Date: 20090730
Docket: IMM-4911-08
Citation: 2009 FC 788
Ottawa,
Ontario, July 30, 2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
MOJTABA
KARAMI
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application pursuant to s. 72 (1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial
review of a decision of an Officer of Citizenship and Immigration Canada (Officer),
dated October 29, 2008 (Decision), refusing the Applicant's application because
of misrepresentation or withholding proof of employment, which rendered the
Applicant inadmissible under paragraph 40(1)(a) and paragraph 40(2)(a)
of the Act.
BACKGROUND
[2]
The
Applicant was born on August 11, 1980 in Kazeroom, Iran. He
presently resides in Tehran and is unmarried with no children.
[3]
The
Applicant says he is currently employed as a welder in Tehran by Yamgan
Company, a large contractor. He has been employed with the Yamgan Company from
2001 until 2005, and then from 2006 until the present time.
[4]
In
2004, the Applicant was working for Yamgan Company in Kerman. The post office
in Kerman hired Yamgan
Company to build an office expansion. The Applicant alleges that he never
claimed to be, nor ever was, employed by the post office of Iran. At all
material times he remained an employee of Yamgan Company.
[5]
The
Applicant was interviewed by Saskatoon Metal Manufacturing and was offered a
permanent job as a welder in Saskatoon, Canada. The Applicant
applied as a skilled worker to the Saskatchewan Immigrant Nominee Program and
was accepted.
[6]
The
Applicant then applied to the Canadian Embassy in Tehran for a work
permit in order to come to Canada to work for Saskatoon Metal Manufacturing in Saskatoon. The
Applicant was notified on October 29, 2008 that he had been denied entry to Canada for
misrepresenting or withholding proof of employment.
[7]
The
Applicant asserts that, upon further investigation, he discovered that when the
Officer was confirming his employment for the time he had been working in
Kerman, a representative for the Canadian Embassy in Iran had in fact
contacted the post office in order to verify his employment. The Applicant was
not an employee of the post office, but an employee of Yamgan Company who was
on contract with the post office. The Applicant alleges he was never given a
chance to provide input into this matter and that, as a result, his employment
situation has not been truly assessed.
DECISION UNDER REVIEW
[8]
The
Officer held that the Applicant did not qualify for a visa to Canada.
[9]
The
Officer cited paragraph 40(1)(a) of the Act stating that a foreign
national is inadmissible for misrepresentation for directly or indirectly
misrepresenting or withholding material facts relating to a relevant matter
that induces or could induce an error in the administration of the Act. The
Officer also noted paragraph 40(2)(a) of the Act which specifies that a
foreign national continues to be inadmissible for misrepresentation for a
period of two years following an inadmissibility determination under subsection
(1).
[10]
The
Officer noted that on September 1, 2008, the Applicant misrepresented his proof
of employment at the Embassy of Canada in Tehran. The Officer
reached this determination because of verifications checks carried out in
relation to the Applicant’s application. The Officer also says that she gave
the Applicant a chance to provide input on the matter. The Officer concluded
that the misrepresentation or withholding employment information induced, or
could have induced, errors in the administration of the Act, as the Applicant
would have been assessed as having ties to the region which he did not have.
[11]
The
Officer concluded that the Applicant was inadmissible to Canada for a period
of two years from the date of the October 29, 2008 letter.
ISSUES
[12]
The
Applicant submits the following issues on this application:
a.
Did
the Officer fail to contact the appropriate personnel when confirming the
Applicant’s employment history, or use otherwise erroneous information as the
basis of her Decision?
b.
Did
the Officer fail to allow the Applicant to provide an explanation for any
apparent discrepancies?
c.
Did
the Officer make a patently unreasonable decision in accusing the Applicant of
misrepresenting himself and barring him from admissibility to Canada for a
period of two years?
d.
Is
the Decision based on an erroneous finding of fact made in a perverse or
capricious manner?
STATUTORY PROVISIONS
[13]
The following
provisions of the Act are applicable in these proceedings:
|
11. (1) A foreign national must, before entering Canada,
apply to an officer for a visa or for any other document required by the
regulations. The visa or document may be issued if, following an examination,
the officer is satisfied that the foreign national is not inadmissible and
meets the requirements of this Act.
40. (1) A permanent resident or a foreign national is
inadmissible for misrepresentation
(a) for directly or indirectly misrepresenting or withholding
material facts relating to a relevant matter that induces or could induce an
error in the administration of this Act;
(b) for being or having been sponsored by a person who is
determined to be inadmissible for misrepresentation;
(c) on a final determination to vacate a decision to allow the
claim for refugee protection by the permanent resident or the foreign
national; or
(d) on ceasing to be a citizen under paragraph 10(1)(a) of
the Citizenship Act, in the circumstances set out in subsection 10(2)
of that Act.
(2) The following provisions
govern subsection (1):
(a) the permanent resident or the foreign national continues to
be inadmissible for misrepresentation for a period of two years following, in
the case of a determination outside Canada, a final determination of
inadmissibility under subsection (1) or, in the case of a determination in
Canada, the date the removal order is enforced; and
(b)
paragraph (1)(b) does not apply unless the Minister is satisfied that
the facts of the case justify the inadmissibility.
|
11. (1)
L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les
visa et autres documents requis par règlement. L’agent peut les délivrer sur
preuve, à la suite d’un contrôle, que l’étranger n’est pas interdit de
territoire et se conforme à la présente loi.
40. (1) Emportent interdiction de
territoire pour fausses déclarations les faits suivants :
a) directement ou indirectement, faire une présentation
erronée sur un fait important quant à un objet pertinent, ou une réticence
sur ce fait, ce qui entraîne ou risque d’entraîner une erreur dans
l’application de la présente loi;
b) être ou avoir été parrainé par un répondant dont il a
été statué qu’il est interdit de territoire pour fausses déclarations;
c) l’annulation en dernier ressort de la décision ayant
accueilli la demande d’asile;
d) la perte de la citoyenneté au titre de l’alinéa 10(1)a)
de la Loi sur la citoyenneté dans le cas visé au paragraphe 10(2) de
cette loi.
(2) Les dispositions suivantes s’appliquent au paragraphe
(1):
a) l’interdiction de territoire court pour les deux ans
suivant la décision la constatant en dernier ressort, si le résident
permanent ou l’étranger n’est pas au pays, ou suivant l’exécution de la
mesure de renvoi;b) l’alinéa (1)
b) ne s’applique que si le ministre est convaincu que les
faits en cause justifient l’interdiction.
|
STANDARD OF REVIEW
[14]
The standard
of review to be applied when determining whether an officer made a reviewable
error in concluding that an applicant made a material misrepresentation
pursuant to paragraph 40(1)(a) of the Act is reasonableness: Walia v.
Canada (Minister of Citizenship and Immigration) 2008 FC 486 at paragraph 6
(F.C.T.D.) and Dunsmuir v. New Brunswick 2008 SCC 9 (Dunsmuir) at paragraph 47.
[15]
In Dunsmuir, the Supreme
Court of Canada recognized that, although the reasonableness simpliciter
and patent unreasonableness standards are theoretically different, “the analytical
problems that arise in trying to apply the different standards undercut any
conceptual usefulness created by the inherently greater flexibility of having
multiple standards of review”: Dunsmuir at paragraph 44.
Consequently, the Supreme Court of Canada held that the two reasonableness
standards should be collapsed into a single form of “reasonableness” review.
[16]
The Supreme Court of Canada in Dunsmuir also held that the
standard of review analysis need not be conducted in every instance. Instead,
where the standard of review applicable to the particular question before the
court is well-settled by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless must the reviewing
court undertake a consideration of the four factors comprising the standard of
review analysis.
[17]
Thus, in light of the Supreme Court of Canada’s decision in Dunsmuir and
the previous jurisprudence of this Court, I find the standard of review
applicable to the issues on this application to be reasonableness, with the
exception of the procedural fairness issues. When reviewing a decision on the
standard of reasonableness, the analysis will be concerned with “the existence
of justification, transparency and intelligibility within the decision-making
process [and also with] whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir at
paragraph 47. Put another way, the Court should only intervene if the Decision was unreasonable in the
sense that it falls outside the “range of possible, acceptable outcomes which
are defensible in respect of the facts and law.”
[18]
The
Applicant has also raised a procedural fairness issue to which the standard of
review is correctness: Suresh v. Canada (Minister of Citizenship
and Immigration) 2002
SCC 1.
ARGUMENTS
Officer Failed to Contact
Appropriate Personnel
[19]
The
Applicant submits that the Officer told him in relation to his work for Yamgan
Company that “several long-term employees said that he did not work there.” The
Applicant says this is untrue. Maryam Gholaminejas, secretary for the central
officer of Yamgan Company, stated in her affidavit that she was contacted by
the Canadian Embassy and informed them that she did know the Applicant;
however, she did not have any detailed information about his job description,
as she had no direct contact with anyone outside of the central office. The
Applicant notes in his affidavit that he only attended the central office once
or twice a year, when there had to be contact with the Executive Director or
Financial Manager.
[20]
The
Applicant also submits that the Officer’s conclusions are also contradicted by
the information in the affidavit of Mr. Elahi, Project Supervisor of the Post
Officer Project for Yamgan Company. In his conversation with the Canadian
Embassy, Mr. Elahi alleges that he stated he did not know any of the workers on
the project and did not have access to a list of workers. The Officer commented
that she “…checked with the project manager for that project who stated that
the information on that contract was not correct-that he did not know subject.
That the project was not big enough for a group of welders, he named the person
who had done the welding.” The Applicant says that this directly contradicts
the statements given in Mr. Elahi’s affidavit and that it can be inferred from
the interview transcript that the Officer considered this information
important, and as such its falsity is highly material to the Decision.
[21]
The
Applicant notes that Ahmad Ahmedyar Lasboo Mahaleh, Supervisor at Yamgan
Company, stated in his affidavit that he knew the Applicant well and that he
had worked for Yamgan Company since 2001.
[22]
The Applicant
says that the Officer relied on the information provided by the staff of the
Canadian Embassy in Iran. She could not have directly
contacted the employers herself because of the language barrier. The Applicant
alleges that the Officer made serious errors when relying on material facts.
The fact that the Applicant was not given a chance to explain the Officer’s
findings led to false information being used in his assessment. Therefore, the
Applicant was accused of misrepresentation and the Officer acted in a
capricious manner. Her refusal to hear the Applicant lead to an unreasonable
Decision.
Officer Failed to Allow
Applicant to Explain Discrepancies
[23]
The
Applicant submits that he was told that the Canadian Embassy had contacted the
post- office in Kerman, Iran to confirm his employment and that the post office
had said they had no record of an employee with the Applicant’s name. When the
Applicant attempted to explain to the Officer that the company he worked for
had been hired by the post office to build an expansion of their offices, he says
he was interrupted and was not allowed to continue with his explanation.
[24]
The
Applicant says that the people contacted to confirm his employment history
claimed not to know him and he attempted to explain the possible cause for the misunderstanding,
but the Officer stood up and left the interview. The Applicant says that the
jurisprudence relating to work experiences makes it clear that an applicant
must be made aware of key issues so that they may respond. As well, the principal
elements of the Officer’s assessment of experience and occupation must be made
clear to an applicant throughout, and an applicant must be open to questioning:
Arshi v. Canada (Minister of
Citizenship and Immigration) 2003 FCT 323.
[25]
The
Applicant says that he was not given a reasonable chance to provide an
explanation for the discrepancies upon which the Officer based her Decision.
Therefore, it is reasonable to assume that had the Applicant been allowed to
explain that he had never actually been employed by the post office, the issue
would have been easily resolved.
[26]
The
Applicant notes that the Officer stated that the verifications of supporting
documents “Proof of Employment at Yamgan” and “Training Certificate for
Welding” do not check out. The Applicant was told to bring these original
documents to the interview, which he did, but he was never asked to present
them and the Officer never mentioned anything about these documents to him in
the interview. There is also no record of any discussion regarding these
documents.
[27]
The
Officer later accused the Applicant of misrepresenting these documents; an
accusation with the most serious consequence of barring the Applicant from
entry to Canada for two years. The Applicant says that by coming to such a
conclusion without even asking to see the documents in question constitutes a
clear breach of procedural fairness and natural justice.
Officer Made Patently
Unreasonable Decision
[28]
The
Applicant notes that the Officer relied heavily upon her interview with the
Applicant in making her Decision. Therefore, it was imperative to establishing
a fair procedure to allow the Applicant’s input at the interview. The Applicant
cites Mehta v. Canada (Minister of Employment
and Immigration) 2003 FC 1073 (Mehta) at paragraph 9:
9 It is clear from the refusal letter that the visa officer relied upon
her conversation with the peon as one of the reasons for
her decision. The content of that conversation was not put to the applicant and
the failure to do so, in accordance with the above noted authorities,
constitutes a breach of procedural fairness. It may be that the officer would
have come to the same conclusion in any event, but it is not evident or certain
that such would be the case. Therefore, it cannot be said that this is one of
those infrequent instances in which the breach was immaterial. Thus, the application
for judicial review will be allowed. Counsel posed no question for
certification. This matter raises no serious issue of general importance.
[29]
The
Applicant submits that it is settled law that where a decision is based
primarily on extrinsic evidence, an applicant must be given an opportunity to
respond to such evidence. By not giving the Applicant an opportunity to respond
in this case, incorrect information was used to make the Decision and therefore
the Decision is erroneous. See: Sorkhabi v. Canada (Secretary of State), [1994] F.C.J. No. 1976
(F.C.T.D.); John v. Canada (Minister of Citizenship and Immigration), [1997]
F.C.J. No. 52 (F.C.T.D.) and Chow v. Canada (Minister of Citizenship and Immigration) 2001 FCT 996.
[30]
The
Applicant says that this Court should consider and admit the evidence of Mr.
Elahi and Ms. Maryam Gholaminejad and Mr. Ahmad Ahmedyar Lasboo Mahaleh in the
form of affidavits in the Applicant’s record, as it is the only way that the
Applicant can bring to the Court’s attention the breach of procedural fairness
and natural justice that has occurred in this case. The Applicant notes that
the Officer made her Decision by relying on extrinsic evidence without giving him
an opportunity to reply in a proper manner. Therefore, the Decision is based on
an erroneous finding of fact made in a perverse or capricious manner.
The Respondent
Preliminary
Issue
[31]
The
Respondent submits that the Applicant refers throughout his Memorandum to the
CAIPS notes as a transcript of the interview. The Respondent clarifies that the
CAIPS notes are an electronic system to gather and update information from
applicants and to make notes on the status of an application’s progress. They
are not an actual transcript of the interview.
Issue One
[32]
The
Respondent submits that significant efforts were made and appropriate personnel
were contacted in relation to the Applicant’s application, and none of the
verifications conducted corroborated the Applicant’s employment history as disclosed
in his application.
[33]
The
Respondent argues that the persons contacted for verification were not “peons”
as considered in Mehta at paragraph 5. Rather, multiple verifications
were conducted regarding the Applicant’s employment, including long-term
employees of Yamgan Company.
[34]
The
Respondent stresses that the Officer was open to accepting the information
provided by the Applicant. The Applicant’s training certificate for welding
studies between June 2006 and December 2006 in Jagrood, Iran was initially questioned. However,
following verifications conducted prior to his interview, the authenticity of
the training certificate was confirmed.
[35]
The
Respondent notes that two long-term employees of Yamgan Company were contacted
for verifications of the Applicant’s employment. The employees separately
provided a physical description to confirm the identity of the Applicant and stated
that the Applicant did not work for Yamgan Company. Rather, the employees each
volunteered that the Applicant was a relative (nephew) of the head of the
company.
[36]
The
additional verifications conducted regarding the contract which Yamgan Company
had with the Kerman post office
construction project involved interviews with the project manager and the
individual who was head of the workshop for three years. Neither knew the
Applicant or could confirm that he worked on the project. As well, the head of
the workshop provided details regarding the parameters of the project,
including the different electrodes used. He said that the project was largely
concrete and not metal and was not large enough to require a group of welders. The
head of the workshop also provided the name of the welder on the project.
[37]
The
Respondent concludes on this issue that the Officer clearly understood that the
Applicant claimed to be under a contract for the construction project and was
not an employee of the Kerman post office.
Issues Two and Three
[38]
The
Respondent submits that the purpose of paragraph 40(1)(a) of the Act is
to ensure that applicants provide complete, honest and truthful information in
every manner when applying for entry into Canada: Bodine v. Canada (Minister of Citizenship
and Immigration) 2008 FC 848 at paragraph 44.
[39]
The
Respondent notes that to make a finding of inadmissibility under paragraph
40(1)(a) of the Act, two factors must be present: (1) there must be a misrepresentation
by the Applicant; and (2) the misrepresentation must be material in that it
could induce an error in the administration of the Act. Relevant information
becomes material when it affects the process undertaken or the final decision: Bellido
v. Canada (Minister of
Citizenship and Immigration) 2005 FC 452 (Bellido) at paragraph 27 and
Koo v. Canada (Minister of
Citizenship and Immigration) 2008 FC 931 (Koo) at paragraph 19.
[40]
The
Respondent submits that the Officer’s practice is to only consider paragraph
40(1)(a) of the Act if the refutations provided on verifications are
credible and material to the application. The Officer informed the Applicant of
the discrepancies and provided the Applicant with an opportunity to explain.
[41]
The
Respondent states that it is settled law that there is no duty on an Officer to
inform an applicant of concerns regarding an application, or to provide an applicant
with an opportunity to respond before concluding an assessment. However, there
is an exception when an Officer relies on extrinsic evidence in coming to
his/her decision. In such a case, the Officer is required to provide the applicant
with an opportunity to respond to the extrinsic evidence. See: Mehta at
paragraphs 7-8 and Bellido at paragraph 36.
[42]
The
Respondent notes that the onus was on the Applicant to provide the Officer with
all of the relevant information and documentation necessary to demonstrate that
he meets the requirements of the Act. The Canadian Embassy contacted employees
of the company he claimed to be employed by, as well as project managers who
would have knowledge of the projects the Applicant claimed to have been
contracted to, in order to verify the Applicant’s employment experience. None
of these persons confirmed the information provided by the Applicant and, in
fact, many provided evidence that directly refuted the Applicant’s information.
See: Tran v. Canada (Minister of Citizenship and Immigration), [2006]
F.C. 1377 at paragraphs 4 and 36.
[43]
The
Respondent notes that, during the interview, the Officer explained to the Applicant
the verifications that had been done. She explained who had been contacted and
the specifics of the information they had provided to refute the Applicant’s
information. The Officer informed and made clear to the Applicant the issues
raised by the verifications. Further, the Officer provided the Applicant with
several open-ended opportunities to provide an explanation. Other than
indicating it was a mistake, the Applicant provided no explanation.
[44]
The
Respondent points out that the CAIPS notes from the interview reflect that the
Officer gave the Applicant several opportunities to respond to the evidence
obtained in the verifications. The notes state in relevant part as follows:
·
“Asked subj if he had
an explanation as to why several long term employees would say he was not
employed there”;
·
“Asked subj for
explanation”; and
·
“I also gave subj a
chance to provide input on the matter.”
[45]
The
Respondent states that the Officer reviewed the employment contracts and other
documentation provided by the Applicant. Her notes from the interview state as
follows:
·
“Explained to subj
that we had checked the various employment & other supporting documents”;
·
“Explained to subj
that we also checked the information on the employment contracts that he
presented as proof of his employment”;
·
“Asked subj about the
details of another contract”; and
·
“Subj has provided
fraudulent employment documents.”
[46]
The
Respondent says that the Officer also considered the inconsistencies within the
documents presented in support of the application. She noted that the welder
approval test certificate was issued in December 2006 and she did not believe,
based on her experience, that the Applicant would be contracted as a master
welder from November 2003 to November 2005 without training.
[47]
The
Respondent also states that the Applicant completed a Map Reading Profession
Training Course and Job Skills Evaluation on November 17, 2007 that required
180 hours of training, which was noted by the Officer. However, the course was
completed at the same time the Applicant claimed to be working as a welder for
Yamgan Company.
[48]
The
Respondent points out that the information provided by the Applicant at the
interview respecting the dates during which he worked with Yamgan Company was
not consistent with the information in his application. The Applicant stated in
the interview that he had not been working for the past 1.5 years, which
contradicts the employment information in his application that he was employed
by Yamgan Company from December 2006 to the time of the interview.
[49]
The
Respondent contends that the Applicant’s misrepresentations with respect to his
employment are clearly material to his application for a work permit and that
the misrepresentations made by the Applicant would affect the Officer’s final
decision. This is particularly so since they could induce a misapplication of
the Act. The misrepresentations mean that the Applicant would have been
assessed as having work experience that he does not have.
[50]
The
Respondent notes that, while an officer is obligated to consider the totality
of the information before her, it is clear that the Officer in the present case
weighed and considered all the information available to her in concluding that
the Applicant had misrepresented his employment experience and that this
induced, or could induce, a misadministration of the Act. This included
information provided in the Applicant’s application and supporting documents,
information gathered from verifications and the interviews with the Applicant
during which he was given opportunities to explain the conflicting information.
No information was overlooked or ignored by the Officer.
[51]
The
Respondent points out that the Officer gave the Applicant numerous
opportunities at the interview to explain the discrepancies in the information
before her, but he failed to do so. Therefore, it was reasonable for the
Officer to conclude that the Applicant was misrepresenting his work experience
and that these misrepresentations were material to his work permit application
and could induce an error in the administration of the Act.
[52]
The
Officer did not find the Applicant to be credible and determined that he had
misrepresented his work experience and credentials. This conclusion was
properly founded on, and supported by the evidence. The Officer did not ignore
evidence. Therefore, the Respondent suggests that the Court should refuse to
interfere with the assessment of the Applicant’s credibility and plausibility.
See: Nsombo v. Canada (Minister of
Citizenship and Immigration) 2004 FC 505 at paragraphs 18-19.
[53]
The
Respondent concludes by submitting that the Applicant has not established that
the conclusions reached by the Officer were perverse or capricious or so
unreasonable that the Decision should be set aside. The Respondent says that
the Decision of the Officer was reasonable and should be upheld.
ANALYSIS
[54]
At
the centre of this Decision are the verification procedures that were conducted
in order to determine the accuracy of the Applicant’s employment documents and
other records. In the end, as a result of what the Officer decided where
discrepancies between the record of employment presented by the Applicant and
the information gleaned from the verification process, the Officer concluded
that the Applicant had provided fraudulent employment documents.
[55]
The
Officer says that she gave the Applicant an opportunity to explain the
discrepancies but he provided no acceptable explanation.
[56]
As
regards the Applicant’s employment with Yamgan Company, the Officer’s CAIPS
notes reveal the following:
Explained
the results of the verifications to subj. The information in the job letter
from “Yamgan” was not corroborated by several people working in that office.
Asked subj. if he had an explanation as to why several longterm employees would
say he was not employed there. Subj. said that they are mistaken. Subj. also
said that he was not related to the owners of the company.
[57]
We
know very little about how the verifications were conducted. It is obvious that
the Officer did not do them herself because she does not speak the language and
evidence on the record suggests they were carried out by Mr. Afkhami, who works
at the Canadian Consulate in Tehran. We have no affidavit from Mr. Afkhami as to the procedures
he followed and/or how he reported his findings to the Officer. Nor was the
Applicant told at the interview who the company employees were who had said he
was not employed there.
[58]
We
now have affidavits from people who work for the company who say that they were
contacted for information concerning the Applicant. Ms. Gholaminejad is a
secretary at the Yamgan central office in Tehran. She knows little about company employees who do
not work at the central office. Yet she is one of the employees who received a
phone call from the Canadian Embassy concerning the Applicant. She was asked if
she knew the Applicant and whether he worked at Yamgan. This is what she says
she said:
I
replied that yes, he works for the company, but I know nothing about his job
description. I was asked if he was employed full-time and I replied that I
didn’t know. I then informed them that all I knew of him was that he
occasionally came in for an appointment with one of the managers. This was the
end of the conversation.
[59]
Besides
providing confirmation that the Applicant has indeed worked for Yamgan, Ms.
Gholaminejas’ evidence shows that at least one of the company employees
contacted by the Canadian Embassy said nothing that called into question the Applicant’s
documentation and his account of working for Yamgan as a welder.
[60]
We
also have an affidavit from Mr. Mahaley who has worked with Yamgan for over 10
years and who is a supervisor and foreman in charge of the working crews on
different sites. He says he has a full knowledge of all workers who work under
his supervision. He also says that he has known the Applicant since he started
work for the company in 2001. He confirms that the Applicant is a welder and
worked on the post office project in the city of Kerman in 2001.
[61]
Mr.
Mahaleh was also contacted by the Canadian Consulate in Tehran as part of the
verification process. This is his account of what took place:
On
or about week (sic) of October 19-24 of 2008, I was contacted by
Canadian Consulate in Tehran. A person introduced himself as Mr.
Afkhami asked me few questions regarding Mr. Karami’s work experience. I
confirmed that Mr. Karami works in our company in the capacity of a welder in
different projects including Kerman post office. Further, I informed him
that Mr. Karami is presently working as a welder and he supervises other
welders at the present moment.
[62]
Once
again, it becomes evident that someone else who was contacted by the Canadian
Embassy for verification purposes confirms a great deal of the Applicant’s own
account of his employment experience.
[63]
The
Officer tells us so little about the verification process and how it was
conducted in this case, and there is no evidence from Mr. Afkhami or whoever it
was who made the verification contacts, that it is impossible to question the
evidence of these two witnesses who say they were contacted and who confirm the
Applicant’s own information.
[64]
Their
evidence suggests that, when the Officer questioned the Applicant at the
interview, she was either acting in error or she had not received a complete
report from those who had conducted the verification interviews of employees of
Yamgan. This is hardly a basis upon which to conclude that the Applicant was
lying and that his employment documents were fraudulent.
[65]
The
Officer also placed significant emphasis in her Decision on the verifications
carried out with regard to the post office contract:
Explained
to subj that we also checked the information on the employment contracts that
he presented as proof of his employment. Asked if subj was working as a master
welder and head of welder’s team 2003-2005 as per the contract. Said yes.
Explained that we had checked with the project manager for that project who
stated that the information on that contract was not correct – that he did not
know subj, that the project was not big enough for a group of welders, he named
the person who had done the welding.
[66]
We
now have an affidavit from Mr. Mohammad Elahi who is a civil engineer and was
the project manager on the post office project. This is the very person
referred to by the Officer in her Decision and whose advice she used in her
Decision to conclude that the Applicant’s documents were fraudulent and his
account of his experience was a misrepresentation.
[67]
Mr. Elahi
confirms that the post office project was contracted out to Yamgan Company and
that he oversaw the technicalities and the quality of the work in progress, but
he never had any direct contact with any of the workers on the site and he
hardly ever met or talked with workers on the site.
[68]
Mr.
Elahi also received a call from the Canadian Embassy as part of the
verification process for the Applicant. He was asked if he knew the Applicant:
Further
I was asked, if I knew a person by the name Mojtaba Karami that worked in that
project. My reply was that, “the project was finalized four years ago and I
don’t have a memory of or the names of the people that work there. Further, I
explained that I don’t have a direct contact with the workers in projects that
I oversee.
I
was asked by the Canadian Embassy to check the list of the employees from the
Employment Insurance Office and to see if Mr. Karami’s name was on the list.
That was our conversation for the first call.
I
contacted the Employment Insurance Office but I can not access to the list of
employees.
I
received a second call from Canadian Embassy few days later asking me if I had
a chance to check with the Employment Insurance Office. My reply was that, ‘I
could not access to the list of employees.”
That
was the end of my conversation regarding the job experience. I never said to
the Canadian Embassy that I have personal knowledge that Mr. Karami did not
work at the Post Office Project as I would not have personal knowledge at all
for this subject.
[69]
Once
again, we have no affidavit from the Embassy official who contacted Mr. Elahi.
We do not know what safeguards were in place. We do not know if a record of the
conversation was made. We do not know how the official reported the
conversation to the Officer. We do not know how the Officer came to know that
“the project was not big enough for a group of welders, he named the person who
had done the welding.”
[70]
The
Officer would not accept the Applicant’s explanation that there must be some
mistake “especially given the number of people in different positions who had
refuted the information on the subj’s documents – especially given that they
were in different offices and the detail that they had provided to refute his
document.”
[71]
The
Court has no idea who is being referred to by the Officer, what they said, and
what the convincing detail was. All the Court has seen are affidavits from
three people who were contacted for verification and they provide no support
for the Officer’s assertions and, in fact, support the Applicant’s account.
[72]
Without
any information to counter what the Applicant had produced from the people who
conducted the verification interviews, and without some reassurances about who
was contacted, precisely what was said, and how it was recorded and conveyed to
the Officer, I have to conclude that the Officer acted in error, that the
verification process was flawed, and that the Officer’s Decision cannot stand,
either because it is incorrect and/or unreasonable. As Justice MacKay pointed out
in Arshi, I have to conclude that the assessment carried out by this
Officer and her conclusions were unreasonable because they were “based on the
visa officer’s understanding of a key element for assessing his experience and
his occupation, an understanding which is open to question and which was not
made clear to the applicant on the course of his interview.”
[73]
The
Applicant raises other issues, but my conclusion that the Decision is
completely flawed and unreasonable on these fundamental issues means that it
cannot stand. Had the verification process been conducted properly and
accurately, there is no telling what the Officer may have decided about the
Applicant’s documentation and his overall credibility. The matter must be
returned for reconsideration.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1. This
application is allowed. The Decision is quashed and the matter is returned for
reconsideration by a different officer.
2. There is no
question for certification.
“James
Russell”
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