Docket: IMM-6022-14
Citation:
2015 FC 811
Ottawa, Ontario, June 30, 2015
PRESENT: The
Honourable Mr. Justice Gascon
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BETWEEN:
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DEEPIKA
SAMANTHI WIJAYANSINGHE
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UTHUWAN
PATHIRANNAHELAGE
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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 a visa officer [the Officer] dated May
29, 2014 refusing Ms. Pathirannahelage’s application for permanent residence in
Canada under the Federal Skilled Worker [FSW] class [the Decision].
[2]
Ms. Pathirannahelage alleges that, in rendering
his Decision, the Officer breached the principles of natural justice by failing
to properly advise her that he was contemplating making a “negative substituted evaluation” in her case, and
that such evaluation of her application was unreasonable.
[3]
For the reasons detailed hereafter, the
application for judicial review is dismissed.
II.
Facts
[4]
The applicant Ms. Pathirannahelage is a
physiotherapist from Sri Lanka who has been working for the Ministry of Health
in Sri Lanka since January 2005. On August 24, 2013, Ms. Pathirannahelage
applies for permanent residence in Canada under the FSW category at the
Canadian immigration office in Colombo, Sri Lanka, and she hires an immigration
consultant to assist her with the application. She provides the consultant’s
mailing address and email address as part of her contact information.
[5]
According to the Officer’s notes in the Global
Case Management System [GCMS], a visa officer in the Colombo office reviews Ms.
Pathirannahelage’s file on December 2, 2013, noting that she appears to meet
the minimum requirements for work experience, language, and education.
Following a letter requesting Ms. Pathirannahelage to attend an interview in
order to assess her compliance with the eligibility and admissibility
requirements for immigration to Canada, an interview is held with her on March
10, 2014.
[6]
There is some contradictory evidence as to what
exactly is discussed at this interview. Ms. Pathirannahelage states in her
affidavit that the Officer does not tell her at the time that he is considering
a negative substituted evaluation of her case. According to the Officer’s
notes, however, Ms. Pathirannahelage is interviewed at length with respect to
her work experience and on the fact that she does not have the educational
requirements for the occupation of physiotherapist in Canada. The Officer also
expresses his concerns about Ms. Pathirannahelage’s ability to become
economically established in Canada, as Ms. Pathirannahelage says in the
interview that she has not done any research about Canada except for the fact
that her consultant has mentioned that Saskatoon offers opportunities and that
it is not too cold. The Officer also observes that Ms. Pathirannahelage has
several friends in Canada but has not drawn on those resources.
[7]
The Officer’s notes conclude that, even though
Ms. Pathirannahelage may meet the experience component of the FSW eligibility
criteria, he is not satisfied that, absent the minimum educational
requirements, she will be able to successfully establish in Canada. The Officer
thus decides to allow Ms. Pathirannahelage to address these concerns in
writing.
[8]
A letter [the procedural fairness letter] is
sent by the Officer on March 13, 2014, informing Ms. Pathirannahelage that he
is not satisfied about her ability to become economically established in
Canada. In the letter, the Officer notes in particular that Ms.
Pathirannahelage has done very little research into her settlement and
employment prospects, and that a physiotherapist requires a degree in
physiotherapy as well as a license or registration with a regulatory body in
order to be able to practice. The Officer therefore requests a settlement plan
and proof that Ms. Pathirannahelage will be able to overcome the lack of
relevant degree and licensing/registration requirements. The procedural
fairness letter further informs Ms. Pathirannahelage that the Officer can
substitute his evaluation of her likely ability to become economically
established in Canada if the number of points awarded under the FSW class is
considered not to be a sufficient indicator of such ability.
[9]
The letter gives Ms. Pathirannahelage 30 days to
submit additional information, warning that failure to respond will result in
her application being assessed on the information currently on file and may
lead to a refusal of the application. Ms. Pathirannahelage states in her affidavit
that neither she nor her immigration consultant ever received this procedural
fairness letter, neither by post nor by email. In his affidavit, the Officer
says it was sent to the address provided by Ms. Pathirannahelage in her
application.
[10]
On April 17, 2014, the Officer notes that a
response has not been received to the procedural fairness letter. On April 28,
2014, the Officer repeats in the GCMS notes the concerns about Ms.
Pathirannahelage’s ability to establish in Canada and, given that she has not responded
to the procedural fairness letter, he requests the opinion of a second officer
for concurrence in the application of a negative substituted evaluation.
III.
Decision under Review
[11]
In the Decision, the Officer finds that Ms.
Pathirannahelage does not meet the requirements for permanent residence in
Canada. Although she has obtained the minimum points required under the FSW
class, the Officer is not satisfied that the points are an accurate indicator
of the likelihood of her ability to become economically established in Canada.
He notes that Ms. Pathirannahelage has been given an opportunity to address
these concerns at her interview and through the procedural fairness letter, but
that she did not respond directly to those concerns. The Officer therefore refuses
the application.
[12]
In the GCMS notes, which form part of the
reasons for the Decision, the second officer reports that Ms. Pathirannahelage
has been interviewed and failed to satisfy the Officer that she would
successfully become economically established. The second officer notes there is
no response to the procedural fairness letter sent to Ms. Pathirannahelage
providing her with an opportunity to respond with a settlement plan, and that
evidence on file suggests there has been no difficulty in communicating with
her consultant. The second officer therefore concurs with the conclusion of the
Officer deciding to set aside the points established in the application and, by
negative substitution of evaluation, determining that Ms. Pathirannahelage did
not meet the eligibility requirements for permanent residency.
IV.
Issues
[13]
This application for judicial review raises two
questions:
•
Did the Officer breach the principles of natural
justice by failing to advise Ms. Pathirannahelage that he was considering
exercising his discretion to make a negative substituted evaluation in this
case?
•
Did the Officer err by making an unreasonable
determination of a negative substituted evaluation in the case?
V.
Relevant Provisions
[14]
The legislative provisions relevant to this
application for judicial review are found in sections 11 and 12 of the IRPA
and, more particularly, in the Immigration and Refugee Protection
Regulations, SOR/2002-227 [the Regulations]. The relevant provisions of the
Regulations read as follows:
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75. (1) For the purposes of subsection
12(2) of the Act, the federal skilled worker class is hereby prescribed as a
class of persons who are skilled workers and who may become permanent
residents on the basis of their ability to become economically established in
Canada and who intend to reside in a province other than the Province of
Quebec.
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75. (1) Pour l’application du paragraphe
12(2) de la Loi, la catégorie des travailleurs qualifiés (fédéral) est une
catégorie réglementaire de personnes qui peuvent devenir résidents permanents
du fait de leur capacité à réussir leur établissement économique au Canada,
qui sont des travailleurs qualifiés et qui cherchent à s’établir dans une
province autre que le Québec.
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76. (1) For the purpose of determining
whether a skilled worker, as a member of the federal skilled worker class,
will be able to become economically established in Canada, they must be
assessed on the basis of the following criteria:
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76. (1) Les critères ci-après indiquent
que le travailleur qualifié peut réussir son établissement économique au
Canada à titre de membre de la catégorie des travailleurs qualifiés (fédéral)
:
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(a) the skilled worker must be awarded
not less than the minimum number of required points referred to in subsection
(2) on the basis of the following factors, namely,
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a) le travailleur qualifié accumule le
nombre minimum de points visé au paragraphe (2), au titre des facteurs
suivants :
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(i) education, in accordance with section
78,
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(i) les études, aux termes de l’article
78,
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(ii) proficiency in the official
languages of Canada, in accordance with section 79,
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(ii) la compétence dans les langues
officielles du Canada, aux termes de l’article 79,
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(iii) experience,
in accordance with section 80,
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(iii)
l’expérience, aux termes de l’article 80,
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(iv) age, in accordance with section 81,
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(iv) l’âge, aux termes de l’article 81,
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(v) arranged employment, in accordance
with section 82, and
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(v) l’exercice d’un emploi réservé, aux
termes de l’article 82,
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(vi) adaptability, in accordance with
section 83; and
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(vi) la capacité d’adaptation, aux termes
de l’article 83;
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(b) the skilled worker must
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b) le travailleur qualifié :
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(i) have in the form of transferable and
available funds, unencumbered by debts or other obligations, an amount equal
to one half of the minimum necessary income applicable in respect of the
group of persons consisting of the skilled worker and their family members,
or
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(i) soit dispose de fonds transférables
et disponibles — non grevés de dettes ou d’autres obligations financières —
d’un montant égal à la moitié du revenu vital minimum qui lui permettrait de
subvenir à ses propres besoins et à ceux des membres de sa famille,
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(ii) be awarded points under paragraph
82(2)(a), (b) or (d) for arranged employment, as defined in subsection 82(1),
in Canada.
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(ii) soit s’est vu attribuer des points
aux termes des alinéas 82(2)a), b) ou d) pour un emploi réservé, au Canada,
au sens du paragraphe 82(1).
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(3) Whether or not the skilled worker has
been awarded the minimum number of required points referred to in subsection
(2), an officer may substitute for the criteria set out in paragraph (1)(a)
their evaluation of the likelihood of the ability of the skilled worker to
become economically established in Canada if the number of points awarded is
not a sufficient indicator of whether the skilled worker may become
economically established in Canada.
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3) Si le nombre de points obtenu par un
travailleur qualifié — que celui-ci obtienne ou non le nombre minimum de
points visé au paragraphe (2) — n’est pas un indicateur suffisant de
l’aptitude de ce travailleur qualifié à réussir son établissement économique
au Canada, l’agent peut substituer son appréciation aux critères prévus à
l’alinéa (1)a).
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(4) An evaluation
made under subsection (3) requires the concurrence of a second officer.
[…]
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(4) Toute
décision de l’agent au titre du paragraphe (3) doit être confirmée par un
autre agent.
[…]
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80. (1) Points shall be awarded, up to a
maximum of 15 points, to a skilled worker for full-time work experience, or
the equivalent in part-time work, within the 10 years before the date on
which their application is made, as follows:
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80. (1) Un maximum de 15 points
d’appréciation sont attribués au travailleur qualifié en fonction du nombre
d’années d’expérience de travail à temps plein, ou l’équivalent temps plein
pour un travail à temps partiel, au cours des dix années qui ont précédé la
date de présentation de la demande, selon la grille suivante :
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(a) 9 points for one year of work
experience;
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a) 9 points, pour une année d’expérience
de travail;
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(b) 11 points for two to three years of
work experience;
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b) 11 points, pour deux à trois années
d’expérience de travail;
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(c) 13 points for four to five years of
work experience; and
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c) 13 points, pour quatre à cinq années
d’expérience de travail;
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(d) 15 points for six or more years of
work experience.
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d) 15 points, pour six années
d’expérience de travail et plus.
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(2) For the purposes of subsection (1),
points are awarded for work experience in occupations, other than a
restricted occupation, that are listed in Skill Type 0 Management Occupations
or Skill Level A or B of the National Occupational Classification matrix.
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(2) Pour l’application du paragraphe (1),
des points sont attribués au travailleur qualifié à l’égard de l’expérience
de travail dans toute profession ou tout métier appartenant aux genres de
compétence 0 Gestion ou niveaux de compétences A ou B de la matrice de la Classification
nationale des professions — exception faite des professions d’accès
limité.
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(3) For the
purposes of subsection (1), a skilled worker is considered to have experience
in an occupation, regardless of whether they meet the employment requirements
of the occupation as set out in the occupational descriptions of the National
Occupational Classification, if they performed
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(3) Pour
l’application du paragraphe (1), le travailleur qualifié, indépendamment du
fait qu’il satisfait ou non aux conditions d’accès établies à l’égard d’une
profession ou d’un métier figurant dans les description des professions de la
Classification nationale des professions, est considéré comme ayant
acquis de l’expérience dans la profession ou le métier :
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(a) the actions described in the lead
statement for the occupation as set out in the occupational descriptions of
the National Occupational Classification; and
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a) s’il a accompli l’ensemble des tâches
figurant dans l’énoncé principal établi pour la profession ou le métier dans
les descriptions des professions de cette classification;
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(b) at least a substantial number of the
main duties of the occupation as set out in the occupational descriptions of
the National Occupational Classification, including all the essential duties.
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b) s’il a exercé une partie appréciable
des fonctions principales de la profession ou du métier figurant dans les
descriptions des professions de cette classification, notamment toutes les
fonctions essentielles.
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VI.
Submissions of the Parties
[15]
Ms. Pathirannahelage first submits that the
Officer breached the principles of natural justice and his duty to act fairly.
In particular, she affirms that visa officers have a duty to give applicants an
opportunity to answer the specific case against them. Ms. Pathirannahelage
alleges that she was not provided with such a reasonable opportunity to respond
to the Officer’s concerns as she was not advised at the interview that the Officer
was considering making a “substituted negative
evaluation”. Had she been advised of this, she could have provided the
Officer with information alleviating the Officer’s concerns.
[16]
Furthermore, Ms. Pathirannahelage claims that
her consultant never received the procedural fairness letter, by post or by
email. She submits that where an Officer cannot prove, on a balance of
probabilities, that the communication was sent, the visa office must bear the risk
of such failure of communication. Ms. Pathirannahelage points out that the
affidavit of the Officer does not provide direct evidence that the procedural
fairness letter was sent, as the Officer relied on an administrative document
(the correspondence tab) that lacks sufficient detail and that this
correspondence tab contained no entry showing how the letter was sent as the
column titled “via” was left blank. Ms.
Pathirannahelage further observes that a different employee at the Colombo visa
office had actually sent the procedural fairness letter.
[17]
The Respondent replies that, at the interview,
the Officer did properly inform Ms. Pathirannahelage of his concerns about her
ability to economically establish in Canada, and that the procedural fairness
letter was sent to the address provided by Ms. Pathirannahelage. The Respondent
submits that, once the Minister has proven that a communication was properly
sent, an applicant bears the risk involved in failure to receive the
communication. The Minister does not have to confirm or prove that an applicant
actually received the communication.
[18]
The Respondent adds that the Officer’s affidavit
explains what is the normal practice for sending such letters and that there
was no reason why he would have deviated from this routine in this case. The
Respondent further points out that a copy of the dated procedural fairness
letter was put on file, thus indicating it was properly sent since, in the
normal course of business, a dated letter would not be put on file unless it was
sent. Furthermore, the empty blank space in the “via”
column of the correspondent tab was merely an administrative error; the
Respondent points out that the Decision had a similar blank space in that “via” column, yet there is no dispute that such
refusal letter was sent to and received by Ms. Pathirannahelage.
[19]
Ms. Pathirannahelage also submits that the
Officer acted unreasonably in making a negative substituted evaluation in this
case, and that the Officer’s true underlying concern was the fact that she did
not have the minimum educational requirements under the IRPA. Ms.
Pathirannahelage claims that such an approach is contrary to subsection 80(3)
of the Regulations, as an applicant is not required to demonstrate that he or
she has the required education to practice her profession in Canada. In fact,
neither the IRPA nor the Regulations require an applicant to work in the
specific field in which he or she would be eligible to come to Canada.
[20]
The Respondent affirms in response that an
applicant’s ability to work in the field for which he or she is eligible to
come to Canada is a relevant, although not determinative, factor that may be
considered in a substituted evaluation, and it was therefore reasonable for the
Officer to consider Ms. Pathirannahelage’s inability to work as a
physiotherapist in Canada. The Respondent further submits that a substituted
evaluation under subsection 76(3) of the Regulations does not need to adhere to
the strict parameters of the point system criteria outlined in subsection 76(1),
and that the purpose of the substituted evaluation provision is to build
flexibility in the FSW class.
[21]
The Respondent points out that the procedural
fairness letter shows that the Officer was open to the possibility that Ms.
Pathirannahelage could establish herself in Canada even if she could not work
as a physiotherapist, and indeed the Officer had requested a plan from her to
demonstrate her ability to establish herself in Canada, absent an ability to
work as a physiotherapist. The Respondent therefore submits that the Officer’s
decision to consider conducting a negative substituted evaluation was
reasonable.
VII.
Analysis
A.
The applicable standard of review
[22]
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 (Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12 at para 43 [Khosa]; Mission
Institution v Khela, 2014 SCC 24 at para 79; Singh v Canada (Citizenship
and Immigration), 2012 FC 855 at para 24).
[23]
I note that recent cases decided by this Court
have raised the issue of whether questions of procedural fairness require a
standard of review analysis at all, given that the question can be phrased as
to whether the procedure used was fair or not. Notwithstanding these
discussions, the Court has regularly continued to apply the standard of
correctness to questions of procedural fairness in cases involving applications
for permanent residence (Asoyan v Canada (Minister of Citizenship and
Immigration), 2015 FC 206 at para 15 [Asoyan]; Parveen v Canada
(Minister of Citizenship and Immigration), 2015 FC 473 at para 13; Gharialia
v Canada (Minister of Citizenship and Immigration), 2013 FC 745 at para 13
[Gharialia]; Sharma v Canada (Minister of Citizenship and
Immigration), 2011 FC 337 at para 15 [Sharma]; Yazdani v Canada
(Minister of Citizenship and Immigration), 2010 FC 885 at paras 24-25 [Yazdani]).
[24]
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. Furthermore, as stated in Gharialia at para 16,
the duty of procedural fairness for visa officers is at the low end of the
spectrum and there is no obligation to provide applicants with an opportunity
to address any concerns when the supporting documents are incomplete, unclear
or insufficient to satisfy the officer that the applicant meets the
requirements.
[25]
With regards to the Officer’s negative
substituted evaluation, it has been established that the standard of review for
such decisions made by visa officers is reasonableness (Gharialia at
para 11; Uddin v Canada (Minister of Citizenship and Immigration), 2012
FC 1005 at para 30 [Uddin]; Sharma at paras 13-14; Roohi v
Canada (Minister of Citizenship and Immigration), 2008 FC 1408 at para 11 [Roohi]).
Because visa officers have specialized expertise in making decisions relative
to the issuance of visas and to applicants’ eligibility
for permanent residence in Canada, such expertise
attracts a high degree of deference, especially since determining whether an
applicant has demonstrated his or her ability to become economically
established is a very fact-driven exercise (Shirazi
v Canada (Citizenship and Immigration), 2012 FC 306
at para 15; Philbean v Canada (Minister of
Citizenship and Immigration), 2011 FC 487 at para
8; Khan v Canada (Minister of Citizenship and Immigration), 2009 FC 302
at para 10 [Khan]).
[26]
When reviewing a decision on a standard of
reasonableness, the Court must be concerned with the existence of
justification, transparency and intelligibility within the decision-making
process. Findings involving questions of facts or mixed
fact and law should not be disturbed provided that the decision “falls 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 paras 45, 47-48 [Dunsmuir]). In conducting
a reasonableness review of factual findings, it is not the role of the Court to
reweigh the evidence or the relative importance given by the immigration
officer to any relevant factor (Dunsmuir at para 47; Kanthasamy v
Canada (Minister of Citizenship and Immigration), 2014 FCA 113 at para 99).
B.
Did the Officer breach his duty of procedural
fairness?
[27]
The first issue in the present case is whether
the Officer breached procedural fairness by failing to properly inform Ms.
Pathirannahelage of his concerns on her ability to economically establish and
about a possible negative substituted evaluation, or because the procedural
fairness letter might not have been received by Ms. Pathirannahelage. Based on
the evidence on the record, I do not find any breach of procedural fairness in
this case: the Officer ensured that Ms. Pathirannahelage was made aware of the
case against her and the procedural fairness letter was correctly sent to Ms.
Pathirannahelage by the Officer.
(1)
The applicant was properly informed
[28]
I agree that the duty of procedural fairness
includes the duty to properly inform an applicant of the case against him or
her and to give the applicant an opportunity to respond and to know about the
visa officer’s concerns. It 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, this 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 himself or herself of those concerns (Prasad v
Canada (Minister of Citizenship and Immigration), [1996] FCJ No 453, at
para 7, 34 Imm LR (2d) (FCTD)).
[29]
The jurisprudence in this Court has developed to
specify that this duty of procedural fairness applies to concerns about
credibility, veracity or authenticity of the documents rather than to the
sufficiency of the evidence. There is no obligation on a visa officer to
provide an applicant with an opportunity to address concerns of the officer
when the supporting documents are incomplete, unclear or insufficient to
satisfy the officer that the applicant meets all the requirements that stem
from the Regulations (Hamza v Canada (Minister of Citizenship and
Immigration), 2013 FC 264 at paras 24-25 [Hamza]; Gharialia
at paras 16-17; Sharma at para 8; Veryamani v Canada (Minister of
Citizenship and Immigration), 2010 FC 1268 at paras 34-36 [Veryamani]).
[30]
The onus thus remained on Ms. Pathirannahelage
to demonstrate that she met the requirements of the Regulations by providing
sufficient evidence in support of her application (Hamza at para 22; Uddin
at para 38). Furthermore, as I have already noted, the duty of procedural
fairness owed by a visa officer is at the low end of the spectrum (Hamza
at para 23).
[31]
In the current case, the Officer’s concern was
not about the veracity of Ms. Pathirannahelage’s documents, but instead related
to whether she had provided sufficient evidence to show she would be able to
become economically established in Canada. Since this issue concerns the
sufficiency of the applicant’s evidence rather than its credibility, the
Officer was not actually obliged to provide notice to Ms. Pathirannahelage.
[32]
In any event, the Officer provided notice to Ms.
Pathirannahelage in this case and I find that, based on the evidence on the
record, he did indeed properly inform Ms. Pathirannahelage, at the interview,
of his concerns about her ability to become economically established in Canada.
The Officer’s concerns, as stated in his affidavit, were that she would not be
able to find employment in Canada as a physiotherapist and that she did not
appear to have any other plans to find employment “in
an unrelated field”. The Officer further said that Ms. Pathirannahelage
was advised of these concerns at the March 2014 interview and that she was
offered an opportunity to rebut these concerns. This was also recorded in the
GCMS notes entered in the file.
[33]
In her affidavit, Ms. Pathirannahelage says that
the Officer did not advise her that he was considering a “substituted negative evaluation” for her case, but
she does not challenge the Officer’s statement that she was made aware of his
concerns regarding her ability to become economically established. The
Officer’s affidavit and the GCMS notes clearly indicate that he had asked Ms.
Pathirannahelage about her settlement plans, but found that she had not done
any research about Canada, save for some information she received on Saskatoon
offering opportunities in Canada. I further underline that the Officer had
recorded his concerns about Ms. Pathirannahelage’s ability to successfully
establish in the GCMS notes on the same day that the interview was held.
[34]
Therefore, while the Officer may or may not have
specifically used the words “negative substituted
evaluation” referred to by Ms. Pathirannahelage in her affidavit, I
conclude that he did raise his concerns to her and asked her about her ability
to economically establish in Canada. The fact that the Officer may not have
used the words “substituted negative evaluation”
in the interview cannot amount to a breach of procedural fairness in the
current circumstances. Instead, I find that the Officer did fulfill his duty of
procedural fairness and gave Ms. Pathirannahelage an opportunity to respond to
his concerns during the interview.
[35]
Ms. Pathirannahelage cites the Sharma
decision, where this Court found that a visa officer’s failure to inform an
applicant that he would make a negative substituted evaluation,
notwithstanding the fact that the applicant had obtained a sufficient amount of
points, resulted in a breach of his duty of procedural fairness. However, that
case is distinguishable as it was apparent from the decision that the visa
officer in that case had not brought his concern about the applicant’s ability
to become economically established in Canada during the interview. Contrary to
the situation in Sharma, there is in this case an affidavit of the
Officer, as well as the GCMS notes, both referring to the fact that Ms.
Pathirannahelage was informed of the Officer’s concerns at the interview.
(2)
ii. The procedural fairness letter was correctly
sent
[36]
In addition, the Officer went a step further and
sent the procedural fairness letter to Ms. Pathirannahelage, which is an
additional element showing that he fulfilled his duty of procedural fairness. I
now turn to the arguments raised by Ms. Pathirannahelage about the procedural
fairness letter.
[37]
Ms. Pathirannahelage insists on the fact that
this letter brings an important new element as it contained, for the first
time, a specific reference to a possible “substituted
negative evaluation” by the Officer. She also argues that sending such a
letter was an essential procedural step to be followed by the Officer in the
substituted evaluation process as the Minister’s Operations Manual instructs
visa officers to communicate such concerns in writing, in order to inform
applicants of the possibility of a substituted evaluation and to offer them an
opportunity to respond.
[38]
As indicated above, there is contradictory
evidence in this case with respect to the communication of this procedural
fairness letter. Ms. Pathirannahelage and her consultant affirm that the letter
was never received, while the Officer affirms that it was sent.
[39]
It is well established that, when a
communication is “correctly sent” by a visa
officer to an address (by post or email) that has been provided by an applicant
which has not been revoked or revised, and where there has been no indication
received that the communication may have failed, the risk of non-delivery rests
with the applicant and not with the visa office (Zare v Canada (Minister of
Citizenship and Immigration), 2010 FC 1024 at para 36 [Zare]; Yazdani
at para 45; Kaur v Canada (Minister of Citizenship and Immigration),
2009 FC 935 at para 12). The visa office simply has to prove that it has
correctly sent the notice. Once the Minister proves that the communication was
sent, the applicant bears the risk involved in failure to receive the
communication (Patel v Canada, 2014 FC 856 at para 16 [Patel]; Yazdani
at para 45; Ilahi v Canada (Minister of Citizenship and Immigration),
2006 FC 1399 at para 7 [Ilahi]). The visa office must simply demonstrate
that the notice “went on its way” to the
applicant, but has no duty to prove that the applicant received the letter (Caglayan
v Canada (Minister of Citizenship and Immigration), 2012 FC 485 at para 13
[Caglayan]). Furthermore, only where there is objective evidence that
the correspondence was not received because of a proven communication failure
is the visa office bearing the risk of the failure in communication (Caglayan
at para 15).
[40]
There are precedents from this Court
illustrating how it can be proven that a visa officer has correctly sent the
communication in matters involving regular mail, as is the case here. In Yang
v Canada (Minister of Citizenship and Immigration), 2008 FC 935 at para 8 [Yang],
Justice Snider was satisfied that the letter was sent by regular surface mail
to the address indicated by the applicant, noting that a copy of the letter was
contained in the file, the address was correct, and the electronic notes made
explicit reference to the sending of the letter. In contrast, in Ilahi at
para 8, Justice O’Reilly found that the respondent had not proven that the visa
officer had sent the letter by regular mail. Although the electronic notes
indicated that a letter had been sent, a copy of the letter was not produced,
nor was there any direct evidence of the address to which it was sent. In Caglayan,
the respondent filed a copy of the letter sent by mail, as well as an
affidavit of a registry clerk attesting that she personally sent the letter
using the label printed off the GCMS. Justice Martineau was unable to find any
fault on the part of the respondent in that case and concluded that the notice
had been sent (Caglayan at paras 8-9, 15 and 19).
[41]
I pause to note that cases dealing with missed
email communications are not directly relevant to the current case involving a
missed letter sent by regular mail, as the delivery system is different and
technical issues often arise with email communications (Asoyan at paras
21-22). The Yazdani case, in which the Court dealt with a situation
where the visa office had requested further documents from the applicant in an
email claimed not to have been received, has been relied on in many subsequent
cases involving email problems with the visa office. However, this decision was
one of several cases involving different applicants experiencing the same
technical email communication problem with one visa office (Alavi v Canada
(Minister of Citizenship and Immigration), 2010 FC 969; Zare). In
the current case, there is no evidence of any fault by the Colombo visa office,
contrary to Zare or Yazdani.
[42]
Not only is there no fault on the part of the
visa office but there is also more than sufficient evidence on the record to
convince the Court, on the balance of probabilities, that the procedural
fairness letter was actually sent (Patel at para 21). This evidence
includes the following elements. The GCMS notes of the Officer mentioned “PF letter drawing on R76(3)” on March 10, 2014. The
Minister has provided a copy of the letter and an indication that it was sent
to the right address on file for Ms. Pathirannahelage. The subsequent refusal
letter was indeed received at that same address a few months later. The Officer
used the standard procedure at the visa office and followed the usual practice
to send the letter. The GCMS notes and the Officer’s affidavit both confirm
that the letter was sent to Ms. Pathirannahelage’s consultant. Finally, a copy
of the dated letter has been put on file, which would not have happened if the
letter had not been sent using the usual practice of the visa office. Counsel
for Ms. Pathirannahelage did not cross-examine the Officer on this evidence.
[43]
Counsel for Ms. Pathirannahelage referred to the
past history of communications between the applicant and the visa office and
argued that the Officer should have been alert to the absence of response from
Ms. Pathirannahelage following the issuance of the procedural fairness letter.
I cannot agree with that, as this would in fact put the burden back on the visa
office, contrary to the case law cited above. Ms. Pathirannahelage also claims
that, since it is not the person who actually sent the letter who signed the
affidavit, but rather the Officer who authored it, I should give little weight
to that evidence. I do not agree with this argument either, as the evidence shows
that the Officer followed the standard procedure in this case.
[44]
In addition, as stated in Yang at para
14, it would impose an impossible burden on the Canadian immigration
authorities to require proof that correspondence are received in all cases
given the volume of applications dealt with by the various visa offices. For
all those reasons, I conclude that no breach of procedural fairness occurred in
this case as the Officer ensured that Ms. Pathirannahelage was aware of the
case against her and since the procedural fairness letter was correctly sent to
her by the visa office.
C.
Reasonableness of the Officer`s negative
substituted evaluation
[45]
I now consider the issue of the Officer’s
negative substituted evaluation. As indicated above, the reasonableness standard
applies to such a decision by a visa officer. The Court must show a high degree
of deference to an officer’s findings on substituted evaluation issues in
applications made under the FSW class (Roohi at paras 17 and 24-26; Gharialia
at para 29). Based on the evidence on the record, I find that the Officer’s
Decision in this respect is reasonable and falls within the range of possible,
acceptable outcomes defensible in light of the facts and applicable law.
[46]
The Decision itself does not contain much detail
as to why the Officer was not satisfied that Ms. Pathirannahelage would be able
to become economically established in Canada. However, it is well established that a letter communicating the decision of a
visa officer need not include all of the reasons for the decision, and that the
GCMS notes are understood to form an integral part of the reasons and can be looked at to provide more information (Rezaeiazar v
Canada (Citizenship and Immigration), 2013 FC 761 at para 58 [Rezaeiazar];
Veryamani at para 28).
[47]
In her oral representations, counsel for Ms.
Pathirannahelage insisted on the words “absent minimum
educational requirements” used by the Officer both in the Decision and
in his GCMS notes and argued that, in view of that language, the failure to
meet the physiotherapy and licensing requirements was clearly the main reason
underlying the Decision. By doing so, she submits, the Officer erred as he did
not take the broader consideration approach prescribed by the Roohi and Uddin
cases, and thus failed to go beyond the immediate field of work of Ms.
Pathirannahelage in determining her ability to economically establish in
Canada. I do not agree with this interpretation.
[48]
I am rather satisfied that, when the Decision is
considered as a whole and taking into account the GCMS notes, the Officer
turned his mind to many other elements before deciding to opt for a substituted
evaluation. The Officer was of course entitled to consider Ms.
Pathirannahelage’s capacity to work in her main area of interest and competence
but his conclusion on her inability to become economically established in
Canada was also based on other factors such as her absence of plans and
research for potential work in general, and her failure to indicate how she
could draw upon the resources she had in Canada. In the GCMS notes, it was
noted that Ms. Pathirannahelage had done little research into settlement and
employment prospects in Canada.
[49]
When the statements about the absence of minimum
educational requirements are read in the context of the whole Decision, I have
no hesitation to find that the Decision and the negative substituted evaluation
were a reasonable outcome the Officer could arrive at based on the record. The
Officer was simply not convinced that Ms. Pathirannahelage had demonstrated an
ability to economically establish in Canada; such assessment is fact-specific
and it is not for this Court to reweigh the evidence and intervene on the
Officer’s assessment.
[50]
Ms. Pathirannahelage argues that she did not
have to demonstrate that she had the required education to practice her
profession in Canada. I agree. The Regulations do not contain a requirement
that an applicant become economically self-sufficient in his or her qualifying
occupation or join the labor market in the particular occupation they refer to
in their application (Uddin at para 44; Rezaeiazar at para 82);
and this is not what the Officer asked for in this case. But, as stated in Gharialia
at para 37, since these are the skills that an applicant would likely rely on
to make a living, it is reasonable for a visa officer to verify whether the
applicant would be able to practice in the field they mention. So it was
certainly logical and reasonable for the Officer to consider, as a relevant
though not determinative consideration, Ms. Pathirannahelage’s ability to work
in her field of physiotherapy in Canada.
[51]
Ms. Pathirannahelage argues that the Gharialia
case is distinguishable on its facts, but I fail to see how. In Gharialia,
the applicant had experience working in Ayurvedic medicine, but the visa
officer was concerned because this type of medicine is not regulated in Canada
and concluded that the applicant would not be able to work in that field in
Canada. In the present case, physiotherapists require a certain university
education and licensing in order to practice, a concern highlighted by the
Officer as that could mean Ms. Pathirannahelage would not be able to work in that
field. That said, this is not a situation where, as in Rezaeiazar at
paras 81-82, a visa officer has unreasonably insisted that the applicant
demonstrate economic self-sufficiency as a skilled worker in her particular
field of skilled work. The evidence on the record and the Decision do not
support the proposition that the Officer was requiring Ms. Pathirannahelage to
demonstrate her ability to work as a physiotherapist as a condition to be
convinced she would be able to successfully establish in Canada. It was just
one of many factors considered by the Officer.
[52]
In the end, I find that the Officer’s reasons
for his Decision are transparent and justifiable and that his decision on the
negative substituted evaluation is one which falls within a range of possible,
acceptable outcomes justified by the facts and the law (Dunsmuir, at
para 53).
VIII.
Conclusion
[53]
For the foregoing reasons, this application for
judicial review is dismissed. The Officer has met his duty of procedural
fairness by discussing his concerns with Ms. Pathirannahelage during the
interview and in sending the procedural fairness letter to Ms. Pathirannahelage.
There was no breach of procedural fairness. With respect to the Officer’s
negative substituted evaluation, I find that, in the circumstances of this
case, the decision of the Officer was reasonable.
[54]
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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