Date:
20121221
Docket:
IMM-4390-12
Citation:
2012 FC 1542
Ottawa, Ontario,
December 21, 2012
PRESENT: The
Honourable Mr. Justice Boivin
BETWEEN:
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MICHAEL OKWU OBETA
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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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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act] in which the applicant seeks
to quash the decision of a Visa Officer (the Officer) dated March 14, 2012, denying
his application for a permanent resident visa under the federal skilled worker
class on the basis that he failed to adduce adequate evidence of his work
experience. For the following reasons, the application for judicial review will
be dismissed.
Factual
background
[2]
Mr.
Michael Okwu Obeta (the applicant) is a citizen of Nigeria. He is married and
has two (2) minor children. The applicant applied for a permanent resident visa
under the Federal Skilled Worker class. He has eighteen (18) years of formal
education and holds a Bachelor’s of Science in Accountancy and a Project
Management Professional certificate. The applicant’s spouse has seventeen (17)
years of formal education and also holds a Bachelor’s of Science (Tribunal
Record, pp 25-26, 29, 34 and 62). The applicant claims to have over four (4)
years of experience under the National Occupational Classification (NOC) code
0711 as a Construction Project Manager, and over two (2) years of work experience
under the NOC code 0111 as a Financial Control Manager (Tribunal Record, p 39).
[3]
The
applicant’s application was received on January 14, 2010 and forwarded to the
Visa Office in Accra, Ghana, after an initial assessment on March 8, 2010 (Tribunal
Record, pp 3-4). The applicant was asked at that time to submit his full
application within one hundred and twenty (120) days and to send it to Accra (Tribunal Record, p 4). Further documents were requested from the applicant on
November 28, 2011. The applicant submitted several documents in support of his
application, including:
a. letters of employment
from Cirico Technical Services Limited (Cirico): a first letter dated March 30,
2010 (Tribunal Record, p 72), and a second letter submitted after the November
28, 2011 request, dated December 2, 2011 (Tribunal Record, p 85);
b. letter of employment
from Indepco Ltd (Indepco), dated March 30, 2010 (Tribunal Record, p 73);
c. letter of employment
from the Nigeria Union of Local Government Employees (Nulge), dated April 26,
2010, which does not refer to a listed NOC code for Federal Skilled Workers
(Tribunal Record, p 74)
d. employment offer from
Indepco, dated August 6, 2001 (Tribunal Record, pp 79-81), signed August 9,
2004
e. employment offer from
Cirico, dated February 6, 2004 (Tribunal Record, pp 75-78), signed on February
10, 2004.
[4]
The
letters from Cirico attested to the applicant’s position as a Construction Project
Manager since February 2004 and listed ten (10) main duties (corresponding to
NOC code 0711). The letter from Indepco indicated that the applicant had worked
for this company from August 2001 until January 2004 as a Financial Control Manager
and listed nine (9) main duties (corresponding to NOC code 0111).
[5]
The
applicant’s application was reviewed and denied by the Officer on March 14,
2012 (Tribunal Record, p 7-10).
Decision under
review
[6]
The
Computer Assisted Immigration Processing System (CAIPS) notes indicate that the
applicant had, at a preliminary stage, sufficient points to meet the
requirements of the Act, having accumulated a total of sixty-nine (69) points
while the required amount is sixty-seven (67). Of the applicant’s sixty-nine
(69) points, twenty-one (21) were provisionally awarded for work experience
based on the applicant’s submissions (Tribunal Record, p 7). However, upon
review by the Officer, the documents supporting the applicant’s work experience
were rejected and his application was therefore deemed ineligible for
processing.
[7]
The
Officer found the letter submitted by the applicant from Cirico describing his duties
as a Construction Project Manager since February 2004 was not credible and was
likely fabricated for immigration purposes (Tribunal Record, pp 7 and 72). The
letter listed tasks which appeared to be copied directly from the NOC code 0711
and slightly modified. The company’s letterhead and the business card attached
to the letter were printed using an ink-jet printer. Furthermore, the Officer
found it improbable that the applicant would be hired as a Construction Project
Manager when he had no previous experience or training in the construction
industry.
[8]
The
Officer also gave little weight to a letter submitted by the applicant from
Indepco Ltd. to corroborate his experience under the NOC code 0111 as a Financial
Control Manager, also finding that it was likely fabricated for immigration
purposes (Tribunal Record, pp 8 and 73). The Officer noted that the letter was
printed on the same type of paper, using the same low-quality ink-jet printer,
and otherwise looked very similar to the Cirico reference letter. The Officer
noted that the duties listed on this letter also appear to be copied from the
wording of the NOC code 0111.
[9]
Given
the lack of satisfactory evidence concerning the applicant’s work experience
under the NOC code 0711 and NOC code 0111, the application was deemed
ineligible for processing and was refused. The letter sent to the applicant,
dated March 14, 2012, informed the applicant that he had “not provided
sufficient evidence that [he] performed the actions described in the lead
statement for those occupations” (Tribunal Record, p 9). The applicant
requested reconsideration of the refusal decision on March 23, 2012. Attached
to this request was a more detailed letter of employment from Cirico
(Applicant’s Record, Applicant’s Affidavit, Exhibits H and I, pp 37-43). The
applicant having received no response to his request for reconsideration, a
reminder was sent via email by his counsel on April 3, 2012, which has also
allegedly remained unanswered (Applicant’s Record, Applicant’s Affidavit,
Exhibit J, p 46). The applicant therefore filed this application for judicial
review.
Issues
[10]
After
considering both parties’ proposed issues for this application for judicial
review, the Court is of the view that the issues are as follows:
a. Did the Officer breach
the duty of procedural fairness by not giving the applicant the opportunity to
address his doubts about the evidence being falsified?
b. Did the Officer err in
deciding that the applicant’s permanent residence application was ineligible
for processing?
Statutory
provisions
[11]
The
relevant provisions of the Act and the Immigration and Refugee Protection
Regulations, SOR/2002-227 [the Regulations], setting out the legislative
framework for permanent residence applicants under the Federal Skilled Workers
class, are set out in annex to this judgment. The Regulations require a minimum
of one (1) year experience in a listed NOC code in the ten (10) year period
preceding the application.
[12]
Furthermore,
section 87.3 of the Act provides for the issuance of Ministerial Instructions
by the Minister of Citizenship and Immigration. The Ministerial Instructions,
which were applicable to Federal Skilled Workers when the applicant applied for
permanent residence, are entitled “MI1” (Ministerial Instructions, (2008) C Gaz
I, 3043). They were applicable to applications received between February 27,
2008 and June 26, 2010. According to the MI1, applicants had to meet the
requirements set forth under the instructions before being eligible for
processing. Specifically, applicants had to have secured an Arranged Employment
Offer (AEO) or have at least one (1) year of continuous full-time paid work
experience over the last ten (10) years in one of the specified occupations set
out by the NOC and listed in the Ministerial Instructions. Having no AEO, the
applicant in the present case had to demonstrate that he had at least one (1) year
of continuous full-time paid work experience in a listed NOC code during the
ten (10) preceding years for his application to be eligible for processing.
Standard of
review
[13]
Both
parties submit that the issue is one of procedural fairness. When examining an
issue of procedural fairness, the task for the Court is to determine whether
the process followed by the decision-maker satisfied the level of fairness
required in all of the circumstances (Canada (Citizenship and Immigration) v
Khosa, 2009 SCC 12 at para 43, [2009] 1 S.C.R. 339)
[14]
The
issue of whether or not the Officer should have brought his concerns to the
attention of the applicant and offered him an opportunity to address them is a
question of procedural fairness, and is reviewable on a standard of
correctness. However, the Officer’s concerns themselves, namely his assessment
of the evidence and subsequent conclusion that the application was ineligible
for processing, are reviewable on the standard of reasonableness (Kamchibekov
v Canada (Minister of Citizenship and Immigration), 2011 FC 1411 at para
12, [2011] FCJ No 1782 (QL) [Kamchibekov]). Deference being owed to the
Officer in his assessment of the evidence, the Court will only interfere with
the Officer’s conclusions if they do not fall “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 [Dunsmuir]).
Analysis
[15]
From
the outset, the Court recalls that visa applicants are owed a degree of
procedural fairness which falls at the low end of the spectrum (Dash v
Canada (Minister of Citizenship and Immigration), 2010 FC 1255 at para 27,
[2010] FCJ No 1565 (QL) [Dash]), there being no substantive rights at
issue as an applicant has no right to enter Canada (Wang v Canada (Minister
of Citizenship and Immigration), 2006 FC 1298 at para 20, 302 FTR 127). The
decision on the application is neither judicial nor quasi-judicial in nature.
[16]
In
the present circumstances, the main issue raised by the applicant concerns
allegations of breach of the duty of procedural fairness: i.e., that the
Officer erred by not informing the applicant of his concerns with the
authenticity of the letters provided in support of this application.
[17]
More
particularly, the applicant submits that the Officer should have provided him
with a meaningful opportunity to respond to his concerns, and by failing to do
so, the Officer committed a breach of procedural fairness (Li v Canada
(Minister of Citizenship and Immigration), 2008 FC 1284, 337 FTR 100; Rahim
v Canada (Minister of Citizenship and Immigration), 2006 FC 1252 at para
12, 152 ACWS (3d) 501). In this regard, the applicant relies on Torres v
Canada (Minister of Citizenship and Immigration), 2011 FC 818 at para 38, 2
ImmLR (4th) 57 [Torres], to argue that “where credibility, accuracy or
the genuine nature of information is in question, a duty also exists to give an
opportunity to an applicant to disabuse an officer of any concerns that may
arise” (also relying on Hassani v Canada (Minister of Citizenship and
Immigration), 2006 FC 1283, [2007] 3 FCR 501 [Hassani]). The
applicant submits that his application was complete and that the issue is accordingly
not one of sufficiency, but rather of authenticity, of the documents provided
in support of his application. In the applicant’s view, it follows that the
Officer owed him a duty of fairness.
[18]
The
respondent disagrees and argues that the documents presented to the Officer
contained numerous defects and lacked credibility. In such circumstances,
maintains the respondent, no duty of fairness arises.
[19]
The
applicant in this case agrees that an Officer is under no obligation to allow a
given applicant to make further submissions if the concern is one that arises
from the legislation or regulation. However, the applicant submits that his
application was complete as it included the information required. As such, the
applicant contends that he complied with the legislation and regulation and
provided sufficient information. As indicated above, the applicant
alleges that this case is not one that raises an issue of sufficiency of
information – where no duty is owed by the Officer – but of authenticity
of information. On the basis of this distinction, the applicant relies strongly
on paragraph 24 in Hassani, and asserts that the Officer had a duty to
provide him with an opportunity to address his concerns regarding the
authenticity of the documents provided in support of his application. Justice
Mosley in Hassani, above, at paragraph 24, observed the following:
[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.]
[20]
For
the reasons that follow, the Court cannot agree with the applicant’s position
and interpretation of Hassani.
[21]
Firstly,
the use of the word may at paragraph 24 in Hassani is an
indication that Justice Mosley did not frame the duty of the Officer in
absolute terms, as the applicant seems to suggest. In other words, Justice
Mosley did not rule that there is necessarily a duty to provide an
opportunity for the applicant to address his or her concerns when they arise outside
the context of requirements pursuant to the legislation or related regulations.
[22]
Likewise,
the use of the word often is another indication that such a duty is not
necessarily triggered even where the credibility, accuracy or genuine nature of
information submitted by the applicant is at issue. Depending on the
circumstances, this duty may simply not arise. Here, the Officer referred to
the fact that the reference letters from past employers were most probably fabricated
for immigration purposes.
[23]
The
Court observes, for instance, that the Officer noticed that the letters at pages
72, 73 and 74 of the Tribunal Record have the same font. He also noticed that
the business cards make reference to a @yahoo.com and a @gmail.com email
addresses, but not to a corporate email. Two (2) letters from two (2) different
employers are signed on the same day, using the same type of paper with both
letterheads printed in poor quality ink-jet and are otherwise quite alike (Tribunal
Record, pp 72 and 73). The Officer further noticed that the duties enumerated
in the letter from Cirico are nearly copied from the NOC. The applicant’s
comparative table between the NOC and the reference letters submitted to the
Court failed to convince this Court (Applicant’s Reply, para 6). Furthermore, the
Officer noted that it would be unlikely for a company to hire the applicant for
a position (Construction Project Manager) for which he had no apparent previous
experience (Tribunal Record, p 8). Thus, on the basis of this information, the
Court is of the opinion that the Officer’s decision was reasonable.
[24]
Following
the decision to the effect that the application was ineligible for processing
and hence refused, the applicant attempted to perfect his application (Tribunal
Record, pp 41-42). For instance, he explained that the use of ink-jet printers
and the particular type of paper used by the employers is common practice for
businesses in Nigeria (Applicant’s Record, Applicant’s Affidavit, p 16;
Affidavit of Arinze Samuel Chukwudile, p 49), and that the font used on the
letters is a default font on many computers in Nigeria (Applicant’s Record,
Applicant’s affidavit, paras 31-32, pp 16-17). The Court agrees with the
respondent that these statements made by the applicant in his own affidavit
with respect to generalized business practice in Nigeria as to the paper, printer
and font typically used are self-serving statements. (Applicant’s Record,
Affidavit of the Applicant, paras 28, 30 and 32, pp 16-17).
[25]
As
explained earlier, the burden of providing sufficient information rests on the
applicant, and where the Officer’s concerns arise directly from the
requirements of the Act or its Regulations, there is no duty on the Officer to
raise doubts or concerns with the applicant (Kaur v Canada (Minister of
Citizenship and Immigration), 2010 FC 442 at para 11, [2010] FCJ No 587
(QL) [Kaur]; Hassani, above, at para 24). Also, and contrary to
the applicant’s submission, there is no such absolute duty on the Officer where
the application, on its face, is void of credibility. In terms of sufficient
information, the onus will not shift on the Officer simply on the basis that the
application is “complete”. The applicant has the burden to put together an
application that is not only “complete” but relevant, convincing and
unambiguous (Singh v Canada (Minister of Citizenship and Immigration)
2012 FC 526, [2012] FCJ No 548; Kamchibekov, above, at para 26). Despite
the distinction that the applicant attempts to make between sufficiency and
authenticity, the fact of the matter is that a complete application is in fact
insufficient if the information it includes is irrelevant, unconvincing or
ambiguous.
[26]
Moreover,
the Court refers to the observations of Justice Zinn in Singh v Canada (Minister of Citizenship and Immigration), 2009 FC 620 at para 7, [2009] FCJ No
797:
[7] I find that there is no merit to the submission
that the officer ought to have provided the applicant with an opportunity to
address his concerns. Justice Russell in Ling v Canada (Minister of
Citizenship and Immigration), 2003 FC 1198, reviewed the law as to when a
visa officer ought to provide such an opportunity. Relying on Ali v Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 468, he noted
firstly that there was no statutory right to an interview, or any dialogue of
the sort suggested here. Secondly, it was noted that generally an
opportunity to respond is available only when the officer has information of
which the applicant is not aware. As in Ling, that is not the situation
here and thus no opportunity was required to be given to Mr. Singh to address
the officer’s concerns. Further, when as here the officer is relying only on
materials submitted by or known to the applicant, there is no need for an
interview.
[Emphasis added.]
[27]
Finally,
the applicant relies on the case of Patel v Canada (Minister of Citizenship
and Immigration), 2011 FC 571 at paras 21-27, [2011] FCJ No 714 (QL) [Patel],
to support his argument that when the concern relates to the veracity (authenticity)
of a document, as opposed to its sufficiency, an officer is obligated to inform
an applicant of any concerns. In Patel, the officer was concerned about
the veracity of the letter because the duties appeared to be copied directly
from the NOC descriptions. The Court held that it was an error not to inform
the applicant of such doubts on the credibility of the submitted documents and
set aside the officer’s decision for breach of procedural fairness. However, the
Patel decision is distinguishable from the present case. Indeed, in Patel,
the Court found that the officer’s reasons were inadequate (Patel, para
26). On the basis of the evidence on record, the Court is of the view that the
Officer’s reasons are adequate, as they explicitly make reference to the issue
of “credibility and fabrication for immigration purposes”.
[28]
In
the result, the applicant has not established that the Officer erred in
considering the information before him, or that the Officer had a duty to give
the applicant an opportunity to address his concerns. On the basis of the record
taken as a whole and discussed above, the Court is therefore of the view that
the Officer’s decision was not unreasonable (Newfoundland and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62,
[2011] 3 S.C.R. 708; Smith v Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1
SCR 160; Construction Labour Relations v Driver Iron Inc., 2012 SCC 65,
[2012] SCJ No 65).
[29]
Consequently,
the application for judicial review will be dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed. No question of general importance is certified.
“Richard Boivin”
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