Date: 20100409
Docket: IMM-2462-09
Citation: 2010 FC 373
Ottawa, Ontario, April 9, 2010
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
YING TENG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Overview
[1]
In 2001, Ms. Ying Teng came to Canada from China on a study permit. She
obtained a diploma in International Business from Seneca College in 2003. She
wanted to stay in Canada, so she sought the assistance of an immigration
consultant. He gave her bad advice. He suggested that she apply for a work
permit but told her that she did not actually have to work for the employer she
identified. She obtained a work permit from Sun Rise Co. Ltd., but never worked
there.
[2]
In 2005, Ms. Teng began working for the Korean Grill House, for which
she had no authorization. She applied for permanent residence as a skilled
worker but was turned down. She fell one point short of the threshold for
success on her application.
[3]
At that point, Ms. Teng retained counsel, who arranged for a positive
arranged employment opinion for her position at the Korean Grill House. In
2007, Ms. Teng once again applied for permanent residence as a skilled worker
(Secretary). She attended an interview during which she admitted that her work
permit with Sun Rise Co. Ltd. was false, and acknowledged her unauthorized work
for the Korean Grill House. To verify Ms. Teng’s work experience, the officer
contacted the latter establishment, but the owner denied that Ms. Teng had
worked there without a permit. The officer asked Ms. Teng to provide further
evidence of her work experience, both in Canada and in China. Ms. Teng supplied
the officer with some documents, but the officer still refused her application.
[4]
Ms. Teng argues that the officer erred in refusing her permanent
residence application. She asks me to order another officer to reconsider it. I
can find no basis for overturning the officer’s decision and must, therefore,
dismiss this application for judicial review.
II. Analysis
(a) The
evidence supporting Ms. Teng’s application
[5]
Ms. Teng presented her diploma from Seneca College and her enrolment
letter from York University. At the interview, Ms. Teng described her work
experience in China. She worked for six months as a secretary at Qingdao
Tongcheng Trading Goods and Materials Co. Ltd. (Qingdao). Her duties amounted
to answering the phone, taking minutes and arranging appointments. She was then
promoted to manager assistant and her duties expanded somewhat.
[6]
At the Korean Grill House, Ms. Teng started out as a waitress but was
promoted to dining-room manager. She sets schedules for the staff, monitors
performance, checks inventory for food and beverages, and calculates profits.
As mentioned, though, Ms. Teng’s employer denied she worked there. She conceded
that she was paid “under the table”.
[7]
After the interview, the officer asked for further evidence of her work
history. Ms. Teng had to show at least one year of employment as a secretary. She
provided a letter of reference from her employer in China and some financial
particulars.
(b) The
officer’s decision
[8]
The officer noted that Ms. Teng’s letter of reference from China
identified neither the author, nor his or her position. Further, the contents of
the letter did not line up with the duties described by Ms. Teng in the
interview. At the interview, Ms. Teng had described her duties as mainly
clerical, corresponding with a General Office Clerk, not a Secretary.
[9]
Based on the evidence before him, taking into account Ms. Teng’s past
misrepresentations, the officer concluded that she had not demonstrated that
she had the necessary experience in the occupation she desired.
(c) Was the
officer’s decision reasonable?
[10]
Ms. Teng argues that the officer erred by failing to recognize that she
merely had to show that she had performed a substantial number of the duties
prescribed for a Secretary under the National Occupational Classification
(NOC). Since some of her responsibilities at Qingdao met the NOC description of
a Secretary, she should have been given credit for her experience there.
Ms. Teng further argues that the
officer never informed her of his concern about her experience. While she was
asked to provide further evidence, she was not specifically advised of the
officer’s concern. Accordingly, she was not treated fairly because she did not
know that she had to provide better evidence of her experience.
[11]
In my view, the officer’s conclusion was reasonable. He concluded that
there was insufficient evidence of Ms. Teng’s experience as a Secretary. The
officer had the discretion to determine whether Ms. Teng’s experience fell
under General Office Clerk or Secretary. He found that some of her duties fell
under one, others under the other. On the face of the record and the officer’s
reasons, I cannot see anything unreasonable about his conclusion.
[12]
I do not believe the officer had a duty to inform Ms. Teng of his
concerns and provide her an opportunity to address them. In any case, the
officer did tell Ms. Teng that she should provide better evidence of her
experience. In response, Ms. Teng simply provided a reference letter that had
been submitted as part of her earlier application. Her application failed
because of an absence of evidence that she met the definition of a skilled
worker. At all times, the burden was on her to present sufficient evidence to
meet the statutory test. The officer’s conclusion that the evidence was wanting
was not unreasonable.
III. Conclusion and
Disposition
[13]
The officer considered the evidence before him supporting Ms. Teng’s
application for permanent residence. The officer had concerns about the
sufficiency of that evidence and, in the end, concluded that Ms. Teng had not
shown that she fell within the occupation of Secretary. I cannot find any basis
for concluding that the officer’s decision was unreasonable and must,
therefore, dismiss this application for judicial review. Neither party proposed
a question of general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT’S JUDGMENT is
that
1.
The
application for judicial review is dismissed;
2.
No
question of general importance is stated.
“James
W. O’Reilly”
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