Docket: IMM-9980-23
Citation: 2024 FC 1838
Toronto, Ontario, November 18, 2024
PRESENT: The Honourable Justice Battista
BETWEEN: |
ALI PAKDAMAN |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Overview
[1] The Applicant challenges a refusal of his incomplete application for permanent residence. He alleges that the Officer breached procedural fairness by failing to meet his legitimate expectation that the application would be processed despite its incompleteness and by ignoring evidence related to the best interests of his minor child. In the alternative, he alleges that the Officer’s decision was unreasonable due to its failure to refer to a description of the best interests of his child.
[2] For the reasons that follow, the application is dismissed. The Applicant had no legitimate expectation that his application would be accepted despite its incompleteness, and the failure to respond to the facts related to the best interests of the child is not a procedural fairness issue. It was not unreasonable for the Officer to refer to his statements on the best interests of the child because they were not connected to a legal basis. As such, there was no breach of procedural fairness and the Officer’s decision is reasonable.
II. Background
[3] The Applicant applied for permanent residence in the Temporary Public Policy: Temporary Resident to Permanent Resident Pathway. In order for his application to be accepted, he was required to establish his qualifications by submitting a language test result that was less than two years old at the time of the submission of his application.
[4] The Applicant submitted his permanent residence application in May 2021, but did not submit his language test results until after he achieved viable test results in August 2021.
[5] The Applicant received a procedural fairness letter asking him to submit a test result dated within the two years prior to the submission of his application, specifically, between the dates of May 13, 2019, and May 13, 2021.
[6] In response, the Applicant’s immigration consultant Hadi Mansouri submitted a letter arguing that the Applicant had a legitimate expectation that the application would be processed because Mr. Mansouri had represented other applicants whose applications had been processed despite the late submission of language test results.
[7] Mr. Mansouri also asked that the Officer consider the best interest of the Applicant’s minor child, stating that she was preparing for university, had lived in Canada since 2016, and may be forced to return to Iran if the application was not processed. There was no legal basis provided for the request to consider the best interest of the Applicant’s child, other than Mr. Mansouri’s submission that “[i]t is well understood that Officers must consider the best interests of minor children when making immigration decisions.”
[8] The application was refused on August 2, 2023, based on the failure to submit the required language test result at the time of the application.
III. Issues
[9] The sole procedural fairness issue is whether the duty of procedural fairness was breached by not meeting the Applicant’s legitimate expectation that the application would be accepted despite its incompleteness. As stated by the Supreme Court of Canada, if an applicant “has a legitimate expectation that a certain procedure will be followed, this procedure will be required by the duty of fairness”
(Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 [Baker] at para 26 [citations omitted]).
[10] I agree with the Respondent that the failure of the Officer to respond to the Applicant’s submission about the best interests of his child is not a procedural fairness issue. The duty of fairness required the Applicant to be provided with an opportunity to be heard, and this requirement was met by the issuance of a procedural fairness letter.
[11] The decision’s lack of responsiveness to the Applicant’s submissions in response to that procedural fairness letter is an issue of reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 127–128).
IV. Analysis
[12] There was no basis to claim a legitimate expectation that the application would be accepted despite the failure to submit a qualifying language result, and it was not unreasonable for the Officer to not respond to the Applicant’s submission about the best interest of his child because there was no request based in law that was attached to that submission.
A. No legitimate expectation that the application would be processed
[13] The standard described by the Supreme Court to establish a legitimate expectation is whether there has been a clear, unambiguous, and unqualified promise that a certain procedure will be followed (Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 [Agraira] at paras 95–96).
[14] The Applicant’s immigration consultant offered the following submission to meet the standard in Agraira:
It has been a common practice as part of the TR to PR program, for our applicants to be able to submit their language results after the submission of their application. We respectfully submit that this has led to a legitimate expectation that an applicant will be able to submit their language results after the date of their application. We have a number of such clients, all of whom are permanent residents now, and we are happy to furnish you with their UCI numbers if it would help Mr. Pakdaman.
[15] The limited experience of the Applicant’s consultant does not constitute a clear, unambiguous, and unqualified promise that a certain procedure will be followed. The threshold described in Agraira was not met and no legitimate expectation arose that the application would be processed despite its incompleteness.
B. No legal basis provided for the Officer to consider the best interests of the child
[16] The Applicant’s immigration consultant requested consideration of the best interest of the Applicant’s child but there was no legal basis that justified this request. The Officer was not unreasonable in being unresponsive to a request asserted without a legal basis.
[17] Counsel for the Applicant in oral argument submitted that Baker imposes a general obligation on officers dealing with all applications to consider the best interests of the child. There is no support for that proposition in Baker.
V. Conclusion
[18] I am sympathetic to the circumstances of the Applicant and his family. However, there was no legitimate expectation that his application would be accepted without a valid language test at the time of submission, and it was reasonable for the Officer to be unresponsive to an unsupported request. The application is dismissed.
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