Docket: IMM-6394-14
Citation:
2015 FC 951
Ottawa, Ontario, August 6, 2015
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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AMIR REZVANI
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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]
This is an application for judicial review of
the June 8, 2012 decision (the Decision) of a Visa Officer (the Officer), which
refused the applicant’s application for permanent residence under the Federal
Skilled Worker (FSW) program. The applicant claims that this decision should be
quashed because the Officer breached procedural fairness, by not providing him
with an opportunity to respond to credibility concerns, and on the basis that
the decision is unreasonable because the Officer did not adequately assess the
evidence.
[2]
For the reasons set out below, the application
for judicial review is dismissed.
I.
Background
[3]
The applicant, Mr. Amir Rezvani, is a citizen of
Iran. He applied for permanent residence in Canada in 2010 based on his
experience as a Financial Manager and an Accountant, being occupations with
National Occupational Classification (NOC) codes NOC 0111 and NOC 1111,
respectively. Based on a review of the application, the Centralized Intake
Office in Sydney, Nova Scotia recommended that it be referred to the overseas
visa office for a final determination of eligibility. A full application,
including copies of employment letters and educational degrees, was submitted
to the visa office on or around February 12, 2011.
[4]
Although the Decision was initially made on June
8, 2012, the record shows that the applicant did not receive the letter
advising him of the Decision. In 2014, the applicant sent an updated
application to add his new-born son. The visa office then sent him the Decision
that had been made in 2012, which he received on July 4, 2014. Counsel for the
applicant requested to have the file reopened to provide additional evidence.
This was refused by the visa office. The applicant then filed an application
for leave and judicial review on September 2, 2014.
II.
Officer’s Decision
[5]
The Officer found that the applicant had not
provided sufficient evidence that he performed the actions described in the
lead statement of the relevant occupations, as set out in the occupation
descriptions of the NOC. The Decision stated that the employment documents
submitted by the applicant only contained a vague description of his job duties
and that the applicant’s own descriptions of his duties were often copied
directly out of the NOC, which diminished the overall credibility of the
employment. Therefore, based on the information before the Officer, the Officer
was not satisfied that the application fit within the categories of Financial
Manager or Accountant.
[6]
The Global Case Management System (GCMS) notes
also stated that the employment documents submitted by the applicant contained
a lot of jargon related to the companies and that it was not always clear what
was meant by the duties described. The notes stated that no explanation was
provided by the applicant or the companies, and it appeared to the Officer that
the applicant’s experience matched that of a bookkeeper rather than an
Accountant or Financial Manager. Therefore, the application was refused.
III.
Submissions of the
Parties
A.
Applicant’s Submissions
[7]
The applicant submits that where a visa
officer’s concerns relate to the credibility of the evidence, as opposed to the
sufficiency of the evidence, the applicant must be given an opportunity to
respond to the concerns (Fang v Canada (MCI), 2014 FC 196, at para 19 [Fang];
Rukmangathan v Canada (MCI), 2004 FC 284, at para 22, 38 [Rukmangathan];
Talpur v Canada (MCI), 2012 FC 25, at para 21 [Talpur]; Madadi
v Canada (MCI), 2013 FC 716, at para 6 [Madadi]). This duty extends
even where a visa officer is conducting an initial assessment of a case (Kumar
v Canada (MCI), 2010 FC 1072, at para 29 [Kumar]).
[8]
The applicant’s position is that the Officer
clearly indicated that there were credibility concerns with the applicant’s
description of his job duties. Therefore, the Officer was obliged to inform the
applicant of any concerns related to the credibility of the information
contained within his application (Patel v Canada (MCI), 2011 FC 571, at
paras 20, 22 [Patel]; Liao v Canada, [2000] FCJ No 1926, at
para 17). In addition to the information that had been copied from the NOC, the
applicant had submitted employment letters from his current and former
employers, detailing his duties, and there was no reason for the Officer to
consider the evidence to be insufficient or lacking in credibility. The
applicant argues that the Officer’s failure to provide him with an opportunity
to respond to concerns related to the credibility of the evidence represents a
breach of procedural fairness (Hassani v Canada (MCI), 2006 FC 1283, at
para 24 [Hassani]).
[9]
The applicant further submits that where a
decision-maker does not mention relevant evidence, this leads to a conclusion
that the evidence in question was overlooked or ignored (Cepeda-Gutierrez v
Canada (1998), 157 FTR 35, at para 17). The applicant contends that the
Officer ignored the information in the employment letters, which contained
relevant details about the duties he performed in his positions, as well as his
educational degrees. The Officer accordingly failed to consider evidence that
would have disabused him of concerns relating to the applicant’s duties in his
positions. The applicant also submits that the respondent’s written argument
represents an impermissible attempt to supplement the Officer’s reasons by
conducting his own analysis of the employment letters (Qi v Canada (MCI), 2009
FC 195, at para 35).
[10]
The applicant also argues for a time extension
in his Memorandum of Arguments, given that he only received the refusal letter
on July 4, 2014 and filed within 60 days of receiving it. However, given his
evidence that he only became aware of the refusal letter on July 4, 2014, and
that he filed his application for leave and judicial review within 60 days of
being made aware of the decision, on September 2, 2014, there appears to be no
need for a time extension according to the legislation (Immigration and
Refugee Protection Act, SC 2001, c 27, ss. 72(2)(b)). In any event, the
Respondent’s counsel advised at the hearing that, given that leave for this
application has been granted, the Respondent does not raise an issue with the
timeliness of the application.
B.
Respondent’s Submissions
[11]
The respondent first submits that there was no
breach of procedural fairness. The Officer’s role is to assess the visa
application on the basis of the information and evidence provided, and there is
no general duty for visa officers to ask for clarification or additional
information if the evidence is insufficient (Madan v Canada (MCI) (1999),
172 FTR 262, at para 6). The respondent contends that, contrary to the
applicant’s arguments, there were no credibility findings by the Officer.
Rather, the Officer determined that the applicant repeated the terms used in
the NOC instead of describing his position in his own words. The Officer took
this into account and felt the applicant’s evidence was insufficient, which is
not a credibility finding (Kamchibekov v Canada (MCI), 2011 FC 1411 [Kamchibekov]).
[12]
Similarly, the respondent’s position is that the
Officer did not take issue with the credibility or the authenticity of the
employment letters, but rather with their lack of specificity. There was
therefore no need for additional procedural fairness (Obeta v Canada (MCI), 2012
FC 1542, at para 25 [Obeta]; Singh v Canada (MCI), 2009 FC
620, at para 7; Dhillon v Canada (MCI), 2009 FC 614, at para 30; Qin
v Canada (MCI), 2002 FCT 815, at para 7). The respondent also argues that,
even where an officer makes a reference to credibility, the duty of fairness
may not be engaged where it appears that the officer’s concerns were more about
the adequacy of evidence provided by the applicant (Gharialia v Canada
(MCI), 2013 FC 745, at paras 21-22 [Gharialia]). Relevant
work experience is a concern that arises directly from the requirements in the
legislation (Kamchibekov, at paras 25-27; Rukmangathan, at para
23).
[13]
The respondent argues that the duty of fairness
for visa applicants is at the low end of the spectrum and that the burden is on
the applicant to provide a complete application (Tahereh v Canada (MCI), 2008
FC 90, at para 12 [Tahereh]; Khan v Canada (MCI), 2001 FCA
345, at paras 31-32 [Khan]; Chiau v Canada (MCI), [2001] 2 FC
297, at para 41 (FCA); Obeta, at para 25). No further procedural
fairness was required in this case, especially given that this application was
refused at the eligibility stage of processing (Chadha v Canada (MCI), 2013
FC 105, at para 38; Kamchibekov, at paras 17-18, 26).
[14]
Overall, the respondent’ position is that the
Officer properly took into account all the evidence. The Officer considered the
employment letters submitted by the applicant and reasonably determined that
there was insufficient evidence that the applicant had performed the actions
described in the lead statement of his stated occupations of Financial Manager
and Accountant. The duties contained within the employment letters were closer
to those of bookkeeper. The respondent also submits that the applicant’s
education is not determinative of the required work experience. Rather the
Officer had to look at the duties performed. The Officer has expertise in
evaluating whether the applicant has the necessary job experience, and the
applicant did not provide sufficient evidence to satisfy the Officer (Buttar
v Canada (MCI), 2010 FC 984 [Buttar]; Bhatia v Canada (MCI), 2012
FC 1278; Bighashi v Canada (MCI), 2013 FC 1110).
IV.
Standard of Review
[15]
The applicant submits that the standard of
review for issues of procedural fairness is correctness (Canada (MCI) v
Khosa, 2009 SCC 12, at para 43 [Khosa]) and that the standard
of review for questions involving an exercise of discretion and questions of
mixed law and fact is reasonableness (Dunsmuir v New Brunswick, 2008 SCC
9 [Dunsmuir]). The applicant submitted in his Memorandum of Fact and Law
that failure to consider important evidence is a legal error and is subject to
the correctness standard of review (Ozdemir v Canada (MCI), 2001 FCA
331, at para 7; Uluk v Canada (MCI), 2009 FC 122, at para 16). However,
I understood his counsel to confirm at the hearing that the standard of review
in assessing whether the Decision properly took the evidence into account is
one of reasonableness.
[16]
The respondent submits that the applicable
standard of review is reasonableness, because the determination of whether or
not an applicant has performed the required duties for an occupation in the
context of a skilled worker application is largely a matter of fact (Dunsmuir,
at para 47; Tiwana v Canada (MCI), 2008 FC 100, at para 12 [Tiwana];
Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62, at paras 17-18).
[17]
In my view, the issue of procedural fairness
raised by the applicant is reviewable on the standard of correctness (Khosa,
at para 43) and the issue whether the Decision properly took into account
all the evidence is reviewable on the standard of reasonableness (Dunsmuir, at
para 47; Kamchibekov, at para 12-13; Obeta, at paras 13-14).
V.
Issues
[18]
Based on the parties’ submissions, this
application raises the following issues:
1.
Was there a breach of procedural fairness?
2.
Was the Officer’s decision reasonable?
VI.
Analysis
A.
Was there a breach of procedural fairness?
[19]
The applicable jurisprudence establishes that,
in cases dealing with visa officers’ decisions on applications for permanent
residence, the duty of fairness is generally at the low end of the spectrum.
This is due to the absence of a legal right to permanent residence, the burden
being on the applicant to establish eligibility, the impact on the applicant
being less serious than in cases of the removal of a benefit, and the public
interest in containing administrative costs (Tahereh, at para 12; Khan,
at paras 39-40).
[20]
I agree with the applicant that, as part of the
required procedural fairness in permanent residence applications, it has also
been established in the jurisprudence that visa officers have a duty to inform
the applicant of concerns relating to something other than the sufficiency of
the evidence, such as the credibility or authenticity of the evidence presented
(Fang, at para 19; Rukmangathan, at paras 22, 28; Talpur, at
para 21; Madadi, at para 6; Kumar, at para 29; Hassani, at
para 24).
[21]
However, it is also true that the burden is on
the applicant to provide a complete application. Concerns arising out of
sufficiency of the evidence do not have to be communicated to the applicant,
given that this is part of the initial burden of providing a complete
application. In Obeta, a case in which the visa officer noted that the
tasks listed in employment letters had been copied directly from the relevant
NOC codes, Justice Boivin stated as follows, at para 25:
… The applicant has the burden to put
together an application that is not only "complete" but relevant,
convincing and unambiguous (Singh v. Canada (Minister of Citizenship &
Immigration), 2012 FC 526, [2012] F.C.J. No. 548 (F.C.); Kamchibekov,
above, at para 26). Despite the distinction that the applicant attempts to
make between sufficiency and authenticity, the fact of the matter is that a
complete application is in fact insufficient if the information it includes is irrelevant,
unconvincing or ambiguous. [emphasis added]
[22]
In the case at hand, the Officer determined that
the applicant had not provided sufficient evidence that he had performed the
actions described in the lead statement for the occupation, as set out in the
occupational descriptions of the NOC. The Officer came to this conclusion based
on the employment documents submitted by the applicant, which he considered to
contain only vague descriptions of the job duties, and the applicant’s own
descriptions of the duties performed, which were often copied directly out of
the NOC. This precise situation arose in Kamchibekov where Justice
Pinard stated at para 15:
According to Operational Bulletin 120 - June
15, 2009, Federal Skilled Worker (FSW) Applications – Procedures for Visa
Offices, descriptions of duties taken verbatim from the NOC are to be regarded
as self-serving. When presented with such documents, visa officers are entitled
to wonder whether they accurately describe the applicant's work experience. Where
a document lacks sufficient detail to permit its verification and ensure a
credible description, the applicant will not have produced sufficient evidence
to establish eligibility: the visa officer must proceed to a final
determination and if the evidence is insufficient, a negative determination of
eligibility should be rendered.
[23]
In Kamchibekov, the applicant’s
description of the tasks he claimed to have performed were a verbatim copy of
tasks listed in the NOC. Justice Pinard’s analysis of whether procedural
fairness requirements arose is set out as follows at paragraphs 25-28:
[25] Alternatively, the applicant
claims that even if the officer’s reasons are sufficient, the latter breached
his duty of fairness in not conducting an interview, denying the applicant the right to respond to the
officer’s concerns as to the veracity of the application, which is the reason
his application was rejected. As defined by the applicant, the officer’s duty
of fairness required the applicant be given the opportunity to respond to the
officer’s concerns (Olorunshola v. Minister of Citizenship and Immigration,
2007 FC 1056 [Olorunshola]). Inversely, the respondent emphasizes the
context of the decision: at this eligibility stage, notification is not a
requirement of procedural fairness and the applicant was not entitled to a
running tally or an interview to correct his deficient application (Kaur v.
Minister of Citizenship and Immigration, 2010 FC 442 [Kaur]).
[26] In Kaur,
procedural fairness did not require the visa officer to notify the applicant of
the inadequacies in the materials she had provided: the onus is on an applicant
to submit sufficient evidence in support of his application (Kaur at
para 9). Therefore, in such cases, the applicant is not entitled to an interview
to remedy his own shortcomings (Kaur at para 9). Moreover, where the
visa officer’s concerns arise directly from the requirements of the legislation
or regulations, he is under no duty to notify the applicant (Kaur at
para 11; Rukmangathan v. Minister of Citizenship and Immigration, 2004
FC 284 at para 23). Relevant work experience is a concern that arises from the
regulations: a visa officer is under no duty to mention his concerns as to the
applicant’s work experience (Kaur at para 12). Ultimately, the visa
officer has no obligation to make inquiries where the applicant’s application
is ambiguous: “there is no entitlement to an interview if the application is
ambiguous or supporting material is not included” (Kaur at para 10; Sharma
v. Minister of Citizenship and Immigration, 2009 FC 786 at para 8 [Sharma];
Lam v. Canada (Minister of Citizenship and Immigration) (1998), 152
F.T.R. 316 at para 4). To hold otherwise would impose on visa officers an
obligation to give advance notice of a negative finding of eligibility (Sharma
at para 8).
[27] In the case at
hand, the officer did not have the obligation to hold an interview or to inform
the applicant of his concerns with regards to the duplication of the NOC listed
duties, much like in Kaur. In the words of Justice Danièle
Tremblay-Lamer at paragraph 14:
… It did not help that the
Applicant’s own description of her duties appeared to be copied from the
National Occupational Classification. Thus, it was open to the visa officer, on
the basis of the scant evidence before him, to find that the Applicant had not
established that she had sufficient work experience in her stated occupation,
and to reject her application on that basis.
[28] Therefore, the
officer did not breach his duty of procedural fairness.
[24]
Therefore, where descriptions of duties are
copied from the NOC, the visa officer is entitled to find that there is
insufficient evidence to establish eligibility. In this case, although the visa
officer used the word “credibility” in the
Decision, the Officer appears to have been making a finding on the sufficiency
of the evidence, given that it is supporting the overall finding that the
applicant had not provided sufficient evidence that he performed the actions
described in the lead statement for the occupation. As in Gharialia, at
paras 21-22, I agree with the respondent that, notwithstanding that the Officer
used the term “credibility”, the Officer’s
findings were not actually credibility findings, but rather a finding of
insufficiency of evidence. There was no breach of procedural fairness given
that the burden is on the applicant to provide a complete application.
[25]
Relevant work experience is a concern that
arises directly from the requirements in the legislation, and the Officer
therefore was not required to put concerns relating to this aspect of the
application directly to the applicant (Kamchibekov, at paras 25-27; Rukmangathan,
at para 23).
[26]
I find the decision in Patel, on which
the applicant relies, to be distinguishable. It is clear from Justice O’Keefe’s
reasons, at paragraphs 26-27, that he concluded the visa officer to have
regarded the employment letter in that case, into which the duties had been
copied directly from the NOC description, to be fraudulent. That case therefore
did involve an issue of credibility or authenticity rather than one of
sufficiency of the evidence. At the hearing, the Applicant also emphasized the decision
in Madadi. That case, however, also involved a situation where the Court
found that the visa officer had rejected an application based on the
credibility of the employer’s letter.
[27]
I therefore find that there was no breach of
procedural fairness in the Officer’s processing of the applicant’s application
for permanent residence.
B.
Was the Officer’s decision reasonable?
[28]
I do not regard the assessment of the evidence
by the Officer as unreasonable. First, it is clear from the Officer’s letter to
the Applicant rejecting his application, and from the GCMS notes, that the
Officer did consider the employment letters submitted by the applicant. He
refers to the “employment documents” and “letters” from the companies for which the applicant
worked, which demonstrates that they were considered in the assessment of the
application.
[29]
The Officer stated that the employment documents
contained “jargon related to the companies”,
that it was “not always clear what the duties described
mean”, and that the “employment documents only
contain a vague description of [the applicant’s] job duties”. From what
the Officer understood from the letters, he determined that the applicant’s “experience matches more that of a bookkeeper rather than an
accountant or financial manager”. When considering the employment
letters, it was open to the Officer to come to the conclusion that the duties
described were closer to that of a bookkeeper than an accountant or financial
manager.
[30]
At the hearing of this application, the
Applicant’s counsel also referred the Court to the Applicant’s resume that
formed part of the material submitted to the Officer. The Applicant argues that
the Officer took into account only the applicant’s application form, which the
Officer found contained descriptions of his duties that were often copied
directly from the NOC. The Officer failed to refer to the resume, which
represents an explanation of the “jargon”
contained in the employments letters, for which the GCMS notes say no
explanation was provided. However, having reviewed the resume, I see that it
contains essentially the same information as the application form, including
substantial portions that match the language in the NOC. I accordingly find no
merit in this argument.
[31]
A visa officer has the expertise to evaluate the
applicant’s job experience, and deference is owed to this evaluation (Buttar,
at para 9; Tiwana, at para 12). The Officer found in this case that the
evidence was insufficient to support a conclusion that the applicant’s duties
matched those of a Financial Manager or Accountant This was a reasonable
conclusion that falls within the “range of possible,
acceptable outcomes which are defensible in respect of the facts and law”
(Dunsmuir, at para 47).
VII.
Conclusions
[32]
For the reasons above,
the application for judicial review is dismissed. Counsel were consulted on
whether either party wished to raise an issue to be certified for appeal for
the Court’s consideration. No such issue was raised.
JUDGMENT
THIS COURT’S JUDGMENT is that the
application for judicial review is dismissed. No question is certified for
appeal.
“Richard F. Southcott”
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