Docket: IMM-4434-10
Citation: 2011 FC 818
Montréal, Quebec, July 5, 2011
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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VIRGINIA MIHURA TORRES
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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. Introduction
[1]
Immigration
is a privilege, not a right (Canada (Minister of Employment and Immigration)
v Chiarelli, [1992] 1 S.C.R. 711). Applicants for permanent residence bear the
burden of demonstrating that they are entitled to a visa. Applicants also bear
the responsibility of producing the information and documents that are required
in support of their application. (Baybazarov v Canada (Minister of
Citizenship and Immigration), 2010 FC 665 at paras 11-12).
[2]
The Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] and the Immigration
and Refugee Protection Regulations, SOR/2002-227 [IRPR], clearly set
out the requirements that an applicant must meet in order to be permitted to immigrate
to Canada in the Federal Skilled Worker Class. An applicant must demonstrate
that he or she has the required work experience in the occupation which he or
she intends to pursue in Canada.
[3]
In
the present case, a letter, dated March 19, 2010, was sent to the Applicant and,
in conformity with the statutory regime, asked that the Applicant provide
employment letters and a job description from her employer (Tribunal Record
(TR) at p 16). In response to that letter, the Applicant submitted documents
and provided the required information in relation to her work history and
experience. The question is whether the information is such that it can be
deemed adequate to respond to the preoccupation in respect of the statutory
regime.
II. Judicial Procedure
[4]
This
is an application for judicial review of a decision of an Immigration Officer
of the Citizenship and Immigration Canada [CIC] Case Processing Pilot - Ottawa
[CPP-O], rendered on July 21, 2010. The decision specifies that the
Applicant’s application for permanent residence under the Federal Skilled
Worker Class has been denied pursuant to paragraph 11(1) of the IRPA, due
to the Applicant having provided only one letter of reference from previous
employers which does not include details about her duties.
III. Background
[5]
The
Applicant, Ms. Virginia Mihura Torres,
is a 33-year-old citizen of Venezuela who has knowledge of English and holds a Master’s Degree in
Business Administration and a Bachelor’s Degree in Administrative Sciences. The
Applicant allegedly accumulated more than five years of continuous full-time
employment experience, in Caracas, Venezuela, as a Financial Planning &
Profitability Manager for Sodexho, a multinational food services and facilities
company.
[6]
On
March 23, 2007, the Applicant applied to the Canadian Embassy in Caracas for
permanent residence under the Federal Skilled Worker Class and received an acknowledgment
of receipt of such on April 4, 2007. The letter from the Embassy stated that “[n]o
processing will occur on your file for approximately 36 months” (Applicant’s
Record (AR) at p 20). The letter also specified that the Applicant would be
required to provide “[o]riginal Job reference letters/confirmation of
employment letters” and a “[d]etailed description of [her] job responsibilities
(past and present)” (AR at p 24).
[7]
On September 30, 2008, the
Canadian Embassy in Caracas invited the Applicant to submit forms and documents
in support of her application, namely, “Job reference letters/confirmation of
employment letters” and a “[d]etailed description of [her] job responsibilities
(past and present)” (AR p 28). The letter specified that if the requested
information was not provided, the Immigration Officer “may not be satisfied
that [the Applicant] meet[s] the selection and admissibility requirements.”
The letter also explained that documents, not in one of Canada’s official languages,
must be accompanied by a certified translation by an accredited translator.
[8]
Between
the months of September 2008 to June 2009, counsel for the Applicant sought an
exemption for her “many Venezuela clients” from
translating Spanish documents (AR, Memorandum of Facts and Law at para 5). On
June 2, 2009, the Applicant’s counsel received an email from the Immigration
Program Manager, informing her that the translation requirement would be waived
for her clients, instructing her to proceed and submit documents within 120
days (AR at p 36).
[9]
On
August 6, 2009, the Applicant alleges that she submitted forms and untranslated
documents to the Canadian Embassy in Caracas in support of her application.
[10]
On
March 19, 2010, the Canadian Embassy of Caracas sent a letter to the Applicant,
again requesting forms and documents in support of her application, within a
120-day delay, to the CPP-O.
[11]
On
July 15, 2010, the Applicant submitted the forms and documents in support of
her application to the CPP-O.
[12]
The
Officer reviewed the Applicant’s application at the CPP-O and decided that the
Applicant did not meet the requirements for immigration to Canada under the
Federal Skilled Worker Class. A letter was sent by email refusing the
application on July 21, 2010.
IV. Decision under Review
[13]
The
Immigration Officer concluded that since the employment letters submitted on
behalf of the Applicant provided no details as to her actual duties in the
workplace, he was not satisfied that she met the requirements of the Federal
Skilled Worker Class. The Officer determined that Ms. Mihura Torres is not
a skilled worker as he was not satisfied that she had met the first, second and
third parts of subsection 75(2) of the IRPA requirements:
… you only provide[d] one
letter of reference form previous employers (from Sodexho), and the letter has
no/no details about your duties. As a result I am not satisfied that you have
performed the duties of a manager, financial planning, NOC 0111, as per the
description in the NOC handbook. I am therefore not satisfied that you have the
minimum one year full-time work experience in a level O, A or B occupation
required to be eligible to apply as a Federal Skilled Worker.
(Immigration Officer’s
decision, AR at p 4).
V. Position of the Parties
[14]
The
Applicant submits that she wants to escape the political and economic turmoil
in Venezuela and begin a new life in Canada, reunited with her sister. The
Applicant argues that the Immigration Officer erred in law, by violating the
principles of procedural fairness in making his decision.
[15]
According
to the Applicant, the Immigration Officer relied more heavily on the
instructions provided in a letter issued by the Canadian Embassy in Caracas
(the letter dated March 19, 2010) as opposed to the requirements of the IRPA
and the IRPR. In that regard, the Officer, according to the Applicant, did
not render an independent decision on her application based on its merits as a
result of constraints stemming from rigid instructions as set out in the letter
from the Canadian Embassy in Caracas.
[16]
The
Applicant submits that she waited over three years for a decision on her
application and that the Officer did not provide her with a single opportunity
to disabuse him of his concerns regarding her occupational experience and
ability to satisfy the National Occupational Classification [NOC] category of
Manager, Financial Planning. The Applicant states that she did not at any time
receive an email, fax or letter from the CPP-O Officer inviting her to respond
to his concerns upon which he based his refusal.
[17]
The
Applicant also submits that her application was not treated consistently with
other similar applications and that she did not receive a fair and equal
treatment. It is submitted by the Applicant that the Immigration Officer’s
treatment of the application resulted in multiple violations of the principles
of procedural fairness which negatively impacted his assessment and, thus, prevented
Canada from receiving a highly qualified immigrant, precisely the type of
immigration Canada seeks to attract.
[18]
The
Respondent submits that the Immigration Officer did not err and the Applicant
has not demonstrated that the intervention of this Court is justified.
VI. Issues
[19]
The
Applicant proposes three questions in issue:
(1) Did the Officer breach
the principles of procedural fairness by improperly fettering his discretion in
relying upon the instruction letter for transferring the Applicant’s
application to the CPP-O to the exclusion of other relevant considerations?
(2) Did CIC breach the
principles of procedural fairness by failing to show diligence in processing
the Applicant’s application for permanent residence under the Federal Skilled
Worker Class?
(3) Did the Officer
breach the principles of procedural fairness by failing to treat the
Applicant’s application in a manner consistent with that afforded other similar
applications?
[20]
Whereas,
the Respondent submits that the Court should examine the following two issues:
(1) Was there a breach
of procedural fairness in this case?
(2) Was the Immigration
Officer’s decision reasonable?
[21]
A
preliminary issue is raised by the Respondent who submits that the Applicant
refers to new evidence that was not before the Immigration Officer.
[22]
The
Court will respond to the questions as a whole in the manner it sees fit so as
to resolve the core issues by incorporating them in a comprehensive manner
(recognizing that certain aspects were supplementary and superfluous to the
core issues at the origin of the matter).
VII. Relevant Legislative Provisions
[23]
Pursuant
to subsection 11(1) of the IRPA, immigration officers have a
discretionary power to issue visas, provided that the foreign national is not
inadmissible and meets the requirements of the IRPA.
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Requirements
Before Entering Canada
Application
before entering Canada
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.
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Formalités
préalables à l’entrée
Visa
et documents
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.
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[24]
Section
75 and subsection 76(1) of the IRPR are directly relevant to this case
and provide:
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Federal
Skilled Worker Class
Class
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.
Skilled
workers
(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.
Minimal
requirements
(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.
Selection
criteria
76. (1) For the purpose of
determining whether a skilled worker, as a member of the federal skilled
worker class, will be able to become economically established in Canada, they
must be assessed on the basis of the following criteria:
(a) the skilled worker must be
awarded not less than the minimum number of required points referred to in
subsection (2) on the basis of the following factors, namely,
(i) education, in accordance with
section 78,
(ii) proficiency in the official
languages of Canada, in accordance with section 79,
(iii) experience, in accordance with
section 80,
(iv) age, in accordance with section
81,
(v) arranged employment, in accordance
with section 82, and
(vi) adaptability, in accordance with
section 83; and
(b) the skilled worker must
(i) have in the form of transferable
and available funds, unencumbered by debts or other obligations, an amount
equal to half the minimum necessary income applicable in respect of the group
of persons consisting of the skilled worker and their family members, or
(ii) be awarded the number of points
referred to in subsection 82(2) for arranged employment in Canada within the
meaning of subsection 82(1).
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Travailleurs
qualifiés (fédéral)
Catégorie
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.
Qualité
(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.
Exigences
(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.
Critères
de sélection
76. (1) Les critères ci-après
indiquent que le travailleur qualifié peut réussir son établissement
économique au Canada à titre de membre de la catégorie des travailleurs
qualifiés (fédéral) :
a) le travailleur qualifié accumule le
nombre minimum de points visé au paragraphe (2), au titre des facteurs suivants
:
(i) les études, aux termes de l’article
78,
(ii) la compétence dans les langues
officielles du Canada, aux termes de l’article 79,
(iii) l’expérience, aux termes de
l’article 80,
(iv) l’âge, aux termes de l’article 81,
(v) l’exercice d’un emploi réservé, aux
termes de l’article 82,
(vi) la capacité d’adaptation, aux
termes de l’article 83;
b) le travailleur qualifié :
(i) soit dispose de fonds transférables
— non grevés de dettes ou d’autres obligations financières — d’un montant
égal à la moitié du revenu vital minimum qui lui permettrait de subvenir à
ses propres besoins et à ceux des membres de sa famille,
(ii) soit s’est vu attribuer le nombre
de points prévu au paragraphe 82(2) pour un emploi réservé au Canada au sens
du paragraphe 82(1).
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VIII. Standard of Review
[25]
As
noted in Chen v Canada
(Minister of Citizenship and Immigration), 2007 FC 41, 155 ACWS
(3d) 168, this Court held that the correctness standard applies to questions of
procedural fairness or natural justice (at para 10). Where a breach of the duty
of fairness occurs, a decision of an administrative body must be set aside.
[26]
As
for the discretionary decision of the Immigration Officer, considerable
deference must be given to the decision-maker by the Court when reviewing the
exercise of that discretion; thus, the standard of review is one of
reasonableness (Dunsmuir v New-Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190
and Hanif v Canada (Minister of Citizenship and Immigration), 2009 FC
68, 176 ACWS (3d) 509).
IX. Analysis
New evidence
[27]
The
Respondent submits that the Applicant refers to new evidence that was not
before the Immigration Officer.
1)
A detailed
description of the duties she performs for her employer Sodexho. (This document
is undated but the certified translation is dated July 29, 2010, posterior to
the consideration of her application.);
2)
Allegations
that it is difficult to obtain detailed employment letters in Venezuela, and
that it is the Applicant’s understanding that non-descriptive letters are
accepted by the Canadian Embassy;
3)
Information
concerning the Applicant’s sister, Marifran Mihura, who became a permanent
resident of Canada in 2009, and her affidavit affirmed on September 14,
2009, as well as affidavits from Luis Angel Soto Rosal and Mr. Alexander Adolfo[]
Rendon Barroso, other clients of the Applicant’s lawyer who successfully
applied for permanent residence in Canada; and,
4)
Allegations
that another client of the Applicant’s lawyer was given an opportunity to
disabuse the immigration officer of his concerns.
(Respondent’s
Supplementary Memorandum of Argument at para 20).
[28]
The
Respondent submits that, barring exceptional circumstance, evidence that was
not before the decision-maker is not admissible before the Court in a judicial
review proceeding (Bekker v Canada, 2004 FCA 186, 2004 DTC 6404
at para 11).
[29]
The
allegations and information concerning the Applicant’s sister do not
necessarily constitute new evidence per say; it is for the Court to determine the
weight it will accord the evidence.
[30]
As
for the description of the duties the Applicant performs for her employer Sodexho,
the Applicant submits that, when informed of the refusal of her federal worker
application, the Applicant obtained a description of her current professional
responsibilities (Applicant’s Memorandum of Argument in Reply at para 16).
Procedural Fairness
[31]
In a
case with regard to an officer’s duty of advising an applicant of his concerns,
this Court confirmed that there is no such duty on a decision-maker:
[37] I agree with the Respondent on
this issue. It is clear from the record that the Officer asked the Applicant
many questions and gave her many opportunities to describe her work experience,
job duties etc. It is also well established that an officer has no
obligation to notify an applicant about concerns or to allow an applicant the
opportunity to respond to those concerns: Ahmed v. Canada (Minister of
Citizenship and Immigration), [1997] F.C.J. No. 940 (F.C.T.D.). The onus
is on an applicant to provide all of the information required for an
application of this nature. The Court in Aqeel v. Canada (Minister of
Citizenship and Immigration) 2006 FC 1498 confirmed as follows:
12. The onus is also on the
applicant to set out the relevant factors that must be considered on the
assessment in order for the officer to find that relevant humanitarian and
compassionate grounds exist (IP 5 Manual: Immigrant Applications in Canada made
on Humanitarian or Compassionate Grounds (the Manual), Citizenship and
Immigration Canada, 5.29). In Owusu v. Minister of Citizenship and
Immigration, 2004 FCA 38, Mr.
Justice Evans, for the
Federal Court of Appeal, wrote at paragraph 8:
... And, since applicants have the onus
of establishing the facts on which their claim rests, they omit pertinent
information from their written submissions at their peril.
[Emphasis added].
(Kaur v Canada
(Minister of Citizenship and Immigration), 2008 FC 1189, 172 ACWS (3d)
195).
An Additional Issue for
Consideration - the New Rules
[32]
The
Applicant also submitted that the letter of March 19, 2010, is not in
conformity with the statutory regime, because it clearly mentions that the
Applicant’s application was transferred to the CPP-O to speed up processing of
her application, as part of the Government of Canada’s Action Plan for Faster
Immigration. According to the Applicant, her application was evaluated under
the new rules pertaining to the Government of Canada’s Action Plan for Faster
Immigration, which should only apply to those federal worker applications
received on or after February 27, 2008; whereas, all applications made before
this date will be processed according to the rules that were in effect at that
time. The Applicant reiterates that she presented her federal worker
application on April 4, 2007.
[33]
The
Respondent’s answer is that the new rules were not applied to the Applicant’s
case. The Respondent introduced as evidence the affidavit of Mr. James McNamee, an acting
director at CIC with extensive knowledge of the policy and program context
behind the Action Plan for Faster Immigration. Mr. McNamee confirmed that, since the Applicant’s
application was received on April 4, 2007, her application was assessed in
accordance with the eligibility requirements in place prior to the effective
date of the ministerial instructions.
Was the Immigration
Officer’s decision reasonable?
[34]
The
Applicant argues that her duties at Sodexho are implicit from her title of
managerial duties in her work at Sodexho. She also argued that the regime in
Venezuela is distinctly unfavourable to business and has generated a climate
where job security is always an issue and cannot be taken for granted.
According to the Applicant, requesting an employment letter which refers to
employment duties as per the CPP-O specifications often raises suspicions about
employee loyalty and could possibly constitute grounds for dismissal.
[35]
The
Applicant also submits that the Immigration Officer did not review every
document in her application. The Immigration Officer refers to “only one letter
of reference from previous employer (from Sodexho), and the letter has no
details”; however, the Applicant claims she submitted a letter from Televen,
dated March 11, 2005, and a letter from RCTV, dated November 1, 2006. All of
which does not constitute new evidence (Applicant’s Memorandum of Argument in Reply at
para 6).
[36]
The
Court also notes that the March 19, 2010 letter asked the Applicant to provide
employment letters containing details of the actual employment duties
performed. The letter also mentioned that the CPP-O is “…under no obligation to
further request detailed employment letters.” (TR at p 14).
[37]
This
case, at first blush, would appear not to fall within the category of cases
where a duty to give an applicant an opportunity to disabuse an Immigration Officer
of concerns may arise. The Court fully recognizes that applicants for permanent
residence in Canada bear the onus of providing adequate and sufficient
information in support of their application (Khan v Canada (Minister of
Citizenship and Immigration), 2008 FC 121, 164 ACWS (3d) 855, at para 14; Nabin
v Canada (Minister of Citizenship and Immigration), 2008 FC 200, 165 ACWS
(3d) 341, at para 7); however, it certainly is evident that the Applicant had
included more information than is specified by the Immigration Officer.
[38]
Furthermore,
the Court specifies, as is demonstrated in other cases, that when an Immigration
Officer resorts to extrinsic evidence, an applicant has no way of knowing whether,
in fact, such evidence will be used in an adverse manner; a duty then does
exist to ensure that an opportunity is given to an applicant to respond to such
evidence. In addition, where credibility, accuracy or the genuine nature of
information is in question, a duty also exists to give an opportunity to an
applicant to disabuse an officer of any concerns that may arise (Hassani v
Canada (Minister of Citizenship and Immigration), 2006 FC 1283, 152 ACWS
(3d) 898, at para 24). Subsequent to the Court’s full canvassing of the issues,
as is discussed above, this paragraph of the Court is pivotal; and, on it rests
the central core of the Court’s decision further to the Court’s full
consideration of all of the issues.
[39]
Without
omitting to specify that a failure to provide reliable supporting evidence does
create a fait accompli that seriously jeopardizes chances of an applicant:
[24] The
case law establishes that the onus is on the applicant to file an application
with all relevant supporting documentation and to provide sufficient credible
evidence in support of his application. The applicant must put his “best case
forward”. (Chen v. Canada (Minister of Citizenship and Immigration),
[1999] F.C.J. No. 1123, para. 26; Dardic v. Canada (Minister of Citizenship
and Immigration), 2001 FCT 150, [2001] F.C.J. No. 326 (QL); Tahir v.
Canada (Minister of Citizenship and Immigration) (1998), 159 F.T.R. 109,
[1998] F.C.J. No. 1354 (QL); Lam v. Canada (Minister of Citizenship and
Immigration) (1998), 152 F.T.R. 316, [1998] F.C.J. No. 1239 (QL).)
(Oladipo v Canada (Minister of
Citizenship and Immigration), 2008 FC 366, 166 ACWS (3d) 355).
[40]
In
this specific case, the Applicant did appear to provide, under the existing country
and personal circumstances of the Applicant, the “sufficient credible evidence
in support of [the] application” and the “best case forward” was provided, as
specified in the above jurisprudence (Chen v Canada (Minister of Citizenship
and Immigration), [1999] F.C.J. No. 1123 (QL/Lexis), 171 FTR 265 at para 26).
X. Conclusion
[41]
The
Applicant’s arguments demonstrate that serious reasons exist to believe that
the Immigration Officer erred in law or that his decision was based on
erroneous findings of fact; therefore, the relief requested by the Applicant is
granted.
[42]
For
all of the above reasons, the Applicant’s application for judicial review is
granted and the matter is remitted for redetermination by a different
Immigration Officer.
JUDGMENT
THIS COURT
ORDERS that the application for judicial
review be granted and the matter be remitted for redetermination by a different
Immigration Officer. No
question for certification.
“Michel M.J. Shore”
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