Docket: IMM-1602-17
Citation:
2017 FC 968
Ottawa, Ontario, October 30, 2017
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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YANG LIU
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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. Overview
[1]
The applicant, Mr. Yang Liu, is a citizen of the
People’s Republic of China. He came to Canada in 2013 to study. In July 2015 he
was issued a post-graduate work permit and in August 2015 he obtained
employment as an assistant restaurant manager. On October 31, 2016, he applied
for permanent residence in Canada as a member of the Canadian Experience Class [CEC].
[2]
Mr. Liu’s application was denied. Discrepancies
relating to Mr. Liu’s hours of work arose in the course of a telephone
interview where Mr. Liu described his work schedule. These discrepancies led
the Officer to conclude that Mr. Liu had failed to acquire at least one year of
full time work experience or the equivalent in part time experience prior to
submitting his application. In denying the application the Officer preferred
Mr. Liu’s oral evidence relating to his work schedule over other evidence
including pay stubs and T4 slips for 2015 and 2016 generated by his employer’s
chartered accountant.
[3]
Mr. Liu submits the decision was unreasonable. I
agree. Mr. Liu also submits that elements of the process were procedurally
unfair. In light of my conclusion that the decision is unreasonable I need not
address the fairness submissions. The application is granted for the reasons
that follow.
II. Style of Cause
[4]
The originating application named the Minister
of Immigration, Refugees and Citizenship Canada as the respondent. Subsequent
submissions identify the respondent as the Minister of Citizenship and
Immigration, however, the Court file does not reflect an amendment to the style
of cause. In oral submissions the parties agreed that the correct respondent in
this matter is the Minister of Citizenship and Immigration (Federal Courts
Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, s 5(2)
and Immigration and Refugee Protection Act, SC 2001, c 27, s 4(1)).
Accordingly, the style of cause is amended. The Minister of Citizenship and
Immigration replaces the Minister of Immigration, Refugees and Citizenship as
respondent. (Rule 76, Federal Courts Rules, SOR/98-106).
III. Standard of Review
[5]
An officer’s determination of an application
under the Canadian Experience Class involves findings of fact and law and is to
be reviewed against a standard of reasonableness (Arachchige v Canada
(Citizenship and Immigration), 2012 FC 1068 at para 8). Reasonable
decisions follow a justifiable, transparent and intelligible decision-making
process and fall within a range of possible, acceptable outcomes defensible in
respect of the facts and law (Dunsmuir v New Brunswick, 2008 SCC 9 at
para 47).
IV. Analysis
[6]
Mr. Liu’s application for permanent residence
under the CEC program included a letter of employment [LOE] stating that he had
worked as an assistant restaurant manager since August 31, 2015, that his
employment was ongoing and that his annual income was $23,400 based on a 30
hour work week. The respondent’s Global Case Management System [GCMS] notes
indicate that the authenticity of the applicant’s work experience as a
restaurant manager was to be investigated as it was unrelated to his prior work
experience as a language instructor.
[7]
Mr. Liu’s employer was contacted during that
investigation. His employer confirmed the contents of the LOE, and that Mr. Liu
worked 30 hours per week in split shifts (11:00 am to 2:00 pm and 6:00 pm to
9:00 pm) 5 days a week. Mr. Liu was also contacted. In the course of the phone
interview he reaffirmed he worked 30 hours per week with one day and possibly
two days off per week. He then described his shifts, confirming that there was
a lunch shift and a dinner shift but stating he would normally only work both
shifts one day per week, Sunday. This information was inconsistent with the
claimed 30 hour work week and resulted in the issuance of a procedural fairness
letter [PFL]. The PFL noted the discrepancy between Mr. Liu’s phone interview
responses and the information otherwise provided by Mr. Liu and his employer.
[8]
In his response to the PFL Mr. Liu indicated
that there was a miscommunication on his part and that he had failed to explain
his situation clearly. He then set out his work schedule indicating a 30 hour
work week and he included documents from the employer’s accountant that
included a T4 payroll record, T4 slips for 2015 and 2016 and paystubs covering
the September 2015 to December 2016 period. The payroll documentation
indicated a 30 hour work week at $15 per hour with the exception of a two week
period in February 2016 where no payment was made.
[9]
In considering the response to the PFL, the
Officer found that the details of Mr. Liu’s work schedule were not consistent
with the information provided by his employer or his prior telephone response. The
Officer further found that Mr. Liu’s annual salary of $23,400 as set out in the
LOE was inconsistent with the annual wage reflected in the payroll
documentation. More specifically, the GCMS notes state the following:
PFL response includes letter from company
accountant with breakdown of wages as well as paystubs. The PFL response also
includes T4s for 2015 and 2016 as well as paystubs for the entire period of
employment. I note that PA did not provide any Notice of Assessments which
would confirm PAs employment income as reported to CRA. I note that the
paystubs provided are not dated. As well, I note that the paystubs lack elements
of professionalism and include a spelling error in PAs title. I give the
paystubs and letter from accountant less weight than the information provided
by PA and his employer during the telephone interviews.
[10]
The respondent argues that the Officer was
entitled to assign less weight to the accountant’s documentation and this is
not a basis upon which the Court should conclude the decision was unreasonable.
The respondent submits that the jurisprudence supports the Officer’s reliance
on spelling errors to discount the weight to be assigned the documents and to
prefer the spontaneous answers provided by phone over documentation provided in
response to the PFL. The respondent further submits that the Officer did not
misapprehend the evidence in finding a discrepancy between the annual income as
stated in the letter of employment and the income reflected in the payroll
documentation.
[11]
I take no issue with the general principles
reflected in the respondent’s position but am of the view that those principles
are of minimal application when applied to the facts in this case.
[12]
The respondent relies on Jadallah v Canada
(Citizenship and Immigration) 2016 FC 1240 [Jadallah] to argue that
errors on the face of a document might well be grounds to conclude that the document
is not genuine or deserves to be given little weight. In that case however the
Court was considering identity documents and specifically a birth certificate
that “contained numerous spelling errors…[and]… was
substantially different from that of the Applicant’s sister which contained no
such errors” (Jadallah at para 9). In this case the Officer
relies on a misspelling of Mr. Liu’s job title as “Assistant
Manager” on the pay stubs to support the conclusion that less weight is
to be attributed to the payroll documentation. The misspelling of a job title
in a computer generated form where one might reasonably conclude the title was
entered once is different in both degree and import from the circumstances
reflected in Jadallah.
[13]
Similarly the Officer notes the absence of a
date on each of the payroll stubs to support the view that the documentary
evidence deserves less weight. But each pay stub identifies the relevant pay
period by date and also contains a handwritten note indicating how payment was
made (by cash or cheque) and in some cases the date of payment and in others
the cheque number.
[14]
The respondent relies on Bhatti v Canada
(Citizenship and Immigration), 2017 FC 186 [Bhatti] in support of
the view that the Officer was entitled to give more weight to spontaneous
answers provided in a telephone interview than responses provided to a PFL. In Bhatti
however there was a finding that a fraudulent letter had been submitted and
that prior third party statements were changed in response to the PFL. In this
case the documents provided in response to the PFL were discounted because of
the Officer’s concerns about the pay stubs lacking dates, lacking undefined “elements of professionalism” and containing a
spelling error. While the Officer’s findings may imply a concern with the
genuine nature of the payroll documents, no such finding is made. It is also
notable that the documents in question include T4 slips which are consistent
with the employer’s and Mr. Liu’s evidence relating to weekly working hours.
[15]
I am also satisfied that the Officer
misapprehended the evidence in finding that the annual salary as reflected in
the LOE was inconsistent with that contained in the payroll documentation. As
Mr. Liu’s counsel pointed out in both her written and oral submissions, Mr. Liu
was not paid for a two week period in February 2016. This two week period fully
explains the discrepancy between his annualized rate of pay based on a 30 hour
week as set out in the LOE and the actual pay received in 2016.
[16]
The Officer’s decision in this case is one that
attracts a high degree of discretion and is owed significant deference.
However, neither discretion nor deference insulates a decision from the
elements of transparency and intelligibility. The Officer’s conclusion that the
payroll documents confirming the evidence of the employer and Mr. Liu deserved
less weight than the spontaneous answers provided by Mr. Liu in a telephone
interview lacks transparency and intelligibility when one examines the record.
I therefore conclude the decision is not reasonable.
[17]
The parties have not identified a question of
general importance, and none arises.
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