Jian v. Canada (Minister of Citizenship and Immigration), 2003 FC 1375

Date: 20031121

Docket: IMM-2078-02

Citation: 2003 FC 1375

BETWEEN:

                                                                        YANG JIAN

                                                                                                                                                       Applicant

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

von FINCKENSTEIN, J.

[1]                 The applicant is from Hong Kong. In November 1999, he applied for permanent residence status in Canada as an independent worker. The applicant submitted that he was currently employed as a computer programmer for an insurance company in Hong Kong.

[2]                 An official from the Canadian Consul General contacted the applicant's employer in order to verify this claim. The official informed the visa officer that a human resources manager with the company had stated that the applicant was a salesman rather than a software developer. The visa officer requested that the applicant attend an interview.

[3]                 At the interview, the applicant provided the visa officer with two letters from his employer which stated that he was a software developer with the company.    The applicant also provided a certificate from a notary public which certified that the company seals on the letters were authentic.    These documents were provided in order to answer the visa officer's concerns regarding the statements allegedly made to the Consul official by the applicant's employer.

[4]                 In a letter dated March 25^th, 2002, the visa officer dismissed the application on the basis that the applicant had submitted fraudulent information to the Consul. The letter provided no explanation as to why the visa officer had concluded that the two letters from the applicant's employer were inauthentic. In addition, no reference was made in the CAIPS notes or in the affidavits of the visa officer or applicant as to any explanation provided to the applicant during the interview.

[5]                 The visa officer had before him written and notarial evidence from a vice-president of his company certifying that the applicant is employed as a computer specialist. He found these documents to be fraudulent and accepted the verbal evidence given over the phone to an embassy staff member by a human resource officer of the applicant's employer. The visa officer's finding regarding the fraudulent nature of the letters was central to his decision to refuse the application. His failure to provide the applicant with any reason as to why he had found the letters to be fraudulent was a breach of procedural fairness (Gam v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. 1737 (QL)). For this reason, this application is allowed. The matter is remitted for reconsideration by a different visa officer.

"K. von Finckenstein"

                                                                                                                                                           JUDGE                     

Ottawa, Ontario

November 21, 2003

                                                                 FEDERAL COURT

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                                     IMM-2078-02

STYLE OF CAUSE:                                                     YANG JIAN v. MCI    

PLACE OF HEARING:                                                             Toronto, Ontario

DATE OF HEARING:                                                               November 20, 2003

REASONS FOR ORDER:                                                        von Finckenstein J.

DATED:                                                                                       November 21, 2003

APPEARANCES:

SOLICITORS OF RECORD: