Jin v. Canada (Minister of Citizenship and
Immigration)
Between
JIN, Liwen, Applicant, and
The Minister of Citizenship and Immigration, Respondent
JIN, Liwen, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2014] F.C.J. No. 633
2014 FC 612
Docket: IMM-6342-13
Docket: IMM-6342-13
Federal Court
Montréal, Quebec
Roy J.
Heard: May 21, 2014.
Judgment: June 25, 2014.
Montréal, Quebec
Roy J.
Heard: May 21, 2014.
Judgment: June 25, 2014.
(15 paras.)
ORDER AND REASONS
1 ROY
J.:-- In this application for judicial review made pursuant to subsection 72(1)
of the Immigration and Refugee Protection Act,SC 2001, c 27 [IRPA], it is the decision of an Immigration Officer
that is challenged.
2 The
decision, dated May 22, 2013, denies an application for a permanent resident
visa as a member of the Canadian Experience Class.
3 In
the decision, which was transmitted by email, the Immigration Officer states
that:
·
[Y]ou have not provided tangible
evidence you are returning to Canada, i.e. copy of a purchased an [sic] airline ticket, offer/contract of
employment in Toronto. In addition, there is no indication Yutong Wu is the
proprietor of the condo, nor was a signed lease provided. Based on the above, I
am not satisfied it is your intent to establish in Canada and in a province
other than the province [sic] of
Quebec.
4 That
letter of decision followed what has been called a "fairness letter"
which was sent on February 20, 2013. Such a letter is for the purpose of
indicating to applicants why their application will be denied if additional
information or evidence is not provided. In the case at bar, the only
indication of the concerns reads as follows:
·
Please provide written evidence
that you intend to live in a different province than Quebec in order for me to
take a final decision on your application. If you choose not to respond with
additional information and/or documentation, or if your submission does not respond
to these concerns, you [sic]
application may be refused.
5 Within
the 30 days given in order to provide a response, the applicant, through a
representative who was not her counsel in these proceedings, responded with an
email on March 19, 2013. In that email, the Immigration Officer is advised that
the applicant has left Canada and a copy of her passport showing her entry into
China on June 21, 2012 is appended. The email also advises that the applicant
is working in Shanghai since November 1, 2012. The third paragraph is
particularly relevant. It reads:
·
Mrs. Jin plans to come back to
Canada on September 1st, 2014. She will lease a condo in Toronto. Please refer
to the attached rental confirmation. Mrs. Jin lived and studied in London,
Ontario from September 2006 to October 2010. She intends to settle in Ontario
because her second language is English and because of her relations in the
province of Ontario. She feels it would be difficult to find a permanent job in
Québec because she doesn't speak French.
6 There
is in fact a letter confirming her employment in Shanghai and a document, which
is not dated, which seeks to provide evidence that a condominium owned by that
person, Yutong Wu, will be leased to Ms Jin.
7 It
is not disputed by the parties that the standard of review in the circumstances
is the standard of reasonableness. The task at hand is therefore to determine
whether the decision letter of May 22, 2013 meets the reasonableness standard.
In my view, it does not.
8 The
concern that was raised initially was to the effect that the applicant would in
fact reside in the Province of Quebec. As indicated in that letter, "the
Canadian experience class is prescribed as a class of persons who may become
permanent residents on the basis of their experience in Canada and who intend
to reside in a province other than the Province of
Quebec." Thus, the applicant, through a
representative, sought to alleviate the concern by providing evidence that she
would indeed reside outside of the Province of Quebec. The applicant responded
to the concern raised.
9 However,
the decision letter switches gears in that the decision is based on the
argument that "[Y]ou have not provided tangible evidence you are returning
to Canada". The concern that was present that the applicant would reside
in Quebec has magically become whether or not the applicant would be returning
to Canada at all. One has to wonder why an applicant would go through the
trouble of retaining a consultant and fill out the various forms and
questionnaires that need to be completed if the person does not intend to
return to Canada. What is more is that the further explanation of what might be
missing appears to be inaccurate. The Immigration Officer declares that there
is no indication that Yutong Wu is the proprietor of the condo. This is not so.
On the basis of the evidence before the decision-maker, this gentleman is the
owner of the condominium. There is no indication in the decision as to why the
Immigration Officer would refute that information.
10 In
my view, it is unreasonable to require, for instance, that an applicant would
have to purchase an airline ticket, and incur a significant cost, for the sole
purpose of satisfying an Immigration Officer that she intends to avail herself
of the permanent residence visa she requested. It would be more reasonable to
purchase such an expensive ticket after the Canadian authorities have confirmed
that a visa will be delivered. Similarly, there is no indication why the letter
from the owner of the condominium would not be sufficient and why a signed
lease would be needed.
11 Accordingly,
one is left with a refusal based on concerns that were not raised in the
fairness letter and for reasons that appear on their face to be less than convincing.
One has to consider that the exchange of information was taking place some six
months before the applicant would make her way to Canada. Had the Immigration
Officer had concerns about the employment situation once in Toronto, she could,
and I suggest she should, have raised these with the applicant. Limiting her
concerns to where the applicant will reside in the Province of Quebec sets up
the applicant for failure if other concerns are present.
12 The
respondent has alluded to the case law that finds that there is no need to
enter into a discussion with applicants about their credibility or authenticity
of information submitted in support of an applicant (Hassani
v Canada (Minister of Citizenship and Immigration), 2006
FC 1283, [2007] 3 FCR 501).
13 With
respect, such is not the case here. The respondent raised a very specific
concern in the fairness letter: will the applicant reside in the Province of
Quebec. That is the matter that is addressed squarely in the response. There is
no further discussion of the credibility or authenticity of that information.
Rather, a completely different issue, the return to Canada altogether, becomes
the reason for the refusal. Black's Law Dictionary (West Group, 7th ed) defines "bait and switch" as "A
sales practice whereby a merchant advertises a low-priced product to lure
customers into the store only to induce them to buy a higher-priced
product."Although most analogies are somewhat defective, this one
illustrates the point in that the applicant is lured into thinking that the
issue is one thing, to be told that it is something else of an even higher
order.
14 I
would not dispute that the concerns about the residency in the Province of
Quebec of the applicant were legitimate. In her initial application, it was
clear that following her studies in London, Ontario, she resided in the
Province of Quebec and, indeed, held a job in the province. However, it was
incumbent on the Immigration Officer to deal with those concerns on the basis
of the information that was provided on March 19. They were deemed to address
the concerns raised in the fairness letter and, in my estimation, it was not
reasonable to deny the application for permanent residence on a completely
different basis not even alluded to. If doubts about residency in Quebec
deserved a fairness letter, doubts about a return to Canada were equally
deserving of a fair warning.
15 As
a result, the application for judicial review is granted, and this application
for permanent residence as a member of the Canadian Experience Class has to be
reassessed and determined anew by a different immigration officer. There is no
question for certification.
ORDER
THIS COURT'S JUDGMENT is that the application for judicial review is granted, and this application
for permanent residence as a member of the Canadian Experience Class has to be
reassessed and determined anew by a different immigration officer. There is no
question for certification.
ROY J.
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