Date: 20081209
Docket: IMM-4701-07
Citation: 2008 FC 1362
Montréal,
Quebec, December 9, 2008
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
ALI
AKBAR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of the decision
of a visa officer at the Canadian High Commission
in London (CHC), United Kingdom, dated September 24, 2007, to refuse for
insufficient points the applicant’s request for permanent residence visa as a
member of the Federal Skilled Worker Class (FSWC).
I. Facts
[2]
The
applicant, Ali Akbar, a citizen of Pakistan and resident of Saudi Arabia, applied for
permanent residence as a member of the Federal Skilled Worker Class. In his
application, he included his spouse, Shahnila Akbar, and three dependant
children. He declared that he completed a
Bachelor of Science from the University of Karachi in 1976. His
spouse indicated that she completed a Bachelor’s Degree from Saint Joseph’s College
for Women, University of Karachi (UK).
[3]
The
applicant’s application for permanent residence was received by the CHC and
after an initial paper screen by a program assistant (PA), a designated
immigration officer (DIO) reviewed the applicant’s file and agreed with the
PA’s findings that further documentation was required to proceed. A letter was
sent to the applicant, wherein he was given 90 days to submit amongst other documents
the original academic degrees and transcripts for the applicant and spouse from
the University
of Karachi.
[4]
The
DIO reviewed the applicant’s documentation received by the CHC in response
to the request and advised the applicant in writing that she had “reasonable
grounds to believe that the degree for [his] wife [was] fraudulent”. The applicants
were asked to provide any evidence to the contrary within 30 days from the date
of this letter.
[5]
In
response to the CHC’s additional request, the applicant’s agent submitted two
letters written by himself stating that, in his opinion, the diploma was genuine,
as well as a letter by the applicant stating that he thought the degree was
genuine, a photocopy of the university documents (mark sheet and diploma) and a
letter by the applicant’s wife which stated that she was shocked that she was
suspected of fraud. No further documents from the UK were
submitted nor any objective evidence that the degree was genuine.
[6]
Not
satisfied of the response to his request and of the genuineness of the wife’s
degree, the DIO determined that a personal interview was necessary to determine
if the criteria for admission to Canada were met. The
applicants appeared at the interview and were advised that its purpose was to
review all selection criteria and discuss in particular the education of the
applicant’s wife. They were also informed that the CHC had received numerous
fraudulent documents from Pakistan, including the University of Karachi.
[7]
During
the interview, the applicant’s spouse was questioned on her academic
credentials. When asked what she studied, the spouse first indicated she
completed a science degree in “chemistry, physics, and microbiology” and then
corrected herself stating “chemistry, zoology, and microbiology”. The applicant’s
spouse was also asked specific question as to the length of her studies and the
subject matter of her alleged degree; however, based on the interview, it was
apparent, to the DIO that the applicant’s spouse could not answer basic
questions about the subject matter of her stated academic training.
Accordingly, the DIO was not satisfied that the applicant’s spouse had obtained
the stated academic credential and therefore gave no points to the applicant received no points for “Adaptability” under
paragraph
83(1)(a) of the Immigration and Refugee Protection Regulations, SOR/2002-227
(Regulations).
[8]
Before
leaving the interview, the DIO told the couple that she was not satisfied that
the degree was genuine and, therefore, she could not assess any points for it
under “Adaptability”. As a consequence, they did not meet the minimum pass
mark. This was subsequently confirmed by a refusal letter dated September 24,
2007.
[9]
On
October 30, 2007, over one month after the refusal, the CHC received an unsolicited
envelope from the UK. However, given the problems of fraudulent
documents having been received by the CHC in the past and given her personal
interview with the applicant’s spouse, the DIO was not satisfied that the applicant’s
spouse completed a degree at the UK. Accordingly, the applicant’s
submissions did not change the reasons for refusal. The applicant was advised
by letter that the refusal stood.
II. Issue
[10]
Was
the visa officer’s decision unreasonable?
III. Analysis
Standard of review
[11]
The
particular expertise of visa officers dictates a deferential approach when
reviewing their decision. The assessment of an applicant for permanent
residence under the FSWC is an exercise of discretion that should be given a
high degree of deference. To the extent that this assessment has been done in
good faith, in accordance with the principles of natural justice applicable,
and without relying on irrelevant or extraneous considerations, the decision of
the visa officer should be reviewed on the standard of unreasonableness (Kniazeva
v. Canada (Minister of Citizenship and Immigration), 2006 FC 268 at
para. 15; Dunsmuir v. New Brunswick, 2008 SCC 9).
[12]
The
DIO is authorized to make decisions relative to the issuance of visas. He has
greater expertise in this regard than the Court and that expertise attracts
deference (Singh Tiwana v. Canada (Minister of
Citizenship and Immigration), 2008 FC 100).
The reasonableness of the
impugned decision
[13]
Pursuant
to subsection 11(1) of the IRPA, a foreign national must, before entering
Canada, apply to an
officer for a visa or for any other document required by the regulations. The
visa or document may be issued if, following an examination, the officer is
satisfied that the foreign national is not inadmissible and meets the requirement
of the Act (IRPA, s.11 (1)).
[14]
Section
16(1) of IRPA provides that:
|
A
person who makes an application must answer truthfully all questions put to
them for the purpose of the examination and must produce a visa and all
relevant evidence and documents that the officer reasonably requires.
|
L’auteur
d’une demande au titre de la présente loi doit répondre véridiquement aux
questions qui lui sont posées lors du contrôle, donner les renseignements et
tous éléments de preuve pertinents et présenter les visa et documents requis.
|
[15]
The
onus is therefore on the applicant seeking permanent residence under FSWC to
provide all supporting documentation and sufficient credible evidence in
support of his application. The onus does not shift to the DIO. Albeit the DIO determined
that a personal interview was necessary here to determine if the criteria for
admission to Canada were met,
the applicant was not entitled to one if his application was ambiguous or
supporting material was not included or was unreliable. There is no general
obligation on the officer to gather or seek additional evidence or make further
inquiries. (Lam v. Canada (Minister of Citizenship and Immigration)
(1985), 152 F.T.R. 316 (T.D.); Silva v. Canada (Minister of Citizenship and
Immigration), 2007 FC 733).
[16]
In
all circumstances, the onus lies on persons, such as the applicant herein, who rely
on documentary evidence originating from Pakistan or other
countries in support of their claims, to be prepared to demonstrate the
authenticity of the documentation presented. (Uddin v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 451 (T.D.) at para. 10).
[17]
The
sole issue being challenged in the present application for judicial review is
the DIO’s assessment of adaptability with regard to the applicant’s spouse’s
level of education. Under the adaptability factor, the applicant sought points
for family member in Canada, which he obtained; he also sought points
for his spouse’s educational credentials, and those he did not obtained since
after a personal interview the DIO was still not satisfied that the spouse’s
degree from the UK was genuine. At the interview the applicant’s
spouse offered the DIO “…no other information related to her course of study
nor any answer that at least showed her that she knew something related to the
material studied during her bachelor’s degree”.
[18]
The
DIO’s concern here was not without cause. The Canadian High Commission in London had been
processing all Permanent Resident Applications for those residing in the Gulf
since the 1990s, including many with Pakistani education. They have
consequently developed an expertise on the diplomas issued within that region.
Having received in the past a significant number of fraudulent diplomas
purportedly issued by the UK, the DIO had good reasons to challenge the
applicant’s spouse’s educational credentials.
[19]
The
Court acknowledges that past history of fraudulent diplomas should only be
considered as a red flag to alert the DIO, but not an evidentiary factor. But
given the anomalies noted by the DIO in the spouse’s degree and her lack of
knowledge demonstrated at a personal interview, it was open to the DIO to
disallow the request for adaptability points under section 83(1)(a) of
the Regulations.
[20]
The
applicant and his spouse were advised of the DIO’s concerns and given the
opportunity to response both in writing and at a personal interview. There was
no breach of procedural fairness here. There was no breach of procedural
fairness also with regard with the DIO’s consideration of the unsolicited
documentation he received over one month after the application refusal. The DIO
considered the new documentation but concluded that it did not change her
decision and gave ample reasons for her “no reconsideration” decision.
[21]
The
DIO benefits over this Court of the undisputed advantage of having interviewed
the applicant and his spouse. As a consequence and in view of his expertise in
the matter in issue, the Court concludes that the DIO’s assessment of the
applicant’s spouse’s diplomas warrants deference.
[22]
Recognizing
that the applicable standard in this case is that of reasonableness, and
despite the fact that this Court might have assessed the applicant’s file
differently in view of the fact that the applicants were merely a point shy of
obtaining a passing mark, still the Court does not think, based on the
particular facts in issue, that its intervention is justified. It is not for
this Court to decide what the DIO has the responsibility to decide.
[23]
This
Court will
only vacate a decision if it is perverse, capricious, not based on the evidence
or based on an important mischaracterization of material facts, or if there was
a breach of procedural fairness. This is not the case here even if the decision
does not satisfy the applicant.
[24]
The
Court is satisfied that the decision is transparent and intelligible and
justified according to the facts and the law. Seeing as a consequence that the decision
is reasonable, the application for judicial review will be dismissed.
[25]
The
Court
agrees with the parties that there is no serious question of general importance to certify.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application is dismissed.
“Maurice E. Lagacé”
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