Docket: IMM-5295-16
Citation:
2017 FC 606
Toronto, Ontario, June 19, 2017
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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RAMANJEET SINGH
TOKI
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Applicant
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and
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THE MINISTER OF
IMMIGRATION, REFUGEES AND CITIZENSHIP CANADA
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Respondent
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JUDGMENT AND REASONS
I.
Background
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c-27 [Act] of a visa officer from the High Commission of Canada in Colombo, Sri
Lanka [Officer]. The Officer refused Mr. Toki’s application for permanent
residence under the Federal Skilled Worker Program on November 3, 2016 [the
Decision], finding Mr. Toki inadmissible for misrepresentation per section 40
of the Act.
[2]
For the reasons that follow, I am granting this
judicial review.
[3]
Mr. Toki is an Indian citizen and claimed to be
working as a computer engineer in New Delhi. He applied for permanent residence
under the Federal Skilled Worker class in October 2014.
[4]
In March 11, 2016, Canadian authorities conducted
an onsite visit of what they believed to be his workplace, at the address
listed on his employer’s letterhead. Upon arrival, they found a woman, who
redirected the Canadian officials to a second location, after having told them
that the location on the letterhead was her residence.
[5]
At the second location, the authorities then met
Mr. Toki’s employer’s father, who informed the officials that the office had
moved a year ago to another location. The officials believed this alleged place
of work to be fraudulent, and prepared a visit report dated March 11, 2016
to that effect [Report].
[6]
On April 27, 2016, Mr. Toki submitted a Case
Specific Inquiry to Canadian officials, providing a new work address.
[7]
On July 12, 2016, Mr. Toki received a procedural
fairness letter [PFL] from the Officer stating that he had concerns with
respect to misrepresentation of work experience. The Officer informed Mr. Toki
that he had 30 days to respond.
[8]
Mr. Toki, with the assistance of counsel,
responded on July 26, 2016 [Response] that he was unsure of the exact nature of
the Officer’s concerns, but believed they may be related to the March 2016 site
visit. In written submissions, Mr. Toki stated that he was working in another
office at a client site on the day of the visit.
[9]
Included in his Response, Mr. Toki provided an
employment contract, three letters of support corroborating his version of the
events (including from his employer), remuneration documentation, invoices for
work performed, a copy of a receipt for a computer mouse purchase, the Case
Specific Inquiry from April 2016, and receipts for parking charges from the
client site from the day of the site visit (March 11, 2016).
[10]
In his negative Decision, the Officer stated
that Mr. Toki deliberately misrepresented his employment experience. This made
him inadmissible to Canada for five years under section 40 of the Act. The
Officer noted some inconsistencies and preferred evidence gathered on the day
of the site visit, as opposed to the documentation submitted by Mr. Toki,
including in his Response.
[11]
Mr. Toki now challenges the Decision by way of
this judicial review.
II.
Analysis
[12]
Mr. Toki argues that the Officer (1) violated
procedural fairness and (2) unreasonably assessed the evidence in making his
inadmissibility finding.
[13]
The parties agree, as do I, that the applicable
standard of review is correctness for issue 1 (AB v Canada (Citizenship and
Immigration), 2013 FC 134 at para 51 [AB]), and reasonableness for
issue 2 (Chughtai v Canada (Citizenship and Immigration), 2016 FC 416 at
para 11 [Chughtai]).
A.
Procedural Fairness
[14]
Mr. Toki relies on AB paras 53 and 55 to
argue that by failing to put the Report before him, the Officer breached
procedural safeguards. Mr. Toki says that this case is akin to AB
because the concerns expressed in the PFL were broad and general in nature. Mr.
Toki says that he was left guessing as to what concerns or clarifications the
Officer was looking for. While Mr. Toki correctly “guessed”
that the Officer was referring to the March 2016 site visit, he says if the Officer
had disclosed the nature of his concerns, Mr. Toki would have been able to
provide a full and detailed response, beyond what Mr. Toki submitted in
response to the procedural fairness letter.
[15]
The Respondent counters, relying on Li v
Canada (Citizenship and Immigration), 2012 FC 1099 at paras 11-13 [Li],
that since Mr. Toki was aware of the onsite visit, and given an opportunity to
respond to the PFL, there can be no violation of procedural fairness. The
Respondent also relies on Bhatti v Canada (Citizenship and Immigration),
2017 FC 186 at para 45 [Bhatti], contending the Officer was under no
obligation to provide Mr. Toki a further opportunity to respond to his
continuing concerns.
[16]
In terms of the content of procedural fairness,
the Respondent observes that the Officer’s obligations are at the lower end of
the spectrum (Asl v Canada (Citizenship and Immigration), 2016 FC 1006
at para 23 [Asl]). The Respondent further submits that the Officer
provided Mr. Toki with an opportunity to meaningfully participate in the
process, thus fulfilling his obligations.
[17]
While I agree with the general observations
about the existence of the duty of fairness and that its content is lower than
in various other contexts in the spectrum of immigration proceedings, it is nonetheless
heightened when a potential consequence that will flow from the refusal is a
finding of misrepresentation, and a 5 year bar.
[18]
The PFL was undoubtedly vague; upon a plain and
simple reading of the PFL, I cannot agree with the Respondent that Mr. Toki
knew what exact concerns were at issue. It reads as follows:
We have concerns regarding the information
you have provided in your application with regard to your work experience. In
your application form, you have indicated that from 2012 to date you work as a
Computer Engineer at the Digital Computer Lab. However, upon verification
concerns exist with respect to your employment and work experience. (PFL,
Certified Tribunal Record [CTR] at 52)
[19]
In Mr. Toki’s Response, his counsel noted:
[…] Please note that while your letter does
not outline any specific concerns, we have been advised that on March 11, 2016,
officials from your office conducted a site visit at Mr. Toki’s workplace
during which Mr. Toki was not present due to field work. We believe that this
site visit is the origin of your concerns. We respectfully request that if the
site visit is not the concern or [is] incorrect, please let us know. In order
to respond to your letter, and for fairness purposes, our client requires
details regarding your specific concerns [CTR at 48].
[20]
There was never any response to this letter or
the request for specific information. The next correspondence that arrived from
the visa Officer was the Refusal. The Report that listed the details regarding
the concerns surrounding employment and work experience was only sent to Mr.
Toki’s counsel’s office after the Refusal. I therefore agree, based both on the
context of this decision and the detailed Report that was only seen by Mr. Toki
after the hearing, that Mr. Toki was left guessing as to what and how to
respond.
[21]
As is evident above, Mr. Toki’s counsel
specifically stated in submissions to the Officer – rather than simply before
this Court – that his client Mr. Toki was unsure as to the nature of the
concerns expressed in the PFL. In my view, the fact that Mr. Toki guessed
correctly does not alleviate or otherwise excuse the fact that the nature of
the Officer’s concerns was not communicated to Mr. Toki. For instance, had he
understood the nature of the concerns, he could have potentially gone to extra
lengths, which he might have questioned the utility of, while he was unsure of
the nature of the concerns.
[22]
Turning to the case law relied upon by the
Respondent, I find that it is readily distinguishable from the case at hand.
First, in Bhatti (see para 41), the applicant’s position was that the
tax certificates were not specifically set out as a concern in the PFL.
However, the tax returns were not the source of the refusal, and thus did not
affect the procedural fairness aspect of that decision. That is distinct from
this case, where the details of the concern were not disclosed in the first
place (e.g. – the employer’s father’s statements, as per the Report).
[23]
Second, as correctly stated by Mr. Toki, a
similar distinction occurred in Li (see para 4). For instance, in that
case, even though the applicant was advised that the concern was about the
authenticity of property certificates, the officer erred in failing to disclose
the evidence on which this concern was based, and thus failed in the obligation
to provide an opportunity to respond to the concerns.
[24]
As for Asl at para 23, while Justice
Gagné did note that “that the procedural fairness owed
by visa officers is on the low end of the spectrum”, she also held that “[o]f course, the duty of fairness in this context still
‘require[s] visa officers to inform applicants of their concerns so that an
applicant may have an opportunity to disabuse an officer of such concerns’ (Talpur
v Canada (Citizenship and Immigration), 2012 FC 25 at para 21)”.
Moreover, in that case, the issue was clearly put to the applicant (see para
30). Here, that was not the case for Mr. Toki. He simply did not know – but
rather had to guess in the dark – as to the case against him.
[25]
As noted in both AB and Asl, an officer
is required to provide more than general concerns, which the Officer failed to
do here. Failure to do so means that the applicant cannot have a meaningful
participation in the fairness process – which is entirely the purpose of the
PFL, and for which the underlying policy and doctrinal goals of the opportunity
to answer the case against you exists in administrative law. In other words,
this error is fatal in and of itself.
[26]
In any event, even if Mr. Toki wouldn’t have
submitted additional documents had the Officer expressed the nature of his
concerns in more detail, at the very least citing his reliance on the Report in
the PFL, Mr. Toki’s submissions may have been more focussed and geared to the
Officer’s specific concerns. In failing to do so, procedural safeguards were
not respected. In this regard, I would turn by analogy to Johnson v Canada
(Citizenship and Immigration), 2017 FC 550, where Justice Gleeson wrote at
paragraph 18 - albeit in the context of a spousal interview by a visa officer -
“[h]ad Mr. Johnson and his spouse been given adequate
notice of the nature of the interview their answers may indeed have been more
focussed, less confused and the outcome may have been different.”
[27]
Finally, the Respondent counters the procedural
fairness point on the basis that Mr. Toki received a copy of the Report, but
did not provide any evidence in response to it, to back up his contention that
he could have provided more specific information had he been fairly notified of
the nature of the specific concerns of the Officer.
[28]
Indeed, as noted above, the Report was
eventually provided to Mr. Toki, but that only came after the Decision which
refused his application in 2016. Any other documents provided in response to it
would have been inappropriate to place before the Court, as Mr. Toki points
out: generally one cannot produce new evidence on judicial review, because the
Court reviews whether the errors were made in the Decision based on the record
before it.
[29]
For instance, Mr. Toki’s counsel, at the
hearing, provided in oral evidence various points of information knowing what
was in the Report to explain what answers would have been given had Mr. Toki
been advised. However, as noted by Mr. Toki’s counsel herself, that was all
irrelevant for the purposes of the judicial review, because the evidence would
not have been properly before the Court – as it would not have been considered
by the decision-maker.
[30]
In sum, the efforts of the Respondent were a
case of too little, too late. Had the Officer genuinely wanted to be fair to
Mr. Toki, one of three things could have happened with minimal effort: the
Officer could have (i) confirmed the nature of the concerns in reply to
counsel’s Response; (ii) provided specifics regarding those concerns in reply
to counsel’s Response; and/or (iii) provided the Report in a timely manner,
which would also have satisfied counsel’s Response.
B.
Assessment of Evidence
[31]
Even if my procedural fairness analysis is wrong
then, for the following reasons, I agree with Mr. Toki’s argument that the
Officer’s assessment of the evidence was deficient. This issue, while assessed
on a reasonableness standard as referenced previously, and thus while different
in nature from the fairness analysis above, is inextricably linked to the
process followed, including the information exchange in this matter. I have
already observed that the stakes are higher when the consequences of refusal
are more than just a denial of the application itself. Here, the Officer
decided to proceed with a refusal that led to a bar on any application for
several years. A proper and fulsome analysis of the evidence is required.
[32]
The Respondent counters in saying that reasons
do not have be adequate, citing Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paras 21-22 [Newfoundland
Nurses]; Narang v Canada (Citizenship and Immigration), 2016 FC 863
at para 38 [Narang]. In short, the Respondent argues that it was open to
the Officer to make a finding that Mr. Toki deliberately and willingly
misrepresented his employment experience; as Dunsmuir v New Brunswick,
2008 SCC 9 at paras 47-49 dictates that deference be applied, the Decision here
was reasonable.
[33]
While I agree with all of the above, and the
fact that the Officer is owed deference, I do not find that the Decision
(namely - the refusal letter combined with related “GCMS”
computer notes) rises to the standard of intelligibility, transparency and
justification required by the case law: I cannot say that the Officer’s
assessment of the evidence presented, including in response to the PFL, rose to
that standard.
[34]
What the Officer does instead, is to recount
some of the evidence, and notes that there are some discrepancies between the
Report and Mr. Toki’s submissions in response to the PFL. The Officer notes
that there were no business offices where Canadian officials undertook their
site visit in March 2016, and that there were no computer labs where they went
next.
[35]
However, what was not mentioned was evidence,
including the floor of the office (see page 72 of the CTR) and the fact that
Mr. Toki stated - from the outset - that he worked at a different location. In
addition, in response to a Case Specific Inquiry dated April 27, 2016, Mr. Toki
provided a different employment addresses, i.e. before the July 12, 2016 PFL.
The Decision did not mention this evidence – which may have fed into the
Decision – but one is left to guess if so and how.
[36]
In terms of the lack of work experience claimed,
reliance was simply placed on statements of the business owner’s father, with
no opportunity for Mr. Toki to respond. Even had there been evidence that the
owner’s father had special knowledge of the skills of the employees, then, as
explained above, Mr. Toki should have been given a chance to respond, because
he had provided evidence of his skills, knowledge, and work experience.
[37]
Ultimately, the Officer concludes: “Where there are inconsistencies, I prefer the spontaneous
information gathered during the verification to the information and documents
produced specifically in response to the PFL and give them more weight”
(CTR at 12).
[38]
As stated in Xu v Canada (Citizenship and
Immigration), 2011 FC 784 at para 16, the consequences of deliberate
misrepresentation are serious. Consequently, the evidence supporting such a
finding must be clear and the Officer’s reasons must reflect this. This
includes explaining why evidence which counters such a conclusion is, at
minimum, acknowledged.
[39]
The Respondent argued that the Court should
follow Narang, and not reweigh the evidence and step into the shoes of
the Officer. However, the facts in this case differ from those in Narang,
where first of all, the applicant was contacted by the visa officer to follow
up on concerns – which is exactly what Mr. Toki here is stating should have
happened. Second, the treatment of evidence also differed in that case.
Therefore, Narang is of no assistance to the Respondent, both in terms
of the assessment of evidence and procedural fairness arguments raised herein.
[40]
In sum, even after considering the principles
set out by the Supreme Court of Canada in Newfoundland Nurses, I am
unable to understand how the Officer came to the conclusion that clear and
compelling evidence existed to find that Mr. Toki deliberately mispresented his
work experience.
[41]
The Officer’s assessment of the evidence is, in
my view, non-transparent, thus failing to pass the scrutiny of this Court on a
reasonableness standard.
III.
Conclusion
[42]
In light of the above, this application for
judicial review is granted.
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