Date: 20150806
Docket: IMM-8012-14
Citation:
2015 FC 945
Ottawa, Ontario, August 6, 2015
PRESENT: The
Honourable Mr. Justice Fothergill
BETWEEN:
OKSANA SYDORUK
Applicant
and
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
I.
Introduction
[1]
Oksana Sydoruk has brought an application for
judicial review pursuant to s 72 of the Immigration and Refugee Protection
Act, SC 2001, c 27 [the IRPA]. She challenges a decision of a visa officer
[the Officer] to refuse her application for a permanent resident visa under the
federal skilled worker class, a category of the economic class referred to in s
12(2) of the IRPA.
[2]
For the reasons that follow, I find that the Officer’s
assessment of the genuineness of Ms. Sydoruk’s job offer was not conducted in
accordance with the prescribed regulatory scheme, and it was therefore
unreasonable. I also find that Ms. Sydoruk was not made aware of the basis for
the Officer’s suspicion, and she therefore did not have a reasonable opportunity
to respond. The application for judicial review is allowed.
II.
Background
[3]
Ms. Sydoruk is a citizen of Ukraine. In
September, 2010, she came to Canada to visit her sister. Ms. Sydoruk’s sister
works for Koss Aerospace, a Canadian company located in Mississauga, Ontario.
[4]
In May, 2011, Ms. Sydoruk was introduced to
Drago Kajic, President of Koss Aerospace, who interviewed her for a position as
a bookkeeper with the company. Ms. Sydoruk made a positive impression, but Mr.
Kajic said that she required additional work experience before he could offer
her a job. It was agreed that any hiring decision would be postponed for
several months.
[5]
Ms. Sydoruk left Canada in July, 2011 and
returned to Ukraine. She found employment as a bookkeeper with a company called
Plastics Ukraine. Approximately one year later, Ms. Sydoruk had a second
interview with Mr. Kajic by telephone.
[6]
Mr. Kajic decided to hire Ms. Sydoruk. He obtained
a positive Arranged Employment Opinion [AEO] from Service Canada in October,
2012, and a formal offer of employment was extended to Ms. Sydoruk in December,
2012. In February, 2013, Ms. Sydoruk applied for a permanent resident visa as a
member of the federal skilled worker class.
[7]
In September, 2014, Ms. Sydoruk was invited to
attend an interview at the Canadian Embassy in Kiev, Ukraine. During the
interview, the Officer questioned the authenticity of the job offer from Koss
Aerospace. Ms. Sydoruk was unable to allay the Officer’s concerns. In a
decision dated September 29, 2014, Ms. Sydoruk was informed that she did not
meet the requirements of the federal skilled worker class and her application
was refused.
IV.
Issues
[8]
This application for judicial review raises the
following issues:
A.
Was the Officer’s decision reasonable?
B.
Was the Officer’s decision procedurally
fair?
V.
Analysis
[9]
A visa officer’s determination of an application
for permanent residence as a member of the federal skilled worker class
involves findings of fact and law, and is to be reviewed by this Court against
the standard of reasonableness (Patel v Canada (Minister of Citizenship and
Immigration), 2011 FC 571 [Patel] at para 18).
[10]
Questions of procedural fairness are to be
reviewed by this Court against the standard of correctness (Patel at
para 18; Khosa v Canada (Minister of Citizenship and Immigration), 2009
SCC 12 at para 43).
A.
Was the Officer’s decision reasonable?
[11]
Federal skilled workers are described in s 75 of
the Immigration and Refugee Protection Regulations, SOR 2002-227 [the
Regulations] as people who may become permanent residents on the basis of their
ability to become economically established in Canada. Visa officers award
points to applicants based on the factors listed in s 76(1)(a) of the
Regulations. These include education, proficiency in English and French,
experience, age, arranged employment and adaptability. Applicants must receive at
least 67 points to be eligible for a federal skilled worker visa.
[12]
Under s 82(2)(c) of the Regulations, applicants
from outside Canada receive ten points for arranged employment provided that
the visa officer approves the job offer based on an opinion provided by the
Department of Human Resources and Skills Development [HRSDC]. A visa officer is
not bound by the HRSDC opinion. It is for the officer to determine whether the
job offer meets the requirements of s 203(1) of the Regulations, including
whether it is genuine.
[13]
Whether a job offer is genuine is determined in
accordance with s 200(5) of the Regulations, which at the time of the Officer’s
decision read as follows:
200. (5) A
determination of whether an offer of employment is genuine shall be based on
the following factors:
(a) whether the offer is made by an
employer that is actively engaged in the business in respect of which the offer
is made unless the offer is made for employment as a live-in caregiver;
(b) whether the offer is consistent with
the reasonable employment needs of the employer;
(c) whether the terms of the offer are
terms that the employer is reasonably able to fulfil; and
(d) the past
compliance of the employer, or any person who recruited the foreign national
for the employer, with the federal or provincial laws that regulate employment,
or the recruiting of employees, in the province in which it is intended that
the foreign national work.
[14]
In this case, the Officer concluded that Ms.
Sydoruk’s job offer was not genuine and he therefore awarded her no points for
her Arranged Employment Offer from Koss Aerospace:
Following your interview at this Embassy and
careful review of all the documentation on your application I cannot conclude
that this offer was made in good faith and is genuine pursuant to Regulation 82
of the Immigration and Refugee Protection Regulations. You were given an
opportunity to respond to my concerns with respect to your job offer in the
course of the interview at the Embassy but failed to do so.
No points can
be awarded therefore for your Arranged Employment Offer.
You have not obtained the minimum number of
points, currently 67, required for a permanent resident visa. You have
therefore not satisfied me that you will be able to become economically
established in Canada.
[15]
The Officer’s concerns were further elucidated
in the notes contained in the Global Case Management System (GCMS) that were
prepared following his interview with Ms. Sydoruk and which form part of the Officer’s
decision:
Explained to PA that I had serious concerns with
respect to the authenticity of PA’s job offer fm CDA; It’s not clear how PA was
selected for the position of a bookkeeper and what was the selection criteria
given that PA had no work experience and did not have fluent English at the
time of her interview with the president of the company;
PA indicated that she was offered a job as PA’s
purported employer was planning to expand his business in Eastern Europe and
needed new employees for his new office; PA did not know when and where her
employer was planning to expand his business and could not explain why he
hadn’t done it so far; PA advised that her employer was happy with PA’s job
interview of May, 2011 yet PA failed to visit the place of her potential employment/find
out more about nature of its business, meet her future co-workers etc; I
suspect that PA’s sister who has been working in Cda for the same employer
might have come into agreement with MR Cajic [sic] and arranged current job
offer in order to facilitate her sister’s (PA) entry to Cda; PA could not
provide any credible explanation and dispel my concerns that were conveyed to
her during the interview; I’m not satisfied therefore that PA’s job offer is a
genuine one and cannot accredit any points for it; PA has obtained insufficient points to
qualify for immigration to Canada, the minimum requirement being 67 points.
Application refused.
[Emphasis added.]
[16]
The Officer’s GCMS notes betray a fundamental misunderstanding.
Ms. Sydoruk was not offered a job in May, 2011, and it is therefore hardly
surprising that she did not immediately visit the workplace to find out more
about the business or meet her future co-workers. The job offer was made in
writing several months later when Ms. Sydoruk was in Ukraine acquiring further
work experience with Plastics Ukraine.
[17]
Quite apart from this factual error, there does
not appear to be any correlation between the Officer’s assessment of Ms.
Sydoruk’s job offer and the criteria that he was required to apply pursuant to s
200(5) of the Regulations. The factors enumerated in s 200(5) are primarily
concerned with the integrity of the prospective employer. The Officer in this
case was preoccupied with the credibility and qualifications of Ms. Sydoruk. It
is unclear whether the result would have been the same
if the job offer had been properly assessed in accordance with s 200(5). What is clear is that the
Officer’s conclusion that the employment offer was not genuine was fatal to Ms.
Sydoruk’s application.
[18]
This is not a case where deficient reasons may be rescued in the manner contemplated in N.L.N.U.
v Newfoundland and Labrador (Treasury Board), 2011 SCC 62. The Officer was required to assess Ms. Sydoruk’s job offer in
accordance with s 200(5) of the Regulations. The criteria are mandatory, not
optional. As Justice Moldaver remarked in British Columbia (Securities
Commission) v McLean, 2013 SCC 67 at para 38, where the ordinary tools of
statutory interpretation lead to a single reasonable interpretation and the
administrative decision-maker adopts a different interpretation, its
interpretation will necessarily be unreasonable; the “range of reasonable outcomes”
will necessarily be limited to a single reasonable interpretation and the
administrative decision-maker must adopt it.
[19]
Because the Officer’s assessment of the
genuineness of Ms. Sydoruk’s employment offer was not conducted in accordance
with s 200(5) of the Regulations, his decision cannot be said to fall within a
range of possible, acceptable outcomes that are defensible in respect of the
facts and law (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47). The application for judicial review must be allowed.
B.
Was the Officer’s decision procedurally fair?
[20]
The content of the duty
of fairness owed by a visa officer when determining a visa application by an
applicant in the independent category is at the lower end of the range (Patel
v Canada (Minister of Citizenship and Immigration), 2002 FCA 55 at para 10). A visa officer has no duty to inform an
applicant of any concerns regarding the application that arise directly from
the requirements of the legislation or regulations (Kamchibekov v Canada (Minister of Citizenship and Immigration), 2011 FC 1411 at
para 26).
[21]
Even if the duty of
fairness is at the low end of the spectrum, it nevertheless requires visa
officers to inform applicants of their concerns so that applicants have an
opportunity to respond, particularly where those concerns relate to the authenticity
or credibility of evidence provided by the applicant (Talpur v Canada (Minister of Citizenship and Immigration), 2012 FC 25 at para 21). In this case, the
authenticity of the job offer from Koss Aerospace was in doubt. While it appears
from the Officer’s GCMS notes that he raised this concern with Ms. Sydoruk
during the interview, it is unclear whether he communicated the basis for his
suspicion. As mentioned above, the GCMS notes include the following:
I suspect that PA’s sister who has been
working in Cda for the same employer might have come into agreement with MR
Cajic [sic] and arranged current job offer in order to facilitate her
sister’s (PA) entry to Cda; PA could not provide any credible explanation and
dispel my concerns that were conveyed to her during the interview; I’m not
satisfied therefore that PA’s job offer is a genuine one and cannot accredit
any points for it;
[22]
There is nothing in the record to indicate that Ms.
Sydoruk was made aware of the Officer’s suspicion that her sister had conspired
with Mr. Kajic to concoct a fraudulent job offer, nor does there appear to be
any objective basis for the Officer’s suspicion. Ms. Sydoruk was never given an
opportunity to disabuse the officer of his unwarranted speculation, and accordingly
the Officer’s decision was procedurally unfair (Keryakous v Canada (Minister
of Citizenship and Immigration), 2015 FC 325 at para 20).
VI.
Conclusion
[23]
For the foregoing reasons, the application for
judicial review is allowed and the matter is remitted to a different visa
officer for re-determination. No question is certified for appeal.
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