Docket: IMM-5723-15
Citation:
2016 FC 863
Ottawa, Ontario, July 22, 2016
PRESENT: The
Honourable Mr. Justice Russell
|
BETWEEN:
|
|
SIMMI NARANG
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
INTRODUCTION
[1]
This is an application under s 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [Act] for judicial review of
a decision of a visa officer [Officer] dated November 20, 2015 [Decision],
which denied the Applicant’s application for permanent resident status under
the Federal Skilled Worker [FSW] category.
II.
BACKGROUND
[2]
The Applicant is a citizen of India. She holds
several degrees and certifications, including a Masters of Computer Science and
a Masters of Business Administration. From 2002 to 2009, the Applicant worked
as a deputy senior manager at Bajaj Capital. In February 2004, she submitted an
application for permanent residence under the FSW class.
[3]
From October 2009 to January 2015, the Applicant
began working for V Client Wealth Management [VCWM], a start-up which was
formed in 2009. The Applicant worked at VCWM as a consultant investment
advisor, managing client insurance coverage and calculating premiums for
individuals and groups. Following the birth of her second child, VCWM allowed
her to work remotely from home, granting her more time to care for her
children. Once the Applicant began this arrangement, her interactions with VCWM
became limited to communications with Pramod Sharma, her supervisor and the
company director, to whom she would electronically send completed work.
[4]
In March 2014, as a result of the Government of
Canada’s elimination of the backlog of FSW applications, the Applicant’s
application was terminated and she received a refund of her application fee.
The Applicant applied for permanent residence again in May 2014.
[5]
In January 2015, a visa officer called VCWM. The
employee who answered, Ramesh Pandy, said that the Applicant did not work
there. However, once Mr. Sharma picked up the phone, her employment and at-home
work arrangement were confirmed. That same day, the Applicant spoke with a visa
officer who asked her various questions about her work for VCWM. She answered
the visa officer’s questions about her working arrangement and indicated that
she was not up-to-date regarding the responsibilities of the new employees in
the company.
[6]
On May 21, 2015, the Applicant received a letter
from the High Commission of Canada, informing her that she might be
inadmissible to Canada for misrepresentation [Fairness Letter]. The Applicant
responded on June 9, 2015 with supporting documentation addressing these
concerns. She affirmed details regarding the length of her time of employment
at VCWM, the nature and duties of her role, her at-home work arrangement and her
salary. She explained that VCWM was undergoing important structural changes and
this is why her employer could not provide definitive details about its
framework, leave entitlements and salary increments. She explained that the initial
person with whom the visa officer had spoken at VCWM must have been caught off-guard,
and that with regards to her own phone call, any perceived nervousness or
distraction could be attributed to the fact that she was visiting her sister at
the time.
[7]
In January 2015, the Applicant informed the High
Commission of Canada that she had quit her job at VCWM and had begun working
for Alankrit Capitale [Alankrit]. She did not disclose to Alankrit that she had
applied to immigrate to Canada for a second time in May 2014, as she knew that,
as a start-up, they required a full-time and indefinite commitment. She was
afraid she would not get their support.
[8]
In July 2015, the Applicant left her position at
Alankrit. On November 6, 2015, the Applicant received two phone calls from a
visa officer, inquiring about her employment with Alankrit. She told the visa officer
that she had not been employed since July 24, 2015, and gave the name of her
former manager. The Applicant explained that she did not contact Citizenship
and Immigration Canada [CIC] about her change in employment, and had not begun
looking for another job, because she had been advised by a consultant to wait
for CIC’s response to her FSW application. Thirty minutes later, she received a
second call from the visa officer who stated that Alankrit had said that she
was still employed there and that she had been at work on the previous day, was
on leave today, and would be back on the following day. The Applicant
reiterated that she had not had any contact with the company since her last day
of work in July 2015, and she did not know why information to the contrary was
provided by Alankrit. Apart from these phone conversations, the Applicant says
she was not provided with any written letter expressing CIC’s concerns with her
employment, so she assumed that her explanations had been accepted.
III.
DECISION UNDER REVIEW
[9]
The Decision under review consists of a letter
dated November 20, 2015 and its accompanying Global Case Management System [GCMS]
notes. The Officer concluded that the Applicant did not qualify for the
issuance of a permanent residence visa because she is inadmissible to Canada
pursuant to s 40(1)(a) of the Act for misrepresenting material facts.
IV.
ISSUES
[10]
The Applicant raises the following issues in this
application:
1. Did the Officer breach the principles of procedural fairness by
failing to raise his concerns with the Applicant in a way that enabled her to
properly respond?
2. Is the Officer’s Decision unreasonable?
V.
STANDARD OF REVIEW
[11]
The Supreme Court of Canada in Dunsmuir v New
Brunswick, 2008 SCC 9 [Dunsmuir] held that a standard of review
analysis need not be conducted in every instance. Instead, where the standard
of review applicable to a particular question before the court is settled in a
satisfactory manner by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless, or where the
relevant precedents appear to be inconsistent with new developments in the
common law principles of judicial review, must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis: Agraira
v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para
48.
[12]
The first issue addresses matters of procedural
fairness and as such will be assessed using the standard of correctness: Mission
Institution v Khela, 2014 SCC 24 at para 79. An immigration officer’s
assessment of whether an applicant committed a misrepresentation is a determination
of fact. Therefore, the second issue will be reviewed using the reasonableness
standard of review: Khan v Canada (Citizenship and Immigration), 2009 FC
302 at paras 9-10; Malik v Canada (Citizenship and Immigration), 2009 FC
1283 at para 22.
[13]
When reviewing a decision on the standard of reasonableness, the analysis will be concerned
with “the existence of justification,
transparency and intelligibility within the decision-making process [and also
with] whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law.” See Dunsmuir,
above, at para 47, and Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12 at para 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it
falls outside the “range of possible, acceptable
outcomes which are defensible in respect of the facts and law.”
VI.
STATUTORY PROVISIONS
[14]
The following provisions from the Act are
relevant in this proceeding:
|
Misrepresentation
|
Fausses déclarations
|
|
40 (1) A permanent resident or a
foreign national is inadmissible for misrepresentation
|
40 (1) Emportent interdiction de
territoire pour fausses déclarations les faits suivants :
|
|
(a) for directly or indirectly
misrepresenting or withholding material facts relating to a relevant matter
that induces or could induce an error in the administration of this Act;
|
a) directement ou indirectement,
faire une présentation erronée sur un fait important quant à un objet
pertinent, ou une réticence sur ce fait, ce qui entraîne ou risque d’entraîner
une erreur dans l’application de la présente loi;
|
VII.
ARGUMENTS
A.
New Evidence
[15]
The Respondent submits that the affidavit evidence
of Mr. Ankur Gautum, the Applicant’s former employer at Alankrit filed with
this application, should be struck as it was not before the Officer and cannot
now be used to impugn the Decision.
[16]
The Applicant says that the affidavit is new
evidence that is properly before the Court as it does not go to the merits of
the case, but rather forms part of the Applicant’s procedural fairness
argument: Molnar v Canada (Citizenship and Immigration), 2012 FC 530 at
para 39. She says the contents of the affidavit were submitted in order to
demonstrate that she could have obtained supporting evidence from her former
employer that addressed the Officer’s concerns had she been given the chance.
[17]
The Respondent argues that there is no exceptional
basis for the inclusion of the new evidence and that the Applicant should be
able to demonstrate a breach of procedural fairness by simply arguing that she
was deprived of an opportunity to introduce rebuttal evidence to clarify the
Officer’s concerns.
B.
Applicant
[18]
The Applicant says she was taken aback when she
received the Decision as there were no reasons for her to lie on her
application about her employment with VCWM or Alankrit. She submits that the
Officer made adverse credibility findings founded on extrinsic evidence. While
the Fairness Letter was sent to the Applicant, it did not communicate all of
the Officer’s concerns, nor did it give the Applicant an opportunity to respond
to them: Ali v Canada (Minister of Citizenship and Immigration ), [1998]
FCJ No 468; Vandi v Canada (Minister of Citizenship and Immigration),
2002 FCT 515.
[19]
Calling the Applicant on November 6, 2015 to ask
about the Alankrit employee’s statement, which indicated that the Applicant
continued to work there, was not sufficient to meet the Officer’s duty of
fairness. No indication was given to the Applicant that the Officer suspected
that information had been misrepresented, or that the call would affect the
Applicant’s application for permanent residency. The Officer seemed content
with the Applicant’s response; had she known that the issue remained a concern,
she could have obtained a statutory declaration from her former employer to
clarify the matter. The Applicant submits that an in-person interview should
have been called, or a subsequent fairness letter or follow up call outlining
the concerns should have been provided: Arshi v Canada (Minister of Citizenship
and Immigration), [2003] FCJ No 490 at para 5; Amin v Canada
(Citizenship and Immigration), 2013 FC 206 at paras 29, 32.
[20]
Even if read together with the accompanying GCMS
notes, the Decision fails to explain the misrepresentation findings, simply
stating that the Applicant misrepresented her “work
experience as consultant insurance/financial investments.” While the
notes set out concerns relating to the Officer’s call to VCWM, they do not
specify whether the call to Alankrit also played a role in the determination.
Reasons can be brief, but must inform the Applicant of the underlying analysis
of the Decision. Here, they do not perform this function and the Applicant is
left without an ability to understand why the Decision was made and, more
specifically, if the Officer believed that she misrepresented information as a
result of the call with her most recent employer: Canada (Citizenship and
Immigration) v Jeizan, 2010 FC 323; VIA Rail Canada Inc v Canada (National
Transportation Agency), [2000] FCJ No 1685 at paras 21-22.
[21]
The Applicant is well educated, has held various
employment positions in the financial and insurance sector and meets all of the
language requirements, and yet has been waiting over 12 years to have her FSW
application considered. She says that, as a result of factors beyond her
control, careless or incorrect information was provided to the visa officer by
previous employers. She responded to the concerns of the Officer that were brought
to her attention in the Fairness Letter, but was not given the opportunity to
address others that were relied on in the negative determination. The Decision
should be set aside.
C.
Respondent
[22]
The Respondent makes several submissions on the
nature of the procedural fairness that is owed to the Applicant in this case.
Procedural fairness does not require notice of an Officer’s concerns where they
arise directly from the Act. Furthermore, the Applicant in this case, as a visa
applicant, should only expect procedural fairness at the low end of the
spectrum, as there are no substantive rights at issue. As a result, it was not
incumbent on the Officer to point out specific concerns with the Applicant’s
evidence or to make further enquiries: Parmar v Canada (Minister of Citizenship
and Immigration), [1997] FCJ No 1532 at para 36; Dash v Canada
(Citizenship and Immigration), 2010 FC 1255 at para 27.
[23]
The Respondent submits that, when the Officer
was attempting to verify the Applicant’s employment, many contradictions
emerged from the phone conversations with the Applicant, Mr. Sharma of VCWM and
employees at Alankrit. The Applicant was contacted by the Officer by telephone
and by way of the Fairness Letter, providing her with the opportunity to
respond to the contradictions. The Applicant’s responses were weak and not
satisfactory. It was open to the Officer to refuse her application under the
FSW category, finding that she had misrepresented facts relating to her
employment history, particularly given that the information provided by Mr. Sharma
and the employee at Alankrit was not ambiguous in any way.
[24]
Contradictions emerged from the phone calls with
VCWM related to company organization, salaries, paygrades and the amount of
leave that the Applicant had taken between her start and end dates. With
respect to the Applicant’s employment at Alankrit, the Applicant’s employer had
indicated that she was at work the previous day and was expected on the next
day. The Applicant had told the Officer at this point that she was unemployed.
Her only explanation for the discrepancy was that she did not know what the
Alankrit employee wanted to prove by saying that she still worked there, and
that maybe he was busy doing something else or with clients at the time of the
call. The Respondent says that the Applicant was not owed a second procedural
fairness letter as she was already provided with an opportunity over the phone
to respond to the contradiction.
[25]
The Respondent argues that the Decision and
reasons are not inadequate. The GCMS notes detail all of the
contradictions that emerged from the various phone conversations held by the
Officer. Furthermore, the Officer clearly states that the Applicant has been
found to have misrepresented information pursuant to s 40(1) of the Act as a
result of an assessment of all of the information that the Applicant provided.
This clearly indicates that the misrepresentation finding – and ultimately, the
denial of the Applicant’s application – resulted from all of the information
obtained through the Officer’s verification efforts.
VIII.
ANALYSIS
[26]
The affidavit of Mr. Ankur Gautum is not
admissible. The affidavit is submitted to demonstrate that the Applicant could
have obtained supporting evidence from her former employer that addressed the
Officer’s concerns had she been given a meaningful opportunity to do so. Such
evidence is not required to demonstrate procedural fairness. The issue is
whether the Applicant was given a reasonable opportunity to address the
Officer’s concerns, not what she could have said or done had she been given the
opportunity. See Madadi v Canada (Citizenship and Immigration), 2013 FC
716 at paras 6-7; Talpur v Canada (Citizenship and Immigration), 2012 FC
25 at para 21.
[27]
The principal issue in this case is whether the
Applicant was given a meaningful and fair opportunity to respond to the
credibility issues identified by the Officer from his conversations with
employers of the Applicant who provided information about her that
contradicted, or was at odds with, the information the Applicant had herself
provided.
[28]
The Applicant’s position is that the Fairness
Letter which she received did not cover the concerns that arose out of the
Officer’s phone call with the Applicant’s former employer at Alankrit, and the
phone call which the Officer made to the Applicant on November 6, 2015 was not
sufficient to meet the Officer’s duty of fairness.
[29]
On May 21, 2015, the Applicant was sent a
Fairness Letter informing her of the concerns the Officer had following his conflicting
conversations with Ramesh Pandy at VCWM and the Applicant responded on June 9,
2015.
[30]
As the Decision and the GMCS notes make clear,
the Officer provided adequate and reasonable reasons for not accepting the
Applicant’s explanations and for finding that she was not credible:
The applicant has sent the following
documents:
- Letter from applicant
- Prints of our emails in reply to status queries by applicant
- Job relieving letter
- New appointment letter
Applicant states
that the person who answered our call was “among thick of things” so could not
answer our questions with concentration. I do not give weight to this because
he clearly stated, more than once, that no one by applicant’s name works there.
He did not stated [sic] that he will not be able to provide reliable
information.
I found that the applicant’s explanation as
to why the information presented by the director of the company was incorrect
to be not credible. The director is in a position to provide authoritative
information [regarding] his business and employees. No indication was given by
him at the time of the verification that records might be inaccessible,
incomplete or incorrect or he will not be able to provide reliable information.
Applicant now states that the company is
going through a transition phase and roles and responsibilities of staff is not
fixed [sic] and that there is commotion regarding things like leave entitlements,
salary payments and increments. I do not [give] weight to these explanations
because the director did not state that at the time of the verification.
She now states that she was on maternity
leave. At the time of the verification, however, she had stated that she had
never been on long leave.
She further states that when she got our
call her attention was diverted as her son was sick and she got nervous. I do
not [give] weight to this because she did not mention that at the time of the
verification.
Applicant has possibly misrepresented her
work experience by submitting an inauthentic employment letter.
This could have led to an error in the
administration of the Act because it could have led an officer to be satisfied
that the applicant met the requirements of the Act with respect to work
experience.
Our procedural fairness letter explained the
provisions of A40.
[31]
The Applicant does not take issue with this
aspect of the Decision as far as procedural fairness is concerned. Hence,
provided this aspect is reasonable, it is sufficient for a finding of
misrepresentation quite apart from the Officer’s alleged handling of his
discussions with Alankrit.
[32]
The Applicant’s main point on procedural
fairness is that the Officer’s phone call to the Applicant on November 6, 2015,
in which the Applicant was questioned about the statements made by Mr. Ankur
Gautum at Alankrit, was not sufficient to meet the duty of fairness. The
Applicant’s argument on this issue is as follows:
28) The officer’s phone call to the
Applicant on November 6, 2015, whereby she questioned her about the employee’s
statement that she continued to work at Alankrit Capitale was not sufficient to
meet the officer’s duty of fairness. While the officer set out what had
happened with her call to the employer on her call with [the] Applicant, she
did not indicate to the Applicant that she was concerned that the Applicant had
misrepresented the information, (as opposed to it simply bringing the
information to her attention) or that this call would in anyway [sic]
affect the Applicant’s application for permanent residency. As per the GCMS
notes, all the officer stated to the Applicant after she told her what had
transpired in the call was “Do you wish to say something on this?”
29) As also noted in the GCMS notes,
the Applicant told the officer that she did not know why the employee would
have said that she was still working at the company given that she had
terminated her employment with the company several months previously. As
stated in the Applicant’s affidavit, the officer seemed content with this
response. As further noted in her affidavit, had the Applicant understood this
to be a concern of the officer’s going forward she could have obtained a
statutory declaration (similar to the one included with this application) which
had the employer clarify what had occurred so as to alleviate the officer’s
concerns.
30) As such the officer’s call to the
Applicant about this issue was not sufficient to meet the duty of fairness as
the officer did not effectively present her concerns in a manor [sic]
that allowed the Applicant to effectively respond to them. Given the nature of
the officer’s concerns, it is submitted that an interview should have been
called and the Applicant questioned in person. At the very least, a subsequent
fairness letter or follow up call outlining the officer’s concerns should have
been provided. As neither occurred in this case, the officer breached the
principles of fairness.
[footnotes omitted]
[33]
The GCMS notes on this point reveal the
following:
Date of Call : 06 November 2015
File: E000180582
Verification: Subject’s employment to be
verified at Aankrit Capitale [sic]
Called the landline number of company and
call answered by a man who identified himself as Ankur Gautam, owner of company.
Can I speak with Ms. Simmi Narang – She is not in today
Was she in yesterday – yes
Will she be in tomorrow – off course [sic]
yes if you have something urgent I can give you her mobile number
No thank you and ended the call
Call to pa on her mobile
Call answered by pa – Identity confirmed –
introduced myself
Where are you currently working mam – well
to be honest I have left job with Alankrit Capitale on 24 July 2015 and I
informed my agent about this and surely he must have informed your office about
it.
What was your designation there – Branch
Coordinator
Why did you leave – The company was in big
losses and the own told me to resign and you know he is my ex colleague also.
But I want to tell you that we have been awaiting for this for almost 12 years
now and why is it taking too long. I was interviewed in January this year and
was very nervous and could not respond confidently to the visa officer. My
family is in Canada, my in laws, my brother in law and we are only here
But Mam all applications are processed
separately and all statutory requirements have to be completed. However, if
anytime you feel like knowing the status you can always write to us at Delhi
Immigration and we will respond.
Thanked and ended my call
…
Date of Call : 06 November 2015
File: E000180582
As advised called applicant again – When did
you last spoke to your employer, Mr. Gautam – on 31 July 2015
You left job on – 24 July 2015
Mam I spoke to your employer this morning
and he told me that you are off today but you were in office yesterday and will
be in office tomorrow also whereas you told me that you left the job in July
2015. Do you wish to say something on this?
Don’t know what Mr Gautam wants to prove by
saying so and why he told you that I was in office yesterday and will be in
office tomorrow but I left my job in July 2015. May be he was busy doing
something else or was with his clients.
Thanked and ended my call.
…
A40 ASSESSMENT : I have evaluated all of the
facts of this case including any response and accompanying supporting materials
which may have been received from the applicant in response to procedural
fairness efforts made. On the basis of a balance of probabilities, the
applicant has in my assessment, directly or indirectly misrepresented facts or
withheld material facts relating to employment history. The misrepresentation
is of a relevant matter that has induced or could have induced an error in the
administration of IRPA by misleading an assessing officer to be satisfied the
applicant had experience in the occupation(s) stated in the application and
therefore would lead the officer to conclude the applicant met the requirements
of the Act.
I am therefore of the opinion that the
applicant is inadmissible to Canada under Section 40 of the Act. This
application is refused.
[errors in original]
[34]
The notes make very clear that the Applicant was
asked to comment upon the discrepancy between her own account that she had left
her job at Alankrit in July 2015 and Mr. Gautum’s account that she was in
the office yesterday and would be in tomorrow, with the clear implication that
the Applicant was still with the company.
[35]
The Applicant argues that the Officer did not
indicate that he was concerned with this discrepancy as a misrepresentation, as
opposed to “simply bringing the information to her
attention” because all that the Officer asked was “Do you wish to say something on this?”
[36]
The Officer did not need to advise the Applicant
that he was considering a misrepresentation. There is no requirement to give
the Applicant a running score. See Khan v Canada (Citizenship and
Immigration), 2008 FC 121 at para 14. Furthermore, the Officer makes it
abundantly clear that there is a discrepancy between what the Applicant had
said and what Mr. Gautum had told him. The Applicant is a highly
intelligent and educated woman and the answer she gave makes clear that she
knew the Officer was seeking an explanation for the discrepancy. The Applicant
was given full notice of the issue and every opportunity to provide an
explanation. In fact, she did provide an explanation. She now argues that she
could have provided a better one if she had fully understood the concern. It is
obvious from the GCMS notes that she fully understood the concern and that she
could have offered to clarify the situation in any way she chose. There was no
procedural unfairness here.
[37]
The Applicant also says that the Decision was
unreasonable because the reasons are inadequate and the employers provided
incorrect information to the Officer, while she provided reasonable responses.
[38]
Inadequate reasons are not a stand-alone ground
for review. See Newfoundland and Labrador Nurses’ Union v Newfoundland and
Labrador (Treasury Board), 2011 SCC 62 at paras 21-22. None of the
Applicant’s grounds are borne out by the Decision itself.
[39]
The refusal letter clearly tells the Applicant
that she misrepresented her work experience as a consultant insurance/financial
investment and that this conclusions is based upon
…all the information provided by you, the
information obtained through the verification conducted by this office and your
response to our letter dated 21 May 2015…
[40]
The GCMS notes then provide a full account of
how discrepancies were identified and how the Applicant was given a fair
opportunity to clarify the situation but failed to do so to the Officer’s
satisfaction. I don’t think the reasons could have been clearer.
[41]
Counsel concur that there is no question for
certification and the Court agrees.
Email this Content