Date: 20080728
Docket: IMM-964-07
Citation: 2008 FC 920
Ottawa, Ontario, July 28,
2008
PRESENT: The Honourable Madam Justice Simpson
BETWEEN:
EDWARD
JAMES KUNKEL
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Edward
James Kunkel (the Applicant) seeks Judicial Review pursuant to subsection 72(1)
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the
Act) of a decision of a visa officer (the Visa Officer) dated 9 January, 2007
wherein she denied the Applicant a permanent resident visa as a skilled worker
(the Decision).
BACKGROUND
[2]
The
Applicant is a citizen of the United States. Beginning on May 22,
2001, he started working in Canada pursuant to work permits. He initially worked for Turbo Promote Inc., and, on October 29,
2002, he was issued a permit to work for Instaclick Inc. (Instaclick) in Canada.
[3]
The
Applicant also owns and operates his own consulting firm which is based in New York State. The Applicant would contract through his consulting firm to work for
clients such as Instaclick, which he stated was his company’s only client in Canada. The Applicant said that he and his
common-law wife are the company’s only employees.
The
Convictions
[4]
After
working in Canada for several
years, the Applicant applied for a permanent resident visa on June 7, 2004 (the
Application). In his Application, he declared, inter alia, that he had
never been convicted of a crime or an offence in any country. In fact, he had
been twice convicted in the United States, once for driving while
impaired on March 17, 1995 and the other for driving while ability impaired on
January 4, 2001.
[5]
The
Applicant did, however, disclose these convictions in submissions he made to
support his Application. He had also applied for rehabilitation in respect of
them on February 22, 2006.
[6]
On
three occasions, the Applicant was denied entry into Canada due to his
convictions. On the most recent occasion, on December 27, 2005, the border
officer seized the Applicant’s work permit on the basis that the Applicant had
not, at that time, disclosed the second conviction. After making extensive
submissions, the Applicant subsequently obtained a new temporary work permit on
the basis that his work in Canada would save jobs at Instaclick.
The Phone
Number
[7]
When
reviewing the Application, immigration officials discovered on February 10,
2005 that the phone number listed for Instaclick appeared to belong to another
company, OrgasmCash.com. An interview was scheduled with the Applicant on
January 9, 2007 to confirm his employment and other aspects of the Application.
However, the Applicant was not advised prior to the interview about the
discrepancy in Instaclick’s phone number.
The Interview
[8]
In
his affidavit, the Applicant alleged that the Visa Officer had forgotten that
the interview had been scheduled for that day. He claimed that the interview
began over one hour late and lasted only 30 minutes. However, the Visa Officer deposed
that she was ready and prepared to interview the Applicant, that the interview
started only 15 minutes late and that it lasted about 90 minutes.
[9]
The
Applicant submitted that this dispute could only be resolved through
cross-examination. However, he took no steps to cross examine the Visa Officer.
Because no cross-examination took place and because the Visa Officer’s
affidavit is corroborated by detailed CAIPS notes made on the day of the
interview, the Visa Officer’s evidence is preferred.
[10]
According
to the CAIPS notes, the Visa Officer disclosed all her concerns regarding the
Application during the interview, including the discrepancy in the phone
number. The CAIPS notes reveal that the discussion regarding the phone number proceeded
as follows:
I then referred to our preliminary
analysis (the basis of the rqmt for intv) and read aloud our concerns that
telephone listing for Instaclick, Inc., shows a number for a different company,
“OrgasmCash.com” and asked the subject to explain this apparent disparity of
info. Subj did not initially respond but then stated that “OrgasmCash.com” is
one of Instaclick’s clients. I asked why a company would list their telephone
number for one of its clients. Subj did not respond. He later stated that his
letter was forwarded to our office by his former immig consultant. I asked how
this had any relevance as the 2004 and 2006 employment reference letters
contained the same address, fax and telephone letters. Subj did not respond.
[11]
The
Visa Officer also asked the Applicant a number of questions regarding his work
for Instaclick. The Applicant provided inconsistent answers regarding when he
started working for Instaclick. He first said he had been working for
Instaclick since 2002 but later stated he started in 2003. He could not provide
an exact start date.
[12]
The
Applicant claimed that he qualified as a management consultant as he had saved
30-40 jobs at Instaclick. However, the Visa Officer found that when he was
“given the opportunity to explain how and when he achieved this, the Applicant
stumbled over his words and was ultimately unable to provide a sufficient
explanation.”
[13]
The
Visa Officer also noted that the Applicant provided inconsistent information
about his role at Instaclick. He had provided two letters of employment (one
dated February 10, 2004 and the other dated December 5, 2006) which suggested that
he was employed an employee. However, he also provided consulting agreements
between Instaclick (as “Client”) and his consulting company (as “Consultant”
which the Applicant had signed as “President”). Clause 9 of the consulting
agreements provided:
9. Consultant an Independent
Contractor. Consultant is an independent contractor, and neither Consultant
nor Consultant’s staff is, or shall be deemed, Client’s employees.
[14]
The
Visa Officer also asked the Applicant about his convictions and he was not
forthcoming. The CAIPS notes record the discussion as follows:
The Applicant did not admit that he had
incurred a conviction for DWI/DUI in 2001 – he referred to a 1998 conviction.
He did not directly respond to my questions about his failure to disclose all
of his criminal history. Subj’s credibility is in serious question and was duly
advised. It was only after I read aloud info from FOSS in which I learned his
rehab approval [for his First Conviction] was rescinded that subj admitted to
2001 conviction.
The
Decision
[15]
The
Visa Officer concluded that the Applicant had failed to confirm his role or
function with either his consulting firm or Instaclick. She also found that he
had not demonstrated that he had worked as a management consultant, the
occupation he had listed in his Application.
[16]
As
such, the Visa Officer held that the Applicant did not qualify as a skilled
worker. In particular, he did not meet the requirements under paragraph 75(2(a)
of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the
Regulations), which provides:
|
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;
|
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;
|
[17]
In
addition, the Visa Officer found that the Applicant had failed to provide
complete information about his employment history and convictions. As such, she
held he had contravened subsection 16(1) of the Act which 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.”
ISSUES AND
STANDARD OF REVIEW
[18]
The
issues are:
1.
Was
the Visa Officer required to disclose the inconsistent telephone number prior
to the interview?
2.
Did
the Visa Officer err in concluding that the Applicant had not demonstrated his
work experience as a management consultant?
3.
Did
the Visa Officer err by failing to acknowledge that the Applicant had disclosed
his convictions?
[19]
The
first issue is a question of procedural fairness for which no deference is
given. The second and third issues are questions of mixed fact and law for
which the standard of review is reasonableness.
DISCUSSION
Issue
1 Procedural Fairness
[20]
The
Applicant argues that, in this case, the Visa Officer was required to disclose
the discrepancy regarding Instaclick’s phone number well in advance of the
interview. Immigration officials were aware of the discrepancy for almost two
years but only informed the Applicant at the interview. The Applicant submits
that the Visa Officer breached the duty of procedural fairness by surprising
him with the discrepancy.
[21]
It
is well established that a decision-maker must disclose extrinsic evidence to
allow an applicant a fair opportunity to address it (see, for example,
paragraphs 20-21 of the decision of Justice Marshall Rothstein in Dasent v.
Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 20 (T.D.),
rev’d on other grounds, (1996), 107 F.T.R. 80 (C.A.)).
[22]
However,
in my view the Visa Officer provided the Applicant with a fair opportunity to
address the discrepancy in phone numbers by raising the issue during the
interview. It was hardly a complicated matter. Accordingly, in the
circumstances of this case, she met the disclosure requirements and the duty of
procedural fairness.
Issue
2 Reasonableness of Decision
[23]
It
is clear from the CAIPS notes that the Applicant had difficulty answering the
most basic questions about his relationship with Instaclick. He could not adequately
explain how he could be an employee and an independent consultant at the same
time. He could not provide any details regarding what he did for Instaclick,
such as how he had saved jobs there. He could not explain why a client of
Instaclick that was located in the same building had the same phone number. He
could not even provide consistent information about the year he started working
at Instaclick much less an exact start date.
[24]
The
interview had been held after the Applicant had had a work permit seized and after
he had made, through extensive written representations, a successful
application to have a temporary permit issued. It is also noteworthy that
interviews are only scheduled when there are concerns about the Application. In
this context, one would expect the Applicant to have been much better prepared
for the interview and to be able to answer the simple questions he was asked.
[25]
In
my view, it was open to the Visa Officer based on the interview and the
documentary evidence before her to conclude that the Applicant had not
demonstrated he had at least one year’s experience as a management consultant. For
this reason, the Applicant did not qualify under paragraph 75(2)(a) of the Regulations.
Issue 3 The
Convictions
[26]
The
Visa Officer’s finding that the Applicant had not met the requirements of
paragraph 75(2)(a) of the Regulations was sufficient to deny the Application.
As I have already concluded that she made no reviewable errors in that regard,
I therefore do not need to consider whether she made any errors with respect to
issue 3 as they would have no effect on the outcome of the Application or this
Judicial Review.
JUDGMENT
UPON reviewing the
material filed and hearing the submissions of counsel for both parties in Toronto on Thursday,
June 12, 2008;
AND UPON being advised
that no questions are posed for certification;
NOW THEREFORE
THIS COURT ORDERS AND ADJUDGES that for the reasons given
above the Application is dismissed.
“Sandra
J. Simpson”
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