Date: 20020724
Docket: IMM-4289-01
Neutral citation: 2002 FCT 815
BETWEEN:
GUO YIN QIN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of a decision of a visa officer which denied the Applicant's application for a Canadian Worker's Visa. The Applicant had applied to work in his sister's Chinese restaurant in Turner Valley, Alberta as a cook preparing Cantonese and Northern Chinese cuisine. In addition, he was to teach others on food preparation and cooking. The visa officer found that the Applicant did not establish that his intentions were clearly bona fide and temporary in nature.
[2] The visa officer denied the application without interviewing the Applicant.
[3] The Applicant says the visa officer denied him procedural fairness. The Applicant concedes there is no right to an interview. However, when the visa officer has concerns arising from the documentary information supplied by an Applicant, the Applicant says the visa officer had a duty to permit him to disabuse her of her concerns.
[4] A major concern of the visa officer was whether the Applicant would return to China upon expiry of his employment authorization in Canada. This was based upon his employment in Canada being arranged by his sister, lack of information about the Applicant's cooking experience in China and a suspected higher income in Canada for the Applicant than in China. The visa officer said in her Affidavit that the Letter of Permission from the Applicant's Chinese employer, confirming that he would be re-employed on his return to China, was not written on letterhead and there was no telephone number given to enable her to contact the employer to verify information given by the Applicant. The Applicant says the visa officer had some obligation to go further and in these circumstances to interview the Applicant.
[5] I think it is important first to place the procedural fairness argument in context. The concern here is with an application for a worker's visa to work in Canada for a temporary period. There is no indication that working in Canada will be important to the Applicant in any material way, such as enhancing his career opportunities when he returns to China. It is well accepted that the requirements of procedural fairness will vary with the circumstances. In cases of deportation, for example, when the consequences of a negative decision will be disruptive to an individual, the requirements for procedural fairness will be greater than in the case of an Applicant for a temporary worker's visa when there is no evidence that denying the Applicant the opportunity for Canadian work experience will cause him hardship. In addition, in a case of a temporary worker's visa it is open to an Applicant to reapply and provide a visa officer with further information that will help to demonstrate that his intentions are indeed temporary. I recognize that the Applicant would prefer to have his application redetermined following a successful judicial review with directions given to the visa officer. However, that is not a reason for raising the requirements of procedural fairness when there is no evidence of serious consequences to the Applicant. In such cases, the requirements for procedural fairness will be relatively minimal.
[6] Turning to the specific facts here, the letter from the Applicant's Chinese employer was handwritten with a handwritten letterhead that did not specify an address or telephone number. In the circumstances, I do not think it was unfair for the visa officer not to make other efforts to obtain further information from the Applicant's employer. The list of documents supplied to the Applicant by the Canadian Embassy requires that a Letter of Permission be on company letterhead. It would seem obvious that the requirement for the letter to be on company letterhead is to establish at least prima facie authenticity together with information that would permit the visa officer to contact the employer if necessary. Where the required information is not provided, I do not think the onus shifts to the visa officer to pursue the matter further.
[7] Nor do I think it was incumbent on the visa officer to interview the Applicant to clarify the concerns that she had with respect to his intentions. The requirement of subsection 9(1.2) of the Immigration Act is that a person who makes an application for a temporary worker's visa shall satisfy a visa officer that the person is not an immigrant. The onus is on the Applicant. While the Applicant was provided with the list of required documents by the Embassy, he was not limited to supplying only those documents. The Applicant had an immigration consultant. It was open to the Applicant to provide other information he thought would persuade a visa officer that his intentions were temporary and not permanent. For this reason, the onus does not shift to the visa officer to interview the Applicant or take other steps to satisfy her concerns arising from the documents he did furnish.
[8] Having regard to the relatively minimal requirements of procedural fairness in these circumstances, I do not think the visa officer denied fairness to the Applicant. The judicial review will be dismissed.
"Marshall Rothstein"
J.A.
Ottawa, Ontario
July 24, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4289-01
STYLE OF CAUSE: GUO YIN QIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRTATION
Respondent
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: July 11, 2002
REASONS FOR : ROTHSTEIN, J.A. (Ex officio)
APPEARANCES: Mr. Peter Wong
For Applicant
Ms. Tracy King
For Respondent
SOLICITORS OF RECORD:
Caron & Partners LLP
Calgary, Alberta For Applicant
Morris Rosenberg For Respondent
Deputy Attorney General of Canada