Date:
20130425
Docket:
IMM-4569-12
Citation:
2013 FC 434
Ottawa, Ontario,
April 25, 2013
PRESENT: The
Honourable Madam Justice Simpson
BETWEEN:
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XIAODONG CHEN
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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 ORDER
AND ORDER
[1]
Xiaodong
Chen [the Applicant] has applied for judicial review pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [the
Act] of a decision of a Citizenship and Immigration Canada Visa Officer [the
Visa Officer] made at the Consulate General of Canada in Detroit [the
Consulate], dated May 2, 2012, wherein the Visa Officer refused the Applicant’s
application for permanent residence as a member of the Canadian Experience
Class [the Decision].
[2]
For
the following reasons, the application will be dismissed.
Background
[3]
The
Applicant is a 27 year-old male and a citizen of China. He arrived in Canada on August 22, 2005 on a student visa and completed his studies at the University of Windsor where he was granted a degree in business administration and computer science. He was
issued a work visa, which was valid from March 2010 to March 2013.
[4]
In
March 2010, the Applicant was hired by a wood flooring company, Senlong (Canada) Wood Products Ltd. [Senlong]. For one year, until March 2011, the Applicant worked
four days a week at Senlong. Then, from March 2011 until June 2011, the
Applicant worked for Senlong on a full‑time basis.
[5]
The
Applicant’s application for permanent residence was submitted on June 8, 2011,
based on his experience at Senlong. He listed two National Occupational
Classification [NOC] Codes: retail/wholesale buyer (NOC 6233) and customer
service supervisor (NOC 6211). He was required to show that he held those
positions for a period of one year.
[6]
Senlong’s
General Manager, Ms. Jessie Zhang [the Employer], provided a letter dated June
3, 2011 [the Letter] in support of the Applicant’s application. She provided a
lengthy list of his duties. However, the Visa Officer’s notes show that on
April 12, 2012, before she interviewed the Applicant, she spoke to the Employer
by phone. During that telephone call, when asked what work the Applicant did
for Senlong, the employer simply replied that:
•
He
was a sales representative;
•
He
dealt with customer complaints;
•
He
sometimes helped in the warehouse loading and unloading product.
Needless to say, this description
failed to indicate that the Applicant was a buyer or that he played any
supervisory role. In other words, the Employer failed to give the Visa Officer
most of the information which had been in the Letter.
[7]
The
Employer also told the Visa Officer that:
•
She
had provided the Applicant with 2-3 months of training;
•
The
Applicant was paid monthly, usually by cheque but sometimes in cash;
•
The
Employer supervised the workers at Senlong;
•
Senlong
had six employees whom she described as follows:
o 2
sales persons
o 1
accountant
o 1
warehouse manager
o 1
manager
Assuming that as the General
Manager she was #6, there was no mention of either a Buyer or a Customer
Service Supervisor.
[8]
On
April 12, 2012, the Applicant was interviewed at the Canadian Consulate in Detroit [the Interview]. At the Interview, he was informed by the Visa Officer that she believed
that he acted only as a salesman at Senlong. The Applicant was given thirty
days to provide additional documents to support his application.
[9]
The
Applicant did provide further material [the Additional Material] in a timely
way and it will be discussed below. However, on May 2, 2012, notwithstanding
the Additional Material, the Visa Officer refused his application for permanent
residence.
[10]
The
Visa Officer took handwritten notes during the Interview and 21 minutes after
it concluded, she transcribed them into the Global Case Management System [the Notes].
The Applicant alleges that the Notes are not reliable and that the evidence he
provided in an affidavit sworn approximately three months after the Interview
is to be preferred.
[11]
I
do not accept this submission and have concluded that the Notes are the best evidence
of the statements made by the Applicant during the Interview. I have reached
this conclusion because i) the handwritten notes were contemporaneous and
promptly transcribed, ii) there is no allegation that the Visa Officer had any
reason to misstate what the Applicant told her, and iii) the Applicant’s
evidence is not reliable on other matters. For example, the Employer told the
Visa Officer that she had trained him for 2-3 months at Senlong in Canada but he denied receiving any such training. He said instead that he was trained at
Senlong’s manufacturing facility in China but this was not mentioned by the
Employer when she was asked about his experience. Further, the Employer said
that the Applicant was paid by cheque and sometimes in cash but the Applicant
denied ever receiving cash.
[12]
The
reliability of the Notes is particularly important because the Visa Officer records
and relies heavily on the fact that, when asked about his duties as a buyer for
Senlong the Applicant was asked to name companies from whom he made purchases
and he could not name even one. The Applicant however maintains that this is
incorrect and that he was able to name three different companies. He
suggests that the Notes are unreliable because although they were handwritten
as they spoke during the Interview the Notes were transcribed in the past
tense. However, in my view changing the tense of the Notes does not diminish
their accuracy. It would be quite reasonable for a Visa Officer to write “He
says X” in hand during an interview and then transcribe that statement in the
Notes as “He said X” because, by the time of transcription, the statement would
have been made in the past.
[13]
The
Applicant submits that the Visa Officer did not give reasonable weight to the
Additional Material. It included an affidavit of April 25, 2012 sworn by the
Employer [the Affidavit] who had described herself in the Letter as Senlong’s
General Manager but signed the Affidavit as its President. The Affidavit said
the following:
•
The
Applicant’s position was “Assistant Buyer and Retail/Wholesale Customer Service
Supervisor”;
•
As
assistant buyer he:
i.
Ordered
products by sending written purchase orders to suppliers. Products would be
delivered to the store or directly to customers;
ii.
He
kept track of inventory;
iii.
When
suppliers delivered products he would initial his approval of the amount to be
paid on the bill of lading – copies of initialled bills of lading were attached
[the Bills];
iv.
He
would assist sales people when retail customers wanted lower prices because his
approval was required;
•
As
Customer Service Supervisor he:
i.
Kept
good relationships with suppliers and customers;
ii.
Dealt
with customers’ post-installation complaints;
iii.
He
retained independent professional investigators to prepare reports on customer
complaints – a sample Flooring Inspection Report was attached [the Report].
[14]
The
difficulty with the Affidavit is that the appended exhibits did not address the
Officer’s concerns. The Bills showed the Applicant’s name next to the words
“authorized signature” but the name Jenny Du appeared next to the word
“contact” and there was no information in the Affidavit describing her role as
a contact or his responsibilities as a signatory.
[15]
The
Report shows that the following three parties were present at the inspection:
•
The
home owner;
•
Jenny
Du “Senlong”;
•
The
Applicant “Customer Service”
Again, this does not indicate that
the Applicant had a supervisory role and does not distinguish whatever role he
may have played from the one played by Ms. Du.
[16]
The
Additional Material also included undated letters from two companies that
supplied Senlong with wood products. The letter from Fortune Gate Timber
Products uses vague language saying it often “dealt” and “interacted” with the
Applicant as Senlong’s Assistant Buyer but it nowhere clearly says that he
purchased its products on Senlong’s behalf. However, the Additional Material
does include one purchase order from Senlong to Fortune Gate Timber Products
dated 12/10/2010 which shows Jenny Du as the Senlong “contact” and shows the
Applicant as providing the “authorized signature”. Again, this document gives
no information about the Applicant’s actual responsibilities and therefore does
not corroborate the Affidavit when it describes him as a “buyer”.
[17]
The
letter from Biyuls Canada states that the Applicant “placed purchase orders”. The
difficulty is that no such purchase orders were appended to the Affidavit.
[18]
In
these circumstances it was, in my view, reasonable for the Officer to conclude
that the Additional Material was not sufficient to allay her concerns.
[19]
No
question was posed for certification pursuant to section 74(d) of the Act.
ORDER
THIS
COURT ORDERS that:
The application is
hereby dismissed.
“Sandra J. Simpson”
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