Date: 20071107
Docket: IMM-1852-07
Citation: 2007
FC 1157
Vancouver, British
Columbia,
November 7, 2007
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
HAILIAN
YU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Ms. Yu’s application for a permanent residence
visa under the Skilled Worker category was refused. The visa officer concluded
that Ms. Yu had not demonstrated that she had at least one year of full-time
work experience during the last ten years as required by the legislation. Ms. Yu
contends that the visa officer failed to consider relevant evidence and wrongly
concluded that she had not been truthful about her employment history and her
activities in Canada.
[2]
Despite the articulate submissions of the
respondent’s counsel, I find that the visa officer considered irrelevant
evidence and failed to consider relevant evidence. Consequently, the
application for judicial review will be allowed.
[3]
I agree with the respondent on a number of
fronts, specifically: the onus was on Ms. Yu to satisfy the visa officer of her
work experience; it was for Ms Yu to request an interpreter if she was unable
to respond to the questions in English; Ms. Yu’s attendance at the University
of British Columbia (UBC) Sauder School of Business (Sauder) in Vancouver was
relevant to the extent of her employer’s association, if any, with Sauder; and
the visa officer was entitled to prefer what emanated from Ms. Yu at the
interview over the contents of the employers’ reference letters.
[4]
That said, the CAIPS notes reveal that at least
half of Ms. Yu’s interview was devoted to questions relating to Ms. Yu’s
attendance at Sauder, a matter that was largely immaterial to her visa
application. The documents from UBC and Sauder, the legitimacy of which were
not at issue, clearly establish Ms. Yu’s attendance at the school. More
importantly, Ms. Yu was not relying upon her attendance at Sauder to support
her application.
[5]
Ms. Yu did not suggest that she worked in Canada nor did she attempt to obtain
points, or any other benefit, from her attendance at Sauder. Yet, the visa
officer focussed extensively on Ms. Yu’s presence at the school and on the
description of her as a “visiting scholar”. The visa officer took exception to the
accuracy of the description. Notably, the same terminology (“visiting scholar”)
is contained in the various UBC and Sauder documents that describe the program
(tribunal record at pp. 9, 11, 12) and in the Canada Immigration and
Citizenship (CIC) visitor visa (tribunal record at pp. 35, 36).
[6]
More significantly, the characterization of
“visiting scholar” ultimately resulted in a finding that Ms. Yu had not been
“honest about her activities in Canada”. In my view, this conclusion, in the face of the documentation,
was patently unreasonable. Moreover, it was made in relation to a factor that
was not material to the application and may well have factored into the visa
officer’s ultimate conclusion that Ms. Yu had not been honest in relation to
her employment activities.
[7]
Second, the visa officer failed to consider one
of the employment references provided by Ms. Yu at the interview. The
stated purpose of the interview was to ascertain the extent of Ms. Yu’s
work experience in China. She
was informed that further information was required. In response, and in
addition to the documentation submitted with her application, she produced a
reference letter from Oxford-Combridge International Group in Beijing
(Oxford-Combridge) detailing her duties and salary as an employee (for one year
during the relevant period). There is no reference to this document in the visa
officer’s CAIPS notes. Further, the visa officer, at paragraph 8 of her
responding affidavit, specifically delineates the employment experiences that
she considered in assessing Ms. Yu’s work experience in China. Oxford-Combridge is not mentioned.
[8]
The existence of the presumption that a
decision-maker has considered all of the evidence in the record before
rendering a decision is not disputed by either party. It is also common ground
that every piece of evidence need not be referenced in a decision. However, the
presumption is a rebuttable one and the need to specifically refer to evidence
increases concomitantly with the probative value or relevance of the evidence
to the issue to be determined. Here, there is evidence in the tribunal record
that specifically refers to employment for a period of one year. It is not
mentioned in the CAIPS notes and the visa officer, in listing the documents
relied upon, makes no reference to it. While it was open to the visa officer to
reject the document, or to assign it little weight, to ignore it was not an
option. From the record, that appears to have been the case. In my view, the
visa officer's failure to acknowledge and consider the Oxford-Combridge
document was patently unreasonable.
[9]
It may well be that Ms. Yu will not be able to
satisfy the legislative requirements that demand one year of full-time work
experience during the last ten years. However, she is entitled to have her
employment experience properly assessed. Her tenure at Sauder is not material
to that assessment.
[10]
For the foregoing reasons, the application for
judicial review will be allowed. Counsel did not suggest a question for
certification and none arises.
ORDER
THIS COURT ORDERS that the application for judicial
review is allowed and the matter is remitted for determination by a different
visa officer.
"Carolyn
Layden-Stevenson"
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