Docket: IMM-2828-16
Citation: 2017 FC 71
Ottawa,
Ontario, January 19, 2017
PRESENT: The
Honourable Mr. Justice Brown
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BETWEEN:
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DAMARIS
GUGLIOTTI
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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.
Nature of the Matter
[1]
This is an application for judicial review by
Damaris Gugliotti [the Applicant] pursuant to s. 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the IRPA], of a decision
made by a Visa Officer [the Officer], dated June 16, 2015, in which the initial
refusal of the Applicant’s application for permanent resident [PR] status under
the Federal Skilled Workers Class for being incomplete, under rules 10 and
12.01 of Immigration and Refugee Protection Regulations, SOR/2002-227
[the IRPR], was upheld upon reconsideration [the Reconsideration
Decision].
[2]
The application for judicial review is dismissed
for the reasons that follow.
II.
Facts
[3]
The Applicant is a 27-year-old citizen of
Brazil. Prior to arriving in Canada, the Applicant received a Bachelor’s Degree
in Science from a post-secondary school in Brazil, which is the equivalent of a
four-year post-secondary degree in Canada. While completing her degree in
Brazil, the Applicant worked full-time as an administrative assistant at a high
school in Sao Paulo, from January 2009 to December 2010.
[4]
The Applicant arrived in Canada on January 2011
to continue her studies. She completed the three-year program at George Brown
College and received a diploma in Business Administration. The Applicant was
issued a 3-year post-graduate work permit which was renewed to October 2016.
She worked at the College in an administrative support capacity from January
2012 to July 2014 and then as a Clinical Placement Officer on a part-time
continuous basis, averaging 24 hours a week, from August 2014 to March 2016.
[5]
On February 20, 2016, the Applicant created an online
Express Entry [EE] profile with Citizenship and Immigration Canada [CIC] to
apply for PR status. She received what appears to be a standard form letter
providing direction as to her next steps, which stated:
Based on your answers, it looks like you may
be eligible to come to Canada as a skilled immigrant.
[6]
On February 24, 2016, the Applicant received
another letter from CIC, informing her that she had scored an overall point
total of 465 and inviting her to apply for permanent residency as a member of
the Federal Skilled Workers Class.
[7]
On or about March 17, 2016, the Applicant
submitted her application for permanent residency online. The same day, she
received a standard form letter indicating that CIC had received her
application for permanent residency. Of particular importance on judicial
review, the Applicant submitted as part of her application the following
documents as proof of sufficient funds to immigrate:
•
An account statement from TD Canada Trust
confirming the Applicant’s bank savings, investments, outstanding credit card
bills and investments;
•
Mutual Fund statements at TD Canada Trust with
an 18 month balance history. That Mutual Fund was valued at $18,186.00 CAD and
showed a balance from December 1, 2014 of $18,000.00;
•
Mutual Fund TFSA at TD Canada Trust with a
current balance of $8,251.00 CAD and an 18 month balance history since December
1, 2014;
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Mutual Fund at TD Canada Trust currently valued
at $7,727.00 CAD with a balance history since August 2015;
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US Daily Interest Chequing account with a
current balance of $774.00 CAD; and
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A TD Every Day Chequing Account with a current
balance of $854.00 CAD.
[8]
Combined, these documents showed that she had more
than $43,000.00 CAD, held in various Canadian accounts. It is not disputed that
if what she filed was accepted, she had more than enough to meet the program
requirement to have unencumbered funds of approximately $12,000.00.
[9]
On May 2, 2016, the Applicant received a letter
from CIC advising her that her application had been rejected for failing to
provide valid proof of funds.
[10]
The Applicant’s counsel contacted the Acting
Director at CIC’s national headquarters on May 3, 2016 inquiring as to the “clear error” in the initial decision: he was
instructed to send a “webform enquiry” (or “case-specific enquiry”). The Applicant’s counsel
submitted this enquiry on May 19, 2016, including a copy of the original proof
of funds documents that had been provided previously submitted, and requested a
reassessment.
[11]
The enquiry was received on May 31, 2016 and on
June 16, 2016, the initial rejection of the Applicant’s application was upheld
on reconsideration [Reconsideration Decision].
[12]
By way of sworn affidavit submitted on judicial
review, the Acting Director of IRCC indicates that the updated requirement for
proof of settlement funds is contained in a text box located on the online
application form completed by the Applicant. A screenshot of this pop up help
text box is provided as an exhibit to the affidavit.
[13]
There is no dispute that the following text box
contents were available to the Applicant when she filed her application. The
text box states:
Express Entry – Permanent Residents
If you are applying for permanent residence
in Canada you must provide an official letter issued by your financial
institution indicating your financial profile. This must
· list of all your bank (chequing and
savings) and investment accounts, the account number, dates each account was
opened and the balance of each account over the past six months.
· list all outstanding debts, such as
credit cards and loans.
· Be printed on the letterhead of the
financial institution, and include your name and the contact information of the
financial institution (address, telephone number and e-mail address).
[emphasis added]
[14]
Notwithstanding this notification, the Applicant
did not file an “official letter” as required by
the online form. Instead, the Applicant filed material downloaded from the
website of her financial institution, without any official letter or bank
contact coordinates. She did provide all the required financial information, but
without the necessary official letter in support.
III.
Decision
[15]
On May 2, 2016, the Applicant received a letter
from Immigration, Refugees and Citizenship Canada [IRCC]. The Decision stated,
in relevant part:
Immigration, Refugees and Citizenship Canada
(IRCC) has reviewed your application for permanent residence. We have
determined that your application does not meet the requirements of a complete
application as described in sections 10 and 12.01 of the Immigration
and Refugee Protection Regulations. Your application is rejected for
being incomplete.
Specifically, your application does not
include the following elements:
Proof of Funds:
You have not
provided valid documentation to show verification of proof of funds.
Applications submitted without these mandatory documents cannot be considered
complete.
Note: A full review of your application was
not performed. There may be other elements, not identified above, which may
also be missing or incomplete.
[emphasis in original]
[16]
The Decision Letter informed the Applicant that,
should she still wish to come to Canada as a skilled immigrant, she would be
required to submit a new Express Entry profile online. It advised her that the
fees she paid as part of her application would be returned to her.
[17]
The relevant Global Case Management System
[GCMS] notes state:
File does not meet R10 requirements.
***AGENT REVIEW*** PROOF OF FUNDS CLIENT DID NOT PROVIDE VALID DOCUMENTATION TO
SHOW PROOF OF FUNDS Rejection letter sent via MyCIC. File assigned for refund
of fees.
[18]
On June 16, 2016, following her request for
reconsideration, the Applicant received the Reconsideration Decision from IRCC,
informing her that the initial rejection of her application would be
maintained. It stated, in relevant part:
Your application was considered on its
substantive merits according to the applicable section of the Immigration and
Refugee Protection Act and it was deemed incomplete. Your request for
reconsideration has been reviewed and a thorough re-examination of your
application has taken place. The decision remains the same and your application
will not be re-opened.
In order to show valid proof of funds,
the applicant should provide, an official letter from one or more financial
institutions that lists all current bank and
investment accounts as well as outstanding debts, such as credit card debts and
loans.
[emphasis added]
A letter explaining the reasons for this
rejection was sent to your MyCIC account on May 2, 2016 thereby fully
concluding your application.
Note: Any different or new information
that you submit after the original review of your application cannot be taken
into consideration.
[emphasis in original]
[19]
It is from the Reconsideration Decision that the
Applicant seeks judicial review.
IV.
Issues
[20]
This matter raises the following issues:
1.
Whether the Assistant Director’s affidavit
should be struck in its entirety?
2.
Whether the Officer breached the duty of
procedural fairness by failing to alert the Applicant to concerns regarding the
genuineness of the financial documents submitted?
3.
Whether the Officer fettered her discretion, or unreasonably
ignore evidence submitted by the Applicant as proof of settlement funds?
V.
Standard of Review
[21]
In Dunsmuir v New Brunswick, 2008 SCC 9
at paras 57, 62 [Dunsmuir], the Supreme Court of Canada held that a
standard of review analysis is unnecessary where “the
jurisprudence has already determined in a satisfactory manner the degree of
deference to be accorded with regard to a particular category of question.”
An officer’s determination of an applicant’s application for permanent resident
status as a member of the federal skilled worker class is reviewable on the standard
of reasonableness: Patel v Canada (Minister of Citizenship and Immigration),
2011 FC 571 at para 18; Kaur v Canada (Minister of Citizenship and
Immigration), 2014 FC 678 at para 9 [Kaur]. Such decisions should be
given a “high degree of deference”: Kaur,
above at para 9.
[22]
In Dunsmuir at para 47, the Supreme Court
of Canada explained what is required of a court reviewing on the reasonableness
standard of review:
A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
[23]
Questions of procedural fairness are reviewed on
the correctness standard: Canada (Citizenship and Immigration) v Khosa, 2009
SCC 12 at para 43. In Dunsmuir at para 50, the Supreme Court of Canada
explained what is required when conducting a review on the correctness
standard:
When applying the correctness standard, a
reviewing court will not show deference to the decision maker’s reasoning
process; it will rather undertake its own analysis of the question. The
analysis will bring the court to decide whether it agrees with the
determination of the decision maker; if not, the court will substitute its own view
and provide the correct answer. From the outset, the court must ask whether the
tribunal’s decision was correct.
[24]
The Supreme Court of Canada also instructs that
judicial review is not a line-by-line treasure hunt for errors; the decision
should be approached as an organic whole: Communications, Energy and
Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd, 2013
SCC 34. Further, a reviewing court must determine whether the decision, viewed
as a whole in the context of the record, is reasonable: Construction Labour
Relations v Driver Iron Inc, 2012 SCC 65; see also Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62.
VI.
Relevant Provisions
[25]
Section 76(1) of the IRPR, which governs
the selection criteria for the Federal Skilled Workers Class, states:
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Selection
criteria
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Critères de sélection
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76 (1) For the
purpose of determining whether a skilled worker, as a member of the federal
skilled worker class, will be able to become economically established in
Canada, they must be assessed on the basis of the following criteria:
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76 (1) Les
critères ci-après indiquent que le travailleur qualifié peut réussir son
établissement économique au Canada à titre de membre de la catégorie des
travailleurs qualifiés (fédéral) :
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(a) the skilled
worker must be awarded not less than the minimum number of required points
referred to in subsection (2) on the basis of the following factors, namely,
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a) le travailleur
qualifié accumule le nombre minimum de points visé au paragraphe (2), au
titre des facteurs suivants :
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(i) education, in
accordance with section 78,
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(i) les études,
aux termes de l’article 78,
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(ii) proficiency
in the official languages of Canada, in accordance with section 79,
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(ii) la
compétence dans les langues officielles du Canada, aux termes de l’article
79,
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(iii) experience,
in accordance with section 80,
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(iii)
l’expérience, aux termes de l’article 80,
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(iv) age, in
accordance with section 81,
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(iv) l’âge, aux
termes de l’article 81,
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(v) arranged
employment, in accordance with section 82, and
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(v) l’exercice
d’un emploi réservé, aux termes de l’article 82,
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(vi)
adaptability, in accordance with section 83; and
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(vi) la capacité
d’adaptation, aux termes de l’article 83;
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(b) the skilled
worker must
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b) le travailleur
qualifié :
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(i) have in the
form of transferable and available funds, unencumbered by debts or other
obligations, an amount equal to one half of the minimum necessary income
applicable in respect of the group of persons consisting of the skilled
worker and their family members, or
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(i) soit dispose
de fonds transférables et disponibles — non grevés de dettes ou d’autres
obligations financières — d’un montant égal à la moitié du revenu vital
minimum qui lui permettrait de subvenir à ses propres besoins et à ceux des
membres de sa famille,
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(ii) be awarded
points under paragraph 82(2)(a), (b) or (d) for arranged employment, as
defined in subsection 82(1), in Canada.
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(ii) soit s’est
vu attribuer des points aux termes des alinéas 82(2)a), b) ou d) pour un emploi
réservé, au Canada, au sens du paragraphe 82(1).
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[26]
Sections 10 and 12.01 of the IRPR state
as follows (in relevant part):
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Form and
content of application
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Forme et
contenu de la demande
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10 (1) Subject to paragraphs 28(b) to (d) and 139(1)(b), an application
under these Regulations shall
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10 (1) Sous réserve des alinéas 28b) à d) et
139(1)b), toute demande au titre du présent règlement :
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…
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…
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(c) include all
information and documents required by these Regulations, as well as any other
evidence required by the Act;
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c) comporte les
renseignements et documents exigés par le présent règlement et est
accompagnée des autres pièces justificatives exigées par la Loi;
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…
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…
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Marginal note:
Required information
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Note
marginale : Renseignements à fournir
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(2) The application shall, unless otherwise provided by these
Regulations,
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(2) La demande comporte, sauf disposition
contraire du présent règlement, les éléments suivants :
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(a) contain the
name, birth date, address, nationality and immigration status of the
applicant and of all family members of the applicant, whether accompanying or
not, and a statement whether the applicant or any of the family members is
the spouse, common-law partner or conjugal partner of another person;
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a) les nom, date
de naissance, adresse, nationalité et statut d’immigration du demandeur et de
chacun des membres de sa famille, que ceux-ci l’accompagnent ou non, ainsi
que la mention du fait que le demandeur ou l’un ou l’autre des membres de sa
famille est l’époux, le conjoint de fait ou le partenaire conjugal d’une
autre personne;
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(b) indicate
whether they are applying for a visa, permit or authorization;
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b) la mention du
visa, du permis ou de l’autorisation que sollicite le demandeur;
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(c) indicate the
class prescribed by these Regulations for which the application is made;
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c) la mention de
la catégorie réglementaire au titre de laquelle la demande est faite;
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(c.1) if the
applicant is represented in connection with the application, include the
name, postal address and telephone number, and fax number and electronic mail
address, if any, of any person or entity — or a person acting on its behalf —
representing the applicant;
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c.1) si le
demandeur est représenté relativement à la demande, le nom, l’adresse
postale, le numéro de téléphone et, le cas échéant, le numéro de télécopieur
et l’adresse électronique de toute personne ou entité — ou de toute personne
agissant en son nom — qui le représente;
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…
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…
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(d) include a
declaration that the information provided is complete and accurate.
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d) une déclaration
attestant que les renseignements fournis sont exacts et complets.
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VII.
Analysis
Whether the
Assistant Director’s affidavit should be struck in its entirety?
[27]
The leading case in terms of adding to the
record on judicial review is Association of Universities and Colleges of
Canada et al. v The Canadian Copyright Licensing Agency 2012 FCA 22, in
which the Court of Appeal confirms that generally judicial review proceeds on
the record which may not be supplemented by affidavit evidence that was not
before the decision-maker. However, an exception is set out at para 20(b) regarding
evidence “necessary to bring to the attention of the
judicial review court procedural defects that cannot be found in the
evidentiary record of the administrative decision-maker, so that the judicial
review court can fulfil its role of reviewing for procedural unfairness … [citations
omitted].” In my view, just as evidence of procedural unfairness not on
the record may be filed on judicial review, so too may evidence to rebut an
allegation of procedural unfairness; otherwise merely alleging procedural
unfairness would compel a reviewing court to grant judicial review.
[28]
In my respectful view, the portion of the affidavit
referred to, i.e, the first paragraph, is admissible to rebut the Applicant’s allegation
of procedural unfairness. As already noted, the Applicant did not take issue
with the fact that the text box required financial information to be submitted along
with an “official letter” from the financial
institution that was “printed on the letterhead of the
financial institution, and include your name and the contact information of the
financial institution.”
[29]
The balance of the affidavit, which is very
short, seeks to justify requiring the “official letter”
is not admitted; it addresses the merits of the decision and as such is
impermissible as new evidence.
Whether the
Officer breached the duty of procedural fairness by failing to alert the
Applicant to concerns regarding the genuineness of the financial documents
submitted?
[30]
It was alleged that the Visa Officer should have
given the Applicant notice that she had not supplied proof of settlement funds
with proper verification by way of a procedural fairness letter: Naqvi v
Canada (Minister of Citizenship and Immigration), 2003 FCT 503 at para 18;
also see Bakhtiana v Canada (Minister of Citizenship and Immigration) (1999),
190 FTR 275 (FC) at para 20.
[31]
There is no merit to this submission. In my
respectful opinion, the Applicant was advised of a need to file an official
letter before she submitted her application; she was given that notice in a
clear statement in a text box in the online form used to file her material. I
am unable to find any unfairness in not specifically alerting the Applicant of
a requirement in respect of which she had already been given specific notice.
[32]
In any event, it appears that the Respondent did
review the matter at the Applicant’s request, thereby in effect treating the
initial refusal as an opportunity to refile as required. Unfortunately, the Applicant
filed the same material the second time as the first; neither filing complied
with the requirements outlined in the text box on the online application form.
Whether the
Officer fettered her discretion, or unreasonably ignored evidence submitted by
the Applicant as proof of settlement funds?
[33]
Despite the very able submissions of counsel for
the Applicant, I am not persuaded this is either a case of the Officer
fettering her discretion, or unreasonably ignoring evidence. Underlying both
submissions is the argument that IRCC (the department) lacks the authority to determine
the relative weight to be afforded to documents filed on applications for
permanent residence status. The argument continues that such pre-determination
requires specific regulatory approval.
[34]
I agree with the Applicant that the regulations
do not specify the manner of proof of the required financial information to be
filed. While the regulations do set out the requirement to provide proof of
settlement funds, they do not specify what is, or is not accepted as proof;
they are silent as to the means by which an applicant may satisfy the
obligation to demonstrate sufficient establishment funds. All parties are in
agreement to this point as is the Court.
[35]
There is no doubt however, and it is trite law
to observe, that it is the duty and responsibility of Visa Officers to weigh
and assess documentation filed in support of applications. This flows from
their duty to decide the merits of an application before them.
[36]
It is also trite to observe that if a Visa Officer
has concerns with the reliability of documents, and reasonably requests
addition information to weigh or assess the evidence filed, an Applicant may
either provide that information or be prepared to see his or her application denied.
There is no suggestion that a Visa Officer must obtain regulatory approval
before reasonably asking for further and better verification; the authority to
demand more, assuming it is reasonably exercised, flows directly from, and in
my view is inextricably bound up with, the Officers’ duty to weigh and assess the
evidence before them.
[37]
That is what occurred here. As a matter of
policy, IRCC as a department decided that it wished to have certain information
(in this case proof of financial information to support the required settlement
funds) presented with verification not only by the Applicant (who must verify
all information he or she submits) but verified also by the financial
institution itself through an “official letter”
containing the coordinates of the signing officer. The coordinates would
obviously be useful to facilitate any due diligence directly with the financial
institution the Visa Officer may decide to undertake.
[38]
It seems to me that if a Visa Officer may
reasonably request additional verification, the IRCC may do the same.
[39]
I should note that no one suggested requiring this
extra level of verification is in any way unreasonable; an applicant merely
need his or her financial institution to send an official letter in relation to
its records which in my respectful view is quite reasonable. It is no different
than asking a person who submits a photocopy of a property deed to provide a
notarial copy where reasonable, or asking a person who submits a photocopy of a
letter to provide the original where reasonable. And it makes no difference, in
my view, if requirements for verification are made known before or after the material
is submitted, although common sense suggests it is preferable for all concerned
that applicants know in advance, as was the case here.
[40]
I fully accept that such Officers must take
adequate account of relevant evidence in the record, including documentation
confirming an applicant’s settlement funds: Lackhee v Canada (Minister of
Citizenship and Immigration), 2008 FC 1270 at para 16; Gay v Canada (Minister
of Citizenship and Immigration), 2007 FC 1280 at paras 29-31. That said, I
am unable to see how requiring a particular level of proof in any way
constitutes unreasonable failure to take account of relevant information.
Likewise I do not see this as a case of fettering of discretion (Paturel
International Company v Canada (Minister of Employment and Social Development),
2016 FC 541).
[41]
Looking at the decision as an organic whole, and
considering it with the record in this case, I have come to the conclusion that
the Officer’s decision falls within the range of possible, acceptable outcomes
which are defensible in respect of the facts and law, as required by Dunsmuir.
I found no breach of procedural fairness.
VIII.
Certified Question
[42]
Neither party proposed a question to certify and
none arises.
IX.
Conclusions
[43]
The application for judicial review must be
dismissed, and there is no question to certify.
JUDGMENT
THIS COURT’S JUDGMENT is that the
application for judicial review is dismissed, no question is certified, and
there is no order as to costs.
“Henry S. Brown”
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