Date:
20130215
Docket:
IMM-6325-12
Citation:
2013 FC 155
Vancouver, British Columbia,
February 15, 2013
PRESENT: The
Honourable Mr. Justice Blanchard
BETWEEN:
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FEI ZHU
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
The
Applicant, Mr. Fei Zhu, seeks judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] of a decision by a visa
officer at the Canadian Consulate in Hong Kong, dated May 17, 2012,
refusing his federal skilled worker immigration application. The Applicant
seeks an order setting aside the decision and referring the matter back to the
Tribunal with directions to allow him to perfect his application, under the
authority of paragraph 18.1(3)(b) of the Federal Courts Act, RSC, 1985,
c F-7.
I. FACTS
[2]
Citizenship
and Immigration Canada [CIC] received the Applicant’s application for a
permanent resident visa as a member of the Federal Skilled Worker [FSW] class
on September 5, 2006. He requested that his application be assessed based on
his occupation of “Securities Agent, Investment Dealer and Broker – NOC 1113.”
[3]
On
February 13, 2012, a visa officer in the Hong Kong Visa Office sent the
Applicant a letter requesting that he submit updated application forms and
supporting documents by June 13, 2012 (120 days from the date of the letter).
The letter indicated that the Office was prepared to begin assessment of the
application and warned that any failure to submit documentation by the stated
deadline could result in the refusal of the application.
[4]
The
government proposed an amendment to the IRPA on March 29, 2012, in
budget-related Bill C-38. The amendment proposed section 87.4 of the IRPA,
which would terminate
pre-February 27, 2008 federal skilled worker applications that had not
been given a selection decision by March 29, 2012. The proposed subsection
87.4(5) was to prevent anyone from receiving recourse or indemnity for such a
termination.
[5]
On
April 4, 2012, CIC issued operational bulletin 400, which mentioned that Bill
C-38 had to be passed by Parliament in order to take effect and instructed
officers to put the processing of any FSW application received before February
27, 2008, and for which a decision had not been made before March 29, 2012, on
hold.
[6]
A
visa officer in the Hong Kong Visa Office sent the Applicant a letter, dated
April 16, 2012, advising him that his application would not be processed and
instructing him to ignore the recent request to submit full application forms
and supporting documentation.
[7]
On
April 27, 2012, CIC issued operational bulletin 413 instructing local managers
to continue processing federal skilled worker applications submitted before
February 27, 2008 and that were not decided by March 29, 2012.
[8]
In
early May 2012, the Applicant learned through an Internet chat room that
applications were being processed and that he should perfect his application.
The Applicant collected the documents he had already prepared and submitted
them in haste on May 7, 2012 to the Hong Kong Visa Office to avoid
the impact of the potential changes to IRPA, well before his 120-day deadline.
[9]
On
May 17, 2012, the visa officer issued a “decision letter” denying the
application.
[10]
The
Applicant did not receive notice before the decision on May 17, 2012 that his
application would be processed nor did he receive an opportunity to perfect his
application with the knowledge that his application was indeed being
processed. In a letter of the same date as the decision letter, written after
the decision, the Applicant was notified that his application was being
processed because Bill C-38 was not yet law.
[11]
Section
87.4 of the IRPA became law on June 29, 2012, and the section terminates FSW
applications undecided by March 29, 2012. CIC’s operational bulletin 442
instructs that if an application has been finalized by June 29, 2012, and an
officer has decided it after March 29, 2012, the decision on the application
stands.
II. DECISION
[12]
In
a letter dated May 17, 2012, Visa Officer Yvonne Tsang (the Officer) determined
that the Applicant did not meet the requirements for immigration to Canada under the FSW class because he was unable to become economically established in Canada in accordance with subsection 12(2) of the IRPA and subsection 75(1) of the Refugee
Protection Regulations, SOR/2002-227. The Officer based her determination
on the minimum requirements and criteria set out in subsections 75(2) and 76(1)
of the Regulations for the occupation for which the Applicant requested assessment.
[13]
The
Applicant received high scores under the age and experience factors, but low
scores under the education, official language proficiency, arranged employment
and adaptability factors. The Officer offers the following reasoning for
awarding low scores in education and adaptability.
[14]
Applying
the definition of “full-time” and “full-time equivalent” education found in
subsection 78(1) of the Regulations, the Officer concludes that the Applicant
did not submit any reliable evidence as proof of completion of high school
education in July 1993. However, the Officer gives the Applicant the benefit of
the doubt and awards him points for completing high school.
[15]
The
Officer notes that the Applicant submitted a “Credentials Report” indicating
that he had completed an undergraduate program in accountancy by
correspondence at Renmin University from 2000 to 2003, and a diploma confirming
the same. She also notes that the Applicant had not submitted any corresponding
transcripts or other reliable and official university documentation indicating
the period that would have been required to complete the correspondence diploma
program on a full-time basis. Consequently, the Officer is unable to determine
that the Applicant had completed the program from 2000 to 2003. The Officer
states that even if she gave the Applicant the benefit of the doubt and
assigned the assessment points for having completed a three-year full-time
equivalent diploma program from 2000 to 2003, he still would not obtain
sufficient points to qualify for immigration to Canada.
[16]
In
support of the adaptability factor, the Officer notes that the Applicant
submitted notarized certificates indicating a relationship between his
dependent wife and his aunt, Madam Gao, a Canadian citizen. He also submitted his
aunt’s 2011 Canada Revenue Agency Notice of Assessment and her February-March
2012 Canadian bank statement with no transactions on it.
[17]
The
Officer accepts that the Applicant had established that his aunt is a Canadian
citizen and has a bank account in Canada, but she is not satisfied that
the documentation submitted was sufficient to satisfactorily demonstrate his
aunt had “normal residency” in Canada. As a result, the Officer awards the
Applicant no points under adaptability for having an eligible family relative
in Canada.
[18]
In
summary, the Officer awards the Applicant a total of 49 points, below the 67 point
minimum requirement, and does not grant the Applicant a visa under subsection
11(1) of the IRPA.
[19]
On
May 17, 2012, the same day the decision later was dated and issued, the Officer
sent another letter stating that the letter sent to the Applicant on April
16, 2012, instructing him that on March 29, 2012, the Minister had
terminated processing of his decision and that he should not perfect his application,
was incorrect. The letter informs the Applicant that the Minister’s proposal to
terminate certain federal skilled worker applications was of no legal effect
because its enabling act (the Jobs, Growth and Long-term Prosperity Act, SC 2012, c 19, section 707) had not come into force. The Officer
informs the Applicant that, as a result, until such time as the FSW proposal
becomes law, this office will continue to make selection decisions on pre C-50
applications. Finally, the Officer informs the Applicant that his application
has been put into process and a selection decision has been made on that day.
IV. ISSUES
[20]
The
following issues are raised in this judicial review:
1. Did
the Officer’s failure to provide the Applicant notice that his application was
being processed and an opportunity to perfect his application amount to a
breach of procedural fairness?
2. Did
the delayed processing of the Applicant’s application amount to a breach of
procedural fairness?
3. Did
the Officer fail to exercise her statutory jurisdiction to process the
application?
4. Was
the Officer’s decision reasonable?
5. Do
subsections 87.4(1) and 87.4(2) of the IRPA preclude the remedy requested?
V. STANDARD
OF REVIEW
[21]
There
is no dispute as to the applicable standards of review.
[22]
The
appropriate standard of review for issues of procedural fairness is correctness
(see: Singh v Canada (MCI), 2012 FC 855 at para 24).
[23]
The
applicable standard of review of a decision of a visa officer assessing an
application in the Federal Skilled Worker class is reasonableness. It is a
decision that involves findings of fact and law for which the visa officer
has a particular expertise warranting a high degree of deference (see: Singh,
above, at paras 22-23 and Chen v Canada (MCI), 2011 FC 1070 at para 7).
VI. PRELIMINARY
MATTER
[24]
The
Applicant seeks to adduce before the Court fresh evidence that was not before
the Officer. In particular, the Applicant submits his credentials report and a
transcript for his adult junior diploma program from Tianjin University, which he obtained in 1995.
[25]
It
is well established that a judicial review is conducted on the basis of the
evidence that was before the decision-maker who made the decision being
reviewed. The circumstances here do not warrant a departure from this general
rule. The fresh evidence shall not be received or considered in this
application (see: Smith v Canada, 2001 FCA 86).
VII. ANALYSIS
[26]
I
will now turn to the issues set out above.
[27]
The
first two issues relate to procedural fairness. The Applicant contends that the
delay of over five years from the date of the application until he was notified
that the application was being processed is unreasonable and caused him
prejudice. He further contends that the Officer breached her duty of
procedural fairness by failing to inform him that his particular application
would be processed and should be perfected. This notice was given only after
the decision was rendered.
[28]
The
Respondent submits that the Officer committed no breach of procedural fairness.
The Respondent argues that the duty of fairness owed by a visa officer on an
application for permanent residence is quite low and easily met. The Respondent
acknowledges that the April 16, 2012 letter informing the Applicant that his
application would not be processed was “regrettable”, but that the Applicant
nevertheless perfected his application well before the expiration of the 120-day
deadline. The Respondent submits the Applicant was advised of the required
forms well ahead of time and never requested any additional time to provide
documents.
[29]
In
the context of an application for mandamus, the more than five-year delay it
took to process the application would likely result in a finding that the delay
was unreasonable, absent any satisfactory explanation by the Minister for the
delay. No such explanation is offered on the record before me. In any event, it
would not be open to the Applicant to seek mandamus at this juncture since the
application has been processed. Further, it is not for the Court to speculate on
what evidence and submissions would have been put forward by the Minister had
this been a mandamus application.
[30]
I
am not prepared to find that by reason of the delay the Applicant suffered the
prejudice alleged. The changes brought to the applicable legislative scheme,
introduced to address significant backlogs in FSW applications, cannot form the
basis of unfair practice by the Minister and resulting prejudice to the
Applicant. I consequently reject the Applicant’s argument that “keeping the
Application outstanding by way of unreasonable delay and then legislating a
provision to terminate the Application amounts to setting the applicant up for
failure….” There is simply no evidence to support such an allegation.
[31]
While
the more than five-year delay it took to process the Application may have been
unreasonable, it does not support a finding of procedural unfairness. However,
for the reasons that follow, I find that the unusual circumstances that led to
the processing of Mr. Zhu’s application amount to an unfair process.
[32]
The
content of the duty of fairness of a visa officer on an application for
permanent residence is at the lower end of the range (see: Chiau v Canada (Minister of Citizenship and Immigration), [2001] 2 FC 297 (C.A.). A visa officer is
nonetheless subject to the duty of fairness. At paragraph 35 of its decision in
Chiau, the Court of Appeal articulated that duty to include “… a reasonable
opportunity to know and respond to information on which the officer proposes to
rely in making his decision. Whether the appellant was denied this reasonable
opportunity depends on an analysis of the factual, administrative and legal
contexts of the decision.”
[33]
Here
the unfairness lies not in the failure to inform the Applicant of the materials
required to he was required to submitt with his application. The Applicant had
access to the checklist of the materials that were required for his application,
and the onus was on him to provide those materials. Rather, the unfairness
lies in the nature of the information communicated to the Applicant about the process
and when it was communicated.
[34]
The
Applicant was informed by the Officer on April 16, 2012 that his application
would not be processed. He was instructed to “… ignore our recent request to
submit full application forms and supporting documentation.” There is no
dispute that the April 16, 2012 letter was sent in error. This was the last
communication received by the Applicant from the Officer or the Hong Kong Visa
Office before he received the May 17, 2012 refusal letter. The letter informing
the Applicant of the Officer’s new instructions to process the application was
sent on the same day as the decision letter, and it was received by the
Applicant after he was informed of the negative decision.
[35]
In
the circumstances, the failure of the Officer to provide sufficient notice of
her changed instructions to process the application deprived the Applicant of a
reasonable opportunity to respond. It is no defence to suggest the Applicant
suffered no prejudice since he filed his documents in any event. It is only by
happenstance, by accessing a chat room on the Internet, that the Applicant became
aware that FSW applications were being processed. He had no information
specific to his application. He sent the information he had obtained on the
misapprehension that it was urgent to do so, “because applications could be
terminated when the new Law comes into effect.” His undisputed evidence is that
he submitted his evidence “even though [he] did not have a complete set of forms
and documents because [he] had ceased preparing and collecting them.”
[36]
The
Applicant should have been informed that his application was again being
processed and should have been provided adequate time to gather and submit his
evidence. The letter informing the Applicant that his application was
being processed should have been sent without delay after the Officer received
instructions from CIC on April 27, 2012, to process the application. The
Applicant should also have been provided a reasonable opportunity file
forms and documents in support of his application as he saw fit. Even at the
lower end of the range, the content of the duty owed by the Officer included
providing the Applicant that opportunity. The Applicant was prejudiced because
he was not afforded a reasonable opportunity to perfect his application before
a decision was rendered. As a result, the process that led to the determination
of the application was unfair. In acting as she did, the Officer caused a
breach of procedural fairness.
[37]
Breaches
of procedural fairness must be material to the outcome of the process (see: Canada (Minister of Citizenship and Immigration) v Patel, 2002 FCA 55 at
para 6). This breach of procedural fairness resulted in the Applicant being
deprived of an opportunity to submit further documents before the decision was
made. Since the Officer’s negative decision on the application turned, to a
significant degree, on the adequacy of documentation submitted by the Applicant,
the circumstances leading to the breach of procedural fairness were
material and prejudicial to the Applicant. Having found a material breach
of procedural fairness, the Court cannot allow the decision to stand. The
Officer’s decision will be set aside.
[38]
Since
my above finding is determinative of the judicial review application, it is not
necessary to consider the remaining issues, including the issues relating to
the reasonableness of the decision. I will, however, consider the remedy sought
by the Applicant.
VII. REMEDY
[39]
The
Respondent submits that the new legislative scheme modifies IRPA to terminate
FSW applications made before February 27, 2008, where it had not been
established by an officer, in accordance with the regulations, whether the Applicant
meets the selection criteria and other requirements applicable to that class.
The Respondent contends that there is no discretion on the part of the
Minister to process terminated applications. The Respondent further argues that
the new provisions also provide that any final Court order made on or after
March 29, 2012, pertaining to these terminated applications will be negated by
the operation of law, thereby making the remedy sought unavailable.
[40]
The
Respondent contends that a selection decision was made by the Officer on
May 17, 2012, and therefore the Applicant’s FSW application would be
terminated by operation of law pursuant to section 87.4(1) of the IRPA.
[41]
For
ease of reference I reproduce below the relevant provisions of the IRPA:
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87.4 (1) An application
by a foreign national for a permanent resident visa as a member of
the prescribed class of federal skilled workers that was made before February
27, 2008 is terminated if, before March 29, 2012, it has not been
established by an officer, in accordance with the regulations, whether the
applicant meets the selection criteria and other requirements applicable to
that class.
(2) Subsection
(1) does not apply to an application in respect of which a superior court has
made a final determination unless the determination is made on or after
March 29, 2012.
…
(5) No
person has a right of recourse or indemnity against Her Majesty in connection
with an application that is terminated under subsection (1).
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87.4 (1) Il est
mis fin à toute demande de visa de résident permanent faite avant le 27 février
2008 au titre de la catégorie réglementaire des travailleurs qualifiés
(fédéral) si, au 29 mars 2012, un agent n’a pas statué, conformément aux
règlements, quant à la conformité de la demande aux critères de sélection et
autres exigences applicables à cette catégorie.
(2) Le
paragraphe (1) ne s’applique pas aux demandes à l’égard desquelles une cour
supérieure a rendu une décision finale, sauf dans les cas où celle-ci a été
rendue le 29 mars 2012 ou après cette date.
…
(5) Nul
n’a de recours contre sa Majesté ni droit à une indemnité de sa part
relativement à une demande à laquelle il est mis fin en vertu du paragraphe
(1).
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[42]
The
Applicant argues that section 87.4 of the IRPA does not apply in the
circumstances of his application. For the reasons that follow, I agree
with the Applicant’s submission.
[43]
The
complicating factor in this case is that, at the time the decision was rendered
on the application, the provisions of section 87.4 were not yet law.
Consequently, at the time the decision was made, the application was not
terminated. Upon the issuance of operational bulletin 442, the Minister
directed that the application be processed. The application was processed and
decided. At the time section 87.4 was passed into law, the application was no
longer an undecided application that could be terminated, but was an
application that was legally decided, albeit after March 29, 2012.
[44]
In
my view, subsection 87.4(1) is not applicable in the circumstances. The
provision cannot serve to strike a validly rendered visa officer’s
decision. The provision expressly deals with undecided applications, not
decisions. While it is true that Mr. Zhu’s application remained undecided after
March 29, 2012, a decision was rendered by the Officer on May 17, 2012 before
the provision was passed into law. Had the application not been decided
before subsection 87.4(1) was passed into law, then the application would have
been terminated. At the time the decision was rendered, the law was not in
effect and the decision was valid.
[45]
Section
87.4 of the IRPA does not address the specific circumstance of Mr. Zhu’s
application. There is no transitional provision to address applications that
were decided after March 29, 2012 and before the new provisions were
passed into law on June 29, 2012. The provision deals with undecided
applications and does not provide for nullification of lawfully rendered
decisions of visa officers. Parliament would have had to expressly provide for
such a result in the amended legislation.
[46]
The
Respondent concedes that subsection 87.4(5) does not preclude judicial review
of the Officer’s decision but argues that a remedy cannot be granted on review due
to the operation of section 87.4 of the IRPA. In my view, this position is
inconsistent and untenable. Judicial review necessarily involves the granting
of an appropriate remedy when a reviewable error is found in the rendering of a
decision. In my view, if Parliament wished to limit the remedies available on
judicial review in such cases, it would have to do so expressly in the
statutory scheme. Neither subsection 87.4(2) nor subsection 87.4(5) operate to
preclude a remedy on judicial review in circumstances where subsection 87.4(1)
does not apply.
VII. CONCLUSION
[47]
For
the above reasons, if find that the process that led to the Officer’s decision
was an unfair process which resulted in a breach of procedural fairness.
Consequently, the decision will be set aside and returned to a different visa
officer for reconsideration on a revised record to be perfected by the
Applicant. The Applicant will be afforded a reasonable delay to prepare and
submit his forms and documentation in support of his application.
[48]
Further,
the provisions of section 87.4 are not applicable in the particular
circumstances of this case.
VIII. CERTIFIED QUESTION
[49]
The
parties will be afforded an opportunity to raise a serious question of general
importance as contemplated by paragraph 74(d) of the Immigration and
Refugee Protection Act, SC 2001, c 27.
Written submissions on any question of
general importance to be raised shall be served and filed no later than
February 22, 2013. Responding submissions, if any, shall be served and filed no
later than February 27, 2013.
THIS COURT ORDERS that:
1. This application for judicial
review is granted.
2. The decision to refuse
Mr. Zhu’s application for permanent residence in the Federal Skilled Worker
class is set aside.
3. Mr.
Zhu’s application for permanent residence is to be perfected within a
reasonable delay and remitted to a different visa officer for reconsideration.
4. Written
submissions on any question of general importance to be raised shall be served
and filed no later than February 22, 2013. Responding submissions, if any,
shall be served and filed no later than February 27, 2013.
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