Date: 20071016
Docket: IMM-4395-06
Citation: 2007 FC 1056
Ottawa, Ontario, October
16, 2007
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
OLAIYA OLUBUNMI OLORUNSHOLA
OLORUNSHULA TOLUTOPE OPEYEMI
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
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 (the Act), for
judicial review of a decision of visa officer (the “officer”) in which the
applicants’ application for permanent residence in Canada was refused.
[2] The principal applicant, a 37 year old Nigerian man, submitted an
application for permanent residence as a skilled worker to the Buffalo Regional
Office on December 17, 2004.
[3] At the time of application, the applicant was living in the United States as a student, while his wife
and child remained in Nigeria.
[4] In his application, under work experience, the applicant listed his
previous occupations as Graduate Researcher and Finance Manager.
[5] In a decision dated June 19, 2006, the visa officer determined that
the principal applicant did not meet the minimum requirements as a skilled
worker for immigration to Canada.
[6] The officer assessed the principal applicant based on the
occupations corresponding to NOC 0013 Senior Manager, and NOC 4162 Economic
Policy Researcher and Analyst.
[7] The principal applicant was given 0 points in the Experience
category and thus received a total of 55 points for each occupation
classification.
[8] As the minimum requirement for permanent residency is 67 points, the
applicant was found ineligible for permanent resident status.
[9] On the issue of work experience, the officer indicated that the
applicant did not satisfy her that he had met the requirements established by
s.75(2) of the Immigration and Refugee Protection Regulations of the Act (the
Regulations). According to the officer, the applicant had not demonstrated
that he had at least one year of continuous full-time employment or the
equivalent in continuous part-time employment experience in the NOC categories
evaluated.
[10]
The officer concludes that based on the
information on file and obtained at the interview she did not find the subject
credible or his documents reliable.
[11]
Furthermore, the officer was not satisfied that
the applicant met the resettlement fund requirement under s.76(1)(b). The
CAIPs notes reveal that at the interview the applicant submitted two bank
statements one dated 19/06/06 with $18, 542 and another dated 15/6/06 with
$4273. The applicant did not satisfy the officer as to the source of the
funds. He originally stated they came from savings and earnings and then that
they were from his aunt who sponsored his US studies. The officer did not find this explanation credible.
[12]
The relevant provisions are contained in Annex
A.
STANDARD OF
REVIEW
[13]
Given the recent reminder of the Supreme Court
of Canada in ATCO Gas & Pipeline Ltd. V. Alberta (Energy and Utility
Board), [2006] 1 S.C.R. 140 at para. 23 that the pragmatic and functional
analysis must not be skipped, I will review the four factors enunciated in Pushpanathan
v. Canada, [1998] 1 S.C.R. 982, [1998] S.C.J. No. 46 (QL), at paras. 29-37,
the presence or absence of privative clauses, the expertise of the decision
maker, the purpose of the Act as a whole and the provision in particular, and
the nature of the question.
1.
Privative clause.
This focuses on the statutory mechanism of review. A full privative clause
is defined as “one that declares that decisions of the tribunal are final and
conclusive from which no appeal lies and all forms of judicial review are
excluded.” (See Pasiechnyk v. Saskatchewan (Workers’ Compensation Board),
[1997] 2 S.C.R. 890, [1997] S.C.J. No. 74 (QL), at para. 17; Pushpanathan,
supra, at para. 30). Section 72(1) of the Act provides that judicial
review may be commenced with respect to any matter under the Act, by making an
application for leave to the Federal Court. Visa officer decisions relating to
economic class immigrants are not subject to appeal to the Immigration Appeal
Division and judicial review is contingent upon the granting of leave from the
Federal Court. Thus, it is a factor which militates in favour of some
deference.
2.
Relative expertise. This factor recognizes that
legislatures will sometimes remit an issue to a decision making body that has a
particular topical expertise. The analysis under this factor has three
aspects: the Court must characterize the expertise of the decision-maker in
question; it must consider its own expertise relative to that of the
decision-maker and it must identify the nature of the specific issue before the
administrative decision-maker relative to this expertise. (Dr. Q v.
College of Physicians and Surgeons [2003] 1 S.C.R. 226, at para. 28).
Given that visa officers habitually evaluate visa applications such as the one
at issue, it can be said that they have gained a measure of relative
institutional expertise, a factor which suggests that their decisions should be
shown more deference.
3.
Purpose of the statute. The objectives of the Act enumerated in s. 3(1) include
“permit[ting] Canada to pursue the maximum social, cultural and economic
benefits of immigration” and “promoting the successful integration of permanent
residents into Canada.” The
particular provision, s. 12(2), states that a “[…] [f]oreign
national may be selected as a member of the economic class on the basis of
their ability to become economically established in Canada.” While the visa officer determination in question does not involve
a polycentric balancing exercise, “reviewing Courts should also consider the
breadth, specialization, and technical or scientific nature of the issues that
the legislation asks the administrative tribunal to consider” and how that
deviates from the normal role of courts in determining the level of deference
warranted by this factor (Dr. Q, supra, at para. 31). Therefore,
given the specialized administrative role that visa officers are mandated to
perform involving the factual determination of whether an applicant can
economically integrate into Canadian society, this factor suggests that more
deference is owed to visa officers.
4.
The nature of the question. The nature of the present question
before a visa officer is largely fact-based. While visa officers are authorized
by the Act and Regulations to conduct an evaluation of immigration
applications, the determination of potential economic success is mainly a
factual exercise. The officer must consider whether the applicant can become
established economically in Canada which indicates a deferential approach should be taken by this
Court.
[14]
On the whole,
having considered each of the four factors and more particularly considering
that the nature of the visa officer’s determination is fact-based, I am of the
view that the applicable standard is that of patent unreasonableness.
[15]
I acknowledge that there is a divergence in the
case law with respect to the standard of review applicable to the decision of a
visa officer.
[16]
In Hassani v. Canada (Minister of Citizenship and Immigration), [2006] FC 1283, [2006] F.C.J. No. 1597 (QL), at paras. 10-12,
Mosley J., reviewing the jurisprudence of the Federal Court, indicated that
when assessing a visa officer’s general decision one line of cases
suggests that the appropriate standard of review is patent unreasonableness. See
Hua v. Canada
(Minister of Citizenship and Immigration), [2004]
FC 1647, [2004] F.C.J. No. 2106 (QL); Bellido v. Canad (Minister of
Citizenship and Immigration), [2005] FC 452, [2005] F.C.J. No. 572 (QL), at
para. 5; Kniazeva v. Canada (Minister of Citizenship and Immigration), [2006] FC 268, [2006] F.C.J. No. 336 (QL), at para. 15.
[17]
Mosley J. went on to state that another line of
jurisprudence suggests that when it comes to evaluating a visa officer’s
application of the NOC provisions, the standard is that of reasonableness
simpliciter. See Yaghoubian v. Canada (Minister of Citizenship and Immigration), [2003] FCT 615, [2003] F.C.J. No. 806 (QL), at paras. 24-29; Yin
v. Canada
(Minister of Citizenship and Immigration), [2001]
FCT 661, [2001] F.C.J. No. 895 (QL), at para. 20; Lu v. Canada (Minister of Citizenship and
Immigration), [1999] F.C.J. No. 1907 (QL), at para.
22.
[18]
Recently, in the Supreme Court case of Council
of Canadians with Disabilities v. Via Rail Canada Inc., [2007] SCC 15,
[2007] S.C.J. No. 15 (QL), Abella J. addressed a similar situation where more
than one standard of review had been alleged to apply to different aspects of a
single decision. Instructively, at para. 100 she stated that “[t]he agency made
a decision with many component parts, each of which fell squarely and
inextricably within its expertise and mandate. It was therefore entitled to a
single deferential standard of review.”
[19]
Similarly I conclude that separating a visa
officer’s decision into its constituent parts which may be more or less
fact-based could result in multiple different standards of review applied to
what is in essence one decision. Dividing the decision in this manner clouds
and overcomplicates the ultimate analysis of whether or not the officer’s
decision was patently reasonable.
[20]
In any case, as further indicated by Abella J.
in Via Rail, supra, at para. 103, “whatever label is used to
describe the requisite standard of reasonableness, a reviewing court should
defer where “the reasons, taken as a whole, are tenable as support for the
decision” (Ryan, at para. 56) or “where…the decision of that tribunal
[could] be sustained on a reasonable interpretation of the facts or of the law”
(National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R.
1324, at pp. 1369-70, per Gonthier J.).” Thus, whether labelled as
reasonableness simpliciter or patently unreasonable, the central inquiry
remains the same.
ANALYSIS
[21]
In the present case, I am of the view that the
visa officer erred in applying the NOC categories and that the applicant was
denied procedural fairness.
a) Application
of the NOC
[22]
First, the visa officer erred by failing to
assess the applicant under his chosen occupations.
[23]
It is well established that where an applicant
puts forward an occupation under which he wishes to be assessed, a visa officer
is under an obligation to assess that particular occupation (see Hajariwala
v. Minister of Employment and Immigration and Secretary of State of External
Affairs, [1988] F.C.J. No. 1021 (QL), at para. 6; Yu v. Canada (Minister
of Employment and Immigration), [1988] F.C.J. No. 1018 (QL)).
[24]
The applicant specifically requested to be
assessed under NOC 4162 and therefore the visa officer was under an obligation
to evaluate that particular category. However, the officer indicated in the
CAIPs notes only that the applicant “[s]tated he worked as 4162 […] but clearly
he has not.”
[25]
It is obvious that the visa officer had concerns
regarding the applicant’s work experience; however, I am unable to find any
line of inquiry in the officer’s written reasons and associated CAIPs notes
indicating that her concerns regarding work experience were put to the
applicant, or any indication that NOC 4162 was actually assessed in a
meaningful way.
[26]
In light of the fact that the applicant
specifically requested to be assessed under NOC 4162 and submitted supporting
documentation, the absence of analysis and lack of reasonable inquiries into the
applicant’s experience in this category amounts to a reviewable error.
[27]
Furthermore, in the present case, there was some
confusion with respect to the correct NOC number to be assessed. On his
application form, the applicant listed his occupation as “Finance Manager” but
indicated 0013 as the associated NOC. In fact, NOC 0013 corresponds to the
occupation of “Senior Manager” under which the applicant was subsequently
evaluated. However, a review of the main occupation duties listed in the
application reveals clearly that the applicant wished to be assessed as a
Financial Manager.
[28]
Given the duty incumbent upon visa officers to
assess applicants under their chosen occupation category, the failure of the
visa officer to assess the applicant as a Financial Manager also constitutes a
reviewable error.
b)
Procedural Fairness
[29]
Second, the visa officer erred by failing to
afford the applicant an opportunity to address her concerns regarding the
veracity of his documentary evidence.
[30]
Visa officers are required to inform applicants
of their concerns in order for them to have the opportunity to disabuse the
officer of such concerns, even where they arise from evidence tendered by the
applicant (Rukmangathan v. Canada (Minister of Citizenship and Immigration),
[2004] FC 284, [2004] F.C.J. No. 317 (QL), at para. 22).
[31]
However, it is clear that the applicants have
the burden of proof. In Madan v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1198, (1999) 172 F.T.R. 262 (QL), at para. 6,
Evans J. recognized that it falls to the applicant to put before the visa
officer all material necessary for a favourable decision, and therefore an
officer is under no obligation to seek clarification or additional information
when the material submitted is insufficient to meet the relevant selection
criteria.
See also Hussain
v. Canada
(Minister of Citizenship and Immigration), [2002]
FCT 468, [2002] F.C.J. No. 596 (QL).
[32]
In Yu v. Canada (Minister of Employment and
Immigration), [1990] F.C.J. No. 704 (QL), MacKay J. held that visa officers
are not required to stress all concerns which arise directly from the act and
regulations, given that these instruments are available to all applicants who
bear the burden of establishing that they meet the pertinent selection
criteria.
[33]
However, this Court has also indicated that
where concerns arise which are not directly related to the act and regulations,
visa offers may be required to make these concerns known to the applicant. As
stated by Mosley J., this is “often the case where the credibility, accuracy or
genuine nature of information submitted by the applicant in support of their
application” is at issue (Hassani, supra, at para. 24).
[34]
Accordingly, where concerns arise with respect
to the veracity of documentary evidence, visa officers should make further
inquiries (see Huyen v. Canada (Minister of Citizenship and Immigration),
[2001] FCT 904, [2001] F.C.J. No. 1267 (QL), at paras. 2 and 5; Kojouri v.
Canada (Minister of Citizenship and Immigration), [2003] FC 1389, [2003]
F.C.J. No. 1779 (QL), at paras. 18 and 19; Salman v. Canada (Minister of
Citizenship and Immigration), [2007] FC 877, [2007] F.C.J. No. 1142 (QL),
at paras. 12 to 18).
[35]
In the present case the visa officer did not
find the applicant’s documentary evidence to be reliable.
[36]
The applicant submitted numerous documents
including transcripts and degrees from Nigerian Universities as well as a transcript and Master of Science Degree
Certificate from Central Michigan University. Furthermore, he submitted a
letter from his previous Nigerian Employer, as well as letters of Employment
from the Department of Economics of Central Michigan University.
[37]
The written reasons and CAIPs notes do not
disclose any instance where the visa officer’s concerns regarding the
reliability of the applicant’s documents were put to the applicant. The failure
to make further inquiries represents a breach of procedural fairness.
[38]
I also note that the officer did not provide any
reason why those documents were not reliable. It was patently unreasonable to summarily
dismiss the documents without a valid reason.
[39]
For these reasons, the application for
judicial review of the visa officer’s decision will be granted.
JUDGMENT
THIS COURT ORDERS that the application for judicial review will be granted and
referred for re-determination by a different visa officer.
“Danièle
Tremblay-Lamer”
Email this Content