Docket: IMM-4657-11
Citation: 2012 FC 700
Ottawa, Ontario, June 6, 2012
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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SARABJIT SINGH SEKHON
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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
I. Overview
[1]
In
2009, Mr. Sarabjit Singh Sekhon, a citizen of India, sought
permanent residence in Canada as a skilled worker. He had been working at
a school in Brampton teaching
Punjabi on a temporary work permit, and had an offer for continued employment.
An immigration officer in Buffalo concluded that Mr.
Sekhon did not meet the required threshold of 67 points.
[2]
When
the officer received Mr. Sekhon’s application, she asked for additional
information, including tax documents, financial statements for his employer,
and pay slips. Mr. Sekhon supplied the requested information and an updated job
offer. However, the officer was not satisfied that the offer was genuine or
that Mr. Sekhon’s employer was conducting business at the address provided. Mr.
Sekhon then provided additional documents – letters from the employer, the
employer’s accountant and parents at the school, as well as some photographs.
Still, the officer’s concerns remained and she rejected his application.
[3]
Mr.
Sekhon argues that the officer treated him unfairly by relying on concerns she
did not disclose to him. In addition, Mr. Sekhon submits that the officer’s
decision was unreasonable because she discounted the documents on which his
application relied without justification.
[4]
I
agree with Mr. Sekhon that he was treated unfairly in the circumstances and
will grant his application for judicial review on that basis. I need not,
therefore, consider whether the officer’s decision was unreasonable.
[5]
Accordingly,
the sole issue is whether Mr. Sekhon was treated unfairly.
II. The Officer’s Decision
[6]
The
officer granted Mr. Sekhon points for his work experience, education and
English language skills. However, the officer gave him no points for his arranged
employment because she was not satisfied that his job offer was genuine. The
employer’s documents did not show Mr. Sekhon was on the payroll until October
2010, after he was asked to provide proof of employment. Further, his tax
statement showed an annual income of $33,523, which amounted to an average of
24 hours a week – not a full-time work load.
[7]
After
the officer raised these concerns, Mr. Sekhon provided documentary evidence
showing that his income was reduced because of time off for illness and
renovations at the school, and that payroll deductions had not been made for
him because of an accounting error. He also provided corroborative letters from
parents and photographs of the school.
[8]
However,
the officer was not satisfied with this evidence. She concluded that the
accountant’s explanations were implausible, and that the evidence did not prove
that parents had paid tuition or that students had received instruction in a
real classroom. She noted that the school’s address was in a residential neighbourhood.
III. Did the officer treat Mr.
Sekhon unfairly?
[9]
The
Minister argues that the officer gave Mr. Sekhon a chance to respond to her
concerns about the genuineness of his job offer. Accordingly, she treated him
fairly. I disagree.
[10]
In
her correspondence with Mr. Sekhon, the officer stated that she was not
satisfied that the offer of employment was genuine or that the school was
actively conducting business at the address provided. Mr. Sekhon provided
further documents but these did not satisfy the officer’s concerns.
[11]
However,
from the officer’s notes, it appears that the officer had more specific
concerns of which Mr. Sekhon would have been unaware. For example, the officer
was sceptical about the location of the school and its ability to pay Mr. Sekhon’s
salary. She was also concerned about the school’s late tax remittances, the
lack of a business registration for the school, and the absence of a further
updated job offer.
[12]
Mr.
Sekhon’s submissions were directed to the officer’s concerns about whether the
school was carrying on business at the stated address. The parents’ letters and
photographs were aimed at meeting those concerns, and further documentation was
provided regarding the school’s finances. But Mr. Sekhon could not have met the
officer’s other unstated concerns because he was not made aware of them.
[13]
Accordingly,
I find that Mr. Sekhon was not given a fair opportunity to meet the officer’s
concerns about the shortcomings of his application.
IV. Conclusion and Disposition
[14]
The
officer did not give Mr. Sekhon a chance to meet her real concerns about his
application. Therefore, he was not treated fairly. Accordingly, I must allow
this application for judicial review and order a reassessment of Mr. Sekhon’s
application by another officer. Neither party proposed a question of general
importance for me to certify, and none is stated.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1.
The
application for judicial review is allowed. The matter is referred back to another
officer for a reassessment.
2.
No
question of general importance is stated.
“James
W. O’Reilly”
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