Date: 20100423
Docket: IMM-3475-09
Citation: 2010 FC 442
Ottawa, Ontario, April 23,
2010
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
BALJINDER KAUR
ARVINDER SINGH
PARAMJIT KAUR
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application by
Baljinder Kaur (the Applicant), pursuant to subsection 72(1) of the
Immigration and Refugee Protection Act, S.C. 2001, c. 27, (IRPA) for
judicial review of a decision dated June 15, 2009, by the Second Secretary
(Immigration) of the Canadian High Commission in Delhi (the visa officer),
denying the Applicant’s application for a skilled worker visa.
[2]
The
Applicant is a citizen of India. She applied for permanent
residence in Canada as a skilled worker. She
indicated that she was a cook, and had been employed in this trade for three
and a half years.
[3]
In support
of her application she provided a copy of a letter from an employer, stating
that she was a good worker and had learned to cook many types of Indian meals.
She also provided a brief description of her duties on a form submitted with
her application.
[4]
The visa
officer found these supporting documents to be insufficient. Therefore, he
denied her application.
[5]
The visa
officer never contacted the Applicant or her employer regarding his concerns.
The Applicant only learned of them upon receiving the letter informing her of
the rejection of her application.
[6]
The sole
issue raised by the Applicant relates to procedural fairness. If the visa
officer breached his duty of fairness, no deference will be owed to his
decision, and it will be set aside, because “[i]t is for the courts … to
provide the legal answer to procedural fairness questions” (C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R.
539, at par. 100).
[7]
The Applicant
submits that she provided a “detailed letter” stating that she
performed the duties of a cook for three years and a half in India. The visa officer’s concern that it was insufficient
could easily have been addressed had he notified the Applicant. Indeed, the
officer had a duty to do so. While the Applicant recognizes that she must
present sufficient evidence in support of her claim, she argues that she did in
fact submit sufficient prima facie evidence to impose on the visa
officer a duty to address any outstanding concerns with her. She adds that she
could not have anticipated the visa officer’s doubts as to the sufficiency of
her supporting materials.
[8]
The
Minister submits that the Applicant’s employer’s letter was not detailed and
indeed failed to include information, such as the Applicant’s responsibilities
at her workplace and her remuneration, which she was required to provide. Furthermore,
it does not corroborate the list of duties submitted by the Applicant with her
application.
[9]
The
Applicant bears, and failed to discharge, the onus of submitting sufficient
evidence in support of her application. Fairness did not require the visa officer
to advise the Applicant of the inadequacy of her materials. The Applicant was
not entitled to an interview to correct her own failings.
[10]
I agree
with the Minister. The Applicant failed to discharge her burden to present
adequate evidence in support of her obligation, and the visa officer had no
duty to assist her in doing so. As Justice Marshall Rothstein, then of the
Federal Court, Trial Division, held in Lam v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 1239
(F.C.T.D.) at
par. 3-4, the argument that an applicant might present prima facie
evidence which, though insufficient to support his or her application will
nevertheless trigger a duty to seek clarifications of this evidence :
gives an advantage to
applicants for permanent residence who file ambiguous applications. This cannot
be correct.
A visa officer may inquire
further if he or she considers a further enquiry is warranted. Obviously, a
visa officer cannot be wilfully blind in assessing an application and must act
in good faith. However, there is no general obligation on a visa officer to
make further inquiries when an application is ambiguous. The onus is on an
applicant to file a clear application together with such supporting
documentation as he or she considers advisable. The onus does not shift to the
visa officer and there is no entitlement to a personal interview if the
application is ambiguous or supporting material is not included.
[11]
It is true
that in some cases a visa officer will indeed have a duty to put his concerns
to an applicant. However, having reviewed the cases where such a duty was found
to exist, justice Richard Mosley explained, in Hassani v. Canada
(Minister of Citizenship and Immigration) 2006 FC 1283, [2007] 3 F.C.R. 501, at par. 24, that “it is clear that where
a concern arises directly from the requirements of the legislation or related
regulations, a visa officer will not be under a duty to provide an opportunity
for the Applicant to address his or her concerns.” (See also, e.g., Roberts
v. Canada (Citizenship and
Immigration),
2009 FC 518 at par. 20 and the cases cited there for applications of that
principle).
[12]
The
question whether an applicant has the relevant experience as required by the
regulations and is thus qualified for the trade or profession in which he or
she claims to be a skilled worker is “based directly on the requirements
of the legislation and regulations” (Hassani, above, at par. 26).
Therefore it was up to the Applicant to submit sufficient evidence on this
question, and the visa officer was not under a duty to apprise her of his
concerns.
[13]
Besides, as the Minister points out, the Applicant was provided
with a checklist to help her prepare her application. That checklist stipulated
that letters of reference from employers “must include,” inter alia, the
Applicant’s “main responsibilities in each position” which she held and her
“total annual salary plus benefits.” Yet the only independent evidence submitted was a letter by a former
employer which failed to provide the required information.
[14]
The visa
officer could be reasonably concerned at the utter lack of detail in the
Applicant’s employer’s letter. It did not help that the Applicant’s own
description of her duties appeared to be copied from the National Occupational Classification.
Thus, it was open to the visa officer, on the basis of the scant
evidence before him, to find that the Applicant had not established that she
had sufficient work experience in her stated occupation, and to reject her
application on that basis.
[15]
For
these reasons, the application for judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS that:
For these reasons, the application for judicial
review is dismissed.
“Danièle Tremblay-Lamer”
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