Date: 20110210
Docket: IMM-4452-10
Citation: 2011 FC 157
Ottawa, Ontario, February 10,
2011
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
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AHMAD MOUMIVAND
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Applicant
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and
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MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Ahmad
Moumivand, the Applicant, seeks judicial review of a decision dated April 25,
2010 by which an Immigration Officer in Damascus, Syria, refused the
application for permanent residence under the Provincial Nominee class for the
Applicant and his family, and refused to re-examine this application. Leave was
granted by Justice Mosley on November 5, 2010. At issue here is the scope of
the duty of procedural fairness of the Officer when assessing an application
deemed incomplete. More precisely, the Applicant seeks review of the Officer’s
decision to not re-open the file after a decision had been rendered.
The facts
[2]
The
Applicant was nominated by the Province of Prince Edward Island
as a Provincial Nominee on August 27, 2008, contingent to the fulfillment of
visa and investment requirements. He made the necessary investments: $200,000
in a Canadian business; $25,000 as a good faith deposit to the province; as
well as $20,000 as a good faith deposit ensuring he would advance his language
skills. Once the certificate of nomination was received, the Applicant’s
immigration consultant, Hamid Naimi (“Mr. Naimi”), applied for permanent
resident status on behalf of the Applicant and his family.
[3]
As
the Officer responsible for assessing the permanent residence application
proceeded, it became apparent that more information was required to address
discrepancies and omissions in the application. To address these concerns, the
Officer sent a letter to Mr. Naimi on February 3, 2010. In this letter, about
10 documents or follow-ups were requested, among which were Iranian and Indian
police certificates regarding the Applicant’s son. The letter also stated the
following: “Please gather all requirements and submit ALL requested
documents at the same time, in a single package. Do not submit
documents one by one” (emphasis in original). The letter also stated that the
request should be complied with within 60 days, or the application would be
assessed on its merits without the required documentation.
[4]
On
April 25, 2010, some 21 days after the passage of the 60-day deadline to submit
the documentation, the Officer did not receive any follow-up on the request for
information. The application for permanent residence was refused on its merits.
[5]
On
May 24, 2010, Mr. Naimi sent a letter to the Officer requesting that the file
be re-opened. It was noted that most of the documentation had been collected,
except for the requested police certificates. The request for the certificates
was said to have been made “immediately following” the request by the Officer,
but that these documents had not been received as of yet. The Applicant sought
to have 30 to 60-day extension to receive these certificates. Mr. Naimi also
noted that, as all the documents needed to be sent in the same package, nothing
had been sent.
[6]
The
letter seeking to re-open the file was received by the Visa Officer on June 8,
2010. On June 9, 2010, the Visa Officer replied by way of a letter stating that
the delays for submitting the documentation had lapsed and that the application
had been considered and refused on its merits. It was noted that another
application could be submitted if additional or different information was
required.
[7]
The
decision not to re-open the file was followed by a letter dated July 12, 2010.
In this letter, Mr. Naimi asked again that the file be re-opened, citing a
breach of procedural fairness and citing previous experiences in which files
were re-opened.
[8]
In
sum, the Officer decided on the merits of the application 81 days after the
letter asking for supplementary information was sent. The Applicant, through
his immigration consultant, responded close to a month after the decision was
rendered, if we follow the date of the letter. It stated that the documents
were ready, except for the Police certificates. This was close to four (4)
months after the request for information, and almost a month after the decision
was rendered. This response also asked for a further 30 to 60-day extension.
Should this request have been granted, the documents would have come to the
attention of the Officer some five (5) months after the original request, at
best.
Arguments of the parties
[9]
The
Applicant’s immigration consultant readily conceded his mistakes in his
affidavit. He claims that the delays and unheeded 60-day deadline was of his
own fault and that he had not advised his client, who should not be penalized
for his omissions. It is argued that the Officer had a duty to re-open the
case, as it was in the interest of justice to do so. Also, in the case that the
Court makes a finding that there was no duty to re-open the case, it is said
that the omission to ask an extension of time was made by the Applicant’s
immigration consultant, and that the Applicant should not suffer from counsel’s
mistake. Mr. Naimi wrongly assumed that the 60-day deadline was a “soft
deadline”. He alleges that in his experience, this delay was rarely enforced
and that this was the premise on which he based his decision. This, however,
was not brought before the Officer. Summarily, it is said that the issues in
this case are of procedural fairness.
[10]
The
Respondent argues that the decision to re-open is discretionary and that the
reviewing Court should not interfere in this decision. Also, it is said that
the Applicant was required by law to bring forward all the relevant documents,
but failed to do so. The Applicant did not make a request for an extension of
time and did not indicate that his consultant assumed the deadline would not be
enforced. The Officer’s decision not to re-open the file was reasonable and the
Applicant is bound by his counsel’s mistake. There was no duty to re-open the
case or to grant an extension of time. Also, the Respondent argues that the
request to re-open the file was not made in a timely manner.
Question to address and
applicable standard of review
[11]
The
question at issue is the following: was the exercise of the Visa Officer’s
discretion not to re-open the case reasonable? This question may be seen to be
at the heart of the Officer’s mandate and his discretion, and so the question
could be reviewed on the reasonableness standard (Canada (Citizenship and
Immigration) v Kurukkal, 2010 FCA 230). As is indicated in Kheiri v Canada
(Minister of Citizenship and Immigration), 2000 CanLII 15933, at para 8:
the “Visa Officer may re-open a Visa Hearing to extend the date of its
effectiveness if it is felt to be in the interest of justice to do in unusual
circumstances”.
[12]
However,
in the interests of judicial comity, similar questions have been framed, albeit
in other immigration proceedings, as questions of procedural fairness to be
reviewed on the correctness standard (Sharma v Canada (Citizenship and
Immigration),
2009 FC 786; Khan v Canada (Citizenship and Immigration), 2009 FC 1312; Malik
c Canada (Citoyenneté et
Immigration),
2009 CF 1283). Hence, the decision to reopen the case will be assessed on the
grounds of correctness, to which no deference is owed.
Analysis
[13]
The
Visa Officer’s decision was correct and reasonable in the circumstance in which
the Officer decided.
[14]
As
conceded by the Applicant, the Applicant’s immigration consultant omitted to
mention the 60-day deadline to submit documents. Counsel for the Applicant
submitted that the consultant was under the mistaken belief that the 60-day
deadline was a “soft” deadline, although this was not put forth in the letter
to reopen the case. In any event, the timeline shows that 21 days had lapsed
after the 60-day deadline, indicating that the Officer did indeed have some
leeway. As no response from the Applicant was received, the Visa Officer
proceeded to analyze the case on its merits, as request for supplementary
information had indicated. It should also be noted that while requesting to
reopen the file, the Applicant did not submit any documentation. Moreover, he
asked another extension for the documentation he allegedly did not have in his
possession at that time.
[15]
Firstly,
it is important to note that the Applicant is bound by his counsel’s mistake (Chen
v Canada (Citizenship and
Immigration),
2009 FC 379). Also, the Court notes that this is not a case of nonfeasance, but
one of malfeasance: the consultant did act, he simply failed to diligently
highlight the delays in which the documentation had to be gathered. Also, one
cannot state that but for his counsel’s mistake to notify of the 60-day delay,
the application would succeed. Indeed, the Applicant did not submit any
supplementary documentation, even in support of his petition to have the file
reopened. Not only was it not submitted, an extension of the deadline was
asked. In light of these facts, the Court notes the following comments from Radji
v Canada (Citizenship and
Immigration),
2007 FC 100, at para 32:
The
test for incompetent counsel is very high. It must be shown that there is a
reasonable probability that, if not for the counsel's unprofessional errors,
the result of the proceeding would be different.
[16]
In
light of these circumstance, as ample opportunity was given to the Applicant
and his consultant to remedy their omission (i.e. 21 days had lapsed after the
deadline and documentation in support of the petition to reopen could have been
submitted), the threshold for the Applicant to be absolved of his counsel’s
mistake has not been met. Thus, this ground to reverse the Visa Officer’s
decision cannot succeed.
[17]
The
case law is clear on the case to be met for the reopening of a file: Kheiri
v Canada (Minister of Citizenship and Immigration), 2000 CanLII 15933, at
para 8: the “Visa Officer may re-open a Visa Hearing to extend the date of its
effectiveness if it is felt to be in the interest of justice to do in unusual
circumstances”. In this case, it seems as though the Visa Officer did not deem
it to be in the interest of justice, nor that the case involved unusual
circumstances. It is clear that the Visa Officer was not fazed by the
Applicant’s explanations and delays in submitting the information. In this
case, the Visa Officer’s discretion was exercised. There was no breach of
procedural fairness, as the negative decision to reopen should not come as a
surprise, especially when the Applicant did not submit the other documentation
he did have in his possession. Rather, further extension of time was asked. In
light of this, it was correct for the Officer to refer the Applicant to a new
application process: he had failed in meeting section 16(1) of the IRPA’s
requirements, namely, to bring forward all relevant documentation.
[18]
Public
policy considerations and the effects of sending a matter back for
redetermination may have played a part in some cases (see for example, Sharma
v Canada (Citizenship and
Immigration),
2009 FC 786, at para 7). In this case, public policy concerns are of another
nature: the expediency and reliability of the statutory scheme of the IRPA.
Surely, procedural fairness has its limits, as seen in this case. The Visa
Officer’s duty to address deficient applications is limited, and was clearly
met in this case (see, inter alia, Lam v Canada (Citizenship and Immigration), (1998) 152 FTR 316; Malik
v Canada (Citizenship and Immigration), 2009 CF 1283; Trivedi v Canada (Citizenship and
Immigration),
2010 FC 422). As the petition to reopen the case did not even adjoin the
necessary documentation and asked for an extension of time, the decision not to
reopen the case and defer to another application was correct. The necessary
corollary of the Applicant’s efforts to invest in immigrating to Canada is one that all
documentation is brought before the Visa Officer, as section 16(1) of the IRPA
recognizes.
[19]
The
application for judicial review is denied.
[20]
The
Applicant has submitted the following question for certification: is there a
procedural fairness to reopen and reconsider a permanent resident application
that has been refused if it is in the interests of justice to reopen and
reconsider the application? The Respondent opposes the certification of this
question.
[21]
The
Court will not certify this question. Appellate guidance has been provided
recently in Canada (Citizenship and
Immigration) v Kurukkal, 2010 FCA 230. Also, the Court’s analysis of the question
at bar shows that case law has recognized the existence of an officer’s
discretion and has described its application in several cases. Also, the
determination of the correct exercise of an officer’s discretion to reopen is
one that is fact-driven and specific to every case. As such, it is not a
question that requires appellate guidance to determine the case at bar.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review is denied. No question is certified.
“Simon
Noël”
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