave RHO over the telephone on March
26, 2012.
[30]
I
disagree with the respondent that the officer was simply providing reasons as
to why the applicant was not being afforded a procedural step to which she was
not otherwise entitled. The excerpt above demonstrates that the officer’s
decision was founded in part on the possibility that the applicant had co-opted
the verifying authorities.
[31]
Moreover,
it was unreasonable for the officer to not contact the representatives of the
company on the basis that the letters signed by the company representatives
were provided after the applicant received the fairness letter and could not
therefore be considered reliable sources of impartial information. This reason
does not make sense to me, given that the goal of the fairness letter was to
allow the applicant an opportunity to address certain concerns and
documentation issued by the applicant’s stated employer was the strongest and
perhaps only way to address those concerns.
[32]
Accordingly,
in my view, it was unreasonable for the officer to find that the applicant had
misrepresented her employment.
[33]
For
these reasons, the application for judicial review is granted and the matter is
referred for re-determination by a different officer.
JUDGMENT
THIS COURT'S
JUDGMENT is that:
1. The
application for judicial review is granted and the decision is quashed;
2. The matter is
referred for re-determination by a different officer; and
3. There is no
question for certification.
“Danièle
Tremblay-Lamer”
ANNEX
Relevant
Legislation
Immigration
and Refugee Protection Act,
SC 2001, c 27:
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Misrepresentation
40.
(1) A permanent resident or a foreign national is inadmissible for misrepresentation
(a)
for directly or indirectly misrepresenting or withholding material facts
relating to a relevant matter that induces or could induce an error in the
administration of this Act;
(b)
for being or having been sponsored by a person who is determined to be
inadmissible for misrepresentation;
(c)
on a final determination to vacate a decision to allow the claim for refugee
protection by the permanent resident or the foreign national; or
(d)
on ceasing to be a citizen under paragraph 10(1)(a) of the Citizenship Act,
in the circumstances set out in subsection 10(2) of that Act.
Application
(2)
The following provisions govern subsection (1):
(a)
the permanent resident or the foreign national continues to be inadmissible
for misrepresentation for a period of two years following, in the case of a
determination outside Canada, a final determination of inadmissibility under
subsection (1) or, in the case of a determination in Canada, the date the
removal order is enforced; and
(b)
paragraph (1)(b) does not apply unless the Minister is satisfied that the
facts of the case justify the inadmissibility.
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Fausses déclarations
40. (1) Emportent interdiction de territoire pour
fausses déclarations les faits suivants :
a) directement ou indirectement, faire une
présentation erronée sur un fait important quant à un objet pertinent, ou une
réticence sur ce fait, ce qui entraîne ou risque d’entraîner une erreur dans
l’application de la présente loi;
b) être ou avoir été parrainé par un répondant
dont il a été statué qu’il est interdit de territoire pour fausses
déclarations;
c) l’annulation en dernier ressort de la décision
ayant accueilli la demande d’asile;
d) la perte de la citoyenneté au titre de l’alinéa
10(1)a) de la Loi sur la citoyenneté dans le cas visé au paragraphe
10(2) de cette loi.
Application
(2) Les dispositions suivantes s’appliquent au
paragraphe (1) :
a) l’interdiction de territoire court pour les
deux ans suivant la décision la constatant en dernier ressort, si le résident
permanent ou l’étranger n’est pas au pays, ou suivant l’exécution de la
mesure de renvoi;
b) l’alinéa (1)b) ne s’applique que si le ministre
est convaincu que les faits en cause justifient l’interdiction.
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