Date: 20080228
Docket: IMM-1169-07
Citation: 2008 FC 265
Ottawa, Ontario, February 28,
2008
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
ALKA
NIZAMI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION CANADA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of the
decision of a visa officer (the officer) dated January 16, 2007, wherein the
officer denied the applicant’s application for permanent residence under the
skilled worker category.
[2]
The
applicant requests that the decision be set aside and the matter referred back
to a different visa officer for redetermination.
Background
[3]
Alka
Nizami (the applicant) is a citizen of India. She is
married to Syed Nizami and has two children. The applicant submitted an
application for permanent residence in Canada under the
skilled worker category on May 9, 2001. Because her application was submitted
while the Immigration Act, 1978 (the Former Act) was in force, the
applicant was entitled to a dual assessment under both the Former Act and IRPA.
[4]
The
occupation under which the applicant applied was that of physiotherapist,
National Occupational Classification (NOC) 3124. Her application was reviewed
on January 18, 2005 and the officer found that there was insufficient evidence
of the claimed work experience and therefore a letter was sent to the applicant
requesting a list of additional sources. The applicant submitted the requested
documents and the file was reviewed again on March 22, 2005. The officer
reviewed the file and once again determined that documents were missing. As
such, the officer ordered an interview in order to assess the applicant’s
qualifications and work experience. The applicant was invited to an interview
held November 20, 2006, which she attended. However, the applicant arrived
without any further documentation as to her work experience and as a result,
was advised that the interview would be rescheduled to provide her another
opportunity to submit further documentation.
[5]
The
applicant alleges that she was told she would be advised of the new interview
date within four to six weeks. However, she alleged that before receiving notice,
she received a decision from the officer dated January 16, 2007 rejecting her
application.
[6]
The
respondent alleges that the applicant was sent a letter dated the same day as
the first interview (November 20, 2006) advising her that another interview had
been scheduled for January 8, 2007. The applicant failed to appear for this
interview, and as such, the file was assessed as it was without further
documentation or a second interview.
[7]
This
is the judicial review of the officer’s decision dated January 16, 2007
rejecting the applicant’s application for permanent residence in the skilled
worker’s category.
Officer’s Decision
[8]
In
the January 16, 2007 decision, the officer determined that the applicant did
not meet the requirements for immigration to Canada. The officer
noted that by letter dated November 20, 2006, the applicant was requested to
attend an interview on January 8, 2007 in relation to her application. The
officer also noted that the letter informed the applicant that if she failed to
attend the interview, her application would be assessed based on the
information and documentation in her application alone. Moreover, the letter
warned the applicant that as her interview had been scheduled “to address
concerns with the information in her file, failure to attend [would] likely
lead to the refusal of [the applicant’s] application and no additional interview
[would] be scheduled.”
[9]
The
officer went on to note that the applicant’s application had been given a dual
assessment as per subsection 361(4) of the Immigration and Refugee
Protection Regulations, S.O.R./2002-227 (the IRP Regulations). With regards
to the assessment under the Former Act, the officer awarded the applicant 59
points. The officer noted that pursuant to subsection 11(1) of the Regulations,
a visa officer cannot issue a visa to an immigrant who has not been awarded any
units of assessment under the factor “experience” unless they have arranged
employment. The officer awarded zero points for both “experience” and
“occupational factor” on the basis that the applicant had not proven her work
experience and as such, the officer was not satisfied that she had at least one
year of experience as a physiotherapist, NOC 3124. Moreover, the officer did
not award the applicant any units of assessment for “personal suitability” as
the applicant had not attended the interview.
[10]
With
regards to the assessment under the IRP Regulations, the officer noted
subsection 75(2) and its three requirements to successfully become a member of
the federal skilled worker class. The officer was not satisfied that the
applicant met these requirements on the basis that she did not attend her
interview and therefore had not proven her work experience.
[11]
The
officer’s CAIPS notes provide more insight into the findings made regarding the
applicant’s work experience. Specifically, the officer’s notes read:
Based on the evidence on the file, I am
not able to assess whether the PI has performed a substantial number of the
main duties of this occupation as set out in the National Occupational
Classification, including the essential ones and therefore has the necessary
experience in the occupation. The reference letters refer only to titles with
no explanation of the duties performed or responsibilities held. There are no reference
letters for work performed in Saudi
Arabia and USA.
[12]
Based
on the above analysis, the officer rejected the applicant’s application.
Issues
[13]
The
applicant submitted the following issues for consideration:
1. Did the officer
breach his/her duty to act fairly by refusing the applicant’s application
without providing her an interview and by failing to provide adequate reasons
for the refusal?
2. Did the officer err
in ignoring relevant evidence and refusing to award any points to the applicant
for work experience?
[14]
I
would rephrase the issues as follows:
1. What is the appropriate
standard of review?
2. Did the officer
breach procedural fairness?
3. Did the officer err
in finding that the applicant did not have sufficient work experience, and therefore
rejecting her application?
Applicant’s Submissions
[15]
The
applicant submitted that the officer breached the duty of fairness by rendering
a decision before holding an interview. Visa officers have a duty to give
applicants the opportunity to answer the specific case against them, which may
require an interview (Liao v. Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No. 1926 at paragraphs 15 to 17). It was also
submitted that the Citizenship and Immigration Canada Overseas Processing Manual
states that applicants must be provided with an opportunity to disabuse an
officer of any concerns (CIC Manual OP1, at paragraph 8). Moreover,
paragraph 8 of CIC Manual OP1 states that “officers should give
applicants adequate notice regarding the process of the interview that will
result or lead to a decision.” The applicant submitted that she was not given
the benefit of an oral hearing or an interview with the officer that determined
her case and as such the duty of fairness was breached. The applicant accepted
that as per Baker v. Canada (Minister of
Citizenship and Immigration), [1999] S.C.J. No. 39, procedural fairness
does not always require an oral interview. However, it was submitted that in
the present case, the officer felt that an interview was necessary in order to
assess the details of the applicant’s work experience. Therefore, in this case a
fair hearing required that an interview be held before a decision was rendered.
[16]
The
applicant also submitted that the officer’s decision to award zero points for
work experience was patently unreasonable as it failed to consider all the
relevant material. It was submitted that the officer was presented with ample
evidence as to the duties performed by the applicant during her fourteen years
of employment as a physiotherapist. The documentation included numerous letters
of reference and certificates of membership which evidenced the scope of her
employment and her responsibilities. It was submitted that this documentation
supported the finding that the applicant had indeed met the requirements of the
lead statement for NOC 3142.
Respondent’s Submissions
[17]
The
respondent submitted that the appropriate standard of review is one of patent unreasonableness
(Lim v. Canada (Minister of Employment and Immigration), [1991]
121 N.R. 241 (F.C.A.) at 243). Where statutory discretion has been exercised in
good faith and, where required, in accordance with the principles of natural
justice, and where reliance has not been placed upon considerations irrelevant
or extraneous to the statutory purpose, the courts should not interfere (To v.
Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 696.
[18]
As
to the content of procedural fairness owed to the applicant, the respondent
submitted that it is located towards the lower end of the range (Chiau v.
Canada (Minister of
Citizenship and Immigration), [2001] 2 F.C. 297 (C.A.)).
[19]
The
respondent submitted that what is really at issue in this case is whether the
applicant had a meaningful opportunity to participate in the process. The
respondent submitted that the applicant has no guaranteed right to an interview
(Ahmed v. Canada (Minister of Citizenship and Immigration),
[1997] F.C.J. No. 940). Moreover, it is the applicant that bears the onus of
satisfying the officer fully that she has met the requirements of the
application. It was argued that the applicant was given two interview
opportunities, and three opportunities to provide further documentation. The
respondent submitted that while the applicant claims that she never received
notice of the second interview, the CAIPS notes indicate that a letter inviting
the applicant to an interview on January 8, 2007 was in fact sent out to the
applicant on November 20, 2006. The respondent also noted that nowhere in the
CAIPS notes does it show that the letter was returned as undeliverable. The
respondent alleged that the applicant has had a meaningful opportunity to
participate in the process and no violations of procedural fairness have
occurred.
[20]
With
regards to the officer’s finding that the applicant deserved zero points for
work experience, the respondent submitted that the officer considered all of
the evidence on record and found that the applicant did not meet the
requirements. The respondent argued that as the applicant had failed to satisfy
the officer that she had performed a substantial number of the main duties
listed in NOC 3142, the officer was bound to make the decision rendered. The
officer’s finding is one of fact and attracts the highest deference owed.
Applicant’s Reply
[21]
With
regards to the respondent’s reliance on Chiau above, for the proposition
that the contents of procedural fairness owed is at the low end of the
spectrum, the applicant noted the case of Ha v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 49. In Ha above, the Federal
Court of Appeal stated at paragraph 56:
.
. . simply because visa officers are not obliged to interview all applicants in
all cases does not diminish the procedural protections that they owe to those applicants
whom they do decide to interview. Once visa officers decide to conduct an
interview, they must do so in accordance with the duty of fairness.
[22]
The
applicant also submitted that while the CAIPS notes indicate that a letter was
sent and was not returned as undeliverable, there is no copy of the alleged
letter found anywhere in the respondent’s Rule 9 disclosure. The applicant
submitted that if the respondent wishes to rely on evidence before this Court,
such evidence must be produced. It was further submitted that a note in the
CAIPS notes does not create a presumption that the letter was sent. Moreover,
given the applicant’s active participation in the application process
throughout, it is unreasonable to assume that she would simply have ignored the
letter and failed to appear at the interview on purpose.
Analysis and Decision
[23]
Issue
1
What is the appropriate
standard of review?
The
respondent submitted that the appropriate standard of review is one of patent
unreasonableness based on the authority of Lim above. That case involved
an officer’s determination on whether the appellant was qualified to be a personnel
officer in Canada and the
Federal Court of Appeal held that “this was a pure question of fact entirely
within the mandate of a visa officer to resolve.” The question in the present
case is whether the officer erred in finding that the applicant did not have
any of the required work experience as a physiotherapist. This is also a
question of fact and I am satisfied that the appropriate standard of review
with regards to the experience assessment is patently unreasonable.
[24]
With
regards to questions of procedural fairness, as Justice Richard Mosley stated
in Hassani v. Canada (Minister of
Citizenship and Immigration), [2007] 3 F.C.R. 501 at paragraph 13:
Questions of procedural fairness should
be assessed on a correctness standard: Ellis-Don Ltd. v. Ontario (Labour Relations Board), [2001] 1 S.C.R. 221, at
paragraph 65. Where a breach of the duty of fairness is found, the decision
should generally be set aside: Benitez v. Canada (Minister of
Citizenship and Immigration), [2007] 1 F.C.R. 107 (F.C.), at paragraph 44; Sketchley
v. Canada (Attorney General), [2006] 3 F.C.R. 392 (
F.C.A.), at paragraph 54 (Sketchley).
I would adopt this statement of the law.
[25]
Issue
2
Did the officer breach
procedural fairness?
The decision in question was
very important to the applicant. Moreover, the nature of the decision and the
decision-making process, while not adjudicative, does involve making a decision
based on a set of objective criteria (Chiau above at paragraphs 42 and
43). The factual context of this case also calls for a somewhat more than
minimal level of procedural fairness. The officer was of the opinion that an
interview was necessary to fully understand the applicant’s work experience. As
such, I find that there was a requirement that proper notice be given to the
applicant concerning the rescheduled interview in order for her to meaningfully
participate in the process.
[26]
In
my opinion, the crux of this case is whether or not the applicant was given
notice of the January 8, 2007 interview. The applicant alleges that she was not
given notice. She claims that when she attended the November 20, 2006
interview, the immigration agent informed her that she would be contacted
within four to six weeks to advise her of the date for the rescheduled
interview. The applicant submitted that she was never contacted regarding the
rescheduled interview. She submitted that the letter dated November 20, 2006
that was allegedly sent to her was never received. In fact, the applicant
appears to be arguing that the letter was never sent in the first place given
that a copy of the letter was not included in the Rule 9 disclosure. The
applicant also argued that as the decision was successfully delivered to her
residence, there is proof that the immigration officer had the correct mailing
address on file. She argued that given her dedication to this process and her
past responsiveness to requests for information and interviews, it is illogical
to think that she received notice and simply did not attend.
[27]
The
respondent on the other hand submitted that the CAIPS notes clearly show that a
letter was sent on November 20, 2006 to the applicant indicating that the
rescheduled interview would take place on January 8, 2007. Moreover, the
respondent noted that there is no note in the CAIPS notes to show that the
letter was not received.
[28]
Having
reviewed both parties’ arguments, I find that the applicant never received the
letter. I am particularly persuaded by the fact that a copy of the letter was
not included in the file. The officer’s CAIPS notes are in no way absolute
proof that the letter was sent. Given the applicant’s responsiveness and
genuine interest to immigrate to Canada, I am of the opinion
that she did not simply receive the letter and fail to appear. In light of this
finding, I also find that the applicant was not given sufficient notice of the
interview. As a result, I believe that the applicant was not given a meaningful
opportunity to participate in the process as required by even the low end of
the procedural fairness spectrum. As there has been a breach of the duty of
procedural fairness, the application for judicial review must be allowed and
the matter is referred to a different officer for redetermination.
[29]
Because
of my finding on this issue, I need not deal with the remaining issue.
[30]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[31]
IT
IS ORDERED that the application for judicial review is allowed and the
matter is referred to a different officer for reconsideration.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The relevant statutory provisions are set
out in this section.
The Immigration and Refugee Protection
Regulations, SOR/2002-227:
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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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