Docket: IMM-4276-15
Citation:
2016 FC 533
Montréal, Quebec, May 12, 2016
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
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BETWEEN:
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IQBAL, MEHREEN
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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
pursuant to section 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [the Act] of a decision rendered by an Officer at the High
Commission of Canada in London [the Officer] denying the applicant a
permanent resident visa as part of the Skilled Worker Program and finding her
inadmissible to Canada for a period of five years for misrepresentation.
I.
Facts
[2]
The applicant is a citizen of Pakistan. In 2013,
she applied to become a permanent resident of Canada under the Skilled Worker Program,
citing her occupation as ‘Civil Engineer’.
[3]
In March 2015, the Anti-Fraud Unit [AFU]
conducted a surprise investigation at the applicant’s most recent employer,
Tamizuddin Enterprises.
[4]
On March 31, 2015, the applicant received a
procedural fairness letter from the Officer, stating that he had concerns that
her declared work experience at her Tamizuddin Enterprises may be fraudulent
and that, as a result, she may be found inadmissible under s 40(1) of the Act for
misrepresentation. The Officer gave the applicant thirty days to respond to his
concerns.
[5]
The applicant submitted additional documents,
including a letter from her direct supervisor at her last employer, explaining
that he had not been present when the AFU visited and could not provide them
with the accurate details of the applicant’s employment.
[6]
The Officer found that the documents submitted
did not alleviate his concerns and rejected the applicant’s application on July
23, 2015.
[7]
The Officer noted that the applicant had
received a procedural fairness letter expressing concerns about her employment
at Tamizuddin Enterprises and that the information provided by her employer was
inconsistent with the information included in her application. He found that
her response to the procedural fairness letter did not alleviate his concerns
with regards to her work experience at Tamizuddin Enterprises. The Officer
also observed that her experience at two other employers, namely Zishan
Engineers and Kamil Associates, were also of concern. The Officer nevertheless
concluded that the applicant had worked for a short period of time at
Tamizuddin Enterprises and awarded her points for one year of experience.
[8]
The Officer concluded that the reference letters
the applicant submitted in support of her employment at Tamizuddin Enterprises
had been found to be fraudulent and that this was a misrepresentation material
to the disposition of her application. Therefore he found that she was
inadmissible to Canada for a period of five years.
II.
Issues
[9]
This matter raises the following issues:
1.
What is the applicable standard of review?
2.
Did the Officer err in concluding that the applicant
had misrepresented her work experience at her employer?
3.
Did the Officer breach the rules of procedural
fairness?
III.
Submissions of the Parties
(a)
Applicant’s Submissions
[10]
The applicant argues that the decision was
unreasonable because the Officer simultaneously held the reference letter from
Tamizuddin Enterprises to be fraudulent, and yet awarded her one year of
experience for it; the decision was the result of a superficial investigation;
and the decision did not address the documents submitted in response to the
procedural fairness letter.
[11]
The Applicant further submits that the Officer
breached the rules of procedural fairness in two ways. First, the conduct of
the investigation into her employment at Tamizuddin Enterprises was superficial
and insufficient to support conclusions of misrepresentation. Secondly, he did
not allow the applicant to respond to his concerns regarding her employment at
Zishan Engineers and Kamil Associates by failing to raise them in the procedural
fairness letter.
(b)
Respondent’s Submissions
[12]
The Respondent argues that a visa officer’s
decision on a skilled worker application is a discretionary exercise, which
warrants a high degree of deference from the Court. The applicant ultimately
bears the burden of demonstrating that she meets the requirements of the Act
and has an obligation to provide true, correct and complete information to the
Officer. The Officer was entitled to give little weight to the documents
submitted in response to the procedural fairness letter. Furthermore, collusion
to concoct evidence robs that evidence of any probative value, and it would
thus be unreasonable to rely on it. The applicant failed to put her best evidence
forward to address the Officer’s concerns.
[13]
An applicant cannot impose an investigative
burden on a visa officer and the requirement of a high degree of
fairness does not mean that an officer must accept blindly the evidence that is
sent in response to a procedural fairness letter.
IV.
Analysis
(a)
Standard of Review
[14]
The assessment of whether an applicant can
become economically established in Canada and of whether a material
misrepresentation has been made are questions of facts, reviewable under the
standard of reasonableness (He v Canada (MCI), 2012 FC 33, para 19). The
Court will not intervene if the Officer’s decision is justified, transparent,
and intelligible and falls within the range of possible, acceptable outcomes
with respect to the facts and the law (Dunsmuir v New Brunswick, 2008
SCC 9, para 47). It is now well-established that questions of procedural
fairness are reviewable under the standard of correctness (Khosa v Canada,
2009 SCC 12, para 43).
(b)
Did the Officer err in concluding that the
Applicant had misrepresented her work experience at her employer?
[15]
First, contrary to the applicant’s submissions,
I am satisfied that the Officer could find the letter from Tamizuddin
Enterprises to be fraudulent as it attested to three or four years of
experience as she declared, and yet conclude, based on the other evidence, that
the applicant had still worked for a shorter period of time and award points
for only one year of experience.
[16]
Therefore, the real point of contention on this
issue is whether the Officer disregarded or capriciously assessed the evidence
submitted in response to the procedural fairness letter. While the applicant
submits that the Officer could not disregard the evidence only because it could
not be produced at the time of the surprise visit, it is clear upon reading the
GCMS notes, that the Officer found many discrepancies between the answers given
by the CEO and what was attested to in the reference letters.
[17]
For instance, during the site visit the CEO said
that the applicant had left the company between three to five years ago. This
is inconsistent with the information found in the original reference letter
which stated that the applicant left the company in July 2014. As for the letter
of appointment provided by the applicant in response to the fairness letter,
the Officer noted that the company could not produce that document during the
site visit. In the letters from her employer produced subsequent to the site
visit, it is mentioned that only her direct line-manager and the HR manager
could have given that information but that they were absent the day of the
visit. However, this is inconsistent with the statement made by the CEO during
the site visit that only the accountant had access to the computer for this
information.
[18]
Moreover, these letters from her employer did
not by themselves attest to the fact that she had worked from 2011 to 2014. The
Officer was therefore entitled to give them low probative value.
[19]
Because the weighing of the evidence is a
question of fact at the core of an Officer’s discretion, it is well understood
that the Court can only intervene if the decision is not within the range of
possible, acceptable outcomes. In this case, it was well within the range of acceptable
outcomes to find five years of experience as a civil engineer could not be
demonstrated on the basis of three reference letters, two of which were
suspected of being fraudulent, and nothing else.
[20]
The applicant had a responsibility to provide
the Officer with independent evidence in response to his concerns that her
letters of reference had been fabricated. She did not send pay slips or working
statements which would have been the best evidence that she had worked there
the entire period.
[21]
In Rong v Canada (MCI), 2013 FC 364, the
applicant had provided the Officer with several pieces of independent evidence
which he could not ignore, namely a notarized letter signed by the company’s
legal representative, original legal representative, and the person in charge
of finance and marketing, corroborating the information in the above-mentioned
personal statement; a letter from the company’s original legal representative;
the company’s business license, the company’s payroll records from December
2011 to March 2012, all of which listed the applicant’s name.
[22]
In contrast, the applicant submitted only a
personal statement explaining the inconsistencies discovered by the AFU, to
which she attached copies of emails from the managers suspected in colluding
with her to misrepresent her work experience and a photocopy of a letter of
appointment. When a fairness letter explicitly mentioned that certain documents
are believed to be fraudulent, an applicant has the obligation to present the
strongest possible corroborating evidence (Hui v Canada (Minister of
Citizenship and Immigration), 2011 FC 1098 [Hui]). In the present
case, the evidence submitted could not reasonably serve to alleviate the
Officer’s concerns regarding her work experience.
[23]
The Officer therefore did not err in holding
that the applicant had not demonstrated sufficient years of experience as a
civil engineer for the purpose of establishing herself in Canada and that she
was inadmissible to Canada for materially misrepresenting her work experience.
(c)
Did the Officer breach the rules of procedural
fairness?
[24]
Both parties agree that a finding of
inadmissibility requires a high degree of procedural fairness on the part of
the Officer (Menon v Canada (MCI), 2005 FC 1273, para 15 [Menon]).
It means that applicants must always be0 given a chance to respond to an
officer’s concerns, and officers should be aware and sensitive to the fact that
human errors happened when filling out forms, and that often misrepresentation
arose from embarrassment. This however does not shift the duty to produce good,
reliable evidence (Hui v Canada (MCI), supra, para 7; Heer v Canada
(MCI), 2001 FCT 1357, para 19).
[25]
The applicant was advised of the Officer’s
concerns about her employment at Tamizuddin Enterprises and was allowed a chance
to respond. She was afforded the degree of procedural fairness to which she was
entitled in this regard and it was her responsibility to provide the Officer
with the best possible evidence to support her declared work experience. The
Officer committed no reviewable error in not investigating further. The applicant
had no legal right to impose an investigative burden on the Officer who cannot
be faulted for declining the invitation to do so (Hui, supra).
[26]
The applicant further argues that the Officer
had a duty to allow her to respond to his concerns regarding her experience at
Zishan Engineers and Kamil Associates.
[27]
If the issue was only one of assessment of the applicant’s
work experience for the award of points, I would agree with the applicant that
the Officer’s failure to notify her of his concerns regarding her experience at
Zishan Engineers and Kamil Associates could have constituted a reviewable
error. However, in the circumstances, it is not an error that is material to
the issue of the case. The Officer reasonably found
that the applicant had submitted fraudulent documents and misrepresented her
work experience at Tamizuddin Enterprises. Even if her experience at Zishan
Engineers and Kamil Associates had been genuine, it would not have changed the
Officer’s decision on her admissibility to Canada. The applicant was given a
chance to respond to the Officer’s main concerns regarding her application and
did not succeed in demonstrating that her experience was genuine. There was no
breach of procedural fairness in this case.
[28]
For these reasons, this application for judicial
review is dismissed.
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