Date: 20110518
Docket: IMM-1381-10
Citation: 2011
FC 571
Ottawa, Ontario,
May 18, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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RITESHKUMAR GOPALDAS PATEL
RESHMA RITESHKUMAR PATEL and
SANVI RITESHKUMAR PATEL
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION CANADA
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act), for judicial review of a
decision of a designated immigration officer (the officer), dated December 24,
2009, wherein the officer denied the application for permanent residence as a
member of the federal skilled worker class.
[2]
The
principal applicant requests an order quashing the decision of the officer and remitting
the matter back for redetermination by a different officer in accordance with
the law.
Background
[3]
Riteshkumar
Gopaldas Patel (the principal applicant) was born on January 27, 1981 and is a
citizen of India.
[4]
The principal
applicant applied for permanent residence as a member of the federal skilled worker
class under the National Occupation Classification (NOC) 1111 – financial
auditors and accountants.
Officer’s Decision
[5]
The
officer found that the principal applicant did not meet the requirements of
subsection 75(2) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations) for permanent residence in
Canada.
[6]
The
officer found that the principal applicant had not provided satisfactory
evidence that he had at least one year of continuous full time experience or
equivalent part time experience as an accountant. The officer also found that
the principal applicant provided only a single employment document in which the
job duties listed have largely been copied from the NOC (the experience
letter). She further found that the job duties listed in the experience letter
were identical to those listed in the letter of offer of employment with Rubina
Kitchen on which the application was based.
[7]
As
the officer found that the principal applicant did not meet the requirements of
subsection 75(2) of the Regulations, she refused his application under
subsection 75(3).
Issues
[8]
The
principal applicant submitted the following issues for consideration:
1. Did the visa officer
breach principles of procedural fairness by basing her decision on the validity
of documentation without informing the applicant of the issue and allowing him
an opportunity to respond?
2. Did the visa officer
err in rending a decision on credibility without interviewing the applicant?
3. Did the visa officer
err in law in failing to provide adequate reasons in her decision or her notes?
4. Did the visa officer
render a decision that was unreasonable given the facts before her?
[9]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the officer deny
the principal applicant procedural fairness by not informing him of her
concerns and not convoking an interview?
Applicants’ Written Submissions
[10]
The
principal applicant submits that if the descriptions of his duties in the
experience letter and written on his application form are accurate, then he
clearly qualifies as an accountant and should obtain 79 points to qualify for
permanent residence in Canada.
[11]
The
applicants submit that the officer was concerned with the veracity of the principal
applicant’s employment letter and the description of his duties. When an officer
has concerns about the veracity of documents submitted in an application, he or
she is required to convoke an interview so that the principal applicant may assuage
the officer’s concerns. The officer in this case did not raise her concerns
with the principal applicant, breaching the procedural fairness owed to him.
[12]
The
officer further provided inadequate reasons for her decision as she failed to
provide an explanation as to why the issue of similarity between the content of
the employer’s letter with what is contained in the NOC is relevant.
Respondent’s Written Submissions
[13]
The
respondent submits that the principal applicant was afforded procedural
fairness. The officer did not question the veracity of the employment letter.
Rather, she found that the letter was insufficient proof of the applicant’s
experience as the letter parroted the job duties of the NOC description without
adding further details.
[14]
The
onus was on the principal applicant to demonstrate that he qualified for a visa
which includes adducing evidence that he met the applicable selection criteria.
Procedural fairness does not require an officer to advise an applicant of a
concern relating to his ability to meet the selection criteria. As such, the
officer was not required to convoke an interview because her concerns regarding
the prinicipal applicant’s application arose directly from the Regulations.
[15]
Finally,
the respondent submits that the officer provided adequate reasons as they
disclose what decision was reached and the rationale for it.
[16]
The
officer’s decision falls within the range of options open to the decision maker
on the judicial review and the application should be dismissed.
Analysis and Decision
[17]
Issue
1
What is the appropriate
standard of review?
Where previous jurisprudence has determined
the standard of review applicable to a particular issue, the reviewing court
may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 at paragraph 57).
[18]
A visa officer’s determination of eligibility for permanent
residence under the federal skilled worker class involves findings of fact and
law and is reviewable on a standard of reasonableness (see Malik v Canada (Minister
of Citizenship and Immigration), 2009 FC 1283 at paragraph
22).
[19]
Any
issues of natural justice involving visa officers, however, are evaluated on a
correctness standard (see Khosa v Canada (Minister
of Citizenship and Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339 at
paragraph 43).
[20]
Issue 2
Did the officer deny the principal
applicant procedural fairness by not informing him of her concerns and not
convoking an interview?
The central issue in this case
is whether the officer rejected the application due to concerns about the
credibility of the letter of experience or because she found that the principal
applicant did not produce sufficient evidence of his work experience.
[21]
The
case law specifies that a visa officer is not under a duty to inform an applicant
about any concerns regarding the application which arise directly from the
requirements of the legislation or regulations (see Hassani v Canada (Minister of
Citizenship and Immigration), 2006 FC 1283 at paragraphs 23 and 24).
[22]
However,
a visa officer is obligated to inform an applicant of any concerns related to
the veracity of documents and will be required to make further inquires (see Hassani
above, at paragraph 24).
[23]
The
onus is always on the principal applicant to satisfy the visa officer of all
parts of his application. The officer is under no obligation to ask for
additional information where the principal applicant’s material is insufficient
(see Madan v Canada (Minister of
Citizenship and Immigration) (1999), 172 FTR 262, [1999] FCJ No 1198 (FCTD)
(QL) at paragraph 6).
[24]
Regulation
75 clearly indicates that a foreign national is only a skilled worker if he can
show one year of full time employment where he performed the actions in the
lead statement of the NOC and a substantial number of the main duties.
[25]
As
such, if the visa officer were concerned only that the employment letter was
insufficient proof that the prinicipal applicant met the requirements of
Regulation 75, then she would not have been required to conduct an interview.
[26]
However,
the officer states that her concern is that the duties in the employment letter
have been copied directly from the NOC description and that the duties in the
experience letter are identical to the letter of employment. I agree with the principal
applicant that the officer’s reasons are inadequate to explain why this was
problematic. I find that the implication from these concerns is that the
officer considered the experience letter to be fraudulent.
[27]
Consequently,
by viewing the letter as fraudulent, the officer ought to have convoked an
interview of the principal applicant based on the jurisprudence above. As such, the officer denied the principal applicant procedural
fairness and the judicial review must be allowed.
[28]
The principal
applicant moved to amend the style of cause by adding his spouse and child as
applicants. Reshma Riteshkumar Patel is his spouse and Sanvi Riteshkumar Patel is
his daughter. The style of cause is so amended.
[29]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[30]
IT IS
ORDERED that:
1. The application for judicial review
is allowed, the decision of the officer is set aside and the matter is referred
to a different officer for redetermination.
2. The style of cause is amended by
adding Reshma Riteshkumar Patel and Sanvi Riteshkumar Patel as applicants.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Immigration and Refugee Protection Act, SC 2001, c 27
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72.(1) Judicial review by the Federal
Court with respect to any matter — a decision, determination or order made, a
measure taken or a question raised — under this Act is commenced by making an
application for leave to the Court.
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72.(1)
Le contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
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Immigration and Refugee Protection Regulations, SOR/2002-227
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75.(1) For the purposes of subsection
12(2) of the Act, the federal skilled worker class is hereby prescribed as a
class of persons who are skilled workers and who may become permanent
residents on the basis of their ability to become economically established in
Canada and who intend to reside in a province other than the Province of
Quebec.
(2) A foreign
national is a skilled worker if
(a) within the
10 years preceding the date of their application for a permanent resident
visa, they have at least one year of continuous full-time employment
experience, as described in subsection 80(7), or the equivalent in continuous
part-time employment in one or more occupations, other than a restricted
occupation, that are listed in Skill Type 0 Management Occupations or Skill
Level A or B of the National Occupational Classification matrix;
(b) during
that period of employment they performed the actions described in the lead
statement for the occupation as set out in the occupational descriptions of
the National Occupational Classification; and
(c) during
that period of employment they performed a substantial number of the main
duties of the occupation as set out in the occupational descriptions of the
National Occupational Classification, including all of the essential duties.
(3) If the
foreign national fails to meet the requirements of subsection (2), the
application for a permanent resident visa shall be refused and no further
assessment is required.
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75.(1)
Pour l’application du paragraphe 12(2) de la Loi, la catégorie des
travailleurs qualifiés (fédéral) est une catégorie réglementaire de personnes
qui peuvent devenir résidents permanents du fait de leur capacité à réussir
leur établissement économique au Canada, qui sont des travailleurs qualifiés
et qui cherchent à s’établir dans une province autre que le Québec.
(2)
Est un travailleur qualifié l’étranger qui satisfait aux exigences
suivantes :
a) il a
accumulé au moins une année continue d’expérience de travail à temps plein au
sens du paragraphe 80(7), ou l’équivalent s’il travaille à temps partiel de
façon continue, au cours des dix années qui ont précédé la date de
présentation de la demande de visa de résident permanent, dans au moins une
des professions appartenant aux genre de compétence 0 Gestion ou niveaux de
compétences A ou B de la matrice de la Classification nationale des
professions — exception faite des professions d’accès limité;
b) pendant
cette période d’emploi, il a accompli l’ensemble des tâches figurant dans
l’énoncé principal établi pour la profession dans les descriptions des
professions de cette classification;
c) pendant
cette période d’emploi, il a exercé une partie appréciable des fonctions
principales de la profession figurant dans les descriptions des professions
de cette classification, notamment toutes les fonctions essentielles.
(3)
Si l’étranger ne satisfait pas aux exigences prévues au paragraphe (2),
l’agent met fin à l’examen de la demande de visa de résident permanent et la
refuse.
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