Docket:
IMM-11988-12
Citation: 2014 FC 176
Toronto, Ontario, February 26, 2014
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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PRABHJOT KAUR SIDHU
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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]
The Applicant seeks a judicial review, under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA], of a decision rendered by an Immigration Officer, dated
October 16, 2012, refusing to process the Applicant’s application for permanent
residence under the federal skilled worker class [PR application] on the basis
that the Applicant was inadmissible to Canada for misrepresentation under
paragraph 40(1)(a) of the IRPA.
II. Background
[2]
The Applicant, Mrs. Prabhjot Kaur Sidhu, is a
citizen of India, born in 1984. She is married and has an infant son.
[3]
The Applicant received a Master’s degree in
Science (Computer Technology) from Punjab University in 2008.
[4]
In the same year, the Applicant states that she
began working as a computer instructor for a tech company named Data Soft Tech
Software Solutions [Data Soft Tech]. At this time, the Applicant submitted a
first PR application. This application was rejected in 2010, on the basis that
she did not meet the minimum point requirement to qualify for immigration to Canada.
[5]
In May 2010, the Applicant submitted a second PR
application to the High Commission of Canada in New Delhi.
[6]
On June 19, 2012, the Officer sent the Applicant
a procedural fairness letter outlining a number of concerns he had in regard to
her employment, including:
a)
The Applicant and her colleague provided
contradictory information about her designation, job duties, project work
together, and her presence in the office on the day the Officer called her
workplace;
b)
The Applicant was constantly referring to papers
and her application form when answering questions during the Officer’s
telephone verification;
c)
The letterhead and address of Data Soft Tech on
the employment letter which the Applicant submitted in support of her second PR
application was different than that which was indicated on the employment
letter submitted in her first PR application, although both employment letters
were dated May 1, 2008.
[7]
In response to the procedural fairness letter,
the Applicant submitted several documents including a statutory declaration
from her colleague, Nitin Sharma, and the Director/Owner of Data Soft Tech,
Amritpal Singh, an updated employment letter and copies of the company’s
attendance register.
[8]
On October 16, 2012, the Officer rejected the
Applicant’s PR application on the basis that she was inadmissible to Canada for misrepresentation under paragraph 40(1)(a) of the IRPA which is
the underlying application before this Court.
III. Decision
under Review
[9]
The Officer's Global Case Management System
[GCMS] notes provide the reasons for the decision:
Misrepresentation
assessment: I have reviewed the documentation and information relating to Ms.
Prabhjot Kaur Sidhu’s employment which have been submitted as part of her
application for permanent residence in Canada. Due to concerns about the
genuineness of the applicant’s stated employment experience, a telephone
verification was undertaken on 19 May 2012 which raised significant concerns
about the applicant’s stated employment. A procedural fairness letter dated 19
June 2012 was sent to the applicant. A written response signed by the applicant
and with accompanying documents was received at the CHC on 11 July 2012. All
information on file relating to Ms. Sidhu’s employment was reviewed in
rendering this decision. In my opinion, on a balance of probabilities, the
applicant misrepresented her employment history by providing false information
about her employment as a computer instructor with Data Soft Tech. Following a
review of the information, I find it reasonable to conclude that Ms. Sidhu does
not have the experience claimed in her application. This information provided
in support of this application is material and could have led to an error in
the administration of the Act as it could have led an officer to be satisfied
that the applicant met the requirements of the Act with respect to [her]
employment history and work experience and the corresponding points that could
have been awarded. I am, therefore, of the opinion that the applicant is
inadmissible to Canada under section 40 of the Act. This application is
refused.
(Application
Record at p 9).
IV. Issues
[10]
(1) Did the Officer ignore evidence that
explained inconsistencies in the Applicant’s application?
(2)
Were the Officer’s reasons inadequate?
V. Relevant
Legislative Provisions
[11]
The following legislative provision of the IRPA
is relevant:
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Misrepresentation
40. (1) A permanent resident or a
foreign national is inadmissible for misrepresentation
(a)
for directly or indirectly misrepresenting or withholding material facts
relating to a relevant matter that induces or could induce an error in the
administration of this Act;
…
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Fausses déclarations
40. (1) Emportent interdiction de
territoire pour fausses déclarations les faits suivants :
a) directement ou indirectement, faire uneprésentation erronée sur
un fait important quant à un objet pertinent, ou une réticence sur ce fait,
ce qui entraîne ou risque d’entraîner une erreur dans l’application de la
présente loi;
[…]
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VI. Position of
the Parties
[12]
The Applicant submits that the Officer’s decision is
unreasonable because he failed to consider her explanations for the
inconsistencies in her application and did not provide any analysis of that
evidence, or indicate how it did or did not assuage his concerns.
[13]
The Applicant also submits that the Officer provided
inadequate reasons for his decision. In particular, the Applicant states that
the Officer failed to indicate the material facts she had misrepresented in her
application.
[14]
The Respondent asserts that the Applicant’s argument
that the Officer ignored evidence is unsupported. The Officer considered all of
the documentation submitted; however, this documentation did not satisfy the
Officer that the Applicant had the stated work experience. There were too many
discrepancies that remained unexplained.
[15]
The Respondent also submits that the Officer’s reasons
are adequate. The Officer considered all of the Applicant’s evidence, identified
concerns with the evidence and provided her an opportunity to address those
concerns. The Respondent maintains that the Officer’s refusal letter and GCMS
notes demonstrate why the application was refused. The decision therefore falls
within the range of possible and acceptable outcomes.
VII. Standard of Review
[16]
The standard of review to be applied when determining
whether an immigration officer made a reviewable error in concluding that an
applicant made a material misrepresentation pursuant to paragraph 40(1)(a)
of the IRPA is that of reasonableness (Goburdhun v Canada (Minister
of Citizenship and Immigration), 2013 FC 971; Oloumi v Canada (Minister
of Citizenship and Immigration), 2012 FC 428 at para 12).
[17]
The adequacy of reasons in such matters is also
considered in the context of the reasonableness (Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62, [2011] 3 S.C.R. 708 at para 22; Ahmed v Canada (Minister of Citizenship
and Immigration), 2013 FC 1083 at para 19-24).
[18]
In Newfoundland and Labrador Nurses’ Union, the
Supreme Court of Canada held that the adequacy of reasons is not a stand-alone
basis for quashing a decision. Rather, “the reasons must be read together with
the outcome and serve the purpose of showing whether the result falls within a
range of possible outcomes” (at para 14).
VIII. Analysis
[19]
Having carefully reviewed the decision, the Court
concludes that the reasons provided by the Officer are not adequate with
respect to the findings made under paragraph 40(1)(a) of the IRPA.
(For this reason, the Court does not find it necessary to reach a decision on
the first issue.)
[20]
The test of adequacy of reasons has been articulated by
this Court numerous times, including recently in Canada (Minister of Citizenship
and Immigration) v Jeizan, 2010 FC 323, 386 FTR 1:
[17] Reasons for
decisions are adequate when they are clear, precise and intelligible and when
they state why the decision was reached. Adequate reasons show a grasp of the
issues raised by the evidence, allow the individual to understand why the
decision was made and allow the reviewing court to assess the validity
of the decision: see Lake v. Canada (Minister of Justice), 2008 SCC
23, [2008] S.C.J. No. 23 at para. 46; Mehterian v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 545 (F.C.A.); VIA Rail
Canada Inc. v. National Transportation Agency, [2001] 2 F.C. 25 (F.C.A.),
[2001] 2 F.C. 25 (C.A.), at para. 22; Arastu, above, at paras. 35-36.
[Emphasis added.]
[21]
While there is no question that an officer's reasons
can be brief, they must serve the functions for which the duty to provide them
is imposed – they must inform the Applicant of the underlying rationale for the
decision (VIA Rail Canada Inc v National Transportation Agency, [2001] 2
FC 25 at para 21-22 (CA)).
[22]
Even when read in conjunction with the GCMS notes, the
Officer’s decision in this case does not provide sufficient explanation to
allow the Applicant, or the Court, to understand how and why he determined she
had misrepresented material facts. Neither the Officer’s refusal letter nor the
GCMS notes reflect any analysis on the perceived misrepresentation(s). In fact,
the Officer does not indicate whatsoever the nature or the extent of any
misrepresentation(s) in his decision.
[23]
A finding of inadmissibility for misrepresentation
under paragraph 40(1)(a) requires two factors to be present: there must
be a misrepresentation by the applicant and that misrepresentation must be
material in that it could have induced an error in the administration of the IRPA
(Bellido v Canada (Minister of Citizenship and Immigration), 2005 FC
452).
[24]
In reviewing the procedural fairness letter provided to
the Applicant on June 19, 2012, it appears that the Officer had some concern
regarding the legitimacy of the Applicant’s employment letter, inconsistencies
in the information provided regarding her workplace, and her need to repeatedly
refer to her documentation when answering questions; however, it is not clear
whether the Officer considered any of these concerns to be a material
misrepresentation, and if so, in what way. The Court cannot speculate on what
grounds the Officer determined that the Applicant had materially misrepresented
her employment.
[25]
In his reasons for decision, the Officer simply states
that “the Applicant misrepresented her employment history by providing false
information about her employment as a computer instructor with Data Soft
Tech” [emphasis added] (Application Record at p 9). This conclusion, without
any further reasoning, makes it impossible for the Court to conduct a
meaningful assessment of the Officer’s findings on misrepresentation (VIA
Rail, above). Consequently, the Court finds that this decision is flawed
and cannot stand.
[26]
As stated in Vancouver International Airport
Authority v Public Service Alliance of Canada, 2010 FCA 158, [2011] 4 FCR
425, if a supervising court is prevented from assessing whether a decision is
reasonable because too little information has been provided, the reasons are
inadequate (at para 16).
[27]
It may be that a different officer, after reviewing
all of the relevant evidence, will reach the same conclusion as this Officer;
there are a number of discrepancies and ambiguities in the Applicant’s
application; however, it is in the interest of justice that this matter be returned
for determination anew (de novo) in a manner that meets the basic
requirements of procedural fairness.
IX. Conclusion
[28]
For all of the above reasons, the Applicant’s
application for judicial review is granted.
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