Date: 20080130
Docket: IMM-2290-07
Citation: 2008 FC 90
BETWEEN:
TAHEREH
Fargoodarzi
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
Pinard
J.
[1]
This
is an application for judicial review of the decision of Athena Chan,
Designated Immigration Officer (the “Officer”), who refused the applicant’s
application for permanent residence as a member of the economic class because
she had not satisfied the Officer that she was not inadmissible to Canada.
* * * * * * *
*
[2]
The
applicant is an Iranian national who submitted an application at the Canadian
Consulate in Hong Kong for permanent residence in Canada, in 1999.
The applicant included her husband and children in her application.
[3]
Receipt
of the application was confirmed by letter sent on February 11, 2000, which
stated that an initial assessment would be conducted within six months.
[4]
On
May 11, 2004, a letter was sent stating that the initial assessment had been
completed and that the application would likely be finalized, without the
necessity of an interview, within six months. The applicant was also requested
to provide certain documents, including FBI certificates for herself and her
husband.
[5]
It
would appear from the Computer Assisted Immigration Processing System (CAIPS)
notes that some FBI documents were received in August 2004. However,
outstanding documents remained. When the security admissibility review was
completed on September 15, 2006, the applicant’s husband’s FBI certificate had
expired, and a request for an updated FBI certificate was sent, on October 4,
2006.
[6]
On
December 13, 2006, new documents were received, which included a State of California police
certificate. On February 26, 2007, a letter was sent to the applicant stating
that the California state
certificate was not acceptable and that her husband’s FBI certificate was still
outstanding, and giving the applicant 30 days to provide the outstanding
document.
[7]
According
to the applicant’s affidavit, this letter was received in the middle of March,
2007. As the applicant did not have enough time to acquire the FBI certificate
before the deadline, she asked her sister in Canada to contact
her Member of Parliament. She affirms that Mélanie Houle, assistant to the Member of
Parliament, sent an email to Hong Kong stating that the FBI certificates would
be forwarded as soon as they were received. However, there is no record of this
email in the CAIPS notes, although they do include some communication between
Ms. Houle and the Officer, notably an email sent to Ms. Houle on February 23,
2007 stating that the applicant’s husband’s FBI certificate was still
outstanding.
[8]
On
March 28, 2007, after no further communication had been received from the
applicant, the Officer decided to refuse the application.
* * * * * * *
*
[9]
The
Officer’s decision is brief. After noting that the applicant had been requested
by letter on October 4, 2006, and reminded on February 26, 2007, to provide the
updated FBI certificate for her husband, the visa officer determined that the
applicant had not satisfied her that “you are not inadmissible and that you
meet the requirements of the Immigration and Refugee Protection Act.”
The visa officer concluded as follows: “I am therefore refusing your
application pursuant to subsection 11(1) of this Act.”
* *
* * * * * *
[10]
The
following provisions of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (the “Act”) are relevant:
|
11.
(1) 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 shall be issued
if, following an examination, the officer is satisfied that the foreign
national is not inadmissible and meets the requirements of this Act.
16. (1) 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.
|
11. (1) L’étranger doit,
préalablement à son entrée au Canada, demander à l’agent les visa et autres
documents requis par règlement, lesquels sont délivrés sur preuve, à la suite
d’un contrôle, qu’il n’est pas interdit de territoire et se conforme à la
présente loi.
16. (1) 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.
|
* * * * * * * *
[11]
The
applicant submits that the Officer’s reasons provide no basis to determine why
the FBI certificates she had already sent were inadequate to establish that the
applicant was not inadmissible, or why the applicant’s efforts to obtain the
requested documents were tantamount to the abandonment of the application.
[12]
Although
all administrative decision-makers have a duty of fairness toward those who are
directly affected by their decisions, the content of this duty will vary
depending on the context of the decision (Knight v. Indian Head School
Division No. 19, [1990] 1 S.C.R. 653). If the Court finds that this duty
has been breached, the decision must be quashed and the issue sent back to a
new decision-maker (Li v. Minister of Citizenship and Immigration, 2006
FC 1109, [2006] F.C.J. No. 1409 (T.D.) (QL)). In this case, the decision in
question is a visa officer’s decision on an application for permanent
residence, and the duty of fairness has been determined to be at the relatively
low end of the spectrum in this context, due to the absence of a legal right to
permanent residence, the fact that the burden is on the applicant to establish
her eligibility, the less serious impact on the applicant that the decision
typically has, compared with the removal of a benefit, and the public interest
in containing administrative costs (Khan v. Canada (Minister of Citizenship
and Immigration), [2002] 2 F.C. 413 (C.A.)).
[13]
In
my opinion, this case is closely analogous to Vellanki v. Minister of
Citizenship and Immigration, 2007 FC 247, [2007] F.C.J. No. 315 (T.D.)
(QL), where, after a five-year delay in the processing of an application as a
Skilled Worker and following a failure to provide the required documents, the
application was denied, using similar language to the decision in question
here. In that case, Mr. Vellanki’s admissibility on medical and security
grounds was all that remained to be verified:
[9] . . . Section
11(1) of the IRPA indicates that a foreign national must establish to the
satisfaction of the Visa Officer that he is not inadmissible. This must be read
together with section 16 of the IRPA which requires a visa applicant to produce
all relevant evidence and documents that the officer reasonably requires,
including photographs. The refusal decision in this case turns precisely on Mr. Vellanki’s
failure to provide the information requested by the Visa Officer and the
decision letter clearly conveys that rationale. I take the language used by the
Visa Officer in the earlier “final reminder” letter to be merely an informal
expression of the same underlying point and it gave clear notice that a failure
to respond would lead to a refusal decision. In simple terms the Visa Officer
was “not satisfied” of Mr. Vellanki’s admissibility because he had not provided
the information the officer reasonably required to be satisfied and to complete
the remainder of her assessment.
[14]
In my opinion,
the foregoing analysis applies equally to this case. The applicant submits that
this case is distinguishable because Mr. Vellanki had six months to complete a
small task while the applicant “had a few days to complete a task that required
16-18 weeks!” However, I would not find this difference to be relevant to the
adequacy of the Officer’s reasons, which, in my opinion, are sufficiently
clear.
[15]
The
applicant further submits that the time frame to acquire the FBI certificate
was unreasonable, in reliance on Li, supra, in which the visa
officer was found to have violated the rules of natural justice because she did
not provide the applicant with the opportunity to obtain a requested document
before she made her decision. According to the applicant, the Officer should at
least have considered the email sent in March 2007 by Ms. Houle, which
indicated that the requested documents would be forwarded as soon as they were
received.
[16]
In
response, relying on Madan v. Canada (Minister of Citizenship and
Immigration) (1999), 172 F.T.R. 262, the respondent submits that a visa
officer is under no obligation to seek clarification of insufficient material
and, considering that the applicant had already been given an opportunity to
provide the requested information and had failed to do so, the Officer was
entitled to give the applicant a shorter time frame within which to reply. The
respondent also notes that there is no affidavit from Ms. Houle, nor is there
evidence that the email was ever received by the consulate in Hong Kong.
Furthermore, the email was apparently sent on March 28, 2007, which,
considering the time difference between Canada and Hong Kong, was
actually after the decision had been made.
[17]
According
to the applicant, Exhibit D to her affidavit demonstrates that the email had
already been sent on March 20, 2007. However, in examining Exhibit D, the date
on the email appears to be March 28, 2007. Furthermore, this is not the email
that was sent to the consulate, but is an email from Ms. Houle to the
applicant’s sister, stating that an email had already been sent to the
consulate.
[18]
Regardless
of the date the email was sent to Hong Kong, however, there is no evidence that
the email was ever received by the consulate. It does not form part of the
Tribunal Record and is not mentioned in the CAIPS notes.
[19]
In
my opinion, the applicant has not shown that the Officer breached the rules of
natural justice when she gave the applicant 30 days to provide the required
documents. My conclusion may have been different had the applicant contacted
the consulate herself to request more time, or at least followed up on the
email sent by Ms. Houle to make sure that it had been received. This case is
distinguishable from Li, supra, because the Officer gave the
applicant an opportunity to provide the documents before she came to her
decision. In this case, the applicant was given an ultimate delay of 30 days to
provide the documents, and the Officer was given no indication that the
applicant needed more time. When the Officer did not receive any communications
from the applicant within that time frame, she was entitled to make her
decision based on the evidence that the applicant had provided to that point. I
would note that, contrary to the applicant’s assertion, the Officer did not
decide that the applicant had abandoned her application, but rather that she
was not satisfied that the applicant was not inadmissible.
[20]
The
applicant also submits that there is no indication that the Officer considered
the existing evidence when she rendered her decision.
[21]
On
questions which are within the discretion of a visa officer, the standard of
review has been found to be that of patent unreasonableness (Shi v. Minister
of Citizenship and Immigration, 2005 FC 1224, [2005] F.C.J. No. 1490 (T.D.)
(QL)). The burden is on the applicants to demonstrate to the visa officer that
they meet the requirements of the Act and are not inadmissible (Farzam v.
Minister of Citizenship and Immigration, 2005 FC 1659, [2005] F.C.J. No.
2035 (T.D.) (QL)). While the Court may intervene if it can be shown that the
visa officer disregarded evidence in coming to a decision, the visa officer is
presumed to have considered all the evidence unless the contrary can be shown,
and the failure to mention evidence is not, in itself, fatal to the decision
(see Woolaston v. Canada (Minister of Manpower and Immigration), [1973]
S.C.R. 102, and Florea v. Canada (Minister of Employment and Immigration),
[1993] F.C.J. No. 598 (C.A.) (QL)).
[22]
In
my opinion, the applicant has not demonstrated that the Officer failed to
consider the evidence in coming to her decision. The Officer’s reasons state
that she examined the material available on the file. The material on the file
did not include updated information with regard to the applicant’s criminal
admissibility, and so supports the Officer’s conclusion. I do not find the
Officer’s decision to be patently unreasonable.
[23]
The
applicant finally submits that, having been informed that her application would
be processed without the requirement of an interview, and having gone through
eight years of processing, she had a legitimate expectation that she would be
provided with a reasonable time in which to provide the required documents. In
the light of my conclusion that the time frame was not unreasonable, I am of
the opinion that, even if the doctrine of legitimate expectations applies, it
is of no assistance to the applicant in the present case.
[24]
Furthermore,
even if the time frame was unreasonable, the applicant has not demonstrated how
the doctrine of legitimate expectations is engaged in this case. The doctrine
of legitimate expectations applies to provide enhanced procedural rights in
situations where an individual was led to believe that a certain practice would
be followed or a certain result would be achieved (Baker v. Canada (Minister
of Citizenship and Immigration), [1999] 2 S.C.R. 817). However, the
applicant seems to base her submissions on this issue on her own conduct, as
well as the letter from May 2004 which stated that her application would be
processed within six months. The applicant’s own conduct cannot create a
legitimate expectation as to the process that the decision-maker will follow,
and I do not see how a statement that her application would be processed within
a certain time frame would create a legitimate expectation that the applicant
would be given a certain time frame to provide required documents.
* * * * * * * *
[25]
For
all the above reasons, the intervention of the Court is not warranted and the
application for judicial review is dismissed.
“Yvon
Pinard”
Ottawa,
Ontario
January
30, 2008
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