Date: 20110629
Docket: IMM-6030-10
Citation: 2011 FC 794
Ottawa, Ontario, June 29,
2011
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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OMAR GARCIA PORFIRIO
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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
[1]
This
is an application for judicial review of a decision of an Immigration Officer
(the Officer) dated July 7, 2010, wherein the Officer denied the Applicant’s
application for permanent residence in Canada.
[2]
The
Officer was not satisfied that the Applicant had a genuine arranged employment
offer as required by the Ministerial Instructions. As such, the Officer was
not satisfied that the Applicant met the eligibility criteria for skilled
workers.
[3]
For
the reasons that follow, this application is dismissed.
I. Background
A. Factual
Background
[4]
The
Applicant, Omar Garcia Porfirio, is a 35 year old citizen of Mexico. He
graduated with a law degree from the Universidad Autonoma De Guerrero. He
applied to come to Canada in the Skilled Worker class with an employment
offer as a window-washing supervisor.
[4]
[5]
The
Applicant first visited Canada in April 2000. At that time Mexican
nationals did not require a visa to travel to Canada. The
Applicant was granted a six-month visitor’s visa upon arrival. During his
visit he spent time with Erick and Tina Luna. The Applicant explained in his
affidavit that he was acquainted with Mr. Luna because members of his family
had worked for Mr. Luna’s
parents in Mexico. He was
first introduced to Mr. Luna’s wife, Tina, and their children, during this
visit.
[6]
The
Applicant applied to extend his visa in the fall of 2000. Mrs. Luna wrote a
letter of support for his application. The extension request was granted in
October 2000. The Applicant returned to Mexico before his
visa expired.
[7]
The
Applicant returned to Canada as a visitor in March 2001. The Applicant
claims that during this time he did not work, but was financially supported by
his family in Mexico. When he
applied for an extension of his visa, Mrs. Luna again wrote a letter of
support, and the extension was again granted.
[8]
Before
his status expired, the Applicant made a refugee claim. He alleged that he
feared returning to Mexico because he had been threatened by members of
the Zapatista group. After filing his claim, he obtained a work permit, and
began looking for employment so that he could support himself.
[9]
It
so happened that at the same time, the Luna family business, Town and Country
Window Cleaning, posted an ad looking to fill a vacant window cleaner
position. Mr. Luna offered the job to the Applicant based on a historically
good working relationship between their families. The Applicant accepted, and
began working for the Luna’s in 2002. By Mr. Luna’s account, the Applicant was
a model employee, who worked his way up from window-cleaner to window cleaning
supervisor.
[10]
The
Applicant’s refugee claim was rejected on December 3, 2003. He applied for
leave to judicially review the decision. Leave was refused by court order
dated March 11, 2004. The Applicant chose not to apply for a Pre-Removal Risk
Assessment, and returned to Mexico on December 18, 2005. He had worked
continuously for the Luna family from 2002 until his departure.
[11]
According
to the Applicant’s affidavit, the Luna family considered opening a branch of
their window cleaning business in Mexico with the help of the
Applicant. The Applicant applied for a temporary work permit in December 2005
in order to return to Canada to receive more training before expanding
the business into Mexico. He was informed that since his conditional
departure order had become a deportation order he required special permission
to return to Canada. The
Applicant was denied special permission on May 6, 2006.
[12]
The
Applicant claims that the Luna family had difficulty finding a qualified,
reliable employee to fill the vacancy left by his departure and so Town and
Country Window Cleaning set about the process of having Human Resources and Skills
Development / Service Canada (HRSDC) provide a labour market opinion so that
they would be able to offer the job to him. Town and Country received a
positive Arranged Employment Opinion (AEO) on January 23, 2008. This AEO is
valid until January 1, 2012.
[13]
The
Applicant then applied for permanent residence in the Skilled Worker class. He
submitted the positive AEO with the rest of his application. Despite this, and
his law degree, the Applicant failed to meet the minimum point requirements.
The immigration officer gave the Applicant zero points for his post-secondary
education because he had not passed the professional courses required to
practice law in Mexico. The Applicant decided to upgrade his
educational credentials and reapply.
[14]
The
Applicant submitted his second Federal Skilled Worker application to the
centralized in-take office (CIO) in Sydney, Nova Scotia.
Subsequent to the issuance of Ministerial Instructions in November 2008, only
applicants with an offer of arranged employment, or who meet two other
specified requirements are eligible to be processed in the Federal Skilled
Worker class. On January 20, 2010 the
Applicant was informed via e-mail that his application was being recommended
for final eligibility processing at the visa office in Mexico based on his
arranged employment in Canada.
[15]
The
Applicant was invited for an interview at the Canadian Embassy on July 6,
2010. The Officer had serious concerns regarding the bona fides of the
Applicant’s arranged employment offer. The Computer Assisted Immigration
Processing System (CAIPS) notes reveal that the Officer thought it was
unreasonable that that the Town & Country still required the Applicant’s
services four years after first offering him the job and decided that an
interview was required in order to determine the genuineness of the job offer.
[16]
Notes
showed that the Applicant’s perspective employer, Mrs. Luna, provided letters
of support for the Applicant in 2000 and 2001, and was described at that time
as a friend. The Applicant stated on his application that he had worked for
Mrs. Luna from March 2001 to December 2005 (the Applicant clarified in his
affidavit that he was confused and made a mistake about when he started working
for the company. He actually started working in 2002 which is confirmed by the
affidavit of Erick Luna. However, all of the application material in the
certified tribunal record lists the beginning of his employment with Town and
Country as March 2001).
B. Impugned
Decision
[17]
During
the interview, the Applicant stated that he first met Mrs. Luna in 2001, after
answering an employment ad found in a Latin newspaper. Prior to 2001, he
claimed that he had never heard of her company before.
[18]
The
Officer asked the Applicant who he was visiting in October 2000, before the job
was allegedly advertised. The Applicant, hesitatingly, according to the CAIPS
notes, conceded that he had been visiting Tina and Erick Luna. The Applicant,
however, maintained that he found out about the job through a newspaper ad.
[19]
In
his affidavit, the Applicant explained that he found the Officer intimidating,
and had the impression that his application would be rejected if he told the
Officer that he had found out about the job directly from the Luna’s. In his
affidavit, he claims to regret that he was not more forthcoming about how he
found the job.
[20]
The
Officer continued to ask the Applicant about his relationship with Tina Luna.
The Applicant had the impression that the Officer was trying to imply that he
had a romantic relationship with Mrs. Luna.
[21]
The
Officer found that the Applicant was not answering her questions. He remained
silent when the Officer asked him to explain how it was possible that he was
invited to Canada by Tina Luna
in 2000 and 2001, but only found out about the job through a newspaper ad. The
Officer had serious concerns about the discrepancies in the Applicant’s answers
that the Applicant failed to address despite repeated opportunities to do so.
[22]
The
Applicant’s permanent residence application was rejected the next day, July 7,
2010 via letter. The Officer was not satisfied that the Applicant truthfully
answered her questions during the interview. The Officer also had concerns
regarding the Applicant’s relationship with Mrs. Luna, the provider of the
arranged employment offer. The Officer concluded that he failed to meet the
eligibility criteria as per the Ministerial Instructions because she was not
satisfied that he had a genuine arranged employment offer.
II. Issues
[23]
The
Applicant raises the following issues:
(a) Did
the Officer exceed her jurisdiction by purporting to assess the genuineness of
the offer of employment?
(b) Did the Officer err by
misunderstanding and misstating the evidence before her?
(c) Did the Officer breach the duty
of fairness?
III. Standard
of Review
[24]
The
Officer’s assessment of the Applicant for permanent residence under the Federal
Skilled Worker Class is an exercise of discretion that should be given a high
degree of deference (Bellido v Canada (Minister of
Citizenship and Immigration), 2005 FC 452, 138 ACWS (3d) 728 at para
5). The question of whether the Officer was entitled to consider the
genuineness of the employment offer is a question of law and the actions of the
Officer in this regard attract no deference.
[25]
As
set out in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 at para 47, reasonableness requires a consideration of the existence of
justification, transparency, and intelligibility within the decision-making
process. It is also concerned with whether the decision falls within a range
of acceptable outcomes that are defensible in respect of the facts and law.
[26]
Questions
of procedural fairness are reviewed against the correctness standard.
IV. Argument
and Analysis
A. Did
the Officer Exceed her Jurisdiction by Purporting to Assess the Genuineness of
the Offer of Employment?
[27]
The
Applicant submits that the Officer exceeded her jurisdiction in purporting to
assess the bona fides of the Applicant’s arranged employment offer. The
Applicant takes the position that HRSDC is delegated with the responsibility of
determining whether the job offer is genuine when they provide an arranged
employment opinion. Following the result of this lengthy process, which is
undertaken by a specialized office in Canada, it is not open to a
visa officer abroad to reassess whether the offer is genuine.
[28]
In
support of this argument, the Applicant cites HRSDC’s information sheet on
arranged employment which describes an AEO as:
ARRANGED EMPLOYMENT OPINION
As part of the permanent resident application
process, Human Resources and Skills Development Canada (HRSDC)/Service Canada
provides an Arranged Employment Opinion (AEO) on the submission of an
"Application for an Arranged Employment Opinion" by an employer who
has made a permanent job offer to support a foreign national's application for
permanent residency. The opinion is based on the following criteria:
1. whether the offer of employment is
genuine;
2. whether the wages offered to the
foreign worker are consistent with the prevailing wage rate for the occupation
and whether the working conditions meet generally accepted Canadians standards;
and
3. whether the employment is not
seasonal or part-time in nature. (emphasis added)
[29]
Additionally,
HRSDC’s website states that the genuineness of the employment offer is a
primary consideration in delivering an AEO:
When assessing a job offer, HRSDC/Service
Canada considers primarily:
·
the
occupation that the skilled worker will be employed in;
·
the wages
and working conditions offered;
·
the genuineness
of the offer and employer history; and
·
if the
offers are permanent, full-time, and non-seasonal.
(emphasis added)
[30]
Furthermore,
the Applicant relies on a combination of legislation and policy that directs
visa officers in their task. Paragraph 82(2)(c)(ii) of the Immigration and
Refugee Protection Regulations (SOR/2002-227) (the Regulations)
provides that officers shall award points for arranged employment if the offer
is approved, “based on an opinion provided to the officer by the Department of
Human Resources and Skills Development at the request of the employer or an
officer that…the offer of employment is genuine”. The OP 6 Manual dealing with
the processing of Federal Skilled Workers instructs visa officers to award
points for arranged employment where the applicant a) submitted a positive AEO
from Service Canada and meets Canadian licensing and regulatory requirements
for the job and b) “is able and likely to accept and carry out the employment.”
(OP 6 12.15)
[31]
The
Applicant argues that when all of this information is considered, it is clear
that HRSDC is mandated to assess the genuineness of the offer of employment
when determining whether or not to approve an AEO. HRSDC has specialized
knowledge of the Canadian labour market, and a visa officer is not well placed
to substitute her judgment for that of HRSDC, a body with specific expertise.
The Applicant argues that the present situation is analogous to the
establishment of the National Occupation Classification (NOC) matrix. The NOC
has been found by this Court to be a “binding direction” to visa officers as to
the assessment of applicants for a visa, and an officer may not add to the
requirements of an NOC based on his own view of the labour market (see Paracha
v Canada (Minister of Citizenship and Immigration), 3 Imm LR (3d) 293, 90
ACWS (3d) 940 at paras 4 and 5).
[32]
The
Respondent argues that HRSDC’s finding that an applicant’s employment offer is
genuine does not preclude a visa officer from examining and assessing the
genuineness of the employment offer. The Respondent takes the position that
HRSDC has a different mandate than immigration officers. While HRSDC is
interested in the Canadian labour market, immigration officers are responsible
for upholding the provisions of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA]. As such, they must assess whether applicants’
offers are genuine to ensure that they meet the requirements for immigration to
Canada.
[33]
I
agree that HRSDC and Citizenship and Immigration Canada (CIC) have different
goals and benchmarks to meet, and it is equally clear that they each have a
different realm of expertise. In this regard, CIC has chosen to use the
specialized knowledge of HRSDC to help to streamline the processing of skilled
workers. However, the immigration or visa officer is still the final check and
balance in the system. Although an officer might be directed to take the HRSDC
AEO at face value, they are instructed and required to consider whether the
applicant is able and likely to carry out the offer of employment by section 82
of the Regulations.
[34]
The
Respondent supports this view by pointing to the express caveat found on the
HRSDC website clarifying the capacity of an AEO:
A permanent job offer does not allow a
foreign national to immigrate to Canada.
Before a foreign national can become a permanent resident of Canada, they must:
Meet the requirements of the Skilled
Worker Class; …
(Human Resources and Skills Development
Canada (HRSDC)/Service Canada Assessment for Arranged
Employment Opinions:
http://www.hrsdc.gc.ca/eng/workplaceskills/foreign_workers/aehrdcassess.shtml)
Therefore, even if an immigration officer
is precluded from considering the genuineness of the job offer she is certainly
not precluded from assessing the genuineness of the applicant’s intentions as
needed to ensure that the requirements of the IRPA are fulfilled.
[35]
This
very point was recently touched upon by Justice Sean Harrington in Gill v Canada (Minister of
Citizenship and Immigration), 2010 FC 466. In that case the Minister
suggested that the opinion by HRSDC is a condition precedent to a visa
officer’s de novo assessment. The Minister relied on the decision of
Justice Judith Snider in Bellido v Canada (Minister of
Citizenship and Immigration), 2005 FC 452, 138 ACWS (3d) 728, where she
stated at para 21:
[21] HRDC validation is not, as the
Applicant submits, sufficient evidence of arranged employment. Such validation
does not remove the obligation of the Visa Officer to assess whether the
Applicant is able to perform the job described in the validation.
[36]
Justice
Harrington took this case to make the same point I tried to make above. Namely,
read in conjunction with subsection 82(2) of the Regulations which
requires an officer to assess if a skilled worker is able to perform and likely
to accept and carry out the employment, “that case certainly stands for the
proposition that the Visa Officer must determine whether the applicant is up to
the job,” (at para 16). However, having decided the application on procedural
fairness grounds, Justice Harrington declined to state whether a visa
officer, stationed at a post in another country, is entitled to override
HRSDC’s opinion, which is based on an investigation in Canada confirming
that the offer is genuine. He found that that question was best left for
another day.
[37]
I
agree with the Applicant that generally it would be unusual for the Officer to
question the window-washing needs of southern Ontario and dismiss
out of hand the positive AEO obtained by Town & Country Window Cleaning.
However, I am not convinced that that is what occurred, or that the Officer acted
beyond her jurisdiction in rendering her decision.
(1) Was
the Applicant’s Lack of Credibility Determinative?
[38]
The
present matter becomes more complicated by the Applicant’s own admission that
he was not completely truthful during his interview. He maintained that he
found the window-washing job through a newspaper ad, and only met Mrs. Luna
after responding to the ad. When the Officer, relying on existing Field Operations
Support System (FOSS) notes, brought up the letter Mrs. Luna wrote in support
of the Applicant in 2000, prior to the existence of the alleged newspaper
ad, the Applicant was caught in a lie. He was unable to satisfactorily dispel
the shadow of doubt cast as a result.
[39]
The
Respondent submits that whether or not the Officer was entitled to question the
genuineness of the arranged employment offer, the Officer was entitled to
refuse the application since she found the Applicant to be untruthful. I agree.
[40]
The
CAIPS notes captured this very line of thinking. Before the Officer mentions
her concerns regarding the genuineness of the employment offer and the
relationship between the Applicant and Mrs. Luna, she noted:
AS PER A16, PA HAS THE OBLIGATION TO
ANSWER TRUTHFULLY ALL QUESTIONS PUT TO HIM FOR THE PURPOSE OF THE EXAMINATION.
PA FAILED TO SATISFY ME THAT HE ANSWERED TRUTHFULLY TO MY QUESTIONS AT
INTERVIEW, AS PER A16.
[41]
Subsection
16(1) of the IRPA states that a person who makes an application must
answer truthfully all questions put to them for the purpose of the examination
and must produce a visa and all relevant evidence and documents that the
officer reasonably requires. The Respondent argues that on this basis, the
Officer had a right to refuse the application for finding that the Applicant
was not truthful.
[42]
In
response to this argument, the Applicant submits that the interview should
never have happened in the first place, since its purported purpose, to assess
the bona fides of the offer of employment, exceeded the Officer’s
jurisdiction. Furthermore, in the Applicant’s opinion, the questions the
Applicant falsely answered are irrelevant, since their subject matter is
irrelevant to the processing of the Applicant’s application. The questions at
issue focused on the relationship between Mrs. Luna and the Applicant.
According to the Applicant, nothing in the IRPA precludes people who
have pre-existing relationships from developing a genuine employer-employee
relationship. As such, it is immaterial whether the Applicant lied about when
he met Mrs. Luna. The Applicant takes the position that minor inconsistencies
in responses at an interview cannot be determinative of the case.
[43]
It
is clear the Applicant was under a duty to be truthful, and did not fully
comply. As argued by the Applicant, the question becomes whether or not this
is sufficient to dispose of his application and this judicial review in and of
itself.
[44]
The
standard of review to be applied to credibility determinations is reasonableness.
The Officer caught the Applicant in a lie -- the Applicant admits to misleading
the Officer. Although the Applicant submits that his lie was trivial, what was
the Officer to do? The Applicant was given multiple chances, during the
interview, to clear up the confusion but he decided not to. The Officer,
rightfully, became suspicious. The Officer was not satisfied that the job
offer was genuine. Looking at the record, this seems to me to be synonymous
with deciding that the Applicant was unlikely to carry out the offer of
employment. Surely, in ensuring that this requirement will be fulfilled, an
officer is entitled to consider the nature of the employer-employee
relationship.
[45]
Though
the Applicant argues, and jurisprudence supports, that section 16 requires
relevancy, Justice Michael Phelan has described it as speaking, “to
truthfulness in the sense of accuracy and completeness. It does not address or
impose a materiality threshold although relevance is always a requirement.” (Mescallado
v Canada (Minister of
Citizenship and Immigration), 2011 FC 462 at para 16). Finding
that an applicant has failed to uphold the duty of candour imposed by section
16 allows a visa officer to refuse an application under subsection 11(1) of the
IRPA for not meeting the requirements of the Act. As Justice Phelan
found in Mescallado, above, section 16 is a discretionary provision, and
the issue remains whether the decision was reasonable. In the present matter,
that requires the somewhat circular consideration of whether it was proper for
the Officer to question the bona fides of the offer of employment.
[46]
Although
the Applicant has persuasively argued that an assessment of Canadian labour
force needs are better left to HRSDC, I am not convinced that the Officer erred
in this particular matter. The onus was on the Applicant to produce the
evidence needed to show the Officer that he met the requirements of the IRPA.
The Officer rightfully had credibility concerns that were put to the Applicant
in an interview. Though the Officer might be precluded from evaluating the
genuineness of the offer in Canada, she is not barred from assessing the
legitimacy of the Applicant’s overall application. In this case, that is what
she attempted to do. The Applicant effectively shot himself in the foot when
he lied in the interview. Clearly, there was a reasonable basis for the
Officer’s decision. The Canadian immigration system relies on all persons
applying under the Act to provide truthful and complete information (Cao v Canada (Minister of
Citizenship & Immigration), 2010 FC 450, 367 FTR 153) and so I am
unable to find that the Officer erred.
B. Did
the Officer Misstate the Evidence?
[47]
The
Applicant submits that the Officer misstated and misunderstood the evidence.
The Officer’s CAIPS notes state that the, “FOSS records for PA dated Oct. 2000
& Oct. 2001 show the pers employer Mrs. Luna gave letters of support to
client in order to be allowed to enter & remain in CDA.” The Officer
continuously refers to letters of invitation written by Mrs. Luna. The
Applicant argues that this is erroneous as the Applicant did not require a visa
to enter Canada at the time,
and the letters were in fact letters to support his application for an
extension of his visitor’s visa. To the Applicant, it is clear that the
Officer misunderstood the evidence.
[48]
On
this point, I must accept the submission of the Respondent. The Respondent
argues that it is immaterial that the Officer stated that Mrs. Luna invited the
Applicant to Canada, rather than
supported the extension of his visa. The point being made by the Officer, and
later conceded by the Applicant, was that the Applicant was being untruthful
when he stated in his interview that he had not met Mrs. Luna until 2001.
C. Did
the Officer Breach the Duty of Fairness?
[49]
The
Applicant submits that if the Officer was entitled to revisit the genuineness
of the employment offer, she nonetheless erred by breaching the Applicant’s
right to procedural fairness in two ways.
[50]
First,
the Officer failed to put the Applicant and his employer on notice that the AEO
was under review. In the mind of the Applicant, both he and his prospective
employer were entitled to assume that the issue was settled once the positive AEO
was issued and the file was passed to the Mexico visa office
for processing.
[51]
Second,
the Applicant submits that the Officer breached the duty of fairness by failing
to review the contents of the letters relied on, and failing to provide the
Applicant with copies of the letters to review and an opportunity to comment on
them. The Applicant takes the position that this was extrinsic evidence that
needed to be disclosed.
[52]
The
Respondent submits that there was no breach of procedural fairness and I agree
with him. There is no basis for requiring the Officer to put the Applicant on
notice that his arranged employment offer would be reviewed. In any case, the
letter advising him of the interview asked him to produce evidence related to
his employment, and specifically asked for an explanation for why Town &
Country was still holding the job open for him. As the Respondent argues, the
onus is on the Applicant to submit all evidence required for the processing of
his application.
[53]
The
Applicant also argued that since his application had already been processed
once and no concerns regarding the employment offer had been raised, he should
have been afforded a heightened level of procedural fairness because he had a
legitimate expectation that his offer of employment would not be at issue. I
am of the opinion that the Applicant’s perception of the previous unsuccessful
processing of his application is insufficient to ground a legitimate
expectation such that it would trigger the need for notice. Any notice
requirement was met in the letter informing the Applicant of the interview.
[54]
As
for the second issue of the contents of the letters, there was no need for the
Officer to obtain and disclose copies of them since their contents were
immaterial. The very existence of the letters, recorded in the FOSS notes, in
and itself was enough to show that the Applicant was being untruthful.
Furthermore, they cannot be considered extrinsic evidence since they were
written at the request of the Applicant and formed part of his own submitted
application in 2000 and 2001 to remain in Canada. It cannot
be said that either their existence, or contents, were not within the knowledge
of the Applicant.
V. Conclusion
[55]
In
my view, no question of general importance arises and as such none will be
certified.
[56]
In
consideration of the above conclusions, this application for judicial review is
dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is dismissed.
“ D.
G. Near ”
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