Docket: IMM-4830-15
Citation:
2016 FC 1162
Ottawa, Ontario, October 20, 2016
PRESENT: The
Honourable Madam Justice McDonald
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BETWEEN:
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OKEOMA NCHELEM
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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 a
decision of an Immigration Officer at Citizenship and Immigration Canada (CIC) dated
October 19, 2015 denying Mr. Nchelem a post-graduate work permit. The Officer
concluded that Mr. Nchelem had worked in Canada without authorization, contrary
to subsection 183(1) of the Immigration and Refugee Protection Regulations,
SOR/2002-227 [Regulations].
[2]
Mr. Nchelem argues that the decision of the
Officer is both unfair and unreasonable. I agree. For the reasons that follow,
this judicial review is allowed.
[3]
In 2010, Mr. Nchelem came to Canada from Nigeria
on a study permit. He completed a year of study at York University and then attended
Bow Valley College. In 2014, he undertook the practical nursing program at NorQuest
College and graduated in May 2015.
[4]
Following graduation, Mr. Nchelem applied to CIC
for a post-graduate work permit. He listed his intended occupation as a
licensed practical nurse.
[5]
On October 8, 2015, he received a letter from
CIC asking that he provide his English language test results, as well as a copy
of all transcripts from his studies in Canada. The Officer also asked for “a letter from the school he wished to attend showing that
all the requirements of admission have been met”. However, Mr. Nchelem
had already obtained his diploma. He was applying for a work permit, not a
study permit. He was given until October 15, 2015 to provide this information.
[6]
Mr. Nchelem was in Nigeria when he received this
letter from CIC and only had his transcript from NorQuest College with him,
which he faxed to CIC on October 10, 2015.
[7]
By letter dated October 19, 2015, the Officer
refused the application. The Officer found that the Applicant had worked in
Canada without authorization, and therefore violated a condition of his study
permit. The Officer noted that the Applicant took a number of practicums during
his studies at NorQuest College, but he did not hold a work permit which
authorized him to work in Canada. The Officer also noted that the only course
the Applicant undertook in the spring 2014 semester was “Nursing Practice: Continuing Care Practice”.
[8]
The Officer also noted that the Applicant was
asked to provide transcripts for all of his studies in Canada and that he only
provided transcripts for studies as of January 2014, despite having been on a
study permit since August 18, 2010.
[9]
The determinative issue is whether Mr. Nchelem
was treated fairly in the process.
[10]
Allegations of procedural unfairness are
reviewed on the standard of correctness: Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12 at para 43.
[11]
Mr. Nchelem maintains that he has never worked
in Canada and has always been a full-time student.
[12]
Mr. Nchelem sought to introduce a letter from
NorQuest College, dated November 5, 2015, explaining the program. The
Respondent objects to the admissibility of this letter, as it post-dates the
Officer’s decision: Zolotareva v Canada (Minister of Citizenship and
Immigration), 2003 FC 1274 at para 36; Gallardo v Canada (Minister of
Citizenship and Immigration), 2003 FCT 45 at para 7.
[13]
While judicial review is generally limited to
the material before the decision-maker, there is an exception to this rule when
the evidence is introduced to support an allegation of procedural unfairness: Ochapowace
First Nation v Canada (Attorney General), 2007 FC 920 at para 9.
[14]
Here, the letter was not before the Officer and
thus, cannot be used to undermine the Officer’s assessment of the evidence and
findings of fact. However, the letter does illustrate the evidence which Mr.
Nchelem could have provided to CIC, had he been afforded the opportunity to
respond.
[15]
In the circumstances of this case, I am of the
view that the content of the duty of fairness included a duty to inform Mr.
Nchelem of the concern the Officer had about his practicum courses. The October
8, 2015 letter sent to the Applicant did not do this. It erroneously requested
information from the Applicant for the purposes of a study permit. The
Applicant was asked to provide his transcripts but he was not asked to explain
his practicum coursework at NorQuest College. This was unfair. Therefore this
judicial review is allowed. There is no question for certification.
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