Docket:
IMM-730-13
Citation: 2013 FC 1159
Calgary, Alberta, November 14, 2013
PRESENT: The
Honourable Mr. Justice Campbell
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BETWEEN:
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JIA FENG WEN
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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]
The present Application is a challenge to a Visa
Officer’s (Officer) decision dated December 6, 2012 in which the determination
was made that the Applicant does not meet the definition of dependent child
found in s. 2 of the IRPA Regulations. The determination was based on a
discrepancy in the Applicant’s evidence, and the primary issue in the present
Application is whether the Officer was fair to the Applicant in dealing with
the discrepancy.
[2]
The uncontested facts are stated by Counsel for
the Applicant as follows:
The
Applicant is a 28 year old Citizen of China. The Applicant's father, Wen Linji,
applied for permanent residence in Canada as a member of the Quebec Investor
class, The Applicant was included as an accompanying dependent on his father's
application.
In
connection with the application, the Applicant filed documentation confirming
that he met the definition of accompanying dependent because he was a full-time
student.
The
documentation included correspondence which confirmed that:
a.
The Applicant was a full-time student and graduate of Jiangmen Vocational and
Technical College from September 2003 until June 2006; and
b.
He remained a full-time student and was enrolled as a student at Taishan Panshi Television University from September 2007 until the date of the issuance of
the letter which was December 2011.
In
correspondence dated October 18, 2012, the Canadian High Commission in Hong
Kong ("CHC-HK") advised the Applicant's father that they were not
satisfied that the Applicant met the definition of a dependent child because
there was insufficient evidence to indicate he had been continuously enrolled
in and attending a post-secondary institution from July 2006 to September 2007.
In
response to this correspondence, the Applicant provided a certificate confirming
that he had studied Business Administration from September 2006 to July 2007 at
Jiangmen Polytechnic, The Applicant provided a transcript which confirmed his
grades during this period of study.
In
correspondence dated December 6, 2012, a Visa Officer at CHC-HK refused the
application stating that the Applicant did not meet the definition of dependent
child. Therefore he was not eligible to be included in the application.
In
his reasons […] for refusal, the Officer further stated that:
"Satisfied of eligibility of parents. Accompanying son was over
22 at lock in date. According to information provided, applicant has not been
continuously enrolled in an credited institution since before the age of 22. He
lists Taishan Panshi University from time of complete application submission in
01/2012 back to 2007/09 then states from 09/2003 to 07/2006 Attendance at
Jiangmen Polytechnic College. Gap of over a year between 07/2006 and 09/2007.
R2 indicates continuous enrolment is necessary for eligibility as dependent
child. The son is now 28, There is insufficient evidence to satisfy me that Wen
Jiafeng meets definition per R2. Will give applicant opp to respond to concerns
regarding Wen Jiafeng."
The
Officer, in refusing the application, and after further documentation was provided
stated that:
"Response received to PF letter. 'certificate' from Jiangmen
Polytechnic indicating enrollment [sic] of dependent son in Business Administration
from Sept 2006 to July 2007. This is a self serving documentment [sic].
Forms completed indicated that the dep son finished at this institution in July
2006. This document contradicts that information. Furthermore, no evidence has
been submitted to indicate that the dep son studied at this institution at any
other period. This doc states 'first year', no evidence of study from 2003 to
2006. Consequently my concerns have not been adequately addressed. Not satisfied
Wen Jiafeng meets R2 def. Not satisfied he is eligible to be included in this
application, deleted."
[Emphasis added]
(Applicant’s Memorandum of Fact and Law, paras. 1-8)
[3]
Counsel for the Applicant argues that it is
apparent from the Officer’s notes that the application was rejected on an underlying
suspicion that the Applicant was misrepresenting his school attendance. As a
result, Counsel relies upon Paragraph 10.3 of Chapter 2 of the Enforcement
Manual “Evaluating Inadmissibility” (“ENF 2”) to argue that the Officer should
have provided the Applicant with an opportunity to explain the discrepancy
before a decision was issued:
An
individual should always be given the opportunity to respond to concerns about
a possible misrepresentation. At a visa office, once the applicant has been
given the opportunity to respond to the concerns, then the designated officer
shall render a final decision regarding the misrepresentation to issue or
refuse
the
visa. At a port of entry or inland, the Minister's delegate shall determine
whether or not to refer the case to the IRB for an admissibility hearing. It
must be recognized that honest errors and misunderstandings sometimes occur in
completing application forms and responding to questions. While in many cases
it may be argued that a misrepresentation has technically been made,
reasonableness and fairness are to be applied in assessing these situations.
(Applicant’s
Memorandum of Fact and Law, para. 21)
I agree with this
argument.
[4]
In my opinion, the Officer was required to
provide the Applicant with an opportunity to address the numerous concerns raised
by the documentation found to be “self serving” because the use of that term
introduces suspicion into the decision-making process. Since the opportunity
was not provided to the Applicant, I find that the decision was rendered in
breach of the duty of fairness.
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