Date: 20070207
Docket: IMM-1062-06
Citation: 2007 FC 142
Ottawa, Ontario, February 7, 2007
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
FRANCISCO JAVIER RAMOS-FRANCES
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1] Mr. Francisco
Javier Ramos-Frances, a citizen of Spain, applied for permanent residence in Canada
as a skilled worker in the occupation of “Flight Crew Member” (National
Occupational Classification (NOC) 2271). At the time of his application, Mr.
Ramos-Frances was working in Canada as authorized by a work permit. Therefore,
his application for permanent residence was filed at the Canadian Consulate in Buffalo,
New York.
[2] Subsection
75(2) of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (Regulations) provides that:
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75.(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. [underlining added]
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75.(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. [Le souligné est de moi.]
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[3] The
officer who reviewed Mr. Ramos-Frances’ application had concerns regarding his
work experience. Specifically, Mr. Ramos-Frances’ salary did not appear to be
commensurate with his stated occupation as a flight crew member. Mr.
Ramos-Frances’ application was not assisted by the fact that the letter sent by
his employer for the purpose of verifying his work experience was silent as to
whether Mr. Ramos-Frances had performed the actions or duties contained in the lead
statement to NOC 2271 or listed in the description of the main duties of the
occupation. Therefore, Mr. Ramos-Frances was required to attend a
personal interview at the Canadian Consulate in Detroit, Michigan.
[4] Mr.
Ramos-Frances responded to the correspondence notifying him of his scheduled
interview by advising that he no longer had legal status in the United States
so he would be unable to attend an interview in Detroit. He stated that he was
now living in Chile and requested his file be transferred to the Canadian
Embassy in Santiago, Chile, so he could attend an interview there. This
request was refused. When Mr. Ramos-Frances did not attend the scheduled
interview in Detroit, his application was assessed on the basis of the
information contained within his file. The application was rejected because
the officer was not satisfied Mr. Ramos-Frances had met the requirements of
paragraphs (a), (b) and (c) of subsection 75(2) of the
Regulations.
[5] On
this application for judicial review of that decision, Mr. Ramos-Frances says
that he was denied procedural fairness because his request for the transfer of
his file was unfairly and unreasonably refused. Also, Mr. Ramos-Frances argues
when the officer learned that he could not attend an interview in the United
States, the officer unfairly continued to require that Mr. Ramos-Frances
attend the interview.
[6] For
the reasons that follow, I have concluded that the officer did not breach the
requirements of procedural fairness.
[7] Before
turning to address the substantive issue raised by Mr. Ramos-Frances, it is
necessary to consider the standard of review to be applied to the asserted
errors. It is, I believe, well-settled law that no deference is owed to
tribunals on questions of procedural fairness. It is for a reviewing court to
determine the content of the duty of fairness.
[8] There
is an abundance of jurisprudence from this Court with respect to what the duty
of fairness requires of officers when considering applications for permanent residence.
Much of the jurisprudence deals with the issue of when an officer is required
to inform an applicant of concerns the officer has with respect to the
application so as to afford the applicant an opportunity to address the
officer’s concerns. As a general rule, the jurisprudence is to the effect that
when the officer’s concern arises directly from the requirements of the
legislation or the Regulations, an officer is not under a duty to provide an
opportunity for the applicant to address those concerns. See, for example, Hassani
v. Canada (Minister of Citizenship and Immigration), 2006 FC 1283 and the
authorities reviewed therein. Mr. Justice Rothstein, then a judge of this
Court, expressed the situation as follows in Lam v. Canada
(Minister of Citizenship and Immigration), [1998] F.C.J. No. 1239 at
paragraph 4:
4. A visa officer may
inquire further if he or she considers a further enquiry is warranted.
Obviously, a visa officer cannot be wil[l]fully blind in assessing an
application and must act in good faith. However, there is no general obligation
on a visa officer to make further inquiries when an application is ambiguous.
The onus is on an applicant to file a clear application together with such
supporting documentation as he or she considers advisable. The onus does not
shift to the visa officer and there is no entitlement to a personal interview
if the application is ambiguous or supporting material is not included.
[9] With
this in mind, I turn to the officer’s alleged breach of fairness by refusing
Mr. Ramos-Frances’ request that his file be transferred to the Canadian
Embassy in Chile. The Computer Assisted Immigration Processing System notes
record the following consideration of the request for the file transfer:
applicant writes that he is now
in Chile. no reason provided. no evidence if he lawfully entered. requests
transfer of file. I have reviewed the file and do not feel that it is
warranted. JOC to advise request denied.
[10] The
officer was concerned about Mr. Ramos-Frances’ legal status in Chile. Mr.
Ramos-Frances argues that fairness required that he be given an opportunity to
address that concern so that he would know the case to be met.
[11] Officers
are instructed in section 5.17 of Chapter 1 of the Overseas Processing Manual
that:
Visa offices are not required to
transfer applications for permanent or temporary entry to Canada upon the
request of an applicant or their designated representative.
Visa offices should transfer
files only if that transfer would enhance program integrity. Conversely, visa
offices should refuse to transfer files if such a transfer diminishes program
integrity. Officers should consider consulting potential receiving visa
offices to seek assistance in finalizing cases before transferring a file.
[…]
As part of program integrity
considerations, officers should also be mindful that the intent of R11 is to
ensure that, as much as possible, visa applications are reviewed by the offices
with the local knowledge and expertise necessary to conduct an effective case
review.
[12] Subsection
11(1) of the Regulations, referred to in the Manual, provides:
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11.(1) An application for a permanent
resident visa — other than an application for a permanent resident visa made
under Part 8 — must be made to the immigration office that serves
(a) the country where the applicant is residing, if the
applicant has been lawfully admitted to that country for a period of at least
one year; or
(b) the applicant's country of nationality or, if the
applicant is stateless, their country of habitual residence other than a
country in which they are residing without having been lawfully admitted.
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11.(1) L’étranger
fait sa demande de visa de résident permanent — autre que celle faite au
titre de la partie 8 — au bureau d’immigration qui dessert :
a) soit le pays dans lequel il réside, s’il y a été
légalement admis pour une période d’au moins un an;
b) soit le
pays dont il a la nationalité ou, s’il est apatride, le pays dans lequel il a
sa résidence habituelle — autre que celui où il n’a pas été légalement admis.
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[13] Mr.
Ramos-Frances’ application was not made under Part 8 of the Regulations
therefore the requirements of section 11 of the Regulations apply to his
application. Chile is not Mr. Ramos-Frances’ country of nationality and
he provided no information in his request for file transfer with respect to how
long he had been in Chile, or what his legal status in Chile was.
[14] In
my view, the officer’s concerns were relevant, bona fide and arose
directly out of subsection 11(1) of the Regulations. Given that, the fact that
there is no absolute entitlement to an interview, and the fact that the onus is
on an applicant for permanent residence to ensure that his or her file is
complete, I find that the officer did not breach the duty of fairness, either
by failing to advise about her concerns under subsection 11(1) of the
Regulations or by failing to transfer the file.
[15] With
respect to the officer’s continued insistence that Mr. Ramos-Frances attend an
interview, Mr. Ramos-Frances argues that knowing he could not attend an
interview, fairness required the officer to consider other means of obtaining
information to satisfy her concerns. It is suggested that she could have
called Mr. Ramos-Frances’ former Canadian employer. In my view, fairness did
not require the officer to make inquiries. I adopt the comments of my
colleague Mr. Justice Hugessen in Ahmad v. Canada
(Minister of Citizenship and Immigration), [1998] F.C.J. No. 1166 at
paragraphs 2 and 3, where he wrote:
2. First, it is alleged
that the Visa Officer erred in awarding the applicant no points whatever for
the category of experience in the applicant's intended occupation in Canada.
The reason that the Visa Officer decided in that way was that he gave no credibility
whatever to the only evidence which the applicant produced to support his
assertion that he had experience in the proposed occupation, namely, an undated
letter from the alleged former employer of the applicant in Pakistan.
That letter was not on printed letterhead, and on the applicant's own evidence,
had only been received by him a few days before his interview with the Visa
Officer rather than, as one might normally expect, upon his having left the
alleged employment. The Visa Officer, as I have said, assigned no credibility
whatever to that letter.
3. Counsel argues that
the Visa Officer had a duty to inquire further and that he should have picked
up the telephone and called the signer of that letter, whose name was
typewritten at the bottom, at the telephone number which was shown at the top
of the letter. That, according to counsel, is part of the duty of fairness. I
disagree. There is no duty on the part of the Visa Officer to make that sort of
inquiry. The assessment of the credibility of all the evidence that is put
before a trier of fact, whether that evidence be testimonial or documentary, is
entirely a matter for the trier's appreciation and there is no duty on the part
of the trier of fact to go further and make his or her own inquiries. Indeed,
frequently there is a breach of the duty of fairness when the trier of fact
takes it upon him or herself to make such inquiries. That is the only part that
is said to have been wrong with the Visa Officer's assessment of the
experienced factored. And, as I say, I can find no error in it. [underlining
added]
[16] To
the extent it is suggested that the officer could have asked for further
written information such as pay stubs, a copy of his work permit or a further
letter from his employer, I am not persuaded that the duty of fairness required
that the officer advise Mr. Ramos-Frances of the inadequacies of his written
materials so that he could, in effect, buttress his application.
[17] For
these reasons, the application for judicial review will be dismissed. Counsel
posed no question for certification and I agree that no question arises on this
record.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is
dismissed.
“Eleanor R. Dawson”
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