Docket: IMM-2788-15
Citation:
2016 FC 209
Ottawa, Ontario, February 17, 2016
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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GODABADDE GEDARA
SURESH BANDARA ABEYWARDANE
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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
I.
Introduction
[1]
This is an application for judicial review
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [the Act] of the negative substituted evaluation decision of a
visa officer, dated April 10, 2015, concurring with another officer’s previous
assessment and refusal of the Applicant’s application for permanent residence
as a member of the Federal Skilled Worker class.
II.
Background
[2]
Suresh Bandara Abeywardane Godabadde Gedara [the
Applicant], a citizen of Sri Lanka, applied for permanent residence as a member
of the Federal Skilled Worker [FSW] class under the occupation of Medical
Radiation Technologist (NOC 3215) in April 2014. His wife, also a radiation
technologist, was included in the application.
[3]
Both parties have diplomas in Diagnostic
Radiography, assessed to be equivalent to a 2-year diploma in Radiography in
Canada. They each have seven years’ experience working as radiation
technologists.
[4]
The Applicant provided the required supporting
documents, met the criteria of the skilled worker program, and surpassed the
points requirement.
[5]
By letter dated May 15, 2014, the Applicant was
advised he received a positive determination of eligibility to be processed in
the FSW class, but that the final decision on eligibility would be made by a
visa office. The Applicant was requested to attend an interview on March 10,
2015, in Colombo, Sri Lanka.
[6]
The decision under review is comprised of:
i.
the negative substituted evaluation of the
Concurring Officer, communicated by refusal letter dated April 10, 2015;
ii.
the Interviewing Officer’s decision that the
Applicant and his wife had not satisfied her they would be able to become
economically established in Canada, and thus did not meet the FSW requirements;
iii.
Global Case Management System [GCMS] notes of
the Officers’ decisions.
[7]
The refusal letter explains provisions of the Immigration
and Refugee Protection Regulations, SOR/2002-227 [the Regulations] relating
to permanent residence under the Provincial Nominee Program [PNP]. Regulation
87 states that a foreign national may become a permanent resident under the PNP
on the basis of their ability to become economically established in Canada.
Regulation 87(2) requires that an applicant: (a) be named in a nomination
certificate issued by the government of a province under a provincial
nomination agreement between that province and the Minister; and must (b)
intend to reside in the province that nominated them.
[8]
Under Regulation 87(3), if an officer is of the opinion
the requirement under Regulation 87(2)(a) is not a sufficient indicator of
whether an applicant may become economically established in Canada, and if the
officer has consulted the government that issued the certificate, the officer
may substitute for the criteria set out in Regulation 87(2) their evaluation of
the likelihood of the ability of the foreign national to become economically
established in Canada.
[9]
This evaluation must be concurred by a second
officer (Regulation 87(4)).
[10]
The refusal letter states the Concurring Officer
reviewed all information in the Applicant’s application and agreed with the
Interviewing Officer’s decision that the Applicant did not meet the eligibility
requirements outlined in Regulation 87.
[11]
The letter states that although the Applicant
met a significant part of the experiential component of the FSW eligibility and
selection criteria, the Interviewing Officer was not satisfied the Applicant
would be able to successfully establish in Canada, with which the Concurring Officer
agreed. The letter states that when this concern was communicated to the
Applicant at an interview, the Applicant provided no rebuttal.
[12]
The Concurring Officer refused the application,
as he was not satisfied the Applicant met the legislative requirements and that
he is not inadmissible (subsections 11(1), 2(2) of the Act).
[13]
The GCMS notes of the substituted evaluation are
almost identical to the refusal letter, except they do not cite the Regulations
and they conclude “[r]equest for concurrence in the application
of R87(3) of IRPA (negative substituted evaluation) concurred in”.
[14]
The GCMS notes from March 12, 2015, (one day
after the interview) describe the interview with the Applicant and his spouse,
who were interviewed separately.
[15]
The notes indicate the Applicant told the
Interviewing Officer he wanted to immigrate to Canada because it is a good
country and he wanted to upgrade his education. The Interviewing Officer
learned that the Applicant had never visited Canada or travelled outside of Sri
Lanka. The Applicant has an uncle in Edmonton. When questioned which schools
the Applicant looked into for upgrading his education, the Applicant replied he
did not know. He explained he had done online research, but could not name any
websites. Although the Applicant could name the two Canadian licensing bodies
for obtaining his license to work as a radiation technologist, and knew it
would take 3 years, he did not know specifically what steps to take.
[16]
When asked to describe his daily work, the notes
indicate the Applicant gave very basic information from the NOC description and
was not able to sufficiently describe daily duties.
[17]
The Applicant’s spouse gave very similar answers
in her interview. She had never visited Canada or left Sri Lanka. She had an
aunt living in Toronto. Although her reason for wanting to immigrate to Canada
was to upgrade her education, she had not looked into any schools. When asked
whether she had researched how to obtain her license to work as a radiation
technologist, she named the same two licensing bodies as her husband, but did
not know how long it would take to get licenced. She stated she had not done
research into immigrating to Canada, and did not know of settlement
organizations or how she would go about finding a job. The notes state that the
Applicant’s wife, after some prompting, could only describe very generic
details of her daily duties and indicate she kept looking at her husband
throughout the interview.
[18]
The GCMS notes convey that the Interviewing
Officer explained to both parties that “if you do a job
every day you should be able to describe in detail what you do”, yet
neither party could satisfactorily explain their daily duties, despite having
worked as radiation technologists since 2008.
[19]
As well, the notes state the current employment
letters provided by Applicant paraphrase NOC 3215, and the interview provided
the Applicant and his spouse with “the opportunity to
explain in their own words what they do.”
[20]
The Interviewing Officer was of the opinion the
Applicant was “very unprepared for immigration despite
having almost [one] year to prepare before [the] interview”. She was not
satisfied the Applicant or his spouse would be able to economically establish
in Canada after considering the information submitted, employment letters, lack
of preparation for immigration, and inability to adequately explain job duties,
and thus recommended a negative substituted evaluation.
[21]
The file review in the GCMS notes (dated
February 18, 2015) indicates the employment letters, from two different
hospitals, are a carbon copy of each other and mimic the NOC duties, which “diminishes the overall credibility of the employment
letters”. This is what initially prompted the interview. The Applicant
had an overall score of 6.5, and his spouse, 7.0.
III.
Issues
[22]
The issues are:
A.
Did the Interviewing Officer breach the
principles of procedural fairness by not providing the Applicant with an
opportunity to address her concerns regarding his ability to become
economically established in Canada?
B.
Did the Interviewing and Concurring Officers
reasonably exercise negative discretion?
IV.
Standard of Review
[23]
The parties agree that the standard of review
applied to a visa officer’s exercise of negative discretion is reasonableness.
[24]
Issues of natural justice or procedural fairness
are subject to review on a correctness standard. The Applicant submits that the
duty of fairness is heightened in cases where an officer exercises discretion
in a substituted evaluation. Justice Evans of the Federal Court of Appeal
[FCA], held in Sadeghi v Canada (Minister of Citizenship and Immigration),
[2000] 4 FC 337 at paras 14, 15, 17 [Sadeghi], that:
a discretionary decision depriving an
applicant of his legitimate expectation that, having satisfied the specific
statutory selection criteria, most of which are geared towards assessing an
applicant’s prospects for becoming economically established in Canada, he would
be issued with a visa … Decisions removing a person's legitimate expectation of
receiving a benefit typically attract greater procedural protection than those
where the discretion is at large.
V.
Analysis
A.
Did the Interviewing Officer breach the
principles of procedural fairness by not providing the Applicant with an
opportunity to address her concerns regarding his ability to become
economically established in Canada?
[25]
The Applicant submits the Interviewing Officer
breached the duty of fairness required in the circumstances. Visa officers have
a duty to give applicants an opportunity to answer the specific case against
them, which may require officers to convey their concerns and give the
applicant an opportunity to disabuse them. The Interviewing Officer did not
advise the Applicant and his wife about her specific concerns relating to their
ability to become economically established in Canada and did not disclose she
was considering negative substitution, which denied them an opportunity to
respond.
[26]
CIC’s operations manual specifies that concerns
underlying an officer’s rationale for making a negative substituted evaluation
should be provided in writing. The manual states:
If an officer decides to use substituted
evaluation when the applicant did meet all the requirements to become a member
of the federal skilled worker class (i.e., negative substituted evaluation),
the officer will
communicate their concerns to the
applicant in writing and provide sufficient opportunity for the applicant to
respond to those concerns, through correspondence/documentation and/or an
interview;
[27]
The Applicant submits that officers must
communicate their specific concerns to applicants in these circumstances. He
relies on Sharma v Canada (Minister of Citizenship and Immigration),
2011 FC 337 [Sharma], wherein Justice Richard Boivin determined that a
negative substituted decision pursuant to Regulation 76(3) was procedurally
unfair, notwithstanding a procedural fairness letter had been sent mentioning
the officer was not satisfied of the applicant’s ability to become economically
established in Canada.
[28]
I agree with the Applicant that the Interviewing
Officer, in this context, had a duty to advise the Applicant of her concerns
and that her failure to clearly communicate concerns regarding the Applicant’s
ability to economically establish in Canada amounted to a breach of procedural
fairness. This aligns with the Federal Court of Appeal decision in Sadeghi,
above, and with the CIC operations manual.
[29]
Visa officers have a duty to convey to
applicants their concerns grounded in the credibility, accuracy or genuine
nature of information submitted, and must provide applicants with an
opportunity to disabuse them. Visa officers are not obligated to convey
concerns that arise directly from the requirements of the Act and Regulations
or which deal with sufficiency of the evidence (Liao v Canada (Minister of Citizenship
and Immigration), [2000] FCJ No 1926 at paras 15-17, 23; Rukmangathan v
Canada (Minister of Citizenship and Immigration), 2004 FC 284 at 22 [Rukmangathan]).
[30]
On the present facts, I find that the
Interviewing Officer had a duty to convey her concerns to the Applicant.
Firstly, the content of fairness is heightened in this context. As well, the Interviewing
Officer’s concerns related to the credibility of the Applicant’s documentary
and testimonial evidence. The GCMS notes indicate a case analysts’ concerns
with the employment letters being “carbon copies” and largely imitative of the
NOC is what prompted the interview in the first place. Such concerns have been
found by this Court to be related to the veracity and credibility of the
Applicant’s evidence, not its sufficiency (Patel v Canada (Minister of Citizenship
and Immigration), 2011 FC 571 at paras 23-27; Hamza v Canada (Minister
of Citizenship and Immigration), 2013 FC 264 at para 29).
[31]
As well, the Applicant had met and surpassed the
requirements of the FSW class, and in such a case the FCA has determined, “it is important that [officers] raise their concerns with
the individual in a way that enables her or him to respond” (Sadeghi,
at para 17). Although the Applicant knew his eligibility would be assessed at
the interview, he was not informed the Interviewing Officer was considering a
substituted evaluation under Regulation 76(3), such that he could discern that his
ability to economically establish in Canada was at issue. He also did not have
an opportunity to address that concern subsequently.
[32]
The affidavits filed by the Applicant and by the
Interviewing Officer present opposing accounts of the tone of the interview and
whether concerns were specifically communicated. I find the Applicant’s
affidavit more persuasive and assign it more weight for the following reasons.
[33]
I agree with the reasoning in Rukmangathan, above,
at paras 30, 31, citing Parveen v Canada (Minister of Citizenship and
Immigration), [1999] FCJ No 660 (Fed TD) [Parveen], that “...[v]isa officers deal with many applications, one can
expect that they will not have as precise a memory of the event as does the
applicant” (Parveen, at para 10). The interview took place on
March 11, 2015, yet the Officer’s affidavit was sworn in December 4, 2015 –
approximately nine months later. The extended passage of time and the number of
interviews this Officer would have conducted in the interim calls into question
the reliability of her attested statements made months later.
[34]
As well, the Officer’s affidavit essentially
reiterates the GCMS notes, adding very little to their substance.
[35]
Although the Officer states in her affidavit
that she advised the Applicant of her “concerns to
become economically established” and gave him an opportunity to address
them (para 11), such specificity was not provided within the GCMS notes, which
simply state “[c]oncerns explained to applicants”.
I agree with the Applicant that the GCMS notes are vague and it is simply not
clear what concerns were communicated to the Applicant; were the explained
concerns related to the Applicant and his wife’s undetailed description of
daily job duties, their similar employment letters, or their lack of research
into precise steps to get licenced? The Respondent does not indicate anywhere within
the GCMS notes, and it is not evident from the record, that the concern
regarding the Applicant’s ability to become economically established was
specifically put to him, in the interview or otherwise, such that he was given
an opportunity to respond. A bald, vague statement in the Interviewing Officer’s
affidavit sworn nine months after the interview should be given little weight.
[36]
The Respondent submits that procedural fairness
in this case does not require an officer to advise an applicant in writing.
Yet, as the Applicant identified, CIC’s operations manual states the officer in
this circumstance “will communicate their concerns to
the applicant in writing and provide sufficient opportunity for the applicant
to respond to those concerns, through correspondence/ documentation and/or an
interview”. While this document is not binding and does not carry the
force of law, at a minimum it indicates what procedural duties are expected of
visa officers in these circumstances.
[37]
I find that the Interviewing Officer breached
the duty of fairness owed to the Applicant in this case by not conveying her
concerns and thus denying the Applicant with a meaningful opportunity to
respond.
B.
Did the Officers reasonably exercise negative
discretion?
[38]
The Applicant submits the substituted evaluation
decision was unreasonable on two grounds: (i) the Interviewing Officer relied
on improper considerations and made unreasonable findings based on the evidence
before her; and (ii) the Concurring Officer subsequently prepared an almost
incomprehensible decision based on inapplicable legislation and similarly
unreasonable findings.
[39]
The Respondent submits it was reasonably open to
the Interviewing Officer to find that the Applicant and his wife were unlikely
to become economically established in Canada. The Officer based such a decision
on the following facts, as described in the GCMS notes:
- although wanting to upgrade his education
in Canada, the Applicant had not looked into any schools;
- the Applicant said he had researched the
job market for radiation technologists online, but could not provide names
of any websites visited;
- although he could name two licencing
bodies, he stated he did not know what steps to take to obtain a licence;
- Applicant has an uncle in Edmonton and simply
shrugged when asked why he had not visited the relative;
- the Applicant’s wife’s responses to
questioning were the same as her husband;
- the Applicant’s wife replied she did not
know when questioned whether she had done research into Canadian
immigration or if she knew of any settlement organizations;
- when the Interviewing Officer’s concerns
were explained at the interview, both the Applicant and his wife responded
by saying they could do more research.
[40]
As well, the Respondent submits it was
reasonably open to the Interviewing Officer to exercise negative discretion,
given the Applicant’s lack of preparation when one considers the Decision as a
whole and takes into account the GCMS notes. Absence of plans and research for
potential work are relevant factors to consider (Wijayansinghe v Canada
(Minister of Citizenship and Immigration), 2015 FC 811 at para 45).
[41]
Moreover, while the Regulations do not require
an applicant to demonstrate they will obtain employment in the qualifying
occupation, an officer is justified in considering an Applicant’s likelihood of
practicing in that profession, as the Applicant would likely rely on these
skills to make a living (Gharialia v Canada (Citizenship and Immigration),
2013 FC 745 at para 37).
[42]
In this case, the refusal letter and citation of
inapplicable regulations to the Applicant’s application calls into question:
(i) whether the Concurring Officer indeed reviewed all the information in the
Applicant’s application; and (ii) whether he read the whole assessment with
which he concurs. This accordingly casts doubt on the reasonableness of the
assessment.
[43]
An Affidavit of Kristin Erickson, Immigration
Counsellor at the High Commission of Canada in Colombo, Sri Lanka, sworn
November 27, 2015, sets out that on April 24, 2015, the immigration office
received an email from the Applicant’s immigration representative requesting
reconsideration of the refusal decision on the basis it had been made pursuant
to Regulation 87 (rather than Regulation 76). The Concurring Officer replied by
email on April 28, 2015, stating he had reviewed the application and confirmed
the assessment was made under the FSW provisions, not under the PNP, and that
reference in the refusal letter to the PNP program regulations was inadvertent.
He stated the processing of the application and the decision was legally
correct. The Affidavit sets out that Regulation 76(3) should have appeared
where the Concurring Officer mentioned 87(3), and regardless, the applicable
test – whether the Applicant may become economically established in Canada – is
the same for both regulations.
[44]
Notwithstanding this above information, it is
evident that the refusal letter does not simply “inadvertently” substitute Regulation
87(3), where 76(3) should have been. Rather, it describes Regulations 87, 87(2)
and 87(3). The refusal letter states the Concurring Officer reviewed all of the
Applicant’s information, and determined he had “not met
the eligibility requirements outlined in R87”. This conveys that the
Concurring Officer reviewed the information in light of Regulation 87, which
has different criteria for admission than the FSW program.
[45]
As well, the refusal letter only references
“FSW” once, when paraphrasing the Interviewing Officer’s GCMS notes. While the
Interviewing Officer’s decision appears to have been based on the FSW
eligibility criteria, it is not clear that the Concurring Officer reviewed the
application in light of the correct regulatory regime.
[46]
I agree that the PNP and FSW provisions are
similar, in that they permit an officer to make negative substituted evaluation
notwithstanding an Applicant’s fulfillment of other requirements, if previous
subsections specific to that Regulation (87(2)(a) or 76(1)(a)) are found to be
insufficient indicators of whether the Applicant may become economically
established in Canada. However, the provisions for the PNP (Regulation 87) and
FSW (Regulation 76) are not identical, nor are the requirements of the
substituted evaluation subsections of both Regulations.
[47]
I find the decision of the Concurring Officer
unreasonable.
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