Docket: IMM-6924-10
Citation: 2011 FC 956
Ottawa, Ontario, July 28,
2011
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
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SINGH, NAVJOT
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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 ORDER AND ORDER
[1]
This
is the judicial review of a decision of a visa officer who held that Mr. Singh
did not have the minimum number of points required in order to qualify for
immigration to Canada as a member of the skilled worker class. It raises
a very narrow issue. He required 67 points. He was assessed 62. The fact is,
however, that he has a close relative living here, which would have earned him
an additional five points had the visa officer been satisfied with the evidence
proffered.
[2]
Two
questions arise:
a. was the
decision reasonable? and
b. should the
visa officer have given Mr. Singh an opportunity (a fairness letter) to make
good on the missing evidence?
[3]
The
starting point is the Immigration and Refugee Protection Regulations, SOR/2002-227,
which identify various classes of persons who may apply for permanent resident
status. Skilled workers fall within the economic class. Such persons may become
permanent residents on the basis of their ability to become economically
established, taking into account their employment history within one or more
occupations listed in the National Occupational Classification Matrix.
Section 76 sets out the selection criteria, namely education, proficiency in
the official languages of Canada, experience, age, arranged employment and
adaptability. Up to 10 points may be awarded for adaptability in accordance
with regulation 83, five of which are based on family relationships. The
relationship was with Mr. Singh’s wife’s sister, who is a Canadian permanent
resident currently living here.
[4]
The
instructions relating to an application to be filed with the High Commission in
New
Delhi
are quite complex. The consultant Mr. Singh hired navigated his way through
them, except for proof of the family relationship.
[5]
If
the relative is a permanent resident, rather than a Canadian citizen, the form
required:
a. “proof of
relationship to your close relative in Canada, such as
birth, marriage or adoption certificates”;
b. “record of
landing, confirmation of permanent residence or permanent resident card”; and
c. documents
proving the relative’s residency in Canada such as income tax
assessments, telephone bills, credit card invoices, employment documents
“and/or” bank statements.
[6]
Satisfactory
proof was provided with respect to the second and third requirements.
[7]
His
application was rejected because, to use the words of the visa officer:
While copies of a PR card, visa bank
card, Ontario Driver’s Licence, HBC card, and IMM 5617 were submitted for a
Mrs. Kuldeep Kaur Hayer, these documents did not include the name of Mrs.
Hayer’s father and/or mother to support the relationship. Civil documents that
include names of father and/or mother, such as birth certificates and marriage
certificates, are recommended to support proof of relationship. Although the
documents established Mrs. Hayer’s status in Canada, they did not support relationship to
your spouse, therefore no points awarded for having a relative in Canada.
[8]
The
forms signed by Mr. Singh and his wife, who was to accompany him, specifically
identify her sister. The sister’s permanent residence card provided her
identity number with Canada Immigration. According to the consultant, that was
the best evidence to compare Mr. Singh and his wife’s biodata with that of her
sister.
[9]
The
consultant was not cross-examined on his affidavit, and indeed no issue has
been taken with his statement. Had the visa officer gone into those records,
she would have realized that Mr. Singh indeed had a qualified relative living
in Canada, and would have awarded him five more points.
[10]
I
must conclude, however, that given the high volume of visa applications, there
was no obligation on the part of the visa officer to go beyond the face of the
application. The time and effort involved, if this had to be done in literally
hundreds of thousands of permanent resident visa applications annually, to say
nothing of temporary visa applications, would be intolerable.
A Fairness Letter
[11]
There
was nothing preventing the visa officer from writing a letter to Mr. Singh
pointing out that the documents provided did not establish his relationship
with his sister-in-law. Indeed, it might well have been the right thing to do.
However, she was under no legal obligation to do so.
[12]
There
are situations which require a visa officer to send a fairness letter before
making a final decision. In medical inadmissibility cases, the officer may be
relaying on extrinsic evidence and so must give, in accordance with natural
justice, the applicant an opportunity to respond. Credibility may raise
concerns which deserve comment (see Baybazarov v Canada (Minister of
Citizenship and Immigration), 2010 FC 665, [2010] FCJ No 930 (QL)).
[13]
The
applicant submits that there was a breach procedural fairness; more
particularly, the visa officer should have sent a fairness letter in order to
express her concerns and to give Mr. Singh an opportunity to respond. In my
opinion, there was no breach of procedural fairness. Counsel for the Minister submits
there are two recent controlling cases on point: Malik v Canada (Minister of
Citizenship and Immigration), 2009 FC 1283, [2009] FCJ No 1643 (QL), a
decision of Mr. Justice Mainville, as he then was, and Luongo v Canada
(Citizenship and Immigration), 2011 FC 618, [2011] FCJ No 770, a decision
of Madam Justice Gauthier. Both cases dealt with visa applications.
[14]
As
Madam Justice Gauthier stated in Luongo, above, at paragraph 18:
When an applicant produces insufficient
evidence to meet the requirements set out in the Regulations, there is no
further duty on the officer to communicate with the applicant. In that respect,
it is sufficient to refer to the decision of Justice Robert Mainville (then
with this Court) in Malik, above. In that case, an applicant for a
permanent resident’s visa as a skilled worker had submitted his own affidavit
to establish that he had a brother residing in Canada, despite the fact that he
had been warned in a form letter, similar to the one in the present case, that
this type of evidence would not be satisfactory evidence and that the officer
would not request further documentation to support his application. Justice
Mainville first noted that although this approach appears to be, at first
glance, harsh on visa applicants, “it is necessary to ensure the administrative
efficiency of a burdened system and to ensure finality of the decision-making
process related to visa applications.” He further said at paragraph 19:
Fairness
to all visa applicants requires that all applicants conform to the instructions
they receive as to the type and quality of documentation required in support of
their applications, thus ensuring a minimum of efficiency and equity in the
system.
[15]
Counsel
for Mr. Singh points out, correctly, that the language of the forms in both Malik
and Luongo, above, differ somewhat from the present case, and also
relies upon the decision of the Federal Court of Appeal in Choi v Canada
(Minister of Employment and Immigration), [1992] 1 FC 763, 15 Imm LR (2d)
265, where it was held that fairness demands that visa applicants be provided
with all relevant information. However, I am satisfied that in this case Mr.
Singh was provided with all relevant information. Unfortunately, his consultant
misinterpreted some of it. What was required was set out in the particular
forms. There is no suggestion that what was required was, in any way,
influenced by what appeared in other forms in other cases.
[16]
I
appreciate that Mr. Singh’s future ability to immigrate to Canada may be
prejudiced. He may have to wait a considerable period of time before a fresh
application is processed. The age factor will work against him. Job
requirements may change, perhaps to his detriment, perhaps to his advantage.
[17]
Even
if I were minded, without the benefit of jurisprudence on point, to have come
to a different conclusion, the decisions in Malik and Luongo,
above, are reasonable and judicial comity requires that I follow them.
[18]
In Baron v. Canada (Minister of Public Safety and Emergency
Preparedness), 2008 FC 341, 324 FTR 133, Madam Justice
Dawson set out circumstances which would justify a refusal to follow a prior
decision of the same court:
[52] A
judge of this Court, as a matter of judicial comity, should follow a prior
decision made by another judge of this Court unless satisfied that: (a)
subsequent decisions have affected the validity of the prior decision; (b) the
prior decision failed to consider some binding precedent or relevant statute;
or (c) the prior decision was unconsidered; that is, made without an
opportunity to fully consult authority. If any of those circumstances are found
to exist, a judge may depart from the prior decision, provided that clear
reasons are given for the departure and, in the immigration context, an
opportunity to settle the law is afforded to the Federal Court of Appeal by way
of a certified question. See: Re Hansard Spruce Mills Ltd., [1954] 4
D.L.R. 590 at page 591 (B.C.C.A.), and Ziyadah v. Canada
(Minister of Citizenship and Immigration), [1999] 4
F.C. 152 (T.D.).
.
ORDER
THIS COURT
ORDERS that the application for judicial review is dismissed. There is
no serious question of general importance to certify.
“Sean Harrington”
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