Docket: IMM-2190-15
Citation:
2015 FC 1373
Edmonton, Alberta, December 9, 2015
PRESENT: The
Honourable Mr. Justice Campbell
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BETWEEN:
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FARHAN SARDAR
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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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JUDGMENT AND REASONS
[1]
By the present Application, the Applicant, a
citizen of Pakistan, challenges the
March 16, 2015 decision of a Visa Officer (Officer) refusing his application
for permanent residence. The process leading to the refusal is as follows: in
April 2010 the Applicant’s sister, a resident of Alberta, acting as the
Applicant’s sponsor, submitted an application to the Alberta Immigrant Nominee
Program (AINP) under what was then the provincial Family Stream; Alberta
approved the application on July 3, 2012; and, as a result, the Applicant’s
sister submitted the Applicant’s application for permanent residence to the
Respondent under the Provincial Nominee Category.
[2]
Despite Alberta’s approval, the Officer refused
to grant permanent residence to the Applicant on an exercise of s. 87(3) of the
Immigration and Refugee Protection Regulations, SOR/2002-227:
If the fact that the foreign national is
named in a certificate referred to in paragraph (2)(a) [Alberta’s approval] is
not a sufficient indicator of whether they may become economically established
in Canada and an officer has consulted the government that issued the
certificate, the officer may substitute for the criteria set out in subsection
(2) their evaluation of the likelihood of the ability of the foreign national
to become economically established in Canada.
In the decision
under review, the Officer provided the following statement:
I am not satisfied that the fact that you
are named in a certificate issued by Alberta is a sufficient indicator that you
are likely to become economically established in Canada. I have reached this
conclusion because I am not satisfied that you have the language skills or
experience in order to become economically established in Canada.
[3]
It is agreed that the Officer’s computerized
notes entered February 4, 2015 constitute the reasons for the refusal. Counsel
for the Applicant relies upon the following passage from the notes to argue
that that the Officer unfairly addressed the evidence that the Applicant
submitted in support of his permanent residence application:
Rep also notes that PA has 5 job offers:
-job offer ltr (05May13 & copy dated 05Jan14) fr Maharaja Sweets,
Restaurant Catering, Banquet & Conference Centre for p/t
bookkeeper/accounting clerk. The prospective employer, Naxia Chaudhry, is PA’s
sister, -another job offer ltr (undated) fr Maharaja Sweets for “supervisor of
our hall.” Offer states training to be provided & “fluency in English is
not required” because “Majority of our customers are from Indians [sic] and
Pakistan.” Offer also states “Fluency in Urdu and Punjabi will be an asset to
us, as there are many new immigrant families that are becoming our customers.”
-job offer ltr (undated) fr Spice Centre in Edmonton for asst store mgr. Offer
states training to be provided & “fluency in English is not required”
because “Majority of our customers are from India and Pakistan.” Offer also
states “Fluency in Urdu and Punjabi will be an asset to us, as there are many
new immigrant families that are becoming our customers.” –job offer ltr
(10Oct14) fr Whitemud Esso for asst store mgr. Offer states “For this job we
need only minimum English Language requirement. We know your’s [sic] ability to
communicate in English is not very good. That’s why you have offered this job
for General work that requires very minimum English Language.” –job offer ltr
(03May13) fr Millwoods Suzuki for customer services rep already noted
previously. Job offers do not appear credible. Three are fr PA’s
sister & appear self-serving & the others indicate that PA wld
require training, thereby acknowledging that he does not have required skills
& exp. Offers also acknowledge that PA’s English is poor but indicate it to
not be an issue, which does not appear credible in a community where the
vast majority of people have knowledge of only English, according to most
recent census data. The same wording appearing in both the job offer fr
Spice Centre and PA’s sister’s company also appear to indicate a connection
for facilitating PA’s PR appl’n rather than genuine empl prospects for PA.
Even if the job offers are genuine, PA has not demonstrated having the skills
to be able to perform them. Nominating province continues to support appl’n,
stating that PA met AB’s eligibility criteria for nomination. Note that PA’s
relatives’ willingness and capacity to support him do not demonstrate his
ability to become economically established, and nor does PA’s possession of
financial resources.
[Emphasis added]
[4]
Counsel for the Applicant’s detailed argument
is as follows:
Regarding the bona fides of various
job offers, the fact remains that the visa officer accepted the personal
credibility of the applicant as conceded by the crown at paragraph 25 of its
argument. Once the officer accepted to credibility of the applicant it was
illogical to question the credibility of potential employers. To the extent
that potential employers were his sponsor and family members, the offers were
entirely legitimate and consistent with the goals of the Family Stream of the
AINP. The Province reasonably expected family members to support applicants in
becoming economically established. In this case his family members have
businesses in Canada and were able to provide him employment as well as other
support. There was and remains nothing nefarious in the job offers.
Further, if the visa officer had had further
issues about the job offers, then he had a duty to put those squarely to the
applicant in an interview, or otherwise ask counsel.
(Reply Argument, July 31, 2015, paras 10 and
11)
[5]
It is clear from the reasons that the Officer
formed a suspicion that the job offers were not bona fide, and, as a
result, excluded cogent evidence in support of the likelihood of the
Applicant’s ability to become economically established in Canada. I find that,
in fairness, once the suspicion arose, the Officer owed a duty of fairness to
the Applicant to make further concerted inquiries of the persons making the job
offers, to either confirm the suspicion or negate the suspicion. Since the
Officer made no effort to do so, I find that the decision under review was
rendered in breach of a duty of fairness owed to the Applicant.
[6]
As the successful party, the Applicant requests
a costs order in his favour. In immigration matters, Rule 22 of the Federal
Courts Citizenship, Immigration and Refugee Protection Rules SOR/93-22
imposes a restriction on judicial discretion to only allow a costs award to be
made where “special reasons” exist. The Applicant provides three reasons in
support of a costs award: delay in processing the Applicant’s application due
to the Respondent’s intervention into the decision-making process after
Alberta’s approval had already been given; the Respondent’s conduct in taking
the present Application to hearing rather than consenting to an order setting
aside the decision; and inability to pay the costs of advancing the present
Application to its successful conclusion.
[7]
I cannot find that any of the Applicant’s
reasons for requesting a costs award constitute “special reasons”. The
Respondent had a right to intervene in the decision-making process and there is
no evidence that the intervention caused an inordinate delay; the outcome of
the present Application was certainly arguable from both the Applicant’s and
the Respondent’s perspective; and, even though it does produce a hardship for
the Applicant to pay his own costs of advancing the present Application to its
successful conclusion, Rule 22 permits this hardship to arise.
JUDGMENT
THIS COURT’S JUDGMENT is that:
For the reasons provided, the decision under review is
set aside and the matter is referred back for redetermination by a different
decision-maker on the following directions:
1.
Should an issue arise regarding the bona fides
of a job offer, the decision-maker shall provide the person making the job
offer an opportunity to be interviewed, either in person, by teleconference, or
by videoconference, in the presence of a representative of the Applicant; and
2.
Should an interview be conducted, the interview
shall be recorded and a transcript of the interview shall be made available on
the Tribunal Record.
There is no question to certify.
“Douglas R. Campbell”
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