Date: 20100419
Docket: IMM-4571-09
Citation: 2010 FC 422
Ottawa, Ontario, April 19, 2010
PRESENT: The Honourable Mr. Justice Crampton
BETWEEN:
SONAL HEMRAJ TRIVEDI
HEMRAJ BALWANTRAY TRIVEDI
ASHISH HEMRAJ TRIVEDI
ADITYA HEMRAJ TRIVEDI
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision by an Immigration Counsellor
to refuse to grant the principal Applicant’s request for reconsideration of an
adverse decision on her application for permanent residence.
[2]
For
the reasons that follow, the application is dismissed.
I. Background
[3]
The
Applicants are citizens of India. The principal Applicant applied for
permanent residence as a skilled worker in October 2004. She requested to be
assessed in two occupational categories: Biological Technician and Technologist
(National Occupational Classification (NOC): 2221),
and Landscape and Horticulture Technicians and Specialists (NOC: 2225).
[4]
In
support of her application, the principal Applicant provided, among other
things, two one-page documents from two of her previous employers which briefly
described the duties she performed in her work with them.
[5]
On
November 12, 2008, the principal Applicant submitted a two-page letter from her
current employer, a letter from a company in Canada offering to
employ her as a Horticulture Technologist, and certain other materials.
[6]
On
November 14, 2008, the principal Applicant was sent a letter requesting a
significant amount of information within 90 days. The second paragraph of that
letter stated: “The selection criteria are clearly defined and your eligibility
as a Skilled Worker will be assessed on the basis of the evidence provided by
you.”
[7]
Immediately
under the heading Proof of Experience, on the first page of the letter,
it was stated:
IMPORTANT: In order to determine if you
meet the minimal requirements for continued processing, documents and
information provided by you must demonstrate that you have at least one year of
continuous, full-time employment experience, or the equivalent in continuous,
part-time employment, in one or more occupations that are listed in Skill Type
O management occupations or Skill Level A or B of the National Occupational
Classification matrix (see http://www23.hrdc-drhc.gc.ca/2002/e/generic/materix.pdf.
Pursuant to subsection 75(3) of the IRPA Regulations, if you fail to meet this
minimum requirement, your application shall be refused and no further
processing is required. (Emphasis added in the last sentence.)
[8]
A
few paragraphs later, the letter stated:
At this office, applications are often
refused because applicants fail to provide sufficient information to establish
their eligibility. You are therefore requested to provide a complete, detailed,
and accurate description of your duties. A personal interview is not required
in order to assess your application, nor will we convoke you to interview in
order to collect additional information for the purpose of assessing whether
you meet the criteria established for Skilled Workers. The onus is on you to
provide sufficient documentary evidence to demonstrate that you meet the
requirements. (Emphasis
added.)
[9]
Towards
the end of the letter, the principal Applicant was informed: “We will not
request further information to support your application. You must therefore
submit complete and detailed information and documents at this time.”
[10]
In
December 2008, the principal Applicant responded by sending additional information.
However, no further information regarding her prior employment was provided at
that time.
[11]
On
May 21, 2009, P. Purcell, Second Secretary (Immigration) (the Visa Officer),
sent a letter to the principal Applicant that, among other things, (i) set out
the requirements in subsection 75(3) of the Immigration and Refugee
Protection Regulations, SOR/2002-227, and (ii) explained why the Visa
Officer was not satisfied that the principal Applicant had met those
requirements. An appendix to that letter reproduced the text of subsections
11(1) and 12(2) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 ( IRPA), section 75 of the Regulations and subsection 80(7) of the Regulations.
[12]
In
short, that letter explained the basis for the Visa Officer’s conclusion that
the principal Applicant had not established that she had performed a
substantial number of the main duties of either NOC 2221 or NOC 2225 for at
least one year within the 10 years preceding the date of her application, as
required by subsection 75(2) of the Regulations.
[13]
On
June 26, 2009, the Immigration Section of the Canadian High Commission in New Delhi received a
letter from the principal Applicant. Among other things, the principal Applicant
(i) admitted in that letter that her “job letters were not very descriptive in
nature”; (ii) provided a significant amount of additional information; and
(iii) requested that her application be revisited on the merits. She also
appended to that letter much more detailed letters from her aforementioned
employers.
[14]
The
additional information provided by the principal Applicant was significant
enough to have potentially affected the outcome of her application for
permanent residence.
II. The
Decision Under Review
[15]
On
July 15, 2009, an unnamed Counsellor at the High Commission of Canada in New Delhi replied to
the principal Applicant in a short, one-page, letter. In that letter, the
principal Applicant was informed that (i) her application had previously been
considered on its substantive merits and refused; (ii) she had been provided
with a decision containing the reasons for refusal in the aforementioned letter,
dated May 21, 2009, “thereby fully concluding your application”; and (iii) the
information that she had submitted with her most recent letter was being
returned to her “without review.” The letter concluded by inviting the
principal Applicant to visit Immigration Canada’s website for information on
how to submit a new application.
[16]
The
Applicants seek judicial review of this decision not to reopen the matter for
reconsideration. (Judicial
review was not sought in respect of the Visa Officer’s decision, which was
communicated to the principal Applicant in the letter dated May 21, 2009.)
III. Issues
1.
Did
the Counsellor err by failing to reopen the matter for reconsideration or does
the principle of functus officio apply?
2.
Did
the Counsellor err by failing to give the principal Applicant an opportunity to
disabuse him of any concerns that he may have had?
3.
Did
the Counsellor provide a proper assessment of the substantive elements of the
matter?
IV. Standard of Review
[17]
Insofar as the first and
third issues involve the Counsellor’s exercise of discretion, those issues are reviewable
on a standard of reasonableness (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; and Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 53). However, the
functus officio issue and the procedural fairness question raised by the
second issue are reviewable on a standard of correctness (Dunsmuir, above,
at paras. 79 and 87; and Khosa, above, at para. 43).
[18]
In Khosa, above, at para. 59, reasonableness was articulated by Justice Ian Binnie as
follows:
Where the reasonableness standard applies, it
requires deference. Reviewing courts cannot substitute their own appreciation
of the appropriate solution, but must rather determine if the outcome falls
within "a range of possible, acceptable outcomes which are defensible in
respect of the facts and law" (Dunsmuir, at para. 47). There might
be more than one reasonable outcome. However, as long as the process and the
outcome fit comfortably with the principles of justification, transparency and
intelligibility, it is not open to a reviewing court to substitute its own view
of a preferable outcome.
V. Analysis
A.
Did the
Counsellor err by failing to reopen the matter for consideration?
[19]
The
Applicants submits that (i) the Counsellor has the authority to reopen a matter
after an initial decision has been taken on an application for permanent
residence; and (ii) the failure to have done so in this case constituted a
reviewable error by the Counsellor.
[20]
The
Respondent submits that the principle of functus officio applies because
the Visa Officer made a final decision that was communicated to the principal
Applicant in the letter dated May 21, 2009, thereby concluding the review of
the application for permanent residence.
[21]
The
Respondent further submits that letter dated July 15, 2009 “was merely a
courtesy response letter,” notwithstanding that (i) the Respondent’s written
submissions sometimes refer to the Counsellor’s letter, dated July 15, 2009, as
a “decision,”; and (ii) the Respondent admits that the principal Applicant’s
“request for reconsideration was considered.”
[22]
The
Applicants’ counsel provided an example of a case in which his firm was
involved and in which the Canadian High Commission in New Delhi reconsidered an
application for permanent residence after it was initially refused. The Respondent
admits being aware of at least some cases in which a visa officer’s adverse
decision on an application for permanent residency has been reopened in
exceptional cases.
[23]
The Applicants
note that in Kurukkal v. Canada (Minister of Citizenship and Immigration), 2009 FC 695, 81 Imm.
L.R. (3d) 263, my colleague Justice Anne Mactavish extensively reviewed the
jurisprudence on the doctrine of functus officio and concluded that the
doctrine does not apply in the context of H&C decisions.
[24]
In Kurukkal,
above, the only reason given for refusing the Applicant’s H&C application
was his failure to produce a copy of his wife’s death certificate, which was
“an extremely important piece of evidence” (para. 21). In contrast to the facts
of the case at hand, that information was not within the Applicant’s control,
as he had requested but not yet received the certificate from the appropriate
authority.
[25]
Justice
Mactavish ultimately determined that “the need for flexibility and
responsiveness to changing circumstances and new information in the H&C
assessment process outweighs the desirability of having finality and certainty
in the decision-making process” (para. 74). However, she also noted that, to
prevent H&C applicants from deferring final decisions by repeatedly
submitting additional information, H&C officers would “have to consider
whether the evidence in question was truly ‘new’, or could have been obtained
earlier with the exercise of reasonable diligence” (para. 73).
[26]
In
light of the unsettled nature of the law on this point, Justice Mactavish
certified a question regarding whether the ability of a decision-maker to reopen
or reconsider an H&C application on the basis of further evidence provided
by an Applicant is limited by the doctrine of functus officio.
[27]
The
ruling in Kurukkal, above, on the issue of functus officio was
followed out of judicial comity in Sharma v. Canada (Minister of
Citizenship and Immigration), 2009 FC 786, at para. 6; Malik v. Canada (Minister of Citizenship
and Immigration),
2009 FC 1283, at para. 40; and Abbas v. Canada (Minister of
Citizenship and Immigration) (4 March 2010), IMM-2657-09 (F.C.).
[28]
I intend
to follow the approach adopted in those cases. I therefore find that the
Counsellor was not functus officio after the Visa Officer sent the
letter, dated May 21, 2009, informing the principal Applicant that her
application had been refused.
[29]
I
turn now to the question of whether the Counsellor erred in failing to reopen
the Applicants’ case for reconsideration upon the receipt of significant new information
from the principal Applicant on June 26, 2009.
[30]
There
is no general duty to reconsider an application for permanent residence upon
the receipt of new information and there is no general duty to provide detailed
reasons for deciding not to do so (Baker v. Canada (Minister of Citizenship
and Immigration), [1999] 2 S.C.R. 817, at paras. 21 and 37). Accordingly,
it was not a reviewable error per se for the Counsellor to fail to
reopen the Applicants’ case or to fail to provide detailed reasons for that
decision. The question is whether it was unreasonable for the Counsellor to (i)
decide not to reopen the Applicants’ case upon the receipt of significant
additional information in June 2009; and (ii) fail to provide more detailed
reasons for that decision, i.e., more detailed reasons for why he declined to
exercise his discretion to reopen the case.
[31]
In
this case, the principal Applicant was clearly advised, in the letter dated
November 14, 2008, that the onus was on her to provide sufficient documentary
evidence to demonstrate that she met the requirements of NOC: 2221 and NOC:
2224. Among other things, that letter explicitly stated that her application
“shall be refused”, with no further processing, if she failed to meet that
minimum requirement. The letter then underlined that she should “clearly
describe your job duties for all occupations in which you wish to be assessed.”
Moreover, it drew attention to the significance of the instructions provided
under heading “Proof of Experience” by starting off that section of the letter
with the capitalized word “IMPORTANT.”
[32]
In
short, the principal Applicant was advised in unmistakable terms that she would
be responsible for putting her best foot forward, she was given a full
opportunity to do so, and she was fairly and reasonably warned about the
consequences of not doing so.
[33]
In
contrast to the death certificate that the Applicant in Kurukkal, above,
was unable to obtain on a timely basis from Sri Lankan authorities, the
information that the principal Applicant provided in June 2009 could have been
provided earlier, with the exercise of reasonable diligence on the part of the
principal Applicant.
[34]
Given
the foregoing, I am unable to conclude that it was unreasonable for either the
Counsellor or the Visa Officer to have failed to reopen the matter for
reconsideration, notwithstanding that the information provided by the principal
Applicant in June 2009 may have potentially affected the outcome of her application.
[35]
Moreover,
in view of the clear warning that was provided in the November 14, 2008 letter
regarding the consequences of failing to provide sufficient information in
support of her application, I am unable to conclude that it was unreasonable
for the Counsellor to fail to provide more detailed reasons for why he did not
reopen the matter for reconsideration. His terse explanation for why he did not
exercise his discretion to reopen the matter was not unreasonable in the
circumstances.
[36]
In
the face of the language used in the November 14, 2008 letter, and the emphasis
that was placed on some of that language, the principal Applicant could not
have had a reasonable expectation of receiving more detailed reasons or having
another opportunity to provide additional information. The record as a whole
clearly explained to the principal Applicant why her case was not reopened, and
she was not prejudiced in her ability to seek judicial review of the Counsellor’s
decision before this Court (R. v. Sheppard, [2002] 1 S.C.R. 869, at
para. 33; Za’rour v. Canada (Minister of Citizenship and Immigration),
2007 FC 1281, 321 F.T.R. 120, at para. 20).
[37]
The
Counsellor’s decision was certainly within the “range of possible, acceptable
outcomes which are defensible in respect of the facts and law” in this case. (Dunsmuir,
above.)
[38]
In
the interest of administrative efficiency, it is not unreasonable for the
system of review of applications for permanent residency to be designed in a
way which incentivizes applicants to exercise reasonable diligence in preparing
and submitting their applications, so long as the consequences of failing to do
so are stated clearly and in advance. In this case, those consequences were
very clearly articulated in the letter dated November 14, 2008.
B. Did the Counsellor err
by failing to give the principal Applicant an opportunity to disabuse him of
any concerns that he may have had?
[39]
The
content of the duty of fairness owed to visa applicants is at the low end of
the spectrum (Chiau v. Canada (Minister of Citizenship and Immigration),
[2001] 2 F.C. 297, at para. 41 (C.A.); Kahn v. Canada (Minister of
Citizenship and Immigration), 2001 FCA 345, [2002] 2 F.C. 413, at paras.
30-32; Patel v. Canada (Minister of Citizenship and Immigration), 2002
FCA 55, 23 Imm. L.R. (3d) 161, at para. 10).
[40]
In
this case, the duty of fairness owed to the Applicants was met when the
principal Applicant (i) was provided with a full opportunity to present the
evidence relevant to her case to the Visa Officer; (ii) was warned in clear and
unmistakable terms of the consequences that would flow from failing to provide
sufficient evidence at the outset to make her case; and (iii) had her evidence
fully and fairly considered by the Visa Officer. The principal Applicant also was
provided with detailed reasons explaining why her application was refused and
was provided by the Counsellor with a brief explanation of why he had declined
to exercise his discretion to reopen her case.
[41]
The
letter dated November
14, 2008 made it very clear to the principal Applicant that (i) the onus was on
her to “put her best foot forward”; (ii) she had to submit complete and
detailed information and documents at that time; (iii) further information
would not be requested; and (iv) applications are often refused because
applicants fail to provide sufficient evidence to establish their eligibility.
Given the express language of that letter, the principal Applicant could not
have had any realistic expectation that she would be given an opportunity to provide
additional information or to disabuse either the Counsellor or the Visa Officer
of any concerns that they may have had based solely on the information that she
provided.
[42]
A
visa officer is under no duty to seek to clarify a deficient application (Sharma,
above, at para. 8). To impose such an obligation on a visa officer would be
akin to requiring the visa officer to give advance notice of a negative
decision, an obligation that has been expressly rejected (Ahmed v. Canada
(Minister of Citizenship and Immigration), [1997] F.C.J. No. 940 (QL); Sharma,
above).
[43]
The
cases cited by the Applicants are all distinguishable, as they involved
situations where either (i) the evidence submitted by the Applicant was
determined to be insufficient to support the conclusion reached by the visa
officer (Gandhi v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1054, 31 Imm. L.R. (3d) 64); (ii)
there was no opportunity provided to the Applicant to address concerns that
arose during an interview that the visa officer had with the Applicant (Wang
v. Canada (Minister of
Citizenship and Immigration) (1999), 12 Imm. L.R. (3d) 20 (F.C.T.D.)) or
that arose as a result of information independently obtained by the visa
officer (Huyen v. Canada (Minister of Citizenship and Immigration),
2001 FCT 904; Zaffar v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 680, 21 Imm. L.R. (3d) 316);
(iii) negative inferences that were drawn from the results of an unreasonable
test that the Applicant was requested without notice to write during an
interview (Ayub v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 860, 23 Imm. L.R. (3d) 76); (iv)
the visa officer rejected documentary evidence without conducting more
verification (Huyen, above; Gandhi, above), or (v) the visa
officer failed to consider whether the Applicant qualified on an alternative
basis set forth in the appropriate NOC (Israfil v. Canada (Minister
of Citizenship and Immigration) (1999), 6 Imm. L.R. (3d) 90 (F.C.T.D.)).
[44]
In
conclusion, I find that neither the Counsellor nor the Visa Officer erred by
failing to provide the principal Applicant an opportunity to disabuse them of
any concerns that they may have had, for example regarding the principal
Applicant’s qualifications for the job categories NOC: 2221 and NOC: 2225.
C. Did the Counsellor
provide a proper assessment of the substantive elements of the matter?
[45]
The
Applicants submit that the Counsellor and/or the Visa Officer erred in
providing a proper assessment of the substantive elements of the principal
Applicant’s application because she satisfied the criteria for a positive
immigration assessment.
[46]
Given
that this application is in respect of the Counsellor’s decision, dated July
15, 2009, rather than the Visa Officer’s decision, dated May 21, 2009, it is
not necessary for me to address the allegation that the Visa Officer did not
provide a proper assessment of the substantive elements of the principal
Aplicant’s application. However, having reviewed that assessment in the course
of reviewing the materials relevant to this application, I am satisfied that
the Visa Officer’s assessment was not unreasonable. The Visa Officer assessed
the principal Applicant’s application based on the requirements of the
occupations in respect of which she requested assessment, namely, NOC: 2221 and
NOC: 2225. Having reviewed the material submitted by the principal Applicant
prior to receiving the Visa Officer’s decision, it was reasonably open to the
Visa Officer (and, subsequently, the Counsellor), to find that the various
requirements set forth in subsection 75(2) of the Regulations had not been met,
for the reasons explained in the Visa Officer’s decision.
[47]
At
the hearing, the Applicants’ counsel acknowledged that the Applicants could not
have had a reasonable expectation that they would be given an opportunity to
make further submissions after they responded to the letter dated November 14,
2008.
[48]
In
any event, the Counsellor’s failure to provide a “proper” assessment of the
substantive elements of the matter after having received the new information
that was submitted subsequent to the Visa Officer’s decision on May 21, 2009 was
not unreasonable for the same reasons, discussed in part V.A above, that the
Counsellor’s failure to reopen the matter for reconsideration was not
unreasonable.
VI. Conclusion
[49]
The
application for judicial review is dismissed. There is no question for
certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES THAT this application for judicial
review is dismissed.
“Paul S. Crampton”
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