Docket: IMM-2225-15
Citation:
2016 FC 696
Ottawa, Ontario, June 21, 2016
PRESENT: The
Honourable Mr. Justice Phelan
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BETWEEN:
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YIMING FAN
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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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JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review of an
Immigration Officer’s [Officer] decision [Decision] denying the Applicant’s
permanent residence application and finding the Applicant to be inadmissible
for a period of five years pursuant to s 40(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 [IRPA], for having submitted a
fraudulent Arranged Employment Offer [AEO].
II.
Background
[2]
The Applicant is a citizen of China who
graduated from a Canadian university. The Applicant was introduced to Wellong
International Investments Ltd, a company operated by a Mr. Wang. Wang also
operated New Can Consultants Ltd. [New Can].
[3]
The Applicant was offered a position with New
Can. In addition, New Can assisted the Applicant with her immigration paperwork
and obtained a positive AEO.
The
offer and AEO were submitted as part of her immigration application.
[4]
The Canada Border Services Agency [CBSA] made a
notation in its FOSS system indicating that the Applicant had hired a “ghost consultant” for immigration proceedings. The
notation went on to suggest, based on seized documents, that the many clients
of the “consultant” were involved in falsified
employment records and related fraudulent activities.
[5]
The Applicant then received a procedural
fairness letter from the Canadian Embassy outlining that she had failed to
establish a bona fide job offer and that the offer she submitted was
fraudulent.
[6]
Wang was charged with 12 counts under IRPA,
the Criminal Code and the Income Tax Act for various immigration
related frauds.
[7]
The Applicant responded to the fairness letter
essentially pleading that she was unaware that the AEO was fraudulent.
[8]
The Officer concluded, in his negative Decision,
that there was sufficient evidence against the Applicant’s prospective
employer/consultant of fraudulent employment offers. The Officer further found
that as a result of the modus operandi of the prospective employer, the
Applicant would have been sufficiently aware of the fraud. Therefore, the
Applicant was found inadmissible for a period of five years.
III.
Analysis
[9]
The Applicant contends that the Officer
improperly ignored or rejected evidence, that the finding of misrepresentation
(knowing or ought to have known) was based on insufficient evidence and that it
was a breach of procedural fairness to make the misrepresentation finding
against the Applicant before CBSA had concluded its broader investigation of
her prospective employer.
A.
Standard of Review
[10]
The parties agree and I concur that it is well
established that the standard of review of the Decision is reasonableness and
that matters of procedural fairness are reviewed on a standard of correctness.
B.
Decision/Reasonableness
[11]
On the matter of misrepresentation findings,
this Court has warned that they must be soundly based and not conclusionary leaps
(see Xu v Canada (Citizenship and Immigration), 2011 FC 784, 392 FTR 339;
and Zhang v Canada (Citizenship and Immigration), 2015 FC 463, 252 ACWS
(3d) 778).
While
there are problematic aspects of the plausibility findings, taken as a whole,
there was a sufficient basis for the Officer’s conclusions.
[12]
An underlying issue with the Applicant’s knowledge
(actual and/or presumed) is her failure to show any due diligence or provide any
other evidence to suggest that she was misled. The Applicant had lived and
worked in Canada so it was reasonable to expect some caution or inquiry on her
part. It was reasonable to conclude that, at minimum, there was wilful
blindness.
C.
Procedural Fairness
[13]
With respect to this issue, the Applicant had a
full opportunity to respond to the fairness letter. Further, there is no basis
for suggesting that the Officer had to wait until the broader investigation was
concluded. Each case stands on its facts and other than delay caused by
waiting, the Applicant cannot show either unfairness or potential unfairness in
proceeding on the facts in her case.
IV.
Conclusion
[14]
Therefore, this judicial review will be
dismissed. There are no questions for certification.
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