Date: 20100428
Docket: IMM-3551-09
Citation: 2010
FC 466
Toronto, Ontario, April 28, 2010
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
amarjit
singh gill
Applicant
and
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
Mr. Gill,
a citizen and resident of India, applied for permanent
residence in Canada in 2005. His application was
rejected in June 2009 by the Second Secretary, Immigration, at Canada’s High
Commission in New
Delhi. His
application had been assessed as a member of the federal skilled worker class,
more particularly as a secondary school teacher. He needed 67 points, but was
only awarded 62. Had he had “arranged employment” he would have received 10
additional points. As it was he was awarded none. Had he demonstrated that his
spouse’s brother was a permanent resident living in Canada, he would have been assessed five more
points. As it was he was assessed none. This is a judicial review of that
decision.
[2]
The delay
between receipt of an application for permanent residence and the processing
thereof may, as in this case, be counted in years. Much can happen in the
interval.
[3]
The High
Commission in New
Delhi sent Mr.
Gill two interlocutory letters. The first in January 2009 asked him to provide
the results of medical exams and to advise if there was any change in his
mailing address.
[4]
At that
point in time, the evidence which he had submitted to establish that he had a
brother-in-law in Canada was copy of the brother-in-law’s
permanent resident card, a copy of the brother-in-law’s Indian passport renewed
in Vancouver with a British
Columbia
address, and an affidavit from his wife in which she also provided her
brother’s British
Columbia
address.
[5]
In support
of his “arranged employment” he had submitted an offer of employment from the
Bambolino Montessori Academy of Toronto, and an arranged employment opinion
from Service Canada.
[6]
In May
2009 the Second Secretary, Immigration, wrote to him to say that she did not
find it credible that he had been selected for the job and gave him an
opportunity to address her concerns. He replied with further letters both from
himself, and from the school.
[7]
However
the Second Secretary was still not satisfied and, as mentioned above, awarded
him no points for having a brother-in-law who is a permanent resident living in
Canada and no points for arranged
employment. If he had succeeded on either issue he would have achieved the
required minimum of 67 points. She said:
“I have awarded zero points for Arranged
employment as you have failed to satisfy me that you have a genuine offer of
employment in Canada. I have awarded you zero
points for adaptability as you have not demonstrated that your spouse’s brother
is a permanent resident (the copy of the card you submitted expired on October
6, 2008) or Canadian citizen or that he resides in Canada.”
Issues
[8]
With
respect to adaptability based on a close relative being a citizen of or
permanent resident of Canada, and living here, was the decision
procedurally fair as Mr. Gill had been given no opportunity to address the
Second Secretary’s concerns?
[9]
With
respect to the arranged employment, did the decision maker mischaracterize the
legal duty imposed on her by the Regulations? If not, was the decision
reasonable?
Discussion
[10]
At the
time Mr. Gill’s application was assessed, his brother-in-law may or may not
have been living in Canada; may or may not have met the residency obligation
imposed by section 28 of the Immigration and Refugee Protection Act; may
or may not have received a renewed permanent residency card; may or may not
have become a citizen and there may or may not have been an investigation
against him.
[11]
In my
opinion, it was procedurally unfair for the Visa Officer to render her decision
without bringing these concerns to Mr. Gill’s attention and giving him the
opportunity to dispel them. No deference is owed. This is not a case where
there had been a bald statement of a relative living in Canada, without any evidence
whatsoever. There was evidence. If the Officer wanted more, she should have
asked for more.
[12]
Whether or
not the Minister is correct that it would have been difficult for the Officer
to obtain updated information about the brother-in-law’s status through
government channels, the Officer could, and should, have voiced her concerns to
Mr. Gill. A perfect example is found in Malik v. Canada (Minister of Citizenship and
Immigration),
2009 FC 1283. In that case at the time of processing the applicant received
a notice which, among other things, stated:
Please provide copies of documents which show that your (or your
accompanying spouse’s) relative is residing in Canada. These can include documents such as income tax information,
latest pay slips, credit card statements etc. Affidavits and statutory
declarations are not satisfactory proof of residence in Canada.
[13]
No such
letter was sent to Mr. Gill. It was simply wrong to rely upon a delay in
processing to pounce on the fact that the permanent resident evidence, which
was current when submitted, had by then expired. The duty of fairness was not
observed (Laio v. Canada (Minister of Citizenship and Immigration),
[2000] F.C.J. No. 1926 (T.D.) (Q.L.), Hussein v. Canada (Minister of Citizenship and
Immigration)
(1998), 159 F.T.R. 203, 45 Imm. L.R. (2d) 13, and Salman v. Canada (Minister of Citizenship and
Immigration),
2007 FC 877, 63 Imm. L.R. (3d) 285).
[14]
Having
reached the conclusion I have on the relative in Canada point, I need not consider the arranged
employment offer because it is moot.
[15]
However, I
venture to say that one aspect of arranged employment as applicable to Mr.
Gill, a non-resident, was that an officer approve an offer of employment “based
on an opinion provided to the officer by the Department of Human Resources Development…that
the offer of employment is genuine” (Immigration and Refugee Protection Regulations,
s. 82(2)(b)(ii)). The Minister suggests that the opinion by the Department is
simply a condition precedent to the Visa Officer’s assessment de novo.
Reliance is placed upon the decision of Madam Justice Snider in Bellido v. Canada (Minister of Citizenship and
Immigration),
2005 FC 452, where she stated at paragraph 21:
HRDC validation is not, as the Applicant submits, sufficient
evidence of arranged employment. Such validation does not remove the obligation
of the Visa Officer to assess whether the Applicant is able to perform the job
described in the validation.
[16]
Read in
conjunction with s. 82(2) of the Regulations, which requires the officer
to assess whether a skilled worker is able to perform and is likely to accept
and carry out the employment, that case certainly stands for the proposition
that the Visa Officer must determine whether the applicant is up to the job. In
this case the Officer not only found that Mr. Gill was not up to the job, but
when all was said and done also was of the view that the job offer was not
genuine. Whether a Visa Officer in India
is entitled to override the Department’s opinion based on an investigation in Canada that the offer is genuine is
best left for another day.
[17]
Both
counsel agreed that there was no question of general importance to certify and
that if I were minded to grant judicial review I should simply refer the matter
back to another officer for re-determination, and not in any way give
directions limiting the reassessment to the residency of Mr. Gill’s
brother-in-law.
ORDER
FOR REASONS GIVEN:
a.
The
application for judicial review is granted;
b.
The matter
is referred back to another visa officer for redetermination;
c.
There is
no question of general importance to certify.
“Sean Harrington”
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