Date:
20130620
Docket:
IMM-8471-12
Citation:
2013 FC 660
Ottawa, Ontario,
this 20th day of June 2013
Present: The
Honourable Mr. Justice Pinard
BETWEEN:
Mamdouh Issa Mamdouh ALBAJJALI
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (the “Act”) of a decision by
a visa officer (the “officer”) with the visa office at the Embassy of Canada in
Ankara, Turkey. In the decision, dated June 28, 2012, the officer refused the applicant’s
application for permanent residence under the Federal Skilled Worker class.
[2]
The
applicant is a 39-year-old citizen of Jordan who applied for a permanent
resident visa under the Federal Skilled Worker class. He indicated that he had
work experience as an electrician.
[3]
In
support of his application and to be awarded five points under the adaptability
factor, the applicant indicated that he had a maternal uncle living in Canada.
[4]
The
applicant submitted numerous documents related to the said relative’s status in
Canada, including the relative’s Canadian citizenship card and Canadian
passport. To establish the relative’s residency in Canada, the applicant also
submitted the relative’s Ontario driver’s license, some credit card and utility
bills and a letter from the relative’s lawyer regarding the purchase of a home
in Mount Albert, Ontario.
[5]
The
applicant provided two documents relating to his blood relation with the said
relative: the applicant’s own birth certificate and a travel document belonging
to the stated relative.
* * *
* * * * *
[6]
The
officer assessed the applicant’s points as follows:
Points
assessed Maximum Possible
Age 10 10
Education 20 25
Experience 21 21
Arranged employment
0 10
Official language proficiency 10 24
Adaptability
4 10
TOTAL 65 100
[7]
The
officer stated he was unable to award the applicant any points for having a
relative in Canada, pursuant to subsection 83(5) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the “Regulations”), as he was not
satisfied a blood relationship existed between the applicant and his stated
relative. The officer noted that the applicant had not provided birth
certificates for his mother and his stated relative in Canada.
[8]
The
officer provided more detail for the reasons for his decision in the Global
Case Management System notes. The officer noted that the applicant had provided
his birth certificate, which stated his mother’s name and his mother’s father’s
name, and that he had also provided a copy of what appeared to be his stated
relative’s travel document showing the relative’s mother’s name. However, the
officer found there was insufficient documentation to allow him to conclude
that there was indeed a blood relationship between the applicant and his stated
relative.
* * *
* * * * *
[9]
Section
83 of the
Regulations provides the following:
|
83. (1) A maximum of 10
points for adaptability shall be awarded to a skilled worker on the basis of
any combination of the following elements:
[…]
(d)
for being related to a person living in Canada who is described in subsection
(5), 5 points; and
[…]
(5)
For the purposes of paragraph (1)(d), a skilled worker shall be
awarded 5 points if
(a)
the skilled worker or the skilled worker’s accompanying spouse or
accompanying common-law partner is related by blood, marriage, common-law
partnership or adoption to a person who is a Canadian citizen or permanent
resident living in Canada and who is
[…]
(vi)
a child of the father or mother of their father or mother, other than their
father or mother,
|
83. (1) Un maximum de 10
points d’appréciation sont attribués au travailleur qualifié au titre de la
capacité d’adaptation pour toute combinaison des éléments ci-après, selon le
nombre indiqué :
[…]
d) pour la présence au
Canada de l’une ou l’autre des personnes visées au paragraphe (5), 5 points;
[…]
(5)
Pour l’application de l’alinéa (1)d), le travailleur qualifié obtient
5 points dans les cas suivants :
a) l’une des personnes
ci-après qui est un citoyen canadien ou un résident permanent et qui vit au
Canada lui est unie par les liens du sang ou de l’adoption ou par mariage ou
union de fait ou, dans le cas où il l’accompagne, est ainsi unie à son époux
ou conjoint de fait :
[…]
(vi)
un enfant de l’un des parents de l’un de leurs parents, autre que l’un de
leurs parents,
|
* * * *
* * * *
[10]
As
a preliminary issue, the respondent submits, in his written memorandum of
argument, that the evidence attached to the applicant’s immigration
consultant’s affidavit submitted in support of this application, namely copies
of a birth certificate and a marriage document, is fresh evidence that was not
before the visa officer. As such, the respondent states the evidence should not
be included as part of the record on judicial review.
[11]
The
applicant did not reply to this submission.
[12]
Upon
judicial review of an administrative decision, evidence that was not before the
decision-maker is only admissible in very limited circumstances (Alabadleh v
The Minister of Citizenship and Immigration, 2006 FC 716 at para 6). The
applicant has not asserted how the fresh evidence adduced in the present case
falls into the exceptional circumstances of being admissible. I therefore agree
with the respondent that the evidence is inadmissible.
[13]
The
only issue raised on the merits of the application is whether the officer
breached the duty of procedural fairness by not providing the applicant an
opportunity to submit additional evidence. This is an issue that should be
assessed on the correctness standard (Canada (Citizenship and
Immigration) v Khosa, [2009] 1 S.C.R. 339 at para 43; Veryamani v The Minister
of Citizenship and Immigration, 2010 FC 1268 at para 27).
* * *
* * * * *
[14]
It
is well established that an officer is under no duty to inform an applicant
about any concerns regarding his or her application that arise directly from
the requirements of the legislation or regulations and do not pertain to the
veracity of the documents (Hassani v Canada (Minister of Citizenship and
Immigration), [2007] 3 FCR 501 at paras 23 and 24; Uddin v The Minister
of Citizenship and Immigration, 2012 FC 1005 at para 38 [Uddin]).
[15]
As
Justice Luc Martineau states in the recent case of El Sherbiny v The
Minister of Citizenship and Immigration, 2013 FC 69, at paragraph 6:
[6] On one hand, an
applicant bears the onus of providing adequate and sufficient evidence in
support of his application, which means that the immigration officer is under
no obligation to request further clarification from an applicant if he or she
finds there is not enough evidence initially submitted. On the other hand,
where there is a question related to the credibility, accuracy, or genuineness
of the information an applicant has submitted, then the officer must give the
applicant the opportunity to respond to the officer’s concerns, but the
credibility issue must be determinative.
[16]
In
the previous case of Uddin, supra, Justice John O’Keefe also
states, at paragraph 38:
[38] … The onus is
always on the applicant to satisfy the officer of all parts of his application.
The officer is under no obligation to ask for additional information where the
applicant’s material is insufficient (see Sharma v Canada (Minister of Citizenship and Immigration), 2009 FC 786, [2009] FCJ No 910 at paragraph 8;
and Veryamani v Canada (Minister of Citizenship and Immigration), 2010
FC 1268, [2010] FCJ No 1668 at paragraph 36).
[17]
In
the case at bar, the officer reasonably found that the applicant had not
satisfied him that he had a blood relationship with his stated relative
pursuant to subsection 83(5). As the respondent underlines, the applicant only
provided two documents to establish his blood relationship with his stated
relative: his birth certificate showing his parent’s names and a travel
document belonging to his stated relative in Canada which showed his relative’s
mother’s name. Moreover, the applicant does not take issue with the officer’s
assessment that there was insufficient evidence to prove the applicant’s blood
relation with his uncle.
[18]
In
my view, as the officer’s concerns arose directly from the Regulations, he was
under no duty to inform the applicant that he had provided insufficient
information to establish a blood relationship with the stated relative.
[19]
The
applicant relies on Marr v The Minister of Citizenship and Immigration,
2011 FC 367 and Mansouri v The Minister of Citizenship and Immigration,
2012 FC 1242, but in both cases, the applicant sought reconsideration of a Federal
Skilled Worker application and submitted new evidence to confirm previously
disclosed facts shortly after a negative decision was issued. It was these
circumstances that the Court found gave rise to a duty to reconsider a negative
decision. In the case at bar, there is no evidence the applicant made a
reconsideration request accompanied by evidence to support his blood
relationship with his uncle. I therefore fail to see the analogy between the
present case and Marr or Mansouri.
* * *
* * * * *
[20]
For
these reasons, the application for judicial review is dismissed.
[21]
I
agree with the parties that this is not a matter for certification.
JUDGMENT
The application for
judicial review of the decision by a visa officer at the Embassy of Canada in Ankara, Turkey, dated June 28, 2012, is dismissed.
“Yvon Pinard”
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