JUDGMENT AND REASONS

[1] Rajandeep Kaur Dhillon seeks judicial review of the refusal of her application for permanent residence on the basis that the decision fails to take into account her response to a procedural fairness letter [PFL] sent to her by Immigration, Refugees and Citizenship Canada [IRCC]. For the reasons set out below, I agree that the decision is unreasonable and will set it aside.

I. Background and decision under review

[2] Ms. Dhillon is a citizen of India. She is married and has a child. On June 8, 2022, Ms. Dhillon applied for permanent residence in Canada under a pilot program for Home Child Care Providers. She was represented by a consultant.

[3] Between June 9, 2022, and November 3, 2023, IRCC sent several requests for additional information and documentation, to which Ms. Dhillon’s consultant and employer consistently provided prompt responses.

[4] The materials submitted did not satisfy the officer. On November 23, 2023, IRCC sent a PFL to the consultant, warning that the application may be refused because the reviewing officer was concerned that the employer’s job offer was not genuine. Specifically, the officer was not satisfied that Ms. Dhillon’s employer had the ability to pay Ms. Dhillon’s salary. The letter invited a response within 30 days and cautioned that failure to respond within that period would result in a decision being made based on the information on file.

[5] The consultant prepared a response to the PFL and uploaded it to IRCC’s web portal on December 13, 2023, along with supporting documents including letters from the employer and from Ms. Dhillon, bank statements, and Notices of Assessment from the Canada Revenue Agency. IRCC issued an automated reply the same day confirming receipt.

[6] On January 3, 2024, IRCC sent another communication to the consultant via email. The message begins:

Thank you for contacting Immigration, Refugees and Citizenship Canada (IRCC).

We verified the information you provided; however, it differs from what we have on file.

In order to better assist you, we invite you to resubmit your request by including the following information in a letter of explanation and uploading it in the IRCC Web form…

[7] The email concludes with a note referring to the December 13, 2023, submission:

Original Enquiries

Enquiry 1, Sent 2023-12-13 5:35:12 PM

Representative Given Name: SANDEEP

Representative Family Name: SARAN

…

Details: Dear Sir/Madam As per your PFL letter, I am submitting PFL letter response from my client Rajandeep Kaur Dhillon, Request, Request letter from Canadian employer and submission letter from me.

Attachments:

PFL_response from Rajandeep Kaur Dhillon.pdf

Request Letter from Canadian Employer.pdf

Rep_Submission Letter.pdf

[8] Ms. Dhillon’s consultant did not respond to IRCC’s email, and her new counsel did not adduce any evidence from the consultant to explain this inaction. Nor has Ms. Dhillon raised an allegation of ineffective assistance by the consultant.

[9] A print-out of the Global Case Management System [GCMS] notes filed in these proceedings by IRCC includes entries for the original web portal application; the various letters and emails between June 9, 2022, and November 3, 2023; the PFL of November 23, 2023; and the various file reviews by immigration officials. The GCMS notes do not, however, include any reference to the December 13, 2023, submissions, the automated acknowledgement email issued by IRCC, or the January 3, 2024, email quoted above. The only entry post-dating the November 23, 2023, PFL is an entry dated March 26, 2024, setting out the officer’s decision:

A PFL was sent via Online on 2023-11-23 for additional information on the concerns on genuineness of job offer and employer's financial ability to pay. Due date has passed no information received in response to PFL.

APR refused for no genuine job offer as per 70(1)(d). Refusal letter sent this day. RPRF refunded. Overseas TR(s) cancelled fees refunded.

[10] IRCC issued a letter the same day refusing the application on the basis that Ms. Dhillon had not satisfied the officer that she had “received an offer of employment for full-time work that meets the [applicable] conditions.”

II. Issues

[11] Ms. Dhillon asserts that the decision is unreasonable because it fails to take into account her response to the PFL. Although the issue could also be framed as a breach of procedural fairness, I will undertake reasonableness review as that is how the issue was argued by the parties. The outcome would be the same in any event.

[12] Reasonableness review involves assessing administrative decisions to determine whether they have met the standard of responsive justification. As the Supreme Court of Canada explained in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], decision makers “must take the evidentiary record and the general factual matrix that bears on its decision into account, and its decision must be reasonable in light of them…” (Vavilov at para 126). The Court cautioned further: “The reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it” (Vavilov at para 126).

III. Analysis

[13] Ms. Dhillon maintains that her consultant prepared and uploaded a response to the PFL on December 13, 2023, and that it was not placed before the officer. While she concedes that her consultant failed to respond to the subsequent January 3, 2024, email from IRCC inviting her to resubmit the materials, she says this invitation does not negate the evidence that the materials were submitted and should have been before the officer.

[14] The Respondent however contends that the January 3, 2024, email from IRCC should be understood to mean that the December 13, 2023, response to the PFL letter was never received by IRCC. She argues that notwithstanding the same-day confirmation of receipt and the reference to the materials at the end of the January 3, 2024, email, the invitation to resubmit indicated there had been some sort of glitch that had prevented them from being properly received. She places the responsibility for the materials not being placed before the officer solely on the consultant. According to her, the January 3 email “states clearly that the information provided by the submitter did not correspond to the file. The response is unambiguous that the information must be resubmitted.”

[15] I cannot agree.

[16] It is far from clear from the language of the email (“In order to better assist you, we invite you to resubmit…”) that the materials were not even received and would therefore not be considered by the decision-maker. If that was in fact what IRCC sought to convey, then more direct wording should have been employed, stating clearly that the attempt to upload materials had been unsuccessful, and that Ms. Dhillon would be required to resubmit anything she sought to have considered.

[17] I find on a balance of probabilities that Ms. Dhillon provided her PFL response to IRCC, and she should not bear the responsibility for any glitch that might have occurred at IRCC in the processing or transmitting of her response documents to the decision-maker. Ms. Dhillon exercised her right to be heard, yet the decision fails to reflect what she had to say. While it appears that the materials she uploaded were not in fact before the individual decision-maker in this case, that decision-maker was exercising delegated authority for the Minister, and it was to this same Minister that she sent her PFL response. The resulting decision falls short of the standard of responsive justification articulated by the Supreme Court of Canada in Vavilov:

[127] The principles of justification and transparency require that an administrative decision maker's reasons meaningfully account for the central issues and concerns raised by the parties. The principle that the individual or individuals affected by a decision should have the opportunity to present their case fully and fairly underlies the duty of procedural fairness and is rooted in the right to be heard: Baker, at para. 28. The concept of responsive reasons is inherently bound up with this principle, because reasons are the primary mechanism by which decision makers demonstrate that they have actually listened to the parties.

[18] As the decision is unreasonable, it must be set aside. The parties have not proposed a question for certification, and I agree that none arises.

JUDGMENT in IMM-6096-24

THIS COURT’S JUDGMENT is that:

1. The application is granted.

2. The decision of the officer dated March 26, 2024, is set aside and the matter is returned for redetermination by a different officer in accordance with these reasons.

3. No question is general importance is certified.

"Andrew J. Brouwer"

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: