Date: 20080320
Docket: IMM-1398-07
Citation: 2008 FC 366
Ottawa, Ontario, March 20,
2008
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
OLUGBOYEGA
GBOLAGUNTE OLADIPO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
The
Applicant is obligated to submit documents that show he meets the criteria
of a skilled worker; he did not do so, even after he had been made
aware of the Officer’s concerns and was afforded an opportunity to provide
further documentation to the Officer.
[2]
The
Computer Assisted Immigration Processing System (CAIPS) notes provide
additional, more detailed information in respect of the interview and the
reasons for refusal. To reiterate the reason stated in the decision letter, for
the denial of the application, is clearly sufficient for the Applicant to know
exactly why the application was dismissed. The Applicant did not prove that he
met the requirements in the skilled worker category due to his failure to
provide reliable documentation in support of his employment history in the
United States (U.S.) and Nigeria, as he was obliged to
do.
II. Judicial Procedure
[3]
This
is an application, pursuant to section 72 of the Immigration and Refugee
Protection Act, S.C.
2001, c.27 (IRPA), for judicial review of a decision of a Visa Officer of the Canadian
Consulate, refusing the Applicant’s application for permanent residence to
Canada, made pursuant to subsection 75(2) of the Immigration and Refugee
Protection Regulations, S.O.R./2002-227 (Regulations).
III. Background
[4]
The
Applicant, Mr. Olugboyega Gbolagunte Oladipo, holds a bachelor degree in
electronics and solid state physics from Nigeria, and worked as a network
support engineer for three years before he arrived in the United States (U.S.),
in August 2001.
[5]
Mr.
Oladipo was destined to attend Capitol College, in Laurel, Maryland, in order to complete his Master’s
Degree in Information and Telecommunication Systems’ Management. He obtained a
Certificate of Eligibility for a Non Immigrant (F-1) Student Status Visa – For
Academic and Language Students (also known as form A-20AB).
[6]
Mr.
Oladipo’s authorization to study in the U.S. also provided him the opportunity to partake in
optional practical training (OPT) employment, from March 2, 2004 to February
28, 2005, in computer information systems and management related to his
Master’s degree.
[7]
Mr.
Oladipo obtained his Master’s degree in January 2004 and was given the
opportunity to complete his OPT with Verizon Wireless, in Houston, Texas, as a Data Support
Coordinator, where he is still employed today.
[8]
On
October 8, 2004, Mr. Oladipo submitted an application for an immigrant visa as
a Federal Skilled Worker to the Consulate General of Canada, in Buffalo, U.S. (CAIPS notes, Tribunal
Record, p. 3.)
[9]
On
December 21, 2005, Mr. Oladipo, subsequent to having submitted his application
for a Visa, was married and his wife was added to his application, in March
2006. The Applicant’s wife has completed an M.B.A. degree and is currently working
with JP Morgan Chase as an investment banker. (Applicant’s Record, Applicant’s
Memorandum of Argument, para. 2.)
[10]
On
March 2, 2007, Mr. Oladipo attended an interview with the Visa Officer. The
premise of the interview was to examine his employment experience; however, it
did not preclude the Officer from reviewing other aspects of Mr. Oladipo’s
application for permanent residence.
[11]
Mr.
Oladipo’s credibility was questioned and he was advised that he had thirty days
to provide an updated I-9 form from Verizon which confirmed his immigration
status. Failure to comply with this request could justify the refusal of his
application in accordance with subsection 16(1) of the IRPA, above. (CAIPS
notes, Tribunal Record, p. 5.)
[12]
On
March 15, 2007, Mr. Oladipo submitted further documentation; more precisely, a
letter of reference from Verizon Wireless together with a letter in which he
explains why he was unable to obtain the I-9 form from his employer. (CAIPS
notes, Tribunal Record, p. 5.)
[13]
None
of the additional documentation or the information provided, enabled the Visa Officer
to confirm Mr. Oladipo’s duties and responsibilities. Consequently, the Visa Officer
determined that, given the undocumented employment with Verizon and the
circumspect letter from its Human Resources Department, very little weight
could be given to the documents which were provided in support of Mr. Oladipo’s
employment in the U.S. Furthermore, the Visa Officer
determined that Mr. Oladipo’s employment experience with Intracom Internet service
in Nigeria was not supported by
credible and reliable documentation. (CAIPS notes, Tribunal Record, p. 5.)
[14]
Mr.
Oladipo’s application for permanent residence was, therefore, refused, on March
16, 2007. (CAIPS notes, Tribunal Record, p. 5.)
[15]
After
assessing Mr. Oladipo’s application for a permanent resident visa as a skilled
worker, the Visa Officer was not satisfied that he met the requirements in
order to qualify as a skilled worker in Canada.
[16]
The Visa
Officer concluded that Mr. Oladipo had not provided any reliable documentation
to support his employment history, from neither the U.S. nor Nigeria. As a result, zero
units were awarded for Mr. Oladipo’s experience. (CAIPS notes, Tribunal Record,
p. 5.)
Credibility
[17]
Mr.
Oladipo is of the view that the Visa Officer erred in law in determining that he
had not demonstrated that he has the minimum necessary work experience to
qualify as a skilled worker. According to Mr. Oladipo, the Visa Officer
fettered her discretion by considering an irrelevant matter, namely, the
employment in the U.S. was without lawful
employment authorization. The decision is patently unreasonable, as the only
rational conclusion from the evidence provided is that Mr. Oladipo was employed
by Verizon Wireless as claimed, but without lawful authorization. (Applicant’s Record,
Applicant’s Memorandum of Argument, para. 1.)
[18]
In
addition, the Officer erred in law and breached the principles of procedural
fairness by failing to give any reasons for rejecting Mr. Oladipo’s evidence of
his work experience in Nigeria. (Applicant’s
Memorandum of Argument, above.)
[19]
The
Respondent contends that, contrary to Mr. Oladipo’s assertion, a reading of the
CAIPS notes and the Visa Officer’s affidavit shows that the application as a
skilled worker was denied due to credibility issues and the failure to provide
reliable documentation in support of his claimed employment in both the U.S.
and Nigeria, and, not due to whether or not he was working legally for Verizon
Wireless. (Respondent’s Memorandum of Argument, para. 4.)
[20]
Furthermore,
the Respondent holds that Mr. Oladipo had been told, at the interview, of the Visa
Officer’s concerns in respect of the documents and as to his credibility; the
statement in the decision letter, that Mr. Oladipo failed to provide reliable
documentation to support his employment history in the U.S. and Nigeria, represents clear
reasons for the refusal. Mr. Oladipo was awarded an opportunity, both, at the
interview and after the interview, to provide information that would respond to
the Visa Officer’s concerns, but failed to do so. (Respondent’s Memorandum of
Argument, para. 14.)
IV. Relevant Legislation
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.
Skilled
workers
(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.
Minimal
requirements
(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.
Qualité
(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.
Exigences
(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.
|
V. Issue
[21]
Were
the Reasons of the Visa Officer sufficient to know why the application for permanent
residence was refused?
VI. Standard of Review
[22]
The standard of review, with respect to a decision to deny a visa,
has consistently been held by this Court to be in the realm of a Visa Officer’s
particular expertise; and, therefore dictates a deferential approach upon
review.
[23]
The assessment of an application for
permanent residence, under the Federal Skilled Worker Class, 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 patent unreasonableness.
VII. Analysis
The
Applicant’s application was denied due to a credibility issue and a failure to
provide reliable supporting evidence
[24]
The
case law establishes that the onus is on the applicant to file an application
with all relevant supporting documentation and to provide sufficient credible
evidence in support of his application. The applicant must put his “best case
forward”. (Chen v. Canada (Minister of Citizenship and Immigration),
[1999] F.C.J. No. 1123, para. 26; Dardic v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 150, [2001] F.C.J. No. 326 (QL);
Tahir v. Canada (Minister of Citizenship and Immigration) (1998), 159
F.T.R. 109, [1998] F.C.J. No. 1354 (QL); Lam v. Canada (Minister of
Citizenship and Immigration) (1998), 152 F.T.R. 316, [1998] F.C.J. No. 1239
(QL).)
[25]
Contrary
to Mr.
Oladipo’s assertion, a reading of the CAIPS notes and the affidavit of the
Visa Officer shows that the application as a skilled worker was denied due to
credibility issues and the failure to provide reliable documentation in support
of his claimed employment, in both the U.S. and Nigeria, not due to whether or
not he was working legally for Verizon Wireless.
[26]
The
Visa Officer noted that, as Mr. Oladipo’s had stated that he had been
working for Verizon for three years, he was asked for a copy of his petition
filed by Verizon for his H-1B (temporary worker) status in the U.S. Mr. Oladipo advised her
that the company was “still working on it”. As the Officer also noted, Mr. Oladipo did not
stray from this explanation throughout the interview. (Affidavit of Mary Keefe,
para. 22.)
[27]
In
light of Mr.
Oladipo’s statement of employment with Verizon, the Officer asked him for an
employment reference from them. Mr. Oladipo provided his 2004 written
offer of employment and his 2006 W-2 U.S. Wage and Income Statement. The
Officer acknowledged that Mr. Oladipo earned an income during
this period of time, addressed him, specifying that the information provided
was deficient as it did not define his job duties and responsibilities.
[28]
The
Officer noted, in her affidavit, that she advised Mr. Oladipo that
his employment experience with Verizon would be taken into consideration
regardless of the legality or illegality of his employment; however, what he
provided was insufficient, as it was lacking pertinent basic information, such
as his job duties and responsibilities. The Officer stated:
18. Notwithstanding what may have
transpired between the Applicant and U.S. Departments of Immigration and State,
I reiterated to the Applicant that his employment experience with Verizon
would be taken into consideration. As previously noted however, upon a
review of the copy of the Applicant’s original offer of employment dated
October 13, 2004, from Verizon Wireless, it only showed the proposed start
date, salary, terms and conditions of employment, but did not define or make
reference to his job duties and responsibilities. The 2006 W2 wage and income
statement also made no specific reference to the Applicant’s job description
and duties. Therefore, the documentation presented at interview was
inconclusive with respect to the Applicant’s actual duties and responsibilities
as a “data coordinator.” (Emphasis added.)
(Affidavit
of Mary Keefe.)
[29]
Similarly,
the subsequent documentation that Mr. Oladipo submitted with the March 13,
2007 letter (such as the employment letter signed by Cecily Wilkinson), was
also deficient with regard to the most basic required information, such as job
duties and responsibilities, to show that he met the criteria for a skilled
worker. The Officer noted:
24. On March 14, 2007, I received a
letter dated March 13, 2007, from the Applicant, in which the Applicant thanked
me for another opportunity to provide proof of his employment with Verizon. The
Applicant explained he was unable to obtain the I-9 “Employment Eligibility
Verification.” He submitted an employment reference letter dated March 12,
2007, authored by Cecily Wilkinson, Verizon Wireless Human Resources. The
author of the letter did not reference her title in the Human Resources Department
at Verizon Wireless. More importantly, this letter did not identify or address
the Applicant’s duties and responsibilities, despite the lack of supporting
information being a concern expressed to the Applicant at the interview.
25. The 2006 performance evaluation
submitted by the Applicant at the same time also did not outline the
Applicant’s job duties and responsibilities…
(Affidavit
of March Keefe.)
[30]
As
noted above, Mr.
Oladipo is obligated to submit documents that show he meets the criteria
of a skilled worker; he did not do so, even after he had been made
aware of the Officer’s concerns and was afforded an opportunity to provide
further documentation to the Officer.
[31]
With
respect to the issue of the request for an I-9, in light of Mr. Oladipo’s repeated
assertion that Verizon was petitioning for him, the Officer stated:
22. … Notwithstanding the lack of
reliable documentation to support his employment experience with Verizon
Wireless, in the interest of procedural fairness I afforded the Applicant an
opportunity to provide proof of an ongoing petition for a work permit or proof
of his “Employment Eligibility Verification,” form I-9 as referred to in his
original offer of employment. The purpose of this request was to confirm the
veracity of the Applicant’s statements made to me about his work experience
with Verizon Wireless. He was advised that upon review of this
documentation or any other documentation he wished to provide in support of his
employment experience, a final determination would be rendered. (Emphasis
added.)
(Affidavit
of Mary Keefe.)
[32]
As
the Officer stated, in her affidavit, which is supported by the entries in the
CAIPS notes:
26. The issue at hand was the
Applicant’s credibility and his inability to demonstrate through reliable
documentation that he possessed the necessary experience in a skill level O, A,
or B occupation thereby supporting his verbal statements made at his selection
interview, not whether he was working legally for Verizon.
[33]
Similarly,
with respect to the Nigerian documents, the issue was the lack of reliable
evidence, to support Mr.
Oladipo’s statement as to the paid work in Nigeria. As the
Officer stated, in her affidavit:
19. With respect to his employment
in Nigeria, the Applicant provided two
reference letters from his former employer, IntraCom5. In the letter of
appointment from IntraCom5 dated October 2, 1998, the employer referenced the
Applicant’s occupation as “Marketing Staff.” The Applicant included a letter
dated September 11, 2003, which he wrote to advise that there was an error in
his employment reference letter. He stated that he had been employed as a
technical support engineer. The Applicant included another letter dated August
26, 2004, from IntraCom (the number 5 was not included in the company logo)
which stated the Applicant was a full-time employee as a customer service
engineer in their technical department and referred to the Applicant’s final
salary of NGN 35,000.00 dollars.
20. Although the August 26, 2004,
letter contained an original signature, unlike the first employment reference
letter it did not contain the name of its author. I noted to the Applicant
that neither of these letters was supported by proof of paid income in the form
of pay stubs or personal income tax statements, and furthermore no job
description was included with these letters. Therefore, I could not extrapolate
from these letters what the Applicant’s actual duties and responsibilities as a
technical support engineer were. As such, I placed little weight on the letters
as evidence of paid employment in Nigeria.
(Emphasis added.)
[34]
The
Applicant did not provide any further evidence to address the Officer’s
concerns when he submitted the March 13, 2007 letter. He had the opportunity to
do so if he so chose.
Were
the Reasons of the Visa Officer sufficient to know why the application for
permanent residence was refused?
[35]
Contrary
to Mr.
Oladipo’s assertion, in light of the fact that he had been aware, at the
interview, of the Officer’s concerns with the documents and his credibility,
the statement in the decision letter that he failed to provide reliable
documentation to support his employment history in the U.S. and Nigeria,
represent clear reasons for the refusal. Mr. Oladipo was afforded an
opportunity, both, at the interview and after the interview, to provide
information that would treat the Officer’s concerns, but failed to do so.
[36]
The
reason for the refusal stems from the same issues of which Mr. Oladipo was made
aware and for which he was given an opportunity to respond in regard to his
employment, in both, the U.S. and Nigeria; furthermore,
the CAIPS notes provide additional, more detailed information in respect of the
interview and the reasons for refusal. To reiterate, the reason stated in the
decision letter, for the denial of the application, is clearly sufficient for Mr. Oladipo to
know exactly why the application was dismissed. Mr. Oladipo did not
prove that he met the requirements in the skilled worker category due to his
failure to provide reliable documentation in support of his employment history
in the U.S. and Nigeria, as he was
obliged to do.
VII. Conclusion
[37]
For
all of the above reasons, the application
for judicial review of
the decision of the Visa Officer, is
dismissed.
JUDGMENT
THIS COURT
ORDERS that
1. The application for judicial
review be dismissed;
2. No serious question of general
importance be certified.
“Michel M.J. Shore”