Docket: IMM-1529-11
Citation: 2011 FC 1402
Ottawa, Ontario, December 2, 2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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LUIS MONTEVERDE
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant, Luis Monteverde, is a citizen of Venezuela. He seeks judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 26 (the Act) of the decision rendered by an immigration officer dated January 21, 2011, denying his
application for permanent resident status as a Federal Skilled Worker.
[2]
For
the reasons that follow the application is granted.
BACKGROUND
[3]
On
July 17, 2007, the applicant submitted an application for permanent residence
under the Federal Skilled Worker category at the Canadian Embassy in Caracas, Venezuela. Mr. Monteverde is a
project manager with a professional certification and a Masters Degree in the
field. He is also a qualified System Engineer.
[4]
On
October 30, 2008, the applicant received a letter from the Embassy requesting
updated documentation to be sent by March 2, 2009 confirming his work
experience. The documents requested included:
a.
Photocopy
of Job reference letters/confirmation of employment letters;
b.
Pay slips
issued from your present employer;
c.
Detailed
description of your job responsibilities (past and present).
[5]
Mr.
Monteverde submitted the required documentation to the Embassy on February 26,
2009.
[6]
On
September 16, 2010, the applicant was advised that his file was
transferred from the Embassy to the Case Processing Pilot in Ottawa (the CPP-O)
for further processing. He was requested to provide updated documentation
including the following:
4. Work experience documents
Provide employment letters, contracts,
pay-slips and job descriptions endorsed by your employer’s personnel department
covering the period from 10 years prior to your application date until today.
Please make sure that the employment letters have details of your duties and
clearly show the start and end dates (if relevant) of your employment. CPP-O is
under no obligation to further request detailed employment letters, and your
work experience review will be based solely on the documents initially
provided.
[7]
The
applicant received a letter dated December 3, 2010, providing him with further
information with respect to the processing of his application. He forwarded his
documentation to CPP-O on December 2010.
[8]
By letter dated January
21, 2011, Mr. Monteverde was advised that he did not meet the requirements for
immigration to Canada. In an email dated
February 4, 2011, he requested a reconsideration of his application; this
request was denied on February 9, 2011.
DECISION UNDER REVIEW
[9]
In
the decision letter dated January 21, 2011, the officer concluded that the
applicant failed to meet the requirements for permanent residence under the
Federal Skilled Worker class, as set out under subsection 75(2) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the Regulations). The
officer indicated that the applicant failed to provide detailed employment
confirmation letters. As such, the officer was unable to determine if the
applicant performed work in any of the occupations on the Canadian National
Occupational Classification (NOC) list.
ISSUES
[10]
This
judicial review raises the following issues:
- Did the
Officer breach a duty of fairness by failing to provide the applicant with
an opportunity to correct the deficiencies in his documentation?
- Did the
Officer breach principles of procedural fairness by failing to provide
adequate reasons in support of his conclusion?
RELEVANT LEGISLATION
[11]
Section
75 of the Regulations reads as follows:
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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.
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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.
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ANALYSIS
[12]
As
the issues in question relate to procedural fairness a standard of review
analysis is not required. The decision maker is owed no deference, as the
officer has either complied with the content of the duty of fairness
appropriate for the particular circumstances, or has breached this duty (Grewal
v Canada (Minister of Citizenship and Immigration), 2011 FC 167; Dash v
Canada (Minister of Citizenship and Immigration), 2010 FC 1255 at para 13; Canada
(Attorney General) v Sketchley, 2005 FCA 404 at para 53).
[13]
The
content of the duty of fairness owed to applicants for permanent residence
status as members of the Federal Skilled Worker class is limited: Trivedi v Canada (Minister of
Citizenship and Immigration), 2010 FC 422. Applicants bear the onus of providing
adequate and sufficient information in support of the application, there is no
requirement that visa officers engage in a form of dialogue as to the
completeness or adequacy of materials filed, or for visa officers to provide
the applicant with a “running score” in respect of his or her application: Pan
v Canada (Minister of Citizenship and Immigration), 2010 FC 838 at para 27;
and Kaur v Canada (Minister of Citizenship and Immigration), 2010 FC 442.
[14]
In
some circumstances, however, procedural fairness will require that an applicant
be given the opportunity to respond to an officer’s concerns. See for example Li
v Canada (Minister of
Citizenship and Immigration), 2008 FC 1284 at para 35; and Grewal,
above at para 15. The respondent concedes this but argues that those
circumstances should be limited to questions relating to the credibility,
accuracy or genuine nature of the information submitted by the applicant: Hassani
v Canada (Minister of Citizenship and Immigration), 2006 FC 1283 at para
24; and Roberts v Canada (Minister of
Citizenship and Immigration), 2009 FC 518 at para 20.
[15]
Here,
the respondent argues that the applicant was provided clear and unambiguous
instructions to provide employment letters that detailed his job duties. I
don’t agree. From my reading of the correspondence on the record, it appears
that the applicant was held to different requirements by the Embassy and by the
CPP-O to confirm his work experience and those requirements were confusing,
unclear and conflicting.
[16]
I
note that the document requirements imposed by the CPP-O did not arise directly
from the Act or Regulations but from a change of procedure or policy. The
failure to take that into consideration may in itself constitute a breach of
procedural fairness. See Noor v Canada (Minister of
Citizenship and Immigration), 2011 FC 308.
[17]
The
applicant was first requested by the Embassy to provide a “photocopy of job
reference letters/confirmation of employment letters”. The applicant was then
requested by the CPP-O to provide “employment letters, contracts, pay-slips and
job descriptions endorsed by your employer’s personnel department covering the
period from 10 years prior to your application date until today.”
[18]
The
applicant submitted employment letters with certified translations and a
detailed description of his job responsibilities as required in the Document
Checklist provided by the Caracas Embassy. The Checklist did not require the
detailed description of his job responsibilities to be confirmed by the
employer or to be included in the employment reference letters, as was later
set out in the CPP-O correspondence. In that correspondence, however, the
applicant was also advised that “[i]f you have already submitted the
documentation referred to in the letter sent by our visa office in Caracas, there is no
need to resend them”.
[19]
In
2009 the applicant, following the Embassy Checklist, submitted a complete
application with independent documentation supporting his assertions. He included
letters from his past employers and listed his responsibilities as he had been
asked to do. On the face of that documentation the applicant did not fall short
of the minimum requirements for admission to Canada as a
permanent resident under the Skilled Worker class.
[20]
When
he was asked to provide updated information in 2010 the applicant forwarded his
documentation to CPP-O without amending the employment letters, as he was under
the impression, reasonably held, that he was to follow the requirements
provided earlier by the Embassy.
[21]
This
case is distinguishable from Tineo Luongo v Canada (Minister of
Citizenship and Immigration), 2011 FC 618 and Malik v Canada (Minister
of Citizenship and Immigration), 2009 FC 1283 cited by the
respondent. In Malik, the applicant had received prior specific written
notice that the type of documents he relied upon would not be considered
sufficient proof that he had relatives in Canada. He was
also notified in writing that if documentation were missing the immigration
authorities would not request additional documentation to support his
application.
[22]
In Tineo Luongo, the
applicant was not obliged to observe two different standards and the evidence
was that she had received clear notice of the documents required. The record,
including the officer’s Computer Assisted Processing System (“CAIPS”) notes,
clearly disclosed that the decision maker concluded that the low probative
value of the evidence provided was insufficient to justify further inquiry.
There was no “objective evidence that was clearly relevant” to be considered,
unlike in the present matter.
[23]
I note in passing that the concerns about administrative efficiency,
finality and fairness to all visa applicants in the context of a burdened
system attributed in Tineo Luongo at paragraph 18 to Justice Mainville
in Malik appear in his recital of the respondent’s arguments and not in
his own analysis.
[24]
Justice
Mainville recognized, at paragraph 33 in Malik, that treating policy as
immutable without considering other factors which may apply to the particular
circumstances of a given case may result in a finding that the decision maker
had fettered the discretion authorized by law. The same point has been made
recently by the Federal Court of Appeal in a different context in Stemijon
Investments Ltd. v Canada (Attorney General), 2011 FCA 299 at
paragraphs 20-25 and 60.
[25]
Here,
it appears that the officer looked no further than the employment letters to
determine whether the applicant had met the requirements and failed to consider
the application as a whole. This is not a case, as in Tineo Luongo, where the officer
considered that the documentation submitted as a whole was insufficient. He
applied the work experience requirements set out in the September 16, 2010
correspondence as an immutable policy that must be observed rather than as an aide
to administrative decision making. As stated in Stemijon Investments,
above at paragraph 60:
…An
administrative policy is not law. It cannot cut down the discretion that the
law gives to a decision-maker. It cannot amend the legislator’s law. A policy can
aid or guide the exercise of discretion under a law, but it cannot dictate in a
binding way how that discretion is to be exercised.
[26]
The
applicant also submits that the officer’s reasons for the decision are
inadequate. As the Federal Court of Appeal has stated, adequate reasons are
those that serve the functions for which the duty to provide them was imposed: VIA
Rail Canada Inc v National Transportation Agency, [2001] 2 FC 25 (CA) at
para 21.
The duty of fairness requires visa officers to provide reasons that are
“sufficiently clear, precise and intelligible so that a claimant may know why
his or her claim has failed”: Mendoza v Canada (Minister of
Citizenship and Immigration), 2004 FC 687 at para 4; and Grapendaal
v Canada (Minister of
Citizenship and Immigration), 2010 FC 1221 at para 29. That standard
was not met in this case.
[27]
It
is not clear from the decision letter or the CAIPS notes why the application failed.
The officer merely states that the employment letters submitted by the
applicant did not provide sufficiently detailed duty descriptions. Neither the
decision nor the CAIPS notes refer to the document provided by the applicant
detailing his employment responsibilities and the other objective evidence submitted
in support. It appears that the officer simply disregarded the remainder of the
evidence when he found that the employer’s letters did not contain the expected
information.
[28]
In
the particular circumstances of this case, the officer owed Mr. Monteverde a duty
to consider all of the information in the application including the description
of his employment duties and supporting documentation that was provided in
accordance with the Embassy Checklist. If there was any doubt as to the
accuracy or genuineness of that information, which is not apparent on the face
of the record, fairness required that the officer provide the applicant an
opportunity to correct any deficiencies.
[29]
The
application is granted. This matter will be remitted for reconsideration. In
accordance with the requirements of procedural fairness, the applicant shall be
provided with an opportunity to complete his application and address any
deficiencies in the documentation submitted thus far.
[30]
No
serious questions of general importance were proposed by the parties and none
will be certified.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application is granted and the matter is
remitted for consideration by a different decision maker in accordance with
these reasons. No questions are certified.
“Richard
G. Mosley”
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