Docket: IMM-2408-15
Citation:
2016 FC 1012
Ottawa, Ontario, September 7, 2016
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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JIGNABEN
SHARADBHAI SHAH
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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.
Overview
[1]
Ms. Shah is a citizen of India and a
bookkeeper/accountant by profession. In September 2012, Ms. Shah submitted an
application for permanent residence under the Federal Skilled Worker Class. In
her application, Ms. Shah reported continuous employment with Hindustan Marble
Private Limited [Hindustan Marble] from June 1992 until the submission of her
application in 2012.
[2]
Her application was considered by a Visa Officer
[Officer] at the Canadian High Commission in New Delhi. The Officer undertook
internet research and telephone verifications for the purpose of confirming Ms.
Shah’s reported employment. In making these calls the Officer did not speak to
the employer, Mr. Arunkumar Thakur, identified in Ms. Shah’s application
despite having both a business and a cell phone contact number. Instead, the
Officer spoke with the employer’s son, Mr. Parikshit Arunkumar Thakur, the
owner of the company Plenar Technologies. He advised the Officer that Ms. Shah
joined his company in 2006 or 2007. The son also reported to the Officer that
his father was a shareholder in Hindustan Marble and that he was involved in
recruiting employees for Hindustan Marble in the past.
[3]
Shortly after the verification calls, Ms. Shah
provided the Officer with an affidavit sworn by the son stating that Ms. Shah
was not his employee and any questions should be directed to his father.
[4]
Almost one year later, in August 2014, Ms. Shah
received a procedural fairness letter advising her that the employment
verification calls had disclosed information that contradicted the information
provided in her application.
[5]
In response, Ms. Shah maintained that she had
accurately reported her employment dates. The response included documentary
evidence in the form of two letters from clients of Hindustan Marble, corporate
documents and tax returns for Hindustan Marble, personnel tax returns and other
documentation in support of her employment record.
[6]
In April 2015, Ms. Shah’s application was
refused on the basis that she had misrepresented or withheld material facts
related to her work experience and that the misrepresentation could have
induced errors in the administration of the IRPA. The Officer: (1) discounted
the client letters on the grounds that they were similar in structure suggesting
the same person had generated the letters; (2) noted that while the son was not
the employer he had claimed to know Ms. Shah well; and (3) rejected the
remainder of the documentation provided in response to the procedural fairness
letter on the basis that inauthentic documents are easily obtained in India.
[7]
Ms. Shah seeks to quash the negative decision
and have the matter returned for reconsideration by a different Officer. Ms.
Shah argues that the decision is unreasonable in that the process undertaken to
verify her employment was deeply flawed, and that the Officer unreasonably
failed to consider third party documentation that corroborated her employment
experience. She also argues that she was given inadequate notice of the
Officer’s concerns in the procedural fairness letter.
[8]
I agree with Ms. Shah. The reasons do not
reflect a transparent and intelligible line of reasoning in support of the
ultimate conclusion of misrepresentation and that Ms. Shah does not have the
work experience claimed. Ms. Shah also raises concerns relating to the
sufficiency of the procedural fairness letter she was provided. However, the
reasonableness of the Officer’s decision is determinative and, as such, it is
the only issue that I need to address in considering the present application.
II.
Preliminary Issue
[9]
In support of her application, Ms. Shah included
an affidavit sworn by Arunkumar Thakur, Ms. Shah’s employer at Hindustan
Marble. This affidavit was not before the Officer. The respondent submitted
that this affidavit should not be admitted.
[10]
As a general rule, the record placed before the
Court in an application for judicial review is limited to the evidence that was
before the original decision-maker (Association of Universities and Colleges
of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012
FCA 22 at para 19 cited in Mohamed v Canada (Minister of Citizenship and
Immigration), 2015 FC 1379 at paras 18-20). In oral submissions, counsel
for Ms. Shah argued that the affidavit falls within an exception to the general
rule in that it responds to the alleged procedural fairness breach. Counsel
also noted that the affidavit addresses what would at best be described as a
peripheral matter.
[11]
I have not considered this affidavit. I am not
convinced it addresses an issue related to a breach of fairness as submitted by
Ms. Shah’s counsel, but even if it does, as noted above, the procedural
fairness argument is not determinative of the outcome of this application.
III.
Standard of Review
[12]
The issue engaged in this application involves a
question of mixed fact and law and the exercise of discretion to which the
reasonableness standard of review applies (Taleb v Canada (Minister of
Citizenship and Immigration), 2012 FC 384 at para 19).
IV.
Analysis
[13]
The respondent argues that the Officer
reasonably concluded that Ms. Shah was inadmissible for misrepresentation. The
Officer contacted the business number provided by Ms. Shah which was also
registered to Plenar Technologies. Upon being advised that Arunkumar Thakur did
not come to the office regularly, the respondent submits that it was not
unreasonable for the Officer to contact his son who provided information that
contradicted Ms. Shah’s claims relating to her work experience. The respondent
argues that the Officer reasonably preferred the evidence of the son over the
documentary evidence submitted in response to the procedural fairness letter. I
disagree.
[14]
Ms. Shah clearly identified her employer in her
application. She provided business contact numbers and a cell phone number for
Arunkumar Thakur. The Computer Assisted Immigration Processing System [CAIPS]
notes indicate that the Officer was advised, having contacted one of the
business numbers, that Arunkumar Thakur “does not come
into the office regularly”. The Officer was not told that Arunkumar
Thakur was unavailable or unreachable.
[15]
For reasons that are not set out in the CAIPS
notes the Officer then choose to contact Arunkumar Thakur’s son on his cell
phone. The Certified Tribunal Record [CTR] indicates that the Officer was aware
that the son was not involved in Hindustan Marble but rather was the owner of
Plenar Technologies. What is not evident from the CTR is why the Officer did
not simply contact Arunkumar Thakur at the cell phone number Ms. Shah had
provided. It was during this call with the son that the contradictory
information was provided.
[16]
It was reasonable for the Officer to have
concerns as a result of the conversation with the son. The procedural fairness
letter however was not sent until one year later. In the interim period, Ms.
Shah had submitted an affidavit from the son where he stated that: (1) Ms. Shah
was not his employee and (2) that questions should be directed to Arunkumar
Thakur. The affidavit does not attempt to explain the information that was
provided regarding Ms. Shah’s employment. There is no indication in the CAIPS
notes or in the procedural fairness letter that this affidavit was actively
considered. It is clear that Arunkumar Thakur was not contacted.
[17]
The failure to address the son’s affidavit and,
either contact Arunkumar Thakur or explain why he was not contacted, undermines
the transparency and intelligibility of the decision (Cepeda-Gutierrez v
Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1425 at
para 15). Ms. Shah had identified Arunkumar Thakur as her employer and the
employment relationship was restated in the follow-up affidavit from Mr.
Thakur’s son. In light of the inconsistent employment history information
provided to the Officer by Arunkumar Thakur’s son the Officer had an obligation
to either contact Arunkumar Thakur or set out the reasons for not doing so.
[18]
It is also not apparent why the Officer
preferred the evidence provided by the son in the verification phone call over
the documentation advanced in response to the procedural fairness letter. The
CAIPS notes state that “[t]he further documents
submitted by the applicant do not overcome the concerns raised by the
verification” and then notes that inauthentic documents are easily
obtained and that verification will not address the concerns as the applicant
has been alerted to the possibility of telephone verifications and therefore
verifying authorities may have been co-opted. The CAIPS notes provide nothing
further by way of explanation.
[19]
Justice Danièle Tremblay-Lamer considered a very
similar explanation for rejecting documentary evidence in Rong v Canada
(Minister of Citizenship and Immigration), 2013 FC 364 at paras 22-33 [Rong].
Justice Tremblay-Lamer concludes in that case that the explanation was simply
inadequate. I reach the same conclusion here.
[20]
Unlike Rong, in this case the Officer did
consider some of the documentation submitted by Ms. Shah, specifically the two
client letters. However, as in Rong, the Officer advanced no explanation
beyond the easy availability of inauthentic documents for preferring the
evidence provided in the telephone verification over the other documentary
evidence provided by Ms. Shah in response to the procedural fairness letter.
The documents included corporate and personal tax returns corroborative of Ms.
Shah’s claimed work experience.
[21]
In the circumstances, I agree with Ms. Shah when
she states at paragraph 60 of her written submissions that the Officer appears
to have concluded that she “… (a) … falsified documents
such as her income tax returns, Hindustan Marble’s articles of incorporation,
and her employment benefit documents, and (b)… colluded such that India’s
Income Tax Department, the employment benefits fund, etc. “have been co-opted
to provide false verifications””. While such a conclusion might well
have been open to the Officer, it would have required some active consideration
of the documents. The easy availability of inauthentic documents cannot, in and
of itself, justify a failure on the part of the Officer to consider Ms. Shah’s
evidence (Jiang v Canada (Minister of Citizenship
and Immigration), 2014 FC 180 at para 16).
V.
Conclusion
[22]
For the reasons set out above I conclude that
the decision lacks transparency and intelligibility. As such I am unable to
conclude that the decision falls within the range of possible, acceptable
outcomes defensible in respect of the facts and law (Dunsmuir v New
Brunswick, 2008 SCC 9at para 47).
[23]
The parties have not proposed a question for
certification and none arises.
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