Docket:
IMM-346-12
Citation:
2014 FC 410
Ottawa, Ontario, May 2,
2014
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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GURPREET KAUR VIRHIA
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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
[1]
This is an application for judicial review of
the decision of an Immigration Officer [the Officer] from the High Commission
of Canada, in New Delhi, India, pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act]. The Officer denied the
Applicant’s claim for permanent residence in Canada under the Federal Skilled
Worker class.
I.
Issues
[2]
The issues in the present application are as
follows:
A.
Was the Officer’s decision reasonable?
B.
Did the Officer breach the duty of procedural
fairness owed to the Applicant?
II.
Background
[3]
The Applicant is a citizen of India. On August 17, 2010, she applied for permanent residence in Canada under the Federal Skilled Worker class.
[4]
In her application, the Applicant claimed that her
accompanying spouse, Jagdeep Sing Khangura, has an aunt or uncle who resides in
Canada. In support of this claim, her application materials contain various
documents relating to an individual named either Rajwant Singh or Rajwant Khangura.
In particular, the Applicant submitted a photocopy of an Indian birth
certificate for Rajwant Singh which states his date of birth as May 12, 1961,
and a photocopy of a Canadian passport for Rajwant Khangura which states his
date of birth as May 16, 1961.
[5]
On May 22, 2012, the Officer wrote to the
Applicant, raising concerns about her application. In particular, the Officer
stated:
In assessing the eligibility you claim on the
application that your spouse has an aunt or uncle in Canada. Your documentation
shows that your spouse’s father is Lakhvir Singh born April 2, 1959, and that
he is the son of Gurbachan Singh and Surjit Kaur. You also included a school
certificate for a Rajwant Singh born on May 12, 1961, and a copy of the Biodata
page of a Canadian passport for a Rajwant Khangura born May 16, 1961. Based on
the documents submitted, I am not satisfied that Rajwant Singh and Rajwant
Khangura, who have different dates of birth, are one and the same person.
[6]
The Officer gave the Applicant 30 days to
address these concerns in advance of a final decision.
[7]
On June 21, 2012, the Applicant replied to the
Officer’s letter. This reply included an unsworn declaration from Rajwant
Khangura. Included in this declaration it is stated:
-Date of Birth on my school leaving certificate
and Indian Passport are same i.e.12/05/1961.
-There is a mistake of date of Birth on my
Passport printed as 16 MAY/Mai 61. This is a clerical mistake from the Passport
authority.
-Rajwant Singh and Rajwant Khangura are one and
same person.
[8]
On October 3, 2012, the Officer denied the
Applicant’s application for permanent residency under the Federal Skilled
Worker category. In so doing, the Officer found that the Applicant had no
relative in Canada, and awarded her no points under this category. In the decision,
the Officer noted:
I have reviewed the response you have provided
to our letter dated 22 May 2012, but the explanation that a clerical error was
made on your spouse’s relative’s date of birth on his Canadian passport, does
not appear reasonable, given the time he has spent in Canada, without asking
for a correction to be made, and the fact that his record does not contain any
note of this error.
[9]
The Global Case Management System notes
pertaining to the Officer’s decision provides further insight into the
Officer’s reasoning on this issue:
Reply received
that Rajwant Singh and Rajwant Khangura are one and the same person and that
the DOB on Canadian PPT is a clerical error. Yet, when searched on Foss, this
shown DOB of 16 May 1961 has been consistent since the shown entry into Canada in 1988 and is in line with shown Marriage (…). It does not appear reasonable that
this person has spent more than 20 years in Canada and never asked to correct
this “clerical mistake” in something as essential as his DOB. I am therefore
not satisfied that Rajwant Signh (sic) DOB 12 May 1961 and Rajwant Khangura DOB
16 May 1961 are the same person, and not satisfied that spouse of PA has a
qualifying relative in Canada.
[10]
Because the Applicant received no adaptability
points for having a relative in Canada, and her application otherwise failed to
meet the points threshold for being considered an “Instructor” in the Federal
Skilled Worker category, the Applicant’s application for permanent residency
was rejected.
III.
Standard of Review
[11]
The standard of review for the first issue is reasonableness
(Dunsmuir v New Brusnwick, 2008 SCC 9 at paras 45, 47-48, 53; Roohi v
Canada (Minister of Citizenship and Immigration), 2008 FC 1408 at paras
11-13, 33). The standard of review for the second issue is that of correctness
(Dunsmuir at para 129).
IV.
Analysis
[12]
The Applicant asserts that by not accepting the
Applicant’s explanation in her letter of June 21, 2012, the Officer erred.
Further, the Applicant argues that procedural fairness requires the Officer to
have given the Applicant an opportunity to discuss the credibility concerns
that arose from the explanation provided in her June 21, 2012 letter.
[13]
Notwithstanding the Applicant’s arguments, the
Officer noted the discrepancy in the birth dates in the evidence provided by
the Applicant of her relative in Canada, and found that it was implausible that
this mistake would remain uncorrected for such a long period of time. The
Officer provided an opportunity for the Applicant to address this issue in the
May 22, 2012 letter and was not satisfied with the explanation provided by the
Applicant in her June 21, 2012 letter. The Officer was under no further
obligation to solicit any additional explanations. As a result, the Officer was
left unconvinced that the Applicant had a relative in Canada. This was a reasonable conclusion and it is not the role of the court to re-weigh the
evidence which led to it.
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