Docket:
IMM-7124-10
Citation:
2011 FC 888
Toronto, Ontario, July 14,
2011
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
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SALEEM ISBAD HADWANI
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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 a Designated Immigration
Officer dated October 5, 2010 in which the Officer refused the Applicant’s
application for permanent residence in Canada as a skilled
worker. For the reasons that follow this application is allowed with costs.
[2]
The
Applicant is a physician residing in Karachi, Pakistan. He seeks to
come to Canada as a
permanent resident. He made an application to do so using an immigration
consulting firm. The application was processed by the Canadian High Commission
of Islamabad, Pakistan which required and was provided with a number of
documents and information in support of his application. An assessment was made
based on a points scheme. The Applicant received 63 points. He required 67
points in order to be successful. The essential issue turns on the award by the
Officer of zero (0) points in a category termed as “adaptability”. The reason
for doing so was that the Officer was not satisfied that the Applicant had
filed a government issued birth certificate in support of the otherwise
satisfactory proof that the Applicant had a nephew residing in Canada. What the
Applicant had filed was a document provided by the Medical Record Department of
Karachi Aventist Hospital providing particulars of the birth of the nephew at
that hospital. The Officer was not satisfied with this document. The Officer
apparently required a government issued birth certificate but didn’t tell the
Applicant or his representatives.
[3]
The
CAIPS notes entered by the Officer indicates the following:
“FN claim to have a niece in Canada. Copy of PR card is on file.
Copy of marriage cert of niece mother shows same parentage as appear on FN’s
edu docs. But birth cert for niece is not acceptable as it is issued by a
hospital and not by relevant govt authorities. No pts for relatives in Canada are awarded. FN does not
obtain any points for adaptability factors. FN does not meet minimum 67 pass marks
criteria under IRPA. File to PR for review.”
[4]
The
reference to a niece instead of a nephew reflects a degree of carelessness or
inattention to this file by the Officer.
[5]
The
Officer did not advise the Applicant or his legal representatives as to any
concern respecting the provision of a document other than government issued
birth certificate. When the Officer’s decision was communicated to the
Applicant’s representatives the representatives attempted to provide further
information. They were advised that it was too late to do so.
[6]
The
Applicant raises three issues on this application:
a.
Did
the Officer deny the Applicant procedural fairness by failing to provide the
Applicant with an opportunity to disabuse the Officer’s concerns with respect
to documentation providing the relationship to his nephew residing in Canada?
b.
Was
the Officer’s fining unreasonable in awarding the Applicant no points for
adaptability, despite evidence indicating the existence of a Canadian relative?
c.
Did
the Officer err in failing to exercise his discretion to approve the
Applicant’s skilled worker application, give the unique circumstances of this
case?
[7]
The
Respondent’s position is that an applicant bears the burden of filing a proper
and complete application and that an Officer is under no duty to inform an
applicant as to defects or enter into a dialogue as to the adequacy of
materials submitted.
[8]
The
issues should be approached from the point of view as to what the Applicant was
required to submit. In this regard the Applicant was furnished by the Canadian
High Commission with a document entitled “Document Check List”. It set
out a number of documents required for an application of this kind, including:
Proof of your relationship to your
relative in Canada, if applicable, (i.e.; education documents, parent’s Bay
Form, birth certificates or Nikah Nama), and his/her status in Canada with the notarized copy of
record of landing, Canadian passport of citizenship card. Documents must
conclusively prove how you are related. Affidavits are not acceptable. Also
provide the complete address of your relative in Canada.
[9]
It
is to be noted that the mention, in brackets, of birth certificates is preceded
by the notation ie. which is to say “ such as”, meaning a degree of flexibility
is permissible. Where it is to be made clear that certain documents are not
acceptable, that is set out, for instance in the above section. “Affidavits
are not acceptable”. The Check List elsewhere also makes it clear what
documents are and are not acceptable, for instance:
·
Updated
proof of funds with supporting verifiable documents showing the history of your
funds.
Information on required settlement funds
can be found at:
http://www.cic.gc.ca/english
/immigrate/skilled/funds.asp
·
Photocopies
of the first 4 pages of passports for yourself and all your dependants, whether
accompanying or not.
·
Original
employment certificates and official detailed job description for your declared
NOC codes that meet the Ministerial Instructions.
Please do not submit
self-written job descriptions, we will only consider your submission if it has
been issued and certified by your employer.
[10]
The
Check List does not state that a government issued birth certificate must be
submitted in the case of a relative in Canada. It says
documents “such as” a birth certificate must be submitted. The Officer was
clearly wrong in dismissing out of hand the hospital record as to the nephew’s
birth.
[11]
It
is incredulous that the application of a physician should be dismissed on the
basis of failure to file a government issued birth certificate of his nephew
(not “niece”) when he did file an acceptable alternative. He was turned down
for being only four points short of achieving the necessary sixty-seven points.
The failure of the officer to exercise a degree of flexibility and the failure
of the Respondent to settle this matter well before the hearing constitute
special reasons for an award of costs which I fix at $500.00.
[12]
This
application is allowed with costs fixed at $500.00. The Officer’s decision is
set aside. The matter is returned for re-determination by a different Officer
bearing in mind these reasons.
JUDGMENT
FOR THE
REASONS PROVIDED:
THE COURT’S
JUDGMENT IS:
1.
The
application is allowed;
2.
The
decision of the Designated Immigration Officer dated October 5, 2010 is set
aside;
3.
This
matter is returned for re-determination by a different Officer bearing in mind
the Reasons herein;
4.
The
Applicant is entitled to costs fixed in the sum of $500.00.
“Roger T. Hughes”
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