Date: 200090522
Docket: IMM-2270-08
Citation: 2009 FC 536
BETWEEN:
JIHAD
DOKALI MEGHARIEF
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
LUTFY
C.J.
[1] The applicant sought
permanent residence in Canada under the skilled worker category. The immigration officer was not
satisfied, absent verifiable third party documentation, that the applicant’s
statements concerning the positions he held in family-owned corporations
established that the businesses were in fact operational and that the applicant
performed the role he asserted. In my view, it was open to the immigration
officer on the material made available to her to conclude that the applicant
did not meet the requirements of s. 75(2) of the Immigration and Refugee
Protection Regulations.
[2] During the hearing in
this application for judicial review, the principal issue was whether the
immigration officer’s failure to disclose extrinsic evidence to the applicant
warranted this Court’s intervention. Some background information is required.
[3] The applicant’s
brother also sought permanent residence under the skilled worker category. The
two applications were filed simultaneously.
[4] According to counsel,
the respondent’s officials determined for administrative reasons to process the
applicant’s application from the Canadian consulate in Buffalo, New York and his brother’s from the consulate in Detroit, Michigan.
[5] Both brothers were
involved in the business of related family corporations. Their stated place of
employment in Canada was from within the same
premises in Mississauga, Ontario.
[6] On March 19, 2008,
the immigration official in Detroit wrote to her colleague in the Buffalo consulate disclosing the negative impression she formed concerning the applicant’s
brother and advising that she had refused his application for permanent
residence.
[7] The applicant’s
interview with the immigration officer took place on April 1, 2009. It is
acknowledged that at least some days prior to his interview, the applicant knew
of the refusal of his brother’s application for permanent residence.
[8] I agree that the
communication between the two immigration officers processing different files
should have been brought to the applicant’s attention prior to or during his
interview. In the circumstances of this case, however, I am satisfied that this
error is not one which justifies the intervention of the Court.
[9] First, the applicant
knew prior to his interview that his brother, with whom he was closely
associated, had received a negative decision concerning his application for
permanent residence. As both brothers were purportedly engaged in related
business activities, the applicant should have known that his own request for
permanent residence may well be in jeopardy.
[10] Second, the applicant
acknowledged during his interview that he was aware that his brother’s separate
application for a temporary work permit had also been refused some time
previously. I accept the immigration officer’s evidence on this issue.
[11] The two refusals
concerning the brother’s file should have constituted sufficient notice to the
applicant to better the documentary evidence to support his status as a skilled
worker. It is trite law that applicants have the burden of establishing the
merits of their request for permanent residence. This applicant’s burden is not
diminished because the respondent’s letter of January 28, 2008, confirming the
interview of April 1, 2008, did not request the production of any additional
documents under the heading “other”.
[12] The information in the
applicant’s affidavit evidence of March 11, 2009, concerning the refusal to
extend his work permit in November 2008 and the issuance of a new work permit
in January 2009, is of little assistance in this proceeding where the issue is
his eligibility as a skilled worker under s. 75(2) of the Regulations. This
evidence is not in the certified tribunal record and arguably should not have
been filed in this proceeding. The same is true of Exhibit 2 of his affidavit
of September 10, 2008. Exhibit 2 is his letter of October 17, 2005 for an
inter-corporate executive transferee work permit, which is other information
not placed before the immigration officer in this case.
[13] In summary, it was
wrong for the visa officer in Buffalo not to disclose to the applicant that she
had received information from her colleague in Detroit concerning the applicant’s brother. However, I am satisfied that the
applicant knew of the negative outcome of his brother’s application for a
temporary work permit and his attempt to qualify as a skilled worker. This was
sufficient, in my view, for the applicant to be better prepared for his own
interview. I endorse the immigration officer’s statement in her affidavit:
This
Applicant was highly educated, had had family members successfully complete
applications for permanent residence, and confirmed that he knew the reason why
his brother’s temporary work permit was refused. Despite these facts, he chose
not to come to his interview with documentation to support his work experience.
[14] For theses reasons,
this application for judicial review will be dismissed. As he requested, the
applicant will have five days from the date of these reasons to suggest the
certification of a serious question. The respondent may file submissions in
response within a further period of five days.
“Allan Lutfy”
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