Date: 20010906
Docket: IMM-6350-00
Neutral citation: 2001 FCT 996
BETWEEN:
WING ART CHOW
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
INTRODUCTION
[1] Wing Art Chow (the "applicant"), a citizen of the People's Republic of China, filed with the Canadian Embassy in Beijing on July 5, 2000, an application for employment authorization to work as a cook. Human Resources Development Canada had validated his temporary offer of employment made by Oriental Palace Restaurant of Invermere, B.C.. The applicant would earn a salary of $2,000 per month.
[2] The applicant was not interviewed by the visa officer who, on November 9, 2000, refused the application. Hence, this judicial review application which seeks to set aside that decision.
[3] The basis for the refusal is contained in the visa officer's CAIPS notes.
[4] The visa officer wrote this:
PA has a low income in China. PA will have no incentives to come back to China after having entered Canada. I am not satisfied that PA is a genuine visitor to Canada who would depart at the end of his stay. Applicant is refused on BF [bona fides].
[5] The visa officer determined the applicant's salary as a cook in China by having an official at the Embassy in Beijing phone his employer to obtain that information.
[6] The visa officer filed an affidavit in this judicial review proceeding. She expanded somewhat on the reasons for her refusal. She added that the applicant's wife and son would be accompanying him to Canada. She mentioned, again, his salary in China of $2,200 Canadian per year. She concluded by deposing:
I was not satisfied that the Applicant would return to China but would rather seek to remain in Canada hereby circumventing the immigration process to attain permanent residence in Canada.
THE LEGISLATION AND GUIDELINES
[7] Section 10 of the Immigration Act (the "Act") provides that every person, other than a Canadian citizen or a permanent resident, who seeks to come to Canada for the purpose of engaging in employment, must make an application to a visa officer and obtain authorization to come to Canada for that purpose before that person appears at a point of entry.
[8] By section 5 of the Act, entry into Canada is, in this case, through the visitor category; "visitor" is defined in section 2 of the Act as a person who "... seeks to come to Canada, for a temporary purpose,...".
[9] By section 9 of the Act, except in prescribed cases, every visitor to Canada shall make an application for a visa and, by subsection 9(1.2) the burden is on such person to satisfy the visa officer he/she is not an immigrant.
[10] The processing procedure of visitor visa applications is contained in certain guidelines found in the Immigration Manual. Paragraph 3.13 of that Manual deals with interviews and reads:
In some circumstances, it may be necessary to interview clients. Issues which may warrant the need for an interview would include two points:
(a) the existence of questions or doubts concerning the applicant's bona fides as a visitor, his/her qualifications and experience for the employment; and
(b) consideration of a refusal and a need to acquire more information before doing so.
ANALYSIS
[11] As I see it, in this case, there are two bases warranting the Court's intervention: first, a breach, in the particular circumstances of this case, of the duty of fairness by not holding an interview before the refusal was made and this for two reasons: extrinsic evidence was garnered by the visa officer which led her to conclude that the application was not bona fides without putting that issue to the applicant for comment; also, there was a breach of the Ministerial Guidelines. Second, in the circumstances, the decision was unreasonable.
Breach of procedural fairness - no interview - extrinsic evidence
[12] Counsel for the respondent argued, and I agree with her, that there is no statutory requirement to hold an interview in visa applications and it is not a general element or requirement in visa applications. This is made clear in the context of an H & C application by Justice L'Heureux-Dubé in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at 843, paragraph 34. However, in the circumstances of this case, it is my view an interview should have been held by the visa officer, perhaps over the telephone, before making her decision and this, as noted, for two reasons.
[13] First, I endorse Justice Teitelbaum's comment in Ali (M.) v. Canada (Minister of Citizenship and Immigration) (1998), 151 F.T.R. 1, in which he discussed the obligation flowing from procedural fairness which requires that a visa officer apprise the applicant of his concerns. Justice Teitelbaum, following Justice MacKay in Yu v. Minister of Employment and Immigration (1990), 36 F.T.R. 296 and Justice Muldoon in Asghar v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1091, was of the view the obligation on a visa officer to apprise an applicant of his concerns was limited and would not include a circumstance where an applicant for a visitor's visa has provided weak evidence supporting his position that he has sufficient ties to his home country to ensure his return because such a concern arises directly from the Act or the Regulations. Counsel for the respondent argued before me that these were the circumstances at bar. I do not agree.
[14] Justice Teitelbaum, in Ali (M), supra, carved out an exception to the general proposition which he expressed. He said this at paragraphs 20 and 21 of his reasons for judgment:
[20] On the other hand, the prime example of when a visa officer should inform the applicant of his concerns is when the visa officer has obtained extrinsic evidence. In that situation, the applicant should have the opportunity to disabuse the officer of any concerns that may arise from that evidence.
[21] In essence, where an interview is necessary to assess an applicant, the duty of fairness requires that the visa officer thoroughly interview the applicant on factors relevant to the claim and give the applicant an opportunity to respond to allegations or assumptions of which the applicant could not be reasonably aware.
[15] The exception applies in this case because the visa officer obtained extrinsic evidence on his salary in China, which was a material factor in her conclusion the applicant's application was not bona fides in that he would not return to China. This issue should have been put to the applicant.
[16] Second, while the Immigration Manual leaves it to the judgment of a visa officer to hold an interview or not, it flags issues which may warrant the need for an interview including the existence of questions or doubts concerning the applicant's bona fides as a visitor, and consideration of a refusal and a need to acquire more information before doing so. In my view, the Ministerial Guideline, at the very least, obliges a visa officer to turn his/her mind to the issue of whether an interview should be held or not. The record before me is devoid of any evidence indicating that the visa officer turned her mind to that question.
[17] There is a second reason for setting aside the visa officer's decision.
[18] In Wang v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 95, Justice Rouleau found that the standard of review on the merits of an immigration officer's decision dealing with an application for a Canadian student visa was reasonableness simpliciter. I find the same standard of review applicable to a visa officer's decision on an application for an employment authorization and a visitor's visa.
[19] Justice Iacobucci, in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, described what, in the main, an unreasonable decision is at paragraph 56. He wrote:
[56] ... An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it.
[20] The second branch of the unreasonableness test identified by Justice Iacobucci in Southam, supra, applies here. Was it logical for the visa officer to draw solely from the fact that the applicant would be making a higher salary in Canada than in China that this automatically meant his application for a visitor's visa/employment authorization was not bona fides because it nullified his intention to return to China and he would be subverting Canada's immigration process for permanent resident applications (which might include, as allowed by law, an application for inland processing on H & C grounds).
[21] In order to ground a finding of lack of bona fides, in my view, the visa officer had to have more than just the differences in salaries earned in the home country and the host country. If that was a sufficient ground to base a lack of bona fides, there would be very few applicants whose application for temporary employment authorization would be approved.
[22] The added fact the applicant's immediate family was coming with him is a neutral fact which without more probing into the family's circumstances could not automatically lead to a conclusion this family unit would become illegal immigrants, that is, would not leave Canada voluntarily after their visa had expired or had been extended.
DISPOSITION
[23] For all of these reasons, this judicial review application is allowed. The decision of the visa officer is set aside and the applicant's application for a visitor's visa/
employment authorization is remitted for reconsideration by a different visa officer. No certified question arises.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
September 6, 2001