Docket: IMM-286-14
Citation: 2015 FC 463
Ottawa, Ontario,
April 15, 2015
PRESENT: The Honourable Mr. Justice Barnes
|
BETWEEN:
|
|
ERSI ZHANG
|
|
Applicant
|
|
And
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
The Applicant, Ersi Zhang, challenges a decision
by a Visa Officer [Officer] made on December 13, 2013 declaring her to be
inadmissible because of a misrepresentation in connection with her employment
history. The impugned decision was supported by the following reasons:
On January 18, 2009 you misrepresented the
following material facts:
1.
The applicant claimed to have work experience as a food service
supervisor at North-Chinese Restaurant.
I reached this determination because on the
balance of probabilities, I am satisfied that the applicant misrepresented
facts about her employment in Canada. We were able to confirm this information
based on a site visit to the alleged employer in August 2009 and spoke to the
owner of the restaurant. The owner indicated that she had never seen Ms. Zhang
and further stated that Elaine Gong was not associated to her business.
You were advised of our concerns in a letter of September 9, 2013 and you were
offered an opportunity to respond to them. However, no additional information
was provided disproving these concerns.
[2]
Ms. Zhang attacks this decision on an issue
of procedural fairness. Thus, the standard of review to be applied to this
issue is correctness.
[3]
Ms. Zhang argues that the Officer had a duty to
inform her of the full particulars of the site visit to her former place of
employment. Had she been aware of all of the evidence concerning this visit,
she could have taken additional steps to explain the apparent evidentiary discrepancy.
Instead, she asked for her application for a visa to be withdrawn. The Officer
declined to accede to the request and found a misrepresentation had occurred.
[4]
I am not satisfied there was any lapse of
procedural fairness. The Officer sent a fairness letter to Ms. Zhang
informing her that “[i]t appears that the letter of
employment that you provided with your application is not genuine”.
Ms. Zhang was given 60 days to provide additional evidence in support of
her declared employment and she was warned about the possibility of a
misrepresentation finding and its consequences. Ms. Zhang was clearly
under no illusion about the problem she faced. This is evident from her letter
in reply which states:
I understand that the onus is on me to prove
the genuinity of the letter of employment. I was genuinely employed by North
East International Group as Food Service Supervisor from May 30, 2007 to Mar 20
2009. I submitted my application in January 2009. However, a great amount of
time has elapsed between the time of the submission of my application and that
of the Letter, and I have not kept in touch with my then co-workers such that I
am currently unable to find any one of them as my reference in respect of this
matter. In addition, due to the heated dispute that I had with my former
employer in relation to vacation time, my former employer has now refused to
provide me with any reference despite his existing obligation and my repeated
requests. In this situation, I have no choice but to withdraw my application
for immigration under the CEC category effective as of even date.
[5]
The circumstances of Ms. Zhang’s case are
indistinguishable from those described by Justice Yves de Montigny in Nadarasa
v Canada, 2009 FC 1112, [2009] F.C.J. No. 1350 at para 25:
[25] But contrary to the applicant’s
submission, the jurisprudence of this Court is not to the effect that an
applicant must actually be given the document relied upon by the
decision-maker, but that the information contained in that document be
disclosed to the applicant so that he or she has an opportunity to know and
respond to the case against him or her. The following quote from Justice
Rothstein (then from this Court) in Dasent v. Canada (Minister of
Citizenship and Immigration), [1995] 1 F.C. 720, at para. 23, is
illustrative of that principle:
The relevant point as I see it is
whether the applicant had knowledge of the information so that he or she had
the opportunity to correct prejudicial misunderstandings or misstatements. The
source of the information is not of itself a differentiating matter as long as
it is not known to the applicant. The question is whether the applicant had the
opportunity of dealing with the evidence. This is what the long-established
authorities indicate the rules of procedural fairness require. In the well
known words of Lord Loreburn L.C. in Board of Education v. Rice, [1911]
A.C.179 (H.L.) at page 182:
They can
obtain information in any way they think best, always giving a fair opportunity
to those who are parties in the controversy for correcting or contradicting any
relevant statement prejudicial to their view.
Also see Khoshnavaz v Canada, 2013 FC
1134, 235 A.C.W.S. (3d) 1068, at para 30.
[6]
Ms. Zhang knew the authenticity of her
employment reference letter was in doubt and that she needed to submit reliable
corroboration to verify her employment. Her responding letter referred to a
dispute with her employer precluding access to her employment records and she
alluded to problems in contacting others who could verify her employment. The
few additional factual details she now says she needed do not displace the
knowledge she had or the steps she knew were required to overcome the allegation
of misrepresentation.
[7]
I agree with counsel for the Minister that it
would not be in the public interest to routinely permit the withdrawal of visa
applications in the face of evidence of a possible misrepresentation. Such an
approach would encourage claimants to misrepresent material information in the
expectation their visa applications could simply be withdrawn if the deceit was
later uncovered. In these circumstances, Ms. Zhang had no legitimate
expectation that her request to withdraw would be accepted. Instead, in the
absence of a valid exculpatory explanation, she ought to have understood a
misrepresentation finding remained open.
[8]
The absence of a breach of procedural fairness
does not, however, eliminate my concern about the Officer’s misrepresentation
finding. Counsel for Ms. Zhang is correct that a misrepresentation
finding is very serious and should not be made except on the strength of clear
and convincing evidence: see Xu v Canada, 2011 FC 784 at para 16.
[9]
This case is particularly troubling because
someone involved is clearly lying. Either Ms. Zhang is lying about her
employment history or her ostensible employer was lying when she told the Canada
Border Services Agency Ms. Zhang was unknown to her. The case is further
complicated by the fact that the certified tribunal record [CTR] is incomplete
and, in one respect, irregular. The CTR has already been belatedly supplemented
with one omitted document. Nevertheless, it remains incomplete as it fails to
include an important letter from Ms. Zhang and by the absence of income
tax records apparently sent by Ms. Zhang to the Department. It is also of
concern that the CTR includes a T4 Statement of Remuneration pertaining to
someone other than Ms. Zhang who worked for the alleged employer. Neither
party was able to explain how that document got into the CTR. This Court
relies heavily on the reliability and completeness of the CTRs it receives from
decision-makers. The failure by the Department to fulfill this obligation on
this file is, on its own, sufficient to quash the decision.
[10]
The failure by the decision-maker to include in
the CTR Ms. Zhang’s letter in response to the Officer’s fairness letter
raises a particular concern. The fact that a letter from Ms. Zhang was
received is verified by the Department’s computer file notes. Those notes,
however, inexplicably and incorrectly state “[n]o additional
information was provided disproving [the Officer’s] concerns”. If
Ms. Zhang had not kept a copy of her letter, this statement could not have
been challenged.
[11]
The Respondent does not dispute that the
letter in the Application Record is the same letter referred to in the
Department’s computer file notes and I accept that to be the case. The problem
remaining is that the Officer’s characterization of Ms. Zhang’s letter was
misleading. Ms. Zhang informed the Officer that she had a “heated dispute” with her former employer and was
unable to verify her employment from that source. This was highly relevant
information that, if accepted, could explain the employer’s denial of
Ms. Zhang’s employment. Before the Officer declared a misrepresentation,
it was incumbent on her to consider this explanation and not to declare a
misrepresentation on the pretext that “[n]o additional
information was provided”. At the same time, it would also be reasonable to
expect that some consideration would be applied to the income tax records Ms. Zhang
had submitted. Nowhere in the decision are those documents mentioned.
[12]
I am satisfied that the Officer’s
misrepresentation finding was unreasonable on the evidence before her and for
the reasons she gave. The decision is accordingly set aside. It will be open
to the Respondent to have the matter reconsidered by a different Visa Officer
if it so chooses. In that event, Ms. Zhang will be entitled to submit
fresh evidence of her employment. If Ms. Zhang elects not to do so, it
will be open to the Department to reconsider the matter on the present record.
[13]
Neither party proposed a certified question and
no issue of general importance arises on this record.
Email this Content