PRISON SENTENCE FOR FORMER IMMIGRATION OFFICIAL WHO TOOK BRIBES

Heavy prison sentence for former officer is a warning to all those who get a bit too cozy with those who want to get special treatment.


CANOE -- CNEWS: - Ex-immigration official gets prison time for taking bribes

Ex-immigration official gets prison time for taking bribes

By Megan Gillis, Ottawa Sun

The Ottawa Courthouse on Elgin St. (Ottawa Sun file photo)

OTTAWA — A "scheming" and "corrupt" former immigration department manager was led out sobbing Thursday after a judge sentenced her to four years in prison for taking bribes to give newcomers special treatment. Diane Serre's crimes attack the heart of our country, Judge Catherine Aitken said. “This case is about fundamental Canadian values — values such as integrity, objectivity and impartiality in the operation of our public institutions," she said. "The illegal conduct that you engaged in as a member of our public service breached the duty you owed to all Canadians and to all newcomers to uphold these values we all hold so dear." Aitken convicted Serre of charges including fraud and breach of trust for 10 cases handled by Ottawa's citizenship and immigration department office in 2003 and 2004. In some of the cases Serre took bribes to simply speed up processing of a file. But in others she granted work and residency permits that newcomers weren't entitled to receive.

CITIZENSHIP DENIED DUE TO WORK ABSENCES

There is a general misconception by the public that those who manage to maintain residency even though they reside abroad working for Canadian companies, can easily receive citizenship. That is not the case as the decision below illustrates.

Ghosh v. Canada (Minister of Citizenship and Immigration)

Between Ashok Ghosh, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2013] F.C.J. No. 313

2013 FC 282

Docket T-882-12

 Federal Court
Toronto, Ontario

Gagné J.

Heard: January 22, 2013.
Judgment: March 18, 2013.

(26 paras.)

---

REASONS FOR JUDGMENT AND JUDGMENT

1     GAGNÉ J.:-- This is an appeal under section 21 of the Federal Courts Act, RSC 1985, c F-7 and subsection 14(5) of the Citizenship Act, RSC 1985, c C-29 [Act], of a decision of Judge Thanh Hai Ngo [Citizenship Judge], dated March 15, 2012, wherein the applicant's application for Canadian citizenship was denied on the basis that he had not met the "residency" requirement under paragraph 5(1)(c) of the Act. The applicant requests that the decision to refuse him Canadian citizenship be set aside and the matter referred back to a different Citizenship Judge for re-determination.

Background

2     The applicant is a 57 years old citizen of India. He became a permanent resident of Canada under the Federal Skilled Worker category on March 9, 2004, when he moved to Canada with his wife and two sons and settled in Toronto, Ontario.

3     In 2007, the applicant was offered employment as a project manager at Cowater International Inc. [Cowater], a Canadian management consulting firm specialized in the area of international development. The applicant started working for Cowater's Ottawa head office on May 1, 2007. His family permanently relocated to Ottawa in March 2008, where they purchased a house and his children transferred to local schools. They have lived in Ottawa since that time.

4     While working for Cowater, the applicant was deployed to overseas project sites for long periods of time. Shortly after joining Cowater, he was promoted to the position of Project Director and is currently working as a Senior Project Director. He alleges that in these successive positions, he was required to be present at various job sites around the world and travel regularly to countries such as Bangladesh, Uganda, Rwanda, Nigeria and Bhutan. The applicant's business trips ranged from two to eight weeks. When not required to work on foreign projects, the applicant works at Cowater's head office in Ottawa, which allows him to be with his family.

5     The applicant alleges that he and his family have their residence in Canada. He files his Canadian taxes every year and is not established in any country other than Canada.

6     On September 10, 2010, the applicant and his family applied for Canadian citizenship. On October 6, 2011, the applicant's wife was convoked for an interview, while the applicant was required to complete a residence questionnaire and was asked to provide supporting evidence of his residence in Canada during the period of September 2006 to September 2010. The applicant's case was referred to the citizenship judge due to concerns regarding the duration of his absence from Canada.

7     The applicant's application for citizenship was heard on March 6, 2012 and refused on March 15, 2012. Applying the test of physical presence in Canada adopted by Justice Muldoon in Pourghasemi (Re), [1993] FCJ no 232, 62 FTR 122 [Pourghasemi], the citizenship judge noted that the applicant's documentary evidence showed 109 days of absence in 2006 (Uganda), 228 days of absence in 2007 (Uganda), 216 days of absence in 2008 (Uganda, Bangladesh, India and Sri Lanka), and 165 days of absence in 2010 (Rwanda, India and Bangladesh). He therefore found that the applicant had failed to accumulate 1,095 days of physical presence in Canada within the four years immediately preceding the date of his application and did not meet the residency requirements pursuant to paragraph 5(1)(c) of the Act.

Relevant Legislation

8     Although the Act does not define "residence" or "resident", its subsection 5(1) requires certain period of residence for an applicant to be granted citizenship.

 

·       5. 

(1) The Minister shall grant citizenship to any person who 

(a) makes application for citizenship;

(b) is eighteen years of age or over;

 

·       (c) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act, and has, within the four years immediately preceding the date of his or her application, accumulated at least three years of residence in Canada calculated in the following manner: 

 

·       (i) 

for every day during which the person was resident in Canada before his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one-half of a day of residence, and 

·       (ii) 

for every day during which the person was resident in Canada after his lawful admission to Canada for permanent residence the person shall be deemed to have accumulated one day of residence; 

 

·       (d) has an adequate knowledge of one of the official languages of Canada; 

 

·       (e) has an adequate knowledge of Canada and of the responsibilities and privileges of citizenship; and 

 

·       (f) is not under a removal order and is not the subject of a declaration by the Governor in Council made pursuant to section 20. 

* * *

 

·       5. 

(1) Le ministre attribue la citoyenneté à toute personne qui, à la fois : 

 

·       a) 

en fait la demande; 

·       b) 

est âgée d'au moins dix-huit ans; 

 

·       c) est un résident permanent au sens du paragraphe 2(1) de la Loi sur l'immigration et la protection des réfugiés et a, dans les quatre ans qui ont précédé la date de sa demande, résidé au Canada pendant au moins trois ans en tout, la durée de sa résidence étant calculée de la manière suivante: 

 

·       (i) 

un demi-jour pour chaque jour de résidence au Canada avant son admission à titre de résident permanent, 

·       (ii) 

un jour pour chaque jour de résidence au Canada après son admission à titre de résident permanent; 

 

·       d) a une connaissance suffisante de l'une des langues officielles du Canada; 

 

·       e) a une connaissance suffisante du Canada et des responsabilités et avantages conférés par la citoyenneté; 

 

·       f) n'est pas sous le coup d'une mesure de renvoi et n'est pas visée par une déclaration du gouverneur en conseil faite en application de l'article 20. 

(emphasis added)

9     As noted by Justine Rennie in Martinez-Caro v Canada (Citizenship and Immigration), 2011 FC 640, [2011] FCJ no 881, subsection 5 (1.1) of the Act is useful in considering the definition of residency. It reads as follow:

 

·       5. (1.1) Any day during which an applicant for citizenship resided with the applicant's spouse who at the time was a Canadian citizen and was employed outside of Canada in or with the Canadian armed forces or the federal public administration or the public service of a province, otherwise than as a locally engaged person, shall be treated as equivalent to one day of residence in Canada for the purposes of paragraph (1)(c) and subsection 11(1). 

* * *

 

·       5. 

(1.1) Est assimilé à un jour de résidence au Canada pour l'application de l'alinéa (1)c) et du paragraphe 11(1) tout jour pendant lequel l'auteur d'une demande de citoyenneté a résidé avec son époux ou conjoint de fait alors que celui-ci était citoyen et était, sans avoir été engagé sur place, au service, à l'étranger, des forces armées canadiennes ou de l'administration publique fédérale ou de celle d'une province. 

10     Given that paragraph 5(1)(c) of the Act explicitly refers to the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], and having in mind the "proximity" between the Act and the IRPA, it would be useful to consider the wording of section 28 of the IRPA which defines more specifically the residency obligation for permanent residents:

 

·       28. (1) A permanent resident must comply with a residency obligation with respect to every five-year period. 

 

·       (2) 

The following provisions govern the residency obligation under subsection (1): 

 

·       (a) a permanent resident complies with the residency obligation with respect to a five-year period if, on each of a total of at least 730 days in that five-year period, they are

 

·       (i) 

physically present in Canada, 

·       (ii) 

outside Canada accompanying a Canadian citizen who is their spouse or common-law partner or, in the case of a child, their parent, 

 

·       (iii) outside Canada employed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province, 

 

·       (iv) 

outside Canada accompanying a permanent resident who is their spouse or common-law partner or, in the case of a child, their parent and who is employed on a full-time basis by a Canadian business or in the federal public administration or the public service of a province, or

·       (v) 

referred to in regulations providing for other means of compliance; 

 

·       (b) it is sufficient for a permanent resident to demonstrate at examination 

 

·       (i) 

if they have been a permanent resident for less than five years, that they will be able to meet the residency obligation in respect of the five-year period immediately after they became a permanent resident; 

·       (ii) 

if they have been a permanent resident for five years or more, that they have met the residency obligation in respect of the five-year period immediately before the examination; and 

 

·       (c) a determination by an officer that humanitarian and compassionate considerations relating to a permanent resident, taking into account the best interests of a child directly affected by the determination, justify the retention of permanent resident status overcomes any breach of the residency obligation prior to the determination. 

* * *

 

·       28. (1) L'obligation de résidence est applicable à chaque période quinquennale. 

 

·       (2) 

Les dispositions suivantes régissent l'obligation de résidence : 

 

·       a) le résident permanent se conforme à l'obligation dès lors que, pour au moins 730 jours pendant une période quinquennale, selon le cas : 

 

·       (i) 

il est effectivement présent au Canada, 

·       (ii) 

il accompagne, hors du Canada, un citoyen canadien qui est son époux ou conjoint de fait ou, dans le cas d'un enfant, l'un de ses parents, 

·       (iii) 

il travaille, hors du Canada, à temps plein pour une entreprise canadienne ou pour l'administration publique fédérale ou provinciale, 

·       (iv) 

il accompagne, hors du Canada, un résident permanent qui est son époux ou conjoint de fait ou, dans le cas d'un enfant, l'un de ses parents, et qui travaille à temps plein pour une entreprise canadienne ou pour l'administration publique fédérale ou provinciale, 

·       (v) 

il se conforme au mode d'exécution prévu par règlement; 

 

·       b) il suffit au résident permanent de prouver, lors du contrôle, qu'il se conformera à l'obligation pour la période quinquennale suivant l'acquisition de son statut, s'il est résident permanent depuis moins de cinq ans, et, dans le cas contraire, qu'il s'y est conformé pour la période quinquennale précédant le contrôle; 

 

·       c) le constat par l'agent que des circonstances d'ordre humanitaire relatives au résident permanent -- compte tenu de l'intérêt supérieur de l'enfant directement touché -- justifient le maintien du statut rend inopposable l'inobservation de l'obligation précédant le contrôle. 

 

·       (emphasis added) 

Issue and Standard of Review

11     The only issue raised in this case is whether the citizenship judge erred by applying the physical presence test in refusing the applicant's citizenship application. In other words, did the citizenship judge properly interpret paragraph 5(1)(c) of the Act?

12     The jurisprudence of this Court has recognized three different approaches to how the word residence as found in paragraph 5(1)(c) of the Act is to be interpreted. One approach, the one adopted by the citizenship judge in this case, is to settle for a quantitative computation of the number of days an applicant has been physically present in Canada (Pourghasemi, above). Two less restrictive approaches focus on whether the permanent resident has "centralized his mode of living in Canada" (Papadogiorgakis (Re), [1978] 2 FC 208 at para 17, 88 DLR (3d) 243 (TD)), or whether the permanent resident "regularly, normally or customarily lives" in Canada (Koo (Re) (FCTD), [1992] FCJ 1107, [1993] 1 FC 286 [Re Koo]).

13     In Re Koo, above, at para 10, Justice Reed sets out six non-exhaustive factors which might be of assistance in determining whether the residence requirement is met:

 

·       The conclusion I draw from the jurisprudence is that the test is whether it can be said that Canada is the place where the applicant "regularly, normally or customarily lives". Another formulation of the same test is whether Canada is the country in which he or she has centralized his or her mode of existence. Questions that can be asked which assist in such a determination are: 

 

·       (1) 

was the individual physically present in Canada for a long period prior to recent absences which occurred immediately before the application for citizenship? 

·       (2) 

where are the applicant's immediate family and dependents (and extended family) resident? 

·       (3) 

does the pattern of physical presence in Canada indicate a returning home or merely visiting the country? 

·       (4) 

what is the extent of the physical absences -- if an applicant is only a few days short of the 1,095-day total it is easier to find deemed residence than if those absences are extensive? 

·       (5) 

is the physical absence caused by a clearly temporary situation such as employment as a missionary abroad, following a course of study abroad as a student, accepting temporary employment abroad, accompanying a spouse who has accepted employment abroad? 

·       (6) 

what is the quality of the connection with Canada: is it more substantial than that which exists with any other country? 

14     As per Lam v Canada (Minister of Citizenship and Immigration), [1999] FCJ 410 at para 14, [1999] FCJ no 410, it is open to the citizenship judge to adopt any one of these schools of thought as long as the chosen test is applied properly. However, part of the jurisprudence has departed from this view, considering that only one of the tests is the correct one (see for example Burch v Canada (Minister of Citizenship and Immigration), 2011 FC 1389 at para 31, [2011] FCJ no 1695; El Ocla v Canada (Minister of Citizenship and Immigration), 2011 FC 533 at paras 10-18, [2011] FCJ no 667 [El Ocla]; Ghaedi v Canada (Minister of Citizenship and Immigration), 2011 FC 85 at para 6, [2011] FCJ no 94; Martinez-Caro v Canada (Minister of Citizenship and Immigration), 2011 FC 640 at para 26, [2011] FCJ no 881).

15     Relying on this latter line of jurisprudence, the applicant submits that the standard of review to be applied to the citizenship judge's selection of the test for assessing residency under paragraph 5(1)(c) of the Act is correctness, while the application of the selected residency test to the evidence should be reviewed against the standard of reasonableness. The respondent agrees that the question of whether the period of required residency can be determined solely on the basis of an individual's physical presence in Canada for a minimum period of 1,095 days (or three years out of four) is a question of law to be reviewed on the standard of correctness.

16     In El Ocla, above, at para 14, Justice Barnes stated that "the idea that there are two, or perhaps three, distinct tests for residency to be found in ss 5(1)(c) of the Citizenship Act carries with it the implicit adoption of a correctness standard. This is because it acknowledges that there are limited options available to a citizenship judge and that other reasonable interpretations are unavailable." Of particular importance to this case, Justice Barnes held that citizenship judges' decisions which are solely based on the physical presence test for residency, to the exclusion of any qualitative analysis following the Re Koo factors, should be accorded less deference and should be reviewed against the standard of correctness.

17     Referring to a number of cases, including Canada (Minister of Citizenship and Immigration) v Takla, 2009 FC 1120, [2009] FCJ no 1371, which stand in favour of reviewing a citizenship judge's selection of the residency test against the standard of reasonableness, Justice Barnes stated:

 

·       [11] ...Indeed, in most of this Court's jurisprudence, appeals of this nature have involved challenges to a citizenship judge's application of the predominant qualitative test for residency described in Re Koo, above. In other words, the concern was with the application of evidence to the Re Koo factors. 

 

·       [12] The above authorities and decisions like them are to my mind distinguishable from cases such as the one at bar which involve a citizenship judge's selection of the physical presence test for residency to the exclusion of the Re Koo factors. The issue of whether this is the proper test for residency under ss 5(1)(c) of the Citizenship Act is a threshold question of law that can and should be isolated from its factual surroundings... 

18     In view of the fact that, in the case before me, the citizenship judge decided not to give any consideration to the applicant's circumstances or the quality of his establishment in Canada, and that the respondent did not seriously question this position, I will apply the standard of correctness to the question raised by the applicant.

19     For the reasons that follow, I have come to the conclusion that the intervention of this Court is not justified as the impugned decision and the citizenship judge's interpretation of paragraph 5(1)(c) of the Act are well founded in law.

Analysis

20     Equally diverging lines of case law have developed regarding the proper test to be applied to the residency requirement of paragraph 5(1)(c) of the Act. This diversity necessarily comes from the lack of definition of the term "residence" or "residé" in the French version of paragraph 5(1)(c) of the Act. Should it be interpreted as meaning "physically present in Canada" or "present au Canada" as used by the legislator in paragraph 28(2)(a)(i) of the IRPA or should it receive a broader interpretation as it did in Papadogiorgakis and Re Koo?

21     When one compares the wording of paragraphs 5(1)(c) of the Act and 28(2)(a) of the IRPA, it could be tempting to draw the conclusion that if the legislator used two different expressions ("residence" and "physically present in Canada") in two related pieces of legislation, they must be meant to address different situations. However, read in their entirety, the conditions set forth in section 28 of the IRPA to maintain a permanent residence and the conditions set fort in section 5 of the Act for a permanent resident to obtain Canadian citizenship, along with their respective exceptions (found in paragraphs 28(2)(a)(ii) to (v) of the IRPA and paragraph 5(1.1) of the Act), lead to an opposite finding.

22     In order to maintain permanent resident status, one has to be physically present in Canada for two years during the five year reference period. That person will nevertheless maintain his or her permanent residency if he or she i) is accompanying a Canadian citizen spouse outside Canada, ii) is outside Canada employed on a full-time basis by a Canadian business or the federal or provincial public administration or iii) is accompanying a permanent resident spouse employed on a full-time basis by a Canadian business or the federal or provincial public administration. The applicant's situation is specifically covered by paragraph 28(2)(a)(iii) of the IRPA and he would maintain his permanent residency no matter how many days in a given reference period he spends abroad working for a Canadian company.

[Editor's note: Text in brackets is struck out in the original.]

23     In order to obtain Canadian citizenship, a permanent resident has to reside in Canada for three years during the [4] four year reference period. However, he or she will be deemed to reside in Canada if he or she resides outside Canada with a Canadian citizen spouse employed with the Canadian armed forces or with the public service of Canada or one of the Canadian Provinces. Being employed by a Canadian private company or residing outside Canada with a Canadian citizen working for a Canadian private company does not qualify as residing in Canada for the purpose of the Act.

24     Although it could have been said in clearer words, I am of the opinion that residing in Canada for the purpose of paragraph 5(1)(c) of the Act requires physical presence in Canada. To interpret the term "residence" to mean anything else than physical presence in Canada is not only likely to lead to arbitrary decisions by the Minister (when paragraph 5(1) of the Act does not grant a great deal of discretion to the Minister), but it also renders the conditions to be met to obtain Canadian citizenship less strict than the ones that need to be met to maintain permanent residence, just as it renders paragraph 5 (1.1) of the Act useless.

25     In my mind, the above analysis advocates in favour of the thesis that has considered the strict quantitative test to be the correct one (Martinez-Caro above; Sinanan v Canada (Minister of Citizenship and Immigration), 2011 FC 1347, [2011] FCJ no 1646; Al Khoury v Minister of Citizenship and Immigration, 2012 FC 536 at para 27, [2012] FCJ no 534; Canada (Minister of Citizenship and Immigration) v Dabbous, 2012 FC 1359; [2012] FCJ no 1490).

26     For these reasons, the appeal will be dismissed.

JUDGMENT

THIS COURT'S JUDGMENT is that:

 

·       1. 

The applicant's appeal is dismissed, without costs. 

GAGNÉ J.

SUPREME COURT OF CANADA RULES ON CRIMINAL SENTENCES AND IMMIGRATION

SCC weighs in on when to cut a defendant some slack

By Cristin Schmitz, Ottawa

The Lawyers Weekly
Vol. 32, No. 44 (March 29, 2013)

 

The Supreme Court has clarified that appeal courts may overturn sentencing judges who fail to consider the immigration consequences of their decisions.

In his first written judgment since joining the top court last October, Justice Richard Wagner said the majority of the Alberta Court of Appeal should not have refused appellant Hoang Anh Pham's request to reduce by one day his two-year prison sentence so that the Vietnamese citizen convicted of marijuana trafficking offences would not lose his right to appeal a deportation order.

Justice Wagner's March 14 reasons for a 7-0 oral ruling last January allowing Pham's appeal from the bench stipulates that in crafting sentences for foreign offenders, trial judges must take into account that under the Immigration and Refugee Protection Act (IRPA), a non-citizen sentenced in Canada to two years or more in prison automatically loses his or her right to appeal a removal order to the Immigration Appeal Division. (That two-year threshold would be reduced to six months under Bill 43, the Faster Removal of Foreign Criminals Act, which is currently before the Senate.)

"An appellate court has the authority to intervene if the sentencing judge was not aware of the collateral immigration consequences of the sentence for the offender, or if counsel had failed to advise the judge on the issue," Justice Wagner wrote. "In such circumstances, the court's intervention is justified because the sentencing judge decided on the fitness of the sentence without considering a relevant factor."

Justice Wagner added: "Although there will be cases in which it is appropriate to reduce the sentence to ensure that it does not have adverse consequences for the offender's immigration status, there will be other cases in which it is not appropriate to do so."

Pham's counsel at the Supreme Court, Erika Chozik of Toronto, told The Lawyers Weekly that trial judges across the country had been uncertain about the extent to which they could consider immigration consequences in sentencing -- if at all. Appellate courts were similarly divided over whether they should overturn sentences because those consequences were not considered.

"This decision says to trial judges: 'Continue the individualized sentencing process that you already engage in, and proportionality is the paramount consideration in sentencing,' " Chozik said.

She added that principle will apply as well if Bill 43 becomes law.

Counsel for the respondent Crown, Ronald Reimer of the Public Prosecution Service of Canada in Edmonton, said the top court has adopted Ontario Court of Appeal Justice David Doherty's articulation of the law in R. v. Hamilton [2004] O.J. No. 3252.

The Supreme Court has accepted "that potential immigration consequences faced by a non-citizen offender can have a limited impact on the sentence that's imposed, but that they are not to be treated as 'mitigating' [factors], in the sense that they are going to push the sentence down below[...]what would be an appropriate sentence," Reimer said. "So, the [sentencing] court still has to come to a determination as to what's required by the gravity of the offence and the moral culpability of the offender, and [the sentence] has to be in that range."

Reimer added: "The impact is going to be most significant for those who are at, or near, the line where [immigration] consequences kick in" -- whether that's two years under the current IRPA, or six months under Bill 43.

In Pham's case, Justice Wagner said the Crown conceded at the Court of Appeal that a sentence of two years less a day was still within the range of fit sentences. Indeed, the Crown agreed to the sentence reduction. The prosecution also agreed that the sentencing judge would have ordered the reduced sentence had the judge been told of the collateral immigration consequences for Pham. The Crown and defence made a joint two-year sentencing recommendation to the trial judge that benefited the accused by sending him to an Ontario prison closer to his family. However, Pham's defence counsel (not Chozik) was apparently unaware of the negative immigration consequences.

Justice Wagner said that the appeal court should have intervened in the circumstances. "It was wrong for the Court of Appeal to refuse the one-day reduction solely on the basis that the appellant had a prior criminal record or that it felt that he had 'abused the hospitality that [had] been afforded to him by Canada,' " Justice Wagner said in reducing the two-year sentence by one day.

He said a sentencing judge may take collateral immigration consequences into account, provided that the sentence imposed is proportionate to the gravity of the offence and the offender's responsibility.

He said the significance of the immigration consequences will depend on the facts, but those consequences are only one factor in determining the appropriate sentence. It still remains open to the sentencing judge to conclude that even a minimal sentence reduction would be inappropriate, given the gravity of the offence and the offender's degree of responsibility, he said.

VISIT TO RESTAURANT IN CHINESE CHEF APPLICATION NOT SUFFICIENT FOR FINDING MISREPRESENTATION

The restaurant visit by the officers seem to have been insufficient for a finding of misrepresentation in the case below. The applicant failed to update his application but the officer erred in his conclusions.

Yuan v. Canada (Minister of Citizenship and Immigration)

Between Qing Qiang Yuan, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2013] F.C.J. No. 268

2013 FC 230

Docket IMM-4073-12

 Federal Court
Toronto, Ontario

O'Reilly J.

Heard: February 19, 2013.
Judgment: March 12, 2013.

(17 paras.)

---

 

REASONS FOR JUDGMENT AND JUDGMENT

O'REILLY J.:--

 

·       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. 

* * * * *

Annex

 

·       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; 

* * *

 

·       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;