Date: 20090210
Docket: IMM-3631-08
Citation: 2009 FC 135
Calgary, Alberta, February 10,
2009
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
SHI
WEI HUANG and ZHI YI MA
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a visa officer’s decision not to issue
work permits to the principal applicant Shi Wei Huang and his accompanying wife
Zhi Yi Ma. The refusals were communicated by separate letters, both dated July
15, 2008. For all intents and purposes, however, this review bears solely on
the refusal of the principal applicant’s request for a permit.
BACKGROUND
[2]
Mr.
Huang and his wife are Chinese nationals. Both are in their mid-thirties. They
have been married since 1999. Mr. Huang is a cook by trade. Since 2002, he
has worked as an assistant to the head chef at the Long Feng Hotel in Taishan City, where he
earns a salary of 1300 RMB monthly.
[3]
In
January of 2008, Mr. Huang received an offer of employment from the Silver
Dragon Restaurant, a Chinese restaurant operating at two locations in Alberta. Its main
establishment is in Calgary; however, Mr. Huang was to work at its newer Banff location. The
prospective employer obtained a positive Labour Market Opinion from the Foreign
Workers Recruitment Branch of Service Canada towards the end of April 2008. The
opinion was based on an assessment of the labour market and remains valid until
April 25, 2009.
[4]
The
applicants retained the services of a Calgary law firm to assist them
with their work permit requests. Their applications were submitted to the
Immigration Section of the Canadian Embassy in Beijing under cover
of letter dated May 27, 2008. The letter of offer and the labour market
opinion were included in the accompanying document package; so was a letter
from a manager of the Long Feng Hotel, Mr. Ma, attesting to Mr. Huang’s cooking
skills and the Hotel’s intention to rehire him upon his return from abroad.
[5]
Counsel’s
submissions on behalf of the applicants in the May 27, 2008 letter indicated
that the prospective employer, Silver Dragon Restaurant, is a well-established
business specializing in Chinese/Cantonese cuisine. Counsel also affirmed that
Mr. Huang has over 10 years experience in food preparation and cooking; that
there is no English language requirement for the position he would be taking
up; and that his goals are to gain international experience and earn money to
bring back to China.
[6]
The
applicants’ work permits were refused by a Visa officer in the Beijing
Immigration Section. The officer’s brief notes to CAIPS (Computer Assisted
Immigration Processing System) from July 15, 2008 constitute his reasons for refusal
of the visas.
APPLICANT IS APPLYING TO WORK
FOR 2 YEARS AS A COOK IN CANADA. APPLICANT’S SPOUSE IS ALSO
APPLYING FOR A WORK PERMIT (…), IN THEORY SHE WOULD BE ELIGIBLE IF THIS
APPLICATION IS APPROVED. APPLICANT AND SPOUSE HAVE NO CHILDREN. APPLICANT AND
SPOUSE HAVE NO PREVIOUS OVERSEAS TRAVEL.
APPLICANT STATES TO BE EMPLOYED
AT A RESTAURANT AS ASSISTANT TO FIRST CHEF. SALARY IS STATED TO BE 1300
RMB/MTH. EQUIVALENT TO ABOUT $180 AT CURRENT EXCHANGE RATES.
APPLICANT HAS NOT PRESENTED
ANY OTHER PROOF OF SAVINGS OR ASSETS IN PRC. WITH LOW SALARY OF APPLICANT, EVEN
BY CHINESE STANDARDS, I AM NOT SATISFIED THAT APPLICANT WILL HAVE SUFFICIENT
INCENTIVE TO RETURN TO PRC AFTER AUTHORIZED TO STAY IN CANADA.
APPLICANT HAS NOT DEMONSTRATED
SUFFICIENT ESTABLISHMENT IN THE PRC AND / OR SUFFICIENT TIES TO MOTIVATE
RETURN.
I AM NOT SATISFIED THAT
APPLICANT IS A BONA FIDE TEMPORARY RESIDENT WHO WILL LEAVE CDA AT THE END OF
AUTHORISED STAY.
REFUSED.
[7]
The
relevant legislative provision governing the applicants’ refusal is section 200(1)(b)
of the Immigration and
Refugee Protection Regulations, SOR/2002-227:
|
200 (1) Subject to subsections (2)
and (3), an officer shall issue a work permit to a foreign national if,
following an examination, it is established that
(…)
(b) the foreign national
will leave Canada by the end of the period authorized for their stay under
Division 2 of Part 9;
(…)
|
200 (1) Sous
réserve des paragraphes (2) et (3), l’agent délivre un permis de travail à
l’étranger si, à l’issue d’un contrôle, les éléments suivants sont
établis :
(…)
b) il quittera le Canada à la fin de la période de séjour qui lui
est applicable au titre de la section 2 de la partie 9;
(…)
|
ISSUES
[8]
The
applicants submit that there are three grounds on which the decision under
review ought to be set aside:
a. the visa officer ignored
or failed to consider all of the evidence before him;
b. the visa officer drew
negative inferences which were not grounded in the evidence before him; and
c. the visa officer
breached the duty of fairness in failing to put his concerns to the applicants
before rendering his decision.
ANALYSIS
[9]
In
my view, this application must be allowed on the first ground raised by the
applicants. As I am granting the application on this ground of review, it is
not strictly necessary that I rule on the other two grounds of review advanced;
however, in my view, they were without merit.
[10]
The
applicants submit that in finding that they had not demonstrated sufficient
ties to China to ensure that they would return there after their two year work
permits expire, the officer failed to mention and indeed ignored information
indicating that they have family members in China, and that Mr. Huang’s
employer has offered to re-employ him on their return.
[11]
The
two certified tribunal records show that Mr. Huang has a father and sister and Ms.
Ma has a father, mother, sister and brother all living in China. While the
officer notes that the applicants do not have any children, he fails to mention
these other family members or the promise of a job on their return.
[12]
The
applicants note that the officer’s observation that they have no children is a
statement made with no accompanying analysis. Hence it is not possible to
ascertain whether this is considered a positive, a negative, or a neutral
factor in his decision. The fact that all of their close family will be
remaining in China would appear to be a positive factor indicating that they have
ties to China and would be likely to return.
[13]
Similarly,
the officer notes that the applicants have no history of overseas travel
without indicating whether this is considered a positive, a negative, or a
neutral factor in terms of their likelihood of returning to China. In my view
this can only be a neutral factor. They have never been abroad and thus there
is no precedent one way or the other as to whether they would be likely to
return once their visas expire.
[14]
In
the Court’s view, the evidence that Mr. Huang has a job waiting for him on his
return weighs in favour of the likelihood of his doing so, lack of employment
on return being a possible incentive for staying in Canada. Again,
this evidence is not specifically referenced or analyzed in the decision, as
counsel for the applicants emphasized.
[15]
While
each of these factors is troubling, alone they would have been unlikely to warrant
setting aside the officer’s decision. It is well-established that the standard
of review of a visa officer’s decision is reasonableness, and the Court will
normally show deference to an officer’s appreciation of the evidence. The
officer is presumed to have reviewed all of the material before him. In fact,
as will be noted, in this case the officer filed an affidavit asserting that he
did just that.
[16]
As
it can be seen from the CAIPS notes excerpted above, the officer found that Mr.
Huang had not presented any proof of savings or assets in China. The
respondent submitted that this fact, taken alone or coupled with the evidence
that Mr. Huang’s earnings in China are only modest, would have been enough,
without positive evidence of strong ties to China, for the officer to conclude
that his return was unlikely. Until the hearing the applicants had not
challenged the officer’s finding that they had not presented evidence of assets
in China. However, at
the hearing their counsel pointed to page 19 of the Certified Tribunal Record -
“Application for A Temporary Resident Visa Made Outside Of Canada”, submitted
by Ms. Ma – in which she states “We have saving USD $3,000.00” (sic).
There is also an undated, handwritten note on this document that reads “Call
app’t, app’t confirmed that this form submit in error” (sic).
[17]
It
is not evident from the record who wrote this note or when. It is also not
evident from the record whether the visa officer read this form or not. It
does, on its face, contain information that might have been critical to the
decision to be made, and it is included in the certified tribunal record.
[18]
As
noted, the respondent put in evidence an affidavit sworn December 15, 2008 by
the visa officer whose decision is under review. I concur with the
observations of Justice Gauthier in Jesuorobo v. Canada (Minister of
Citizenship and Immigration), [2007] F.C.J. No. 1680, at paragraph 12, that
the respondent cannot rely on new evidence from the officer to change, explain
or add to the refusal letter and the CAIPS notes. It is an attempt by the
officer to pull himself up by his bootstraps where his CAIPS notes may be
deficient or too summary in nature. That said, the officer, in his affidavit, swears
that “I reviewed Mr. Huang’s application kit and all of the applicants’
supporting materials…”. If this is so, he saw the reference to these
applicants having $3000 USD in savings. Even if the form was filed in error, knowing
of the existence of these funds, the officer’s finding that the applicants had
no assets in China is unreasonable,
and may well be perverse.
[19]
For
this reason alone, this application must be allowed and the work permit
applications must be remitted to another visa officer for fresh consideration.
The original offer of employment was returned to the applicants in accordance
with the Embassy’s archiving policy. If an original is required, the
respondent is directed to immediately advise the applicants.
[20]
It
would not be appropriate for the new officer to re-determine these applications
and simply ignore the evidence contained in the document that was said to have
been filed in error. Thus, the applicants shall have an opportunity to submit
fresh or additional evidence in support of their work visa applications in
order that the facts are squarely before the officer. In light of the
shortness of time available before the Labour Market Opinion expires, they
should do so as soon as possible. If nothing is filed by the applicants by
March 25, 2009, then as of that date the officer shall be at liberty to render
his determination in the absence of any additional information. Lastly, as the
Labour Market Opinion remains valid only until April 25, 2009, the respondent
is directed to issue the decision on the redetermination prior to April 25,
2009.
[21]
It
may well be that the officer examining these applications, even with the new
evidence, will arrive at the same conclusion as the officer whose decision is
under review. Nonetheless, fairness requires that the decision be made with
all the evidence before the officer.
[22]
Neither
party submitted a question for certification and on the facts, as found, there
is no such question.
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