Docket:
IMM-5636-12
Citation: 2013 FC 828
Ottawa, Ontario, July 29, 2013
PRESENT: The Honourable Mr. Justice Phelan
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BETWEEN:
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ARMAGHAN ESHRAGHIAN
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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 JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This judicial review concerns the educational
qualifications of the Applicant in respect of her application for permanent
residence in the “federal skilled worker class”.
[2]
These proceedings also had to address the
Respondent’s attempt to introduce an affidavit from a Citizenship officer –
Lacasse – who was not the officer who denied the application.
II. BACKGROUND
[3]
The Applicant has a medical degree from an
Iranian university after studying for seven years. The medical degree is the
first degree that the Applicant obtained.
[4]
The Citizenship Officer [Officer] awarded the
Applicant 20 points out of a possible 25 points for the educational
component of her application. In total, the Applicant was 2 points short of the
required 67 points required to qualify under this class of permanent residence.
[5]
The Applicant’s evidence of educational
qualifications included a statement by the head of the Hormogozan University of
Medical Sciences indicating that the medical doctorate degree in Iran is at least equivalent to a Master’s degree “based on IRI Educational System”.
[6]
Had that statement been accepted by the Officer,
the Applicant would have been awarded 25 points – 3 points more than
required for admission.
[7]
The Officer’s conclusion with respect to this
evidence was:
The statement does
not evidence that the degree is from a school of graduate studies, nor provide
any basis for the conclusion of a Master’s degree equivalency. A statement of
equivalency without satisfactory supporting evidence does not change the points
awarded.
[8]
The Applicant raises two issues in this judicial
review:
(1) the breach of procedural fairness in not affording the
Applicant an opportunity to address the challenge to the statement of
equivalency; and
(2) the reasonableness of the decision in not awarding the
proper points for her education.
III. ANALYSIS
[9]
There is no issue that the standard of review
for the issue of breach of procedural fairness is correctness and that in respect
of the merits of the decision, reasonableness is the standard of review.
[10]
The Applicant relies on Justice Mosley’s
decision in Hassani v Canada (Minister of Citizenship and Immigration),
2006 FC 1283, [2007] 3 FCR 501, at paragraph 24, to assert that the Officer’s
rejection of the equivalency evidence was based on “credibility, accuracy or
genuine nature of information submitted” which therefore gives rise to the
right to a hearing to address concerns raised.
[I]t is clear that
where a concern arises directly from the requirements of the legislation or
related regulations, a visa officer will not be under a duty to provide an
opportunity for the applicant to address his or her concerns. Where however the
issue is not one that arises in this context, such a duty may arise. This is
often the case where the credibility, accuracy or genuine nature of information
submitted by the applicant in support of their application is the basis of the
visa officer’s concern, as was the case in Rukmangathan, and in John
v. Canada (Minister of Citizenship & Immigration) [2003 CarswellNat
1466 (Fed TD)] and Cornea v. Canada (Minister of Citizenship &
Immigration) [2003 CarswellNat 2433 (FC)] cited by the Court in Rukmangathan,
above.
[Emphasis by Applicant]
[11]
The Respondent’s position is that the issue was
one of sufficiency of evidence – that there was no satisfactory supporting
evidence for the statement of equivalency and thus no issue of procedural
fairness arises.
[12]
The Applicant also relies on the doctrine of
legitimate expectation arising from OP-6 – Overseas Processing Manual. OP-6
requires that officers assess programs of study and award points based on the
standards that exist in the country of study.
[13]
The Officer’s decision was not a violation of
the requirement to assess studies in the context of the local country.
Therefore, there is no issue of legitimate expectation raised in this case.
[14]
The Officer’s objection to the equivalency
evidence is that there was no supporting evidence. In effect, the statement by
the head of the university as to equivalency was not satisfactory. The Officer
does not say why it is unsatisfactory or what other evidence would be
satisfactory.
[15]
In short, the Applicant provided the evidence
listed in OP-6. The Officer sought to impose some further evidentiary
requirement than that found in OP-6.
[16]
If the Officer did not find the statement of
equivalency credible, the Applicant was entitled to notice and an opportunity
to address the concerns. If the Officer was exercising discretion to require
further evidence of equivalency beyond that provided in OP-6, again the
Applicant was entitled to notice and an opportunity to be heard.
[17]
In either event, basic fairness required that
the Applicant have an opportunity to address the Officer’s concerns about the
letter of equivalency. The Respondent has been unable to explain why fairness
does not dictate such a result.
[18]
As to the reasonableness of the decision, the
Officer provided no reasons for finding the equivalency letter inadequate.
There is no explanation of what the Officer viewed as supporting evidence.
Respondent’s counsel suggested that what was required was evidence from some
accrediting organization. If that is what the Officer sought, that is not
obvious from the decision.
[19]
It was unreasonable to reject the university
head’s equivalency statement or to impose some further evidentiary requirement
without providing some reasons for either.
[20]
Lastly, I turn to the issue of affidavit
evidence – particularly that of Lacasse.
[21]
In support of the Applicant’s procedural
fairness argument, the Applicant submitted an affidavit from her brother
purporting to show that had she been given an opportunity to be heard, there
was evidence to support the equivalency statement. Evidence for that purpose is
legitimate even though in this case not necessarily helpful. It was evidence
relevant to procedural fairness.
[22]
The Respondent replied by filing the Lacasse
affidavit. While it purported to answer the issues of procedural fairness, it
was nothing more than a guise under which Lacasse attempted to “bootstrap” the
Officer’s decision.
[23]
Lacasse was a more senior immigration officer
than the Officer who decided the application. Lacasse was not involved in the
application and based all her comments on her review of the file and her
experience with these types of situations in Iran.
[24]
The Lacasse affidavit elaborates on the reasons
given, redetermines the case (with the same result) and directly comments on
the merits of the decision. The following excerpts are representative of the
nature of the comments made by Lacasse:
Based on the
documents and information provided in the Application, I am satisfied that the
Applicant’s medical degree is equivalent to a first-level university
credential.
I am informed by
Balqees Mihirig, counsel for the Respondent, that the Applicant claims that her
medical degree should have been evaluated as equivalent to a Master’s degree.
The Applicant’s claim that her medical degree should be assessed at least as
equivalent to a Master’s degree is not supported by the evidence on file at the
time of assessment. There was no evidence that Bachelor’s degree was required
for entry into the program. There was no evidence that the Applicant’s degree
was awarded from a faculty of graduate studies. There was no evidence of any
graduate level courses or specializations obtained after the Applicant received
her medical degree.
In support of her
claim, the Applicant submitted a translated statement from the Superintendent
of Academic Management & Post-Graduate Studies at Hormozgan University stating that a medical degree is “evaluated at least equal to a Master’s Degree.”
Based on my knowledge
of the educational credentials in Iran and my experience as a visa officer, a
statement of equivalency without satisfactory supporting evidence is not
sufficient evidence of a Master’s degree. The statement provides no basis for
its conclusion that a medical degree is equivalent to a Master’s degree
(Lacasse Affidavit at paras 6-9).
[25]
The affidavit is a double-edged sword. While it
purports to address breach of procedural fairness, an outrageously inaccurate
suggestion, it also underscores what is wrong with the decision. It shows, in
some small way, what the Officer should have done.
[26]
The Respondent’s attempt to introduce this
evidence was improper. The case law of this Court is replete with decisions
admonishing parties for attempting to augment the “Record”. Justice Zinn’s
comment in Huang v Canada (Minister of Citizenship and Immigration),
2009 FC 135, 175 ACWS (3d) 846, is but one example.
18 As noted, the
respondent put in evidence an affidavit sworn December 15, 2008 by the visa
officer whose decision is under review. I concur with the observations of
Justice Gauthier in Jesurobo v. Canada (Minister of Citizenship &
Immigration), [2007] F.C.J. No. 1680 (F.C.), at paragraph 12, that the
respondent cannot rely on new evidence from the officer to change, explain or
add to the refusal letter and the CAIPS notes. It is an attempt by the officer
to pull himself up by his bootstraps where his CAIPS notes may be deficient or
too summary in nature. […]
[27]
There is an instance where the Respondent and
its counsel knew or ought to have known that affidavits of this type are not
only inadmissible but undermine the very process of judicial review. It was an
attempt to sway the Court on the merits of the decision.
[28]
Not only is the affidavit not admitted, this is
the type of case which justifies a cost award. The case law confirms that where
there are special reasons, costs may be awarded. Special reasons would include,
but in no way be limited to, situations where a party acted in an unfair,
oppressive or improper manner or acted in bad faith.
[29]
The Respondent’s behaviour on this issue was so
improper, so disingenuous that costs of $1,000 will be awarded. The Applicant
requested more but the costs of dealing with this issue is better reflected in
the $1,000 award. It is hoped that such tactics will not be repeated.
IV. CONCLUSION
[30]
For all these reasons, this judicial review will
be granted, the decision quashed and the matter referred immediately to a new
officer for a new determination.
[31]
There is no question for certification.
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