Docket: IMM-5977-11
Citation: 2012 FC 560
Ottawa, Ontario, May 9, 2012
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
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ERMINA AMOR PASCO PLA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review brought forth under subsection 72(1) of
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA],
seeking to set aside a June 13, 2011 decision of visa officer Raymond Gabin [the
officer] of the Case Processing Pilot in Ottawa. The officer concluded that the
applicant did not meet the requirement for a permanent resident visa under the
skilled worker class set out in subparagraph 76(1)(b)(i) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 [IRPR], a provision that
required the applicant to “have in the form of transferable and available
funds, unencumbered by debts or other obligations, an amount equal to half the
minimum necessary income applicable in respect of the group of persons
consisting of the skilled worker and their family members.”
I. Background and
Decision under Review
[2]
Ms.
Ermina Amor Pasco Pla [the applicant], a citizen of the Philippines, filed an
application for permanent residence under the federal skilled worker class on
September 11, 2007.
[3]
In
her application, where she was asked to provide her e-mail address and it was
written that “[b]y indicating your e-mail address, you are hereby authorizing
Citizenship and Immigration Canada to transmit your file and personal
information to this specific e-mail address,” Ms. Pla provided the e-mail of
her representative, Premiers Management Consultancy (Applicant’s Amended Record
[AAR] at 24).
[4]
On
November 10, 2011, the officer noted in the Global Case Management System
[GCMS] that the applicant provided proof of $14,000 in available funds for
herself and her husband, which met the required amount for a family of two as
required under subparagraph 76(1)(b)(i) of the IRPR (AAR at 10).
[5]
However,
on October 18, 2010, as her application continued to be processed, the
applicant gave birth to a baby daughter. The addition was noted in the GCMS on
February 9, 2011 after the applicant sent CIC an updated application with copies
of the baby’s birth certificate and passport (AAR at 10). As a
result, the officer sent an e-mail to the applicant’s representative on April
7, 2011 in which he now requested proof of at least $17,000 in available funds
for the applicant, her husband, and her daughter, as required by the IRPR. The
e-mail also indicated that “[t]he above information/documents must be received
in our office within 60 days from the date of this message [emphasis in
original]” (Respondent’s Memorandum of Argument and Affidavit [RMAA], Affidavit
of Martin Barry, Exhibit A).
[6]
An
entry in the GCMS dated May 12, 2011 indicates that no response had been
received up to that date and so a second e-mail was sent reiterating the
request and providing 30 days to comply (AAR at 10). The e-mail, also dated May
12, 2011, informed the applicant of the following (RMAA, Affidavit of Martin
Barry, Exhibit B):
On April 7, 2011, you were asked
to produce the following to enable us to continue the processing of your
application:
Proof of funds equivalent to at least
$17,000 Canadian dollars
We are unable to continue the processing
of your application without the above. All information must be received in one
package along with this letter within 30 days from the date of this
message. Please submit all requested information immediately. If you
fail to provide the requested information, your application may be assessed on
the basis of the information that we have and I may refuse your application
[emphasis in original].
[7]
Finally
on June 13, 2011, an entry in the GCMS indicates that the officer had still not
received a response. The officer concluded that the applicant did not have the
minimum funds to be eligible for selection as a skilled worker as required by
subparagraph 76(1)(b)(i) and therefore refused the application (AAR at
10). An e-mail notifying the applicant of this decision was received by her
representative at 8:11 p.m. on June 13, 2011 (AAR at 143). The
e-mail included the attached decision informing the applicant of the following
(AAR at 144):
The file only shows evidence of about
$14,000 Canadian dollar worth of funds, whereas $16,967 Canadian is required
for a family of three. On April 7, 2011, you were asked to produce evidence of
at least $17,000 Canadian equivalent in funds. I received no response from you.
On May 12th, I sent you
another e-mail asking you for the proof of funds, giving you 30 days to comply.
The e-mail also stated that, should you not respond within 30 days, your
application could be refused. To date you have failed to provide any response.
II. Parties’ Positions
[8]
The
applicant argues that by rendering his decision on June 13, 2011, within the
30-day delay provided on May 12, 2011, the officer breached his duty of
procedural fairness. The applicant is also of the view the officer’s reasoning
was deficient in that he failed to consider a substitute evaluation by which he
could have taken into account the fact the applicant had provided proof of
funds for an amount of $14,000 less than 10 months earlier and that there was
proof the applicant earned a monthly salary of more than $4,000. Since the
proof of funds required was $16,967, it is argued the officer could have easily
used this substitute evaluation to establish that the applicant met the
requirement.
[9]
The
minister responds that procedural fairness was not breached, that the applicant
was asked to provide the required evidence on two occasions, that she was given
a total of 67 days to comply, and that she simply failed to file the
information on time, “namely by no later than June 13, 2011” (RMAA at para 2).
The minister also points out that the applicant acknowledges that she only
submitted the documents to her representative on June 14, 2011 (Affidavit of
applicant at para 20 and AAR at 150). The minister contends the officer’s
decision was therefore reasonable given the absence of documents to prove that
the applicant had sufficient available funds. At the hearing, counsel for the
minister admitted that the decision should have been rendered on June 14, 2011,
but that granting the remedy sought and returning the file to another officer
would not change the determination already made, making it an unnecessary
recourse.
III. Issues
[10]
This
matter raises two issues:
1. Was the
applicant denied procedural fairness?
2. Did the
officer err in determining that the applicant did not meet the requirement set
out under subparagraph 76(1)(b)(i) of the IRPR?
IV. Standard of
Review
[11]
The
question of whether a visa officer has provided an applicant with a meaningful
opportunity to respond to the visa officer’s concerns is a question of
procedural fairness for which the applicable standard of review is correctness
and no deference is required (Zare v Canada (Minister of Citizenship and
Immigration), 2010 FC 1024 at para 20, [2010] FCJ 1283; Rahim v Canada
(Minister of Citizenship and Immigration), 2006 FC 1252 at para 12, [2006]
FCJ 1577; Kuhathasan v Canada (Minister of Citizenship and Immigration),
2008 FC 457 at para 18, [2008] FCJ 587).
[12]
By
comparison, an officer’s assessment of a skilled worker application is subject
to the reasonableness standard of review (Maizel v Canada (Minister of
Citizenship and Immigration), 2011 FC 1026 at paras 11-13, [2011] FCJ
1290 [Maizel]). That standard calls for deference and this Court will
only intervene if the outcome does not fall within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law (Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59, [2009] SCJ
12 [Khosa]).
V. Analysis
A. Was the applicant denied
procedural fairness?
[13]
In
light of the recent birth of her daughter, the officer sent an e-mail to the
applicant’s representative on April 7, 2011 obliging her to provide updated
proof of at least $17,000 in available funds for herself, her husband, and her
daughter, as required by subparagraph 76(1)(b)(i) of the IRPR. The
applicant was told to provide this evidence within 60 days from the date of
that message, meaning she was obliged to submit the evidence by Monday, June 6,
2011. While the applicant claims her representative never received this e-mail,
the message was never returned to the CIC’s Inbox as a failed delivery (RMAA,
Affidavit of Martin Barry at para 6).
[14]
I
am mindful that where the minister has shown that an e-mail was sent to an
applicant, as was done here, the risk of the failed e-mail communication falls
on the applicant (Alavi v Canada (Minister of Citizenship and Immigration),
2010 FC 969 at para 5, [2010] FCJ 1197; Zhang v Canada (Minister of
Citizenship and Immigration), 2010 FC 75 at para 14, [2010] FCJ 65). That
being said, the e-mail sent by the officer on May 12, 2011 renders any concern
about the first e-mail moot. In the second e-mail, the officer again asks for
the required information and states that it must be provided within 30 days of
that message, thereby replacing the earlier deadline of June 6, 2011 with this
new one.
[15]
The
applicant acknowledges that the new 30-day deadline fell on June 11, 2011, but
that because this was a Saturday, she argues the deadline should actually have
been deferred to the first weekday which followed, in this case Monday, June
13, 2011. While the minister disputes the applicant’s reliance on the Interpretation
Act, RSC 1985, c I-21 to calculate the delay, it agrees that the applicant
had until June 13, 2011 to submit the required proof of funds (RMAA at paras 2,
22 and 25). Having considered the officer’s e-mail and instructions, I agree
with the parties that a reasonable interpretation of the officer’s instructions
leads to the conclusion that the applicant had until Monday, June 13, 2011 to
submit the required evidence.
[16]
In
light of this, the question remains whether the officer breached the duty of
procedural fairness by rendering his decision on that same day. Considering
this issue, I bear in mind that the duty of fairness is limited in cases of
permanent residence applications made from outside Canada, that the duty is at
the relatively low end of the spectrum of what is required, and that the burden
of proof of showing a breach lies on the person alleging it (Mei v Canada
(Minister of Citizenship and Immigration), 2009 FC 1040 at para 16, [2009]
FCJ 1281 and Maizel, above, at paras 32-36). In examining the Federal
Court’s ability to intervene where a decision-maker failed to observe
procedural fairness, the Supreme Court of Canada has stated that “[r]elief in
such cases is governed by common law principles, including the withholding
of relief when the procedural error is purely technical and occasions no
substantial wrong or miscarriage of justice [emphasis added]” (Khosa,
above, at para 43). In coming to this conclusion, Justice Ian Binnie referred
approvingly to Pal v Canada (Minister of Employment and Immigration) (1999),
70 FTR 289 at para 9, [1993] FCJ 1301 [Pal], where this Court stated
that the decision to grant relief under section 18.1(4) of the Federal Courts
Act, RSC 1985, c F-7 is discretionary and that
the question to be answered “is whether the breach of natural justice was one
which could have little or no effect on the outcome of the decision as a whole.”
[17]
In
examining this question then, I cannot ignore the fact that the applicant
failed to abide by the deadline. In addition, since the applicant confirms she
was only informed of the officer’s decision by her representative on August 11,
2011 (Affidavit of applicant at para 22 and AAR at 149), the
fact that the officer rendered the decision on June 13, 2011 and that the
applicant’s representative received notice of the decision at 8:11 p.m. that
night clearly had no impact on her failure to submit the required evidence by
the deadline. As she explains in her affidavit, the applicant only delivered
the necessary bank statements to her representative on June 14, 2011 and it
appears the representative never forwarded this evidence to the officer (Affidavit
of applicant at para 20 and AAR at 150). In such circumstances, I reiterate
that the fact the officer did not wait until the following day to render his
decision had no impact on the outcome.
[18]
While
I am sympathetic to the applicant’s predicament and I recognize that she finds
herself in the unfortunate circumstance of having to reapply for permanent
residency after waiting for nearly four years for this application to be
processed, she cannot now rely on a procedural technicality to provide her with
relief for her failure to provide the required evidence by the deadline. The
officer acted diligently throughout this process: He initially provided the
applicant with a delay of sixty days to confirm that she remained eligible for
permanent residency, then provided her with a second notice in which he made
explicit reference to his earlier request and incidentally extended the
deadline by a further week. While the officer should have waited until June 14,
2011 to render his decision and failed to do so, in light of all of the
circumstances surrounding his decision and the events that followed, I find
this was not a fatal error, but rather, the type of error described in Khosa,
above, at para 43 and Pal, above, at para 9.
[19]
If
I were to find otherwise, grant the remedy sought, and return the file to
another officer, the matter would be looked at in light of its content as it
existed at the time the decision was rendered on June 13, 2011.
[20]
The
applicant has provided no evidence (and none exists in the record) that she or
her representative raised any concerns to the officer as to not having received
the earlier request or that the new deadline of 30 days would be insufficient
to allow her to obtain the necessary proof. In fact, the officer’s request was
never acknowledged and no indication was given that evidence was forthcoming.
Furthermore, the officer was never provided the bank statements allegedly
submitted to the representative and no evidence has been filed confirming their
existence. Had the applicant taken any of the above actions, the result may
have been different, and while this may appear somewhat speculative, it bears
mentioning since the onus fell on the applicant to provide adequate and
sufficient information in support of her application and the onus did not shift
to the officer after the application was first filed (Kaur v Canada
(Minister of Citizenship and Immigration), 2010 FC 442 at para 10, [2010]
FCJ 587 and Pan v Canada (Minister of Citizenship and Immigration), 2010
FC 838, [2010] FCJ 1037). A breach of the duty of fairness has to be assessed
in light of all the evidence surrounding it.
[21]
In
Uniboard Surfaces Inc v Kronotex Fussboden GmbH
and Co, 2006 FCA 398 at para 24, [2006] FCJ 1837, Justice
Décary wrote the following on behalf of the Court of Appeal:
24 […] in a given context, even though
a breach of the duty of procedural fairness or of a statutory requirement has
occurred, a court may hold the ultimate view that because of the
inconsequential, trivial or mere technical nature of the breach, the relief
sought [page116] should not be granted.
[22]
In
the present case, as seen above, the applicant did not forward the bank
statements to the officer. The file, if returned to another officer, would be
assessed without this essential information and the final outcome would
therefore remain the same. In such cases, there is no viable purpose to
returning the case when the end result will not change. I have provided counsel
for the applicant a further delay to submit any jurisprudence that may support
a different approach and, in fairness, provided the same opportunity to counsel
for the respondent. I have reviewed their submissions.
[23]
By
relying on section 18.1(3)(b) of the Federal Courts Act, counsel
for the applicant would like me to instruct an officer to request the bank
statements prior to rendering his or her decision. Counsel for the respondent
objects because of the circumstances previously described.
[24]
By
June 14, 2011, the applicant had still not filed the requested bank statements.
She was by then outside the prescribed deadline of June 13, 2011. As of today,
the information has still not been filed and the Court has no knowledge of its
content. The applicant now wishes to be relieved of her failure to respect the
established deadline, but it remains that the file must be assessed as of June
13, 2011. Even if the decision had been made on June 14, 2011, the result would
therefore have been the same. As a result, I will not instruct an officer to
require further information and the decision of June 13, 2011 must stand.
B. Did the officer err in
determining that the applicant did not meet the requirement set out
under subparagraph
76(1)(b)(i) of the IRPR?
[25]
Although
not dealt with by counsel for the applicant in her main oral argument, the
applicant argues that the officer’s reasoning was deficient in that he failed
to take into account that less than 10 months earlier, the applicant had
provided proof of funds for an amount of $14,000 and a monthly salary of more
than $4,000. However, subparagraph 76(1)(b)(i) of the IRPR requires the
applicant to “have in the form of transferable and available funds,
unencumbered by debts or other obligations, an amount equal to half the minimum
necessary income applicable in respect of the group of persons consisting of
the skilled worker and their family members.” In this case, the required amount
of available funds was $16,967 and it was reasonable for the officer not to
make a speculative determination based on the above information and to instead
require proof of the necessary amount. In light of the applicant’s failure to
provide updated information confirming that she possessed this amount, the
officer’s decision clearly falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law (Khosa,
above, at para 59).
[26]
The
parties were asked to submit questions for the purpose of certification. None
were submitted.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review is dismissed and no question will be certified.
“Simon Noël”
___________________________
Judge
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