Date: 20250307
Docket: IMM-6536-23
Citation: 2025 FC 426
Toronto, Ontario, March 7, 2025
PRESENT: Justice Andrew D. Little
BETWEEN: |
IBIKUNLE EMMANUE IBITAYO DAVID OBAFEMI IBITAYO ISAAC OLUWATOBILOLA IBITAYO DANIEL OLUWADARASIMI IBITAYO |
Applicants |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
[1] The applicants are members of a family: three children and their father. They are all Nigerian citizens. The applicants ask the Court to set aside decisions of an officer refusing the father’s application for a work permit and the children’s study permit applications. The mother’s application for a visitor visa was approved and she is not an applicant in this proceeding.
[2] The officer concluded that the father did not demonstrate that he was able to adequately perform the work he sought as an Associate Pastor at a church in British Columbia. It followed that the children’s applications were refused.
[3] In this Court, the applicants submitted that the decision on the father’s work permit application was unreasonable and that he was not provided with procedural fairness.
[4] For the following reasons, I conclude that the work permit decision must be set aside owing to procedural unfairness. The officer made implicit negative credibility findings but did not provide the applicant with an opportunity to address them before making the impugned decision. The negative decisions on the children’s applications must also be set aside.
[5] On August 5, 2021, the father applied for a work permit under the Labour Market Impact Assessment (“LMIA”
) exempt title C-50 and paragraph 205(d) of the Immigration and Refugee Protection Regulations, SOR/2002-227, which provided:
Canadian Interests
|
Intérêts canadiens
|
205 A work permit may be issued under section 200 to a foreign national who intends to perform work that
[…]
(d) is of a religious or charitable nature.
|
205 Un permis de travail peut être délivré à l’étranger en vertu de l’article 200 si le travail pour lequel le permis est demandé satisfait à l’une ou l’autre des conditions suivantes :
[…]
d) il est d’ordre religieux ou charitable.
|
[6] The LMIA exempt work permit was based on the father’s job offer for an Associate Pastor role from the Redeemed Christian Church of God (“RCCG”
) in New Westminster, British Columbia.
[7] At that time, the father was working as a Pastor in Charge of Parish at the RCCG, Unity Chapel, in Dubai, United Arab Emirates (“UAE”
). He had been working in that role since October 2015. From 2013 to 2015, he worked in Abu Dhabi, UAE as a Pastor in Charge of a Parish.
[8] In support of his work permit application form, the father filed:
a)His affidavit sworn on August 5, 2021;
b)Letter of Employment dated June 17, 2021, as Assistant Pastor in New Westminster, British Columbia, from the Pastor in Charge of the Redeemed Christian Church of God BC;
c)Letter of Support dated April 11, 2021, from the Regional Pastor and Country Coordinator for Canada;
d)Post Graduate Diploma in Theology dated January 24, 2015, from the Redeemed Christian Bible College;
e)Executive Diploma in Missions dated August 1, 2013, from The Redeemed Christian School of Missions, Nigeria;
f)School of Disciples Certificate dated January 23, 2011, from Christ the Redeemer Ministries, certifying that the applicant completed the Graduate Course;
g)Certificate of Stewardship dated October 26, 2016, certifying the applicant was ordained as Assistant Pastor, from Redeemed Christian Church of God;
h)Certificate of Stewardship dated August 6, 2012, certifying the applicant was ordained Deacon, from Redeemed Christian Church of God;
i)Reference Letter dated July 12, 2021, from the Pastor in Charge of Zone of Redeemed Christian Church of God UAE confirming the father was Pastor in Charge of the Parish for Unity Chapel Dubai since October 2015;
j)Reference Letter dated July 7, 2021, from the Pastor in Charge of Zone of Redeemed Christian Church of God UAE confirming the father was Pastor in Charge of Garden of Peace Parish, Abu Dhabi, UAE, from June 2013 to September 2015;
k)Letter of Appointment dated June 1, 2013, as Pastor in Charge of Parish for Garden of Peace Parish, Abu Dhabi, UAE, from the Pastor in Charge, Redeemed Christian Church of God, Lagos, Nigeria;
l)His payslips for January 2021 to July 2021 as Parish Pastor of Unity Chapel, which also stated that his “date of joining” was June 1, 2013;
m)A current resumé, and his post-secondary business education documents from Nigeria in the 1990s; and
n)Documents showing the legal registration, charitable status of the church in Canada, business licence in New Westminster, financial statements and its website.
[9] By decision letter dated April 19, 2023, the officer advised that the father did not demonstrate that he would be able to adequately perform the work he sought.
[10] The officer’s notes in the Global Case Management System (“GCMS”) on the same day stated:
HOF [head of family] seeking a C50 to work as a Pastor for the Redeemed Christian Church of God (RCCG)’s New Westminster, BC location; work locations will vary per job offer. HOF will be paid 55,695.00; he has a family of 5; LICO for 5 is 53,402.
HOF’s education consists of a diploma in Business Admin and mgmt. and other economic certs. HOF also holds a Redeemed Christian School Missions Executive Diploma and two others from the RCCG. A ltr [letter] in eDoc 434194526, dated 07/July/21 states HOF was serving as the Pastor at the RCCG parish in Abu Dhabi from Jun/13 to Sep/15; prior to this HOF worked as a marketing agent in Nigeria. Concurrent employment in Abu was with Beyond Frontiers Trading (Nov/13 to Nov/15). Subsequent to his apparent pastoring and Trading Business duties in UAE, HOF went on to become an 11% owner of Maranatha Passengers By Rented Buses LLC; this is the business name that appears on HOF’s UAE visa.
I have reviewed the info RE: the employer in Cda.
Final: There is insufficient evidence HOF can perform the work offered. I see the ltrs stating HOF was a religious worker, but I do not see any corroborating evidence and therefore am not satisfied to place great positive weight on these ltrs.
HOF has not presented evidence of authorization to work in UAE for as a religious worker;
HOF has not presented a clear employment history in that he has presented docs suggesting he had, for a period, to [sic: two] employers in UAE (see authorization concerns above). The Certs provided are not supported by transcripts or other evidence of length of program.
In the end, I am not satisfied the docs presented sufficiently establish HOF has the education and pertinent experience to work as a Pastor in Cda. R200(3)(a) applies and HOF’s WP request is therefore refused. Refund of the ECF initiated.
For the children: Children are applying for SPs; given HOF is not issued a WP, purpose to Cda is inconsistent with a TR purpose and their SP requests are refused.
For the Spouse: Open TRV is approved per Public Policy.
[Underlining added. Line breaks added for clarity.]
[11] The GCMS notes referred to IRPR paragraph 200(3)(a), which provides:
Exceptions
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Exceptions
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200 (3) An officer shall not issue a work permit to a foreign national if
(a) there are reasonable grounds to believe that the foreign national is unable to perform the work sought;
|
200(3) Le permis de travail ne peut être délivré à l’étranger dans les cas suivants :
a) l’agent a des motifs raisonnables de croire que l’étranger est incapable d’exercer l’emploi pour lequel le permis de travail est demandé;
|
[12] On this application, the applicants’ submission was that the father filed a plethora of documents to show his ability to perform the work as a pastor in Canada, including certificates showing his religious education, as well as his offer to work in Canada and supporting corroborative evidence by way of reference letters and paystubs confirming his prior roles as pastor in the UAE. However, the officer unreasonably required additional corroborative evidence, which, according to the applicants, demonstrated that the officer made adverse credibility findings and did not believe the evidence filed. In addition, the applicants argued that the officer made a negative decision without providing the father an opportunity to address the credibility concerns (citing the principle in Hassani v. Canada (Minister of Citizenship and Immigration), 2006 FC 1283, [2007] 3 FCR 501, at para 21). See also Singh v. Canada (Citizenship and Immigration), 2021 FC 691, at para 12.
[13] The respondent argued that the officer reasonably required corroborative evidence to show the requirements to be awarded the education designations. The respondent submitted that it was reasonable to expect corroborative details such as the length of the programs and the curriculum involved. The respondent maintained that it was open to the officer not to “place great positive weight”
on the reference letters. On procedural fairness, the respondent submitted that the officer did not have a duty to provide an opportunity for the applicants to supply additional information about the sufficiency of the father’s work permit application. According to the respondent, the father was required by the IRPR to show that he could adequately perform the work, and the officer did not make any credibility findings.
[14] In my view, this application should be resolved on the procedural fairness issue.
[15] When a procedural fairness question arises on an application for judicial review, the Court must determine whether the procedure used by the decision maker was fair, having regard to all the circumstances including the nature of the substantive rights involved and the consequences for the individual(s) affected. While technically no standard of review applies, the Court’s review exercise is akin to a standard of correctness. See e.g., Shull v. Canada, 2025 FCA 25, at para 6; Jagadeesh v. Canadian Imperial Bank of Commerce, 2024 FCA 172, at para 53; Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69, [2019] 1 FCR 121, at paras 54-55.
[16] The requirements for procedural fairness on a work permit application fall on the low end of the spectrum: Adepoju v. Canada (Citizenship and Immigration), 2024 FC 2014, at para 9; Raouf v. Canada (Citizenship and Immigration), 2024 FC 1726, at para 13; Tafreshi v. Canada (Citizenship and Immigration), 2022 FC 1089, at para 9; Mahmoudzadeh v. Canada (Citizenship and Immigration), 2022 FC 453, at para 14; Patel v. Canada (Citizenship and Immigration), 2021 FC 483, at para 40.
[17] A decision-maker is not required to provide an applicant with an opportunity to address concerns that arise from the requirements of the IRPA or its regulations: Tirgovetu v. Canada (Citizenship and Immigration), 2025 FC 155, at para 24; Fu v. Canada (Citizenship and Immigration), 2024 FC 1720, at para 25; Komleva v. Canada (Attorney General), 2024 FC 1562, at para 32; Hassani, at para 24. Nor are officers required to request clarification, to give applicants the chance to strengthen their application, or to provide a “running score”
in relation to an application: Espinosa Cotacachi v. Canada (Citizenship and Immigration), 2024 FC 2081, at para 21; Komleva, at para 31; Patel v. Canada (Citizenship and Immigration), 2020 FC 77, at para 10.
[18] However, in some cases, procedural fairness requires that the decision maker give an applicant an opportunity to be heard on an issue. In Chera v. Canada (Citizenship and Immigration), 2023 FC 733, Justice Gascon explained:
[21] In the context of visa applications, the Court has distinguished between findings based on the sufficiency of evidence, which do not trigger a duty to inform an applicant, and adverse credibility findings, which require that a visa officer provide the applicant with an opportunity to respond (Perez Pena [v Canada (Citizenship and Immigration), 2021 FC 491] at para 35). Perceived inconsistency in information provided by an applicant will engage a procedural fairness obligation if it results in the visa officer losing confidence in the applicant’s reliability (Thedchanamoorthy v Canada (Citizenship and Immigration), 2018 FC 690 at para 27). I acknowledge that the line between an insufficiency of evidence and a veiled credibility finding is sometimes difficult to draw and that “[t]he reference to a bona fide concern in the [d]ecision must not be conflated with a credibility concern” (Abbas [v Canada (Citizenship and Immigration), 2022 FC 378] at para 22, citing D’Almeida v Canada (Citizenship and Immigration), 2019 FC 308 at para 65 and Patel v Canada (Citizenship and Immigration), 2020 FC 517 [Patel] at para 14). However, “negative bona fide findings can sometimes amount to veiled credibility findings reflecting concerns about the genuineness of an application” (Abbas at para 25, citing Patel at para 12 and Al Aridi v Canada (Citizenship and Immigration), 2019 FC 381 at para 29). It all depends on the particular facts of each case.
[19] In Mahmoudzadeh, Justice Strickland stated at paragraph 15:
… if the visa officer was concerned with the credibility, the veracity, or the authenticity of the documentation provided by an applicant, as opposed to the sufficiency of the evidence provided, an obligation to provide the applicant with an opportunity to address those concerns may arise …
[20] In the present case, I find that the officer was, in substance, materially concerned with the credibility or veracity of the materials filed by the father in support of a work permit. The officer was also concerned with their sufficiency.
[21] The officer stated that there was “insufficient evidence”
that the father could “perform the work offered”
and was not satisfied that the documents presented “sufficiently establish[ed]”
that the father had the educational and relevant experience to work as a pastor in Canada. To reach this conclusion, the officer referred to most of the documents filed by the applicant and expressed four concerns:
a)the absence of “corroborating evidence”
to support the letters stating that the father was a religious worker;
b)the father had not presented evidence of authorization to work in the UAE as a religious worker;
c)the father had not presented a clear employment history in that he has presented documents suggesting that he had two employers in the UAE (see authorization concern); and
d)the religious certificates were not supported by transcripts or other evidence of length of program.
[22] I agree with the respondent that concern (d) relates to sufficiency of the evidence filed. However, I find that concerns (a), (b) and (c) indicate that, on the particular facts of this case, the officer had credibility or veracity concerns with the documentation filed by the father.
[23] Concern (a) related to the reference and support letters having no corroboration. The two associated concerns ((b) and (c) above) related to an absence of legal authorization to work as a religious worker in the UAE and the absence of a “clear”
employment history, especially of having two employers in the UAE. Reading the GCMS notes along with the contents of the record, the officer must have had significant underlying issues with the credibility or veracity of the applicant’s representations in his application that he worked in the UAE in a religious capacity and about what he did (set out in his resumé). The officer must also have disbelieved or seriously doubted the credibility or veracity of the contents of the letters that the applicant filed to confirm and corroborate his employment and his duties in the UAE – specifically, the veracity of the letter of support dated April 11, 2021; the two reference letters dated July 7 and July 12, 2021, which described the duties performed by the applicant while he was a pastor in the UAE (which duties were substantially the same as the proposed duties in Canada); the letter of appointment dated June 1, 2013; and the applicant’s payslips for January to July 2021 (to which the officer did not refer specifically). See similarly Singh, at paras 11-12. See also: Zhang v. Canada (Citizenship and Immigration), 2022 FC 784, at paras 18, 21; Opakunbi v. Canada (Citizenship and Immigration), 2021 FC 943, at paras 11-12.
[24] The respondent’s hypothesis, raised at the hearing, was that the officer was concerned that the applicant was “working under the table”
in the UAE. The respondent argued that this concern could be inferred from the officer’s concern about the absence of evidence of authorization to work in the UAE as a religious worker and from the applicant’s affidavit which referred to strict rules for religious workers in the UAE.
[25] I am unable to accept this position. The officer made no reference to the applicant’s affidavit or to the contents identified by the respondent. The officer’s GCMS notes did not suggest that the applicant was “working under the table”
in the UAE, or imply it was the real concern. Neither a party nor the Court may backfill or buttress an officer’s reasons or GCMS notes with additional reasoning or a different rationale, as the respondent seeks to do: Vavilov, at para 96; Singh v. Canada (Citizenship and Immigration), 2024 FC 1631, at para 12; Babalola v. Canada (Immigration, Refugees and Citizenship), 2024 FC 1628, at para 26. In addition, as I suggested at the hearing, the natural inference from the officer’s stated concerns is not that the applicant worked “under the table”
, but that the officer doubted that the father had in fact worked as a religious worker in the UAE at all. It may also be noted that the supposed concern also would not go to the applicant’s ability to perform the work in Canada (it presumes he did perform it in the UAE, just “under the table”
).
[26] It is not the Court’s role to decide whether the officer’s concerns were valid or to resolve these issues on the merits. Rather, I conclude that the officer made implicit negative findings concerning the veracity of the applicant’s representations about his employment in the UAE and the written materials filed to support his application, to which the applicant did not have a reasonable opportunity to respond.
[27] The application is therefore allowed. The officer’s decisions are set aside and the father’s application for a work permit and the children’s applications for study permits will be remitted to another officer for a redetermination.
[28] Because this application is resolved on the procedural fairness issue, I need not analyse the reasonableness of the officer’s substantive decision.
[29] Neither party raised a question to certify for appeal and none will be stated.
JUDGMENT in IMM-6536-23
THIS COURT’S JUDGMENT is that:
The application for judicial review is allowed.
The decisions dated April 19, 2023, are set aside. The applicants’ applications are remitted for redetermination by another officer.
No question is certified for appeal under paragraph 74(d) of the Immigration and Refugee Protection Act.
“Andrew D. Little”
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