Docket: IMM-5403-13
Citation:
2015 FC 161
Ottawa, Ontario, February 6, 2015
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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JING GUO
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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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JUDGMENT AND REASONS
I.
Nature of the Matter and Background
[1]
Ms. Guo [Applicant] was refused a work permit by
a visa officer [Officer] in Hong Kong, and she now seeks judicial review of
that decision pursuant to subsection 72(1) of the Immigration and Refugee Protection
Act, SC 2001, c 27 [Act]. She asks the Court to set aside the Officer’s
decision and return the matter to a different officer for re-determination.
[2]
The Applicant is now a 28 year old Chinese
citizen who has arranged employment as a cook at Big Rock Inn in Okotoks, Alberta. With that and a positive labour market opinion confirming that Big Rock
Inn could hire foreign workers, she applied for a work permit in early 2013.
[3]
Initially, her application was refused on the
basis that there was insufficient evidence that the Applicant met the
experience requirements set out in the labour market opinion. The Applicant’s
representative protested, however, asking for reasons and an interview, so the
file was reopened and an interview convoked on June 18, 2013.
II.
Decision under Review
[4]
The Applicant was advised on June 18, 2013 that
she would not receive a work permit.
[5]
The reasons for this refusal are detailed in the
Officer’s notes about the interview entered into the Global Case Management
System [GCMS] on June 18, 2013. Most notably, these notes state the following:
•
The Officer observed that it was unusual for
women to be cooks, but the Applicant said that she became a cook because she
enjoyed cooking and used to watch her father cook.
•
The Applicant said she studied at the Zhanjiang City Shenmei Vocational School for two months from May, 2008, to July, 2008. The
Officer wrote that this contradicted her certificate from that school, which
indicated that she had studied there from August, 2007, to May, 2008.
•
The Applicant said that she took two other
courses in 2006, but could not explain why the certificates for those courses
were issued in 2011. Instead, she began to sob and said she wanted to withdraw
her application, but eventually changed her mind and the interview continued.
•
The Applicant said that in the autumn of 2009,
she started taking courses at the Radio and TV University from 7:45 p.m. to
9:25 p.m.
•
The Applicant said that she had worked at
Zhanjiang Chikan Hotel since September, 2012, and that she has one shift from
9:00 a.m. to 2:00 p.m. and another shift from 4:00 p.m. to 8:00 p.m. The
Officer noted that restaurants usually close much later than this, and that the
timing would conflict with her university classes. The Applicant also took a
long time answering questions about the seating capacity and other details of
the restaurant.
•
The Applicant said that she was a grade 3 cook
and could not explain why she had presented a grade 4 certificate.
•
The Applicant did not have any calluses or marks
on her hand and it took the Applicant ten minutes to describe how to make sweet
and sour pork.
•
The Applicant did not know very much about her
Canadian employer’s restaurant.
[6]
The Officer concluded with the following
remarks:
[The Applicant] does not appear to be a cook
with 5 years experience. From what she described about her training and about
her job as a cook, there are a lot of discrepancies in many areas. It took her
10 minutes to describe the steps to cook sweet and sour pork and the
ingredients and the steps are also not similar to many sweet and sour pork
recipes. There are no green pepper, onions [sic] use. She never said how
she should make the batter and just put the meat in the corn starch. There is
no mention of any eggs used and how many times the pork should be deep fried to
make it crunchy. I am not satisfied that she has the more than 5 years
experience as a cook to meet the job requirements. Application refused.
[Emphasis omitted]
III.
The Parties’ Submissions
A.
The Applicant’s Arguments
[7]
The Applicant states that the appropriate
standard for reviewing the Officer’s decision is correctness, because the
Officer was biased and the process was unfair. The Applicant argues that this
was evident from the very start of the interview, when the Officer stated that
it is “unusual for women to be a cook,” and
doubted that she could handle heavy kitchen equipment like woks. She says this
was tantamount to gender discrimination on the part of the Officer.
[8]
The Applicant submits that the Officer was in no
position to assess the Applicant’s skills as a chef. Thus, when the Officer
stated that “even I can make this dish,” the
Applicant argues that the Officer was inappropriately assuming that being a
cook was an unskilled profession, and this comment reveals a clear bias. The
decision in Chen v Canada (Minister of Citizenship and Immigration) (2000),
190 FTR 260, 7 Imm LR (3d) 206 (TD) [Chen], is dispositive of this
issue, according to the Applicant.
[9]
The Applicant also cites the decision in Au v
Canada (Citizenship and Immigration), 2001 FCT 243, 202 FTR 57 [Au].
Although Au sets a standard of fairness which is lower for visa
officers, the Applicant argues that the bias evident from the very beginning of
the interview set her up for failure, as she was put on her guard right from the
outset of the interview.
[10]
The Applicant states that any inconsistencies in
her educational materials were immaterial in the face of the Officer’s bias,
and that in any event, it was unfair for the Officer not to give her an
opportunity to address his concerns.
B.
The Respondent’s Arguments
[11]
The Respondent states that the standard of
review in respect of the Officer’s decision is reasonableness, and that the
Officer’s decision met that standard.
[12]
The Respondent argues that the Applicant simply
failed to prove that she could perform the job, despite being given two chances
to do so. In addition, the Applicant’s interview was conducted in her own
language and so she was comfortable and that could have worked to her
advantage. As she was required to prove that she was qualified for the job by
paragraph 200(3)(a) of the Immigration and Refugee Protection Regulations,
SOR/2002-207 [the Regulations], the Respondent contends that the
Officer’s decision was reasonable.
[13]
The Respondent also says that the Officer did
not commit a reviewable error by asking how she could be working as a grade 3
cook when she only had a grade 4 qualification. When the Officer provided the
Applicant an opportunity to address those concerns, the Applicant did not even
respond. This was not the only time either, and the Respondent states that the
Officer should not be faulted for prompting the Applicant to respond to
questions.
[14]
Although the GCMS notes dwell on preparation of
sweet and sour pork, the Respondent says it was reasonable for the Officer to
make inquiries about that since it was required by the stated job duties. The
Officer needed to be satisfied that the Applicant could do the work, so it was
reasonable for the Officer to ask about the preparation of a Chinese food dish
and to make an adverse inference from her inability to answer promptly.
[15]
As to the Applicant’s arguments concerning bias
on the part of the Officer, the Respondent says there was none. Where the
Officer had concerns, the Officer gave the Applicant a chance to address those
concerns.
IV.
Issues and Analysis
A.
Standard of Review
[16]
As noted by Mr. Justice Richard Mosley in Palogan
v Canada (Citizenship and Immigration), 2013 FC 889 at para 9: “The standard of review for assessments of applications for
temporary work permits has been satisfactorily determined by the jurisprudence
to be reasonableness.” The reasons for that was explained well by Mr.
Justice Yves de Montigny in Maxim v Canada (Citizenship and Immigration),
2012 FC 1029:
[19] A visa officer’s decision to grant
or to refuse a work permit to an applicant involves substantial factual
findings, which are reviewable on the standard of reasonableness and require a
high degree of deference. Visa officers have a recognized expertise in
assessing these applications, and this Court will not intervene unless the
decision challenged does not fall within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law: Dunsmuir v
New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47. See also: Ngalamulume
v Canada (Minister of Citizenship and Immigration), 2009 FC 1268, 362 FTR
42 at paras 15-16; Odicho v Canada (Minister of Citizenship and Immigration),
2008 FC 1039, 341 FTR 18 at paras 8-9; Obeng v Canada (Minister of
Citizenship and Immigration), 2008 FC 754, 330 FTR 196 at para 21.
[17]
With respect to the Applicant’s argument that
there was a reasonable apprehension of bias on the part of the Officer, the
standard of review is correctness, since that raises an issue of procedural
fairness (Canada (Minister of Citizenship and Immigration) v Khosa, 2009
SCC 12 at para 43, [2009] 1 S.C.R. 339).
B.
Was There a Reasonable Apprehension of Bias?
[18]
In Committee for Justice and Liberty v Canada (National Energy Board) (1976), [1978] 1 S.C.R. 369 at 394, 68 DLR (3d) 716 [Committee
for Justice and Liberty], Mr. Justice de Grandpré set out the general test for
determining whether a reasonable apprehension of bias arises:
…the apprehension of bias must be a
reasonable one, held by reasonable and right minded persons, applying themselves
to the question and obtaining thereon the required information. In the words of
the Court of Appeal, that test is "what would an informed person, viewing
the matter realistically and practically--and having thought the matter
through--conclude. Would he think that it is more likely than not that … [the
decision-maker], whether consciously or unconsciously, would not decide
fairly."
[19]
Furthermore, it is well established that the
grounds for the apprehension of bias must be substantial (see: Committee for
Justice and Liberty at 394-395). As Mr. Justice Cory stated in R v S(RD),
[1997] 3 S.C.R. 484 at para 112, 151 DLR (4th) 193, a real likelihood of bias must
be demonstrated and mere suspicion is insufficient (also see: Bell Canada v Canadian Telephone Employees Association, 2003 SCC 36 at paras 17-18, 50,
[2003] 1 S.C.R. 884).
[20]
In Arthur v Canada (AG), 2001 FCA 223 at
para 8, 283 NR 346, the Federal Court of Appeal commented on what is required
to establish bias:
An allegation of bias, especially actual and
not simply apprehended bias, against a tribunal is a serious allegation. It
challenges the integrity of the tribunal and of its members who participated in
the impugned decision. It cannot be done lightly. It cannot rest on mere
suspicion, pure conjecture, insinuations or mere impressions of an applicant or
his counsel. It must be supported by material evidence demonstrating conduct
that derogates from the standard. It is often useful, and even necessary, in
doing so, to resort to evidence extrinsic to the case. That is why such
evidence is admissible in derogation of the principle that an application for
judicial review must bear on the matter as it came before the court or
tribunal.
[21]
To use the words of Mr. Justice de Grandpré, I
do not think that an informed person, viewing the Officer’s GCMS notes
realistically and practically--and having thought the matter through--would
conclude that the Officer, consciously or unconsciously, did not decide the
Applicant’s request for a work permit fairly. There is no evidence on the
record before the Court to suggest that the Officer prejudged the application. Moreover,
the Officer’s notes, entered into the GCMS on the day of the Applicant’s
interview, neither corroborate nor substantiate the Applicant’s allegations and
arguments as to bias on the part of the Officer. The Applicant has submitted no
evidence that she raised any apprehension of bias before the Officer during the
interview. Even if one assumes, without deciding, that the evidence offered by
the Applicant in her affidavit filed as part of the application record is
admissible, the matters deposed to by the Applicant do not prove that the
Officer was biased.
[22]
Also, the Applicant’s failure to object at the
interview amounts to an implied waiver of the right to raise the issue of bias
at this stage of the matter: Fletcher v Canada (Minister of Citizenship and
Immigration), 2008 FC 909 at paras 10, 17, 74 Imm LR (3d) 78; Maritime
Broadcasting System Limited v Canadian Media Guild, 2014 FCA 59 at para 67,
373 DLR (4th) 167.
C.
Was the Officer’s Decision Reasonable?
[23]
It is clear from the reasons in the GCMS notes
that form part of the Officer’s decision that he reviewed the application and
the documentation submitted by the Applicant, and also interviewed her in
Cantonese. The Officer refused the application for a work permit because he was
“not satisfied that she has the more than 5 years
experience as a cook to meet the job requirements.”
[24]
To get a work permit, the Applicant had to
satisfy the Officer that the requirements of section 200 of the Regulations
were met. This section provides in part as follows:
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200. (1) Subject to subsections (2)
and (3) — and, in respect of a foreign national who makes an application for
a work permit before entering Canada, subject to section 87.3 of the Act — an
officer shall issue a work permit to a foreign national if, following an
examination, it is established that
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200. (1) Sous réserve des paragraphes (2) et
(3), et de l’article 87.3 de la Loi dans le cas de l’étranger qui fait la
demande préalablement à son entrée au Canada, l’agent délivre un permis de
travail à l’étranger si, à l’issue d’un contrôle, les éléments ci-après sont
établis :
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…
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[…]
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(c) the foreign national
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c) il
se trouve dans l’une des situations suivantes :
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…
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…
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(iii) has been
offered employment, and an officer has made a positive determination under
paragraphs 203(1)(a) to (e); and
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(iii) il a reçu une offre d’emploi et l’agent a rendu une décision
positive conformément aux alinéas 203(1)a) à e);
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…
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[…]
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(3) An officer shall not issue a work permit to a foreign national
if
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(3) Le permis de
travail ne peut être délivré à l’étranger dans les cas suivants :
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(a) there are reasonable grounds to
believe that the foreign national is unable to perform the work sought;
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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;
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[25]
It was reasonable for the Officer in this case
to consider and assess the Applicant’s experience and abilities as a cook in
order to comply with paragraph 200(3)(a) above. The onus was upon the Applicant
to convince the Officer that she had the ability, qualifications and experience
to perform the work sought. In Masych v Canada (Citizenship and Immigration)
2010 FC 1253, a case where a request for a temporary work permit had been
refused, Mr. Justice John O’Keefe stated as follows:
[31] The onus is on the applicant to
satisfy the officer of all parts of her application. The officer is under no
obligation to ask for additional information where the applicant’s material is
insufficient. Nor is the officer obliged to provide the applicant with several
opportunities to satisfy points she may have overlooked (see Madan v. Canada
(Minister of Citizenship and Immigration), 172 F.T.R. 262 (F.C.T.D.),
[1999] F.C.J. No. 1198 (QL) at paragraph 6).
[26]
The Officer simply was not satisfied with the
Applicant’s ability to perform the work sought based on the documentation she
provided and the responses to the Officer’s questions at the interview.
[27]
Moreover, despite the Applicant’s argument that
she was not treated fairly, it is well-established that the level of procedural
fairness in this sort of case is minimal or relatively low. In Qin v Canada
(Minister of Citizenship and Immigration), 2002 FCT 815 at para 5, Mr.
Justice Marshall Rothstein stated that: “…when there is
no evidence of serious consequences to the Applicant … the requirements for
procedural fairness will be relatively minimal.” The Officer interviewed
the Applicant and she was afforded an opportunity, unlike many such applicants,
to convince him in person that she could perform the work sought. Considering
her responses, it was reasonable that the Officer nevertheless concluded that
she could not so perform.
[28]
Accordingly, the Officer’s reasons for refusing
the Applicant a temporary work permit are intelligible, transparent, and
justifiable and his decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law.
V.
Conclusion
[29]
In the result, the Applicant’s application for
judicial review is hereby dismissed. Neither party suggested a question for
certification; so, no such question is certified.
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