Docket: IMM-695-17
Citation:
2017 FC 955
Ottawa, Ontario, October 26, 2017
PRESENT: The
Honourable Madam Justice Kane
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BETWEEN:
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JASVINDER SINGH
GREWAL
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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
[1]
The Applicant, Jasvinder Singh Grewal, seeks
judicial review pursuant to section 72 of the Immigration and Refugee
Protection Act, SC 2001, c 27 [the Act] of the January 17, 2017 decision of
an Immigration Officer at the High Commission of Canada in Colombo, Sri Lanka [the
Officer]. The Officer refused his application for a permanent resident visa
submitted under the Manitoba Provincial Nominee Program. The Officer found that
the Applicant had misrepresented or withheld material facts regarding his employment
as a food service supervisor. As a result of the finding of misrepresentation,
the Applicant is ineligible to reapply for a period of five years in accordance
with section 40 of the Act.
[2]
The Respondent clarified that the style of cause
should refer to the Minister of Citizenship and Immigration as this remains the
proper title of the responsible Minister of the Crown. As a result, the style
of cause has been changed.
[3]
For the reasons that follow, the application is
allowed.
I.
Background
[4]
The Applicant successfully applied to the
Manitoba Provincial Nominee Program in 2013, receiving a certificate of
nomination from Manitoba under the National Occupation Classification Code 6212
– Food Service Supervisor. Following his nomination, he applied for a permanent
resident visa and submitted supporting documentation. He set out his education
and employment history in India including his employment as a food service
supervisor at the Mohini Resort from January to November 2014. The Global Case
Management System (GCMS) notes, which provide a chronology of the processing of
his application, and which form part of the reasons for the decision, indicate
that another officer was tasked with verifying the information. That officer contacted
the Mohini Resort in February 2016 and spoke with the receptionist due to the
unavailability of the General Manager. The receptionist stated that the
Applicant had worked at the Mohini Resort for three or four years as a cook and
had left this employment six months previously (i.e., August 2015). The GCMS
notes indicate that a procedural fairness letter was sent to the Applicant nine
months later, in November 2016, noting concerns about the Applicant’s
employment history and indicating that, upon verification, it appeared that the
Applicant had not worked in the capacity of a food service supervisor at the
Mohini Resort.
[5]
The Applicant provided a letter with attachments
in response to the procedural fairness letter in December 2016. He explained
that he was surprised by this information and that the receptionist with whom
the other officer had spoken was not in a position to provide the information
and was misinformed. The Applicant attached a letter from the General Manager
of the Mohini Resort which stated that the Applicant had worked as a food
service supervisor from January to November 2014 along with monthly payslips
for that same period.
[6]
The Officer considered the Applicant’s response
but found that he preferred the “spontaneous and
verified” information provided by the receptionist. The Officer noted
that the receptionist stated that he or she had checked the records before
responding, had worked at the Mohini Resort for 15 years, knew the names of the
two food service managers and had spoken with confidence in advising the officer
who called that the Applicant had been a cook. The Officer further noted that
the letter from the Applicant in response to the procedural fairness letter was
undated and found that the pay slips provided were all written in the same ink,
which suggested that they were prepared all at the same time.
[7]
The Officer found that he was satisfied on a
balance of probabilities that the Applicant had deliberately misrepresented his
employment experience, which was a material fact relevant to the ability of the
Officer to assess the Applicant’s likelihood of economic establishment in
Canada. The Officer further found that this misrepresentation could have
foreclosed an avenue of investigation under the Act and induced an error in the
administration of justice. The Officer concluded that this met the requirements
for a finding of misrepresentation pursuant to section 40.
II.
The Issues
[8]
The Applicant submits that the Officer breached
procedural fairness by not identifying the concerns regarding his employment
history with more particularity, including the source of the information relied
on by the Officer, and by not providing an opportunity for the Applicant to
respond to the Officer’s concerns about the veracity of the information
provided by the General Manager of the Mohini Resort. The Applicant also
submits that the Officer’s decision is unreasonable because it is not
transparent or justified; the Applicant provided documentary evidence to
support his application and his employment as a food service supervisor yet the
Officer relied almost exclusively on the misinformation provided by a
receptionist rather than the General Manager of the Resort and without sufficient
explanation and without assessing the totality of the evidence.
III.
The Standard of review
[9]
Issues of procedural fairness are reviewable on
a correctness standard (Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12 at para 43, [2009] 1 S.C.R. 339). Where a
breach of procedural fairness is found, no deference is owed to the decision
maker.
[10]
The Officer’s decision with respect to the Applicant’s
eligibility for permanent resident status requires the Officer to assess the
application and exercise his discretion and is, therefore, reviewable on a
reasonableness standard (Obeta v Canada (Minister of Citizenship and
Immigration), 2012 FC 1542 at para 14, 424 FTR 191 [Obeta]).
[11]
Where the reasonableness standard applies the
Court considers whether the decision “falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47,
[2008] 1 S.C.R. 190). Deference is owed to the decision maker, in this case, the
Officer, and the Court will not re-weigh the evidence.
IV.
The Officer breached the duty of procedural
fairness owed to the Applicant in the circumstances
[12]
The Applicant submits that the Officer’s
procedural fairness letter should have disclosed the source of the information
which led the Officer to question the Applicant’s employment so that the
Applicant could provide a more focussed response. Although the Applicant found
out on his own that an officer had called the receptionist, rather than the General
Manager, and that the receptionist told the officer that the Applicant was a
cook, the Applicant submits that these details should have been set out in the
procedural fairness letter. The Applicant also submits that the Officer should
have provided a subsequent opportunity to respond to the Officer’s concerns
about the veracity of the letters and payslips (Toki v Canada (Minister of
Immigration, Refugees and Citizenship), 2017 FC 606 at para 25, [2017] FCJ
No 614 [Toki]).
[13]
As noted by Justice Gagné in Asl v Canada
(Citizenship and Immigration), 2016 FC 1006 at para 23, [2016] FCJ
No 985:
[23] First of all, I would note that
the procedural fairness owed by visa officers is on the low end of the spectrum
(Hamza v Canada (Citizenship and Immigration), 2013 FC 264 at para 23).
Of 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).
[14]
In the present case, the Officer alerted the
Applicant to the concern that he was in possession of information that the
Applicant had not worked in the capacity of a food service supervisor at the
Mohini Resort as he had stated. Based on this information, the Applicant would
have been sufficiently aware of the “case to meet”
in order to respond. The Officer was not required to point him to the source of
the information. The record shows that the Applicant became aware of the source
of the information, had sufficient information to respond to the concerns noted
and did respond.
[15]
The related issue is whether the Officer should
have provided a further opportunity to address the concerns arising from the
Applicant’s response to the procedural fairness letter.
[16]
The jurisprudence has established that the duty
of procedural fairness varies with the context. The jurisprudence has also established
that there is no obligation on an Officer to provide a “running
score” to an applicant. However, the duty of procedural fairness owed by
visa officers, which as noted, is at the low end of the spectrum still depends
on the context.
[17]
In Hamza v Canada (Minister of Citizenship
and Immigration), 2013 FC 264 at paras 21‑24, [2013] FCJ No 284,
Justice Bédard considered the refusal of an applicant’s permanent resident
status as a skilled worker, extensively reviewed the applicable case law and
provided a helpful summary of the relevant principles: the onus is on the
applicant to establish that he meets the requirements of the Immigration and
Refugee Protection Regulations, SOR/2002-227 [Regulations] by providing sufficient
evidence in support of his application; the duty of procedural fairness owed by
visa officers is at the low end of the spectrum; there is no obligation on a
visa officer to notify the applicant of the deficiencies in the application or
the supporting documents; and, there is no obligation on the visa officer to
provide the applicant with an opportunity to address any concerns of the
officer when the supporting documents are incomplete, unclear or insufficient
to satisfy the officer that the applicant meets the requirements. Justice
Bédard added at paras 25-28 that, as determined in Hassani v Canada (Minister
of Citizenship and Immigration), 2006 FC 1283 at para 24, 302
FTR 39 [Hassani], an officer may have such a duty when the
concerns arise from the credibility, veracity or authenticity of the documents,
rather than from the sufficiency of the evidence.
[18]
In Hassani, Justice Mosley reconciled
some of the pre-existing jurisprudence and found at para 24 (internal citations
omitted):
[24] Having reviewed the factual
context of the cases cited above, it is clear that where a concern arises
directly from the requirements of the legislation or related regulations, a
visa officer will not be under a duty to provide an opportunity for the
applicant to address his or her concerns. Where however the issue is not one
that arises in this context, such a duty may arise. This is often the
case where the credibility, accuracy or genuine nature of information submitted
by the applicant in support of their application is the basis of the visa
officer’s concern, as was the case in Rukmangathan, and in John…
and Cornea…cited by the Court in Rukmangathan, above.
[Emphasis added]
[19]
While the principles from the jurisprudence have
generally been applied to address the duty on the visa officer when assessing
the supporting documents and evidence in the initial application, the same
principles have guided my assessment of the scope of the duty of procedural
fairness owed in the present case. The GCMS entries indicate that the Officer questioned
the lack of a date on the Applicant’s letter of explanation, doubted the
veracity of the letter from the General Manager and doubted the veracity or
authenticity of the pay slips, noting that the use of the same ink suggested
that the pay slips were all prepared at once, rather than monthly. The
Respondent also submits that these documents had indicia of unreliability.
Clearly, the credibility, veracity and/or the authenticity of the documents was
at issue.
[20]
In the particular circumstances of this case, including
those noted in my observations below, the Officer should have provided an
opportunity for the Applicant to address the new concerns.
V.
The Reasonableness of the decision need not be
addressed
[21]
Given the finding that there was a breach of
procedural fairness, it is not necessary to determine whether the decision was
reasonable. The Officer’s role is to assess all the relevant evidence and
attach the appropriate weight to it. Had the Officer provided an opportunity
for the Applicant to address the Officer’s concerns regarding the General Manager’s
letter and payslips, the assessment and weight attached to the relevant
evidence may have been different.
[22]
I observe that the Officer found the information
provided by the receptionist to be “verified” without
stating how it was verified and without probing its reliability despite some
red flags. The Officer accepted the receptionist’s oral information based on a
cold call made by another officer. The receptionist first indicated that he or
she did not have the information and that the General Manager should be
contacted. The officer who made the call did not wait until the General Manager
was available, but called back 10 minutes later and, in that brief period, the
receptionist had apparently gained access to all the employee records. It is
commonly understood that a receptionist is the person who directs calls to the
appropriate individual in an organisation and that receives visitors or clients
and directs them to others, which in this case, should have been the General Manager.
The Officer had no knowledge of the scope of the receptionist’s duties or of
the receptionist’s access to records. The Officer’s notes do not explain how
the Officer reconciled the receptionist’s statement that the Applicant worked
at the Mohini Resort for three or four years, and later said that maybe it was only
three years. If the receptionist had the records, there would be no uncertainty.
Nor did the Officer acknowledge that the receptionist’s statement that the
Applicant left the Mohini Resort six months earlier was not consistent with the
Applicant’s other employment information; in particular, that the Applicant
submitted documents to demonstrate that he worked elsewhere until 2014, that he
worked at the Mohini Resort from January to November 2014 and left in November
2014, not August 2015, and that he subsequently worked elsewhere. This should
have raised questions about the accuracy of the information from the
receptionist and the need to probe further.
[23]
In conclusion, the permanent resident visa
application must be assessed by a different Officer, with an opportunity
provided to the Applicant to respond to the concerns raised regarding the
documents provided by the Applicant in December 2016 in response to the November
2016 procedural fairness letter.
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