Date: 20130312
Docket: IMM-4073-12
Citation: 2013
FC 230
Ottawa, Ontario, March
12, 2013
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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QING QIANG YUAN
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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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REASONS FOR
JUDGMENT AND JUDGMENT
I. Overview
[1]
Mr
Qing Qiang Yuan applied for permanent residence in Canada based on his
experience as a chef in China. However, a visa officer in Beijing concluded
that Mr Yuan had misrepresented his restaurant experience and found that he
was, therefore, inadmissible to Canada according to s 40(1)(a) of the Immigration
and Refugee Protection Act, SC 2001, c 27, [IRPA] (see Annex).
[2]
Mr
Yuan argues that the officer treated him unfairly by summarily dismissing the
evidence he had provided in support of his application. In turn, this caused
the officer to arrive at an unreasonable conclusion that was out of keeping
with the evidence. He asks me to quash the officer’s decision and order another
officer to reconsider his application.
[3]
I
agree that the officer’s decision should be overturned. While Mr Yuan was given
a fair opportunity to address the officer’s concerns, the officer’s treatment
of the evidence Mr Yuan provided was unreasonable. I must, therefore, allow this
application for judicial review.
[4]
The
sole issue is whether the officer unreasonably concluded that Mr Yuan had
misrepresented his work history.
II. The Officer’s
Decision
[5]
In
his application, Mr Yuan stated that he was a chef at the Globelink Hotel restaurant
in Guangzhou. The officer attempted to verify that information. Visa officers
visited the restaurant and found it to be closed. They visited another
restaurant in the hotel and were told that Mr Yuan had not eaten there in a
while and was not in the kitchen.
[6]
The
officers telephoned Mr Yuan, who stated that he had left the Globelink
restaurant in June 2010 when the restaurant closed. He moved on to a restaurant
called Shi Yin Shi Shi, where he was an apprentice in the BBQ section.
Originally he stated he was not paid, and then admitted he was paid 1000 RMB
per month.
[7]
The
officers visited the Shi Yin Shi Shi restaurant. Three workers there did not
know Mr Yuan, but a fourth, the head of the BBQ section, stated that Mr Yuan
worked there but was absent either because a family member was visiting or
because he had a personal matter to deal with in Beijing. The officers found no
documentary evidence indicating that Mr Yuan worked there; his name was not on
the duty roster.
[8]
Based
on these circumstances, the visa officer reviewing Mr Yuan’s application sent
him a letter expressing a concern that he had misrepresented his experience as
a chef.
[9]
Mr
Yuan responded to the officer’s letter. He explained that he had failed to
keep his application up to date. The Globelink restaurant closed in June 2010.
The restaurant the officers had visited at the hotel was actually an employee
canteen. In addition, since he was considered a temporary worker at Shi Yin Shi
Shi, his name did not appear on the employee duty roster. Further, the
employees to whom the officers spoke worked in the section where BBQ cuts were
executed, whereas he worked on another floor where the roasting was done. That
is why those employees did not know him.
[10]
Mr
Yuan also supplied a number of documents to support his version of events,
including an employment certificate and termination agreement from the
Globelink restaurant, his cook qualification certificate, an employment
certificate from the Shi Yin Shi Shi restaurant, pay stubs, attendance forms,
social insurance data, testimonials from his supervisor and two co-workers, and
photographs of him in the workplace.
[11]
The
officer found that this evidence did not alleviate concerns about the
truthfulness of Mr Yuan’s representations about his employment history. The
officer found Mr Yuan’s explanations self-serving and not credible. For
example, during the site visit, his co-workers at Shi Yin Shi Shi did not state
that some BBQ workers were on another floor or express any uncertainty about
their ability to confirm whether Mr Yuan worked there. The officer found that
Mr Yuan’s explanation that he was a temporary worker at the time of the visit
(yet had been made permanent shortly thereafter) was also self-serving.
[12]
The
officer also found that the documentation Mr Yuan had supplied was unreliable.
The officer noted that false documents are readily available in China. Their contents could not be verified by contacting the authors of the documents
since Mr Yuan had probably alerted them to the fact that they might be contacted
by Canadian officials. Similarly, Mr Yuan’s references could not be considered
reliable because they had been identified after the officer’s concerns had been
brought to Mr Yuan’s attention.
[13]
Accordingly,
the officer recommended that Mr Yuan’s application for permanent residence be
refused for misrepresentation. The officer’s supervisor adopted the officer’s
recommendation and informed Mr Yuan of this result by letter.
III. Was the Officer’s
treatment of the evidence unreasonable?
[14]
The
officer gave Mr Yuan a fair opportunity to address concerns about his
employment history. However, the officer’s treatment of Mr Yuan’s response was
unreasonable.
[15]
While
the site visits yielded some contradictory evidence, they also generated
independent evidence confirming that Mr Yuan had once worked at the Globelink
restaurant and currently worked at the Shi Yin Shi Shi restaurant. In my view,
the officer had an obligation to consider the corroborative evidence, including
Mr Yuan’s explanations about his work history and the documentary evidence confirming
his employment record. These documents included government records and could
have alleviated all of the officer’s concerns. The officer’s refusal to
consider them or to confirm their contents was based on an assumption that Mr
Yuan had obtained false documents by orchestrating, on short notice, an
elaborate fraud involving co-workers, supervisors, employers, human resources
personnel, and government functionaries.
[16]
In
my view, the officer’s treatment of this evidence was not reasonable. In turn,
the officer’s conclusion that Mr Yuan had misrepresented his work history in
his application was also unreasonable.
IV. Conclusion and
Disposition
[17]
There
was a valid basis for concern about Mr Yuan’s work history. He was given a fair
chance to address that concern and did so with extensive evidence supporting
his application. Rejecting that evidence summarily based on an assumption that
it was likely fraudulent was unreasonable, as was the ultimate conclusion that
Mr Yuan had misrepresented his work experience. Therefore, I must allow this
application for judicial review and order another officer to reconsider Mr
Yuan’s application. 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 allowed and the matter is referred back to
another officer for reconsideration;
2.
No
question of general importance is stated.
“James
W. O’Reilly”
Annex
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Immigration
and Refugee Protection Act, SC 2001, c 27
Misrepresentation
40.
(1) A permanent resident or a foreign national is inadmissible for
misrepresentation
(a) for directly or
indirectly misrepresenting or withholding material facts relating to a
relevant matter that induces or could induce an error in the administration
of this Act;
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Loi
sur l’immigration et la protection des réfugiés, LC 2001, ch 27
Fausses
déclarations
40.
(1) Emportent interdiction de territoire pour fausses déclarations les faits
suivants :
a) directement ou indirectement,
faire une présentation erronée sur un fait important quant à un objet
pertinent, ou une réticence sur ce fait, ce qui entraîne ou risque
d’entraîner une erreur dans l’application de la présente loi;
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