Date: 20101209
Docket: IMM-385-10
Citation: 2010
FC 1268
Ottawa, Ontario,
December 9, 2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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MOHAMMAD TAYAB VERYAMANI
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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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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 of a visa officer (the officer) at the Canadian Consulate General in
Buffalo, New York, U.S.A., dated November 20, 2009, wherein the officer denied
the applicant’s application for permanent residence as a member of the Federal
Skilled Worker class.
[2]
The
applicant requests an order quashing the decision of the officer and
remitting the matter back for re-determination by a different officer.
Background
[3]
Mohammad
Tayab Veryamani is a citizen of Pakistan, resident in the United States.
[4]
In
September 2008, the applicant submitted an application for permanent residence
as a skilled worker to the Canadian Consulate in Buffalo, New York. His application was
refused due to insufficient points on November 20, 2009.
Officer’s Decision
[5]
According
to the refusal letter and the Computer Assisted Immigration Processing System (CAIPS)
notes the applicant was awarded points in the manner discussed below.
[6]
Ten
points were awarded for age.
[7]
Twenty-Five
points were awarded for education, notwithstanding concerns that the applicant
began his Masters degree before passing his Bachelors degree. As well, the
officer was concerned that a letter from Sind University stated that the applicant completed his final
Masters examinations two years later than the date on his Masters degree certificate.
[8]
Nineteen
points were awarded for work experience. The officer did not find the undated
letters of employment from SpeedTrack and Jack’s Drive In Grocery to be
acceptable evidence of employment or evidence that the applicant’s experience
was managerial in nature. The applicant was given three months to submit a
signed and dated letter from his current employer with current contact
information. The applicant’s work experience as a purchasing officer for
Pakistan Airlines was accepted which amounted to three years of work experience
in the past ten years.
[9]
Ten
points were awarded for official language capacity in English on the basis of
an international English language testing system test. No points were awarded
for French language ability. The applicant did not submit the results of an
approved French language test. Nor was the officer satisfied that the applicant
had basic French language proficiency based on his hand-written submission
containing French vocabulary or the letter from the Alliance Francaise de
Houston that stated the applicant had taken some private French instruction at
some point prior to April 2008.
[10]
Zero
points were awarded for arranged employment in Canada. The applicant submitted an undated letter
of an employment offer as a retail store manager at an Esso service station.
The officer found that there was no evidence in the Human Resources and Skills
Development Canada (HRSDC) database that such an offer had been made or
approved and the officer did not find it reasonable to believe that the HRSDC application
was still pending. The applicant was given three months to provide evidence of
a HRSDC approved job offer. The applicant later supplied another non-HRSDC
approved job offer as accounts assistant with the Pakistan Consulate General of
Pakistan. The officer did not find this offer to be credible.
[11]
Zero
points were awarded for adaptability since the applicant’s spouse was not to
accompany him and the applicant’s cousin in Canada was not a close enough relation to
qualify. The refusal letter mistakenly indicated that the applicant received
ten points for adaptability.
[12]
The
applicant received 64 points and therefore his application for permanent
residence based on the economic class of federal skilled workers was denied.
[13]
The
officer received a request from the applicant to reconsider the application.
This request was denied.
Issues
[14]
The
applicant submitted the following issues for consideration:
1. What is the standard
of review?
2. Were the officer’s
reasons for the decision deficient?
3. Was the applicant
denied fairness because the officer should have provided the applicant with an
opportunity to address her concerns?
4. Did the officer err
by failing to consider the request for reconsideration?
5. Should costs be awarded
to the applicant?
[15]
I
would rephrase the issues as follow:
1. What is the
appropriate standard of review?
2. Did the officer fail
to provide reasons for the decision?
3. Did the officer
breach the duty of fairness by not providing the applicant with an opportunity
to respond to her concerns?
4. Was the officer
under an obligation to reconsider the application?
Applicant’s Written Submissions
[16]
The
applicant submits that the refusal letter from the officer failed to explain
why the applicant did not receive any points for the job offer from Esso or for
the cousin that he had in Canada. The applicant concedes that the CAIPS
notes clarified these points. However, he submits that the CAIPS notes do not
form part of the reasons of the decision because they were not provided to him
at the time of the refusal. The applicant submits that the lack of reasons
amounts to a breach of the duty of fairness.
[17]
The
applicant submits that he provided evidence of previous work experience and of
arranged employment in Canada. The applicant submits that if the officer
had concerns about the veracity of these documents, the applicant should have
been given the opportunity to provide further evidence, either written or oral.
The denial of this opportunity, he submits, amounted to a breach of the duty of
fairness.
[18]
The
applicant submits that the officer failed to reconsider his application upon
his request. He submits that visa officers are not functus officio and
given the miscalculation in his points and the failure to provide reasons, the
officer was under a legal obligation to reconsider the application.
Respondent’s Written Submissions
[19]
The
respondent submits that decisions of visa officers regarding the eligibility
for permanent residence under the federal skilled worker class are reviewable
on a standard of reasonableness and are entitled to a high degree of deference.
Any issues related to natural justice and procedural fairness involving visa
officers are generally reviewed on the basis of correctness.
[20]
The
respondent submits that the case law is clear that CAIPS notes form part of the
reasons for the decision. Further, there was no requirement that the applicant
receive the CAIPS notes prior to initiating a leave application for judicial
review. Since the CAIPS notes form part of the reasons, there is no basis for
finding that the reasons were insufficient.
[21]
The
respondent submits that it was reasonable for the officer to find that there
was insufficient evidence of work experience which was managerial in nature. The
respondent notes that the letters from past employers are brief and do not
expressly describe any managerial duties. In addition, the applicant requested
to be evaluated under the National Occupation Classification (NOC) of purchasing
manager. The respondent submits that the applicant provided little information
to the officer about the nature of his work experience or how it qualified
under this NOC.
[22]
The
respondent submits that the applicant has the onus to show that his application
meets the requirements for permanent residence and he did not satisfy this
onus. In addition, the officer was not required to solicit further evidence
from the applicant or advise the applicant of her concerns.
[23]
The
respondent notes that the applicant was given three months to resubmit an offer
of employment which was approved by HRSDC. The respondent submits that the
officer was not obliged to continue to provide the applicant with additional
opportunities to supplement his application when he did not submit a HRSDC approved
offer.
[24]
The
respondent submits that all of the concerns upon which the applicant requested
reconsideration were addressed and explained in the CAIPS notes. The officer
was under no obligation to reconsider the applicant’s application.
Analysis and Decision
[25]
Issue
1
What is the appropriate
standard of review?
A standard of review
analysis need not be conducted in every case. Where the standard of review
applicable to a particular issue before the court is determined in a
satisfactory manner by previous jurisprudence, the reviewing court may adopt
that standard of review (see Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190,at paragraph 57).
[26]
Previous jurisprudence has established that a visa officer’s
determination of eligibility for permanent residence under the skilled worker
class involves findings of fact and law and is reviewable on a standard of
reasonableness (see Malik v. Canada (Minister of Citizenship and
Immigration), 2009 FC 1283 at paragraph 22).
[27]
Any
issues of procedural fairness or natural justice involving visa officers,
however, are evaluated on a correctness standard (see Miranda v. Canada
(Minister of Citizenship and Immigration), 2010 FC
424 at paragraph 10; Khosa v. Canada (Minister
of Citizenship and Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339
at paragraph 43).
[28]
Issue 2
Did the officer fail to provide reasons for the decision?
The applicant submits
that the CAIPS notes do not form part of the reasons for the decision because
they were not provided at the time of the refusal. However, the case law is
clear that the CAIPS notes explicitly form part of the reasons for the
decision. For example, Mr. Justice Michael Phelan held in Ziaei v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1169, 66 Imm. L.R. (3d) 287 at
paragraph 21:
It
is well recognized that the visa decision letter may not contain all of the
reasons for a decision. For that reason, the CAIPS Notes form an integral part
of the reasons.
[29]
Likewise,
Mr. Justice Yvon Pinard held in Toma v. Canada (Minister of
Citizenship and Immigration), 2006 FC 779, 295 F.T.R. 158:
10. In
the context of decisions by visa officers, it is well established that CAIPS
notes may form part of the reasons for decision …
12. It
is my opinion that the visa officer provided reasons for his decision in his
letter to the applicants and additionally, the CAIPS notes contain reasons for
his decision. These documents meet any requirement to provide reasons for the
decision. Therefore, there was no breach of the duty of procedural fairness.
[30]
In
addition, there is no requirement for the applicant to receive the CAIPS notes
at the time of the refusal letter or even prior to initiating a leave
application for judicial review. This Court’s decision in Wang v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1298, 302 F.T.R. 127, is directly on
point. In that decision, Mr. Justice Robert Barnes noted at paragraph 23 that:
.
. . Rule 9 contemplates that the provision of detailed reasons for an
immigration decision may occur after the commencement of an application for
judicial review. The respondent met its obligation under that Rule and cannot
be taken to have breached a natural justice requirement by failure to abide by
some other standard.
[31]
Mr. Justice
Barnes also held at paragraph 22 that:
It
is not open to the Applicant to complain that the CAIPS notes were not provided
in advance of the initiation of this application because her counsel failed to
request them at an earlier stage.
As in Wang above, the applicant in the
case at bar did not request the CAIPS notes until after he had initiated this Court
proceeding for judicial review.
[32]
Given
the above jurisprudence, the officer provided reasons for the decision through
a combination of the refusal letter and the CAIPS notes.
[33]
Issue
3
Did the officer breach
the duty of fairness by not providing the applicant with an opportunity to
respond to her concerns?
The applicant submits that the
officer was required to apprise him of any concerns regarding his application
so that he could respond to them. The respondent submits that there was no such
obligation.
[34]
This
Court has held that a visa officer is not under a duty to inform the applicant
about any 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).
[35]
However,
a visa officer will be under an obligation to inform the applicant of any
concerns related to the veracity of documents and will be required to make
further inquires (see Hassani above, at paragraph 24).
[36]
Even
where a visa officer must make further inquires into the credibility of
documents, the onus remains on the applicant to satisfy the visa officer of all
parts of his application. The officer is under no obligation to ask for
additional information where the applicant’s material is insufficient. Nor is
the officer obliged to provide the applicant with several opportunities to
satisfy points he may have overlooked (see Madan v. Canada (Minister of
Citizenship and Immigration) (1999), 172 F.T.R. 262 (F.C.T.D.), [1999]
F.C.J. No. 1198 (QL) at paragraph 6; Prasad v. Canada (Minister of
Citizenship and Immigration), 34 Imm. L.R. (2d) 91, [1996] F.C.J. No.
453 (QL) at paragraph 7).
[37]
The
officer in this case was not required to apprise the applicant of her concerns
because they arose directly from the Immigration and Refugee Protection
Regulations, SOR/2002-227 (the Regulations), as discussed below.
Previous Employment
[38]
The
applicant requested to be assessed under the NOC 0113 - purchasing manager. As
indicated by the CAIPS notes, the officer’s concern with the applicant’s
letters of work experience was that they did not demonstrate any managerial
experience required by NOC 0113. This concern arises directly from the Regulations
as paragraphs 75(2)(a, b, c) clearly indicate that a foreign national is only a
skilled worker if s/he can show one year of full-time employment where s/he
performed the actions in the lead statement of the NOC and a substantial number
of the main duties. (see also Gulati v. Canada (Minister of
Citizenship and Immigration), 2010 FC 451 at paragraph 43). As such,
the officer was under no obligation to inform the applicant of her concerns.
Arranged Employment
Offer
[39]
The
applicant’s initial application contained a job offer as a retail store manager
at an Esso service station. This was not accompanied by the required HRSDC
approval letter. The applicant was given 90 days to submit an HRSDC approved
offer of employment. However, the applicant submitted an alternate non-HRSDC
approved offer of a definite duration of two years which lacked any description
of the duties the position would entail. The applicant failed to submit an
offer of arranged employment which met the requirements of subsection 82(2) of
the Regulations. As such, the officer was not required to continue to inform
the applicant of her concern arising from the Regulations and provide him further
opportunities to improve his application.
French Language Ability
[40]
The
onus was on the applicant to satisfy the officer of his French language
ability. The applicant submitted several pages of French vocabulary and a
letter stating that he took some private instruction in French as evidence of
his French language ability. The officer did not find this to be satisfactory,
informed the applicant, and requested he submit the results of a French
language test which he chose not to do. The officer was not required to further
indicate her concerns.
Adaptability
[41]
The
applicant was not permitted to receive points for his cousin in Canada. Subsection
83(5) of the Regulations is clear what familial relationships will receive
points. The officer was under no duty to inform the applicant that his cousin
would not qualify.
[42]
The
officer was under no duty to advise the applicant of those concerns which arose
directly from the Act and the Regulations. Despite this, the applicant was
informed of incomplete and insufficient aspects of his application and given
another opportunity to submit further information. There was no breach of any
duty of fairness towards the applicant.
[43]
Issue
4
Was the officer under an
obligation to reconsider the application?
The applicant
submits that the officer was under a legal obligation to reconsider his
application following his request.
[44]
The
applicant is correct to assert that immigration officers are not functus
officio (see Kurukkal
v. Canada (Minister of
Citizenship and Immigration), 2009 FC 695, 81 Imm. L.R. (3d) 263 at
paragraphs 74 and 75). Yet, this does not create an obligation on the officer
to reopen the application. Mr. Justice Robert Mainville held that a visa
officer may reconsider a decision based on new information, but is under no
obligation to do so except in circumstances of bad faith (see Malik above,
at paragraph 44).
[45]
The
officer was under no obligation to reconsider the application. In addition, the
applicant requested the case be reopened for reasons which were all adequately
explained in the CAIPS notes and he did not produce new information. The
applicant has failed to establish that the officer erred by not reconsidering
the application.
[46]
The
applicant, at the hearing of this matter, indicated that the request for costs
was no longer being pursued.
[47]
As
a result of my findings on the issues put forward by the applicant, the
application for judicial review must be dismissed.
[48]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[49]
IT IS
ORDERED that the
application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Immigration and Refugee Protection Act, S.C. 2001, c. 27
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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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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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Immigration
and Refugee Protection Regulations, SOR/2002-227
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75.(2) A foreign
national is a skilled worker if
(a) within the
10 years preceding the date of their application for a permanent resident
visa, they have at least one year of continuous full-time employment
experience, as described in subsection 80(7), or the equivalent in continuous
part-time employment in one or more occupations, other than a restricted
occupation, that are listed in Skill Type 0 Management Occupations or Skill
Level A or B of the National Occupational Classification matrix;
(b) during
that period of employment they performed the actions described in the lead
statement for the occupation as set out in the occupational descriptions of
the National Occupational Classification; and
(c) during
that period of employment they performed a substantial number of the main
duties of the occupation as set out in the occupational descriptions of the
National Occupational Classification, including all of the essential duties.
82.(1) In this
section, “arranged employment” means an offer of indeterminate employment in Canada.
(2) Ten points
shall be awarded to a skilled worker for arranged employment in Canada in an
occupation that is listed in Skill Type 0 Management Occupations or Skill
Level A or B of the National Occupational Classification matrix if they are
able to perform and are likely to accept and carry out the employment and
(a) the
skilled worker is in Canada and holds a work permit and
(i) there has
been a determination by an officer under section 203 that the performance of
the employment by the skilled worker would be likely to result in a neutral
or positive effect on the labour market in Canada,
83.(5) For the
purposes of paragraph (1)(d), a skilled worker shall be awarded 5 points if
(a) the
skilled worker or the skilled worker's accompanying spouse or accompanying
common-law partner is related by blood, marriage, common-law partnership or
adoption to a person who is a Canadian citizen or permanent resident living
in Canada and who is
(i) their
father or mother,
(ii) the
father or mother of their father or mother,
(iii) their
child,
(iv) a child
of their child,
(v) a child of
their father or mother,
(vi) a child
of the father or mother of their father or mother, other than their father or
mother, or
(vii) a child
of the child of their father or mother; or
(b) the
skilled worker has a spouse or common-law partner who is not accompanying the
skilled worker and is a Canadian citizen or permanent resident living in Canada.
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75.(2)
Est un travailleur qualifié l’étranger qui satisfait aux exigences
suivantes :
a) il a
accumulé au moins une année continue d’expérience de travail à temps plein au
sens du paragraphe 80(7), ou l’équivalent s’il travaille à temps partiel de
façon continue, au cours des dix années qui ont précédé la date de présentation
de la demande de visa de résident permanent, dans au moins une des
professions appartenant aux genre de compétence 0 Gestion ou niveaux de
compétences A ou B de la matrice de la Classification nationale des
professions — exception faite des professions d’accès limité;
b) pendant
cette période d’emploi, il a accompli l’ensemble des tâches figurant dans
l’énoncé principal établi pour la profession dans les descriptions des
professions de cette classification;
c)
pendant cette période d’emploi, il a exercé une partie appréciable des
fonctions principales de la profession figurant dans les descriptions des
professions de cette classification, notamment toutes les fonctions
essentielles.
82.(1)
Pour l’application du présent article, constitue un emploi réservé toute
offre d’emploi au Canada à durée indéterminée.
(2)
Dix points sont attribués au travailleur qualifié pour un emploi réservé
appartenant aux genre de compétence 0 Gestion ou niveaux de compétences A ou
B de la matrice de la Classification nationale des professions, s’il est en
mesure d’exercer les fonctions de l’emploi et s’il est vraisemblable qu’il
acceptera de les exercer, et que l’un des alinéas suivants s’applique :
a) le
travailleur qualifié se trouve au Canada, il est titulaire d’un permis de
travail et les conditions suivantes sont réunies :
(i) l’agent a
conclu, au titre de l’article 203, que l’exécution du travail par le
travailleur qualifié est susceptible d’entraîner des effets positifs ou
neutres sur le marché du travail canadien,
83.(5)
Pour l’application de l’alinéa (1)d), le travailleur qualifié obtient 5
points dans les cas suivants :
a)
l’une des personnes ci-après qui est un citoyen canadien ou un résident
permanent et qui vit au Canada lui est unie par les liens du sang ou de
l’adoption ou par mariage ou union de fait ou, dans le cas où il
l’accompagne, est ainsi unie à son époux ou conjoint de fait :
(i)
l’un de leurs parents,
(ii) l’un des
parents de leurs parents,
(iii) leur
enfant,
(iv) un enfant
de leur enfant,
(v) un enfant
de l’un de leurs parents,
(vi) un enfant
de l’un des parents de l’un de leurs parents, autre que l’un de leurs
parents,
(vii)
un enfant de l’enfant de l’un de leurs parents;
b)
son époux ou conjoint de fait ne l’accompagne pas et est citoyen canadien ou
un résident permanent qui vit au Canada.
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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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