1. THE PREFACE
APPEAL AGAINST THE RESUAL OF ENTRY CLEARANCE FOR
Mr Dexiong Zhang
1. Post reference. Guangzhou/278848
Ho. Ref. N/A
Port Ref. N/A
Reps. Ref. CH0062
2. Appellant Mr Dexiong Zhang
RepresentativeHorizon Immigration Services
Respondent Entry Clearance Office
Sponsor Water Margin Chinese Restaurant
CHRONOLOGY OF EVENTS
11th
Feb 2009 Work permit number F544220 was issued and related
document was sent from the U.K. for the Appellant to apply for
Entry Clearance.
7th
April 2009 The Appellant has handed visa application to the visa
application centre in Guangzhou.
11th
May 2009 British Consulate carried out local checks in relating to the
Appellant’s past and present employments.
11th
May 2009 The Entry Clearance was dissatisfied with the result of the
checks carried out. Hence, has refused the entry clearance
application to the UK without interviewing the Appellant.
28th
May 2009 The Sponsor, Water Margin Restaurant have appointed Horizon
Immigration Services as their representative for the appeal.
8th
June 2009 The Appeal was lodged from the Representative under the
instruction of the Sponsor by post, along with all supporting
documents.
2. APPEAL AGAINST THE RESUAL OF ENTRY CLEARANCE FOR
Mr Dexiong Zhang
1. Post Ref. Guangzhou/278848
Ho. Ref. N/A
Port Ref. N/A
Reps. Ref. CH0062
2. Appellant Mr Dexiong Zhang
Representative Horizon Immigration Services
Respondent Entry Clearance Office
Sponsor Water Margin Chinese Restaurant
3. A chronology of events is attached as the Preface.
4. Documents relevant to this appeal are attached (Appendices a to n)
a. Statement from the Assistant Sales Manager of Deyue Fang confirming the
conversation she has had with the British Consulate personnel during the
check with translation (Page 17 – 21)
b. Statement from the Assistant Floor Manager of DeYue Fang Restaurant
with translation (page 22 - 24)
c. Statement from the Floor Manager of Deyue Fang Restaurant to confirm
Mr Dexiong Zhang’s employment at Deyue Fang with translation (Page
25 – 26)
d. Statement from the Floor Manager of Deyue Fang Restaurant to confirm
Mr Manchi Li’s employment at Deyue Fang with translation (Page 27 –
28)
e. Statement from the Director of Production department of Jinmei
Restaurant to conform the Appellant’s employment and the content of
conversation during British Consulate Check with translation (Page 29 –
35)
f. Statement from the Vice Executive Chef of Jinmie restaurant confirming
the Appellants employment and the content of conversation during the
British Consulate Check with translation (page 36 – 43)
g. Statement from the Appellant himself confirming the content of
conversation during the British Consulate General Check with translation
(Page 44 – 52)
h. Attendance record provided by the personnel department of Jinmei
Restaurant confirming the Appellant is employed as claimed (page 53 –
59)
i. Attendance record provided by the personnel department of Jinmei
Restaurant for the Vice Executive Chef Mr Manchi LI (page 60 – 66)
j. Summary of the Appellant’s mother’s hospital discharge with translation
(Page 67 – 68)
k. Pathological Diagnostic Examination for the Appellant’s mother with
translation (Page 69 – 70)
l. Certificate of Disease for the Appellant’s mother with translation (page71
- 72
3. m. Examination Report of the Appellant’s mother with translation (page 73 –
74)
n. X-Ray Examination Report of the Appellant’s mother with translation
(page 75 – 76)
Detail of appellant
5. The appellant, Dexiong Zhang, male, applied entry clearance to the United
Kingdom as a Work Permit holder, in order to come to the U.K. to take up
employment as specified on his Work Permit, and was refused.
The Respondent’s Case
6. The Appellant has provided references from Jin Mei Restaurant and Deyue Fang
Restaurant. In his visa application form he has stated that you worked for Deyue
Fang Restaurant from 1983 until July 2008 and presently he is employed by Jin
Mei Restaurant since August 2008 as Second Chef. Local checks carried out
show that he is not employed as claimed by both restaurants. Therefore, the
Respondent was not satisfied that he intends to take up employment as specified
in his work Permit as required by Paragraph 128 (iv) of HC395.
As false representations have been made and false documents have been
submitted in relation to your application, it is refused under Paragraph 320(7A)
of HC395.
Summary
7. The detail reasons for the refusal can be summarized as follow:
i) The ECO was satisfied that the Appellant’s application meets the
requirements of all sub0paragraphs of paragraph 128 of the Immigration
Rules;
ii) However, the Appellant has provided references from Jin Mei Restaurant
and Deyue Fang Restaurant. In his visa application form he has stated that
you worked for Deyue Fang Restaurant from 1983 until July 2008 and
presently he is employed by Jin Mei Restaurant since August 2008 as
Second Chef. Local checks carried out show that he is not employed as
claimed by both restaurants. Therefore, the Respondent was not satisfied
that he intends to take up employment as specified in his work Permit as
required by Paragraph 128 (iv) of HC395;
iii) As false representations have been made and false documents have been
submitted in relation to your application, it is refused under Paragraph
320(7A) of HC395.
8. In light of the above the Respondent was not prepared to exercise discretion in
the Appellant’s favour.
4. 9. It was clearly that the ECO has made the decision based on the material available
and the result of the local checks at the time of his decision. We are making this
appeal only because that the Appellant actually met the requirements of
paragraph 128 (iv) of HC 395. The local checks have failed to offer the ECO
satisfactory results was only due to miscommunication and misunderstanding
between the British Consulate General personnel and all the people she has
spoken to during the local checks carried out in relation to the Appellant’s
present and past employments. Therefore, no false representations have been
made and no false documents have been submitted in relation to the application,
and has provided new information to confirm this (Appendices a to l).
The Grounds of Appeal
10. The Appeal is made on the grounds of the Appellant:
i) Does intend to take up employment as specified on the Work Permit;
ii) No false representation have been made and no false documents have been
submitted in relation to the application;
iii) Hence, the Appellant meets the requirements from paragraph 128 (iv) of HC
295, and should not be refused under paragraph 320(7A) of HC395 and is
therefore qualified for admission to the U.K.
The Argument
11. The ECO was not satisfied that the Appellant is intend to take up
employment as specified in his work permit as required by paragraph 128
(iv) of HC395. The ECO has came into this conclusion because the Appellant
has provided references from Deyue Fang Restaurant and Jinmei Restaurant
accompanying the visa application, local checks have been carried out show that
the Appellant is not employed as claimed by both restaurant.
12. After receiving the refusal notice, the Appellant has carried out his own
investigation with both his present and past employers. The result of the
investigation has shown a different side to the refusal. The Appellant’s past
employer Deyue Fang Restaurant has confirmed that an female personnel from
the British Consulate General telephoned Deyue Fang Restaurant on 11th
May
2009, she has spoken to the restaurant’s Assistant manager of the Sales
Department – Miss Shuqun Xiong and Miss Xiong indeed has replied that she
has no knowledge of a Mr Dexiong Zhang. However, in Miss Xiong’s statement
(Appendix a, page 17 – 24) she has clearly stated that there are 8 separate
departments within the Deyue Fang Restaurant. In each department, there is a
manager and an Assistant manager, so totaling to 16. However, as the British
Consulate Personnel has only asked to speak to a Manager when a receptionist
answered, she therefore has taken the call.
13. Miss Xiong also stated in her statement that she is the Assistant Sales Manager
of the Sales Department, the department’s main responsibilities are for
Marketing and receiving large banquet orders, and that the department seldom
gets in touch with other employees within the kitchen department. Hence, she
would not know who Dexiong Zhang is when asked. She has also added she
5. would not know him when he is working for the restaurant, let alone he had
resigned. In Miss Xiong’s opinion, when the Embassy called to enquire about a
member of kitchen staff who has already resigned from the restaurant, why did
they not ask to speak to the right person? Miss Xiong further mentioned that she
agreed she should bear responsibility that Mr Zhang’s application was rejected,
but the personal from the consulate should also bear the responsibility, because
she did not conduct the check with the correct person or the correct department.
14. Furthermore, the Assistant Floor Manager and the Floor Manager have also
provided references that the Appellant is employed as claimed (Appendix b and
c, page 22 -24, and page 25 – 26). The Appellant agreed that the British
Consulate General should carry out appropriate checks to ensure that all the
documentations provided to support his application are genuine. However, the
Appellant felt that if the check with his past employer was carried out with the
correct department, this miscommunication will not have occurred. The
Appellant also understood that he was refused under paragraph 320(7A) of
HC395, and any future applications he submits will be automatically refused,
subsequently he will be facing a 10 year ban. He therefore is appealing to protect
his future immigration record and that he felt unjust that his application should
be refused even when he is a genuine chef employed as claimed.
15. The ECO was also unable to confirm that the Appellant is employed as claimed
by his current employer – Jinmei Restaurant. The restaurant’s Vice Executive
Chef (Mr manchi Li) and the Director of Production (Mr Runtang Xu) have both
participated in the local checks carried out by the British Consulate General
Guangzhou and both of them were asked to confirm the Appellant’s employment
with Jinmei Restaurant. They have each provided a statement with details of the
conversation they each had with the person who telephoned from the British
Consulate General (Appendix e and f, Page 29 – 35, and 36 - 43).
16. From the telephone conversation they have had with the BC Guangzhou, both
Mr Li and Mr Xu were able to confirm that the Appellant is employed by the
restaurant, and is holding the second chef position since September 2008. After
the person from BC Guangzhou has spoken to Mr Li and Mr Xu, she has also
telephoned the Appellant, who has also confirmed the details of his employment.
Hence, the Appellant was unable to comprehend why the ECO would state they
were unable to confirm this employment either.
17. The Appellant has explained in his own statement (Appendix g, Page 44 -
52), on 11th
May 2009 before the person from BC Guanzghou has telephoned, he
was at Zhuhai People’s Hospital picking up his mother who was being
discharged on that same day. Mr Zhang stated that his mother was admitted into
hospital on 29th
April 2009 due to having blood in her stool, but during the 12
days hospital admission, the doctors have diagnosed his mother to be suffering
from Rectal Adenocarcinoma and metastasis of both lungs, doctor’s diagnostic
and X-Ray examination report to confirm this (Appendix J to N, page 67 - 76).
18. The Appellant has also stated in his statement before his mother’s discharge, the
doctor has informed him that his mother’s cancer is terminal and she only has
months left. Mr Zhang was originally given a day of leave because he was
6. picking his mother up from the hospital, but he decided to cancel the second half
day of leave with the Director of production Mr Runtang XU because his mother
was deeply distraught by the bad news, she therefore would like to be alone. Mr
Zhang added in his statement that he had received the telephone call from
Consulate General straight after the conversation he has had with Mr Xu.
Therefore, different indication were given to the person telephoned from the
Consulate General by Mr Manchi Li, Mr Runtang Xu and the Appellant about
whether he is working on that day. Hence, misunderstanding occurred.
19. As the Appellant was not provided with the Respondent bundle, he could only
assume that this is the reason that made the ECO believe he is not employed by
Jinmei Restaurant as claimed. Furthermore, Mr Zhang has stated in his statement
that finding out his mother is suffering from terminal cancer is a very upsetting
news, and on the same day when the Respondent has telephoned, he should have
clarified his situation better and may be it would make a difference to the result
of his application. The Human Resources Department of Jinmei Restaurant has
provided attendance record of the Appellant to show that he is employed as
claimed (Appendix h, page 53 – 59).
20. In the statement provided by Mr Manchi Li he confirmed that he was the
signatory of both of Mr Zhang’s reference letters provided by Deyue Fang and
Jinmei Restaurants. Mr Li was the kitchen supervisor of Deyue Fang Restaurant,
but when he departed from his past employment to take up the Vice Executive
Chef position at Jinmei Restaurant, he has persuaded the Appellant and some
other skilful chefs to go to the new employment together. Therefore, he is still
the Appellant’s superior in Jinmei Restaurant (Appendix f, Page 36 - 43). Deyue
Fang restaurant and Jinmei Restaurant have also provided Mr Li’s employment
record to confirm he was also employed at both restaurants (Appendix d and I,
page 27 – 28, and page 60 - 66).
21. In the refusal notice, the ECO has mentioned that Mr Zhang has worked for
Deyue Fang Restaurant since 1983 to 2008, which did not coincide with the
reference letter provided. When confronting Mr Zhang, he has no idea how an
extra 20 years of work experience in Deyue Fang Restaurant came from. Mr
Zhang could only suggest that before he handed his application the visa
application centre, he has asked the Guangzhou Qiaolian Translation Company
which is located nearby to the Tianhe visa application centre to fill in the
application form for him, in order for the translation company to get the most
accurate information, he even provided both of his reference letters as well as
confirming the dates by mouth. Mr Zhang has therefore no idea how this mistake
can be made (Appendix g, Page 44 - 52).
22. Mr Zhang’s current and past employers have provided additional supporting
documents to prove that the Appellant is employed as claimed. From the
documentations, statements provided the Appellant is indeed employed as
claimed. The ECO came to the conclusion that Mr Zhang is not employed by
either restaurants is due to misunderstanding and miscommunication.
The Evidence
7. 23. In support of this appeal, the Appellant had provided additional supporting
evidence from both his past and current employers to prove that he is indeed
employed as claimed and he therefore is intend to take up employment as
specified in his work permit as required by Paragraph 128 (iv) of HC395.
Therefore, no false representation has been made and no dales documentations
have been submitted in relation to the Appellant’s application. The application
hence should not have been refused under Paragraph 320(A) of HC395.
The Conclusion
24. There is no doubt that the Appellant is in Possession of a genuine work permit
issued by the UK Border Agency (Work Permits (UK)) after they are satisfied
that the Appellant’s UK prospective employer is capable of offering a genuine
vacancy; The Appellant have also provided additional supporting evidence from
both of his past and present employers to prove that he is employed as claimed.
The ECO came to the conclusion that they are unable to confirm that the
Appellant is employed by either restaurants are mainly due to miscommunication
and misunderstanding. It was not because pf false representation and false
documentation was submitted. Therefore the Appellant meets the requirements
of paragraph 128 (iv) of HC 395 and the refusal under Paragraph 320(7A) of
HC320 should be withdrawn.
The Final Submission
25. Given these conclusions, I humbly request this appeal to be allowed and the
Appellant to be admitted to the U.K. to take up the employment as specified on
the Work Permit.
