JING GUO Applicant v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION, 2015 FC 161

Date: 20150206 Docket: IMM-5403-13 Citation: 2015 FC 161 Ottawa, Ontario, February 6, 2015 PRESENT: The Honourable Mr. Justice Boswell BETWEEN: JING GUO Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent JUDGMENT AND REASONS I. Nature of the Matter and Background [ 1 ] Ms. Guo [Applicant] was refused a work permit by a visa officer [Officer] in Hong Kong, and she now seeks judicial review of that decision pursuant to subsection 72(1) of the Immigration and Refugee Protection Act , SC 2001, c 27 [ Act ].

She asks the Court to set aside the Officer’s decision and return the matter to a different officer for re-determination. [ 2 ] The Applicant is now a 28 year old Chinese citizen who has arranged employment as a cook at Big Rock Inn in Okotoks, Alberta. With that and a positive labour market opinion confirming that Big Rock Inn could hire foreign workers, she applied for a work permit in early 2013. [ 3 ] Initially, her application was refused on the basis that there was insufficient evidence that the Applicant met the experience requirements set out in the labour market opinion.

The Applicant’s representative protested, however, asking for reasons and an interview, so the file was reopened and an interview convoked on June 18, 2013. II. Decision under Review [ 4 ] The Applicant was advised on June 18, 2013 that she would not receive a work permit. [ 5 ] The reasons for this refusal are detailed in the Officer’s notes about the interview entered into the Global Case Management System [GCMS] on June 18, 2013.

Most notably, these notes state the following: • The Officer observed that it was unusual for women to be cooks, but the Applicant said that she became a cook because she enjoyed cooking and used to watch her father cook. • The Applicant said she studied at the Zhanjiang City Shenmei Vocational School for two months from May, 2008, to July, 2008.

The Officer wrote that this contradicted her certificate from that school, which indicated that she had studied there from August, 2007, to May, 2008. • The Applicant said that she took two other courses in 2006, but could not explain why the certificates for those courses were issued in 2011.

Instead, she began to sob and said she wanted to withdraw her application, but eventually changed her mind and the interview continued. • The Applicant said that in the autumn of 2009, she started taking courses at the Radio and TV University from 7:45 p.m. to 9:25 p.m. • The Applicant said that she had worked at Zhanjiang Chikan Hotel since September, 2012, and that she has one shift from 9:00 a.m. to 2:00 p.m. and another shift from 4:00 p.m. to 8:00 p.m. The Officer noted that restaurants usually close much later than this, and that the timing would conflict with her university classes.

The Applicant also took a long time answering questions about the seating capacity and other details of the restaurant. • The Applicant said that she was a grade 3 cook and could not explain why she had presented a grade 4 certificate. • The Applicant did not have any calluses or marks on her hand and it took the Applicant ten minutes to describe how to make sweet and sour pork. • The Applicant did not know very much about her Canadian employer’s restaurant. [ 6 ] The Officer concluded with the following remarks: [The Applicant] does not appear to be a cook with 5 years experience.

From what she described about her training and about her job as a cook, there are a lot of discrepancies in many areas. It took her 10 minutes to describe the steps to cook sweet and sour pork and the

ingredients and the steps are also not similar to many sweet and sour pork recipes. There are no green pepper, onions [sic] use. She neversaid how she should make the batter and just put the meat in the corn starch. There is no mention of any eggs used and how many timesthe pork should be deep fried to make it crunchy. I am not satisfied that she has the more than 5 years experience as a cook to meet thejob requirements. Application refused. [Emphasis omitted] III. The Parties’ Submissions A.

The Applicant’s Arguments [7] The Applicant states that the appropriate standard for reviewing the Officer’s decision is correctness, because the Officerwas biased and the process was unfair. The Applicant argues that this was evident from the very start of the interview, when the Officerstated that it is “unusual for women to be a cook,” and doubted that she could handle heavy kitchen equipment like woks. She says thiswas tantamount to gender discrimination on the part of the Officer. [8] The Applicant submits that the Officer was in no position to assess the Applicant’s skills as a chef.

Thus, when the Officerstated that “even I can make this dish,” the Applicant argues that the Officer was inappropriately assuming that being a cook was anunskilled profession, and this comment reveals a clear bias.

The decision in Chen v Canada (Minister of Citizenship and Immigration)(2000), (FC), 190 FTR 260, 7 Imm LR (3d) 206 (TD) [Chen], is dispositive of this issue, according to the Applicant. [9] The Applicant also cites the decision in Au v Canada (Citizenship and Immigration), 2001 FCT 243, 202 FTR 57 [Au].Although Au sets a standard of fairness which is lower for visa officers, the Applicant argues that the bias evident from the verybeginning of the interview set her up for failure, as she was put on her guard right from the outset of the interview. [10] The Applicant states that any inconsistencies in her educational materials were immaterial in the face of the Officer’s bias,and that in any event, it was unfair for the Officer not to give her an opportunity to address his concerns.

B. The Respondent’s Arguments [11] The Respondent states that the standard of review in respect of the Officer’s decision is reasonableness, and that the Officer’sdecision met that standard. [12] The Respondent argues that the Applicant simply failed to prove that she could perform the job, despite being given twochances to do so. In addition, the Applicant’s interview was conducted in her own language and so she was comfortable and that couldhave worked to her advantage. As she was required to prove that she was qualified for the job by paragraph 200(3)(

a) of the Immigrationand Refugee Protection Regulations, SOR/2002-207 [the Regulations], the Respondent contends that the Officer’s decision wasreasonable. [13] The Respondent also says that the Officer did not commit a reviewable error by asking how she could be working as a grade 3cook when she only had a grade 4 qualification. When the Officer provided the Applicant an opportunity to address those concerns, theApplicant did not even respond.

This was not the only time either, and the Respondent states that the Officer should not be faulted forprompting the Applicant to respond to questions. [14] Although the GCMS notes dwell on preparation of sweet and sour pork, the Respondent says it was reasonable for the Officerto make inquiries about that since it was required by the stated job duties.

The Officer needed to be satisfied that the Applicant could dothe work, so it was reasonable for the Officer to ask about the preparation of a Chinese food dish and to make an adverse inference fromher inability to answer promptly. [15] As to the Applicant’s arguments concerning bias on the part of the Officer, the Respondent says there was none. Where theOfficer had concerns, the Officer gave the Applicant a chance to address those concerns. IV. Issues and Analysis A. Standard of Review [16] As noted by Mr.

Justice Richard Mosley in Palogan v Canada (Citizenship and Immigration), 2013 FC 889 at para 9: “Thestandard of review for assessments of applications for temporary work permits has been satisfactorily determined by the jurisprudence tobe reasonableness.” The reasons for that was explained well by Mr. Justice Yves de Montigny in Maxim v Canada (Citizenship andImmigration), 2012 FC 1029: [19] A visa officer’s decision to grant or to refuse a work permit to an applicant involves substantial factual findings, which arereviewable on the standard of reasonableness and require a high degree of deference.

Visa officers have a recognized expertise inassessing these applications, and this Court will not intervene unless the decision challenged does not fall within a range of possible,acceptable outcomes which are defensible in respect of the facts and law: Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 atpara 47.

See also: Ngalamulume v Canada (Minister of Citizenship and Immigration), 2009 FC 1268, 362 FTR 42 at paras 15-16;Odicho v Canada (Minister of Citizenship and Immigration), 2008 FC 1039, 341 FTR 18 at paras 8-9; Obeng v Canada (Minister ofCitizenship and Immigration), 2008 FC 754, 330 FTR 196 at para 21. [17] With respect to the Applicant’s argument that there was a reasonable apprehension of bias on the part of the Officer, thestandard of review is correctness, since that raises an issue of procedural fairness (Canada (Minister of Citizenship and Immigration) v

Khosa, 2009 SCC 12 at para 43, [2009] 1 SCR 339). B. Was There a Reasonable Apprehension of Bias? [18] In Committee for Justice and Liberty v Canada (National Energy Board) (1976), (SCC), [1978] 1 SCR 369 at394, 68 DLR (3d) 716 [Committee for Justice and Liberty], Mr. Justice de Grandpré set out the general test for determining whether areasonable apprehension of bias arises: …the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the questionand obtaining thereon the required information.

In the words of the Court of Appeal, that test is "what would an informed person,viewing the matter realistically and practically--and having thought the matter through--conclude. Would he think that it is more likelythan not that … [the decision-maker], whether consciously or unconsciously, would not decide fairly." [19] Furthermore, it is well established that the grounds for the apprehension of bias must be substantial (see: Committee forJustice and Liberty at 394-395). As Mr.

Justice Cory stated in R v S(RD), (SCC), [1997] 3 SCR 484 at para 112, 151DLR (4th) 193, a real likelihood of bias must be demonstrated and mere suspicion is insufficient (also see: Bell Canada v CanadianTelephone Employees Association, 2003 SCC 36 at paras 17-18, 50, [2003] 1 SCR 884). [20] In Arthur v Canada (AG), 2001 FCA 223 at para 8, 283 NR 346, the Federal Court of Appeal commented on what is requiredto establish bias: An allegation of bias, especially actual and not simply apprehended bias, against a tribunal is a serious allegation.

It challenges theintegrity of the tribunal and of its members who participated in the impugned decision. It cannot be done lightly. It cannot rest on meresuspicion, pure conjecture, insinuations or mere impressions of an applicant or his counsel. It must be supported by material evidencedemonstrating conduct that derogates from the standard. It is often useful, and even necessary, in doing so, to resort to evidence extrinsicto the case.

That is why such evidence is admissible in derogation of the principle that an application for judicial review must bear onthe matter as it came before the court or tribunal. [21] To use the words of Mr. Justice de Grandpré, I do not think that an informed person, viewing the Officer’s GCMS notesrealistically and practically--and having thought the matter through--would conclude that the Officer, consciously or unconsciously, didnot decide the Applicant’s request for a work permit fairly. There is no evidence on the record before the Court to suggest that theOfficer prejudged the application.

Moreover, the Officer’s notes, entered into the GCMS on the day of the Applicant’s interview, neithercorroborate nor substantiate the Applicant’s allegations and arguments as to bias on the part of the Officer. The Applicant has submittedno evidence that she raised any apprehension of bias before the Officer during the interview.

Even if one assumes, without deciding, thatthe evidence offered by the Applicant in her affidavit filed as part of the application record is admissible, the matters deposed to by theApplicant do not prove that the Officer was biased. [22] Also, the Applicant’s failure to object at the interview amounts to an implied waiver of the right to raise the issue of bias atthis stage of the matter: Fletcher v Canada (Minister of Citizenship and Immigration), 2008 FC 909 at paras 10, 17, 74 Imm LR (3d) 78;Maritime Broadcasting System Limited v Canadian Media Guild, 2014 FCA 59 at para 67, 373 DLR (4th) 167. C.

Was the Officer’s Decision Reasonable? [23] It is clear from the reasons in the GCMS notes that form part of the Officer’s decision that he reviewed the application and thedocumentation submitted by the Applicant, and also interviewed her in Cantonese. The Officer refused the application for a work permitbecause he was “not satisfied that she has the more than 5 years experience as a cook to meet the job requirements.” [24] To get a work permit, the Applicant had to satisfy the Officer that the requirements of

section 200 of the Regulations weremet. This

section provides in part as follows: 200.

(1) Subject to subsections (2) and (3) —and, in respect of a foreign national whomakes an application for a work permitbefore entering Canada, subject to section87.3 of the Act — an officer shall issue awork permit to a foreign national if,following an examination, it is establishedthat 200.

(1) Sous réserve des paragraphes (2) et(3), et de l’article 87.3 de la Loi dans le casde l’étranger qui fait la demandepréalablement à son entrée au Canada, l’agentdélivre un permis de travail à l’étranger si, àl’issue d’un contrôle, les éléments ci-aprèssont établis : … […](

c) the foreign national

c) il se trouve dans l’une des situationssuivantes :… …(iii) has been offered employment, and anofficer has made a positive determinationunder paragraphs 203(1)(

a) to (e); and (iii) il a reçu une offre d’emploi et l’agent arendu une décision positive conformémentaux alinéas 203(1)

a) à e);… […]

(3) An officer shall not issue a work permit toa foreign national if

(3) Le permis de travail ne peut être délivré àl’étranger dans les cas suivants :(

a) there are reasonable grounds to believethat the foreign national is unable to performthe work sought;

a) l’agent a des motifs raisonnables de croireque l’étranger est incapable d’exercerl’emploi pour lequel le permis de travail estdemandé;

[25] It was reasonable for the Officer in this case to consider and assess the Applicant’s experience and abilities as a cook in orderto comply with paragraph 200(3)(

a) above. The onus was upon the Applicant to convince the Officer that she had the ability,qualifications and experience to perform the work sought. In Masych v Canada (Citizenship and Immigration) 2010 FC 1253, a casewhere a request for a temporary work permit had been refused, Mr. Justice John O’Keefe stated as follows: [31] The onus is on the applicant to satisfy the officer of all parts of her application. The officer is under no obligation to ask foradditional information where the applicant’s material is insufficient.

Nor is the officer obliged to provide the applicant with severalopportunities to satisfy points she may have overlooked (see Madan v. Canada (Minister of Citizenship and Immigration), (FC), 172 F.T.R. 262 (F.C.T.D.), [1999] F.C.J.

No. 1198 (QL) at paragraph 6). [26] The Officer simply was not satisfied with the Applicant’s ability to perform the work sought based on the documentation sheprovided and the responses to the Officer’s questions at the interview. [27] Moreover, despite the Applicant’s argument that she was not treated fairly, it is well-established that the level of proceduralfairness in this sort of case is minimal or relatively low. In Qin v Canada (Minister of Citizenship and Immigration), 2002 FCT 815 atpara 5, Mr.

Justice Marshall Rothstein stated that: “…when there is no evidence of serious consequences to the Applicant … therequirements for procedural fairness will be relatively minimal.” The Officer interviewed the Applicant and she was afforded anopportunity, unlike many such applicants, to convince him in person that she could perform the work sought.

Considering her responses,it was reasonable that the Officer nevertheless concluded that she could not so perform. [28] Accordingly, the Officer’s reasons for refusing the Applicant a temporary work permit are intelligible, transparent, andjustifiable and his decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. V. Conclusion [29] In the result, the Applicant’s application for judicial review is hereby dismissed. Neither party suggested a question forcertification; so, no such question is certified.

JUDGMENT THIS COURT’S JUDGMENT is that the application for judicial review is dismissed and that no serious question of generalimportance is certified. "Keith M. Boswell" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-5403-13 STYLE OF CAUSE: JING GUO v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Calgary, Alberta DATE OF HEARING: November 26, 2014 JUDGMENT AND REASONS: BOSWELL J. DATED: february 6, 2015 APPEARANCES: Lori O’Reilly For The Applicant Camille Audain For The Respondent

SOLICITORS OF RECORD : O'Reilly Law Office Barrister and Solicitor Calgary, Alberta For The Applicant William F. Pentney Deputy Attorney General of Canada Edmonton, Alberta For The Respondent