FEIFEI BAO Applicant v. THE MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP, 2019 FC 268

Date: 20190305 Docket: IMM-1912-18 Citation: 2019 FC 268 Ottawa, Ontario, March 5, 2019 PRESENT: The Honourable Madam Justice McDonald BETWEEN: FEIFEI BAO Applicant and THE MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP Respondent JUDGMENT AND REASONS [ 1 ] The Applicant, a citizen of China, was offered a job as a chef under the Saskatchewan Immigrant Nominee Program (SINP). Her application for a permanent resident (PR) visa was denied on the grounds of misrepresentation pursuant to paragraph 40(1) (

a) of the Immigration and Refugee Protection Act , SC 2001, c 27 [ IRPA ]. For the reasons that follow, this judicial review is granted as the Visa Officer’s decision is unreasonable. Background [ 2 ] The Applicant was accepted into the SINP based on her work experience as a chef at the Steaming Fresh Restaurant ( " “Steaming Fresh” " ) in Qingdao, China.

In May 2017, she received a job offer from Go for Sushi Buffet ( " “Go for Sushi” " ) in Saskatoon, Saskatchewan, and in June 2017 she applied for a PR visa. [ 3 ] In September 2017, the Applicant provided additional information for her visa application, including an updated offer of employment from Go for Sushi and employment letters from the past jobs she had declared on her application forms. [ 4 ] By this time, the Applicant started working for Qingdao Wuxin Restaurant ( " “Wuxin” " ), for which she also provided updated employment information. [ 5 ] On January 10, 2018, the Applicant was advised that the Visa Officer conducted a site visit at Wuxin and she was asked to explain the reasons for her not being at work during that visit.

She was also asked to provide details about her work at Wuxin, including her work location, pay, hours, job description, and staff names. The Applicant advised the Officer over the phone that the reason for her absence on that day was that her child was sick.

She also explained that in her role with Wuxin she was responsible for the development of food dishes. [ 6 ] The Applicant arrived in Canada mid-January 2018 on a work permit and started working at Go for Sushi. [ 7 ] On February 5, 2018, the Applicant received a procedural fairness letter (PFL) alleging she misrepresented her employment with Wuxin. [ 8 ] The Applicant submitted a response to the PFL, which included a medical record from the children’s hospital, a letter from the restaurant’s general manager confirming her employment, and payslips for the period of October 2017 to January 2018. [ 9 ] On April 10, 2018, she was advised by letter that her PR application was refused and she was inadmissible to Canada for misrepresentation.

Decision Under Review [ 10 ] In the April 10, 2018 decision, the Visa Officer determined that the Applicant misrepresented or withheld material facts of her employment at Wuxin. The Visa Officer reached this conclusion following the site visit to Wuxin on January 10, 2018. The concerns were outlined in the PFL to the Applicant, but the responses provided by the Applicant did not overcome the Visa Officer’s concerns. [ 11 ] On a balance of probabilities, the Visa Officer determined that the Applicant was inadmissible and her PR application was refused.

Issues [ 12 ] The determinative issue on this judicial review is the reasonableness of the Visa Officer’s treatment of the Applicant’s response to the PFL. Although the Applicant also raises procedural fairness arguments, in the circumstances it is not necessary to address those arguments.

Standard of Review [13] The standard of review of a visa officer’s finding of material misrepresentation as described in paragraph 40(1)(

a) of the IRPA isreasonableness (Singh v Canada, 2015 FC 377 at para 12). [14] A reasonable decision is one that has the hallmarks of "“justification, transparency and intelligibility”" and falls into a range ofpossible, acceptable outcomes (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).

Analysis Is the Visa Officer’s analysis reasonable? [15] The Applicant argues that the Officer overlooked her relevant experience at Steaming Fresh when conducting the site verificationand in determining the materiality of the alleged misrepresentations of her work at Wuxin. [16] Her SINP application was submitted in May 2017 and her nomination was confirmed that same month. At that time, her applicationindicated that she had approximately two and a half years of experience working with Steaming Fresh in Qingdao, and on this basis sheobtained a job offer from Go for Sushi in Saskatchewan.

It was this work experience that qualified the Applicant for the SINPnomination. She argues that the Officer unnecessarily focused on her work at Wuxin in Qingdao, which is not the work that qualified herfor the SINP nor did it affect her overall eligibility to be nominated. [17] In Lamsen v Canada (Citizenship and Immigration), 2016 FC 815 [Lamsen], the Court stated as follows at paragraph 24: A visa application must be considered in its totality (Koo v Canada (Citizenship and Immigration), 2008 FC 931 atpara 29).

It cannot be compartmentalized, particularly when making a finding of misrepresentation carries such seriousconsequences (Xu v Canada (Citizenship and Immigration), 2011 FC 784 at para 16). [emphasis added] [18] Here the Officer focused on the inconsistencies that arose from the on-site visit and failed to reconcile those with the Applicant’sPFL response. Furthermore, no concerns were put to the Applicant regarding her job offer at Go for Sushi or her work experience atSteaming Fresh, which were the facts material to her visa application.

The Officer effectively compartmentalized her application contraryto what Lamsen warned against. [19] This case parallels that of Chhetry v Canada (Citizenship and Immigration), 2016 FC 513 where the inconsistencies or omission inthe work experience were not material misrepresentations such that they could have affected the visa process (at para 31). [20] Likewise, the inconsistencies identified by the Visa Officer regarding the Applicant’s work at Wuxin did not constitute materialmisrepresentations such that they could have led to an error in the administration of the IRPA. [21] Even if the work experience at Wuxin is considered material for the SINP program, had the Visa Officer any credibility concernsregarding the information provided by the Applicant in her PFL response, then the Officer should have raised those concerns directlywith the Applicant.

However, the Officer appears to have doubted her Wuxin employment because her husband is a close friend with thegeneral manager of that Wuxin branch. [22] Although the duty owed by visa officers is on the low end of the spectrum, this case is similar to Ge v Canada (Citizenship andImmigration), 2017 FC 594, where the Court states at paragraph 30 as follows: There was certainly no obligation upon the Officer to inform the Applicants of the need to be truthful in responding to theprocedural fairness letters.

However, once the Officer developed the concern that the Applicants had not been truthful inthese responses, she had an obligation to put this concern to them and give them opportunity to comment before denyingtheir applications and finding them inadmissible based on that concern. [23] Here the Officer also failed to put the credibility concerns regarding the PFL response to the Applicant. [24] Overall, the Visa Officer’s decision is unreasonable for failing to actually consider the responses provided by the Applicant in thePFL, and then by failing to allow the Applicant to respond to the credibility concerns raised by the Visa Officer. [25] This judicial review is therefore granted.

JUDGMENT in IMM-1912-18 THIS COURT’S JUDGMENT is that this application for judicial review is granted. There is no question for certification. "Ann Marie McDonald" Judge FEDERAL COURT

SOLICITORS OF RECORD DOCKET: IMM-1912-18 STYLE OF CAUSE: FEIFEI BAO v MCI PLACE OF HEARING: TORONTO, Ontario DATE OF HEARING: JANUARY 14, 2019 JUDGMENT and reasons: MCDONALD J. DATED: MARCH 5, 2019 APPEARANCES : Tamara Thomas Michelle Adormaa Owsu For The Applicant Jody Michaely For The Respondent SOLICITORS OF RECORD : Bellissimo Law Group PC Barristers & Solicitors Toronto, Ontario For The Applicant Attorney General of Canada Department of Justice Canada Ontario Regional Office Toronto, Ontario For The Respondent