Date: 20101026
Docket: IMM-713-10
Citation:
2010 FC 1049
Ottawa, Ontario, October 26, 2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
SURAJDEEP SINGH DHILLON
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for
judicial review, pursuant to section 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27, of a decision of a Visa Officer of the
High Commission of Canada, denying the applicant’s application for a permanent
resident visa as a skilled worker.
[2]
For the reasons that follow, this
application is dismissed
Background
[3]
Mr.
Singh Dhillon is a 26 year-old citizen of India. On May 7, 2009, he submitted an application
for permanent residence in Canada as a skilled worker. His application was reviewed by the
visa office in Sydney,
Nova
Scotia,
and it was recommended for further assessment.
[4]
The Sydney visa office sent the
applicant an email on June 19, 2009, requesting that he submit a full
application for permanent residence within 120 days. The email provided that
the application would be assessed by the New Delhi visa office, and that the
New Delhi visa office would make a final determination of the applicant’s
eligibility for processing on the basis of the documentation the applicant was
required to provide. The required documentation was listed in the email, and
included visa office-specific forms and supporting documents, for which a link
was provided. The application forms required that proof of relationship to
relatives in Canada and proof of relatives’
residency be provided. The form provided that:
Documents
submitted as proof of residency in Canada must be less than six (6) months
old. Examples of documents:
·
income tax assessment (Canada Revenue Agency) for the relative,
·
telephone bills,
·
credit card invoices,
·
employment documents, and/or
·
bank statements.
[5]
The
above-listed information was sought in order to assess whether an applicant
would be awarded any points on account of family relationships in Canada. Subsection
83(5)(a) of the Immigration and Refugee Protection Regulations, SOR/2002-227,
provides that a skilled worker shall be awarded 5 points if the skilled worker
or accompanying spouse has a relative “who is a Canadian citizen or permanent
resident living in Canada.” As was noted by counsel for the respondent,
the requirement is not that the relative be resident in Canada, as that term
may have any number of meanings, but that the relative is “living” in Canada at the
requisite point in time.
[6]
The applicant submitted his
application for permanent residence to the New Delhi visa office on October
15, 2009.
[7]
The applicant has an uncle who
allegedly was living in Canada at the date of application. With the application the
applicant included copies of his uncle’s Permanent Resident Card (indicating he
became a Permanent Resident on June 21, 2009), Social Insurance Card, and
Alberta Driver’s Licence (issued June 22, 2009) which listed his address as being
in Lacombe, Alberta. In
his affidavit filed in these proceedings, the applicant explains that “Due to
an oversight when reviewing the checklist provided from the website, I
subsequently failed to provide all the requested documents.”
[8]
The Visa Officer reviewed the
application on December 2, 2009, and undertook an analysis based on the points
system prescribed by the Regulations. The applicant received 65 points, two
points shy of the 67 points required to be eligible for permanent residence.
The applicant received 0 points for “Adaptability.” One of the factors
considered was “Family Relationship [in Canada],” for which the Visa Officer
gave no points because, in her opinion, the applicant had failed to provide
proof that his uncle was living in Canada. The CAIPS notes, which serve as the reasons for the
decision, provide as follows:
Family
relationship: 0 points – Application rec’d 15 OCT 2009. Applicant indicates he
has an uncle (mother’s brother) in Cda – who is CC however no proof of
residence. Letter from CPC Sydney to Applicant provides the website to find
out required mission specific docs – proof of residency is required – applicant
has only provided proof that he has an uncle and that he is a CC but nothing to
support any residence in Canada as per kit checklist (tax assessment, phone
bills, credit card invoices, employment docs, bank statements) – As I am not
satisfied that the applicant [sic] is currently residing in Canada, ‘0’
points allotted for family relationship.
[9]
Although
the CAIPS notes indicate that the uncle is a CC, meaning Canadian Citizen, he
was actually a Permanent Resident, as evidenced by the Permanent Resident card
submitted by the applicant. The applicant submits that this error is proof
that the Visa Officer failed to consider the evidence submitted, or to properly
consider it.
Issues
[10]
The applicant raises the following
issues:
1.
Whether the Visa Officer breached
the duty of fairness by failing to consider the evidence, forwarded by the
applicant, which clearly provided proof of his uncle’s Canadian residency?
2.
Whether the Visa Officer breached
the duty of fairness by failing to provide the applicant with the opportunity
to disabuse her of any concerns she had regarding his uncle’s residence?
3.
Whether the Visa Officer committed
an error of law in her analysis and allocation of points for adaptability?
Analysis
[11]
In
addition to the three issues identified by the applicant in his memorandum,
there is a question of the standard of review to be applied to those three
issues. The applicant submits that as
stated in Khosa v. Canada (Minister of Citizenship and Immigration), 2009 SCC 12, the standard of review for questions of
procedural fairness is correctness. He asserts that issues 1 and 2 above are
questions of procedural fairness and are thus to be reviewed on the correctness
standard. The respondent submits that the appropriate standard of review is
reasonableness given that the tribunal is an expert panel and that this Court
in Wang v. Canada (Minister of Citizenship and Immigration), 2008 FC 798, decided that the decisions
considering skilled worker applications are reviewable on a reasonableness
standard.
[12]
While the respondent is right that
the Court decided in Wang that decisions on skilled worker applications
are reviewable on a reasonableness standard, Justice Beaudry, at para. 13 of his
decision in Wang clearly stated that “It is trite law that a breach of
procedural fairness is reviewable on the standard of correctness.”
[13]
However,
I do not agree with the applicant that issue 1 is a question of procedural
fairness. It is clear from the decision, the Visa Officer’s affidavit, and her
cross-examination that the Visa Officer did consider the evidence submitted
that the applicant says proves his uncle’s residency. What the applicant is
asking the Court to do is to quash the findings the Visa Officer made based on
her assessment of that evidence. This is not a question of procedural fairness;
it is a question of whether that conclusion was reasonable, and accordingly it is
to be assessed on the deferential reasonableness standard.
[14]
I
find that issue 2 is a proper question of procedural fairness and is to be
reviewed on the correctness standard. The parties are in agreement that issue
3 is to be reviewed on the standard of reasonableness.
Consideration of the Identity Documents
[15]
The applicant says that the
identification documents provided to the Visa Officer are adequate to prove
that the applicant’s uncle resides in Canada, and that any finding otherwise must be an error of
fact committed by ignoring the relevant documentary evidence. The applicant
relies on Grewal v. Canada (Minister of Employment and Immigration) (1993), 62 F.T.R. 308 (T.D.), for the proposition that
where an immigration officer’s finding of fact is manifestly in error, certiorari
should be issued to set aside the decision. The applicant states: “It is a
fact that the Applicant has an uncle who resides in Canada and the
Applicant has submitted proof to the Visa Officer to evidence the uncle’s
residence.”
[16]
The applicant also relies on Choi
v. Canada (Minister of Citizenship and Immigration), 2008 FC 577, Wang
v. Canada (Minister of Citizenship and Immigration), 2009 FC 1107, and Lak
v. Canada (Minister of Citizenship and Immigration), 2007 FC 350, which each
found that Visa Officers erred by not considering certain evidence presented by
the applicants (a letter from a potential employer affirming suitability for a
job in Choi, alternative evidence of educational credentials in Wang,
and evidence that a medical degree is considered a professional degree in Iran
in Lak). The applicant states:
The Visa
Officer does not mention even once in her decision, why she feels that a
government issued Alberta Driver’s Licence, would not be as valid as those
documents listed on the Kit Checklist, such as a telephone bill, to proof [sic]
residency.
[17]
The applicant says that the Visa
Officer failed to turn her mind to the documentary evidence and failed to
provide any reason for why she rejected the applicant’s uncle’s Driver’s
Licence, thereby violating the duty of procedural fairness.
[18]
The respondent agrees with the
applicant that the checklist is not an exhaustive list of acceptable documents,
but argues that an applicant omits the requested documents “at his peril.” The
respondent says that an applicant runs the risk that the proffered documents
will not be sufficient to show residency, as happened here. Contrary to the
applicant’s submissions the respondent says that the Visa Officer did in fact
consider the documents submitted but determined that they were not sufficient
to prove residency.
[19]
The respondent relies on the case
of Malik v. Canada (Minister of Citizenship and Immigration), 2009 FC 1283, where the Court found that the level
of procedural fairness for this type of application is low and that a decision
that insufficient evidence has been provided was neither a fettering of
discretion nor a breach of procedural fairness. At para. 37 of Malik,
Justice Mainville, as he then was, stated that:
Indeed the
Applicant could easily have accessed the required documentation to establish
that his brother was living in Canada and in fact did access additional
information shortly after the decision was communicated to him. In such
circumstances, the Applicant cannot now raise a fettering of discretion
argument.
The
respondent submits that the Visa Officer found that the evidence provided did
not establish that the uncle was resident in Canada, and that this finding was
not unreasonable.
[20]
The applicant’s submissions rest
on two assumptions that I find to be unsupported by the record. When these
assumptions are removed, it becomes clear that the Visa Officer’s decision was
reasonable. First, the applicant starts from the position that the documents
submitted do in fact prove his uncle’s residency. At the hearing, applicant’s
counsel submitted that any reasonable person reviewing those documents would
have concluded that the uncle was living in Canada. Second, the applicant
assumes that in coming to her conclusion, the Visa Officer ignored at least one
of the documents that had been submitted.
[21]
The applicant states that he
submitted proof of his uncle’s residency to the Visa Officer and specifically
points to the Driver’s Licence. While the Visa Officer could perhaps have elaborated
more on the reasons she did not accept the Driver’s Licence as proof that the
uncle was living in Canada, a failure to do so does not place the decision
outside the “range of acceptable outcomes that are defensible in respect of the
facts and the law” as stated in Dunsmuir v. New
Brunswick, 2008 SCC 9.
Furthermore, this situation is not analogous to the facts in Choi, Wang,
or Lak, where the alternative pieces of evidence were the only evidence
available; here, the appropriate documents were apparently available. Indeed,
as noted above, the applicant himself admits in his affidavit that the failure
to include them was his own oversight. Although counsel submitted that the
uncle only recently arrived in Canada and would not have the sort of documents listed in
the Kit information, there is no evidence to support that and the applicant’s
own sworn statement strongly suggests otherwise.
[22]
The applicant is correct that the Visa
Officer did not explicitly refer to the Driver’s Licence in her decision.
However, her statement that the applicant failed to provide evidence to prove
his uncle’s residence in Canada clearly indicates that she did not consider the
Licence as sufficient evidence. Indeed, the affidavit of the Visa Officer
which she provided in this application and on which she was cross-examined
supports this logical inference. She attests that:
I was unable
to make a determination as to whether the relative was currently residing in Canada
or not as the applicant did not submit any of the suggested documents that
would prove residency as per [the New Delhi Visa Office requirements]. I
considered the documents which were submitted, including the driver’s licence
and PR Card, but found that they did not satisfactorily demonstrate current
residency. [emphasis added]
[23]
It is also noteworthy that the Visa
Officer did not find as a fact that the uncle was not residing in Canada; rather,
she found that the applicant had failed to satisfy her that the uncle was living
in Canada at the date of her decision. In short, the burden of proving the
residency of a relative rests with the applicant. It is not the Visa Officer’s
obligation to either prove or disprove residence – her obligation was only to
determine whether the weight of the evidence submitted established residency,
and in this case she found that it did not.
Duty of Fairness to Seek
Further Clarification from Applicant
[24]
The applicant submits that the
duty of fairness owed to the applicant included the duty of the Visa Officer to
inform the applicant of any concerns she had following her examination of the
application, a duty to provide him with a reasonable opportunity to disabuse
her of those concerns, and a duty to investigate the matter more thoroughly.
[25]
The applicant cites Salman v.
Canada (Minister of Citizenship and Immigration), 2007 FC 877, where the
applicant had explained to the Visa Officer that transcripts were not usually
issued in Iran and instead provided a diploma. The Court found that in those
circumstances the Officer had a duty to investigate the issue more thoroughly
before rejecting the application because of the failure to provide transcripts.
[26]
The applicant submits that he “had
no way of knowing” that the Visa Officer would expect him to adhere strictly to
the Kit Checklist, as the email he received did not warn him of the need for
strict compliance. The applicant also notes that the email did not warn him
that the Visa Officer would not ask for further submissions if he failed to
provide documentation. The applicant says the “ambiguous” email instructions
should increase the duty to give the applicant an opportunity to make further
submissions.
[27]
I
agree with the respondent that the applicant had no reason to believe he would
be able to file any additional material or be contacted for clarification. The
email sent to the applicant requesting that he file an application clearly
provided:
The Visa Office will make a final
determination of your eligibility for processing on the basis of the
information and documentation you provide. [emphasis added]
Furthermore, as noted above, the applicant
himself admitted that the failure to include the requested documents was an
“oversight” on his part.
[28]
The
situation here is not analogous to Salman, where the applicant provided
alternative evidence with an explanation of why the requested evidence, a
transcript, could not be provided. Here there is no evidence that better evidence,
of the sort requested in the instructions, was not available.
[29]
The
applicant says that the email did not warn him that strict compliance with the
forms was required, but he provides no explanation for why he would think that
anything less than strict compliance would be required, especially given that
the email sent him says “Your full application must consist of the
following …” [emphasis added]. Again, the applicant’s own admission in his
affidavit that he overlooked the requested documents when completing his
package suggests that the instructions were understood by him and were not
“ambiguous,” as he now suggests in his written submissions.
Analysis of Points Awarded
[30]
The applicant says that it appears
that the Visa Officer’s finding that he had failed to prove his uncle’s
residency rests solely on the fact that the applicant did not provide the
documentation listed on the Kit Checklist as examples of the sort of
documentation that is to be submitted. He notes that the Driver’s Licence was
in fact less than six months old at the time of the application, a requirement
of the listed documentation, and therefore it should have been accepted.
[31]
The applicant also notes that
nowhere in the Act, the Regulations, or the Federal Skilled Workers’ Manual is
it stated that Visa Officers are only to consider the documents listed on the
Kit Checklist. Accordingly, he submits that where an applicant has provided
documentation to prove that he or she has a relative residing in Canada, the
applicant must be given five points unless the document’s authenticity is
challenged, since the Kit Checklist is only a guide. The applicant argues that
since Parliament has left it up to Visa Officers to decide how they will assess
whether an applicant has a relative living in Canada, the applicant here should
not be put to strict compliance with the Kit Checklist. The applicant says that
by failing to consider the other evidence, the Visa Officer fettered her
discretion and committed an error of law. In the applicant’s Reply, he notes
that under Alberta’s Operator Licensing and Vehicle Control Regulation,
Alta. Reg. 320/2002, only residents of Alberta may obtain an Alberta Driver’s Licence.
[32]
The respondent submits that the Officer
did not fetter her discretion because the CAIPS notes clearly show that she
considered the applicant’s documents, but found that they did not show that the
relative was actually living in Canada. The respondent says that this was a reasonable
determination, and relies on Malik.
[33]
I agree with the respondent on
this issue. Again, the applicant assumes that the documentation he provided
proves that his uncle is living in Canada. Contrary to this assumption, the Visa Officer did
not accept that the Driver’s Licence proved that fact. Accordingly, the
applicant’s argument that any document proving residency must result in points
being awarded cannot be accepted on these facts as the Visa Officer never
accepted the Drivers’ Licence as proof of residence in Canada. The
applicant is quite right that the Visa Officer has the discretion to decide how
to assess whether an applicant has a relative living in Canada – here the
Officer exercised that discretion in a reasonable way and found that the
applicant had not established that his uncle was currently resident in Canada. There
was no fettering of discretion as the Visa Officer did not reject the
application on the basis that the applicant had failed to provide the examples
of documents listed in the Kit; rather she examined those documents that were
provided, weighed them, and concluded that they did not establish on the
balance of probabilities that the uncle was currently living in Canada.
[34]
The fact that the Visa Officer did
not accept the Driver’s Licence as evidence, even though it was issued within
six months from the date of the application, does not render her decision
unreasonable. It is clear that the issue here was the type of evidence
provided, not the date it was provided. A Driver’s Licence proves nothing
about residence other than that the holder stated that this was their residence
at the time they received their licence.
[35]
Further, the applicant’s submissions
regarding Alberta’s Operator Licensing and Vehicle Control
Regulation are not convincing. There is no obligation on a Visa Officer to
seek out provincial legislation to determine the requirements for the issuance
of a certain document. Nowhere in his application to the High Commission did
the applicant include any information about the Alberta’s Operator Licensing
and Vehicle Control Regulation. If he had informed the Visa Officer that
his uncle was a recent arrival in Canada, did not have any of the documents
listed in the Kit checklist, and provided information that Drivers’ Licences in
Alberta are issued only to residents of that Province, then I may have been
persuaded, on the basis of Salman, that the Officer’s
assessment of the evidence without further inquiry was unreasonable.
[36]
The
Visa Officer’s decision was reasonable and the applicant has not shown that the
process used to reach it was procedurally unfair. Accordingly, this
application is dismissed.
[37]
Neither
party proposed a question for certification; there is none.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
This
application is dismissed; and
2.
No
question is certified.
“Russel
W. Zinn”
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