Docket:
IMM-9494-12
Citation: 2013 FC 1134
Ottawa, Ontario, November 13, 2013
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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MOHAMMAD JAVAD KHOSHNAVAZ
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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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REASONS FOR JUDGMENT AND JUDGMENT
I. Overview
[1]
This Court has repeatedly stated that the duty
of fairness only requires disclosure of information to provide an applicant
with a meaningful opportunity to fully and fairly present his or her case, and
to correct any prejudicial misunderstandings, misstatements, errors or
omissions (Dasent v Canada (Minister of Citizenship and Immigration),
[1995] 1 FC 720; Nadarasa v Canada (Minister of Citizenship and Immigration),
2009 FC 1112 at para 25; Pizarro Gutierrez v Canada (Citizenship and
Immigration), 2013 FC 623). As stated in Rukmangatham v Canada (Minister
of Citizenship and Immigration), 2004 FC 284, 247 FTR 147, this duty does
not stretch to the point of requiring a visa officer to provide an applicant
with a “running score” of the weaknesses in his or her application (at para 23
of that decision; also, specifically, para 2 and 12 of Hsieh v Canada
(Minister of Citizenship and Immigration), 2011 FC 1524; and, Construction
Labour Relations v Driver Iron Inc., 2012 SCC 65, [2012] 3 S.C.R. 405 at para
3).
II. Introduction
[2]
The Applicant seeks judicial review of the
refusal of an Immigration Officer to process his application for permanent
residence under the federal skilled worker class [PR application].
III. Judicial
Procedure
[3]
This is an application under subsection 72(1) of
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]
for judicial review of the Officer’s decision, dated July 9, 2012.
IV. Background
[4]
The Applicant, Mr. Mohammad Javad Khoshnavaz, is a citizen of Iran, born in 1981.
[5]
The Applicant received a Master’s degree in
Geophysics from Islamic Azad University in 2009.
[6]
On July 28, 2010, the Applicant submitted an
application for a permanent resident visa as a skilled worker.
[7]
In his application, the Applicant indicated he
has been working as a Geophysicist for Farayand Sazan Energy Consulting
Engineers Co. [Farayand] since 2005. He explained he worked part-time for
Farayand from January 2005 to January 2007 and then full-time from January 2007
to July 2010.
[8]
The Applicant also performed his compulsory
military service in the Iranian army from 2007-2009.
[9]
On February 21, 2012, the Officer sent a letter
to the Applicant requesting that he provide evidence of his work history for
the past 10 years in the form of a statement confirming contributions to a
social security plan from the Social Security Organization (SSO) of Iran.
[10]
On March 19, 2012, the Applicant’s
representative replied to this request by submitting a letter from Farayand
explaining that “[b]ased on the contents of the contract, he [the Applicant] is
free from paying insurance premiums” (Certified Tribunal Record [CTR] at p 13).
[11]
The Officer did not accept this explanation and,
on April 3, 2012, sent a further letter to the Applicant indicating that he was
still not satisfied that the employment references he submitted were genuine or
that he had the work experience he alleged as a Geophysicist. The Officer gave
the Applicant an additional 30 days to provide a response to his concerns regarding
his work experience.
[12]
On April 30, 2012, the Applicant responded to
the Officer’s concerns in a letter stating:
Please note that as
confirmed in a letter from the company the applicant is working for, attached
herein for your reference, the applicant is not obliged to pay social security.
In Iran, public entities have this requirement for its employees. As far as
private companies, such as the one the applicant is working for, they have the
option of registering with social security or not. In this case, the Applicant
is not subject to social security and therefore cannot provide the evidence you
requested as it does not exist[].
(CTR at p 7).
[13]
On July 9, 2012, the Officer determined that the
Applicant was not eligible to have his PR Application processed.
V. Decision
under Review
[14]
In his decision, the Officer noted that,
according to information from the SSO, “all salaried employees are subject to
payment of social security contributions” in Iran.
[15]
In the absence of proof that the Applicant made
such contributions, the Officer stated that he could not be satisfied that the
Applicant had in fact worked for Farayand.
[16]
Consequently, the Officer determined that the
Applicant had failed to provide sufficient evidence that he met the work
experience requirements under subsection 75(2) of the Immigration and
Refugee Protection Regulations, SOR/2002-227 [Regulations]
and refused to process the PR application.
VI. Issues
[17]
(1) Did the Officer breach the rules of
procedural fairness by not disclosing to the Applicant that he consulted
extrinsic evidence?
(2) Did the Officer err in failing to consider evidence
regarding the Applicant’s work history?
VII. Relevant
Legislative Provisions
[18]
The following legislative provisions of the IRPA
are relevant:
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Application before entering Canada
11. (1)
A foreign national must, before entering Canada, apply to an officer for a
visa or for any other document required by the regulations. The visa or
document may be issued if, following an examination, the officer is satisfied
that the foreign national is not inadmissible and meets the requirements of
this Act.
Economic immigration
12. (2)
A foreign national may be selected as a member of the economic class on the
basis of their ability to become economically established in Canada.
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Visa et documents
11. (1)
L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les
visa et autres documents requis par règlement. L’agent peut les délivrer sur
preuve, à la suite d’un contrôle, que l’étranger n’est pas interdit de
territoire et se conforme à la présente loi.
Immigration économique
12. (2)
La sélection des étrangers de la catégorie « immigration économique » se fait
en fonction de leur capacité à réussir leur établissement économique au Canada.
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[19]
The relevant provisions of the Regulations are:
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Class
75. (1)
For the purposes of subsection 12(2) of the Act, the federal skilled worker
class is hereby prescribed as a class of persons who are skilled workers and
who may become permanent residents on the basis of their ability to become
economically established in Canada and who intend to reside in a province
other than the Province of Quebec.
Skilled workers
(2) A foreign
national is a skilled worker if
(a)
within the 10 years before the date on which their application for a
permanent resident visa is made, they have accumulated, over a continuous
period, at least one year of full-time work experience, or the equivalent in
part-time work, in the occupation identified by the foreign national in their
application as their primary occupation, other than a restricted occupation,
that is listed in Skill Type 0 Management Occupations or Skill Level A or B
of the National Occupational Classification matrix;
(b)
during that period of employment they performed the actions described in the
lead statement for the occupation as set out in the occupational descriptions
of the National Occupational Classification;
(c)
during that period of employment they performed a substantial number of the
main duties of the occupation as set out in the occupational descriptions of
the National Occupational Classification, including all of the essential
duties;
(d)
they have submitted the results of an evaluation — by an organization or
institution designated under subsection 74(3) and which must be less than two
years old on the date on which their application is made — of their
proficiency in either English or French indicating that they have met or
exceeded the applicable language proficiency threshold fixed by the Minister
under subsection 74(1) for each of the four language skill areas; and
(e)
they have submitted one of the following:
(i) their
Canadian educational credential, or
(ii) their
foreign diploma, certificate or credential and the equivalency assessment,
which assessment must be less than five years old on the date on which their
application is made.
...
Minimal requirements
(3) If the
foreign national fails to meet the requirements of subsection (2), the
application for a permanent resident visa shall be refused and no further
assessment is required.
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Catégorie
75. (1)
Pour l’application du paragraphe 12(2) de la Loi, la catégorie des
travailleurs qualifiés (fédéral) est une catégorie réglementaire de personnes
qui peuvent devenir résidents permanents du fait de leur capacité à réussir
leur établissement économique au Canada, qui sont des travailleurs qualifiés
et qui cherchent à s’établir dans une province autre que le Québec.
Qualité
(2) Est un
travailleur qualifié l’étranger qui satisfait aux exigences suivantes :
a) il a accumulé, de façon continue, au moins une année
d’expérience de travail à temps plein ou l’équivalent temps plein pour un
travail à temps partiel, au cours des dix années qui ont précédé la date de
présentation de sa demande de visa de résident permanent, dans la profession
principale visée par sa demande appartenant au genre de compétence 0 Gestion
ou aux niveaux de compétence A ou B de la matrice de la Classification
nationale des professions, exception faite des professions d’accès limité;
b) pendant cette période d’emploi, il a accompli l’ensemble des
tâches figurant dans l’énoncé principal établi pour la profession dans les
descriptions des professions de cette classification;
c) pendant cette période d’emploi, il a exercé une partie
appréciable des fonctions principales de la profession figurant dans les
descriptions des professions de cette classification, notamment toutes les
fonctions essentielles;
d) il a fourni les résultats d’une évaluation de sa compétence en
français ou en anglais — datant de moins de deux ans au moment où la demande
est faite — faite par une institution ou organisation désignée en vertu du
paragraphe 74(3), et il a obtenu, pour chacune des quatre habiletés
langagières, au moins le niveau de compétence applicable établi par le
ministre en vertu du paragraphe 74(1);
e) il a soumis l’un des documents suivants :
(i) son
diplôme canadien,
(ii) son
diplôme, certificat ou attestation étranger ainsi que l’attestation
d’équivalence, datant de moins de cinq ans au moment où la demande est faite.
...
Exigences
(3) Si
l’étranger ne satisfait pas aux exigences prévues au paragraphe (2), l’agent
met fin à l’examen de la demande de visa de résident permanent et la refuse.
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VIII. Position
of the Parties
[20]
The Applicant submits that the Officer breached the
rules of natural justice by failing to disclose that he consulted extrinsic
evidence, namely, the SSO website, in determining that he was not eligible to
have his PR application processed. The Applicant submits that, as a result of
not being made aware of this extrinsic evidence, he was not granted an
opportunity to respond to the Officer’s concerns regarding the genuineness of
his employment references.
[21]
The Applicant states that, contrary to the Officer’s
belief, not all employees in Iran are compelled to contribute to the SSO; it is
possible to be employed on a private contractual basis without contributing to
the SSO. The Applicant submits that the Officer, therefore, erred in his
understanding of the social security scheme in Iran.
[22]
The Applicant also submits that the Officer failed to
consider the letter submitted by his employer (Farayand) explaining that the
Applicant was employed on a contract-basis and, therefore, not subject to
paying for social security (CTR at p 13). The Applicant argues that the fact
that the decision-maker did not mention this specific evidence in his decision
demonstrates that it was overlooked or ignored.
[23]
The Respondent submits that there was no breach of
procedural fairness by the Officer in not disclosing that he consulted
extrinsic evidence. The Respondent submits that the Officer reiterated his
concerns to the Applicant regarding his employment history several times and
the Applicant was fully aware of the Officer’s concerns with regard to the lack
of evidence on contributions to the SSO (Nagulathas v Canada (Minister of Citizenship
and Immigration), 2012 FC 1159).
[24]
The Respondent also submits that the Officer was not
required to mention all of the evidence in his decision, including the
Applicant’s statement that he is a contract employee and, therefore, is exempt
from paying SSO contributions (Newfoundland and Labrador Nurses' Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708).
[25]
The Respondent contends that the evidence presented in
the Applicant’s affidavit was not before the Officer and cannot be used to assist
in demonstrating how the Applicant met the requirements of the IRPA and
its Regulations (Roberts v Canada (Minister of Citizenship and
Immigration), 2009 FC 518; Pacheco Silva v Canada (Minister of Citizenship
and Immigration), 2007 FC 733; Nehme v Canada (Minister of Citizenship
and Immigration), 2004 FC 64, 245 FTR 139).
IX. Analysis
Standard of Review
[26]
The first issue advanced by the Applicant is a question
of law and warrants review on a standard of correctness. A denial of the
opportunity to respond to an officer’s concerns is a procedural fairness issue
that is always reviewable on a standard of correctness (Hara v Canada (Minister
of Citizenship and Immigration), 2009 FC 263, 341 FTR 278 at para
16-17). As a result, the decision-maker is owed no deference (Malik v Canada
(Minister of Citizenship and Immigration), 2009 FC 1283 at para 23; Sketchley
v Canada (Attorney General), 2005 FCA 404, [2006] 3 FCR 392 at para 53).
[27]
Conversely, issues regarding an applicant’s eligibility
for permanent residence as a skilled worker are based on discretionary findings
of fact and are therefore reviewed by this Court on a standard of
reasonableness (Samuel v Canada (Minister of Citizenship and Immigration),
2010 FC 223 at para 26-27; Senadheera v Canada (Minister of Citizenship and
Immigration), 2012 FC 704, 412 FTR 286 at para 6).
[28]
In reviewing an officer’s decision on the standard of
reasonableness, the Court should not intervene unless the officer came to a
conclusion that is not transparent, justifiable and intelligible and within the
range of acceptable outcomes based on the evidence before it (Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47; Canada (Minister of Citizenship
and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para 59).
Preliminary Issue
[29]
As part of the Applicant’s Record, the Applicant has
submitted a personal affidavit that contains information that was not part of
the record before the Officer. As this information was not before the Officer,
the Court agrees with the Respondent that it should not be considered in the
judicial review of the Officer’s decision (Lemiecha (Litigation guardian of)
v Canada (Minister of Employment and Immigration) (1993), 72 FTR 49, 24 Imm
LR (2d) 95; Vong v Canada (Minister of Citizenship and Immigration),
2006 FC 1480, 306 FTR 175; Dezameau v Canada (Minister of Citizenship and
Immigration), 2010 FC 559, 369 FTR 151).
(1) Did the Officer breach the rules of procedural fairness by not
informing the Applicant that he consulted extrinsic evidence?
[30]
In Rukmangathan, above, this Court held that
procedural fairness requires that “an applicant be given an opportunity to respond
to extrinsic evidence relied upon by the visa officer and to be apprised of the
officer's concerns arising therefrom” (at para 22) (reference is also made to Talpur
v Canada (Minister of Citizenship and Immigration), 2012 FC 25). The duty
of procedural fairness owed in the context of visa applications, however, is
fairly low (Farooq v Canada (Minister of Citizenship and Immigration),
2013 FC 164). This is particularly so where the Officer’s concerns arise
directly from the requirements of the IRPA or its Regulations, as
is the case here (Obeta v Canada (Minister of Citizenship and Immigration),
2012 FC 1542 at para 25).
[31]
This Court has repeatedly stated that this duty of
fairness only requires disclosure of information to provide an applicant with a
meaningful opportunity to fully and fairly present his or her case, and to
correct any prejudicial misunderstandings, misstatements, errors or omissions (Dasent,
above; Nadarasa , above, at para 25; Pizarro Gutierrez, above).
As stated in Rukmangatham, above, this duty does not stretch to the
point of requiring a visa officer to provide an applicant with a “running score”
of the weaknesses in his or her application (at para 23 of that decision, also;
specifically, para 2 and 12 of Hsieh, above; and, Construction Labour
Relations, above, at para 3).
[32]
An Applicant has the burden to put together an
application that is “not only complete but relevant, convincing and
unambiguous” (Obeta, above, at para 25). A visa officer is under no
duty to complete a deficient application (Sharma v Canada (Minister of
Citizenship and Immigration), 2009 FC 786 at para 8).
[33]
In the present case, the Court cannot agree with the
Applicant that the decision should be overturned due to an alleged breach of
natural justice. As it clearly appears on the record, the Applicant was
expressly made aware of the Officer’s concerns regarding his contributions to
the SSO. The Officer expressed these concerns in his April 3 letter to the
Applicant (CTR at p 9).
[34]
In his letter, the Officer also provided notice of
his intention to refuse the application if no further evidence corroborating the
Applicant’s employment references was received. The Applicant, however, took no
steps to address the Officer’s concerns. In his response letter, dated April
30, 2012 (CTR at p 7), the Applicant simply replied that he was not obliged to
pay social security as he worked on contract for a private company, and,
therefore, could not provide proof of contributions to the SSO. The Applicant provided
no evidence in support of this proposition nor did he attempt to provide other
corroborating evidence in support of his employment references.
[35]
In the Court’s view, there is no question that the
Applicant knew, or should have known, precisely what issues were of concern to
the Officer based on this letter. Moreover, in the circumstances of this case,
the Court finds that the Officer’s review of the SSO website should not be
considered to trigger a duty of fairness on the part of the Officer to inform
the Applicant. The information retrieved by the Officer in this case was
publicly available. The Applicant could, thus, reasonably be expected to have
had knowledge of that information; especially as someone who is working in Iran
and ostensibly complying with Iranian labour laws.
[36]
Similarly, the Applicant should also have reasonably
expected that a diligent officer would likely inquire into the rules regarding
contributions to the SSO after being informed that the Applicant was exempt
from such contributions, without any supporting documentation.
[37]
As reminded in Adetunji v Canada (Citizenship and
Immigration), 2012 FC 708:
[38] The question
is not whether the impugned document was available to the Applicant, but
whether the information contained in that document was available to the
Applicant, and whether the Applicant could reasonably be expected to
have knowledge of that information (see Jiminez v Canada (Minister of
Citizenship and Immigration), 2010 FC 1078 at paras 17-19 (available on
CanLII); Stephenson v Canada (Minister of Citizenship and Immigration),
2011 FC 932 at paras 38-39 (available on CanLII))… [Emphasis added.]
[38]
On the facts of this case, this Court does not find a
breach of procedural fairness in the failure of the Officer to disclose to the
Applicant that he had accessed the SSO website in arriving at the decision
under review.
(2)
Did the Officer err in failing to consider evidence regarding the
Applicant’s work history?
[39]
In the present case, it is evident that the Applicant
disagrees with the Officer’s weighing of the evidence; however, he does not
demonstrate that the Officer committed a reviewable error.
[40]
Contrary to the Applicant’s allegations, the Officer
specifically mentioned that he took the Applicant’s letter of April 30, 2012
into consideration in arriving at his decision; however, he indicated that it
was not sufficient to disabuse him of his concerns.
[41]
It was up to the Officer to weigh this evidence and to
make negative findings supported by the evidence (Antrobus v Canada (Minister
Citizenship and Immigration), 2012 FC 3). It is not the function of this
Court to reweigh the evidence and substitute its decision for that of the
Officer (Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration)
(1998), 157 FTR 35).
[42]
The Court finds that the evidence on the record
reasonably supports the Officer’s finding that the Applicant did not provide
satisfactory evidence to demonstrate that he had work experience as a
Geophysicist.
[43]
Consequently, the Court does not find that its
intervention is warranted (Dunsmuir, above, at para 47).
X. Conclusion
[44]
For all of the above reasons, the Applicant’s
application for judicial review is dismissed.
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