Docket: IMM-3123-15
Citation:
2016 FC 285
Ottawa, Ontario, March 7, 2016
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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MIAN AAMIR QADEER
NABILA SHAMIN
ROOHMA AAMIR
MAARIJ AAMIR
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Applicants
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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 dated June 3, 2015, made by a Visa Officer [the Officer] of the
Immigration and Medical Services Division of the High Commission of Canada in
London, UK [High Commission], refusing the Applicants’ application for
permanent residence as members of the provincial nominee class.
[2]
For the reasons that follow, this application is
allowed.
I.
Background
[3]
The Principal Applicant, Mian Aamir Qadeer, and
his family applied for permanent residence following nomination of the
Principal Applicant by the Province of Saskatchewan [the Province] under the
Saskatchewan Immigrant Nominee Program in July 2013. The application was
forwarded to the High Commission for processing.
[4]
On August 22, 2014, the Officer wrote to the
Applicants and the Province, advising them of the possible refusal of their
application. The Officer was not satisfied that the Principal Applicant had the
English language proficiency to be able to perform the tasks of the occupation
in which he had been nominated and therefore was not satisfied that he would be
able to become employed in Canada or, if employed, to become economically
established. The Officer afforded the Applicants and the Province an
opportunity to provide further information before the decision was made.
[5]
The Province responded to the High Commission, advising
that it continued to support the application. The Applicants also responded by
providing information concerning the Principal Applicant’s plan to become
economically established together with supporting evidence. This included:
A.
A written offer from Universal Trading Inc
[Universal], a cell phone and electronics company in Saskatoon, to employ the Principal
Applicant as a cashier/front desk assistant;
B.
A letter from the owner of Universal, explaining
how he knew the Principal Applicant and stating that he would not have offered
him the job if he was not satisfied with the Principal Applicant’s English language
abilities;
C.
A letter from the Principal Applicant’s current
employer confirming his employment as an administrative assistant;
D.
A letter from his Canadian relative stating that
he would assist the Applicants in Canada; and
E.
Evidence of the Principal Applicant’s savings
and assets.
[6]
On April 9, 2015, the Officer reviewed the submissions
and was not satisfied that they addressed the concerns that had been raised.
Following concurrence by another officer at the High Commission, the Officer
wrote to the Principal Applicant on June 3, 2015, refusing the application for
permanent residence.
II.
Impugned Decision
[7]
The Officer was not satisfied that the fact the
Principal Applicant was nominated by the Province was a sufficient indicator
that he was likely to become economically established in Canada, because the
Officer was not satisfied that the Principal Applicant had the requisite
language skills. The Global Case Management System Notes indicate the analysis
in arriving at the decision to refuse the application to have included the
following:
A.
The Province continued to support the
application;
B.
The Officer was not satisfied that a job offer
itself demonstrated ability to perform the duties of a particular job;
C.
The Principal Applicant knew the prospective
employer in Canada through his current employment in Pakistan;
D.
The Principal Applicant currently worked in a
different industry and had never worked as a cashier;
E.
Neither the Principal Applicant nor his
prospective employer had explained how the Principal Applicant would accomplish
the tasks of the offered employment given his level of English language
proficiency and experience;
F.
The Officer stated it appeared likely that the
job offer may have been made to the Principal Applicant for the purposes of
facilitating his application for permanent residence because of personal
connections with the prospective employer, not because there was actually a job
vacancy to fill or because the Principal Applicant had the skills or experience
related to a possible job opening;
G.
The level of the Principal Applicant’s English did
not demonstrate that he would be able to perform the full level of tasks
associated with his intended occupation;
H.
The Applicant was found not to provide a clear
or concise plan to demonstrate his intention to become economically established
through an alternative long-term plan;
I.
The availability of many jobs and a strong
economy in Saskatchewan were not indicative in themselves of the Principal Applicant’s
individual ability to become economically established; and
J.
The Principal Applicant’s long term plan – perhaps
to open a small business such as a fast food restaurant – did not satisfy the Officer
of his ability to become economically established.
III.
Issues and Standard of Review
[8]
The Applicants submit the following issues for the
Court’s consideration:
A.
Does the Officer breach the duty of procedural
fairness by failing to put his credibility concerns to the Applicants in order
to provide them an opportunity to respond?
B.
Is the Officer’s finding that the Principal
Applicant cannot become economically established in Canada reasonable?
[9]
The parties agree, and I concur, that the
standard of review applicable to the procedural fairness issue is correctness
and the standard applicable to the Officer’s finding that the Principal
Applicant cannot become economically established is reasonableness (Rani v
Canada (Minister of Citizenship and Immigration), 2015 FC 1414 [Rani]).
IV.
Submissions of the Parties
A.
The Applicants’ Position
[10]
The Applicants argue that the Officer breached
procedural fairness by failing to put to them the credibility concern
surrounding the job offer, in order to provide an opportunity to disabuse the
Officer of this concern. The personal relationship between the employers caused
the Officer to doubt the authenticity of the job offer. The Applicants submit
that this raised an issue of credibility because, if the Officer had accepted
the job letter as true, there would be no reason for the Officer to find the
information provided by the Applicants to be insufficient.
[11]
The Applicants rely on jurisprudence of this
Court to the effect that, where an officer rejects an application based on
concerns as to the credibility or accuracy of information submitted by the
Applicant, those concerns must first be squarely put to the Applicant for a
response (Madadi v Canada (Minister of Citizenship and Immigration),
2013 FC 716 [Madadi] at para 6; Talpur v Canada (Minister of
Citizenship and Immigration), 2012 FC 25 at para 21). They refer in
particular to recent decisions where procedural fairness requirements were
addressed in the context of concerns about the credibility of job offers (Rani;
Dar v Canada (Minister of Citizenship and Immigration), IMM-2669-25
(unreported) [Dar]).
[12]
Turning to the reasonableness of the decision,
the Applicants submit that the Officer’s decision that the Principal Applicant
lacked the language skills to become economically established in Canada was
unreasonable because: (1) the Officer’s suspicion of the job offer based on
personal connection is without justification; (2) the finding that the Principal
Applicant does not have relevant experience is made without regard to the
evidence; and (3) the finding that he does not have the English skills to
perform the job duties is made without regard to the requirement to assess
whether he could become economically established.
[13]
Specifically, the Applicants argue that the mere
presence of a personal relationship between a potential employer and an
employee’s current employer cannot be grounds for suspicion. Many employment
opportunities begin with and may even require personal referrals. The evidence
states that the relationship allowed the prospective employer to assess more
fully the Principal Applicant’s qualifications. The Principal Applicant was not
known to the prospective employer through family and friends.
[14]
The Applicants also argue that the Officer erred
by focusing on the items that the prospective employer sold and a single duty
that would be addressed through worksite training, rather than the substance of
the duties and the evidence of relevant work experience. The evidence was that
working as a cashier was only one of seven duties and that the Principal
Applicant’s current experience included handling cash transactions.
[15]
Finally, the Applicants submit that the Officer focuses
not on the Principal Applicant’s mechanism of economic establishment, being his
job offer, but on his ability to perform the full range of tasks that are
performed by the majority of workers in his intended occupation, thus relying
too heavily on the Employment and Social Development Canada (ESDC) description
for that occupation.
B.
The Respondent’s Position
[16]
The Respondent submits that the basis for the
Officer’s decision was not that the Principal Applicant’s job offer was not
credible, but rather that the Officer was not persuaded that the Principal
Applicant would be able to become economically established in Canada given his
limited experience and communication skills. The Officer did not develop
concerns about the Principal Applicant’s language skills because of suspicion
that the offer may have been made due to personal connections with the
prospective employer. Rather, that suspicion resulted from the Officer’s
analysis of the Principal Applicant’s skills.
[17]
The Respondent emphasizes that the onus is on
the Applicants to submit sufficient evidence of economic establishment, and
there is no duty on the Officer to inform the Applicant of any concerns that
arise directly from the statutory requirements (Parveen v Canada
(Citizenship and Immigration), 2015 FC 473 at para 16).
[18]
The Respondent would distinguish Rani on
the basis that Justice Strickland found in that case that, viewed as a whole,
the officer’s decision was based on his skepticism as to the genuineness of the
employment offer. In the present case, the Applicant’s language ability was a
separate and dispositive ground for the refusal of the application.
[19]
On the reasonableness of the decision, the
Respondent argues that, even accepting the Principal Applicant had a genuine
job offer, this did not prove that he had the skills and experience to carry
out the job successfully, remain employed, and become economically established
over the long-term. The Respondent also notes that the prospective employer’s
letter refers to him and the Principal Applicant both speaking Urdu, which
facilities communication, and argues this makes it unclear how the employer
could assess the Principal Applicant’s proficiency in English.
V.
Analysis
[20]
My decision to allow this application for
judicial review turns on the procedural fairness issue raised by the
Applicants. As noted by the Applicants, at paragraphs 6 to 7 of Madadi,
Justice Zinn succinctly summarized the jurisprudence surrounding procedural
fairness obligations in the context of applications for permanent residence as
follows:
6 The jurisprudence of this Court
on procedural fairness in this area is clear: Where an applicant provides
evidence sufficient to establish that they meet the requirements of the Act or
regulations, as the case may be, and the officer doubts the “credibility, accuracy or genuine nature of the
information provided” and wishes to deny the application based on those
concerns, the duty of fairness is invoked: Perez Enriquez v Canada
(Citizenship and Immigration), 2012 FC 1091 at para 26; See also among many
decisions Patel v Canada (Citizenship and Immigration), 2011 FC 571; Hamza
v Canada (Citizenship and Immigration), 2013 FC 264; Farooq v Canada
(Minister of Citizenship and Immigration), 2013 FC 164; and Ghannadi v
Canada (Minister of Citizenship and Immigration), 2013 FC 515.
7 In line with the authorities
cited above, because the officer erred in failing to put his or her concerns to
the Applicant, the Applicant was denied fairness, and the decision must be set
aside.
[21]
In Rani, this principle was applied in
circumstances very similar to the case at hand, involving concerns about the
credibility or genuineness of a job offer that was provided by the applicant
after the visa officer had questioned the applicant’s language skills. After
canvassing jurisprudence relevant to the applicable procedural fairness
obligations, and noting that a visa officer’s credibility findings may be
implicit rather than explicit, Justice Strickland found as follows at paragraphs
21 to 25:
21 In this case, in response to the
pre-refusal letter, the Principal Applicant provided information intended to
support her submission that she could become economically established in
Saskatchewan. The Officer found
that the TFI job offer was “self-serving” because it “may
have been offered only in response to concerns” and because the
Principal Applicant “is related to the prospective
employer”. In my view, this speaks to the Officer’s assessment of the
genuineness of the TFI job offer. This is also supported by the Officer’s
further comment “even if the job offer reflects an
actual employment opportunity…”. Based on his reasons, it is clear that
the Officer had concerns that the TFI offer was not an “actual employment opportunity” and, therefore, that
the credibility of the Principal Applicant’s evidence was in issue.
22 The Officer’s credibility concern
arises, in part, from the timing of the TFI job offer which was dated and
submitted only after the Officer notified the Principal Applicant of his
concerns regarding her language skills. A similar concern arose in Ransanz v Canada (Public Safety and Emergency Preparedness), 2015 FC 1109. In that case, the visa officer was concerned that the applicant did not intend to live
in Quebec as required by the Quebec immigrant nomination program and the
IRPA Regulations. The officer informed the applicant of his concerns and
scheduled an interview with the applicant. After being informed of the
concerns, but prior to the interview, the applicant’s wife traveled to Montreal
to research real estate and schools, which the applicant raised as evidence of
their intention to move. On judicial review, the respondent suggested that the
applicant’s research into real estate and schools in Montreal was only
undertaken in anticipation of the interview with the visa officer. Justice
Martineau held that if the officer had suspected that the trip to Montreal had
only taken place because the applicant was aware of his upcoming interview, the
officer should have raised this concern and given the applicant an opportunity
to respond as this issue went directly to the applicant’s credibility (Moradi v Canada (Citizenship and Immigration), 2013 FC 1186 at paras 17-18).
23 And, although in this case the
Officer goes on to assess the TFI job offer, finding that there was
insufficient evidence to demonstrate that the Principal Applicant’s language
skills would be sufficient for the position with TFI, in my view this
conclusion was tainted by his concern with the genuineness of the Principal
Applicant’s evidence. This is evident in the Officer’s statement that “evidence of her involvement with spouse’s business comes
only from her own statements and that of her supporting relative in Canada. It
is therefore not clear to what extent the context of English language use…could
be considered familiar”. Yet, in his supporting letter Ahmed had stated
that the Principal Applicant’s English was sufficient for the position at TFI
and that her familiarity with the business would be helpful. The Principal
Applicant’s letter stated that she had been working full time for her husband.
24 Thus, the Principal Applicant had
provided sufficient information which, if believed, could ground a finding that
she was able to obtain employment and, thereby, potentially become economically
established (Bar v Canada (Citizenship and
Immigration), 2013 FC 317 at para 29). However, the
Officer was unconvinced because he doubted the genuineness or accuracy of the
evidence due to his concerns about its source.
25 In my view, this case is not
defined by conclusions as to the weight or sufficiency of the evidence. Viewed
as a whole, the Officer’s decision was based on his skepticism as to the
genuineness of the Principal Applicant’s employment offer, which, in my view
amounts to a finding regarding the credibility of the Principal Applicant’s
evidence. Therefore, the Officer should have provided the Principal Applicant
with an opportunity to address those concerns before making his decision.
[22]
Similarly in the case at hand, it is clear to me
that the Officer was concerned about the genuineness or credibility of the job
offer and letter from the prospective employer provided by the Principal
Applicant. The relevant portion of the decision reads as follows:
In a statement responding to concerns
regarding PA’s ability to establish economically on account of PA’s
demonstrated lack of Eng. language proficiency, rep first refers to PA’s job
offer. Rep submits that PA being offered the job demonstrates that PA’s level
of English is sufficient to perform the work of the job. I am not satisfied
that a job offer, in itself, demonstrates PA’s ability to perform the duties of
a particular job. While I note the assurances provided by the prospective
employer, I also note that the applicant is known personally to the prospective
employer through his employer in Pakistan. PA’s empl history appears
related to water purification/filtration products, and PA has not demonstrated
any formal training or experience as a cashier or in an industry related to
mobile phones (the indicated industry of the prosp. employer). Neither the PA
or prospective employer have explained how the applicant will accomplish the
tasks of the offered employment considering his demonstrated level of English
language proficiency and experience. It appears likely therefore that the
job offer may have been made to PA for the purposes of facilitating his application
for permanent residence because of personal connections with the prospective
employer and not because there is actually a job vacancy to fill or because the
PA has skills and experience related to a possible job opening. (emphasis
added)
[23]
The underlined passages in this portion of the
decision demonstrate the Officer’s skepticism as to the legitimacy of the job
offer, concluding that it had likely been made to facilitate the Principal Applicant’s
immigration objectives because of a personal connection with the employer.
[24]
I have considered the Respondent’s argument that
this skepticism did not cause the Officer to reject the prospective employer’s
evidence that the Principal Applicant’s language proficiency was sufficient to
perform the job, but rather resulted from the Officer’s concerns about such
proficiency. I have also considered the Respondent’s argument that, following
the consideration of the job offer, the Officer proceeds to conduct further
analysis of the Principal Applicant’s language skills and independently finds
them lacking. However, in my view, the Officer’s skepticism as to the job offer
is intertwined with the findings as to the Principal Applicant’s language
proficiency and his resulting ability to become economically established.
[25]
Similar to the situation addressed by Justice
Strickland in Rani, the analysis of the language skills in the present
case was tainted by the concern about the genuineness of the offer. In the
absence of this concern, the evidence of the job offer and the letter provided
by the prospective employer could have been sufficient to support a finding
that the Principal Applicant was able to obtain employment and potentially
become economically established. It was therefore a breach of procedural
fairness for the Officer not to put those concerns to the Principal Applicant
before reaching the decision to reject his application.
[26]
As argued by the Applicants, this conclusion is
also supported by other recent decisions of this Court (see Dar; Sardar
v Canada (Citizenship and Immigration), 2015 FC 1373; Meraj v Canada
(Citizenship and Immigration), 2016 FC 210 [Meraj]). Meraj is
a particularly relevant authority, as the visa officer’s decision recited in
that case specifically impugned the impartiality of a prospective employer’s
assessment of the applicant’s language skills, on the basis that the employer
was a family friend. The Court found the officer’s suspicion resulted in a duty
of fairness to make further inquiries. Similarly, in the present case, it was
not only the Officer’s concern about the genuineness of the job offer, but the
concern about the impartiality of the prospective employer’s assessment of the
Principal Applicant’s English language ability, which engaged the obligation to
follow up on those concerns.
[27]
As the breach of procedural fairness represents
a basis for the Officer’s decision to be set aside and referred to another visa
officer for re-determination, I decline to make findings as to the
reasonableness of the Officer’s decision. The Principal Applicant’s arguments
in support of his ability to become economically established are best
considered by the officer who will be re-determining the application for permanent
residence.
[28]
The parties confirmed that neither proposes any
question of general importance for certification for appeal.
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