Date:
20130731
Docket:
IMM-2763-12
Citation:
2013 FC 838
Ottawa, Ontario,
July 31, 2013
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
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FAN WU
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Applicant
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and
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THE MINISTER OF CITIZENSHIP &
IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a decision
by a case officer of Citizenship and Immigration Canada (the officer) dated
February 28, 2012, denying the applicant’s application for permanent residence
under the Canada Experience Class.
[2]
The applicant requests that the officer’s decision be set aside and the application be referred for
redetermination by a different officer.
Background
[3]
The
applicant is a citizen of China. She came to Canada as an international student
and was working in Canada on a post-graduate work permit at the time of her
application.
Officer’s Decision
[4]
In
a letter dated February 28, 2012, the officer informed the applicant that her
application had been rejected on the basis that the job duties in her letter of
reference were not contained in the duties listed under NOC 1112, Project
Analyst. Therefore, the officer was not satisfied she had obtained 12 months of
full-time work experience in an occupation with a NOC skill type of 0 or skill
level of A or B.
[5]
The
officer’s notes indicate he or she had also telephoned the applicant’s
employer:
According
to application, PA [the applicant] works as a Project Analyst (NOC 1112) for
Scotia Asset Management from 01AUG10 to present. However, on 28FEB12 at 14h00,
I spoke with Farah Khan who signed letter of reference for PA. She stated that PA
performed administrative duties and not project analysis duties. While involved
in reports, PA was not doing any programming or project development. As such, PA
does not meet job duties listed under NOC 1112. Duties in letter of reference
do not match NOC 1112.
Issues
[6]
The
applicant submits the following points at issue:
1. Did the officer
err at law by failing to properly assess the applicant’s occupational
experience as it related to her intended occupation in Canada, and further, breach the rules of procedural fairness by failing to provide the applicant
with a full opportunity to provide additional evidence and/or information
regarding the officer’s concerns?
[7]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the officer
violate procedural fairness?
3. Did the officer
err in refusing the application?
Applicant’s Written Submissions
[8]
The
applicant points out that the occupation title for NOC 1112 is “Financial
Analyst”, not “Project Analyst”. The applicant’s reference letter listed her
general responsibilities, but prefaced that description by stating the job was
not limited to the responsibilities enumerated in the letter.
[9]
The
applicant concedes the onus was on her to provide a well-documented
application, but the officer had an obligation to give the applicant an
opportunity to confront the officer’s concerns. There was non-disclosure to the
applicant of information concerning the basis on which the opinion was
rendered.
Respondent’s Written Submissions
[10]
The
respondent argues the reference to wrong occupation title is not determinative.
The proper NOC code number was referred to and this has no bearing on how the
officer assessed the application. The listed duties under NOC 1112 contrast
with those duties set out in the reference letter, which are administrative in
nature. This was confirmed by the applicant’s employer. An officer is under no
obligation to provide a running score of weaknesses in an application. The
applicant was responsible for putting her best foot forward in the application.
The onus was on the applicant and the officer’s decision was discretionary. It
was not a lack of specifics that concerned the officer, but the nature of the
work. The standard of review is reasonableness.
Analysis and Decision
[11]
Issue
1
What is the appropriate
standard of review?
Where previous jurisprudence
has determined the standard of review applicable to a particular issue before
the court, the reviewing court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph 57, [2008] 1 S.C.R. 190).
[12]
It
is trite law that the appropriate standard of review for issues of procedural
fairness is correctness (see Wang v Canada (Minister of Citizenship and
Immigration), 2008 FC 798 at paragraph 13, [2008] FCJ No 995 and Canada (Citizenship and Immigration) v
Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at
paragraph 43). No deference is owed to decision makers on these issues
(see Dunsmuir above, at paragraph 50).
[13]
Issue 2
Did the
officer violate procedural fairness?
The respondent
is correct that in a visa application, the onus is on the applicant to present
a well-documented application. The respondent is also correct that this is
generally done on the basis of a single submission by the applicant, instead of
a series of back-and-forth between the officer and the applicant (see Thandal
v Canada (Minister of Citizenship and Immigration), 2008 FC 489 at
paragraph 9, [2008] FCJ No 623). The duty of fairness required by visa officers
is at the low end of the spectrum (see Talpur v Canada (Minister of Citizenship
and Immigration), 2012 FC 25 at paragraph 21, [2012] FCJ No 22).
[14] This case, however, is unlike
those relied on by the respondent concerning an officer’s alleged failure to
give an applicant a chance to respond to concerns relating to his or her
application. Rather, this officer relied on information that was not in the
applicant’s submissions. The officer spoke to the applicant’s employer.
[15] Where an officer has access to
information of which the applicant is unaware, the applicant should be given an
opportunity to disabuse the officer of any concerns arising from that evidence
(see Xie v Canada (Minister of Citizenship and Immigration), 2012 FC
1239 at paragraph 20, [2012] FCJ No 1367). Neither the existence nor the
content of this call were disclosed to the applicant. Indeed, the officer’s
letter misleadingly omits any mention of the call, giving the applicant the
untrue impression her application had been decided solely based on the record
she submitted. It was only upon the disclosure of the certified tribunal record
in this proceeding that the applicant learned of the existence of the call and
the officer’s reliance upon it.
[16]
Given
that an applicant must decide whether to pursue the costly step of initiating
an application for judicial review before gaining access to the certified tribunal
record, I would encourage visa officers to be transparent with an applicant
about the reasons for refusing an application.
[17]
This
is a textbook example of a violation of the duty of fairness. I need not decide
the third issue. The application for judicial review is granted and the matter
should be returned to Citizenship and Immigration Canada for redetermination.
[18]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
allowed and the matter is referred to a different officer for redetermination.
“John A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration
and Refugee Protection Act,
SC 2001, c 27
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72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
(b) not
having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
97. (1) A
person in need of protection is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
(a) to
a danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to
a risk to their life or to a risk of cruel and unusual treatment or
punishment if
(i) the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
(ii) the
risk would be faced by the person in every part of that country and is not
faced generally by other individuals in or from that country,
(iii) the
risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
(iv) the
risk is not caused by the inability of that country to provide adequate
health or medical care.
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72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant avec raison d’être persécutée du fait de sa race, de sa religion,
de sa nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
a) soit
se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait
de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
b) soit,
si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle
avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut
y retourner.
97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
a) soit
au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b) soit
à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans le cas suivant :
(i) elle
ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle
y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv) la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
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