Date:
20100630
Docket: IMM-6347-09
Citation: 2010 FC 735
Vancouver, British Columbia, June
30, 2010
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
LITA
CHUA TABUNGAR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of the decision by a Designated
Immigration Officer at the Canadian Embassy in Manila,
Philippines, dated October 15, 2009, in file number B052923662, whereby the
Applicant’s application for permanent residence in Canada was refused.
[2]
For
the reasons that follow, I have allowed the application and will return it for
redetermination by a different officer after a fairness letter has been sent to
the Applicant and a response received or the time for responding has expired.
[3]
The
Applicant is a citizen of and resident in the Philippines. She has on
several occasions made applications for permanent residence in Canada and has been
refused. The latest application, which is the one at issue here, was made on
the basis that the Applicant had work experience for more than four years in a
certain listed occupation, here category 4131 “College and Other Vocational
Instructors, Translators, Elementary School Teacher.”
[4]
The
Applicant filed an application with the Canadian Embassy in the Philippines which
included, among other things, a letter from Tower Languages Tutorial Centre and
a letter from Johnson Controls giving details as to her employment with those
organizations.
[5]
It
appears that the file was given to a clerk at the Canadian Embassy who phoned
Tower and what she believed was the correct branch of Johnson Controls and
spoke to some otherwise unidentified persons there. The clerk’s notation in the
CAIPS notes as to the conversation with Tower is to the effect that she was
told that the Applicant’s employment there was part-time. The clerk’s
notation in the CAIPS notes as to the conversation with Johnson Controls is to
the effect that she was told no such person by the Applicant’s name worked
there. The CAIPS notes entry for the same day 18 August 2009 also references
four earlier applications for permanent residence made by the Applicant and a
notation “all refused”. These notes, however, state “NOC 4131 is eligible for
processing” and conclude “File for VO’s (Visa Officer) review.”
[6]
The
file was then forwarded to an officer at the Canadian Embassy, not the officer
who made the decision under review. That officer made a notation on the cover
of the file “Appears fraud employ cert” which the officer who ultimately made
the decision, Officer Gonzales, agreed on cross-examination meant “fraudulent
employment certificate” and probably was a reference to Johnson Controls.
[7]
The
file was apparently transferred to Officer Gonzalez who, in less than a day,
appears to have reviewed it and rejected the application. This officer’s
CAIPS notes indicate that she had concerns as to credibility of the Applicant,
apparently in respect of the Johnson Controls incident, but decided to base the
decision on a finding that the letter from Tower was “insufficient” in that it was
not entirely clear from that letter whether the employment was part-time or
full-time.
[8]
A
reading of the Tower letter would not, on its face, alert the reader into
believing that it was equivocal as to part-time or full-time. A fair reading
would reasonably lead a reader to believe that full-time employment was meant.
The officer could only reasonably have been alerted to the matter as a result
of the CAIPS notes of the clerk who apparently recorded a telephone
conversation with someone apparently at Tower.
[9]
The
evidence as it now appears in the record before me is that, as far as Johnson
Controls is concerned, the clerk phoned the wrong office. A business card
stapled to the letter had the correct number which appears to have been overlooked
by the clerk. The Applicant worked at the office set out on the business card.
However, this clerical error appears to have resulted in an endorsement on the
corner of the file made by a colleague visa officer of “fraud” and raised
concerns as to “credibility” by the visa officer who made the decision at
issue. It appears that the officer making the decision seized upon what cannot
be likely said to be an ambiguity in the Tower letter, unless she had
information not available to the Applicant as to the clerk’s phone call and an
apparent “part time” response, upon which to seize in making the decision.
[10]
All
of this calls out for a requirement that the Applicant should have been advised
of these concerns and given a reasonable opportunity to respond. I echo what
Justice Blais (as he then was) wrote in Salman v. Canada (Minister of
Citizenship and Immigration), 2007 FC 877, [2007] F.C.J. 1142, at
paragraph 12:
12 This Court has
also recognized, in Hassani v. Canada (Minister of Citizenship and
Immigration), [2006]
F.C.J. No. 1597, 2006 FC 1283, a duty on the part of the visa officer
to express his concerns to the applicant when the issue is one of credibility
or the genuineness of documents, and to provide the applicant with an
opportunity to respond to such concerns. I am not satisfied that this duty was
met in this case.
[11]
In
a similar vein Justice Mosley in Rukmangathan v. Canada (Minister of
Citizenship and Immigration), 2004 FC 284, [2004] F.C.J. No. 317, wrote
at paragraph 42:
42 The applicant's
application was refused based, in part, on his unsatisfactory answers to these
technical questions posed by the officer. However, in my view, this was not the
sole or primary reason for the refusal, as the officer's negative views of
"discrepancies" concerning his claimed employment experience, and the
credibility and reliability of his documents, were also central to her decision
to deny his application. As outlined above, I am persuaded that the officer
failed to give the applicant a chance to respond to her concerns in these
areas. Due to such breaches in procedural fairness, it is not possible to know
if the outcome would have been different had the applicant had a full and fair
opportunity to respond to the officer's concerns, and therefore, his
application will be sent back for reassessment in accordance with these
reasons.
[12]
Where
the notation “fraud” is made on the file by a visa officer a red flag has been
raised requiring serious investigation by the decision making officer and, in
the case of any doubt, even if the matter is not directly relevant, the
Applicant should be given a reasonable opportunity to respond.
[13]
Accordingly,
the application is allowed.
JUDGMENT
For the reasons provided:
THIS COURT ORDERS AND
ADJUDGES that:
1. The
application is allowed;
2. The
matter is returned for redetermination by a different officer after a fairness
letter has been sent to the Applicant and a response received or the time for
doing so has expired;
3. No
question is certified; and
4. No
Order as to costs.
“Roger
T. Hughes”
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