Date: 20100721
Docket: IMM-5592-09
Citation: 2010 FC 769
Toronto, Ontario, July 21,
2010
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
IMRAN
ZAIB
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Imran
Zaib’s application for a permanent resident visa as a skilled worker was
refused on the basis that he had misrepresented material facts by having
submitted a fraudulent Bachelor’s degree certificate in support of his
application.
[2]
For
the reasons that follow, I am satisfied that Mr. Zaib was not treated fairly in
the assessment of his application, with the result that his application for
judicial review will be allowed.
Background
[3]
During
an interview with Mr. Zaib, the visa officer became concerned with the
legitimacy of Mr. Zaib’s educational credentials, as the Bachelor’s degree that
had submitted from the University of the Punjab was in the “new style”. The
officer was also concerned about the fact that Mr. Zaib had difficulty
answering questions about his studies. Consequently, Mr. Zaib was asked to
provide documentary confirmation of his degree from the University.
[4]
Very
shortly thereafter, the officer received a letter purportedly from the University
of the Punjab, confirming that Mr.
Zaib did indeed hold a Bachelor’s degree from that institution. Because of
concerns with respect to this letter, the officer then contacted the University
directly, providing a copy of the letter of confirmation supplied by Mr. Zaib,
and asking that the authenticity of the letter be verified. The officer was
subsequently advised by the University that the letter was a fake.
[5]
The
officer then sent out a “fairness” letter to Mr. Zaib stating that the officer
had “reasonable grounds to believe that the degree you have submitted is
fraudulent. Please provide evidence to the contrary within 30 days …” In
response, Mr. Zaib’s immigration consultant re-submitted a further copy of the
original confirmation letter purportedly from the University of the Punjab.
[6]
Mr.
Zaib’s application was then refused on the basis of his misrepresentation.
[7]
Mr.
Zaib subsequently obtained additional documentation purportedly obtained from
the University of the Punjab indicating that the
letter advising that his confirmation letter was a fake had been sent in error,
as a result of a clerical mistake. Mr. Zaib also produced a certified copy of
his degree certificate, and asked the officer to reconsider the decision
refusing his application. This request was denied. No response was received
with respect to a second request for reconsideration submitted by Mr. Zaib’s
counsel.
Analysis
[8]
While
Mr. Zaib has raised a number of issues with respect to the officer’s decision,
I need only deal with the issue of fairness, as that issue is determinative of
the outcome of the application.
[9]
The
section of Citizenship and Immigration Canada’s Immigration Manual dealing with
procedural fairness in the evaluation of visa applications provides that
officers should accurately describe to visa applicants the documents that they
are required to submit in order to address officers’ concerns. The manual goes
on to stipulate that:
The
applicant must be made aware of the “case to be met”, i.e., the information
known by the officer must be made available to the applicant prior to the
decision being made. For example, if an officer relies on extrinsic evidence
(i.e., evidence received from sources other than the applicant), they must give
the applicant an opportunity to respond to such evidence.
[10]
This
procedural fairness obligation is consistent with that imposed on visa officers
by the jurisprudence: see for example, Muliadi v. Canada (Minister of Employment
and Immigration),
[1986] 2 F.C. 205, 66 N.R. 8 at para. 14 (F.C.A.); Simmons v. Canada (Minister of Public
Safety and Emergency Preparedness), 2006 FC 1123, 151 A.C.W.S. (3d) 503 at para.
7.
[11]
The
visa officer’s concern with respect to the authenticity of Mr. Zaib’s
university degree was entirely reasonable, given the apparently unusual format
of the certificate, and his inability to answer questions regarding his studies
in anything but the most general of terms. The extrinsic evidence subsequently
obtained from the University quite naturally led to further concerns on the
part of the officer with respect to the truth of the representations made in
Mr. Zaib’s visa application regarding his educational qualifications.
[12]
It
should, however, be noted that what the officer sought from the University of
the Punjab was not confirmation of the authenticity of Mr. Zaib’s university
degree, but rather verification of the authenticity of the confirmation letter
previously provided by Mr. Zaib. The University advised the officer that the
letter was a fake, but provided no information with respect to the authenticity
of the degree itself. In fact, the University asked the officer to provide a
copy of the degree certificate so that it’s legitimacy could be investigated.
There is no indication in the file that the document was ever sent to the
University for authentication.
[13]
However,
the fairness letter sent to Mr. Zaib provided no indication of any concern on
the part of the officer with respect to the authenticity of the confirmation
letter that he had provided. Rather, the concern expressed is with the authenticity
of the degree itself. I accept that evidence that the confirmation letter was
fraudulent would logically raise serious concerns with respect to the
authenticity of the degree. That said, I am nevertheless satisfied that the
officer’s failure to advise Mr. Zaib of the actual nature of the extrinsic
evidence obtained from the University was unfair to him, as he was not properly
made aware of the case that he had to meet.
[14]
The
fact that Mr. Zaib did not understand the concern he was being asked to address
is demonstrated by his response to the fairness letter.
[15]
Mr.
Zaib’s responded to the fairness letter by sending a further copy of the
confirmation letter from the University of the Punjab to the visa officer.
This might have been a reasonable course of action if what was in issue was the
authenticity of the degree itself. Indeed, Mr. Zaib could have quite reasonably
assumed that the earlier copy of the letter had gone astray and had not been
received by the officer, leaving the officer’s concerns with respect to the
authenticity of the degree unanswered.
[16]
Such
a response would, however, have made no sense whatsoever if Mr. Zaib had been
aware that the officer had information from the University indicating that the
letter was a fake.
[17]
In
these circumstances I am satisfied that the failure of the officer to fairly
describe the extrinsic evidence obtained resulted in Mr. Zaib being denied a
fair opportunity to provide a meaningful response to the officer’s concerns.
Conclusion
[18]
Because
of my finding that the process followed in relation to Mr. Zaib’s visa
application was unfair, this application for judicial review will be allowed
and the matter remitted to a different visa officer for re-determination. It
should be noted, however, that I have not made any findings with respect to the
authenticity of Mr. Zaib’s university degree, and any re-determination of this
matter will necessarily have to include very careful scrutiny of his
educational qualifications, given the very serious concerns that have been
raised in this regard.
Certification
[19]
Neither
party has suggested a question for certification, and none arises here.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES
that:
1. This
application for judicial review is allowed, and the matter is remitted to a
different visa officer for re-determination in accordance with these reasons;
and
2. No serious question of
general importance is certified.
“Anne
Mactavish”
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