Date:
20130607
Docket:
IMM-10964-12
Citation:
2013 FC 614
Ottawa, Ontario,
June 07, 2013
PRESENT: The
Honourable Madam Justice Simpson
BETWEEN:
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FANG WU
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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
ORDER AND ORDER
[1]
Fang
Wu [the Applicant] has applied for judicial review pursuant to subsection 72(1)
of the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act]
of a decision of the Immigration Appeal Division of the Immigration and Refugee
Board [the IAD] dated October 9, 2012, dismissing her appeal of a determination
that she did not meet the residency requirements set out in s. 28 of the Act
[the Decision].
[2]
For
the following reasons, the application will be allowed.
Background
[3]
The
Applicant, who is a citizen of China, obtained permanent residence status in Canada in 2001 as a member of the investor class. In 2002 she purchased a home and moved to
Canada with her husband and children. However, the house was sold and from
2003 onwards the Applicant and her family resided primarily in China. There, she was employed by a Canadian company called Jahoo
Education Management [Jahoo]. She believed that the time she spent in China working for a Canadian employer would count toward her residency requirement under s.
28(2)(iii) of the Act.
[4]
On
January 22, 2009, an immigration officer at the Canadian Embassy in China [the Officer] determined that the Applicant was in breach of her statutory residency requirement
because she was physically present in Canada only 213 of the required 730 days
during the relevant 5 year-period. The Officer was of the view that the
Applicant had not provided the supporting documentation he needed to allow him
to conclude that she was employed on a full-time basis by a Canadian business
pursuant to s. 28(2)(iii) of the Act.
[5]
The
Applicant appealed to the IAD. She disputed the legal validity of the Officer’s
determination and also sought discretionary relief on humanitarian and
compassionate [H&C] grounds.
The Decision
[6]
The
IAD upheld the Officer’s view of the insufficiency of the evidence dealing with
the Applicant’s employment with Jahoo and found that there were insufficient
H&C grounds to allow the appeal.
The Issues
[7]
There
are three issues:
a. Was
the record the Officer prepared for the IAD incomplete?
b. Was
there a breach of the rules of procedural fairness?
c. Were
there errors of fact in the Decision?
Discussion
a.
Was the record the Officer prepared for the IAD incomplete?
[8]
The
Applicant alleges that the record the Officer provided to the IAD was
incomplete [the Record] because:
a. It
did not include a faxed copy of a letter from the CEO of Jahoo [the Jahoo
Letter].
b. The
Officer’s Computer Assisted Immigration Processing System [CAIPS] notes
suggested that other employment documents had been received by the Officer [the
Other Documents].
[9]
The
Officer’s CAIPS notes confirm that he considered the Jahoo Letter. However, it
was not included in the Record. In my view, this was an oversight and it is, in
any event, immaterial because the Jahoo Letter was before the IAD. The do
novo nature of the IAD appeal permitted the Applicant to submit it along
with any other supporting documents she deemed important.
[10]
There
are two arguments which suggest that the Officer had the Other Documents.
[11]
The
first submission rests on a narrative entry in the CAIPS notes on January 14,
2009 [the First Entry] which says: “Docs Rec’d:”. In my view, this entry
logically refers to the prior request letters of January 7 and January 9, 2009
which show that the Applicant was asked to provide further employment
information and an original record of her entries and exits to and from China between 2004 and 2009.
[12]
However,
since the First Entry does not describe the contents or nature of the documents,
I have concluded that the First Entry alone is not evidence that multiple
documents about employment were before the Officer and omitted from the Record.
This conclusion is supported by a second entry of January 19, 2009 [the Second
Entry] which, following reference to the Jahoo Letter, reads:
No other supporting documentation provided regarding
employment with Canadian Business. As Applicant did not provide supporting
documentation as requested, I have concerns that Applicant was not employed on
a full-time basis by a Canadian business.
[13]
In
these circumstances I am persuaded that the First Entry did not deal with
employment documents.
[14]
The
second argument depends on a document entitled “Checklist for Travel Document
Application”. It is not clear who authored and who completed this form. It is
written in English and Chinese. Item 12 has a checkmark beside it and reads as
follows:
If the applicant or his/her Permanent Resident
spouse has been employed by a Canadian business outside of Canada, please provide
•
Detailed
documentation regarding the Canadian business.**
•
Detailed
documentation demonstrating full-time employment (contract, evidence of
remuneration, evidence of continued business activity, etc.) **
** Please see the Application for a Travel Document
Guide for specific business documentation that should be included in your
application.
[15]
The
checklist is signed by the Applicant, on January 6, 2007. However, there is no
evidence from the Applicant about what documents, if any, she provided and the
CAIPS notes of January 7, 2009 say in an entry, “Applicant provided docs to
demonstrate employed by Canadian company abroad – No”.
[16]
From
this, and the Second Entry described above, I conclude that the only document
the Officer ever received about the Applicant’s employment in China was the Jahoo Letter.
b. Was
there a breach of the rules of procedural fairness?
[17]
The
Applicant also took the position that the IAD breached the rules of procedural
fairness by going “behind closed doors” into its own file for information about
the complicated and protracted history of the Applicant’s appeal in order to
discredit her. In its Decision, the IAD dealt at length with the Applicant’s
evasive conduct and concluded that she had delayed the appeal. Her counsel
argued that the issue of whether her conduct caused delay was not raised by
either party or by the IAD during the appeal. In these circumstances, the
Applicant submits that when, after the hearing, the IAD decided to address that
issue, it should have given the parties an opportunity to make submissions.
[18]
Counsel
for the Respondent argued that the IAD was entitled to deal with the
Applicant’s conduct without giving notice because she had put fairness in issue
on the appeal and her own conduct was relevant to her allegations of unfair
treatment. However, since her allegations of unfairness did not relate to the
IAD, I am persuaded that the Applicant had no reason to believe that it would
review her conduct during the appeal and identify delay as an issue.
[19]
I
agree with the Applicant’s argument that it was not open to the IAD to
discredit the Applicant on the basis of a finding that she delayed the appeal. While
there was nothing wrong with the IAD reviewing its own file and reaching
negative conclusions about the Applicant’s behaviour, procedural fairness
dictates that the parties should have had notice and an opportunity to make
submissions. This error means that the appeal must be reconsidered.
c.
Were there errors of fact in the Decision?
[20]
Finally,
the Applicant alleges that there were factual errors in the Decision. However, since
there will be a redetermination, this issue need not be considered.
Costs
[21]
The
Applicant seeks costs but, in my view, there is no special reason to justify
costs as required by s. 22 of the Federal Courts Immigration and Refugee
Protection Rules, SOR/93-22.
A Direction
[22]
The
Applicant also asks the Court to direct the IAD to allow her to attend the
reconsideration of her appeal in person. Given the difficult procedural history
of this case the IAD will be directed to take the steps necessary to allow her to
enter Canada to prepare for and attend her appeal.
Certified
Question
[23]
Counsel
for the Applicant proposed the following question for certification:
In rendering a decision after the conclusion of a hearing
is it proper for an IAD member to search IAD’s internal file for evidence not
presented at the hearing? [the Proposed Question]
[24]
I
have considered the Applicant’s submissions and the Respondent’s written
response, dated May 22, 2013.
[25]
In
my view, the answer to the Proposed Question will vary depending on the facts
and the issues before the IAD. For this reason, it will not be certified.
ORDER
THIS
COURT ORDERS that
The Decision is
hereby set aside and this matter is referred back for redetermination by a
differently constituted panel of the IAD.
The IAD is to
take the necessary steps to permit the Applicant to enter Canada to prepare for and attend her appeal before the IAD.
The Proposed
Question is not certified.
“Sandra J. Simpson”
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