Date: 20090730
Docket: IMM-19-09
Citation: 2009 FC 786
Ottawa, Ontario, July 30, 2009
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
Vivek
Kumar SHARMA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr.
Vivek Kumar Sharma and his family, citizens of India, wish to come to Canada as permanent residents. They applied under
the skilled worker category. In a letter decision dated September 30, 2008, the
Second Secretary, Immigration (the Visa Officer) advised Mr. Sharma that their
application was rejected on the basis that Mr. Sharma and his wife had been
assessed insufficient points to qualify for permanent residence. They received
65 points; 67 points were needed. Of particular relevance to this application
for judicial review, the Visa Officer did not award points for Ms. Sharma’s
education because she “did not provide satisfactory evidence that she had been
awarded a Bachelor’s degree”. Such evidence, it appears, would have resulted in
additional points that would be enough for a successful application.
[2]
Mr.
Sharma did not seek judicial review of that decision.
[3]
Subsequently,
by letter dated October 16, 2008 (and a further letter dated November 12, 2008,
Mr. Sharma’s immigration consultant requested that the Immigration Officer
reconsider his decision on the grounds that Ms. Sharma did indeed hold a degree
and that the Officer breached the rules of procedural fairness by not bringing
the insufficiency in the application to the attention of the Applicants to give
him an opportunity to supplement the inadequate record. In a letter dated
October 29, 2008, the Immigration Officer advised as follows:
Your
application for permanent residence in Canada was considered on its substantive merits
and was refused. You were provided with the decision containing the reasons for
refusal by letter addressed to you dated 30 September 2008, thereby fully
concluding your application.
Should
you have different or additional information you would like us to consider, you
may wish to submit a new application for permanent residence in Canada.
[4]
The
Applicant seeks judicial review of the decision dated October 29, 2008.
[5]
In
the recent decision, Kurukkal v. Canada (Minister of
Citizenship and Immigration), 2009 FC 695, Justice Anne Mactavish allowed a
judicial review of a decision of an immigration officer in circumstances
similar to those before me. The officer had refused to consider new evidence in
the context of an application for permanent residence from within Canada made on humanitarian
and compassionate (H&C) grounds. The officer declined to consider the new
evidence on the basis that he was functus officio once his decision on
the H&C application had been made. Justice Mactavish concluded (at
paragraph 75) that:
[T]he
doctrine of functus officio does not apply to the informal,
non-adjudicative decision-making process involved in the determination of
H&C applications. As a consequence, I find that the immigration officer
erred in refusing to consider the death certificate provided by Mr. Kurukkal in
this case, and the application for judicial review is allowed.
[6]
Justice
Mactavish considered the issue important enough to certify a question. Thus, if
an appeal is filed, there may be a Court of Appeal view on this question of functus
officio in the context of permanent resident applications, whether made
under s. 25 of Immigration
and Refugee Protection Act,
S.C. 2001, c. 27 (IRPA) or otherwise. However, for now, the law is as
stated by Justice Mactavish and as a matter of judicial comity, I will follow
her ruling. Accordingly, it appears that there are grounds to overturn the
decision of the Visa Officer in the case before me.
[7]
Nevertheless,
I ask myself whether there is any practical purpose served in sending this
particular matter back to this or another visa officer. I think that the answer
to this question is “no”. If I quash the October 29, 2008 decision, I will
return the matter to a different visa officer for the sole purpose of
determining whether there was a breach of natural justice by the failure of the
Visa Officer to disclose the lack of documentation to the Applicant and give
him an opportunity to provide further evidence. In the context of this
application for judicial review and on this particular record, the question of
whether a breach of natural justice is one that can be addressed by the Court.
[8]
Turning
my mind to this question of a breach of procedural fairness, I note that the
onus rests on the Applicant to provide adequate and sufficient evidence to
support his application. A visa officer is under no duty to clarify a deficient
application (see, for example, Fernandez v. Canada
(Minister of Citizenship and Immigration), [1999]
F.C.J. No. 994 (QL); Lam v. Canada
(Minister of Citizenship and Immigration) (1998), 152 F.T.R. 316
(F.C.T.D.) at para. 4). The imposition of such a requirement would be akin to
requiring the visa officer to give advance notice of a negative decision, an
obligation that Justice Rothstein (as he then was) expressly rejected in Ahmed
v. Canada (Minister of
Citizenship and Immigration), [1997] F.C.J. No. 940
(QL).
[9]
With
the original application, submitted in 2002, the Applicant stated that his wife
had 14 years of education and a B.A. degree. In an e-mail dated April 11, 2008,
the Applicant was advised that further documentation was required to continue
the assessment of his application. Under the heading “Spouse/Common-law
Partner”, the Applicant was told that “you must provide certified documents to
support your spouse’s education, work or study”. This passage of the e-mail was
bolded, presumably for emphasis. No further documents related to his wife’s
education were provided.
[10]
In
the notes prepared prior to the decision, the Visa Officer noted the following:
Spouse/Partner
education: 0 points. PA states that his spouse has a B.A., but has not provided
proof of this on the application. Marks cards for B.A. 1 and B.A. 2 are
provided; no B.A. 3 nor copy of a provisional or final degree certificate. On
her Schedule 1, spouse indicates that she has completed matriculation, higher
secondary, and then 2 years of a B.A. program. I am not satisfied that she has
been awarded a B.A. degree, and I therefore award no points for adaptability.
[11]
On
this record, it is my view that the April 11 communication provided adequate
notice that further documentation on his wife’s education was required. The
letter provided an additional opportunity for the Applicant to meet his burden.
There was no further obligation on the Visa Officer to direct the Applicant on
exactly what would provide the necessary evidence of his wife’s education. In
short, the officer was not in breach of his duty of procedural fairness.
[12]
The
Applicant notes that he received a fairness letter from an immigration officer
related to his employment history. The Applicant asserts that the officer
should similarly have advised him of the insufficiency of the evidence of his
wife’s education. The two situations are markedly different. With respect to
the Applicant’s employment history, the official had a concern that the
Applicant may have misrepresented his employment history. The purpose of the
letter was to direct the Applicant’s attention to the possible
misrepresentation that could have led to inadmissibility under s. 40(2)(a)
of IRPA. There is an obligation on a visa officer, in such a case, to inform
the Applicant of the possible breach of s. 40(2)(a) of IRPA and to give him an
opportunity to respond to the concerns. This obligation does not extend to a
duty on a visa officer to advise an applicant of every concern or shortcoming
in an application.
[13]
On
the facts of this case, I conclude that there was no breach of procedural
fairness by the Visa Officer in assessing the Applicant’s application for
permanent residence. Thus, sending this matter back to a visa officer to
determine whether there was a breach of procedural fairness is unnecessary. The
decision of the Visa Officer, dated October 29, 2008 will stand.
[14]
The
determinative finding in this case is that there was no breach of procedural
fairness by the Visa Officer. My decision does not turn on the error of the
Visa Officer not to consider the late-filed documents. Accordingly, there is no
need to certify the same question as was certified by Justice Mactavish in Kurukkal.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
the application for
judicial review is dismissed; and
2.
no question of
general importance is certified
“Judith
A. Snider”
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