Docket:
IMM-1216-11
Citation:
2012 FC 55
Ottawa, Ontario, January 17, 2011
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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JAVED SIDDIQI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP &
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Overview
[1]
In
2007, Mr. Javed Siddiqi, a citizen of Pakistan, applied for permanent residence
to the Canadian High Commission in London as a skilled worker. He relied on an
immigration consulting company, Aries International, to act as his
representative.
[1]
[2]
His
application was dismissed because he fell four points short of the required
threshold of 67 points. He argues that he was entitled to be credited with a
further four points in recognition of his spouse’s educational credentials.
However, his application did not include a transcript of his spouse’s grades.
He submits that this was the result of an administrative error, either on the
part of Aries International or Immigration Canada. He maintains that it should have
been clear to Immigration Canada that the transcript was missing from his file.
Therefore, in fairness, he should have been given a chance to provide the
missing transcript before his application was dismissed. He asks me to order a
reconsideration of his file by a different officer.
II. Factual Background
[3]
After
it confirmed receipt of Mr. Siddiqi’s application, the High Commission advised
him that it would provide him with a complete list of the required documents
once his application was ready to be assessed. He would then have four months
to prepare and submit his documents.
[4]
That
letter was sent in March 2010. It advised Aries International that Mr. Siddiqi
was required to submit all of his supporting documentation (including copies of
educational credentials and transcripts for him and his spouse) within 120
days, and that there was no obligation on immigration officials to request additional
documents that had not been provided within that timeframe.
[5]
On
July 28, 2010 (after the 120-day deadline had passed) the High Commission
received a letter from Aries International and a package of documents
supporting Mr. Siddiqi’s application. The documents were forwarded to Ottawa for processing.
[6]
The
letter from Aries International stated that the supporting documents included,
under the heading “Spouse”, a “Copy of certificate and marksheet for Bachelor
of Commerce from University Karachi – Faculty of Business Administration &
Commerce, Karachi, Pakistan”.
[7]
From
September 2010 to January 2011, Mr. Siddiqi sent three emails to Ottawa inquiring about the status of his file. The first email, on September 29, 2010,
stated that all the required documents listed in the March 2010 letter had been
submitted. Mr. Siddiqi also asked when he could expect to receive the medical
request, and when his visa would be issued. He said he required this
information because his son would be applying to McGill and other Canadian
universities that winter. Ottawa responded on October 5, 2010, stating that it
could not confirm receipt of documentation or respond to status check inquiries
at that time.
[8]
On
January 9, 2010, Mr. Siddiqi sent a second email, which again stated that all
documents listed in the March 2010 letter had been submitted and received, and
again asked when he could expect the medical request. Ottawa replied on January
10, 2010, stating that the file had not yet been reviewed by an officer and
that once it was, Mr. Siddiqi would be notified.
[9]
Mr.
Siddiqi emailed Ottawa a third time on January 13, 2011, again asking when the
file would be reviewed. He got the same response.
[10]
On
January 28, 2011, Mr. Siddiqi’s application was refused because he did not
obtain the minimum number of points required.
[11]
In his refusal letter, the officer
stated: “I gave you no point [sic] for Spousal education – there were no
transcript [sic] for your spouse’s bachelor’s degree, as was requested
in the letter sent by our London office.”
[12]
Through
counsel, Mr. Siddiqi asked for his application to be reassessed. The officer
dismissed this request, stating: “Only a single copy of a post-secondary diploma for the spouse was
submitted but no transcript. Hence no evidence as to the number of years taken
to complete it was present, and no seccondary [sic] education evicence [sic]
had been submitted… The file wil [sic] remain closed”.
III. Was Mr. Siddiqi
Treated Unfairly?
[13]
Mr.
Siddiqi argues that the officer wrongly applied the 120-day deadline and, by
doing so, refused to give Mr. Siddiqi an opportunity to complete his
application by submitting the missing transcript. Mr. Siddiqi also argues that
the officer had a duty to inform him of the omission and give him a reasonable
opportunity to supply the transcript.
[14]
While
Mr. Siddiqi was told that he had to submit his documents within 120 days, it is
clear that the officer considered his application even though the documents
were filed late. A new policy (pursuant to Citizenship and Immigration Canada Operational
Bulletin 120, or OB 120, “Federal Skilled Worker (FSW) Applications –
Procedures for Visa Offices”) applies to applications filed on or after
February 27, 2008 (after Mr. Siddiqi’s application was filed) and imposes
strict enforcement of the 120-day deadline, but I see no evidence that Mr.
Siddiqi’s application was treated as being subject to this rule.
[15]
With
respect to the duty to give Mr. Siddiqi notice that his application was
incomplete, Mr. Siddiqi maintains that it would have been obvious to the
officer that the crucial transcript had originally been submitted and somehow
went missing.
[16]
The
list of documents submitted by Mr. Siddiqi’s agent, Aries International,
referred to a “marksheet” from the University of Karachi. Mr. Siddiqi submits
that this was obviously a reference to a transcript of his spouse’s grades. The
officer should therefore have noticed, when he reviewed the file and found no
transcript, that this important document was missing – whether Aries International
had erred in filing it or it somehow went missing at Immigration Canada’s end.
Either way, the officer should have realized that something was amiss and given
Mr. Siddiqi a chance to correct it. This is especially so, he submits, because
his emails manifested his concern about the completeness of his application.
[17]
In
my view, the burden was on Mr. Siddiqi to ensure his application was complete.
He engaged an agent to assist him in this and, therefore, he had an obligation
to ensure that the agent filed the necessary documents. His emails did not
display a specific concern about the completeness of his application; they related
more to the timing of events.
[18]
In
addition, there is no evidence before me that any transcript existed when Mr.
Siddiqi made his application or even that any exists now. Among the documents
submitted in support of Mr. Siddiqi’s application was a “marksheet” from the University of Karachi. But this was not a transcript. The marksheet is simply a summary of
the distribution of grades within the class. No transcript was presented in the
original application, in the request for reconsideration, or on this
application for judicial review.
[19]
Accordingly,
I cannot see how the officer could have been expected to conclude that a
transcript was likely available, that it had somehow gone missing, and that Mr.
Siddiqi could produce it if given a chance. This is unlike the situation where
an applicant had explicitly complied with earlier instructions about what
documents to provide, and the instructions were revised at the time the
application was considered: Noor v Canada (Minister of Citizenship and
Immigration), 2011 FC 308; nor was this a situation where there was an
issue about the credibility or genuineness of the evidence where fairness would
require that the applicant be given a chance to address the officer’s concerns:
Shah v Canada (Minister of Citizenship and Immigration), 2011 FC 697, at
para 30.
[20]
Accordingly,
I cannot conclude that Mr. Siddiqi was treated unfairly. His application was
simply incomplete.
IV. Conclusion and
Disposition
[21]
Having
found no basis for concluding that Mr. Siddiqi was treated unfairly, I must
dismiss this application for judicial review. Counsel for Mr. Siddiqi has
submitted the following question for certification:
Whether or not in a missing document case there can
ever be a question arising of procedural fairness, particularly as the
immigration policy has moved into a no tolerance immigration processing system
which does not allow an applicant to be able to determine in advance whether or
not a document he sent has gone missing and whether or not it is the fault of
the handling of the file inside the immigration office. The question therefore
proposed is whether the concept of procedural fairness so boldly pronounced in
the case of Muliadi v Canada, [1986] 2 FC 205 by the Federal Court of
Appeal has been completely closed down by a system of no tolerance processing
in which the visa officer can avoid attempts to determine whether or not his
application was completely received, and the fact that the submission cover
letter with the list of documents demonstrated that the missing document had
been sent, or that the applicant had not ignored the checklist which he
received requesting the general submission? In the alternative, did procedural
fairness require the officer to re-open application?
[22]
In
my view, this proposed question is fact-specific and relates primarily to an
issue not raised here – there was no evidence that a document was missing and,
therefore, there is no question about whether the officer had a duty to give
the applicant a chance to complete the file. In addition, the question of
whether an officer may have a duty to re-open an application does not arise
here because it is the refusal itself that is the subject of this application
for judicial review, not the refusal to reconsider the application. No question
will be stated.
JUDGMENT
THIS
COURT’S JUDGMENT is that
1.
The
application for judicial review is dismissed.
2.
No
question of general importance is stated.
“James
W. O’Reilly”
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