Docket: IMM-6342-13
Citation:
2014 FC 612
Ottawa, Ontario, June 25, 2014
PRESENT: The
Honourable Mr. Justice Roy
|
BETWEEN:
|
|
JIN, Liwen
|
|
Applicant
|
|
And
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
ORDER AND REASONS
[1]
In this application for judicial review made
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA], it is the decision of an Immigration Officer that is
challenged.
[2]
The decision, dated May 22, 2013, denies an
application for a permanent resident visa as a member of the Canadian
Experience Class.
[3]
In the decision, which was transmitted by email,
the Immigration Officer states that:
[Y]ou have not provided tangible evidence you
are returning to Canada, i.e. copy of a purchased an [sic] airline
ticket, offer/contract of employment in Toronto. In addition, there is no
indication Yutong Wu is the proprietor of the condo, nor was a signed lease
provided. Based on the above, I am not satisfied it is your intent to establish
in Canada and in a province other than the province [sic] of Quebec.
[4]
That letter of decision followed what has been
called a “fairness letter” which
was sent on February 20, 2013. Such a letter is for the purpose of indicating
to applicants why their application will be denied if additional information or
evidence is not provided. In the case at bar, the only indication of the
concerns reads as follows:
Please provide written evidence that you intend
to live in a different province than Quebec in order for me to take a final
decision on your application. If you choose not to respond with additional
information and/or documentation, or if your submission does not respond to
these concerns, you [sic] application may be refused.
[5]
Within the 30 days given in order to provide a
response, the applicant, through a representative who was not her counsel in
these proceedings, responded with an email on March 19, 2013. In that email,
the Immigration Officer is advised that the applicant has left Canada and a copy of her passport showing her entry into China on June 21, 2012 is appended. The
email also advises that the applicant is working in Shanghai since November 1,
2012. The third paragraph is particularly relevant. It reads:
Mrs. Jin plans to come back to Canada on September 1st, 2014. She will lease a condo in Toronto. Please refer
to the attached rental confirmation. Mrs. Jin lived and studied in London, Ontario from September 2006 to October 2010. She intends to settle in Ontario because her second language is English and because of her relations in the province of Ontario. She feels it would be difficult to find a permanent job in Québec
because she doesn’t speak French.
[6]
There is in fact a letter confirming her
employment in Shanghai and a document, which is not dated, which seeks to
provide evidence that a condominium owned by that person, Yutong Wu, will be
leased to Ms Jin.
[7]
It is not disputed by the parties that the
standard of review in the circumstances is the standard of reasonableness. The
task at hand is therefore to determine whether the decision letter of May 22,
2013 meets the reasonableness standard. In my view, it does not.
[8]
The concern that was raised initially was to the
effect that the applicant would in fact reside in the Province of Quebec. As indicated in that letter, “the Canadian experience class is
prescribed as a class of persons who may become permanent residents on the
basis of their experience in Canada and who intend to reside in a province
other than the Province of Quebec.” Thus, the applicant,
through a representative, sought to alleviate the concern by providing evidence
that she would indeed reside outside of the Province of Quebec. The applicant
responded to the concern raised.
[9]
However, the decision letter switches gears in
that the decision is based on the argument that “[Y]ou
have not provided tangible evidence you are returning to Canada”. The concern that was present that the applicant would reside in Quebec has magically become whether or not the applicant would be returning to Canada at all. One has to wonder why an applicant would go through the trouble of retaining
a consultant and fill out the various forms and questionnaires that need to be
completed if the person does not intend to return to Canada. What is more is
that the further explanation of what might be missing appears to be inaccurate.
The Immigration Officer declares that there is no indication that Yutong Wu is
the proprietor of the condo. This is not so. On the basis of the evidence
before the decision-maker, this gentleman is the owner of the condominium.
There is no indication in the decision as to why the Immigration Officer would
refute that information.
[10]
In my view, it is unreasonable to require, for
instance, that an applicant would have to purchase an airline ticket, and incur
a significant cost, for the sole purpose of satisfying an Immigration Officer
that she intends to avail herself of the permanent residence visa she
requested. It would be more reasonable to purchase such an expensive ticket after
the Canadian authorities have confirmed that a visa will be delivered.
Similarly, there is no indication why the letter from the owner of the
condominium would not be sufficient and why a signed lease would be needed.
[11]
Accordingly, one is left with a refusal based on
concerns that were not raised in the fairness letter and for reasons that
appear on their face to be less than convincing. One has to consider that the
exchange of information was taking place some six months before the applicant
would make her way to Canada. Had the Immigration Officer had concerns about
the employment situation once in Toronto, she could, and I suggest she should,
have raised these with the applicant. Limiting her concerns to where the
applicant will reside in the Province of Quebec sets up the applicant for
failure if other concerns are present.
[12]
The respondent has alluded to the case law that
finds that there is no need to enter into a discussion with applicants about
their credibility or authenticity of information submitted in support of an
applicant (Hassani v Canada (Minister of Citizenship and Immigration),
2006 FC 1283, [2007] 3 FCR 501).
[13]
With respect, such is not the case here. The
respondent raised a very specific concern in the fairness letter: will the
applicant reside in the Province of Quebec. That is the matter that is
addressed squarely in the response. There is no further discussion of the
credibility or authenticity of that information. Rather, a completely different
issue, the return to Canada altogether, becomes the reason for the refusal. Black’s
Law Dictionary (West Group, 7th ed) defines “bait and switch” as “A sales
practice whereby a merchant advertises a low-priced product to lure customers
into the store only to induce them to buy a higher-priced product.”
Although most analogies are somewhat defective, this one illustrates the point
in that the applicant is lured into thinking that the issue is one thing, to be
told that it is something else of an even higher order.
[14]
I would not dispute that the concerns about the
residency in the Province of Quebec of the applicant were legitimate. In her initial
application, it was clear that following her studies in London, Ontario, she resided in the Province of Quebec and, indeed, held a job in the province.
However, it was incumbent on the Immigration Officer to deal with those
concerns on the basis of the information that was provided on March 19. They
were deemed to address the concerns raised in the fairness letter and, in my
estimation, it was not reasonable to deny the application for permanent
residence on a completely different basis not even alluded to. If doubts about
residency in Quebec deserved a fairness letter, doubts about a return to Canada were equally deserving of a fair warning.
[15]
As a result, the application for judicial review
is granted, and this application for permanent residence as a member of the
Canadian Experience Class has to be reassessed and determined anew by a
different immigration officer. There is no question for certification.
Email this Content