Date: 20050406
Docket: IMM-2380-04
Citation: 2005 FC 452
Ottawa, Ontario, this 6th day of April, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
PATRICIA ZEVALLOS BELLIDO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] The Applicant, Ms. Patricia Bellido, is a citizen and resident of Peru who wishes to come to Canada as a permanent resident. She applied for permanent residence from Peru on January 22, 2002. Subsequent to an interview conducted on December 30, 2003, by a Foreign Service Officer (the "Visa Officer") at the Canadian Embassy in Lima, Peru, the Applicant's application was denied. The decision, which was communicated to the Applicant by letter dated January 14, 2004, is the subject of this application for judicial review.
[2] The basis of the rejection was two-fold:
1. The Visa Officer assessed the Applicant at 56 points; that is 11 points shy of the minimum requirement. Of particular significance, the Applicant received 0 points out of a possible 24 for "language proficiency", 0 out of a possible 10 for "arranged employment" and 5 out of a possible 10 points for "adaptability".
2. The Visa Officer determined that Ms. Bellido misrepresented or withheld material facts related to her employment history, work experience and employment offers which "induced or could have induced errors in the administration of the Act". On the basis of this conclusion, the Visa Officer found the Applicant to be inadmissible to Canada within the meaning of s. 40(1)(a) of the Immigration and Refugee Protection Act ("the Act").
ISSUES
[3] The issues raised in this application are as follows:
1. Did the Visa Officer err in his assessment of Ms. Bellido:
(a) By assessing 0 points for language proficiency;
(b) By assessing 0 points for arranged employment; and
(c) By assessing only 5 points for adaptability?
2. Did the Visa Officer err in determining that the Applicant was inadmissible to Canada on the basis that she had misrepresented or withheld material facts within the meaning of s. 40(1)(a) of the Act?
3. Did the Visa Officer breach the rules of procedural fairness by not providing the Applicant with an opportunity to respond to his concerns?
ANALYSIS
[4] Assessment of an Applicant for permanent residence under the Federal Skilled Worker Class is carried out in accordance with ss. 75 to 85 of the Immigration and Refugee Protection Regulations, 2002 (the "Regulations"). In this application, three of the assessment criteria are in issue: language proficiency (s. 79), arranged employment (s. 82) and adaptability (s. 83). Arranged employment is tied to adaptability. This is because, if the Applicant receives 10 points for arranged employment, she also receives 5 additional points under adaptability (s. 83(1)).
[5] The Visa Officer's assessment is an exercise of discretion that should be given a high degree of deference. The standard of review is one of patent unreasonableness (Hua v. Canada (Minister of Citizenship and Immigration) 2004 FC 1647.
Issue #1(a): Language proficiency
[6] The Applicant commenced her application under the former Act and Regulations which were replaced June 28, 2002, by the Act and the Regulations. On September 1, 2003, a letter was sent to Ms. Bellido advising her that her application would be assessed pursuant to the new Act and Regulations under the "new skilled worker criteria". As a result, she was requested to submit an updated application form and "proof of your current level of official language proficiency" [emphasis in original]. A separate sheet explained what was required for proof of proficiency. In short, the Applicant could either:
_ Take a language test by an approved organization; or
_ Provide other written documentation that supports her claim.
[7] The directions strongly recommended that she take a language test from an approved organization. Further, there was no indication in the letter that a Visa Officer could undertake an independent, subjective assessment of the Applicant's language skills.
[8] These directions to the Applicant reflect the law as set out in s. 79(1) of the Regulations. To avoid the necessity of having visa officers make subjective assessments of language proficiency, s. 79(1) of the Regulations provides that applicants must:
(a) have their proficiency assessed by a designated organization or institution; or
(b) provide other evidence in writing of their proficiency in the language.
[9] In her affidavit, the Applicant asserts that, at the commencement of the interview, she showed the Visa Officer the Test Report Form from the International English Language Testing System. She also deposes that she understood that the results were also sent directly to the Embassy. Her sworn statements are at odds with the sworn testimony of the Visa Officer given during cross-examination on his affidavit, where he confirmed that he had never been shown the results by the Applicant and that they were not contained in her file. His testimony is supported by the absence of language test results in the Certified Tribunal Record, which contains all of the documents relevant to the Visa Officer's decision. If the results had been sent by the testing organization, it is logical that the Applicant's file would have contained her results. It is reasonable to infer from their absence that the results were never sent as alleged. On balance, I prefer the sworn testimony of the Visa Officer and conclude, on a balance of probabilities, that the test results were never received by the Visa Officer or at the Embassy.
[10] The interview between the Visa Officer and the Applicant was conducted in English. Further, the Certified Tribunal Record contains letters dated April 20, 2003, and December 30, 2003, written by her in English. The Applicant submits that she is entitled to at least 12 units of assessment given her evident fluency at the interview and in her letters. I do not agree.
[11] In the absence of test results, the Applicant had the option to provide other evidence in writing of her proficiency. The object of the documentation is to demonstrate objectively that the Applicant can speak, read and write English. The type of information to be provided includes such things as official documentation of education and work experience in English, an explanation of how the Applicant commonly uses English and a description detailing her training in English. To ensure objectivity, the assessment of language skill - even oral skill - is to be done on the basis of written representations and not on the basis of an interview with the Visa Officer. The Regulations do not permit an assessment of oral skills by the Visa Officer during the interview. Nor is the Visa Officer to judge the Applicant's written ability on the basis of letters submitted during the application process; these could easily be written for an applicant. This procedure ensures fairness and equal treatment for all applicants.
[12] Since the Applicant failed to submit either the test results or the documentation necessary to substantiate her claimed proficiency in English, she was not entitled to receive any points. The Visa Officer did not err in assessing the Applicant as having 0 points in language proficiency.
Issue #1(b): Arranged employment
[13] Pursuant to s. 82(2) of the Regulations, an applicant may receive ten points for arranged employment in Canada. To satisfy this requirement, an applicant must have a permanent job offer that has been validated by Human Resources and Skills Development Canada ("HRDC").
[14] In this case, an offer of employment was confirmed by HRDC on August 27, 2003. The offer was a position with Sattler Foods Inc. as a "sales representative wholesale". One of the requirements of the position was "8 yrs. minimum exp in wholesale trade of meat products with emphasis in Latin America". On September 16, 2003, after receipt of this letter, an entry in the Applicant's file was made as follows:
The HRDC validation letter, dated 27Aug 03, states that the requirements include: 8 yrs minimum experience in wholesale trade of meat products with emphasis in Latin America. From docs submitted in support of appln, all of applt's export experience appears to be is security systems, not meat products. Appears that applt may not meet the requirements of the HRDC validation. Will have to clarify this with applt.
[15] By letter dated September 19, 2003, sent from the Canadian Embassy in Lima, the Applicant was requested to provide information or documents related to "Work experience in the wholesale trade of meat products with an emphasis on Latin America". In the letter, the Applicant was advised that "Failure to submit satisfactory documentation will lead us to conclude that you are not eligible . . . to obtain points for arranged employment".
[16] In response to this letter, Mr. Hector Chirinos sent a letter to the Embassy dated October 1, 2003, stating that the Applicant had worked as the "representative of a major Canadian meat trading company" in the capacity of a Commodity and Meat Trader under his supervision from 1995 to 1999. Mr. Chirinos' letter was not on letterhead. Nor was the Canadian company identified. Another letter, dated October 9, 2003 was sent by Fernando Barba, Director Gerente of F & B Representaciones in which he advised that the Applicant had been employed as a consultant since August 1999 in the area of meat imports.
[17] The Visa Officer noted that the Applicant had made no prior mention of being employed in any capacity by F & B Representaciones or of the work described by Mr. Chirinos. As expressed in his affidavit in support of the Respondent, the Visa Officer was "concerned that the information submitted by the Applicant may be self-serving and untruthful". At this point in his investigation, the Visa Officer was faced with two issues: (a) did the Applicant have the experience described by HRDC; and (b) was the Applicant attempting to misrepresent material facts? The second of these questions is discussed below under Issue #2.
[18] In an attempt to answer both these questions, the Visa Officer began to make inquiries which uncovered a number of concerns. These concerns and other discrepancies in the Applicant's employment history were put to the Applicant during the interview on December 30, 2003. The Applicant failed to respond to the concerns put to her and, in fact, provided yet another version of her work history.
[19] With respect to the experience requirement, the Visa Officer states in his affidavit that the Applicant admitted that she had only four years part-time experience in the wholesale meat trading business. This response is noted in the Computer Assisted Immigration Processing System ("CAIPS"), an electronic file system used to process applications for admission to Canada. The CAIPS notes accurately reflect the questions posed to the Applicant and the answers given at the interview. Based on the record before him, the Visa Officer concluded that she did not have the required work experience necessary to perform the job described in the HRDC validation letter.
[20] The Applicant submits that she should have received the 10 points for arranged employment on the basis of (a) the HRDC validation of her job offer; and (b) her experience in the trade of meat products.
[21] HRDC validation is not, as the Applicant submits, sufficient evidence of arranged employment. Such validation does not remove the obligation of the Visa Officer to assess whether the Applicant is able to perform the job described in the validation.
[22] In this case, there was unequivocal statement in the HRDC letter that the position examined by HRDC required "8 yrs. minimum exp in wholesale trade of meat products with emphasis in Latin America". It was the responsibility of the Visa Officer to verify that the Applicant met this requirement. His CAIPS notes reflect that he confronted the Applicant with the apparent lack of experience and that she agreed that she did not meet the criterion. He was not satisfied that her prior experience was either sufficient or properly supported by credible documentary evidence. The Applicant's admission during the interview constitutes sufficient evidence to support the Visa Officer's conclusion and I would agree with the Visa Officer's assessment of the arranged employment. In addition, the fact that the Applicant's initial application contained no reference whatsoever to any experience in the area, and the fact of her changing testimony on her employment history provide further support to his conclusion. Finally, in the circumstances, it was entirely reasonable for the Visa Officer to reject the self-serving letters from her brother-in-law and Ms. Sattler (who appears to be Mr. Chirinos' mother) with respect to her past experience and her proposed employment.
[23] On any standard of review, the decision of the Visa Officer to assess the Applicant with 0 points for arranged employment ought not to be overturned. It follows that the Applicant was not entitled to an additional 5 points under "adaptability.
[24] As a result of my conclusions on these issues, the Visa Officer's assessment that the Applicant was entitled to only 56 points will be upheld. Accordingly, the Applicant did not acquire sufficient points to support a positive determination by the Visa Officer on her application for permanent residence.
Issue #2: Misrepresentation
[25] As noted, the Visa Officer found that the Applicant misrepresented or withheld material facts related to her employment history, work experience and employment offers which "induces or could induce an error in the administration of this Act". On the basis of this conclusion, the Visa Officer found the Applicant to be inadmissible to Canada within the meaning of s. 40(1)(a) of the Act. The relevant provision is as follows:
| 40. (1) A permanent resident or a foreign national is inadmissible for misrepresentation
(a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act;
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40. (1) Emportent interdiction de territoire pour fausses déclarations les faits suivants :
a) directement ou indirectement, faire une présentation erronée sur un fait important quant à un objet pertinent, ou une réticence sur ce fait, ce qui entraîne ou risque d'entraîner une erreur dans l'application de la présente loi;
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[25] The Visa Officer's conclusion on this matter appears to have been founded on a number of discrepancies, inconsistencies and contradictions.
_ With respect to her employment history, the information that she gave at the interview differed from that given on both a visitor's visa application and on her permanent resident application. The information contained in letters from her employers provided yet another version of her employment history.
_ With respect to her experience related to the requirements of the proposed job in Canada, the Applicant initially provided no information at all. When this was raised as an issue in a letter to her, two letters materialized that outlined her part-time experience in the business. However, when questioned during the interview, she confirmed only four years of part-time experience.
_ When asked about a Canadian job offer that did not materialize at Eastern Packinghouse Brokers, she initially stated that she turned down the offer because it was too far from where she lived. It turns out that the offer was withdrawn. She also denied obtaining this offer because of her brother-in-law's connection with the company. This was also false.
_ The Visa Officer also noted problems with the Sattler Food offer. She initially denied any relationship between Mr. Chirinos, her brother-in-law, and Ms. Sattler. As related by the Visa Officer in his affidavit at para. 24:
When asked to provide information about Sattler Foods Inc. in Woodbridge, the Applicant said she didn't know much, only that they are a meat company. When asked where it was located, she indicated it was somewhere in Woodbridge, but couldn't provide an exact address. She was asked how she obtained a job offer from this company and said it was obtained through Sheila Sattler at a party. When asked if Sheila was connected to her brother-in-law, Hector Chirinos, she said no, just a friend of a friend. She was asked if she ever visited the location and she said no. She was asked why the information on her application for a temporary resident visa matched Sheila Sattler's address exactly and there was no response. She was asked to explain how it was that she visited this address in 2001 but did not know its whereabouts. She responded by saying that she didn't know. The Applicant's daughters confirmed that in fact they lived at this address when they first arrived in Canada. The information provided by the Applicant is not true. She is in fact related to Hector Chirinos, an employee with Sattler Foods Inc. and the husband of her sister, Alicia Chirinos. When she arrived in Canada in 2001 on a visitor's visa, she stayed with her two daughters at the home of her sister and brother-in-law in Woodbridge, which is the same address provided on her application for a visitor's visa. The person who offered her a job with the company, Sheila Sattler, is in fact the mother of Hector Chirinos.
_ During the interview, when describing her employment history, she did not mention that she ever worked with Mr. Chirinos. A letter from Mr. Chirinos dated October 1, 2003, indicates that she worked under his supervision with a company called Export Packers from 1995 to 1999.
_ At no time in the process did she expose the fact that her "employer" Sistemas was a family-owned company of which she was a co-owner.
[26] The Applicant submits that the Visa Officer erred. I do not agree.
[27] Two factors must be present for a finding of inadmissibility under s. 40(1). There must be misrepresentations by the applicant and those misrepresentations must be material in that they could have induced an error in the administration of the IRPA. The standard of review in the first of these matters is, in my view, patent unreasonableness. These are determinations of fact, which the Visa Officer is in the best position to assess. Without coming to a final determination on the second factor, I will accept that the standard of review is reasonableness simpliciter.
[28] The Applicant would add another requirement to this analysis - that the misrepresentations must be intentional, deliberate or negligent. Contrary to the submissions of the Applicant, there is no requirement in s. 40(1)(a) that this be the case. I do not find the cases cited by the Applicant (R. v. Perez) [2002] N.W.T.J. No. 93 or Dhanani v. Canada (Minister of Citizenship and Immigration) [2005] F.C.J. No. 183) to be helpful or supportive of her position.
[29] With respect to the Visa Officer's factual findings of misrepresentation, I can see no error. The evidence provides ample support for his conclusion that she had misrepresented facts. Even if the misrepresentations are required to be "intentional, deliberate or negligent", on these facts, that test would have been met. The falsehoods told by the Applicant during the course of the application process were obvious and could not, on any reasonable interpretation, be chalked up to her nervousness or uncertainty. On either a standard of patent unreasonableness or the lower standard of reasonableness simpliciter, the Visa Officer's conclusions should stand.
[30] Having concluded that the misrepresentations were supported by the evidence before the Visa Officer, I turn to the question of relevance and materiality (Baseer v. Canada (Minister of Citizenship and Immigration) [2004] F.C.J. No. 1239). Some of the alleged misrepresentations relate to a job offer from Eastern Packinghouse Brokers that was withdrawn. While I accept that the Applicant was not truthful about this job offer, I do not believe that it is a material representation. Under normal circumstances, I cannot see how misrepresentations with respect to a job offer that no longer exists could be "material" or could induce an error in the administration of the IRPA. Thus, I am inclined to ignore those findings, even though they add to the pattern of falsehoods that make up the fabric of this Applicant's dealings with the Visa Officer. However, any error on judging the materiality of misrepresentation on this subject is immaterial given the large number of problems with the Applicant's record.
[31] The balance of the findings are related to her employment history, work experience and employment offers. All of these subjects are directly relevant to the obligations of the Visa Officer. They are also material in that they could have led the Visa Officer to approve her application, thereby inducing the Visa Officer to err in the administration of the IRPA. For example, had the Applicant's submissions on her employment history been accepted by the Visa Officer, he may well have found that she had the requisite experience for the position at Sattler Foods. On any standard of review, the Visa Officer's decision should stand.
Issue #3: Procedural Fairness
[32] The Applicant submits that she was denied procedural fairness. Specifically, she asserts that the Visa Officer failed to provide her with a calm and reasonable opportunity to clarify or support her experience and job offer, or to disabuse the Visa Officer of his concerns (Islam v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 1985 (F.C.T.D.)). She further argues that the Visa Officer should have "further verified the references or asked for clarification from the employer or Applicant and given each a reasonable opportunity to respond in a neutral rather than hostile atmosphere." She also asserts that she was "embarrassed and debased".
[33] Having read the record before me, I am satisfied that the allegations related to hostility on the part of the Visa Officer are unwarranted. The Visa Officer, in my view, performed his job and made such inquiries as he felt appropriate. The Applicant has failed to support this serious allegation with anything other than unsupported opinions. In the circumstances of the Applicant's file, which was replete with contradictory evidence and omissions, I can understand why it may have been embarrassing for the Applicant to be confronted with some of the problems with her file. That does not mean that there has been a breach of natural justice.
[34] After the interview, the Applicant submitted further information, including letters from her prospective employer and Mr. Chirinos. The Applicant asserts that she should have had a further opportunity to respond to the Visa Officer's concerns. I do not accept that the duty of fairness extends to allowing the Applicant anything further. Indeed, even by accepting and considering these additional documents, the Visa Officer was likely going beyond what is required.
[35] The Applicant bears the onus of demonstrating that an application meets the requirements for a visa and there is no positive obligation to provide the Applicant with an opportunity to address any concerns the visa officer may have in considering an application (Nehme v. Canada (Minister of Citizenship and Immigration) [2004] F.C.J. No. 49, at para. 18)). As stated by Justice Muldoon in Asghar v. Canada (Minister of Citizenship and Immigration) [1997] F.C.J. No. 1091 (F.C.T.D.), at para. 21:
[O]ne may conclude that this [duty of fairness] does not arise merely because the visa officer has not been convinced, after weighing the evidence, that the application is well founded. The visa officer's task is precisely to weigh the evidence submitted by the applicant. In the Court's words, in light of the onus that is on the applicant to produce evidence, it is not apparent that the visa officer should be compelled to give him a "running score" at every step of the proceeding [Covrig v. M.C.I., (1995), 104 F.T.R. 41]
[36] Of course, it would be an error for the Visa Officer to rely on extrinsic evidence (such as information gained through phone calls to previous employers) without making the Applicant aware of this evidence. In this case, during the interview, the Visa Officer advised the Applicant of the information that he had received during the course of his research into her file and gave her a reasonable opportunity to respond.
[37] I conclude that there was no breach of the rules of procedural fairness.
CONCLUSION
[38] For the above reasons, I would dismiss this application for judicial review.
[39] The Applicant submits three proposed questions for certification.
1. Is it patently unreasonable for the Visa Officer to grant the Applicant "0" points of assessment for English in respect of each of reading, writing, speaking and listening?
2. Does s. 79 of the Regulations prohibit a consideration of English language abilities in English as demonstrated at interview, at law and equity, in a circumstance where test results do not form part of the certified record?
3. Is the appropriate standard of review for whether or not a "misrepresentation" has been made pursuant to s. 40 of IRPA "patently unreasonable"?
[40] In my view, none of these questions is a question of general importance for certification. The requirements of s. 79 of the Regulations are clear and unambiguous in their effect of requiring either an objective third party assessment of language proficiency or written documentation. In this case, neither of these requirements was met by the Applicant. The third question need not be answered as I conclude that the Visa Officer's findings of misrepresentation could be supported on either a standard of reasonableness simpliciter or patent unreasonableness.
ORDER
This Court orders that:
1. The application is dismissed; and,
2. No question of general importance is certified.
"Judith A. Snider"
_____________________________
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-2380-04
STYLE OF CAUSE: PATRICIA ZEVALLOS BELLIDO v.
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 22, 2005
REASONS FOR ORDER
AND ORDER BY: The Honourable Madam Justice Snider
DATED: April 6, 2005
APPEARANCES:
Ms. Charlotte M. Janssen FOR APPLICANT
Mr. Robert Bafaro FOR RESPONDENT
SOLICITORS OF RECORD:
Janssen & Associates FOR APPLICANT
Toronto, Ontario
Mr. John H. Sims, Q.C. FOR RESPONDENT
Deputy Attorney General of Canada
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