Ottawa, Ontario, May 19, 2006
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] Ms. Guo has sought admission to Canada as a business investor. Among other things, she was required to provide particulars of her employment history and justify that the money she had to invest was not ill-gained. The Immigration Section of the Canadian Embassy in Beijing purported to verify some of the information provided and rejected her application. The Program Manager determined that she was inadmissible under Section 40(1) of the Immigration and Refugee Protection Act (IRPA) because she had submitted a fraudulent Work and Income Certificate. This is a judicial review of that decision.
[2] The Embassy's investigation was shoddy. The issue is whether it was so shoddy that judicial review should be granted with a direction that Ms. Guo's application be sent back for a fresh determination by officers not involved in the original decision making process. No matter the standard of review, the finding was so patently unreasonable that I am granting the application, for the following reasons.
[3] Let it be said at the outset that at Common Law no alien has the right to enter Canada or to remain here (Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711). However once legislation, such as the IRPA, is enacted it must be properly administered. In her application for permanent residence to Canada, Ms. Guo indicated that she left hospital work to begin her business career in 1991 with Yunnan Fire Apparatus Supplying Co. She worked her way up the sales department as a materials keeper, cashier and estimate clerk. In 1994, she was promoted to sales manager. She gave details of her salary and bonuses over the entire time she was with that company, as certified by the company. In March 1998, she set up her own company with a partner.
[4] In its notes, the Embassy referred to the fact that the application was generally well documented but decided to verify a few points, including her income earned from 1994 to 1997 when she was manager of the sales department.
[5] An officer with the initials LUZ made an entry 2 February 2005 which indicates that he called the company and spoke to a Mr. Wang who identified himself as the deputy general manager in charge of salary. He is reported to have said that during the timeframe in question she was an ordinary salesperson not the manager, and her salary was far less than she had represented. He added that Ms. Guo's father had been the general manager, but retired in 1997. He also provided Ms. Guo's mother's maiden name and said that Ms. Guo had changed her own name in 1996.
[6] Not surprisingly, the Immigration Section of the Embassy wrote to Ms. Guo to express concern. She was reminded that Section 16(1) of the IRPA requires a person to truthfully answer all questions. The officer stated that he had grounds to believe that she had misrepresented her employment history and personal net worth by "presenting a fraudulent work and income certificate for the Yunnan Fire Apparatus Supplying Company". The officer concluded "I would like to give you an opportunity to respond to this information. I will afford you 30 days from the receipt of this letter to make any representations in this regard."
[7] Ms. Guo promptly wrote back with an explanation letter from Mr. Wang in which he said that he had only joined the company in July 1998 and had instructed another person to retrieve Ms. Guo's records. Unfortunately, information was given to him from the wrong record, which explains why he passed on incorrect information to the Embassy. He double checked and found that the original certificate was true and accurate. He apologized and offered to answer any further questions the Embassy might have. He provided a telephone number, a cellular phone number, and a fax number.
[8] According to the Embassy's record, another officer, one with the initials P.M.Q., considered Mr. Wang's letter, which he characterized as a retraction. He did not find the story credible, and noted that he might have had more confidence if the letter had been accompanied by genuine archival personnel records.
[9] Finally "D.R.S." refused her application under Section 40 of the Act, as aforesaid.
[10] The telephone conversation with Mr. Wang gave rise to legitimate concerns that Ms. Guo may have misrepresented her situation. It is well established in the case law that a visa officer must disclose his or her concerns to the applicant and give her sufficient opportunity to respond in a meaningful way. Some of the authorities were very recently reviewed by Mr. Justice Blanchard in Khwaja v. Canada(Minister of Citizenship and Immigration) 2006 FC 522.
[11] Those concerns were expressed in a letter to Ms. Guo. However, the concern was that she had presented a "fraudulent Work and Income Certificate". She responded with a letter from the same Mr. Wang who had provided information over the telephone. In that letter Mr. Wang explained how he had fallen into error and that he was ready, willing and able to answer any further queries. None were forthcoming. At no time was Ms. Guo asked to produce archival records from the company. Section 16 of IRPA required her to produce "all relevant evidence and documents that the officer reasonably requires." The concern was limited to the certificate. She gave what on its face was a full and complete answer.
[12] The analysis carried out by the Embassy officials stands up to no scrutiny whatever. The Court has been asked to infer that there was simply one telephone call from Mr. Wang because there is only one entry in the computer assisted notes. Therefore, Mr. Wang must have been lying when he recanted, when he said that records had to be retrieved. The Court has been asked to assume that he had these records at his fingertips. It is an unwarranted leap of faith to make an inference from an entry which was not there.
[13] But what was there? In the telephone call, Mr. Wang said Ms. Guo had joined the company in 1993. She said she had joined in 1991. Furthermore, there were all these details about her change of name, her father's history with the company, and her mother's maiden name. These begged for further verification.
[14] In Shi v. Canada(Minister of Citizenship and Immigration) 2005 FC 1224, Madam Justice Snider was reviewing a decision which dealt with a tax certificate which had been determined to be fraudulent. Although Mr. Shi asserted that there was an error, he did not attempt to obtain evidence from the tax office that would refute the finding. She said "if Mr. Shi had felt that the tax office erred, it would have been sensible of him to approach the tax office immediately to rectify the situation." In this case, the error rested with Mr. Wang. Ms. Guo acted sensibly and approached him immediately. The doubts the Ministry had should have been dealt with by follow-up queries (Huang v. Canada (Minister of Citizenship and Immigration) 2005 FC 1615, [2005] F.C.J. No. 1990).
[15] Of course, it may be that Ms. Guo is lying, and that the information provided by Mr. Wang in his telephone call was true. However, there was simply no evidentiary record to allow the immigration officers to disbelieve her. Consequently, the application for judicial review shall be granted. There is no serious question of general importance to certify.
ORDER
UPON application for judicial review of the decision of the Program Manager Minister Counsellor (Immigration) dated at Beijing 26 July 2005 determining that the applicant did not qualify for immigration to Canada as a member of the Province of Quebec Investor Class on the grounds that a fraudulent work and income certificate had been submitted;
THIS COURT ORDERS THAT:
1. The application for judicial review is granted.
2. The matter is referred back to the Immigration Section of the Canadian Embassy in Beijing for a fresh determination by officers not involved in the original decision making process.
"Sean Harrington"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5815-05
STYLE OF CAUSE: Yi Rong Guo v.
The Minister of Citizenship and Immigration
PLACE OF HEARING: Montreal, Quebec
AND ORDER: HARRINGTON J.
APPEARANCES:
| Stephen James Fogarty
|
FOR THE APPLICANT |
| Martine Valois
|
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
| Stephen James Fogarty Barrister & Solicitor Montreal, Quebec
|
|
| John H. Sims, Q.C. Deputy Attorney General of Canada
|