Date: 20100720
Docket: IMM-5722-09
Citation: 2010 FC 758
Ottawa, Ontario, July 20,
2010
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
KAMALDEEP
KAUR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Ms. Kamaldeep Kaur applies for judicial review
pursuant to section 18.1 of the Federal Courts Act, R.S.C., 1985, c. F-7
of the decision of a Visa Officer who refused her application for a permanent
residence in Canada as a
skilled worker.
[2]
Ms. Kuar is a citizen of India. She applied to come to Canada as a nursing tutor. Her application
was refused by a Visa Officer because the Officer was not satisfied she had at
least one year continuous employment experience in her field as required by subsection
75(2) of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (the Regulations).
[3]
Ms. Kaur submitted additional information and
requested the Officer reconsider her application. The Officer declined. Ms.
Kaur applies for judicial review of that decision.
[4]
For the following reasons, I am refusing her
application for judicial review.
Facts
[5]
Ms. Kuar is a 28 year old woman with formal
training in India as a nurse.
She applied to become a permanent resident of Canada as a skilled worker and requested she be assessed in the
occupational field of Nursing.
[6]
By letter dated January 29, 2009 the
Citizenship and Immigration Canada Centralized Intake Unit advised it was
recommending her application for further assessment and requested she submit a
full application for permanent residency to the Canadian High Commission in New Delhi. This letter gave specific
instructions with respect to the content of an application, including:
Your
full application must consist of the following:
…
·
All supporting documents (see document checklist
for the visa office to which you are applying).
The letter stated the Applicant had 120 days to complete and submit
the full application. It directed she not submit any documents until she submit
the entire package and advised the decision would be made on the basis of the
documents provided at that time.
[7]
The document checklist requires a notarized
letter from an employer which includes:
-
the specific period of employment,
-
the position held during the period of employment
and the time spent in each position,
-
the applicant’s main responsibilities and
duties,
-
the total salary plus benefits,
-
the signature of the immediate supervisor or the
company’s personnel officer, and
-
a business card of the person signing the
letter.
[8]
The Applicant provided an employer’s letter
dated November 27th, 2008 from the Swami Vivekanand School of
Nursing and Hospital which certifies her position as nursing tutor from
September 2004 “to till date.” The employer’s letter gives a generalized
description of the Applicant’s duties. It includes complimentary remarks about
the Applicant’s disposition and wishes her well in future endeavours. However,
it says nothing about her remuneration. The signature is illegible and the
letter is not accompanied by a business card of the person signing the letter.
[9]
On her application form the Applicant had
repeated the description of the duties and requirements of a nursing tutor word
for word from the duties expected under the National Occupational Category
(NOC) 4131 as a nursing instructor.
[10] After the refusal of her application by the Visa Officer on August
5, 2009, the Applicant provided a further notarized letter from her employer
providing the missing salary information with a detailed description of the
Applicant’s duties and responsibilities.
Decision Under Review
[11] The Visa Officer refused the application on the basis there was
insufficient information to establish the Applicant had the acquired the
necessary experience as a nurse tutor pursuant to subsection 75(2) of the Regulations.
[12] The Officer wrote in her notes:
“PA has provided a copy of her
experience certificate for the position of Nursing Tutor which gives a
description of her duties at work. The certificate is signed by an unnamed
signatory. No other proof of employment is provided”.
and
“Based on the information on file
I am not satisfied that the PA has performed a substantial number of the main
duties of a Nursing Tutor, including all of the essential ones, for any years
full time within the period starting ten years before the date of the
application and ending at the date of the selection decision. PA has not
provided other supporting proof of her employment such as pay slips, ITR
documents, or bank statements showing salary deposits; she has not provided a
letter of appointment or letter of confirmation.”
[13] The Officer considered what was
available on the file and found:
[13]
“PA has provided a description of her duties on
her Schedule 3; these are an exact cut and paste of the NOC description for
this occupation. I am not prepared to accept PA’s statement of her work
experience at face value in the absence of satisfactory supporting
documentation from the employer”.
[14] The Visa Officer refused the application for permanent resident
status as a skilled worker by a refusal letter dated August 5, 2009.
[15] When the Applicant requested an opportunity to provide further
information, the Visa Officer wrote on September 9, 2009 that the application
was concluded and there was no reconsideration once a case was refused.
Relevant Legislation
Immigration and Protection
Refugee Regulations, (SOR/2002-227)
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75. (1) For the purposes of subsection 12(2) of the Act,
the federal skilled worker class is hereby prescribed as a class of persons
who are skilled workers and who may become permanent residents on the basis
of their ability to become economically established in Canada and who intend
to reside in a province other than the Province of Quebec.
Skilled workers
(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.
Minimal requirements
(3) If the foreign national
fails to meet the requirements of subsection (2), the application for a
permanent resident visa shall be refused and no further assessment is
required.
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75. (1) Pour
l’application du paragraphe 12(2) de la Loi, la catégorie des travailleurs
qualifiés (fédéral) est une catégorie réglementaire de personnes qui peuvent
devenir résidents permanents du fait de leur capacité à réussir leur
établissement économique au Canada, qui sont des travailleurs qualifiés et
qui cherchent à s’établir dans une province autre que le Québec.
Qualité
(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.
Exigences
(3) Si
l’étranger ne satisfait pas aux exigences prévues au paragraphe (2), l’agent
met fin à l’examen de la demande de visa de résident permanent et la refuse.
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Issues
[16] Two issues arise in this matter:
a.
Did the officer
breach her duty of procedural fairness by not providing the Applicant with an
opportunity to address the insufficient information?
b.
Is the Applicant
entitled to reconsideration?
b.
Standard of Review
[17] The Supreme Court’s Decision in Dunsmuir
v. New Brunswick, 2008 SCC 9 determined there are two
standards of review at common law in Canada:
Reasonableness and correctness. Questions of fact and mixed fact and law should
be granted deference and will be review on a standard of reasonableness,
whereas questions of law will generally be reviewed on a standard of
correctness.
[18] I find both issues in this case concern the duty
of procedural fairness. These are questions to which no deference is accorded;
the standard of review is therefore correctness.
[18]
Argument and Analysis
[19] The Applicant argues the Officer breached her
duty of procedural fairness by not providing an opportunity to be “disabused”
of doubts with respect to the Applicant’s work experience.
[20] Subsection 75(3) of the Regulations
provides:
If the foreign national fails to meet the
requirements of subsection (2), the application for a permanent resident visa
shall be refused and no further assessment is required.
(emphasis added)
[21] There are cases where a duty of procedural
fairness requires visa officers to bring flaws to an applicant’s attention and
provide them with an opportunity to address them. This is not one of those
cases.
[22] In Hassani v. Canada (Minister of Citizenship and Immigration), 2006 FC 1283 Justice Mosley
considered the same scenario with respect to a mechanic. He drew a distinction
between those requirements found in statutes and regulations and those arising
otherwise. In the case of the former, he found visa officers have no duty to
provide an applicant an opportunity to address concerns, he wrote at paragraph
26:
The finding of
the officer that the applicant had failed to show that he had experience in
“operation/admin/accounting/mgmt” and therefore did not meet the qualification
of Maintenance/Operations and Account Management, is a finding based directly
on the requirements of the legislation and regulations. The duty was on the
applicant to demonstrate that he met the criteria of the occupation under which
he had requested his assessment. The applicant was not required to be apprised
of the officer’s concerns in this regard to the evidence submitted.
(emphasis
added)
[23] In Sharma
v. Canada
(Minsiter of Citizenship and Immigration), 2009 FC
786 at para. 8 Justice Snider found there is no duty to advise an applicant of
a deficient application and requiring so would in effect be requiring the visa
officer to give advance notice to unsuccessful applicants.
[24] The Applicant provided an employer’s
letter that did not provide the information explicitly
required, namely: the Applicant’s salary and benefits. The Applicant’s
information concerning her employment experience is required to satisfy
subsection 75(2) of the Regulations.
[25] Nor did Applicant provide the information via other means. Had she
done so, it might give rise to an opportunity to provide further information as
clarification. In this respect, the Visa Officer considered the Applicant’s
description of her responsibilities and duties on the application form and
noted that the Applicant appeared to have simply copied the listed duties of a
Nurse Tutor rather than offer a description of her own specific responsibilities
and duties. The Officer also noted the absence of pay slips or salary deposits.
[26] The same principle applies here as in Hassani and Sharma.
There is no duty on a visa officer to solicit an explanation from an applicant
for her deficient application.
[27] The Applicant has also argued a breach of procedural fairness when
the Visa Officer refused to reconsider the application after the Applicant sent
further documentation.
[28] The Respondent responds with the doctrine of functus officio
and relies on the Supreme Court’s decision in Chandler v. Alberta
Association of Architects, [1989] 2 S.C.R. wherein the Court wrote at para.
20:
…there is a
sound policy reason for recognizing the finality of proceedings before
administrative tribunals. As a general rule, once such a tribunal has reached a
final decision in respect to a matter that is before it in accordance with its
enabling statute, that decision cannot be revisited because the tribunal has
changed its mind, made an error within jurisdiction or because there has been a
change of circumstances.
[29] This is not a blanket rule, there are
circumstances where a decision maker may reopen a decision. The Supreme Court
considered these factors in Chandler at
paras. 19-25 and the same principles have emerged elsewhere. None of them apply
to this case.
[30] I find in the instant case there are no reasons
to justify re-opening the application in light of improved submissions. The
process is clear. An applicant must provide a complete application. The
Applicant was given express notice of the requirements. The letter approving
consideration of her application for permanent resident status as a skilled
worker expressly required a full application with all supporting documents.
[31] The skilled worker visa application process is
designed to allow for efficient processing of complete applications by giving
express description of the application requirements. By expressly requiring
full applications and setting out consequences for not doing so, delay arising
from incomplete applications is avoided.
Conclusion
[32] The
Applicant had notice of the requirements necessary to complete a full
application. She did not submit the complete documentation required when she
submitted her application to the Visa Officer.
[33] I find the
Visa Officer met her duty of procedural
fairness when she properly considered the application before her and refused to
accept late submissions.
[34] The result is no doubt a disappointment to the
Applicant but it underscores the importance of providing a complete application
in such situations.
[35] The application for judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. The
application for judicial review is dismissed.
“Leonard
S. Mandamin”
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