Docket: IMM-3486-15
Citation:
2016 FC 264
Ottawa, Ontario, March 1, 2016
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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ABDUL MURSALIM
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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 dated June 7, 2015 of an officer [the Officer] of the High Commission
of Canada – Singapore Office, in which the Officer refused the Applicant’s
application for a permanent resident visa on the basis that the Applicant did
not meet the definition of a dependent child in the Immigration and Refugee
Protection Regulations, SOR/2002-227 [the Regulations] made under the Immigration
and Refugee Protection Act, SC 2001, c 27.
[2]
For the reasons that follow, this application is
allowed.
I.
Background
[3]
The Applicant’s mother was recognized as a
Convention Refugee. After obtaining her status, she filed an application for
permanent residence and included the Applicant, who is living in Bangladesh, as
her overseas dependent.
[4]
On September 30, 2014, the Officer sent a letter
to the Applicant, informing him that his application for a permanent resident
visa was refused because he did not meet the definition of dependent child
under Section 2 of the Regulations. The Officer’s letter stated that the
Applicant, who is more than 22 years old, had not provided conclusive evidence
that he had been continuously enrolled in and attending a post-secondary
institution and had been actively pursuing a course of academic, professional
or vocational training on a full-time basis. The Applicant filed a request for
reconsideration of the Officer’s decision and, after several additional
communications and submissions, the Officer issued the decision that is the subject
of this application for judicial review on June 7, 2015.
II.
Impugned Decision
[5]
The Officer’s decision advised that he had
reviewed the submitted documents for the Applicant but that the decision to
refuse the application had been maintained. He remained unsatisfied that the Applicant
met the definition of dependent child in that he was not actively pursuing a
course of academic, professional or vocational training on a full-time basis.
The Officer referred to documents which suggested that the Applicant has a
learning disability, Attention Deficit Hyperactivity Disorder [ADHD]. However, given
the timing of the documents and the fact that this condition was never previously
raised, the Officer did not give these documents any significant weight.
[6]
In reaching this decision, the Officer noted
that there was no mention of ADHD in the Applicant’s original application,
which had expressly indicated he did not have any mental disorder, and that
there was no mention of any non-normal finding on his Immigration Medical
Examination dated July 15, 2014. He found the timing of the ADHD diagnosis to
be questionable, especially considering the Applicant had failed academically
in the years 2011 and 2013, as well as failing at a secondary school level in 2005
and 2006.
III.
Issues and Standard of Review
[7]
The Applicant submits the following issues for
the Court’s consideration:
A.
Did the Officer fetter his discretion and make
his decision in a perverse or capricious manner or without regard to the
material before him by:
i.
Failing to consider the Applicant’s supporting
documents and submissions; and
ii.
Making unreasonable implicit credibility
findings?
B.
Did the Officer breach the Applicant’s
procedural fairness rights or fetter his discretion and fail to show the
existence of justification, transparency and intelligibility within the
decision making process by:
i.
Failing
to consider or refer to the Applicant’s request for an interview;
ii.
Failing
to provide the Applicant with an opportunity to respond to the Officer’s
implicit credibility concerns; and
iii.
Failing
to consider and refer to the Applicant’s request for a possible exemption based
on humanitarian and compassionate [H&C] grounds?
[8]
The Applicant submits that the standard of
correctness applies to its allegations of procedural unfairness and the
standard of reasonableness to its other arguments. The Respondent argues that
the Officer’s decision deals with questions of fact and discretion and is
subject to a standard of reasonableness.
[9]
I agree with the Applicant’s position on the applicable standards of
review. Issues of procedural farness are reviewable on a standard of
correctness (see Weng v Canada (MCI), 2014 FC 778), but otherwise the
Officer’s decision is reviewable on a standard of reasonableness (see Donovan
v Canada (Minister of Citizenship and Immigration), 2015 FC 359).
IV.
Submissions of the Parties
A.
Applicant’s Position
[10]
The Applicant raises several arguments in his
submissions on procedural fairness. He argues the Officer failed to consider
his request for an interview, noting that one can be a bona fide student
and still have a poor academic record and that in such cases visa officers should
satisfy themselves that the student has made a genuine effort (Sandhu v
Canada (Minister of Citizenship and Immigration), 2002 FCA 79). He also
argues that he was not provided with an opportunity to respond to the Officer’s
implicit credibility concerns. Finally, he submits that the Officer failed to
consider or even refer to his request for a possible exemption based on H&C
grounds.
[11]
On the reasonableness of the decision, the Applicant argues that the
Officer failed to consider his supporting documents and submissions
surrounding his learning disability, as the decision does not mention the
contents of the documents that were submitted to address the specific new
concern the Officer had raised. He also submits that the Officer made a
reviewable error by discounting these documents without making any finding that
they were fraudulent.
[12]
The Applicant’s position is that the Officer made an unreasonable implicit
credibility finding about the Applicant. He notes that it was only through the
last communication from the Officer on January 13, 2015 that the Applicant
became aware of the concern about failing and repeating two years. His new
evidence was in response to that concern. The Applicant submits that it is
clear from his psychologist’s report that, while the Applicant has had academic
difficulties since high school, his doctor started to assess him only on August
17, 2014, leading to a diagnosis on October 28, 2014. This explains why the
diagnosis was not in his original application or the Immigration
Medical Examination.
B.
Respondent’s Position
[13]
The Respondent submits that the Applicant has no guaranteed right to an
interview in an application for permanent residence and that an officer does
not breach principles of procedural fairness in deciding not to interview an
applicant to allow the applicant to clarify any ambiguity or concern in his or
her application. The Respondent also argues that the Applicant was provided
with three opportunities to address the Officer’s concerns and that the onus is
on the Applicant to put his best case forward. On the H&C argument, the
Respondent notes that this request was first raised on January 30, 2015 and
that the Applicant already had an opportunity to provide four sets of
submissions over the course of two years. He also did not set out the factors
to be considered.
[14]
On the reasonableness of the decision, the
Respondent argues that the Officer clearly considered all of the documents, as
he referred to many of them in the decision. The Respondent’s position is that
the Applicant is merely disagreeing with the weight given to these documents. With
respect to the diagnosis of ADHD, the Officer does not take issue with an inconsistency
but rather notes the timing of the diagnosis, after all of the other forms were
completed and the Applicant had already been refused, which raises concerns
about the legitimacy of the diagnosis.
V.
Analysis
[15]
I am allowing this application for judicial review,
because I do not consider the Officer to have met the procedural fairness
obligation to advise the Applicant of his concerns about the legitimacy of his
alleged learning disability, so as to afford the Applicant an opportunity to
respond to those concerns before the Officer made the decision not to give any
significant weight to the evidence of that disability.
[16]
The Applicant cites Kuhathasan v Canada
(Minister of Citizenship and Immigration), 2008 FC 457 [Kuhathasan]
as authority for the obligation of a visa officer to make concerns known to an
applicant, and to provide an opportunity to respond, where those concerns
relate to the credibility, accuracy or genuine nature of information submitted
by the applicant, including concerns about the veracity of documentary
evidence. At paragraph 37 of Kuhathasan, Justice Russell explained the
applicable principles as follows:
[37] There is a considerable body of
case law emanating from this Court indicating that there is no duty on a visa
officer to try and bolster an incomplete application. A visa officer may make
inquiries, when warranted, but is not obliged to inform an applicant of the
weaknesses of his or her case and provide an opportunity to strengthen the
application. The usual exception is where an officer has concerns about the
veracity of an applicant’s documents. In Olorunshola v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1056, Justice Tremblay-Lamer provided
the following summary at paragraphs 32-34:
32. In Yu v. Canada (Minister of Employment and Immigration),
[1990] F.C.J. No. 704 (Q.L.), MacKay J. held that visa officers are not
required to stress all concerns which arise directly from the act and
regulations, given that these instruments are available to all applicants who
bear the burden of establishing that they meet the pertinent selection
criteria.
33. However,
this Court has also indicated that where concerns arise which are not directly
related to the act and regulations, visa offers may be required to make these
concerns known to the applicant. As stated by Mosley J., this is “often the
case where the credibility, accuracy or genuine nature of information submitted
by the applicant in support of their application” is at issue (Hassani, supra, at para. 24).
34. Accordingly, where concerns arise with respect to the veracity of
documentary evidence, visa officers should make further inquiries (see Huyen
v. Canada (Minister of Citizenship and Immigration), 2001 FCT 904, [2001]
F.C.J. No. 1267(QL), at paras. 2 and 5; Kojouri v. Canada (Minister of
Citizenship and Immigration), 2003 FC 1389, [2003] F.C.J. No. 1779 (QL), at
paras. 18 and 19; Salman v. Canada (Minister of Citizenship and Immigration),
2007 FC 877, [2007 F.C.J. No. 1142] (QL), at paras. 12 to 18).
[17]
The Respondent does not take issue with the
existence of this duty of fairness. While taking the position that there is no
requirement that such a duty be afforded by way of an interview, the Respondent
acknowledges that when there are credibility issues, the duty of fairness will
generally require that an Applicant be afforded an opportunity to address the
concerns in a meaningful way. However, the Respondent disputes the Applicant’s
characterization of the Officer’s decision as involving a credibility finding
and argues that, regardless, the Applicant was afforded a number of
opportunities to address the Officer’s concerns.
[18]
The Respondent notes that the Officer’s decision
is expressed as a decision not to give significant weight to the documents
suggesting the Applicant has a learning disability, because of the timing of
the documents. With respect, my view is that it is clear that this does
represent a finding as to the credibility, veracity or genuineness of this
documentation, particularly the report from the Applicant’s psychologist
containing the ADHD diagnosis. The Officer finds the timing of the diagnosis “questionable at best”, which can only be
characterized as expressing a basis for a concern about the genuineness of the
diagnosis. Indeed, even the Respondent’s written submissions described the
Officer as noting that the timing of the diagnosis raises concerns about the “legitimacy” of the diagnosis. I find that it is clear
the Officer’s concerns were of the sort that engaged the duty of procedural
fairness, requiring that the Applicant be afforded an opportunity to address
those concerns.
[19]
I also cannot accept the Respondent’s position
that this duty was met though the previous opportunities that were given to the
Applicant to submit information to the Officer and respond to concerns that
were expressed. The sequence of relevant events described by the Respondent is
as follows:
A.
The Applicant’s application was initially
refused on September 30, 2014;
B.
The Applicant requested that the decision be
reconsidered and that he be given an opportunity to provide documents in
response to the Officer’s initial finding;
C.
The Officer agreed and the Applicant provided
additional documents and submissions on December 9, 2014;
D.
On December 28, 2014, the Officer emailed the
Applicant’s representative and advised him of specific concerns, providing the
Applicant another opportunity to provide documents, which the Applicant did on
January 13, 2015;
E.
On January 13, 2015, the Officer advised the
Applicant that he still had concerns and allowed the Applicant another
opportunity to provide documents, which the Applicant did on January 30, 2015.
It was these documents that contained the information related to the alleged
learning disability;
F.
On June 7, 2015, the Officer made the decision
that is the subject of this judicial review.
[20]
There was considerable communication between the
Officer and the Applicant. The question is whether, looking at the details of
these communications, any of them placed the Applicant on notice that he should
address concerns about the legitimacy of the alleged learning disability. The
initial decision of September 30, 2014 simply communicated that the Applicant
had not provided conclusive evidence that he had been continuously enrolled in
and attending a post-secondary institution and had been actively pursuing a
course of academic, professional or vocational training on a full-time basis.
The December 28, 2014 communication from the Officer requested academic
transcripts and noted that the Applicant was listed as a second year student
after at least four years of studies.
[21]
On January 13, 2015, the Applicant responded
with the requested documents and submitted that the transcript showed that,
because he was enrolled in December 2009, the first year of studies was 2010.
He passed his first year of studies but did not pass the second year in 2011
and had to repeat that year in 2012. The transcript also showed that the
Applicant did not pass his third year of studies in 2013 and had to repeat that
year in 2014. The Officer then informed the Applicant that he was concerned
with his status as a student as he had failed two years and therefore was not
actively pursuing his course of studies. The Officer was prepared to consider
any further submissions received up to January 31, 2015. It was in response to
this communication that the Applicant provided the submissions and eleven pages
of supporting documents which described the Applicant having a learning
disability.
[22]
While the Officer’s communications with the
Applicant in December 2014 and the first half of January 2015 identified the
Officer’s concerns that the Applicant’s academic history did not demonstrate
that he was actively pursuing his studies, they raised no concerns about the
legitimacy of his ADHD diagnosis . Of course, this precise concern could not
have been raised in those communications, as this explanation for the number of
years the Applicant had been studying was presented to the Officer only on
January 30, 2015. However, I also cannot conclude that the Officer having previously
raised the more general concern about the Applicant’s active pursuit of his
studies was in some way sufficient to put him on notice that, once information
as to the learning disability diagnosis was provided, the Officer would have
concerns about the genuineness of that diagnosis.
[23]
Despite the Respondent’s argument that applying
the duty of procedural fairness in the manner argued by the Applicant can
result in an ongoing series of submissions, resulting credibility concerns, and
requests for further submissions, my conclusion is that this duty does require
such a result when a decision-make develops a fresh concern about credibility,
accuracy, veracity or genuineness that an applicant has not previously had an
opportunity to address.
[24]
The potential for this is evident in the Court’s
recent decision in Rani v Canada (Minister of Citizenship and Immigration),
2015 FC 1414, in which Justice Strickland was considering a decision on a
permanent resident application that turned on the genuineness of a job offer.
The job offer was submitted by the applicant following receipt of a procedural
fairness letter raising concerns about the applicant’s language skills being
sufficient to enable her to become economically established. While this point
was not the subject of any express commentary in the Court’s decision, the fact
that a procedural fairness letter had previously been sent did not represent an
impediment to the Court concluding that the officer’s subsequent concerns about
the genuineness of the offer gave rise to an obligation to raise this
credibility concern with the applicant.
[25]
The Applicant raises a number of arguments as to
why the Officer’s decision, in addition to being procedurally unfair, is
unreasonable. For instance, he argues that the Officer overlooked the fact that
the Applicant’s consultation with and diagnosis by his psychiatrist were
subsequent to the submission of his original application for permanent
residence. He therefore submits it was not reasonable for the Officer to make
negative findings as to the credibility or probative value of the documents
speaking to the diagnosis, based on the fact the disability was not identified
on the application. However, as I have reached the conclusion that the
obligation of procedural fairness has not been met, which requires that this
application for judicial review be allowed and the Officer’s decision be
re-determined by another officer, I decline to reach any conclusions on the
reasonableness of the decision. The Applicant can make submissions as to the
legitimacy of the diagnosis when this matter is being re-determined, and those
submissions can be assessed by the officer conducting the re-determination.
[26]
Neither party proposed a question of general
importance for certification for appeal.
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