Docket: IMM-6759-14
Citation:
2015 FC 788
Ottawa, Ontario, June 24, 2015
PRESENT: The
Honourable Mr. Justice Gascon
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BETWEEN:
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ARASH NADERIKA
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Applicant
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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
I.
Introduction
[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 of an immigration officer [the Officer]
refusing Mr. Naderika’s application for permanent residence in Canada under the
Federal Skilled Worker [FSW] class [the Decision].
II.
Facts
[2]
Mr. Naderika is a citizen of Iran. In January
2010, he submitted a simplified application for permanent residence in Canada
under the FSW class and was thereafter instructed to submit a complete
application, which he did in or around June 2010.
[3]
In order to receive five extra points for
adaptability for being related to a person living in Canada, he included with
his application documents in respect of his wife’s uncle, including the uncle’s
citizenship card and excerpts from this relative’s utility and mobile phone
bills.
[4]
On December 14, 2011, his file was reviewed and
a preliminary selection decision was made, indicating that Mr. Naderika would
likely receive the five extra points for adaptability, if he provided updated
proof that his relative was still living in Canada, and that he would receive sufficient
points overall.
[5]
On January 15, 2014, the Warsaw visa office sent
an email to Mr. Naderika’s representative requesting a number of additional
documents, which were detailed in the email itself [the January 2014 request].
The documents requested included, among others, updated proof that Mr.
Naderika’s relative was currently residing in Canada.
[6]
The consultant acting on Mr. Naderika’s behalf responded
to the January 2014 request in a letter dated March 11, 2014 containing a
package of documents [the March 2014 letter] and stating: “[P]lease see attach of [sic] requested document [sic], forms
and Right of Permanente [sic] Residence Fee ($980).” The January 2014
request was attached to the consultant’s letter, along with the documents
provided on behalf of Mr. Naderika. The Warsaw visa office received the letter
and package of documents on March 14, 2014.
[7]
There is conflicting information as to whether
this package sent with the March 2014 letter included documentation pertaining
to Mr. Naderika’s relative, his wife’s uncle. Mr. Naderika relies on the
affidavit of his consultant, which states that the package included his wife’s
uncle’s property assessment and tax payment notices for 2014, pay cheque from
January 2014, excerpts from utility bills and bank statements showing
transactions in Canada. The Respondent, on the other hand, relies on the
affidavit of the Officer, which states that Mr. Naderika’s consultant did not
submit documents confirming his relative’s residency with the March 2014 letter.
The Global Case Management System [GCMS] notes dated April 8, 2014 and May 6, 2014
also indicate that these documents were not received by the Warsaw visa office.
III.
The Impugned Decision
[8]
On June 17, 2014, the Officer rejected Mr.
Naderika’s application on the basis that he had obtained only 63 of the 67
points required to qualify for immigration to Canada. In his decision letter,
the Officer wrote that he was not able to award Mr. Naderika any points under
the adaptability factor for having a relative in Canada because Mr. Naderika had
“failed to comply” with the visa office’s January
2014 request for updated proof of his or his spouse’s relative’s residency in
Canada. As such, the Officer was not satisfied that he or his spouse had a
relative residing in Canada.
[9]
That same day, after receiving the Officer’s refusal
letter, Mr. Naderika’s consultant sent an email to the Warsaw visa office indicating
that the documents providing updated proof of the relative’s residency in
Canada had been submitted with the March 2014 letter, and requesting
reconsideration. The consultant indicated in the correspondence that, had Mr.
Naderika received the five extra points he was entitled to for having a
relative in Canada, his total points would have been 68 and would have met the
requirements for permanent residence. The consultant further indicated that she
was re-sending the documents regarding Mr. Naderika’s relative that had already
been submitted in March 2014.
[10]
These documents were provided to the Warsaw visa
office the following day, on June 18, 2014, and included, along with the courier
slip for the delivery of the March 2014 package, the following materials from Mr.
Naderika’s relative: his 2014 property assessment notice, an excerpt from his January
2014 utility bill, an excerpt from the relative’s January-February 2014 toll
bridge bill, bank records showing transactions in Canada, and a property tax
payment change notice.
[11]
On June 18, 2014, the Officer sent an email
advising Mr. Naderika that he had decided not to exercise his discretion to
re-open his case as he found there were insufficient grounds to do so. The
Officer noted that no updated information regarding Mr. Naderika’s relative’s
residency in Canada had been received prior to the June 17, 2014 decision and
the application had been considered on its substantive merits based on the
information in the file at the time of the decision. The Officer specified in
an affidavit that he had reviewed Mr. Naderika’s “request
for reconsideration but found that a different decision was not warranted”.
[12]
After numerous unsuccessful requests to have his
application reconsidered, Mr. Naderika applied to this Court for leave and
judicial review, following the receipt of a final email from the Warsaw visa
office, on August 18, 2014, confirming that there were insufficient grounds to
reopen the case given the absence of updated information on Mr. Naderika’s
relative’s residency in Canada.
IV.
Issues
[13]
This application for judicial review raises two
questions:
1. Whether the Officer breached his duty of procedural fairness by
failing to give Mr. Naderika an opportunity to address his concerns regarding
the lack of proof of his relative’s residency before making a final decision.
- Whether the
Officer erred by refusing to grant Mr. Naderika’s request for
reconsideration of his application.
V.
Standard of Review
[14]
The question of whether there was a breach of
procedural fairness is reviewable on a standard of correctness and, as a
result, the decision-maker is owed no deference (Singh v Canada (Citizenship
and Immigration), 2012 FC 855, at para 24; Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12, at para 43 [Khosa]; Mission
Institution v Khela, 2014 SCC 24, at para 79; Talpur v Canada
(Citizenship and Immigration), 2012 FC 25 at para 20 [Talpur]).
While no deference is owed to officers on this issue, the content of the duty
of procedural fairness is flexible and may differ with the context.
[15]
As to the Officer’s decision not to reconsider Mr.
Naderika’s application, there are two standards of review at play. Whether the
Officer fettered his discretion is a procedural fairness issue and is
reviewable on a standard of correctness (Ali v Canada (Citizenship and
Immigration), 2013 FC 879, at para 13 [Ali]; Khosa, at para
43). The decision itself, however, is reviewable on a standard of
reasonableness (Talpur, at para 19; Ali, at para 14; Dunsmuir
v New Brunswick, 2008 SCC 9, at paras 47, 53).
VI.
Analysis
A.
Did the Officer err by failing to give Mr.
Naderika an opportunity to address the concerns regarding the lack of proof of
his relative’s residency?
[16]
The determinative issue in the present case is
whether the Officer breached procedural fairness by failing to provide Mr.
Naderika with an opportunity to provide the documents relating to his
relative’s residency in Canada once the Officer realized that these documents
were missing from the package of documents provided with the March 2014 letter by
Mr. Naderika’s consultant.
[17]
Mr. Naderika
submits that the Officer erred by failing to follow up with him on the missing
documents since the March 2014 letter specifically attached the January 2014 request
sent by the Warsaw visa office, which itself referred to the need to produce
residency documents from Mr. Naderika’s relative and listed the type of
documents to be provided in that respect. This was clearly evidence relevant to
the assessment of Mr. Naderika’s application as the Officer found that, without
it, Mr. Naderika would not meet the residency requirements. In addition, Mr.
Naderika had already provided, with his initial application, evidence of such
relative’s residence in Canada at the time. The purpose of the January 2014
request was simply to update such information.
[18]
The Respondent essentially argues that the onus
is on Mr. Naderika to submit the necessary evidence in support of his
application. The Officer gave Mr. Naderika an opportunity to provide a list of
requested documents once, and he did not have an obligation to do so again.
According to the Officer, the documents on Mr. Naderika’s relative’s residency
in Canada were missing from the response sent by his consultant on March 11,
2014.
[19]
As indicated above, there is contradictory
evidence in this case with respect to the missing documents regarding Mr.
Naderika’s relative. Mr. Naderika and his consultant affirm that the documents
were submitted to the Warsaw visa office with the March 2014 letter, while the
Officer affirms that they were not.
[20]
It is true that procedural fairness requires
that an applicant be provided with a meaningful opportunity to present the
various types of evidence relevant to his or her case and to have it fully
considered (Baker v Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817, at para 28). However, in the context of a visa application,
the duty of fairness does not require a visa officer to inform an applicant of
concerns arising directly from the requirements of the legislation or
regulations and to give the applicant an opportunity to disabuse him or her of
those concerns (Talpur, at para 21; Prasad v Canada (Minister of
Citizenship and Immigration), [1996] FCJ No 453, at para 7, 34 Imm LR (2d)
(FCTD)).
[21]
The Officer’s concern in this case regarding the
missing documentation arose directly from paragraph 83(1)(d) of the Immigration
and Refugee Protection Regulations, SOR 2002-227 [the Regulations],
which states:
83. (1) A maximum of 10 points for adaptability shall be
awarded to a skilled worker on the basis of any combination of the following
elements:
[…]
(d) for being related to, or for having an accompanying spouse or
accompanying common-law partner who is related to, a person living in Canada
who is described in subsection (5), 5 points; […]
[22]
As the Officer’s concerns arose directly from
the Regulations, I am of the view that the Officer did not have an obligation
to inform Mr. Naderika that he had not received these documents. I am mindful
of the fact that the March 2014 letter sent by Mr. Naderika’s consultant specifically
attached the initial January 2014 request from the Warsaw visa office and
referred to it with respect to the documents attached to the response. I
believe it could indeed be reasonably inferred from the response that the
consultant intended to attach the updated documentation relating to the
residency in Canada of Mr. Naderika’s relative. In fact, as soon as the
consultant received the June 17, 2014 letter from the Officer denying Mr.
Naderika’s application, she was able, within a day or so, to send the missing
documents to the visa office as she arguably had them in his file relating to Mr.
Naderika.
[23]
However, I note that the March 2014 letter did
not specifically state that the package provided included the specific documentation
relating to Mr. Naderika’s relative, nor did it list the exact documents being
provided; it only referred to the January 2014 request from the visa office, which
contained a relatively long standard list of documents to be provided by the
applicant, among which were the general type of documents relating to the
Canadian residency requirements for Mr. Naderika’s relative.
[24]
It is not a situation where, as in Miller v
Canada (Minister of Citizenship and Immigration), 2015 FC 371 [Miller],
a visa officer was not alert to the fact that an applicant specifically
mentioned in his letter that a particular document was attached and where,
absent a notification from the officer, the applicant would have had no way of
knowing that it was not. Here, the consultant did not specifically list or
refer in her March 2014 letter to the actual documents being provided in relation
to the relative’s Canadian residency; she simply attached the January 2014
request from the visa office.
[25]
While the situation is close to what was encountered
in Miller, it is nonetheless different and it was not possible for the
Officer to precisely identify which documents had not been provided by Mr.
Naderika’s consultant with the March 2014 letter. In the particular circumstances
of this case, I do not find that the Officer breached his duty of procedural
fairness.
B.
Did the Officer err by refusing to grant Mr.
Naderika’s request for reconsideration?
[26]
Mr. Naderika submits that the Officer fettered his
discretion by failing to properly consider his application for reconsideration,
including the “new” evidence on his relative’s
residency in Canada. Furthermore, Mr. Naderika asserts that the Officer’s decision
to refuse the request for reconsideration was unreasonable as the Officer failed
to exercise his discretion in a practical and reasonably fair manner.
[27]
The Respondent suggests that the Officer did exercise
his discretion to reconsider but reasonably found that a different decision was
not warranted. Given that Mr. Naderika was required to provide certain documents,
that ample time was provided for him to do so, and that he has not proven that
the Officer had received these documents by the time he made his decision on June
17, 2014, the Respondent claims that Mr. Naderika has failed to show any error
in the Officer’s refusal to give a positive decision upon reconsideration. The
Respondent submits that the Officer’s decision was therefore reasonable.
[28]
As a preliminary matter, I note that, while Mr.
Naderika filed this application for leave and judicial review in respect of the
initial refusal decision of the Officer dated June 17, 2014, he has also made
submissions in respect of the Officer’s refusal to reconsider that decision,
which refusal was confirmed by the Officer on June 18, 2014 and later in August
by the Warsaw visa office. The Respondent has not objected to this or argued
that Mr. Naderika should have filed a separate judicial review.
[29]
In any event, I am satisfied that the interests
of justice demand that the Court reviews the determination on the reconsideration
request as part of the judicial review of the initial decision refusing Mr.
Naderika’s application for permanent residence (Marr v Canada (Citizenship
and Immigration), 2011 FC 367, at para 56 [Marr]; Thangappan v
Canada (Citizenship and Immigration), 2012 FC 1266, at para 3). The refusal
to reconsider refers to the same decision, is part of the same immigration file
and was issued before Mr. Naderika filed his application for judicial review.
Further, the evidence placed before the Officer conclusively answered the
concern that had led to the initial decision. As such, no useful purpose would
be served by requiring Mr. Naderika to file a separate application for judicial
review and to bifurcate the proceedings, and it would be contrary to the interests
of justice to do so.
[30]
While there is no obligation on an immigration
officer to reconsider an application for permanent residence, the case law is
clear that, on the basis of fairness and common sense, a visa officer should
reconsider a file if, within days of a negative decision of an application that
has been outstanding for a number of years, new evidence that confirms a
material fact is presented (Marr, at para 57; Mansouri v Canada (Citizenship
and Immigration), 2012 FC 1242, at para 8 [Mansouri]; Ali,
at paras 21-23).
[31]
In Mansouri, the applicant had received
63 of the required 67 points on her FSW application on the grounds that there
were no documents substantiating her relative’s residency in Canada. Within
three days of the negative decision, her consultant submitted the necessary
documents and requested reconsideration, but the visa officer refused this
request on the basis that the initial decision had been made in a fair manner.
Justice Phelan found that in doing so, the officer had construed her discretion
too narrowly:
10. [...]
There may be good reason, including (but in no way limited to) fairness to more
diligent applicants or efficiency and effectiveness of the system which could
be relevant in deciding not to reconsider an original decision but none were
stated here.
11. A visa
officer need not write a treatise on fairness to justify a refusal to re-open
but here the Visa Officer viewed her discretion to be too narrow.
[32]
Similarly, in Ali, the officer had refused
to re-open the application on the grounds that the new evidence submitted with
the reconsideration request was not in the file at the time the initial
decision was made. It is worth citing at length the reasoning of Justice Manson
in that decision, who found the refusal to be unreasonable in the circumstances
of the case:
21. While the
Reconsideration Officer can exercise the discretion delegated to her and choose
not to reconsider the application, that discretion should be exercised with a
practical and reasonably fair approach.
22. Reason to
do so has been articulated by Justice Russell Zinn in Marr v Canada
(Minister of Citizenship and Immigration), 2011 FC 367 at para 57:
Basic fairness and common sense
suggest that if a visa officer, within days of rendering a negative decision on
an application that has been outstanding for many years, receives a document
confirming information already before the officer that materially affects the
result of the application, then he or she should exercise his or her discretion
to reconsider the decision. Nothing is served by requiring an applicant to
start the process over and again wait years for a result when the application
and the evidence is fresh in the officer's mind and where the applicant is not
attempting to adduce new facts that had not been previously disclosed.
23. Justice
Michael L. Phelan endorsed this approach in Mansouri, above, at para 8.
24. The
Respondent argues there is no general duty to reconsider an application based
on new information and that the PA's "duty to put his best foot
forward" in the initial application should prevail. While I agree with the
Respondent's position that it is within a visa officer's discretion to
reconsider an application for permanent residency, and that such a decision
should generally be accorded deference, there is in this case no apparent
reasonable justification for the PA's request to be refused.
25. The
documentation now provided by the PA appears to allow him to reach a score of
67 on his skilled worker score. It would be unreasonable to require him to
start the process anew. While efficiency of the immigration process is a
reasonable justification for refusing a reconsideration request, efficiency is
not served by refusing this request.
26. As a
result, this decision lacked common sense, practicality, and basic fairness,
extrinsic criteria which have been found to be components of reasonableness in
the immigration context in both Mansouri and Marr.
[33]
The facts in the present case are even more
patent that in the Marr, Mansouri and Ali cases. In this
case, as soon as Mr. Naderika’s application was refused, his consultant
immediately sent an email to the Officer, on the very same day, and provided
the Officer the following day with a copy of the documents that answered the concerns
on the updated evidence needed with respect to the residency in Canada of Mr.
Naderika’s relative. This response included numerous documents relating to the
relative’s residency which were evidently in the consultant’s possession given
how quickly they were provided to the visa office. The documentation provided
appears to allow Mr. Naderika to reach the score needed to meet the
requirements under his FSW class application.
[34]
This is not a case where, as in Mansouri,
“it was a close call” due to the fact that the
applicant had taken varying positions vis-à-vis the visa office. Furthermore,
this is a case where Mr. Naderika had already provided proof of his relative’s
residency in Canada in his initial application, where the needed evidence was
an update, and where the required documentation was provided within one day of
the June 17, 2014 decision following what appears to be a misunderstanding on
the contents of the documents received by the Warsaw visa office in March 2014
following the January 2014 request.
[35]
The updated evidence on Mr. Naderika’s relative,
even if it was considered as new evidence that was not before the Officer at
the time the initial decision was made, conclusively answered the concern that
had led to the June 17, 2014 decision to deny Mr. Naderika’s application. To
echo what Justice Manson found in Ali, I see no apparent reasonable
justification in this case for the refusal of Mr. Naderika’s request for
reconsideration. The documentation provided appears to be sufficient to allow Mr.
Naderika to reach the required number of points, and neither efficiency nor
practicality would be served by requiring Mr. Naderika to restart the process
at that point, more than four years after he submitted his initial application.
[36]
For all these reasons, and in the circumstances
of this case, I find that the decision of the Officer not to reconsider Mr.
Naderika’s application does not fall “within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law” and is unreasonable (Dunsmuir v New Brunswick, 2008 SCC 9,
at paras 47, 53). As in Ali, the decision lacked common sense,
practicality, and basic fairness, all of which have been found to be components
of reasonableness.
[37]
Given my conclusion that the Officer’s decision
was unreasonable, it is unnecessary for me to decide the issue of whether the
Officer fettered his discretion by failing to consider Mr. Naderika’s
application for reconsideration. However, even if I had looked at this matter
as a fettering by the Officer of his discretion to properly consider Mr.
Naderika’s application, I would have reached a similar conclusion and found
that the Officer had the ability to consider the “new”
evidence provided by Mr. Naderika’s consultant on June 18, 2014 (Marr,
at para 54). A decision that is the result of fettered discretion is per se
unreasonable (Stemijon Investments Ltd v Canada (Attorney General), 2011
FCA 299, at paras 20-24, 341 DLR (4th) 710)).
VII.
Conclusion
[38]
For these reasons, I find that the Officer’s
decision to refuse the request for reconsideration was unreasonable in the
circumstances. The Officer viewed his discretion too narrowly by refusing the
request on the sole basis that Mr. Naderika’s application had been considered
on its substantive merits based on the information in the file at the time of
the June 17, 2014 decision.
[39]
Neither party has proposed a serious question of
general importance for certification, and I agree there is none (Canada
(Minister of Citizenship and Immigration) v Liyanagamage, [1994] FCJ No
1637, at para 4).
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