Docket: IMM-4955-15
Citation:
2016 FC 751
Ottawa, Ontario, July 5, 2016
PRESENT: The
Honourable Mr. Justice Diner
BETWEEN:
|
MEHRNOUSH
RAMEZANPOUR
|
Applicant
|
and
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
Respondent
|
JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
This is a judicial review, pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [the Act], of a September 4, 2015 decision [the Decision] by a visa
officer [the Officer] rejecting the Applicant’s application for permanent
residence as a skilled worker. The Applicant argues that the Decision was both
unreasonable and unfair, but as I find neither, it shall stand.
II.
Background
[2]
The Applicant is a 41-year-old citizen of Iran.
On February 11, 2013, she applied for permanent residence as a skilled worker
under National Operation Classification [NOC] unit group 6322, or “Cooks”.
[3]
In her application, the Applicant alleged that
she had over ten years of relevant experience at various establishments in
Iran, including most recently as a cook at the Kaveh International Hotel
[Kaveh] from 2008-2013. She also submitted documentation to demonstrate that,
as of September 12, 2012, she had a prospective position as a cook at the
Country Inns and Suites [Country Inns] in Oakville, Ontario. Her letter of
employment for Country Inns was signed by a Mr. Harry Patel.
[4]
On June 8, 2015, the Applicant received a
procedural fairness letter [the PFL] from an Officer reviewing her application.
In it, the Officer stated that they had grounds to believe that she had
misrepresented herself and had not established herself as a cook. The Officer
requested an updated reference letter, among other documentation.
[5]
In the Global Case Management System [GCMS]
notes that accompany her application and pre-date the PFL, several Officers
identified various concerns and inconsistencies. On March 30, 2015, for
example, one officer attempted to verify her employment at Kaveh. However, the
number and address provided belonged to an unrelated company. An employee of
that company advised the Officer that it had been at that address since
September 2013 and the previous tenant, while a hotel, was not named Kaveh.
[6]
Another reviewing Officer involved in the
investigation noted that Mr. Patel, the prospective hirer in Canada, had signed
letters of employment in two other applications for permanent residence. Those
letters were also dated to September 2012 and used a similar format and
wording, but they related to offers of employment with a different employer – the
Quality Inn Airport West in Mississauga, Ontario.
[7]
That same Officer then made several unsuccessful
attempts to contact Mr. Patel at both the Quality Inn Airport West and the
Country Inns. Eventually, the officer was given an e-mail address to contact Kevin
Slean, the general manager of Country Inns. Neither Mr. Patel nor Mr. Slean,
however responded to the Officer’s subsequent email or phone messages.
[8]
On August 6, 2015, the Applicant submitted a
response to the PFL. In it, she explained that both managers at Kaveh and
Country Inns had changed during the processing of her application.
[9]
Along with her PFL response, the Applicant
submitted further documentation, including:
- A July 2, 2015
employment letter from Mr. Slean at Country Inns that was almost identical
to the original employment letter from Mr. Patel;
- A July 15, 2015
letter on Kaveh letterhead from a new manager saying that he had taken
over in 2014;
- A July 16, 2015
letter on non-Kaveh letterhead from an individual referring to himself as
Kaveh’s manager during the relevant period (2008-2013) stating that the
Applicant had worked there;
- A series of
translations of fixed-term employment contracts, all signed on July 24,
2015 (i.e. post-employment), for the last three years of Kaveh employment;
and
- Documents relating to her post-application employment in Iran.
III.
Decision
[10]
The Officer first noted that the applicants for
permanent residence as skilled workers are assessed on the basis of criteria
set out in subsection 76(1) of the Immigration and Refugee Protection
Regulations, SOR/2002-227 [the Regulations] – age, education, knowledge of
Canada’s official languages, experience, arranged employment, and adaptability
– and that the Applicant requested that she be assessed on the basis of NOC
6322. The Officer then assigned to each of these categories a point value,
awarding the Applicant a total of 36 points out of a possible 100, well below
the minimum threshold of 67 necessary to acquire permanent residence status.
Notably, the Officer awarded the Applicant zero points in the Experience,
Arranged Employment, and Adaptability categories.
[11]
On the Experience and Arranged Employment
categories, the Officer was not satisfied that the Applicant had been employed
as a cook or that she had the requisite work experience on the basis of the
documents she had submitted. The Officer also noted that both her previous work
experience and her prospective work experience could not be verified. The
Officer noted that concerns about the Applicant’s work experience were expressed
in the June 8, 2015 PFL but that her response did not alleviate these concerns.
As a result, the Officer was not satisfied that the Applicant had the required
work experience to perform the duties of the job offer in Canada and that she
would be likely to accept and carry out that employment.
[12]
In the GCMS notes that form part of the reasons
(see Rezaeiazar v Canada (Citizenship and Immigration), 2013 FC 761 at
para 58), the Officer made the following further observations:
- The phone number and address provided for Kaveh belong to a
different company and the last occupant at that address, in 2013, was not
Kaveh;
- Neither Mr.
Patel nor Mr. Slean could be reached by phone or e-mail to verify the
prospective position at Country Inns. The new employment letter from Mr.
Slean uses a different letterhead than the previous one from Mr. Patel but
is otherwise the same – i.e., same format, same font, same typos, and
generally of a quality below the usual standards of an established
Canadian hotel chain. Other inconsistencies were noted regarding the
Applicant’s employment documents, including with regard to signatures and
phone numbers. The Officer also questioned why Mr. Slean would send the
Applicant a new letter, rather than simply responding to any of the
various calls or e-mails from the officers;
- Other letters of reference included in the PFL response from
past employers were in English – unusual in Iran – and they did not
contain any new information and/or persuasive evidence of the Applicant’s
work history; accompanying employment contracts, for instance, were signed
after employment had ended and were missing untranslated originals;
[13]
As a result, the Officer was not satisfied that
the Applicant met the requirements for permanent residence as a skilled worker
and refused her application.
IV.
Issues
[14]
The Applicant alleges that the Officer made four
errors in assessing the Applicant’s submissions:
- The Officer considered irrelevant grounds on the basis of
speculation and prejudice;
- The Officer
failed to consider the Applicant’s evidence on work experience, arranged
employment, and adaptability;
- The Officer did
not have the authority to challenge or doubt the validity of the
Applicant’s prospective employment in Canada; and
- The Officer breached a duty of procedural fairness in not
providing the Applicant a fair opportunity to understand and address that
her credibility was at issue.
V.
Standard of Review
[15]
Any procedural fairness issues that arise from a
visa officer’s decision are reviewable on a correctness standard (Virhia v
Canada (Citizenship and Immigration), 2014 FC 410 at para 11). As such, the
question of whether the Officer failed to properly inform the Applicant of any
credibility concerns is to be assessed without deference.
[16]
Issues relating to a visa officer’s consideration
of an applicant’s eligibility, on the other hand, are reviewable on a
reasonableness standard (Al Hussain v Canada (Citizenship and Immigration),
2013 FC 636 at para 12). This is a deferential standard and if that assessment
is an acceptable and rational solution that is justifiable, transparent and
intelligible, it should not be disturbed (Dunsmuir v New Brunswick, 2008
SCC 9 at para 47).
VI.
Analysis
A.
Did the Officer err in not informing the
Applicant of any credibility concerns with her documentary evidence?
[17]
The Applicant argues that the Officer erred in
basing the Decision on credibility concerns that were not disclosed in the PFL.
The Applicant argues that the Officer was obliged to fully inform her about any
issues relating to the validity of her documentation or the credibility of her
submissions. The Applicant submits that the PFL did not state that the veracity
of the Applicant’s arranged employment was at issue or that the Applicant’s
submitted documentation was suspected of being inauthentic. At most, the PFL
stated that an officer had “grounds to believe”
that she “misrepresented” herself and that she
had not established her employment experience as a cook.
[18]
Justice Gascon recently summarized the
jurisprudence on procedural fairness letters in the permanent residence context
in Wijayansinghe v Canada (Citizenship and Immigration), 2015 FC 811 [Wijayansinghe]:
[28] I agree that the duty of
procedural fairness includes the duty to properly inform an applicant of the
case against him or her and to give the applicant an opportunity to respond and
to know about the visa officer’s concerns. It requires that an applicant be
provided with a meaningful opportunity to present the various types of evidence
relevant to his or her case and to have it fully considered (Baker v Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para 28).
However, in the context of a visa application, this duty of fairness does not
require a visa officer to inform an applicant of concerns arising directly from
the requirements of the legislation or regulations and to give the applicant an
opportunity to disabuse himself or herself of those concerns (Prasad v
Canada (Minister of Citizenship and Immigration), [1996] FCJ No 453, at
para 7, 34 Imm LR (2d) (FCTD)).
[29] The
jurisprudence in this Court has developed to specify that this duty of
procedural fairness applies to concerns about credibility, veracity or
authenticity of the documents rather than to the sufficiency of the evidence.
There is no obligation on a visa officer to provide an applicant with an
opportunity to address concerns of the officer when the supporting documents
are incomplete, unclear or insufficient to satisfy the officer that the
applicant meets all the requirements that stem from the Regulations (Hamza v
Canada (Minister of Citizenship and Immigration), 2013 FC 264 at paras
24-25 [Hamza]; Gharialia at paras 16-17; Sharma at para 8;
Veryamani v Canada (Minister of Citizenship and Immigration), 2010 FC
1268 at paras 34-36 [Veryamani]).
[19]
In light of this jurisprudence, I do not find
that there has been any breach of procedural fairness. First, implicit in the
statement that the Applicant may have misrepresented herself is the idea that
her submissions were not credible. If they had been credible, then the
Applicant could not be said to be misrepresenting herself in her claim – her
claim would have been believed as a true representation of her status. The PFL,
as it was formulated, sufficiently outlined the Officers’ credibility concerns
and let the Applicant know more was needed to conclude that she had not
misrepresented her case.
[20]
Second, as is clear from the Applicant’s further
submission in response to the PFL, Applicant’s counsel was well aware of the
concerns in the GCMS notes. As such, it cannot be said that the Applicant was
unaware of the case against her, as Justice Gascon put it in Wijayansinghe.
[21]
Third, as noted above, there is no obligation
for an Officer to provide an applicant the opportunity to address concerns when
the documentary evidence is insufficient or unclear. The Applicant submitted
documentation, both before and after the PFL, which the Officer found
insufficient. The Officer was not obliged to make the PFL more explicit or
detailed than it already was. The process of the PFL was also eminently fair:
when the Applicant did not submit materials in time, for example, an extension
was granted.
B.
Did the Officer consider irrelevant grounds?
[22]
The Applicant argues that the Officer based the
Decision on culturally insensitive speculation and thus imported irrelevant
considerations and extrinsic evidence into the analysis. The Applicant focuses
in particular on the suggestion, in the GCMS notes, that women in Iran may not
be allowed to cook professionally. While the Officer that ultimately made the
Decision stated explicitly that this suggestion had been rebutted, the Applicant
nonetheless argues that this “cultural [sic]
insensitive prejudice and speculation clearly tainted the mind of the Officer”
(Applicant’s Further Memorandum of Facts and Arguments at 7). More
specifically, the Applicant contends that the Officer’s preconceptions of
Iranian society led to an unfounded suspicion about the fact that her reference
letters were written in English. Since there is no evidence to suggest that managers
in Iran would not be able to write a letter of reference in English, the
Officer either speculated or relied on extrinsic evidence. Either way, this was
an unreasonable error.
[23]
The Respondent argues that there is no
indication that the Officer based the Decision on prejudice or speculation: as
the GCMS notes make clear, the Officer who questioned whether women could cook
professionally in Iran was not the Officer who ultimately made the Decision.
Furthermore, there is nothing unreasonable in taking note of the fact that a
reference letter was written in English considering the official language in
Iran is Farsi. This Court has noted before that Officers posted abroad have
considerable knowledge of the culture and situation of the regions in which
they work and can rely on that knowledge in their decision-making (see, for
example, He v Canada (Citizenship and Immigration), 2012 FC 33 at para
31; Uppal v Canada (Citizenship and Immigration), 2009 FC 445 at para
35).
[24]
I agree with the Respondent that the Officer did
not err on this point. As the GCMS notes make clear, a different officer raised
the issue of whether a woman could work as a cook in Iran. The Officer who made
the ultimate Decision took issue elsewhere, and noted that they did not take
issue with the fact of a female cook. While the Applicant suggested at the
hearing that extrinsic evidence was used by the Officers in their examination
of this file on this point, there was simply nothing to suggest that was the
case.
[25]
In terms of the English letters, visa officers
are permitted to draw from their experience with a given culture, and the
Officer’s skepticism about the language in which the letters of reference were
written was bolstered by skepticism about many other aspects of the Applicant’s
submissions and supporting documentation. There is nothing unreasonable in
making note of this concern, particularly in light of others.
[26]
The Applicant argued that the case law has
only permits Officers to rely on “local” knowledge
and since the Officers in this case were posted in Ankara and not Iran – and
Turkey has very different cultural practices than Iran – she argued that it
does not apply. I find this to be an overly narrow reading of the
jurisprudence. The basic proposition is that visa officers in missions abroad
develop knowledge of the areas with which their visa officers interact. The
Ankara mission, in this case, is responsible for coverage of visa applicants
from Iran and thereby the visa office and its Officers obtain knowledge of Iran
simply by virtue of dealing with a significant number of files from that area.
C.
Did the Officer fail to consider relevant
evidence?
[27]
The Officer assigned the Applicant zero points
under three categories: Experience, Arranged Employment, and Adaptability. The
Officer did not, however, provide any reasons as to why the Applicant should
score so low in the Adaptability category. The Applicant argues that this is a
reviewable error, particularly since the paragraph 83(1)(d) of the Regulations
obliges Officers to award points where a family member is a permanent resident
or citizen of Canada and the Applicant’s brother is a Canadian citizen.
[28]
The Applicant also argues that the Officer erred
in drawing a negative inference from an inability to contact her previous
employer in Iran. Businesses are formed and dissolved regularly and she should
not be punished for that fact. The Applicant submits that she provided ample
evidence – reference letters, her work contract, and her affidavit – all of
which the Officer ignored.
[29]
I agree with the Applicant – and the Respondent
concedes this point – that the Officer erred in assigning zero points to the
Applicant under Adaptability given her brother’s status in Canada. However, as
noted in the Decision, a maximum of 10 points can be assigned for Adaptability,
and the Applicant only scored 36 points. Even had the Applicant received a full
10 points for Adaptability, she would still be 21 points short of the 67
minimum number of points needed. This Court has repeatedly held that no purpose
is served by sending an assessment back for redetermination if, after
correcting the error, the application would still fail (Persaud v Canada
(Citizenship and Immigration), 2009 FC 206 at para 40; Canada (Minister
of Citizenship and Immigration) v Patel, 2002 FCA 55 at para 6).
[30]
As for the assessment of the Applicant’s
previous work experience, I find that there was nothing unreasonable in the
Officer’s Decision to assign the Applicant zero points in the Experience
category. The Officer is entitled to weigh and assess the evidence as he or she
sees fit and it is not this Court’s role to intervene and re-weigh it as the
Applicant wishes. The Officer raised several grounds upon which to conclude
that the employment letters and contracts submitted by the Applicant were
insufficient. There was, for example, contradictory and unclear information as
to Kaveh’s status – including the letter stating she worked at Kaveh until
November, 2013, notwithstanding the fact that the current tenant took
possession in September 2013 from a previous employer that was not Kaveh.
[31]
Furthermore, the Applicant provided translated
work contracts, ostensibly for a period from 2012-2014, but did not provide
originals. It was open to the Officer to assign them, along with other letters
of reference, little probative value as a result.
[32]
Finally, even if the Officer had assigned a
full 15 points for Experience and the full 10 for Adaptability, the
Applicant would still be 6 points short of the 67 points needed. Again, an
error on this point would not be sufficient to justify returning this
application for redetermination.
D.
Did the Officer err in considering the
Applicant’s employment in Canada?
[33]
The Applicant argues that it is the
responsibility of Employment and Social Development Canada [ESDC] to determine
the validity of the employment in Canada. The visa officer is tasked only with
assessing the Applicant’s skills and qualifications for the position. The
Applicant thus argues that it was unreasonable for the Officer to attempt to
verify her prospective employer at Country Inn & Suites and then, once
unsuccessful, draw a negative inference from that failure. According to the
Applicant, once ESDC has confirmed the validity of the position, a visa officer
cannot then disagree with that assessment.
[34]
The Respondent correctly notes, however, that it
is within the power of a visa officer to assess the genuineness of a
prospective employer’s offer, as per Bondoc v Canada (Citizenship and
Immigration), 2008 FC 842 at para 18 (“[i]t is
within the power of a visa officer to assess the genuineness of an employer’s
offer, and there is no requirement for him to give deference to the HRSDC
officer’s assessment of the validity of the employment offer”) . The
Officer did not err either in attempting to verify the prospective employment
or in weighing the lack of direct communication from Mr. Slean or Mr. Patel in
the ultimate assessment.
VII.
Conclusion
[35]
Ultimately, the Applicant had the burden to
present the visa office with an application that was complete, convincing, and unambiguous
(Obeta v Canada (Citizenship and Immigration), 2012 FC 1542 at
para. 25. That was not the case for this Applicant. In light of the above,
this application for judicial review should be dismissed.
[36]
At the hearing, the Applicant submitted that two
questions should be certified:
- When the
Officer sends a fairness letter which raises concerns about the
authenticity of the evidence, and the Officer requires in that fairness
letter that the Applicant submit certain documents and take further
action, is it reasonable to require such actions from the Applicant that
are beyond the control of the Applicant?; and
- When an Officer makes an error under an FSW application, in
relation to adaptability, and the Respondent concedes that the error is
made, does the Court hearing the judicial review have the discretion to go
further and assess the passing marks to see whether, given the error made,
the outcome would have been different?
[37]
The Respondent opposes both proposed questions
on both grounds that neither are (a) of general importance and/or (b)
unanswered by existing jurisprudence. I agree that the proposed questions do
not transcend the interests of Applicant nor contemplate issues of broad
significance or general importance which have not already been answered by
existing case law.
[38]
This application for judicial review is
dismissed. No questions are certified and no costs are ordered.