Date:
20120907
Docket:
IMM-45-12
Citation:
2012 FC 1068
Ottawa, Ontario,
September 7, 2012
PRESENT: The
Honourable Mr. Justice Near
BETWEEN:
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PUSHPANIE PEDURU ARACHCHIGE
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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 of the decision of a Citizenship and
Immigration Canada (CIC) Case Officer (“the Officer”), by which the Applicant was
denied permanent residence under the Canadian Experience Class of subsection
12(2) of the Immigration and Refugee Protection Act, SC 2001, c 27
(IRPA) and section 87.1 of the Immigration and Refugee Protection
Regulations, SOR/2002-227 (the Regulations). The Officer was not satisfied
that the Applicant met the skilled work requirement of this category and
rendered the decision on December 22, 2011.
[2]
For
the following reasons, this application is dismissed.
I. Facts
[3]
The
Applicant is a Sri Lankan citizen who first came to Canada on a student visa in
2004. After completing her Bachelor of Science at Trent University, the
Applicant worked part-time as Cashier and then Store Supervisor at Bulk Barn
#534 (Bulk Barn) in Toronto. She also worked part-time as a Technician at MNA
Engineering, Ltd (MNA Engineering). She submitted an application for permanent
residence under the Canadian Experience Class based on the hours worked in
these two jobs on June 25, 2011. In her application, the Applicant categorized
her employment under the National Occupation Categories (NOC) 6211
(Level B) – Retail Sales Supervisors and 2231 (Level B) – Civil Engineering
Technologists and Technicians.
II. Decision
under Review
[4]
The
Officer assessed the application on the basis of the following pass/fail
requirements under section 87.1(2) of the Regulations: knowledge of English or
French; Canadian skilled work experience; and Canadian educational credentials.
The Officer was not satisfied that the Applicant met the skilled work experience
requirement because she had not demonstrated that she had acquired a minimum of
one year of qualifying full-time employment in accordance with the Regulations.
[5]
Specifically,
the Officer found that the letter of reference from MNA Engineering did not demonstrate
that she performed the duties associated with jobs in the NOC 2231 category. Additionally,
the Officer was not satisfied, based on the letter of reference from Bulk Barn
and the Applicant’s T4 from 2010, that she had worked sufficient hours to
qualify her for permanent residence in the Canadian Experience Class.
III. Issues
[6]
This
application raises the following issues:
(a) Was
failing to alert the Applicant to the Officer’s concerns with her application a
breach of procedural fairness?
(b) Was the Officer’s
decision reasonable?
IV. Standard
of Review
[7]
Issues
of procedural fairness are reviewable on a standard of correctness (Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009]
1 SCR 339 at para 43).
[8]
This
Court has recently held that an officer’s determinations under the Canadian
Experience Class involve findings of fact and law, and are thus reviewable on a
standard of reasonableness (see Anabtawi v Canada (Minister of Citizenship
& Immigration), 2012 FC 856, [2012] FCJ No 923 at para 28). Moreover,
and contrary to the Applicant’s submissions, it is well-established that the
standard of review for questions relating to the interpretation of the
decision-maker’s enabling statute or “statutes closely connected to its function,
with which it will have particular familiarity” is also reasonableness (Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 54; Smith v Alliance Pipeline
Ltd, 2011 SCC 7, [2011] 1 S.C.R. 160 at para 26).
V. Analysis
A. Procedural
Fairness
[9]
The
Applicant contends that the Officer breached the duty of procedural fairness by
failing to afford her an opportunity to address the Officer’s concerns with
respect to the number of hours that she worked. The Applicant submits that, as
in Gedeon v Canada (Minister of Citizenship and Immigration), 2004 FC
1245, [2004] FCJ No 1504, the Officer’s conclusion was “so at odds with the
information in the employer’s letter that the Officer should have addressed
this discrepancy and should have given the Applicant the opportunity to address
his concerns” (Gedeon, above at para 99).
[10]
The
Respondent contends that the Officer was under no obligation to make further
inquiries with the Applicant as to the sufficiency or credibility of the
evidence she submitted with her application. I agree. This Court has held
that an “applicant’s failure to provide adequate, sufficient or credible proof
with respect to his visa application does not trigger a duty to inform the
applicant in order for him to submit further proof to address the finding of
the officer with respect to the inadequacy, deficiency or lack of credibility”
(Liu v Canada (Minister of Citizenship and Immigration), 2006 FC 1025,
[2006] FCJ No 1289 at para 16).
[11]
At
the core of the principle of procedural fairness is a determination of whether,
considering all circumstances, those whose interests are affected by a decision
had a meaningful opportunity to present their case fully and fairly (Baker v
Canada (Minister of Citizenship & Immigration), [1999] 2 S.C.R. 817 at
para 30). The legitimate expectations of, and importance of the decision to,
the person who is affected by the decision are among the factors identified by
the Supreme Court of Canada in Baker, above, to be considered in
evaluating whether there has been a breach of procedural fairness in a given
situation (see paras 25 and 26). The agency’s choice of procedure is also to
be given considerable weight (Baker, above, at para 27).
[12]
The
Applicant relied on the Document Checklist for Permanent Residence in the
Canadian Experience Class (“Checklist”) provided by CIC in submitting her
application, expecting that, by complying with the Checklist, there would be no
evidentiary issues. The Applicant further contends that Section 10.2 of CIC’s
Overseas Processing Manual OP 25 – Canadian Experience Class “clearly indicates
that it may be necessary to hold a personal interview with the applicant if
there are questions or doubts surrounding the application” (Applicant’s
Memorandum of Fact and Law at para 36).
[13]
However,
the Checklist on which the Applicant relies explicitly states that:
The Visa Officer will assess your application on the
basis of the information you have provided. The Officer is under no obligation
to request information you have not provided.
[14]
This
Court has further held that, while an applicant may be provided with a list of
required documents by the agency accepting the application, the applicant is
not limited to supplying only those documents (Qin v Canada (Minister of
Citizenship and Immigration), 2002 FCT 815, [2002] FCJ No 1098 at para
7). Here, the Applicant was free to submit T4 tax information slips and pay
stubs from 2009 and 2011, even if the Checklist asked only for the “most recent
T4 tax information slips and Notice of Assessment.” The fact that she did not
submit all of the evidence in her possession does not mean that the Applicant
did not have a meaningful opportunity to present her case fully and fairly.
[15]
Additionally,
Section 10.1 of CIC’s Overseas Processing Manual lays out the options available
to an Officer in situations in which he or she is unable to make a decision,
due to lack of information or documentation, or where there are serious doubts
as to the legitimacy of the document submitted:
• request, in writing,
specific information or documentation to clarify; or
• refuse the application; or
• consider a personal
interview (Section 10.2) (Overseas Processing Manual OP 25 - Canadian
Experience Class at 20).
[16]
The
Officer’s decision to refuse the application without requesting further
information or convoking the Applicant for an interview is an outcome foreseen
by the Processing Manual, which was available to the Applicant. I am thus of
the opinion that there was no breach of procedural fairness in this case.
B. Reasonableness
of the Decision
[17]
The
Applicant submits that the Officer erred in her assessment of the application
by failing to consider the hours worked by the Applicant in 2009 and 2011. The
Applicant further submits that the Officer’s conclusion that the Applicant did
not meet the work experience requirements of the Canadian Experience Class was
unreasonable because the evidence before the Officer clearly indicated that she
did.
[18]
The
evidence before the Officer included the letters from the Applicant’s two
employers and her T4s from 2010. The Officer turned her mind to the hours that
the Applicant may have worked in 2009 or 2011, as claimed in the employer
letters, but without corroborating evidence for those two years (i.e. T4s or
pay slips), it was reasonable for the Officer to conclude that the Applicant
had not met the requirements of the legislation.
VI. Conclusion
[19]
The
Officer was not obligated to notify the Applicant of her concerns with the
application and, as such, did not breach procedural fairness. The Officer’s
conclusion, based on the evidence before her, was reasonable.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application for judicial review is
dismissed.
“ D. G. Near ”
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