Date: 20101217
Docket: IMM-6162-09
Citation: 2010 FC 1306
Halifax,
Nova Scotia, December 17, 2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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PARAMJIT SINGH
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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Docket: IMM-6164-09
BETWEEN:
NIRVAIR SINGH
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
Docket: IMM-6165-09
BETWEEN:
JAGTARAN SINGH
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of
a decision by a visa officer (the officer) at the Canadian High Commission in
New Delhi, India, dated October 13, 2009, wherein the officer denied the
applicants’ applications for temporary work permits.
[2]
The applicants request:
1. That the decision of the officer be quashed and the claim remitted to the
Immigration Section of the High Commission of Canada in New Delhi, India, for
reconsideration by a different officer;
2. Such further and other
relief as may be advised and this Honourable Court considers appropriate in the
circumstances.
Background
[3]
Paramjit
Singh is a citizen of India, born on August 30, 1989. He trained to
become a Ragi (monk/priest) for five years in Moga in the province of Punjab, India, beginning
in April 1998. From 2004 to 2007, he worked as a Ragi in Nairobi after
which he returned to India.
[4]
Nirvair
Singh is a citizen of India born on March 25, 1983. He trained to
become a Ragi for five years in Moga in the province of Punjab, India, beginning
in June 1992.
[5]
Jagtaran
Singh is a citizen of India born on May 6, 1972. He trained to become
a Ragi for five years in Moga in the province of Punjab, India, beginning
in June 1987.
[6]
The
applicants’ duties as Ragis consist of, among others, delivering daily prayer
services, hymns, songs and sermons. The prayers take place between 3:30 a.m.
and 6:45 a.m. in the morning and 4:30 p.m. and 9:30 p.m. in the evening.
[7]
In
2008, the Secretary of the Nanaksar Satsang Sabha of Ontario heard the
applicants perform as a group at the Nanaksar Gurdwara in Moga, India. The
Secretary was impressed with the performance and recommended them to the
Executive Committee of the Nanaksar Satsang Sabha of Ontario. Following
this, they were then invited to work at the Nanaksar Satsang Sabha Gurdwara
(Sikh temple) in Brampton (the Brampton Gurdwara).
[8]
The
Brampton Gurdwara is part of an international chain of Gurdwaras. The
headquarters is in New Delhi where the applicants currently work.
[9]
The
Brampton Gurdwara obtained a positive labour market opinion (LMO) in June 2009
for four Ragi positions each at a salary of $36,000 per year plus lodging and
other expenses. In August 2009, all three applicants applied for temporary work
permits to work as Ragis at the Brampton Gurdwara, pursuant to this
positive LMO.
[10]
On
October 13, 2009, the officer conducted three separate interviews of the
applicants. Their applications were refused on the basis that the officer was
not satisfied as to the bona fides of the applications, that they met
the requirements of the job or that they would leave Canada at the end
of the authorized stay.
Officer’s Decision
[11]
The
officer provided one conclusion in the Computer Assisted Immigration Processing
System (CAIPS) notes for all three applicants.
[12]
The
officer’s refusal letter indicates through a checked box that the applicants
did not meet the requirements of the job as specified in the job offer. In
addition, the officer handwrote that the applicants had insufficient knowledge
of the religion and its teachings and had provided inconsistent answers.
[13]
In
the CAIPS notes, the officer questioned the bona fides of the applicants.
She was not satisfied that they were genuine religious workers and would leave Canada when
requested to do so.
[14]
The
officer was concerned with inconsistencies in the responses of the applicants
regarding their activities the morning of the interview, the size of the
Canadian congregation and what their duties would be at the Brampton Gurdwara.
Further, the officer noted that the applicants’ religion taught them not to
accept money for their services, yet they were to be paid a salary beyond their
living expenses while in Canada.
[15]
As
such, the officer refused the applications for temporary work permits.
Issues
[16]
The
applicants submitted the following issues for consideration:
1. Did the immigration officer
err in her assessment of the bona fides of the applicants’ applications
for work permits by failing to consider the applicants’ experience letters?
2. Did the immigration officer
err by failing to consider the principle of dual intent set out in subsection
22(2) of the Immigration and Refugee Protection Act?
3. The weight to be
given to the officer’s affidavit.
4. Whether the officer
erred in making a negative inference with respect to the applicants’ salaries
in Canada when she
assessed the bona fides of the applications.
5. Whether the
officer’s determination that the applicants had made inconsistent statements
was unreasonable.
6. Whether costs should
be awarded to the applicants.
[17]
I
would rephrase the issues as follows:
1. What is the appropriate
standard of review?
2. Did the
officer base her decision on an erroneous finding of fact made without
considering the material before her?
3. Did the
officer breach a duty of fairness to the applicants by not alerting them to her
concerns about the veracity of their experience letters?
4. Did the officer
ignore the applicants’ right to enter Canada with a dual intent?
5. Did the officer make
an unreasonable non-credibility finding?
6. Should costs be
awarded to the applicants?
Applicants’ Written Submissions
[18]
The
applicants submit that the officer did not consider the letters outlining their
experience and training as Ragis. This was unreasonable as the letters were
positive indicators of their ability to meet the requirements of the job in Brampton.
[19]
In
addition, the applicants submit that the officer applied a broad generalization
about the credibility of letters from Indian employers and failed to consider
the actual letters before her, amounting to a breach of natural justice. If she
had concerns about the veracity of the letters, the officer should have
requested further documentation. By not doing so, the officer put the
applicants in a position where they could not satisfy her of their experience
regardless of whether they provided the documentation requested by CIC.
[20]
The
applicants also provided detailed descriptions during their interview about
their training, experience as Ragis, the daily routine at the Gurdwara, their
musical skills and information about their religion. Yet, the officer concluded
that all three applicants did not meet the job requirements and had
insufficient knowledge of the religions and its teachings. The applicants
submit that this demonstrates that the officer did not consider the information
the applicants provided during their interview in reaching her decision.
[21]
The
applicants submit that the officer erred by not giving any weight to the assessment
by a previous officer who noted each applicant’s experience as a Ragi and
stated that the applicants met the Human Resources and Social Development
Canada (HRSDC) requirements.
[22]
The
applicants submit that it was unreasonable for the officer to find their
responses inconsistent. Any differences between their answers were small and
may be attributed to the different roles they played in the services. Their
correct answers were consistent with the job offer and are evidence of their
credibility and experience as Ragis and they should not be penalized for not
knowing the size of the congregation in Canada. The officer
unreasonably concluded that they lacked sufficient knowledge of the job in Canada as she did
not consider the information they each provided in the interview.
[23]
The
applicants submit that they would receive a salary of $36,000 to cover living
expenses and although they did not explain that they would donate any excess
above living costs to charity, there is nothing to suggest the salary was
incentive for the applicants to stay in Canada unlawfully.
The negative finding regarding the salary was unsupported and led to the
assessment of the bona fides of the applicant.
[24]
The
applicants submit that the officer failed to apply the principle of dual intent
of subsection 22(2) of the Act. The applicants were permitted to have the
intention of becoming permanent residents as long as they returned to India at the end
of the authorized stay. The applicants provided sufficient evidence of ties to
India to show that
they would not stay in Canada beyond the authorized period. In particular,
Paramjit Singh provided evidence of his previous travel to and return from Kenya, not considered
by the officer, which is further evidence that he would not overstay the
temporary work permit.
[25]
While
the officer has acknowledged that her handwritten comments about the lack of
knowledge of the religion were erroneous, it is improbable that these reasons
did not form part of her actual reasons for refusal.
[26]
The
applicants submit that the officer is improperly using her affidavit to improve
upon her reasons and her affidavit should not be given any weight. For example,
they submit that the officer did not indicate concerns with credibility in the
refusal letter or the interview but now states that her decision focused around
the applicants’ lack of credibility. In addition, her reasons in the refusal
letter should be taken at face value since they were entered closer in time to
the decision than the new affidavit.
[27]
The
applicants submit that the numerous significant errors and inconsistencies in
the officer’s CAIPS notes and affidavit have caused significant delay and
hardship to the applicants and they should be awarded costs.
Respondent’s Written Submissions
[28]
The
respondent submits that the fact that the officer was not convinced by the
letters of experience does not mean she did not consider them. She was only
required to acknowledge evidence before her which was relatively significant.
Since the officer sees many of these letters which are fictitious, it was
reasonable for her to require more than just the letters as evidence of
experience. The officer did not refer to these letters because reviewing
letters such as these is a routine part of her job.
[29]
The
respondent submits that an assessment by a previous officer based on the LMO cannot
be used as evidence of the applicants’ experience because the LMO assumes the
truth of all information in the applicants’ applications and the officer’s
assessment merely acknowledges that the training and experience satisfy the
HRSDC requirements. The officer deciding the visa application must make her own
assessment.
[30]
The
respondent submits that the inconsistent answers of the Ragis raised serious
concerns for the officer as to whether they were a group. The inconsistencies
were not small. Getting some answers correct about the prospective employer
does not cancel out the applicants’ wrong answers, especially when they are
substantial in nature.
[31]
The
respondent acknowledges that the handwritten statement that the applicants
lacked religious knowledge was erroneous. However, the respondent submits that
this is not fatal to the decision because the decision was wholly based on
other concerns: the inconsistent answers, lack of basic knowledge about the
employer, the serious breach of faith made by accepting a salary above and
beyond the living expenses.
[32]
The
respondent submits that the non-credibility finding was reasonable. The
applicants admitted that the salary went against their ethical obligations and
never indicated that they would give the remainder to charity.
[33]
The
officer’s finding that the applicants were using the work program to facilitate
access to Canada should be read as using the program to facilitate unlawful entry
to Canada which was
part of her position to assess and was not ignoring the principle of dual
intent.
[34]
The
respondent submits that the applicants have not raised any reviewable errors as
none of the findings were unreasonable and the officer did not infringe on the
applicants’ right to enter Canada with dual intent.
Analysis and Decision
[35]
Issue
1
What is the appropriate
standard of review?
Refusal of a temporary work
permit is an administrative decision made within the officer’s legislative
authority and is ostensibly a determination of fact (see Samuel v. Canada (Minister of
Citizenship and Immigration), 2010 FC 223 at paragraph 26). In accordance
with the direction of the Supreme Court of Canada, administrative
fact-finding is afforded a high degree of deference and reasonableness is the
appropriate standard of review for the officer’s factual determination (see Canada
(Citizenship and Immigration) v. Khosa, 2009 SCC 12,
[2009] 1 S.C.R. 339 at paragraph 46).
[36]
However,
any issues that go to the fairness of an impugned decision must be decided on a
standard of correctness. No deference is afforded a decision-maker in this
regard and “it is up to this Court to form its own opinion as to the fairness
of the hearing” (see Gonzalez v. Canada (Minister of
Citizenship and Immigration), 2008 FC 983 at paragraph 16).
[37]
Issue
2
Did the officer base her decision on an
erroneous finding of fact made without considering the material before her?
The officer is expected to
acknowledge and analyze the relevant evidence before her (see Cepeda-Gutierrez v. Canada (Minister of Citizenship & Immigration) (1998), 157 F.T.R. 35, [1998] F.C.J. No. 1425 (QL)
at paragraph 17). A court may infer that the officer made an erroneous
finding of fact if the officer failed to mention evidence before her which was
relevant and pointed to a different conclusion than that which she reached (see Cepeda-Gutierrez
above, at paragraph 15).
[38]
The refusal letter stated that the applications were refused
because the applicants did not meet the requirements of the job. The applicants
each submitted two letters outlining their previous work experience and training
as Ragis. Since the officer found that the applicants did not meet the
requirements of the job offer, these letters were relevant and pointed to a
different conclusion than the one she reached. She was required to acknowledge
and analyze them.
[39]
The officer stated in her affidavit that reviewing letters such as
these is her standard practice and that is why they were not referred to
directly. However, even if the officer sees and considers letters of this type
in her position, it remains that she had a legal duty to acknowledge these
specific pieces of evidence for this application and the failure to do so was
unreasonable and constitutes a reviewable error.
[40]
Issue
3
Did the
officer breach a duty of fairness to the applicants by not alerting them to her
concerns about the veracity of the experience letters?
An officer is not generally
under a duty to inform an applicant about concerns regarding the application
which arise directly from the requirements of the legislation or regulations
(see Hassani v. Canada (Minister of Citizenship and Immigration), 2006
FC 1283, [2007] 3 F.C.R. 501 at paragraphs 23 and 24; Gulati v. Canada
(Minister of Citizenship and Immigration), 2010 FC 451 at paragraph 43).
[41]
However,
an officer is obliged to inform an applicant of any concerns related to the
veracity of documents and is required to make further inquires (see Kojuri
v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1389 at paragraphs 18 and
19; Olorunshola v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1056, 66 Imm. L.R. (3d)
192 at paragraphs 29 and 33; Salman v. Canada (Minister of
Citizenship and Immigration), 2007 FC 877, 63 Imm L.R. (3d) 285
at paragraphs 12 and 16).
[42]
The
officer stated in her affidavit regarding the past experience letters submitted
by the applicants, that the office “sees many such letters which turn out to be
fictitious.” As such, she noted that she requires “more than the letters,
for instance, newspaper cut outs, photos of them practicing or letters of
reference, to properly corroborate claims of training, knowledge &
experience.” However, the applicants were not put on notice that the officer
was concerned with the veracity of the letters and were not requested to
present further documents to corroborate the letters. This was an error in law.
[43]
Based on the above two issues, I would conclude
that the officer’s decision breached the duty of fairness to the applicants and
it was also unreasonable in that the officer based her decision on an erroneous
finding of fact made without regard to the material before her. Consequently, I
would remit the applications to another officer for reconsideration.
[44]
Because of my findings on the above issues, I
need not deal with Issues 4 and 5.
[45]
Issue 6
Should
costs be awarded to the applicants?
The
applicants seek costs of $2,500 each. Under Rule 22 of the Federal Courts
Immigration and Refugee Protection Rules, SOR/93-22, costs are only to be
awarded in immigration cases where “special reasons” exist. Special reasons may
exist where one party acts in a manner that is unfair, oppressive, improper, in
bad faith or where there is conduct that unnecessarily or unreasonably prolongs
the proceedings (see Manivannan v. Canada (Minister of Citizenship and
Immigration), 2008 FC 1392, 77 Imm. L.R. (3d) 193 at paragraph 51).
[46]
This
Court has held that the “threshold
for ‘special reasons’ within the meaning of Rule 22 is high” (see Yadav v. Canada (Minister of
Citizenship and Immigration), 2010 FC 140, 8 Admin. L.R. (6th) 86 at
paragraph 39). Even where the pace of the application processing is slow,
special reasons to award costs will not often exist (see Uppal v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1133, 141 A.C.W.S. (3d) 831 at
paragraph 8).
[47]
In
this case, the applicants have failed to establish any behaviour
which would qualify as special reasons. As such, I am not prepared to make an
award of costs.
[48]
The
application for judicial review is therefore allowed.
[49]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[50]
THIS
COURT ORDERS that:
1. The application for
judicial review is allowed, the decision of the officer is set aside and the
matter is remitted to a different officer for redetermination.
2. No order for costs
shall issue.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Immigration and Refugee Protection Act, S.C. 2001, c. 27
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22.(2) An
intention by a foreign national to become a permanent resident does not
preclude them from becoming a temporary resident if the officer is satisfied
that they will leave Canada by the end of the period authorized
for their stay.
. . .
72.(1)
Judicial review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
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22.(2)
L’intention qu’il a de s’établir au Canada n’empêche pas l’étranger de
devenir résident temporaire sur preuve qu’il aura quitté le Canada à la fin
de la période de séjour autorisée.
. .
.
72.(1) Le contrôle judiciaire
par la Cour fédérale de toute mesure — décision, ordonnance, question ou
affaire — prise dans le cadre de la présente loi est subordonné au dépôt
d’une demande d’autorisation.
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Federal Courts Immigration and Refugee
Protection Rules,
SOR/93-22
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22.No costs shall be awarded to or payable
by any party in respect of an application for leave, an application for
judicial review or an appeal under these Rules unless the Court, for special
reasons, so orders.
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22.Sauf
ordonnance contraire rendue par un juge pour des raisons spéciales, la
demande d’autorisation, la demande de contrôle judiciaire ou l’appel
introduit en application des présentes règles ne donnent pas lieu à des
dépens.
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