Docket: IMM-695-11
Citation: 2011 FC 1247
Ottawa, Ontario, November 1, 2011
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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ABDULAZIZ ALI; FARIDA ALI
and INARA ALI
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Applicants
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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 pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review of the
decision of a designated immigration officer (Officer) at the Immigration
Regional Program Center in Buffalo, New York dated 7 January 2011 (Decision).
The Officer refused the Applicants’ application for a permanent resident visa
under subsection 75(1) of the Immigration and Refugee Protection Regulations
SOR/2002-227 of the Act.
BACKGROUND
[2]
The
Principal Applicant, Abdulaziz Ali, is a citizen of the United States (US) and
is originally from Pakistan. Farida Ali (Farida) is the Principal
Applicant’s wife, Inara Ali (Inara), is the Principal Applicant’s adopted
daughter. Farida and Inara are both citizens of Pakistan.
[3]
In
March 2008, the Applicants applied for permanent resident visas under the
Federal Skilled Worker program. Their application was based on the
qualifications of the Principal Applicant. In support of the application, the
Principal Applicant submitted: T4 Income Statements (T4) from 2008 and 2009;
pay stubs for October and November 2008; a letter listing his employment from
August 1978 to 2008; and supporting letters from several employers, the most
recent being from 2003. He also submitted a transcript and a letter from the
Dean of Admissions and Registration at Kuwait University,
a Student Academic Record from Loyola University in Chicago, Illinois, and an
IELTS certificate. The Applicants also submitted their passports and adoption
documentation for Inara.
[4]
In
May 2009, an official with the Consulate General of Canada (CGC), identified as
SM in the CAIPS notes, determined that an interview would be required to confirm
the genuineness of: the relationship between the Principal Applicant, Farida
and Inara; the Principal Applicant’s employment experience; the Principal
Applicant’s credential from Kuwait University; the Principal Applicant’s
arranged employment; Farida’s education credential; and the Applicants’ family
relationships in Canada. The CGC scheduled an interview for 2 September 2010,
but the Applicants did not attend.
[5]
The
CGC determined, after the Applicants inquired about the status of their
application in December 2010, that they had not received the letter requesting
an interview. CGC scheduled a new interview for 6 January 2011. The Principal
Applicant attended and the Officer interviewed him.
[6]
The
CAIPS notes indicate that the Officer advised the Principal Applicant of the
purpose of the interview and that he could be examined on any other aspect of
the application. The Officer asked the Principal Applicant about his family
relationships in Canada, as well as his education, the adoption of his
daughter, and his work history. At the end of the interview, the Officer told
the Principal Applicant that he was refusing the application and that a refusal
letter would follow.
[7]
On
11 January 2011, the Applicants’ immigration consultant e-mailed the Officer
expressing concerns about the questions put to the Principal Applicant at the
interview related to his education credentials. In this e-mail, the consultant
reviewed the Principal Applicant’s educational credentials and said original
transcripts could be provided if they were required. The CGC responded in a
letter dated 20 January 2011 which noted that the application had already been
refused and the Applicants could re-apply if they had new information.
DECISION UNDER REVIEW
[8]
The
Decision in this case consists of both the Officer’s letter to the Applicants dated
7 January 2011 and the CAIPS notes on file.
[9]
The
Officer awarded the Principal Applicant a total of 48 points as follows:
Category Points
assessed Maximum
Age 0 10
Education 05 25
Experience 15 21
Arranged
employment 10 10
Official
language proficiency 08 24
Adaptability 10 10
TOTAL 48 100
[10]
The
portions of the Decision that are at issue in this case relate to the Officer’s
assessment of points in the experience, education, and official language
proficiency categories.
Experience
[11]
The
Officer awarded the Principal Applicant 15 points for his work experience. The
Officer found that the Principal Applicant had not provided sufficient documentation
to substantiate his claimed work experience from 1998 to 2008. He did not
provide any objective documentation proving income, such as W-2 – Wage and Tax
Statements from his employment in the US (W-2), income tax
returns, or pay stubs. The Principal Applicant did provide Canadian T4s from
his employment at Illustrate Inc. in 2008 and 2009.
[12]
The
Officer also noted several contradictions between the Principal Applicant’s
employment experience as stated in his application and his responses in the
interview. The Officer asked how the Principal Applicant was able to work with
Elegant Accent in Reading, PA from April 2000 to May 2002, as stated in
his application, when he had said in the interview that he was in Pakistan from 2000 to
2004. The Principal Applicant did not respond to this question.
[13]
The
Officer also questioned the Principal Applicant’s stated work experience from
2005 to 2008. In his application, the Principal Applicant said that he was
self-employed in the US. However, in the interview, he said that
he had been living in Canada since 2004. When asked to explain this
discrepancy, the Principal Applicant said that the business was actually run
from his brother-in-law’s address in Illinois. The Officer learned
that this business was not formally registered in Illinois and it had
never provided any goods or services. When the Officer asked why he referred to
a business that had never done anything, the Principal Applicant said that he
wanted to keep the business established for the future, in case he returned to
the US.
[14]
The
Officer did not award any points for the work experience the Applicant claimed
in the US and Pakistan because of the lack of documentary evidence from 1998 to
2008, the ten-year period before he filed his application, and the Principal
Applicant’s unsatisfactory answers. He awarded the Principal Applicant 15
points for experience because he had been granted a Temporary Work Permit in
July 2008.
Education
[15]
The
Officer awarded 5 points for education because he had serious concerns about
the Principal Applicant’s stated undergraduate education at Kuwait University.
[16]
First,
the Officer noted that the Principal Applicant provided a statement purportedly
issued by Kuwait University, Dean of
Admission and Registration addressed “TO WHOM IT MAY CONCERN” and dated 12
December 1998. The Officer said the document contained five different type
fonts and part of the text was misaligned. The transcript the Principal
Applicant provided was a photocopy, also addressed “TO WHOM IT MAY CONCERN”.
[17]
Second,
the Officer observed that the Principal Applicant purportedly graduated in 1976
and the transcripts and letter were dated twelve years later. However, the Certified
Tribunal Record shows that the transcripts and letter were actually dated 1998.
When asked about this matter, the Principal Applicant said that his original
degree was burned in a fire in Kuwait and that he contacted the university in
1998 and requested a copy of his transcript. When asked why he did not contact
Kuwait University to obtain a
replacement of his degree and a certified copy of his transcripts, the
Principal Applicant said that Kuwait is not a very sophisticated country and
that he had sent numerous e-mails and placed several phone calls to Kuwait regarding
the replacement of his degree, but had received no cooperation. The Officer
asked whether the Principal Applicant had copies of those e-mails and he said
no.
[18]
The
Officer wrote in the CAIPS notes that he told the Principal Applicant that the
website and instructions for applying for permanent resident status
clearly [indicated] what documentation
was required and if he chose to ignore such instructions that he assumed the
risk that the lack of such [documentation] could present or become a potential
issue in demonstrating his education.
When the Principal Applicant said that he
was admitted to a Masters program at Loyola University in Chicago which proved
he had an undergraduate degree, the Officer said he could not rely on
second-hand or hearsay information.
[19]
The
Officer decided that the documentation provided by the Principal Applicant to
substantiate his education was insufficient and awarded him 5 points for
completing secondary school.
Official Language
Proficiency
[20]
The
Officer awarded the Principal Applicant a total of 8 points for his English
language proficiency because he is moderately proficient in all four abilities
(listening, speaking, reading and writing). The Officer said this was based
upon the supporting evidence provided.
Conclusion
[21]
The
Principal Applicant did not meet the minimum requirement of 67 points so the
Officer refused the application.
ISSUES
[22]
The
Applicants raise the following issues in his written submissions but he
modified his position at the judicial review hearing:
a.
Whether
the Officer erred in his assessment of points under the education, language
proficiency and experience categories;
b.
Whether
the Principal Applicant was denied the opportunity to respond when the Officer
did not inform him that the interview would include questions on his work experience,
education and English proficiency;
c.
Whether
the Officer’s reasons were adequate;
d.
Whether
the Officer was biased.
RELEVANT LEGISLATION
[23]
The
following provision of the Act is applicable in this proceeding:
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Economic Immigration
12.
…
(2)
A foreign national may be selected as a member of the economic class on the
basis of
their
ability to become economically established in Canada.
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Immigration économique
12.
…
(2) La
sélection des étrangers de la catégorie « immigration économique » se fait en
fonction de leur capacité à réussir leur établissement
économique
au Canada.
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[24]
The
following provisions of the Regulations are also applicable in these
proceedings:
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Federal
Skilled Worker 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.
(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.
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,
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Travailleurs
qualifiés (fédéral)
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.
Critères de selection
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,
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STANDARD OF REVIEW
[25]
The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9,
held that a standard of review analysis need not be conducted in every
instance. Instead, where the standard of review applicable to a particular
question before the court is well-settled by past jurisprudence, the reviewing
court may adopt that standard of review. Only where this search proves
fruitless must the reviewing court undertake a consideration of the four factors
comprising the standard of review analysis.
[26]
In
Kniazeva v Canada (Minister of
Citizenship and Immigration) 2006 FC 268, Justice Yves de Montigny held
that the assessment of an application for permanent residence under the Federal
Skilled Worker Class is an exercise of discretion that should be given a high
degree of deference. Further, in Persaud v Canada (Minister of
Citizenship and Immigration) 2009 FC 206, Justice John O’Keefe held
that the appropriate standard of review for a determination under the Federal
Skilled worker class is reasonableness. (See also Tong v Canada (Minister of
Citizenship and Immigration) 2007 FC 165). The standard of review on
the first issue is reasonableness.
[27]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
paragraph 47, and Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph
59. Put another way, the Court should intervene only if the Decision was
unreasonable in the sense that it falls outside the “range of possible,
acceptable outcomes which are defensible in respect of the facts and law.”
[28]
The
opportunity to respond and the adequacy of reasons are issues of procedural
fairness. In Canadian Union of Public Employees (CUPE) v Ontario (Minister
of Labour), 2003 SCC 29, [2003] SCJ No. 28, the Supreme Court of
Canada held that the standard of review with respect to questions of procedural
fairness is correctness. Further, the Federal Court of Appeal in Sketchley v
Canada (Attorney
General)
2005 FCA 404 at paragraph 53 held that the “procedural fairness element is
reviewed as a question of law. No deference is due. The decision-maker has
either complied with the content of the duty of fairness appropriate for the
particular circumstances, or has breached this duty.” The standard of review
with respect to the second issue and third issues is correctness.
[29]
Also in Dunsmuir (above), the Supreme Court of Canada held
at paragraph 50 that
When applying the correctness standard, a
reviewing court will not show deference to the decision maker’s reasoning
process; it will rather undertake its own analysis of the question. The
analysis will bring the court to decide whether it agrees with the
determination of the decision maker; if not, the court will substitute its own
view and provide the correct answer. From the outset, the court must ask
whether the tribunal’s decision was correct.
[30]
In
Community for Justice and Liberty v Canada (National
Energy Board), [1978] 1 S.C.R. 369, [1976] SCJ No 118, Justice De Grandpré wrote at
page 394 that the test for bias is that
[...] the apprehension of bias must be a
reasonable one, held by reasonable and right minded persons, applying
themselves to the question and obtaining thereon the required information. In
the words of the Court of Appeal, that test is “what would an informed person,
viewing the matter realistically and practically — and having thought the
matter through — conclude. Would he think that it is more likely than not that
Mr. Crowe, whether consciously or unconsciously, would not decide fairly?”
Though Justice De Grandpré was in
dissent, this formulation of the test was later approved by the Supreme Court
of Canada in R v RDS, [1997] 3 S.C.R. 484, [1997] SCJ No. 84 [RDS].
In that case, Justice Cory held at paragraph 114 that
The onus of demonstrating bias lies
with the person who is alleging its existence. […] Further, whether a reasonable apprehension of bias arises
will depend entirely on the facts of the case.
Whether the Officer was biased is a
question of fact within the jurisdiction of the reviewing court (see also Martinez
v Canada (Minister of
Citizenship and Immigration) 2005 FC 1065).
ARGUMENTS
The Applicants
The Officer Erred
in his Assessment of Points
Education
[31]
The
Applicants argue that the Officer erred when he did not recognize the Principal
Applicant’s Bachelor of Science degree from Kuwait University. They say
that the original degree was burned in a fire and that they had been
unsuccessful in obtaining a replacement from Kuwait University.
[32]
In
support of the genuineness of the Principal Applicant’s education
documentation, the Applicants say that the Principal Applicant would not have
been able to go on to work towards a Master’s degree if he did not first have
his Bachelor degree. The Officer erred by not accepting this fact as proof that
his education credentials were genuine. Had the Officer accepted this evidence,
the Principal Applicant would have been awarded 20 points for his Education.
Experience
[33]
The
Applicants say that the Principal Applicant was employed as follows during the
ten-year period before they filed the Application:
·
Jul. 1997
– Jan. 2000 Conestoga Wood Specialyies [sic], Inc., in Reading PA, USA.
·
Apr. 2000
– May 2002 Elegent [sic] Accent, in Reading PA, USA.
·
Nov. 2002
– Jan. 2005 Paper Centre International in Karachi, Pakistan.
·
Jan. 2005
– Aug. 2008 Data Management Solutions in Prairie View, IL, USA.
[34]
The
Principal Applicant should have been awarded the maximum 21 points under this
category.
English Language
Proficiency
[35]
The
Applicants argue that the Officer ought to have awarded 16 points under the
English Language Proficiency category. They say that the Principal Applicant is
highly proficient in the English language, noting that his primary, secondary
and undergraduate education were conducted in English. They also note that the
Principal Applicant pursued a Master’s degree in the US and that he is a US citizen who
has studied, worked and taught in the US.
[36]
Finally,
the Applicants highlight the IELTS test report dated 7 February 2005 that they
submitted with their application. This document proves the Principal
Applicant’s English proficiency so he should have been awarded 16 points.
[37]
The
Principal Applicant would have exceeded the 67 points required under the
Federal Skilled Worker Class had the Officer awarded the proper number of
points, so their application should not have been refused.
The Officer Breached the Principal
Applicant’s Right to Procedural Fairness
[38]
The
Applicants argue that the Officer breached the Principal Applicant’s duty of
procedural fairness by not telling him that the interview held on 6 January
2011 would include questions on the Principal Applicant’s work experience,
education and English proficiency. Had the Officer done so, the Principal Applicant
would have been able to produce documents and information that would have
satisfied the Officer’s concerns.
[39]
The
Applicants say that the Officer never indicated in any of the previous
correspondence, including the request for an interview, that he had concerns
regarding the Principal Applicant’s education, work experience and English
language proficiency. This is contrary to Hernandez v Canada (Minister of
Citizenship and Immigration) 2005 FC 429, which the Applicants say
requires officers to advise applicants of the purpose of an interview. They
note that in the letter requesting an interview, the only documents that were
specifically requested were their passports and drivers licenses. At the
interview, the Officer asked the Principal Applicant for his W-2 statements,
which he said he did not have because he did not know that he would be required
to bring them. The Principal Applicant would have brought all his work
documents if the interview request letter had requested them.
[40]
The
Applicants say that the Officer denied them the opportunity to respond when he
made his Decision on the file without giving them an opportunity to provide
additional supporting documentation which would address the concerns he raised
in the interview. They note that the Decision was made at the end of the
interview and they say this denied them the opportunity to respond.
[41]
The
Applicants also say the letters sent to them in advance of the interview gave
them a legitimate expectation that the Principal Applicant’s work history would
not be an issue at the interview. They were taken by surprise when the Officer
asked for supporting documents about the Principal Applicant’s work history
because the letters the CGC sent to them only said that they had to bring their
identification.
The Officer’s Reasons Were Inadequate
[42]
The
Applicants note that Healey v Canada (Minister of
Citizenship and Immigration) 2009 FC 355 establishes that the adequacy
of reasons as an issue of procedural fairness. They say that the Officer’s
reasons were inadequate.
The Officer
was biased
[43]
The
Applicants argue that the Officer was biased. They say that he made his Decision
on the file on grounds other than those applicable under subsection 76(1) of
the Regulations. This allegation was withdrawn at the judicial review hearing.
The Respondent
Preliminary Matters
[44]
The
Respondent raises two preliminary matters. First, the Applicants have failed to
provide a supporting affidavit verifying the facts upon which they are relying.
This affidavit is required by Rule 10(2)(d) of the Federal Courts
Immigration and Refugee Protection Rules, SOR/93-22 when perfecting an
application for leave and judicial review. The Respondent says that, although
the Applicants have provided the Court the documents they alleged were
submitted to the Officer, they have not introduced them by way of affidavit
evidence.
[45]
Second,
the Respondent points out that the Applicants provided a supplementary letter
in a sealed envelope containing a certified copy of the Principal Applicant’s
transcripts from Kuwait University. The Respondent says that this
letter should not be considered by the Court because it was not before the
Officer at the time of his Decision. The lack of such a certified transcript
was the reason why the Officer awarded the Principal Applicant only 5 points
under the education category; the Applicants cannot now try to remedy the
situation by providing that document on judicial review.
The Officer Did Not Breach the Principal Applicant’s
Right to Procedural Fairness
[46]
The
Respondent says that the onus was on the Applicants to satisfy the Officer
fully of all the positive factors in their application. See Oladipo v Canada (Minister of
Citizenship and Immigration) 2008 FC 366 at paragraph 24 for this
proposition. The Officer was not required to offer the Applicants several
opportunities to satisfy him on necessary points which they may have
overlooked. The Officer’s role is to assess the application on the basis of the
information and supporting documents provided.
[47]
The
Respondent says that when the material submitted is ambiguous or insufficient
to satisfy the Officer, there is no general legal duty to ask for additional
information before rejecting an application. See Veryamani v Canada (Minister of
Citizenship and Immigration) 2010 FC 1268. Relying upon Hassani v Canada (Minister of
Citizenship and Immigration) 2006 FC 1283, the Respondent also says that
the Officer is not required to make his concerns known before rendering a
decision when those concerns arise directly from the requirements of the
Regulations.
[48]
The
Respondent relies on Malik v Canada (Minister of
Citizenship and Immigration) 2009 FC 1283 [Malik] for the
proposition that the duty of fairness owed to applicants applying for permanent
residence under the Federal Skilled Worker Class is low. He notes that in Malik,
Justice Robert Mainville held at paragraphs 26 and 29 that
[…] the Applicant holds no
unqualified right to enter and to remain in Canada: Chiarelli, […], at pages 733-34. He applied for
permanent residence under the federal skilled worker class and the process
under the Immigration and Refugee Protection Act and
the Regulations provides for an assessment of clear and specific criteria under
a points system leaving little discretion to visa officers and which does not
normally require an interview or other hearing with applicants. The nature of
the regulatory scheme, the role of the decision of the visa officer in the
overall scheme, and the choice of procedure made do not therefore suggest the
need for strong procedural safeguards beyond what is already provided for in
the legislation, save the procedural safeguard concerning proper information to
applicants as to the criteria used and the documentation required to properly
assess their applications. Though the decision to grant or not an application
for permanent residence under the federal skilled worker class is obviously
important to the individual affected, it is not such as to affect the
fundamental freedoms or other fundamental rights of an applicant, such as a
criminal proceeding or, in the immigration context, a deportation proceeding
might have. In addition, no undertakings are made to applicants as to an
interview or as to additional notification if documentation is missing or
insufficient, thus considerably limiting expectations of applicants in such
matters.
[…]
In such circumstances, the duty of fairness owed the Applicant is
low, and in any event has been met in this case through the prior notice
provided to him specifying clearly the process that would be followed and the
documentation required in order to support his application.
[49]
In
this case, the Applicants failed to provide adequate documentation to support
the Principal Applicant’s education and work experience claims. The Principal
Applicant was only awarded 5 points for education because he only provided a
photocopy of his transcript and letter of reference, rather than a certified
copy. The Respondent notes that the application instructions and web-site are
clear about the documents that must be produced.
[50]
The
Respondent says that the Officer was not required to apprise the Applicants of
his concerns since they arose from the insufficiency of the evidence presented
and the failure to meet the requirements of the Regulations. The Principal
Applicant received 15 points for his work experience because none of his
employment between 1998 and 2008 was supported by objective evidence of earned
income, income-tax returns, W-2s or pay stubs.
The Officer Considered
All of the Evidence and Provided Adequate Reasons
[51]
The
Respondent argues that the Officer’s reasons do not need to be comprehensive. Relying
upon Lake v Canada (Minister of Justice), 2008 SCC 23, the
Respondent says that the purpose of providing reasons is to allow the
individual concerned to understand why the decision was made and to allow the
reviewing court to assess the validity of the decision. The Officer’s reasons
in this case satisfy these purposes.
[52]
In
any event, the adequacy of reasons does not establish a freestanding ground for
judicial review. R v Sheppard, 2002 SCC 26 holds that an applicant must
not only show that there is a deficiency in the reasons, but also that this
deficiency has occasioned prejudice to the exercise of his legal right to seek
leave and judicial review.
[53]
The
Respondent points out that the CAIPS notes are a constituent part of the
Officer’s Decision and provide additional detail to the formal decision letter.
Together, these inform the Applicants of the reasons why the Officer refused
their Application. In this case, the refusal letter and CAIPS notes together
are 15 pages in length. The Officer’s reasons demonstrate that he grasped the
pertinent issues and the relevant evidence. Further, the Officer clearly explains
why he awarded the Principal Applicant 48 points and refused the application.
The Officer Acted Fairly
[54]
The
Respondent argues that the Applicants have engaged in an improper allegation of
bias against the Officer solely because they did not get what they wanted.
[55]
The
Respondent says Martinez, above, establishes that the test for
reasonable apprehension of bias is whether or not an informed person, viewing
the matter realistically and practically and having thought the matter through,
would think it more likely than not that the decision-maker would unconsciously
or consciously decide an issue unfairly. The threshold for a finding of real or
perceived bias is high and a real likelihood or probability of bias must be
demonstrated. Mere suspicion is not enough. See RDS, above, at
paragraphs 112 and 113.
[56]
The
Respondent says that there is no evidence in this case of either actual bias or
a reasonable apprehension of bias. The Officer, after interviewing the
Principal Applicant and considering all of the evidence, was entitled to draw
the conclusions he did with respect to the Applicants’ evidence. A negative
decision does not, without more, signal a reasonable apprehension of bias.
ANALYSIS
[57]
The
Applicants applied for permanent residence under the Federal Skilled Worker
Class, but did not provide adequate documentary evidence to support the claims
made by the Principal Applicant and they failed to explain in a satisfactory
manner certain obvious discrepancies in the information provided. The
Applicants now seek to blame the Officer for problems that were of their own
making.
[58]
There
are two preliminary issues raised by the Respondent that should be addressed.
First, the Applicants have not included a sworn affidavit in this application.
However, in this case, the documentation and evidence relied on by the
Applicants (with the exception of the official transcripts from Kuwait University discussed in
the next paragraph) can be found in the Certified Tribunal Record. It is my
view that I can rely on the Certified Tribunal Record to address the
substantive issues raised by the Applicants.
[59]
The
second preliminary issue raised by the Respondent is that the Applicants have provided
a supplementary letter with a sealed envelope containing a certified copy of
transcripts from Kuwait University. The Respondent argues that this
letter should not be considered by this Court as it was not before the Officer
at the time of the Decision.
[60]
This
issue was addressed in Chopra v Canada (Treasury
Board)
(1999), [1999] FCJ No 835, 168 FTR 273, at paragraph 5, by Justice Jean-Eudes Dubé:
There is considerable jurisprudence to
the effect that only the evidence that was before the initial decision-maker
should be considered by the Court on judicial review. These decisions are
premised on the notion that the purpose of judicial review is not to determine
whether or not the decision of the Tribunal in question was correct in absolute
terms but rather to determine whether or not the Tribunal was correct based on
the record before it.
[61]
As
the official transcripts were not before the Officer, and indeed were the
primary reason the Officer assessed only 5 points for education, the certified
transcripts submitted by the Applicants after the Officer’s Decision will not
to be considered in this case.
Assessment of
Points
[62]
The
Applicants claim the Officer erred in the proper assessment of points under the
education, language proficiency and experience categories. As held in Kniazeva,
above, the assessment of an application for permanent residence under the
Federal Skilled Worker Class is an exercise of discretion that should be given
a high degree of reference and is reviewable on a standard of reasonableness.
[63]
In
this case, it is my view that the Officer’s assessment of points was
reasonable.
Education
[64]
The
Applicants were required to provide sufficient documentation to prove to the
Officer that the Principal Applicant had successfully completed his Bachelor
degree from Kuwait
University. They failed
to do so.
[65]
The
Officer found that the documents provided were not acceptable. Both documents
were dated 1998 even though the Principal Applicant claimed to have graduated
in 1976. The Officer observed that the letter contained five type fonts and did
not appear to be properly aligned. In addition, instead of supplying a sealed,
certified copy of transcripts as required, the Principal Applicant only
provided a photocopy of his transcripts. The Officer specifically questioned
the Principal Applicant on these documents and was not satisfied by his
responses.
[66]
The
Officer’s finding that the documents were not credible is a finding of fact
deserving of high deference. As the transcripts were not original copies
submitted in university-sealed envelopes as required in the application, the
Principal Applicant simply did not submit the proper documentation to
substantiate his education claim. The Officer’s finding and decision to award the
Principal Applicant 5 points was within the range of possible, acceptable
outcomes described in Dunsmuir.
Work
Experience
[67]
Subsection
80(1) of the Regulations states that the work experience of an applicant under
the Federal Skilled Worker Class must be assessed within the 10-year period
preceding the date of their application. The Applicants submitted their
application in March, 2008. Thus, the relevant time period is between March
1998 and March 2008.
[68]
The
Applicants provided many documents to establish the Principal Applicant’s
extensive work experience, dating back to his employment from 1976 to 1978 at Kuwait University.
However, much of the documentation provided by the Applicants appears to me to
be irrelevant for their application. While at first glance there appear to be
many documents supporting the Principal Applicant’s cumulative work experience,
there are in fact very few documents evidencing his work experience during the
relevant time period prescribed by the Regulations.
[69]
The
relevant work experience claimed by the Applicants on their application, as
noted above, is as follows:
a.
Jul. 1997
– Jan. 2000 Conestoga Wood Specialyies [sic], Inc., in Reading PA, USA.
b.
Apr. 2000
– May 2002 Elegent [sic] Accent, in Reading PA, USA.
c.
Nov. 2002
– Jan. 2005 Paper Centre International in Karachi, Pakistan.
d.
Jan. 2005
– Aug. 2008 Data Management Solutions in Prairie View, IL, USA.
[70]
The
Applicants did not submit any objective documentation proving the Principal
Applicant’s income from any of these four employers. No documentation
whatsoever was provided regarding the Principal Applicant’s claimed employment
with Conestoga Wood Specialyies [sic] Inc., Elegent [sic] Accent
or Data Management Solutions. The only document supporting the Principal
Applicant’s claim of employment with Paper Centre International is a letter
stating that he worked as a manager and was making RS. 25000 per month.
[71]
With
regards to the Principal Applicant’s employment with Elegent [sic]
Accent in the US, the Officer also found that this claim contradicted the
Principal Applicant’s interview response that he had been living in Pakistan from 2000 to
2004. The Officer also noted that no income tax returns, W-2s or pay stubs were
supplied by the Principal Applicant to substantiate his employment in the US from 1997 to
2002. Based on this lack of evidence, the Officer concluded that she could not
award the Principal Applicant credit for his work for the two companies in the
US he claimed to have worked for.
[72]
Finally,
the Officer was also unable to award the Principal Applicant any points for his
self-employment with Data Management Solutions. As with his other claimed
employment, the Principal Applicant did not provide objective evidence of any
income received from his employment from January 2005 to August 2008.
[73]
In
addition, the Officer noted that the Applicants claimed that Data Management
Solutions, the business the Principal Applicant worked for from 2005 to 2008,
was in the US while the
Applicants also claimed to have lived in Canada from 2004 to
the present. When questioned, the Principal Applicant replied that the business
was actually run from his brother-in-law’s address in the US. Further,
the Officer learned that the business had never been registered in Illinois and had
never provided any goods or services. The Officer concluded that no points
could be awarded to the Principal Applicant for this claimed employment. This
was reasonable.
[74]
The
Officer’s decision not to award the Applicants the requested number of points
is reasonable when the evidence, or lack thereof, is taken into account.
English
Language Proficiency
[75]
The
Officer awarded a total of 8 points of assessment for English language
proficiency. The Officer held that the Principal Applicant had moderate
proficiency in all four abilities, i.e. listening, speaking, reading and
writing. The Officer stated that this finding was based upon the supporting
evidence provided by the Applicants.
[76]
According
to the Appendix A Checklist, the Principal Applicant had the option of
submitting original test results from an approved language-testing organization
or providing other evidence in writing. Test results had to be originals and
the results could not be older than one year upon submission. The Checklist
clearly states that photocopies are unacceptable.
[77]
The
Checklist also states that the Principal Applicant could provide other evidence
in writing, including written submissions detailing his training in, and use
of, English, official documentation of education in English, official
documentation of work experience in English and other applicable documentation.
[78]
The
Officer appears to have made her assessment based on the Principal Applicant’s
written submissions. The Principal Applicant did submit a test report, but it
was clearly older than one year as it was dated 7 February 2005. The final page
of the Officer’s notes also indicates that no English test was taken for the
purposes of assessing his English language proficiency.
[79]
As
no objective evaluation of the Principal Applicant’s English language
proficiency was submitted, the Officer had to rely on the Principal Applicant’s
written submissions to assess his English language proficiency. This was an
exercise of discretion on the part of the Officer deserving deference. Her
decision to award 8 points based on the supporting evidence provided by the
Applicants was not unreasonable. At the review hearing before this Court,
counsel for the Applicant indicated that the Applicant no longer disputes the
Officer’s findings on this point.
Procedural Fairness
[80]
Questions
of procedural fairness must be reviewed on a standard of correctness.
Essentially, the Applicants claim that the Officer did not afford them proper
procedural fairness because the Officer did not alert them to her concerns
going into the interview. The Applicants claim that had the Officer informed
them of her concerns regarding the Principal Applicant’s education and work
experience, they would have been able to provide the necessary documents and
evidence to satisfy her concerns.
[81]
In
my view, the Officer did not breach her duty of procedural fairness to the
Applicants.
[82]
First,
as submitted by the Respondent, Malik, above, holds at paragraph 26 that
the duty of procedural fairness owed to applicants, “other than the procedural
safeguard concerning proper information to applicants as to the criteria used
and the documentation required to properly assess their applications,” is low.
The Applicants have not argued that they were unaware of the criteria used and
the documentation required when they submitted their application. The
Applicants only claim that they were not informed of the Officer’s concerns after
the application had been submitted and before the interview.
[83]
Secondly,
“[t]he 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.’” See Oladipo, above, at paragraph 24. As a
general rule, when concerns arise directly from the requirements of the Regulations,
visa officers are not under a duty to provide an opportunity for the applicant
to address those concerns. See Ramos-Frances v Canada (Minister of
Citizenship and Immigration), 2007 FC 142 at paragraph 8.
[84]
This
is such a case. The Officer’s concerns regarding the Principal Applicant’s
claimed work experience arose directly from the requirements of the Regulations
and the Principal Applicant’s failure to provide documentation establishing his
work experience.
[85]
The
Officer was under no duty to inform the Principal Applicant prior to the
interview that she had concerns regarding his work experience. The onus was on
the Applicants to provide the necessary documentation.
[86]
However,
while the Officer was not under a duty to inform the Principal Applicant of her
concerns regarding his work experience, such a duty did arise, in my view, in
relation to the Officer’s concerns about the Principal Applicant’s claimed
education. Justice Richard Mosley in Hassani, above, provides the
following guidance at paragraph 24:
…it is clear that where a concern arises
directly from the requirements of the legislation or related regulations, a
visa officer will not be under a duty to provide an opportunity for the
applicant to address his or her concerns. Where however the issue is not one
that arises in this context, such a duty may arise. This is often the case
where the credibility, accuracy or genuine nature of information submitted by
the applicant in support of their application is the basis of the visa
officer’s concern, as was the case in Rukmangathan, and in John….
[87]
The
Officer’s concerns about the Principal Applicant’s claimed education were a
result of a lack of required documentation but also raised credibility issues and
the reliability of the letter and transcripts from Kuwait University
submitted by the Applicants. Following Hassani, above, the Officer owed the
Principal Applicant a duty to inform him of her concerns and provide him with
an opportunity to address those concerns. The question is whether the Officer
met this duty.
[88]
In
Liao v Canada (Minister of Citizenship and Immigration), [2000] FCJ No
1926, Justice Pierre Blais held that an officer’s duty to inform an applicant
of his or her concerns will be fulfilled if the visa officer adopts an
appropriate line of questioning or makes reasonable inquiries that give the
applicant the opportunity to respond to the visa officer’s concerns.
[89]
From
the CAIPS notes, it is clear that the Officer discussed the education
documentation with the Principal Applicant. The Officer asked him why the
documents were dated from 1998 and questioned why he had not contacted Kuwait University to obtain a
replacement of his degree and a certified copy of his transcripts. When told by
the Principal Applicant that he had attempted to do so but had received no
cooperation from the university, the Officer asked whether he had brought
copies of the e-mails requesting those documents. The Principal Applicant
stated he had not.
[90]
The
Officer also advised the Principal Applicant that, when he initially applied
for permanent resident status, the website and instructions clearly indicated
what documentation was required and if he chose to ignore those instructions,
he then assumed the risk that the lack of such documents could present or
become a potential issue in demonstrating his education. The Officer noted that
the Principal Applicant stated that since he was accepted at Loyola University in the US,
the Officer should consider that Loyola University verified his
degree in Kuwait. The Officer
reiterated that she could not rely on second-hand or hearsay information
regarding his education. There was nothing unreasonable about the Officer
raising these concerns or in her deciding that official sealed transcripts were
needed.
[91]
In
this case, the Officer clearly had concerns regarding the credibility and
reliability of the education documentation supplied by the Applicants. The
Officer raised these concerns at the interview and provided the Principal
Applicant with an opportunity to address them. Unfortunately, the Principal
Applicant’s responses did not satisfy the Officer as to the genuineness of the
documents and the Officer ultimately did not accept them.
[92]
In
my view, the Applicants were provided with ample opportunity to present their
case. The Applicants were able to submit all the required documentation to
support the Principal Applicant’s claimed education, work experience and
English language proficiency with their initial application. They were also
able to address concerns held by the Officer during the interview. The Officer
was under no obligation to provide extra time for the Principal Applicant to
“re-submit” documentation that would have satisfied any concerns that remained
at the conclusion of the interview. As set out above, the onus is on the
Applicants to put their best case forward at the time of the application.
[93]
I
conclude that the Officer did not breach her duty of procedural fairness owed
to the Applicants. It is clear from the jurisprudence that any duty owed by the
Officer was low and, based on the facts and the CAIPS notes, the Officer in
this case clearly met any duty that did exist.
[94]
My
conclusion is that the Applicants have not established any grounds for
reviewable error. The negative Decision is the result of their failure to
submit the required documentation with their application and the Principal Applicant’s
failure to provide adequate answers to concerns raised at the interview.
[95]
The
parties agree there is no question for certification and the Court concurs.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application for judicial review is dismissed.
2.
There
is no question for certification.
“James Russell”
Judge
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