Docket:
IMM-1499-13
Citation:
2014 FC 434
Ottawa, Ontario, May 7,
2014
PRESENT: The
Honourable Mr. Justice de Montigny
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BETWEEN:
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RAJESH CHAWLA,
JYOTSNA RAJESH CHAWLA
DISHA RAJESH CHAWLA AND
DEV RAJESH CHAWLA
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Applicants
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 (IRPA), of a decision rendered by Catherine Marx (the Officer)
of the Immigration Section of the High Commission of Canada in New Delhi,
refusing the application for permanent residence of the Applicants for
misrepresentation under paragraph 40(1)(a) of the IRPA.
[2]
Based on the analysis set out below, this
application for judicial review is granted.
I.
Facts
[3]
Rajesh Chawla (the principal Applicant), a
citizen of India, applied in March 2010 to come to Canada as a skilled worker
and asserted that he had worked since 2003 as a cook at Sheetal Picnic Mini
Dhaba restaurant in Mumbai (the restaurant), an establishment owned by Rajesh
Mehra.
[4]
In view of the fact that the principal Applicant
had no training as a cook and the pay stub that he submitted did not match his
income tax statement, inquiries were made to verify his employment. A phone
call was placed to the restaurant using the phone number provided by the
Applicants’ consultant. A man named Mr. Naresh, who claimed to have been
working in the restaurant for nine years, answered the phone and informed the
Officer that no one by the name of Rajesh Chawla had ever worked there.
According to the Respondent, Mr. Naresh also explained that the restaurant had
changed location about three years ago, that the name of the proprietor was
Rajesh Mehra and that he was not there but would come in the evening, that
there were four other cooks working there but no one by the name of Rajesh
Chawla, and that the eatery offered only vegetarian food.
[5]
The principal Applicant was then put on notice
of the adverse information and provided with the opportunity to respond. The “fairness letter” sent to him did not provide the
details of the interview with Mr. Naresh, but merely stated: “Our investigation staff conducted a verification on this
restaurant in January 2012: Based on the information gathered during the
investigation it was reported to us that you have never worked at this
restaurant”.
[6]
The principal Applicant responded to that letter
on March 14, 2012. In his response, he indicated that he had been on leave for
two and a half months at the time of the investigation, and that there had been
a total change of staff during his absence. He also provided another letter
from Mr. Mehra, in which he re-confirmed that the principal Applicant had been
working for him since 2003. He also submitted receipts bearing his signature to
support his contention that he had worked for the restaurant.
[7]
On December 1, 2012, the Applicants’ application
for permanent residence was refused.
II.
Decision under review
[8]
In her letter to the principal Applicant, the
Officer essentially mentioned that the application for permanent residence was
rejected because he was inadmissible for misrepresentation under paragraph
40(1)(a) of the IRPA, having misrepresented his work experience
at the restaurant.
[9]
In the Computer Assisted Immigration Processing
System (CAIPS) notes, it was indicated that a phone call was made to the
restaurant and that a Mr. Naresh informed the Officer of the following:
(1) He is working with this eatery for about 9
years now
(2) This is a small eatery and was earlier
located in a shop in Gokul Galaxy, Thakur Complex, Kandivali (east) but
relocated to Vasant Smruti, Thakur Complex, Kandivali (E) about 3 years ago
(3) The name of the proprietor is Mr. Rajesh
Mehra and he is not in the eatery and will come in the evening
(4) There are 4 other cooks/ ‘boys’ working
in this eatery but NOBODY by the name of RAJESH CHAWLA (the Principal
Applicant) is or was working with them in the kitchen as a cook
(5) The eatery offers only vegetarian food and
no-non-vegetarian is served here.
[10]
The CAIPS notes also mention that “the information provided by Mr Naresh is consistent with the
information provided by the employer/consultant’s fax and that found on web
directories”. The notes also indicate that the principal Applicant’s
signature on the receipts provided does not match the one on his application. As
a result, the Officer decided to put more weight on Mr. Naresh’s allegations
since there was no reason for him not to tell the truth.
III.
Issues
[11]
This application for judicial review raises two
questions:
a)
Did the visa officer breach the principles of
fairness as a result of her failure to give more details in the fairness letter
with respect to the information collected during the further inquiry, thereby preventing
the principal Applicant from having an opportunity to respond to that
information?
b)
Is the Officer’s decision reasonable?
IV.
Analysis
[12]
It is well established that the standard of
review for a procedural fairness issue is correctness: Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at para
43; Ghasemzadeh v Canada (Minister of Citizenship and Immigration), 2010
FC 716 at para 16; Karami v Canada (Minister of Citizenship and Immigration),
2009 FC 788 at para 18.
[13]
As for the second question, it must be reviewed
under the standard of reasonableness. We are indeed facing a situation of mixed
fact and law and the discretionary power of the Officer to assess the evidence
before her. As a result, the Court will not intervene unless the decision does
not fall “within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law”: Dunsmuir v New Brunswick, 2008 SCC 9 at para 47.
[14]
It is well established that procedural fairness requires that applicants for permanent
residence be provided a meaningful opportunity to respond to perceived material
inconsistencies or credibility concerns with respect to their files: Qin v
Canada (Minister of Citizenship and Immigration), 2013 FC 147 at para 38; Abdi
v Canada (Attorney General), 2012 FC 642 at para 21; Zaib v Canada (Minister of
Citizenship and Immigration), 2010 FC 769 at para 17; Baybazarov v Canada (Minister of Citizenship and Immigration), 2010 FC 665 at para 17; Hussaini v Canada (Minister of Citizenship and Immigration), 2013 FC 289 at para 5 [Hussaini]).
This entails that an officer’s reliance on extrinsic evidence without allowing
an applicant the opportunity to know and reply to that evidence amounts to
procedural unfairness: Amin v Canada (Minister of Citizenship and
Immigration), 2013 FC 206.
[15]
Indeed, the
Respondent’s own guidelines provide as follows concerning extrinsic evidence:
The applicant must be made aware of the “case
to be met”, i.e., the information known by the officer must be made available
to the applicant prior to the decision being made. For example, if an officer
relies on extrinsic evidence (i.e., evidence received from sources other than
the applicant), they must give the applicant an opportunity to respond to such
evidence.
Overseas Processing Manual, Chapter OP-1: Procedures, s. 8 “Procedural fairness”
[16]
In the case at bar, the Applicants were provided
very little information as to the Officer’s concerns. Apart from stating that
an investigation was conducted and that, following this investigation, concerns
as to misrepresentation arose, the fairness letter does not provide any other
information. It is not stated what reasons led the Officer to conduct an
investigation, how the investigation was conducted, or what information
gathered during the investigation led to the conclusion that the principal Applicant
had misrepresented his employment.
[17]
Counsel for the Respondent submitted that the
Applicants were provided with sufficient information to participate in a
meaningful manner in the decision-making process and to fully and fairly
present their case. I disagree. Had the principal Applicant been told by the
Officer not only that she had some questions as to whether he ever worked in
the restaurant, but also that these concerns were the result of information
gathered from a phone call placed to the restaurant, he would have been in a
better position to assuage these concerns.
[18]
Of equal significance for the principal Applicant
were the various pieces of information provided by Mr. Naresh over the phone
(i.e. that the restaurant had relocated three years ago, that the name of the
proprietor is Mr. Rajesh Mehra, that there are four other cooks working in this
eatery, and that the eatery offers only vegetarian food). If the principal Applicant
had been told about this extrinsic evidence, he would have been able to dispute
those facts, thereby undermining the credibility of Mr. Naresh. Indeed, the
further affidavit filed by the Applicants for the purpose of this application
for judicial review asserts that Mr. Naresh provided the wrong number of
employees, the wrong date when the restaurant moved location and incorrectly
identified the restaurant as vegetarian. It is not for this Court to determine
who is telling the truth and whether or not Mr. Naresh provided accurate
information. The Officer may well have decided to prefer the information
provided by Mr. Naresh over the claims made by the Applicants even after having
considered the Applicants’ response to that information. However, this is pure
speculation and there is no way to know how the permanent residence application
would have been decided had the Applicants been provided with all the extrinsic
evidence collected by the Officer.
[19]
For all of the foregoing reasons, I am of the
view that the Applicants were not able to participate in a meaningful way to
the decision-making process, nor did they have an opportunity to respond to the
Officer’s concerns since they were kept in the dark about much of the
information upon which the Officer made her decision. This case is similar to
previous decisions of this Court, including Moiseev v Canada (Minister of Citizenship and Immigration), 2008 FC 88 and Hussaini, above.
I find, therefore, that there was a breach of procedural fairness and that the
file should be sent back to a different officer.
[20]
In light of this finding, there is no need to
answer the second question. While the decision may well have been reasonable
had the Applicants been given the opportunity to fully make their case, this is
not what happened here. As a result, the Court refrains from making any
determination in this respect.
[21]
There is one further argument made by the
Applicants that needs to be addressed. Counsel for the Applicants submitted
that the Officer should have interviewed the principal Applicant regarding the credibility
concerns after his telephone conversation with Mr. Naresh. There is no right to
an interview in such circumstances, and the case law cited by the Applicants in
support of their proposition goes no further than indicating that such a duty may
arise where the credibility, accuracy or genuine nature of the information
submitted by an applicant is the basis of a visa officer’s concern: see Ismailzada
v Canada (Minister of Citizenship and Immigration), 2013 FC 67 at para 20,
citing Hassani v Canada (Minister of Citizenship and Immigration), 2006
FC 1283 at para 24. The flexible nature of the duty of fairness recognizes that
meaningful participation can occur in different ways, in different situations.
As long as an applicant is provided with an opportunity to respond and present
his or her submissions, natural justice will be respected: Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para 33.
V.
Conclusion
[22]
This application for judicial review is allowed.
Neither party proposed a serious question of general importance for
certification purposes, and none is certified.
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