Date:
20121205
Docket:
IMM-3268-12
Citation:
2012 FC 1426
Vancouver, British
Columbia, December 5, 2012
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
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MANISH MOHAN
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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
I. Overview
[1]
In
addition to that of immediate-family reunification cases, a need also exists in
the immigration framework to ensure who, in fact, is related to whom when
considering relatives of potential immigrants living in Canada. Precision, thus
attention to details, is essential to ensure bona fide relatives if said
to exist, do. Such relatives are significant in view of the recognized
assistance (or greater facility in adaptability for settlement or acculturation
for economic success) they provide to new would-be immigrants. When such
“relatives” would have, in fact, previously settled in Canada or would have been born therein, they are, presumably, established enough to provide
some such assistance.
II. Introduction
[2]
The
Applicant seeks judicial review of the decision of an Immigration Officer in
the New Delhi visa office rejecting his application to be selected as a member
of the economic class on the basis of his ability to become economically established
in Canada under subsection 12(2) of the Immigration and Refugee Protection
Act, SC 2001, c 27 [IRPA]. The Applicant argues that he should have
received five points under paragraph 83(1)(d) of the Immigration and
Refugee Protection Regulations [Regulations] for being related to a
person living in Canada.
III. Judicial Procedure
[3]
This
is an application under subsection 72(1) of the IRPA for judicial review
of the decision of the Officer, dated February 1, 2012.
IV. Background
[4]
The
Applicant, Mr. Manish Mohan, is a citizen of India who was born in 1979.
[5]
The
Applicant has completed sixteen years of full-time formal educational training
including a Bachelor of Commerce Degree.
[6]
The
Applicant has more than four years work experience in an occupation classified
under National Occupation Classification Code 1111, “Financial auditors or
accountants” [NOC 1111].
[7]
On
March 11, 2010, the Applicant applied for permanent residence in Canada under
the skilled worker category [PR Application] on the basis of his work
experience.
[8]
On
Schedule 3 of the PR Application, the Applicant indicated that his spouse had
an uncle who was living in Canada or was a permanent resident in Canada; however,
the Applicant did not indicate that he himself had such a relative.
[9]
On
Schedule 1 of his PR Application, the Applicant indicated his father’s name as Madan Lal Mohan and that his father had passed away on October 25, 1989.
[10]
On
March 30, 2010, the Federal Skilled Worker Centralized Intake Office advised
the Applicant that his PR Application would be recommended to the visa office
on the basis of his NOC 1111 work experience and requested him to submit a
completed application to the New Delhi visa office [CIO Approval Letter].
[11]
On
July 26, 2010, the Applicant made submissions in response to the CIO Approval
Letter and stated that his paternal uncle was Subhash Chander Mehta [Subhash
Mehta], a permanent resident of Canada [Response to CIO Letter].
[12]
In
the Response to the CIO Letter, the Applicant included: (i) a family tree
indicating that his father’s name as Madan Lal Mehta and that Subhash Mehta was
his father’s brother; (ii) a Death Certificate for a Madan Lal Mehta who passed
away on October 25, 1990; (iii) the Applicant’s marriage certificate indicating
his father’s name as Madan Lal Mohan; (iv) affidavits by the Applicant and his
spouse stating that he is the son of Madan Lal Mehta; and, (v) the birth
certificate of the Applicant’s son, Arnav Mohan, indicating that Arnav’s
paternal grandfather’s name was Madan Lal Mehta.
[13]
On
July 31, 2010, the Applicant submitted an affidavit by Subhash Mehta, stating
that the Applicant is the son of Subhash Mehta’s brother, Madan Lal Mehta.
V. Decision under Review
[14]
The
Officer rejected the Applicant’s application to be selected for permanent residence
as a member of the economic class on the basis of his ability to become
economically established in Canada under subsection 12(2) of the IRPA.
[15]
The
Officer found that the Applicant had insufficient points to qualify for
permanent residence. The Officer applied the selection criteria in subsection
76(2) of the Regulations, SOR/2002-227, as am SC 2002, c 8, to determine
if the Applicant met the minimum requirements set out in subsection 75(2) of
the Regulations.
[16]
The
Applicant received ten points for age, twenty for education, eight for language
proficiency, twenty-one for experience, zero for arranged employment, and five
for adaptability. This made for a total of sixty-four points, three points
short of the required sixty-seven points established by the Minister under
subsection 76(3) of the Regulations as the minimum number of points
required of a skilled worker.
[17]
Under
paragraph 83(1)(d) and subparagraph 83(5)(a)(vi) of the Regulations,
an applicant under the skilled worker category shall be awarded five points for
an aunt or uncle living in Canada. The Officer did not award the Applicant
these points because the Applicant had not provided sufficient evidence of his
relationship to a stated relative in Canada (his spouse’s aunt or uncle and his
paternal uncle).
[18]
The
Officer did not accept the Applicant’s claim on Schedule 3 of his PR
Application that his spouse had an aunt or uncle residing in Canada or that
Subhash Mehta was his paternal uncle. According to the case notes, an affidavit
submitted in support of the latter claim was not supported by documentation and
did not satisfy the Officer that Subhash Mehta was the Applicant’s paternal
uncle, especially since the Applicant had indicated on Schedule 3 of his PR
Application that his relative in Canada was related to his spouse and not to
himself.
VI. Issues
[19]
(1)
Was the Officer reasonable in finding that the Applicant could not be awarded
five points under paragraph 83(1)(d) of the Regulations for his
relationship to Subhash Mehta, his alleged paternal uncle?
(2)
Did procedural fairness require the Officer to provide the Applicant with an
opportunity to respond?
VII. Relevant Legislative
Provisions
[20]
Please
see Annex “A” for the relevant legislative provisions of the IRPA and
the Regulations.
VIII. Position of the Parties
[21]
The
Applicant submits that the Officer was unreasonable in refusing to award him
five points for adaptability under paragraph 83(1)(d) and subparagraph
83(5)(a)(vi) of the Regulations since Subhash Mehta is a child of
the father of the Applicant’s father.
[22]
The
Applicant argues that he submitted sufficient documentation to establish that Madan Lal Mohan (also known as Madan Lal Mehta) was his father, including copies of his Indian
passport, marriage certificate, and school, employment, and tax records.
[23]
The
Applicant also argues that he submitted sufficient documentation to establish
that Madan Lal Mohan (or Mehta) and Subhash Mehta were brothers,
notwithstanding the unavailability of their birth certificates. The
documentation includes the death certificate of Madan Lal Mohan, the Indian
passport of Subhash Mehta, the statutory declaration of Subhash Mehta, and a
diagram illustrating the Mehta family tree.
[24]
According
to the Applicant, his father and Subhash Mehta were born in an era and region
of India in which the registration of births and other vital statistics was
unusual. The Applicant claims that the legislative requirement to register
births and deaths did not come into effect until the 1970s.
[25]
Citing
Wang v Canada (Minister of Citizenship and Immigration), 2002 FCT 58,
the Applicant argues that the applicable standard of proof in assessing an
application for permanent residence is the balance of the probabilities standard.
The Applicant, relying on R v Layton, 2009 SCC 36, [2009] 2 S.C.R. 540,
argues that this standard required him to establish that it was more probable
than not that Subhash Mehta is his paternal uncle.
[26]
The
Applicant submits that, given the documents described above, it was more
probable than not that his father and Subhash Mehta were brothers and that the
requirements of paragraph 83(1)(d) and subparagraph 83(5)(a)(vi) of
the Regulations were met. The Applicant contends that he was not
obliged to present a birth or marriage certificate to establish this
relationship and that he provided the best available evidence in the absence of
these records.
[27]
The
Applicant
argues that the Officer also breached procedural fairness by failing to provide
adequate reasons and an opportunity to respond. The Applicant argues that he
received no notice that the documentation he submitted (in particular, the
statutory declaration of Subhash Mehta) was insufficient to establish that
Subhash Mehta was his paternal uncle. The Applicant submits that his inability
to obtain birth certificates of his father and paternal uncle and the evidence
he submitted in substitution of the birth certificates required the
Officer to raise his concerns with the Applicant. Moreover, the Applicant
claims that the Officer’s rejection of the statutory declaration of Subhash
Mehta amounts to an adverse credibility assessment to which the Applicant
should have had the opportunity to respond.
[28]
The
Respondent submits that the Officer was reasonable in finding that the
Applicant had failed to establish that Subhash Mehta is his paternal uncle and,
consequently, that the Applicant could not satisfy the requirements of
paragraph 83(1)(d) and subparagraph 83(5)(a)(vi) of the Regulations.
[29]
In
particular, the Respondent argues that this finding was reasonable because the
Applicant had produced confusing and inconsistent evidence to establish that
Subhash Mehta was his uncle. First, the Applicant initially stated in Schedule
3 of his PR Application that it was his wife who had a relative living in
Canada. Second, the Applicant’s Response to the CIO Letter stated that Subhash
Mehta was living in India and not Canada. Third, the Applicant provided
documents that indicated that his father was Madan Lal Mohan rather than Madan Lal Mehta. Fourth, the death certificate of Madan Lal Mehta stated the name of the father
of the deceased as Sham Sundar Mehta (as opposed to the name of Sham Sunder
Mehta given on the Indian passport of Subhash Mehta). Fifth, the copy of the
Applicant’s Bachelor’s Degree in Commerce states the name of his father as Madan Lal Mahita. Finally, the statutory declaration of Subhash Mehta did not include any
supporting exhibits and contradicted the Applicant’s initial statements on
Schedule 3 of his PR Application.
[30]
The
Respondent argues that the Applicant’s application for judicial review
effectively asks this Court to reweigh the evidence.
[31]
In
response to the Applicant’s submissions on the unavailability of birth
certificates for his father and Subhash Mehta, the Respondent contends
that: (i) the Officer did not find that the Applicant was required to provide
such documentation; (ii) the unavailability of this documentation was
irrelevant to the question of the sufficiency of the evidence actually
submitted; and (iii) the Applicant did not inform the Officer that such documentation
was unavailable.
[32]
Citing
Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, the Respondent submits that
adequacy of reasons is not a stand-alone ground for judicial review.
[33]
The
Respondent further argues that the Officer was not required to give the
Applicant an opportunity to respond because the Applicant had the onus of
providing sufficient documentation to establish that paragraph 83(1)(d)
and subparagraph 83(5)(a)(vi) of the Regulations applied. Citing Tahir
v Canada (Minister of Citizenship and Immigration) (1998), 159 FTR 109, the
Respondent argues the Officer had no “duty to request supporting documentation
or to grant an interview in order to substantiate the application” (at para 8).
The Respondent claims, relying on Oei v Canada (Minister of Citizenship and
Immigration), 2002 FCT 466, 221 FTR 112, that an applicant’s failure to
provide adequate, sufficient or credible evidence does not trigger a duty to
give an opportunity to respond.
[34]
In
further submissions, the Respondent submits that the only documentary evidence
that the Applicant adduces to support the inference that Subhash Mehta is
his paternal uncle cannot be considered by this Court since it was not
considered by the Officer. The Respondent observes that the only documentary evidence
of Subhash Mehta’s parentage, an additional page of a copy of the Indian
passport of Subhash Mehta [additional passport page], does not appear in the Certified
Tribunal Record [CTR].
[35]
According
to the Respondent, the Applicant has not established that he submitted the
additional passport page in support of his PR Application because his affidavit
only states that he submitted a copy of the Indian passport of Subhash Mehta to
the Officer but (i) does not specify the number of pages of the passport that
he submitted, or (ii) attach as an exhibit what he submitted in support of his
application.
[36]
The
Respondent claims that the affidavit of Cindy Sran (to which the additional
passport page was attached as an exhibit) does not assist the Applicant because
that affidavit does not depose (i) that the additional passport page was
submitted in support of the Applicant’s PR Application, and (ii) how the
affiant would have personal knowledge of whether the additional passport page
was submitted to the Officer. The Respondent notes that the Applicant did not
tender an affidavit from his counsel to establish what he submitted in support
of his PR Application. The Respondent cites Moldeveanu v Canada (Minister of
Citizenship and Immigration) (1999), 235 NR 192 (FCA), wherein the Federal
Court of Appeal struck the affidavit of a paralegal from counsel’s firm because
it was not confined to facts within the paralegal’s personal knowledge.
IX. Analysis
Standard of
Review
[37]
A
decision to award an applicant points for adaptability for being related to a
person living in Canada is a question of mixed fact and law reviewable on the standard
of reasonableness (Lee v Canada (Minister of Citizenship and Immigration),
2011 FC 617). The standard of correctness applies to questions of procedural
fairness (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para
129). The content of the duty of procedural fairness will, however, vary
according to the circumstances and the legislative and administrative context
of a decision (Mavi v Canada (Attorney General), 2011 SCC 30, [2011] 2
SCR 504).
[38]
Where
the standard of reasonableness applies, the Court may only intervene if the
Board’s reasons are not “justified, transparent or intelligible”. To satisfy
this standard, the decision must also fall in the “range of possible,
acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir,
above, at para 47).
[39]
Although
the Applicant has challenged the adequacy of the Officer’s reasons, the Supreme
Court of Canada has held that if reasons are given, a challenge to the
reasoning or result is addressed in the reasonability analysis. According to Newfoundland
and Labrador Nurses Union, above, “reasons must be read together with the
outcome and serve the purpose of showing whether the result falls within a
range of possible outcomes” (at para 14). A reviewing court may not “substitute
[its] own reasons” but may “look to the record for the purpose of assessing the
reasonableness of the outcome” (at para 15).
(1) Was the Officer
reasonable in finding that the Applicant could not be awarded five points under
paragraph 83(1)(d) of the Regulations for his relationship to
Subhash Mehta, his alleged paternal uncle?
[40]
The
Officer was not reasonable in finding, on a balance of probabilities, that the
Applicant could not be awarded five points under paragraph 83(1)(d) and
subparagraph 83(5)(a)(vi) of the Regulations on the basis of his
relationship to Subhash Mehta, his alleged paternal uncle.
[41]
A
decision-maker assesses whether a person is related to a person living in
Canada on a balance of probabilities (Dhillon v Canada (Minister of
Citizenship and Immigration), 2010 FC 1049). Pursuant to Layton,
above, this required the Officer to ask if it was more probable than not that
the Applicant was the nephew of Subhash Mehta and that paragraph 83(1)(d)
and subparagraph 83(5)(a)(vi) of the Regulations should apply.
[42]
The
Applicant submitted several documents to support his claim that his father was
Madan Lal Mehta, that Madan Lal Mehta was the son of Sham Sunder Mehta, and
that Subhash Mehta was also the son of Sham Sunder Mehta. Those documents
found in the CTR released pursuant to Rules 15 and 17 of the Federal
Courts Immigration and Refugee Protection Rules, SOR/93-22, as am
SOR/98-235, ss 1-6,7 (Fr) [Rules] include:
• A
translated copy of the birth certificate of the Applicant’s daughter
identifying her father as the Applicant and her paternal grandfather as
Madan Lal Mehta, dated July 15, 2011 (CTR at p 30);
• A
copy of a police clearance certificate for the Applicant identifying his father
as Madan Lal Mehta, dated April 9, 2010 (CTR at p 95);
• A
copy of the Applicant’s Indian passport, issued March 5, 2010, identifying his
father as both Madan Lal Mehta (CTR, above at 98) and Madan Lal Mohan (CTR at p
115);
• A
copy of the Applicant’s Indian passport, issued April 28, 2005, identifying his father
as both Madan Lal Mehta (CTR, above at 122) and Madan Lal Mohan (CTR at p 134);
• A
translated copy of the marriage certificate of the Applicant and his spouse,
dated August 30, 2006, identifying the Applicant’s father as Madan Lal
Mohan (CTR at p 195);
• Affidavits
of the Applicant and his spouse stating that the Applicant is the son of Madan
Lal Mehta (CTR at pp 196 and 198);
• A
translated copy of the birth certificate of the Applicant’s son identifying his
father as the Applicant and his paternal grandfather as Madan Lal Mehta, dated
April 23, 2007 (translation, dated May 17, 2010) (CTR at p 200);
• A
translated copy of the death certificate of Madan Lal Mehta identifying his
father as Sham Sundar Mehta, dated October 25, 1990 (CTR at p 203);
• A
copy of the Applicant’s election identity card identifying his father as the Late
Madan Lal (CTR at p 204);
• A
translated copy of a salary slip of the Applicant identifying his father as
Madan Lal Mehta, dated May 5, 2010 (CTR at p 209);
• A
copy of an employer’s letter of recommendation identifying the Applicant’s
father as Madan Lal Mehta, dated June 15, 2004 (CTR at p 211);
• A
copy of a letter of appointment for the Applicant identifying the Applicant’s
father as Madan Lal Mehta, dated June 1, 2004 (CTR at p 212);
• A
copy of a letter of confirmation of employment for the Applicant identifying the
Applicant’s father as Madan Lal Mehta, dated May 27, 2010 (CTR at p 214);
• Copies
of letters advising the Applicant of salary increases and identifying the
Applicant’s father as Madan Lal Mehta, dated April 1, 2007, March 28, 2008, and
March 31, 2009 (CTR at pp 215 – 217);
• A
copy of the tax records identifying the Applicant’s father as Madan Lal Mehta
(CTR at p 222);
• A
bilingual copy of the Applicant’s Bachelor of Commerce Degree identifying the
Applicant’s father as Madan Lal Mahita, dated June 23, 1999 (CTR at p 236);
• Translated
copies of the Applicant’s academic record at Guru Nanak Dev University
identifying his father as Madan Lal Mehta, dated May 22, 1997, June 3, 1998,
June 23, 1999 (translations, dated May 17, 2010, May 21, 2010, and May 21,
2010 respectively) (CTR at pp 239, 244, and 245);
• Copies
of the Applicant’s secondary school records identifying his father as Madan Lal
Mehta, dated 1997, March 6, 1996, 1994, 1994, and June 14, 1994 (CTR at pp 246,
248, 250, 304, and 252);
• An
affidavit of Subhash Mehta identifying himself as the son of Sham Sunder Mehta
and the paternal uncle of the Applicant, dated May 25, 2010 (CTR at p 68);
• A
diagram of the Applicant’s family tree alleging that the Applicant’s father was
the brother of Subhash Mehta (CTR at p 192); and,
• A
copy of the first page of the Indian passport of Subhash Mehta, issued May 25,
2005 (CTR at p 194).
[43]
The
Application Record [AR] contains an affidavit of Cindy Sran [Sran Affidavit],
dated June 7, 2012, that purports to reproduce in Exhibit B the Response to the
CIO Letter submitted by the Applicant. The Response to the CIO Letter contains
an additional page of the Indian passport of Subhash Mehta identifying his
father as Sham Sunder Mehta (AR at p45).
[44]
The
Respondent argues that this additional page is not contained in the CTR and
that the Applicant is required to establish that he submitted the additional
page of the Indian passport of Subhash Mehta to the Officer. This Court finds
that the Applicant has established that he submitted the additional page of the
Indian passport of Subhash Mehta to the Officer in the Response to the CIO
Letter.
[45]
First,
the Sran Affidavit attaches as Exhibit B a “Letter from Gurpreet Khaira, with
the following selected enclosures ... viii. Passport copy of the Subhash
Chander Mehta (pages 44 – 45 of the Applicant’s Application Record)” (at
pp 13-14). The Letter from Gurpreet Khaira described in the Sran Affidavit
is the Response to the CIO Letter that was sent to the Officer on July 26, 2010
and is included in the CTR (at pp 328-330); the passport copy described in the
Sran Affidavit includes the additional page of the Indian passport of Subhash
Mehta. Since the Sran Affidavit describes the additional page of the Indian
passport of Subhash Mehta as an enclosure to the Response to the CIO Letter, it
follows that the Sran Affidavit does depose that the additional page of the
Indian passport of Subhash Mehta was submitted to the Officer as an enclosure
to the Response to the CIO Letter.
[46]
Second,
affiant of the Sran Affidavit does depose how she would have personal knowledge
of whether the additional passport page was submitted to the Officer. According
to the Sran Affidavit, the affiant had “reviewed the Applicant’s file” and was
“familiar with its contents” (AR at p 13). From this one can infer that
the affiant reviewed the Response to the CIO Letter submitted to the Officer
and would have personal knowledge of what was contained as an enclosure to that
document, including the additional passport page of Subhash Mehta’s Indian
passport.
[47]
Rule
12 of the Rules states that affidavits filed in connection with an
application for leave shall be confined to such evidence as the deponent could
give if testifying as a witness before the Court. In Samuel v Canada (Minister
of Citizenship and Immigration), 2010 FC 223, Justice John O’Keefe applied
Rule 12 in the context of a visa officer decision, stating that the corollary
of Rule 12 was that it incorporates “the usual common law rules of
evidence ... including the twin requirements of necessity and reliability for
the admissibility of hearsay evidence” (at para 21). The Sran Affidavit
only deposes on what was included in the Response to the CIO Letter, the
contents of which the deponent would have had personal knowledge by reviewing
the Applicant’s file. A hearsay problem does not arise with respect to the Sran
Affidavit because the affiant can be cross-examined on what was contained as an
enclosure to the Response to the CIO Letter when the affiant reviewed it.
[48]
Having
addressed this preliminary matter and before disposing of the essential
question in this application for judicial review, this Court recognizes the
following three principles.
[49]
First,
an applicant is not necessarily limited to a prescribed list of documents (i.e.
birth, marriage, and death certificates) in establishing family relationships
for the purposes of paragraph 83(1)(d) and subparagraph 83(5)(a)(vi)
of the Regulations. In Singh v Canada (Minister of Citizenship and
Immigration), 2012 FC 855, Justice O’Keefe did not accept Canadian
passports and permanent residence cards as evidence of a family
relationship because these documents did not actually state that the applicant
was related to alleged family members. In Singh, this Court was
concerned with documents that did not contain sufficient genealogical
information. It follows that certain records that give such information but are
outside in the category of birth, marriage, and death certificates may be
probative of a family relationship in certain circumstances. It must be
stressed, as the Respondent argues, that the Officer does not appear to have
limited the Applicant to a particular category of document.
[50]
Second,
an affidavit unsupported by corroborating evidence often has limited probative
value in assessing whether an applicant meets the requirements of paragraph
83(1)(d) and subparagraph 83(5)(a)(vi) of the Regulations.
In Singh, Justice O’Keefe held that affidavits from self-interested
parties may not be sufficient to show that a person is related to a person
living in Canada if the affidavits lack corroborating evidence (at para 30).
[51]
Third,
the decision of Justice Judith Snider in Canada (Minister of
Citizenship and Immigration) v Skomatchuk, 2006 FC 994 is useful in
assessing identity documents that have been translated or transliterated
from another language or script. In Skomatchuk, Justice Snider determined
that an individual was a concentration camp guard notwithstanding variations in
the spelling of his name in the record:
[102] As a general observation, I would
note that the record shows different spellings of the surname “Skomatchuk”.
Even documents produced by the Defendant provide a variation on the spelling;
for example, “Skomaczuk”. I am satisfied that these differences can be
explained by the translation of the name from Cyrillic writing to either
English or German. Phonetically, “Skomatchuk”, “Skomatschuk”, “Skomachuk” and “Skomaczuk”
are identical; use of a different spelling does not necessarily indicate a
different person.
[52]
The
general corollary of Justice Snider’s comments in Skomatchuk is that
translated or transliterated identity documents ought to be assessed in
light of the fact that they have been translated or transliterated.
[53]
Applying
these principles to this application for judicial review leads to the
conclusion that the Officer was unreasonable in finding that Subhash Mehta was
not, on a balance of probabilities, the paternal uncle of the Applicant.
[54]
Even
though the Applicant’s marriage certificate identified his father as Madan Lal
Mohan and his Bachelor of Commerce Degree identified his father as Madan Lal
Mahita, several of his documents (including his police clearance record, the
birth certificates of his son and daughter, his employment records, his
school records, and his tax records) identified his father as Madan Lal Mehta. The
name of Madan Lal Mahita on the Applicant’s Bachelor of Commerce Degree can be
rationalized as a problem of transliteration since Mahita and Mehta are
phonetically similar.
[55]
The
death certificate of Madan Lal Mehta identifies the father of Madan Lal Mehta as Sham Sundar Mehta. It is more probable than not that the Madan Lal Mehta who
is the subject of this death certificate is the father of the Applicant because
the address of the deceased is stated as ES-188, Makhdoompura, Jalandhar (CTR
at p 203); this same address is stated as the address of the Applicant on other
documentation. On a balance of probabilities, Sham Sundar Mehta was the
Applicant’s grandfather.
[56]
Finally,
the Indian passport of Subhash Mehta identifies Subhash Mehta’s father as Sham Sunder
Mehta. Since this passport also states that Subhash Mehta comes from Jalandhar,
the balance of probabilities also points in the Applicant’s favor. The
spelling difference between Sham Sundar Mehta (on Madan Lal Mehta’s death
certificate) and Sham Sunder Mehta (on Subhash Mehta’s Indian passport) is
immaterial, given the problems that may arise in transliteration.
[57]
The
Officer’s conclusion did not become reasonable simply because the Applicant
stated in Schedule 3 that it was his spouse who had a relative living in
Canada. Such a conclusion might have been reasonable if the Applicant had not
provided documentary evidence establishing that Subhash Mehta was his paternal uncle
but is not supportable in the face of documentary evidence to the opposite
effect.
(2) Did procedural
fairness require the Officer to provide the Applicant an opportunity to respond?
[58]
Since
this Court has disposed of the application for judicial review on its merits,
it is not necessary to consider the question of whether procedural fairness
required the Officer to provide the Applicant an opportunity to respond.
[59]
Nonetheless,
it should be noted that, through jurisprudence of this Court, it has been established
that a decision-maker is not required to notify an applicant for a skilled
worker visa under subsection 12(2) of the IRPA that he or she has
produced insufficient documentation. In Chowdhury v Canada (Minister of
Citizenship and Immigration), 2011 FC 1315, Justice James Russell held that
procedural fairness did not require an immigration officer give an applicant an
opportunity to address concerns about an alleged family relationship if the
concerns “arose directly from the documentation, or lack thereof, submitted by the
[a]pplicant” (at para 45). Citing Oladipo v Canada (Minister of
Citizenship and Immigration), 2008 FC 366, Justice Russell reasoned that
the applicant had the onus of preparing and filing an application with
relevant, sufficient, and credible supporting documentation.
X. Conclusion
[60]
For
all of the above reasons, the Applicant’s application for judicial review is granted
and the matter is returned for determination anew (de novo) before
another Immigration Officer.
JUDGMENT
THIS
COURT ORDERS that the Applicant’s application for
judicial review be granted and the matter be returned for determination anew (de
novo) before another Immigration Officer. No question of general importance
for certification.
“Michel M.J. Shore”
ANNEX “A”
Relevant legislative provisions of
the Immigration and Refugee Protection Act, SC 2001, c 27:
|
12. …
(2) A foreign
national may be selected as a member of the economic class on the basis of
their ability to become economically established in Canada.
|
12. [...]
(2) La sélection des étrangers
de la catégorie « immigration économique » se fait en fonction de leur
capacité à réussir leur établissement économique au Canada.
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Relevant legislative provisions of
the Immigration and Refugee Protection Regulations, SOR/2002-227:
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75. …
(2) A foreign national is a
skilled worker if
(a) within
the 10 years preceding the date of their application for a permanent resident
visa, they have at least one year of continuous full-time employment
experience, as described in subsection 80(7), or the equivalent in continuous
part-time employment in one or more occupations, other than a restricted
occupation, that are listed in Skill Type 0 Management Occupations or Skill
Level A or B of the National Occupational Classification matrix;
(b) during that period
of employment they performed the actions described in the lead statement for
the occupation as set out in the occupational descriptions of the National
Occupational Classification; and
(c) during that period
of employment they performed a substantial number of the main duties of the
occupation as set out in the occupational descriptions of the National
Occupational Classification, including all of the essential duties.
76. (1) For the
purpose of determining whether a skilled worker, as a member of the federal
skilled worker class, will be able to become economically established in
Canada, they must be assessed on the basis of the following criteria:
(a) the skilled worker
must be awarded not less than the minimum number of required points referred
to in subsection (2) on the basis of the following factors, namely,
(i) education, in accordance
with section 78,
(ii) proficiency in the
official languages of Canada, in accordance with section 79,
(iii) experience, in accordance
with section 80,
(iv) age, in accordance with
section 81,
(v) arranged employment, in
accordance with section 82, and
(vi) adaptability, in
accordance with section 83; and
(b) the skilled worker
must
(i) have in the form of
transferable and available funds, unencumbered by debts or other obligations,
an amount equal to half the minimum necessary income applicable in respect of
the group of persons consisting of the skilled worker and their family
members, or
(ii) be awarded the number of
points referred to in subsection 82(2) for arranged employment in Canada within the meaning of subsection 82(1).
(2) The Minister shall fix and
make available to the public the minimum number of points required of a
skilled worker, on the basis of
(a) the number of
applications by skilled workers as members of the federal skilled worker
class currently being processed;
(b) the number of
skilled workers projected to become permanent residents according to the
report to Parliament referred to in section 94 of the Act; and
(c) the potential, taking into
account economic and other relevant factors, for the establishment of skilled
workers in Canada.
83. (1) A maximum
of 10 points for adaptability shall be awarded to a skilled worker on the
basis of any combination of the following elements:
(a) for the educational
credentials of the skilled worker's accompanying spouse or accompanying
common-law partner, 3, 4 or 5 points determined in accordance with subsection
(2);
(b) for any previous
period of study in Canada by the skilled worker or the skilled worker's
spouse or common-law partner, 5 points;
(c) for any previous
period of work in Canada by the skilled worker or the skilled worker's spouse
or common-law partner, 5 points;
(d) for being related to
a person living in Canada who is described in subsection (5), 5 points; and
(e) for being awarded
points for arranged employment in Canada under subsection 82(2), 5 po1ints.
…
(5) For the purposes of
paragraph (1)(d), a skilled worker shall be awarded 5 points if
(a) the skilled worker
or the skilled worker's accompanying spouse or accompanying common-law
partner is related by blood, marriage, common-law partnership or adoption to
a person who is a Canadian citizen or permanent resident living in Canada and
who is
(i) their father or mother,
(ii) the father or mother of
their father or mother,
(iii) their child,
(iv) a child of their child,
(v) a child of their father or
mother,
(vi) a child of the father or
mother of their father or mother, other than their father or mother, or
(vii) a child of the child of
their father or mother; or
(b) the skilled worker
has a spouse or common-law partner who is not accompanying the skilled worker
and is a Canadian citizen or permanent resident living in Canada.
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75. [...]
(2) Est un travailleur qualifié
l’étranger qui satisfait aux exigences suivantes :
a) il a accumulé au moins une
année continue d’expérience de travail à temps plein au sens du paragraphe
80(7), ou l’équivalent s’il travaille à temps partiel de façon continue, au
cours des dix années qui ont précédé la date de présentation de la demande de
visa de résident permanent, dans au moins une des professions appartenant aux
genre de compétence 0 Gestion ou niveaux de compétences A ou B de la matrice
de la Classification nationale des professions — exception faite des
professions d’accès limité;
b) pendant cetde période
d’emploi, il a accompli l’ensemble des tâches figurant dans l’énoncé
principal établi pour la profession dans les descriptions des professions de
cette classification;
c) pendant cette période
d’emploi, il a exercé une partie appréciable des fonctions principales de la
profession figurant dans les descriptions des professions de cette
classification, notamment toutes les fonctions essentielles.
76. (1) Les
critères ci-après indiquent que le travailleur qualifié peut réussir son
établissement économique au Canada à titre de membre de la catégorie des
travailleurs qualifiés (fédéral) :
a) le travailleur qualifié
accumule le nombre minimum de points visé au paragraphe (2), au titre des
facteurs suivants :
(i) les études, aux termes de
l’article 78,
(ii) la compétence dans les
langues officielles du Canada, aux termes de l’article 79,
(iii) l’expérience, aux termes
de l’article 80,
(iv) l’âge, aux termes de
l’article 81,
(v) l’exercice d’un emploi
réservé, aux termes de l’article 82,
(vi) la capacité d’adaptation,
aux termes de l’article 83;
b) le travailleur qualifié :
(i) soit dispose de fonds
transférables — non grevés de dettes ou d’autres obligations financières —
d’un montant égal à la moitié du revenu vital minimum qui lui permettrait de
subvenir à ses propres besoins et à ceux des membres de sa famille,
(ii) soit s’est vu attribuer le
nombre de points prévu au paragraphe 82(2) pour un emploi réservé au Canada
au sens du paragraphe 82(1).
(2) Le ministre établit le
nombre minimum de points que doit obtenir le travailleur qualifié en se
fondant sur les éléments ci-après et en informe le public :
a) le nombre de demandes, au
titre de la catégorie des travailleurs qualifiés (fédéral), déjà en cours de
traitement;
b) le nombre de travailleurs
qualifiés qui devraient devenir résidents permanents selon le rapport
présenté au Parlement conformément à l’article 94 de la Loi;
c) les perspectives
d’établissement des travailleurs qualifiés au Canada, compte tenu des
facteurs économiques et autres facteurs pertinents.
83. (1) Un maximum
de 10 points d’appréciation sont attribués au travailleur qualifié au titre
de la capacité d’adaptation pour toute combinaison des éléments ci-après,
selon le nombre indiqué :
a) pour les diplômes de l’époux
ou du conjoint de fait, 3, 4 ou 5 points conformément au paragraphe (2);
b) pour des études antérieures
faites par le travailleur qualifié ou son époux ou conjoint de fait au
Canada, 5 points;
c) pour du travail antérieur
effectué par le travailleur qualifié ou son époux ou conjoint de fait au
Canada, 5 points;
d) pour la présence au Canada de
l’une ou l’autre des personnes visées au paragraphe (5), 5 points;
e) pour avoir obtenu des points
pour un emploi réservé au Canada en vertu du paragraphe 82(2), 5 points.
[...]
(5) Pour l’application de
l’alinéa (1)d), le travailleur qualifié obtient 5 points dans les cas
suivants :
a) l’une des personnes ci-après
qui est un citoyen canadien ou un résident permanent et qui vit au Canada lui
est unie par les liens du sang ou de l’adoption ou par mariage ou union de
fait ou, dans le cas où il l’accompagne, est ainsi unie à son époux ou conjoint
de fait :
(i) l’un de leurs parents,
(ii) l’un des parents de leurs
parents,
(iii) leur enfant,
(iv) un enfant de leur enfant,
(v) un enfant de l’un de leurs
parents,
(vi) un enfant de l’un des
parents de l’un de leurs parents, autre que l’un de leurs parents,
(vii) un enfant de l’enfant de
l’un de leurs parents;
b) son époux ou conjoint de fait
ne l’accompagne pas et est citoyen canadien ou un résident permanent qui vit
au Canada.
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