Docket: IMM-4187-15
Citation:
2016 FC 509
Ottawa, Ontario, May 6, 2016
PRESENT: The
Honourable Madam Justice Kane
|
BETWEEN:
|
|
GURBINDER SINGH
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
The applicant, Gurbinder Singh, seeks judicial
review pursuant to section 72 of the Immigration and Refugee Protection Act,
SC 2001, c 27 [the Act] of a decision of an Immigration Officer at the High
Commission of Canada in London, United Kingdom [the Officer] who refused his
application for a permanent resident visa as a skilled worker.
[2]
The applicant submits that the Officer breached
procedural fairness and that the Officer’s findings, that he failed to show
that he had the requisite experience to perform the duties set out in the
Arranged Employment Opinion and that his job offer as a jewellery appraiser was
not genuine, were not reasonable.
[3]
For the reasons that follow, the application is
dismissed.
I.
Background
[4]
The applicant is a citizen of the United Kingdom
and currently resides there. He applied to become a permanent resident of
Canada in October 2010 by submitting the application and an Arranged Employment
Opinion.
[5]
The Arranged Employment Opinion, dated November
17, 2009, was based on an offer of employment from Manny’s Jewellery and
Fabrics [Manny’s] in Surrey, British Columbia, offering the applicant a
position as a jewellery appraiser. Manny’s is owned by the applicant’s
father-in-law. The applicant also provided copies of job offer letters from
Manny’s, dated August 2, 2009 and June 12, 2012.
[6]
To establish his experience, the applicant
provided: a copy of a two-year employment contract from Apna Jewellery House
[Apna], also located in Surrey, British Columbia, dated April 30, 2009, which
set out the applicant’s duties as appraising gem stones and Indian-style
jewellery; copies of several cheques over a four year period paid to him by
Apna; and a personal letter describing his experience and qualifications.
[7]
The Officer sent the applicant a procedural
fairness letter on May 26, 2015, noting concerns about the applicant’s
experience as a jewellery appraiser and about the job offer as a means of
facilitating the application for permanent residence. The Officer believed that
the applicant had not provided objective or credible evidence of his
experience. The Officer was also not satisfied that the job offer was genuine
because of the amount of time the job had remained open and the applicant’s
family connections to the employer. The Officer invited the applicant to respond.
[8]
The applicant responded with a brief letter
asserting his qualifications as a jewellery appraiser and that the job offer
was genuine. He also provided a letter from Manny’s, dated June 15, 2015, which
confirmed that the job remained open for him.
II.
The Decision Under Review
[9]
The Officer refused the application for a
permanent resident visa. The GCMS notes, particularly the entry dated August
12, 2015, provide the reasons for the decision.
[10]
The Officer found that the applicant’s response
to the procedural fairness letter did not provide any new information and did
not address the concerns identified. The June 2015 offer of employment was
identical to the previous offers. There was no objective evidence about what
the cheques from Apna were for, whether tax had been paid on the amounts, or
even if the cheques had been cashed.
[11]
The Officer was not satisfied that the applicant
had the knowledge to perform the duties set out in the Arranged Employment
Opinion or that the job offer was genuine. The Officer noted that the applicant
provided no objective evidence of his employment experience as a jewellery
appraiser and that the only proof of experience was an employment contract from
Apna, which “could be created in a few minutes on a
computer” and was not signed by the applicant; copies of the cheques
from Apna; and a six-line letter from Apna stating that the applicant works as
a jewellery appraiser.
[12]
The Officer added that the duties set out in the
Arranged Employment Opinion were “of a complexity that
appears not to be commensurate with his education and experience.”
[13]
The Officer, therefore, assigned zero points to
the “arranged employment” category and zero
points to the “experience category”. As a
result, the applicant did not meet the 57 points required for a positive
decision.
III.
The Issues
[14]
The applicant argues that:
−
The Officer breached procedural fairness by not
providing him with a meaningful opportunity to respond to the Officer’s
concerns, including by not interviewing him or advising him of the specific concerns
about his work experience;
−
The Officer unreasonably found that he had
failed to demonstrate that he had the requisite work experience; and
−
The Officer unreasonably found that his job
offer from Manny’s was not genuine and was only for the purpose of facilitating
his application for permanent residence.
IV.
Standard of Review
[15]
Issues of procedural fairness are reviewable on
a correctness standard: Canada (Minister of Citizenship and Immigration) v
Khosa, 2009 SCC 12 at para 43, [2009] 1 S.C.R. 339.
[16]
The Officer’s decision with respect to the
applicant’s eligibility for permanent resident status requires the Officer to
assess the application and exercise his discretion and is, therefore,
reviewable on a reasonableness standard (Obeta v Canada (Minister of Citizenship
and Immigration), 2012 FC 1542 at para 14, 424 FTR 191 [Obeta]).
[17]
Where the reasonableness standard applies the
Court considers whether the decision “falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47,
[2008] 1 S.C.R. 190). Deference is owed to the decision maker, in this case, the
Officer, and the Court will not re-weigh the evidence.
V.
Did the Officer Breach Procedural Fairness?
[18]
The applicant argues that the general nature of
the Officer’s procedural fairness letter did not alert him to the concerns and
did not provide him with a meaningful opportunity to address those concerns.
The applicant submits that the Officer’s concerns related to the credibility of
his documents and bordered on suggesting misrepresentation. He argues that the
duty of fairness is invoked where an officer doubts an applicant’s credibility
and, in these circumstances, the Officer doubted his credibility (Madadi v
Canada (Minister of Citizenship and Immigration), 2013 FC 716 at para 6,
[2013] FCJ No 798 (QL)).
[19]
The applicant adds that the Officer was required
to make the applicant aware of his specific concerns regarding the veracity of
his documents and was required to make further inquiries (Hassani v Canada
(Minister of Citizenship and Immigration), 2006 FC 1283 at para 24, [2006]
FCJ No 1597 (QL) [Hassani]; Chawla v Canada (Minister of Citizenship
and Immigration), 2014 FC 434 at paras 12-21, [2014] FCJ No 451 (QL) [Chawla]).
[20]
The applicant also argues that, as a result of
the nature of the concerns, an interview should have been held, which would
have allowed him to demonstrate his knowledge of Indian-style jewellery and to
address the Officer’s concerns about his experience and the offer of
employment.
[21]
The respondent argues that the procedural
fairness letter clearly outlined the Officer’s concern about the insufficiency
of the evidence regarding the applicant’s experience and ability to perform the
duties in the Arranged Employment Opinion, as well as the concern that the
arranged employment offer was not genuine. The letter provided the applicant
with the opportunity to respond and to provide more evidence.
[22]
The respondent notes that the content of the
duty of fairness owed to visa applicants is at the low end of the spectrum (Tahereh
v Canada (Minister of Citizenship and Immigration), 2008 FC 90 at para 12,
[2008] FCJ No 133 (QL) [Tahereh]).
[23]
The onus remains on the applicant to demonstrate
his eligibility for the permanent resident visa. There is no entitlement to an
interview to correct the deficiencies in the supporting materials (Kaur v
Canada (Minister of Citizenship and Immigration), 2010 FC 442 at para 10,
[2010] FCJ No 587 (QL) [Kaur]).
There was no breach of procedural fairness
[24]
The applicant appears to overstate the
procedural fairness requirements established in the jurisprudence and their application
to his circumstances.
[25]
In Tahereh, the Court noted that the duty
of procedural fairness owed by officers determining permanent resident
applications is at the lower end of the spectrum and explained the rationale:
[12] […] In this case, the decision in
question is a visa officer's decision on an application for permanent
residence, and the duty of fairness has been determined to be at the relatively
low end of the spectrum in this context, due to the absence of a legal right
to permanent residence, the fact that the burden is on the applicant to
establish her eligibility, the less serious impact on the applicant that the
decision typically has, compared with the removal of a benefit, and the public
interest in containing administrative costs (Khan v. Canada (Minister of
Citizenship and Immigration), 2001 FCA 345, [2002] 2 F.C. 413 (C.A.)).
[Emphasis added]
[26]
In Hamza v Canada (Minister of Citizenship
and Immigration), 2013 FC 264 at paras 21-24, [2013] FCJ No 284 (QL),
Justice Bédard considered the refusal of an applicant’s permanent resident
status as a skilled worker, extensively reviewed the applicable case law and
provided a summary of the relevant principles: the onus is on the applicant to
establish that he meets the requirements of the Immigration and Refugee
Protection Regulations, SOR/2002-227 [Regulations] by providing sufficient
evidence in support of his application; the duty of procedural fairness owed by
visa officers is at the low end of the spectrum; there is no obligation on a
visa officer to notify the applicant of the deficiencies in the application or
the supporting documents; and, there is no obligation on the visa officer to
provide the applicant with an opportunity to address any concerns of the
officer when the supporting documents are incomplete, unclear or insufficient
to satisfy the officer that the applicant meets the requirements (see also Kamchibekov
v Canada (Minister of Citizenship and Immigration), 2011 FC 1411 at para
26, [2011] FCJ No 1782 (QL); Kaur at paras 6-14). Justice Bédard added
at paras 25-28 that, as determined in Hassani at para 24, an officer may have
such a duty when the concerns arise from the credibility, veracity or
authenticity of the documents, rather than from the sufficiency of the
evidence.
[27]
In Hassani, Justice Mosley reconciled
some of the pre-existing jurisprudence and found at para 24:
[24] Having reviewed the factual
context of the cases cited above, it is clear that where a concern arises
directly from the requirements of the legislation or related regulations, a
visa officer will not be under a duty to provide an opportunity for the
applicant to address his or her concerns. Where however the issue is not one
that arises in this context, such a duty may arise. This is often the case
where the credibility, accuracy or genuine nature of information submitted by
the applicant in support of their application is the basis of the visa officer’s
concern, as was the case in Rukmangathan, and in John and Cornea
cited by the Court in Rukmangathan, above.
[28]
While officers are often required to
provide an opportunity for an applicant to address concerns about the
credibility, accuracy or genuine nature of the information, the use of the term
“may” signals that the Court in Hassani
did not establish an absolute obligation (Ansari v Canada (Minister of
Citizenship and Immigration), 2013 FC 849 at paras 17-19, [2013] FCJ No 892
(QL); Obeta at para 25). The facts of each case must be examined.
[29]
In the present case, it is necessary to consider
whether the Officer’s concerns focussed on the sufficiency of the evidence or
the credibility and veracity of the documents. The mere use of the term “credible” does not necessarily mean that the concerns
focus on the credibility, authenticity or veracity of the supporting documents.
An applicant has the onus to support his application with sufficient evidence.
If the concern is about the sufficiency of evidence, given that the applicant
is clearly directed to provide a complete application with supporting
documents, no duty of procedural fairness arises. However, if the concerns are
truly about credibility, some further assessment of the scope of the duty of
procedural fairness, which as noted is at the low end of the spectrum, will be
required.
[30]
I do not agree with the applicant’s submission
that he provided evidence of his experience and that his offer of employment
was genuine and, therefore, the Officer’s concerns can only be characterized as
about the credibility of his documents.
[31]
The Officer did not find the evidence to be
sufficient. The procedural fairness letter clearly conveyed this message and
provided notice to the applicant of the Officer’s concerns.
[32]
The procedural fairness letter stated: “I am not satisfied that you have any experience as a
jewellery appraiser. You provided no objective or credible evidence that
you would be able to fulfill the duties of the job offered as set out in the
Arranged Employment Opinion” [emphasis added].
[33]
The Officer also noted that he was concerned
about the genuineness of the job offer because of the amount of time that it
had been open and the applicant's family connections to the employer.
[34]
Although the Officer does not specifically set
out his concerns about how or when the applicant obtained training as a
jewellery appraiser from Apna, another Surrey, BC business, or how the cheques
represent payment for services from Apna, the procedural fairness letter raises
the Officer's key concerns: the applicant's lack of any objective evidence that
he could fulfill the duties of a jewellery appraiser and the genuineness of the
job offer, which was related to the lack of evidence of the applicant's
experience and the duration of the offer.
[35]
The applicant has not pointed to any case law
that establishes that the Officer was required to interview him to determine if
he had experience or to assess his credibility. In Chawla the Court
stated:
[21] […] Counsel for the Applicants
submitted that the Officer should have interviewed the principal Applicant
regarding the credibility concerns after his telephone conversation with Mr.
Naresh. There is no right to an interview in such circumstances, and the case
law cited by the Applicants in support of their proposition goes no further
than indicating that such a duty may arise where the credibility, accuracy or
genuine nature of the information submitted by an applicant is the basis of a
visa officer's concern: see Ismailzada v Canada (Minister of Citizenship and
Immigration), 2013 FC 67 at para 20, citing Hassani v Canada (Minister
of Citizenship and Immigration), 2006 FC 1283 at para 24. The flexible
nature of the duty of fairness recognizes that meaningful participation can
occur in different ways, in different situations. As long as an applicant is
provided with an opportunity to respond and present his or her submissions,
natural justice will be respected: Baker v Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817 at para 33.
[Emphasis added]
[36]
The applicant was clearly put on notice of the
concerns and given a meaningful opportunity to respond with additional
objective evidence. The applicant failed to take advantage of this opportunity.
There was no requirement for the Officer to hold an interview. Nor was the
Officer required, as the applicant argues, to follow up and make inquiries with
Apna or Manny’s about his experience and qualifications. The applicant merely
submitted a brief letter re-asserting that he had the experience and that the
offer was real, which the Officer reasonably found not to address his concerns.
VI.
Is the Officer’s finding that the applicant
failed to demonstrate that he had the requisite work experience reasonable?
[37]
The applicant argues that the Officer based his decision
on irrelevant and extraneous considerations, including the simplicity of the
contract with Apna, his relationship with the owner of Manny’s and the
availability of the offer after a lengthy period of time.
[38]
The applicant submits that the Officer ignored
his training as a jewellery appraiser which he described in his own letter and
instead based the decision on speculation about the contract, the cheques from
Apna and the Officer’s own views about the experience required.
[39]
The respondent submits that the applicant failed
to meet his onus of providing sufficient evidence to demonstrate his experience
and ability to complete the work required in the Arranged Employment Opinion.
The applicant did not submit the type of evidence, such as training certificates
or other documents that would objectively confirm his experience and skills as
a jewellery appraiser. He merely stated that he had the experience and a job
offer.
The Officer’s finding was reasonable
[40]
Visa officers have considerable experience
assessing applications and deference is owed to their decisions. The GCMS notes
indicate that the Officer considered the job offer, employment letter and
cheques and identified several issues beyond the paper used for the contract
and whether the cheques had been cashed. The Officer noted the lack of any
objective evidence that Apna had trained the applicant.
[41]
The Officer reasonably questioned why the
applicant would be hired by Apna, another jewellery store, also located in
Surrey, British Columbia, and close to Manny’s, given that the applicant was
working in a completely different occupation as a technical support worker in
the UK. It was also reasonable for the Officer to question how the applicant
met the qualifications for the job offered by Manny’s, without any objective
evidence of training or experience. The fact that the applicant had cheques
made out to him from Apna, but without any indication of what services the
payments by cheque were for and, perhaps, without being cashed, reasonably led
the Officer to find that the applicant’s contract with Apna was not sufficient
evidence of his experience.
VII.
Did the Officer unreasonably find that the
applicant’s job offer was not genuine?
[42]
The applicant submits that the Officer accepted
that Manny’s was a jewellery business, that the Arranged Employment Opinion was
valid and that the applicant had disclosed the family relationship at the
outset, yet the Officer unreasonably drew a negative inference.
[43]
The applicant argues that the genuineness of an
offer of employment must be assessed only with reference to the factors set out
at subsection 200(5) of the Regulations. These criteria are mandatory (Sydoruk
v Canada (Minister of Citizenship and Immigration), 2015 FC 945 at paras
17-19, [2015] FCJ No 943 (QL) [Sydoruk]) and focus only on the integrity
of the prospective employer. The applicant submits that the Officer erred by
focussing on the credibility of the evidence of the applicant’s work experience
and his relationship to his prospective employer, neither of which are relevant
factors.
[44]
The respondent notes that the Officer was not
bound by the Arranged Employment Opinion in his assessment of the genuineness
of the job offer. The Officer must assess the Arranged Employment Opinion in
the context of the full application (Ghazeleh v Canada (Minister of
Citizenship and Immigration), 2012 FC 1521 at paras 18-20, [2012] FCJ No
1604 (QL); Porfirio v Canada (Minister of Citizenship and Immigration),
2011 FC 794 at para 33, [2011] FCJ No 997 (QL); Sydoruk at para 12) and
in accordance with the Regulations.
[45]
The respondent acknowledges that in assessing
the genuineness of the job offer, the factors set out in subsection 200(5)
relate to the prospective employer, but argues that the Officer still has
discretion to consider whether the applicant is able to carry out the terms of
the job offered. In particular, paragraph 200(5)(b) requires the Officer to
consider whether the offer is consistent with the reasonable employment needs
of the employer.
The finding that the offer was not genuine is reasonable
[46]
As noted by the respondent, the Officer is not
bound by the Arranged Employment Opinion. Sydoruk provides:
[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.
[Emphasis added]
[47]
Paragraph 203(1)(a) of the Regulations provides:
|
203 (1) On
application under Division 2 for a work permit made by a foreign national
other than a foreign national referred to in subparagraphs 200(1)(c)(i) to
(ii.1), an officer must determine, on the basis of an assessment provided by
the Department of Employment and Social Development, of any information
provided on the officer's request by the employer making the offer and of any
other relevant information, if
|
203 (1) Sur présentation d’une demande de permis de travail
conformément à la section 2 par tout étranger, autre que celui visé à l’un
des sous-alinéas 200(1)c)(i) à (ii.1), l’agent décide, en se fondant sur l’évaluation
du ministère de l’Emploi et du Développement social, sur tout renseignement
fourni, à la demande de l’agent, par l’employeur qui présente l’offre
d’emploi et sur tout autre renseignement pertinent, si, à la fois :
|
|
(a) the job offer is genuine under subsection 200(5);
|
a) l’offre d’emploi est authentique conformément au paragraphe
200(5);
|
|
[…]
|
[…]
|
[48]
Subsection 200(5) of the Regulations provides:
|
200 (5) A determination of whether an offer of employment is
genuine shall be based on the following factors:
|
200 (5) L’évaluation de l’authenticité de l’offre d’emploi est
fondée sur les facteurs suivants :
|
|
(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;
|
a) l’offre est présentée par un employeur véritablement actif dans
l’entreprise à l’égard de laquelle elle est faite, sauf si elle vise un
emploi d’aide familial;
|
|
(b) whether the offer is consistent with the reasonable employment
needs of the employer;
|
b) l’offre correspond aux besoins légitimes en main-d’oeuvre de
l’employeur;
|
|
(c) whether the terms of the offer are terms that the employer is
reasonably able to fulfil; and
|
c) l’employeur peut raisonnablement respecter les conditions de
l’offre;
|
|
(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.
|
d) l’employeur – ou la personne qui recrute des travailleurs
étrangers en son nom – s’est conformé aux lois et aux règlements fédéraux et
provinciaux régissant le travail ou le recrutement de main-d’oeuvre dans la
province où il est prévu que l’étranger travaillera.
|
[49]
I do not accept the applicant’s argument that
the factors in subsection 200(5) are the only factors that can be considered to
determine the genuineness of a job offer or that they should be interpreted so
narrowly that the Officer’s legitimate concerns about the genuineness of a job
offer could not be considered. In addition, paragraph 200(5)(a), whether the
offer is consistent with the reasonable employment needs of the employer, is a
broad question which would include consideration of a range of relevant
factors, including: the nature of the business; the nature of the particular
employment offered; the size of the business; the volume of sales; and, the
number of employees. In my view, it would not be consistent with the reasonable
employment needs of an employer in a specialized area, such as a jewellery
business, to offer employment to a person who has not provided objective
evidence of their qualifications and experience and whose personal connection
to the business owner appears to be a higher priority than the objective and
legitimate needs of the employer and business owner for a qualified jewellery
appraiser.
[50]
I acknowledge the applicant’s concern that the
delay in processing applications could have a negative impact on job offers. If
a job offer remains open for an indefinite period of time, questions may arise
about the genuineness of the offer, as they did in this case. If an application
is processed quickly, these concerns may not arise. In some cases, family
businesses or businesses with a high staff turnover may be more willing to wait
for an applicant to enter Canada. However, in the present case, the duration of
the job offer was not the only concern and the reasonable employment needs of
the employer must always be considered. The GCMS notes also demonstrate that
there was other correspondence between 2012 and 2014 regarding the applicant’s
marital status, his wife’s past permanent resident status in Canada and the
birth of their children which had an impact on the time needed to process the
application. No undue delay can be attributed to the respondent in the
processing of the application.
[51]
The Officer’s finding that the job offer was not
genuine falls within a range of reasonable outcomes and is defensible on the
facts before the Officer and the applicable law.
Email this Content