Date: 20110504
Docket: IMM-5860-10
Citation: 2011
FC 524
Ottawa, Ontario,
May 4, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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RAJENDRAM SUJEEVAN
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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 pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act), for judicial review of a
decision of an immigration officer (the officer), dated July 19, 2010, wherein
the officer denied the application for permanent residence as a member of the federal
skilled worker class.
[2]
The applicant requests:
1. that
the decision be set aside and remitted to a different immigration officer for
redetermination; and
2. an order of mandamus
requiring the respondent to reconsider the application in accordance with
the principles of natural justice.
Background
[3]
Rajendram
Sujeevan (the applicant) is an ethnic Tamil citizen of Sri Lanka.
[4]
In
April 2007, the applicant applied for permanent residence as a member of the
federal skilled worker class under the National Occupation Classification (NOC)
1111 – financial auditors and accountants.
[5]
In
his application, the applicant acknowledged that he would not meet the points
requirements based on the criteria of subsection 76(1) of the Act and he
requested humanitarian and compassionate (H&C) consideration under section
25 of the Act. He alleged that he fears living in Vavuniya, Sri Lanka, due to the violence
and human rights violations against Tamil youth.
[6]
The
applicant avers in his affidavit that the officer told the applicant at the
beginning of the interview that she was of Sinhalese ethnicity and that she has
information that the political problems in Sri Lanka have been
resolved.
Officer’s Decision
[7]
In
a refusal letter, the officer determined that the applicant did not meet the
requirements to become economically established in Canada under
subsection 76(1) as he received only 20 out of a possible 100 points.
[8]
The
officer was not satisfied that sufficient H&C considerations existed to
allow an exemption from the criteria of the Act. The Computer Assisted
Immigration Processing System (CAIPS) notes indicate that the officer reviewed
the applicant’s police certificate and confirmed that he had never been
arrested or detained by any government forces or other groups. The officer
noted the applicant’s receipt of a complaint at the Human Rights Commission.
However, she gave this and the police certificate little weight as the body of
these documents were not provided. The officer acknowledged the applicant’s
allegations that various groups have visited his home daily since November 2007
asking for money. However, the officer found this incredulous as the applicant
indicated his family has avoided any serious consequences for not cooperating
with these groups. The officer further noted that the applicant and his family
had not considered internal migration within Sri Lanka which would
be a viable option as both parents are working in government positions.
[9]
The
officer refused the application for permanent residence.
Issues
[10]
The
applicant submitted the following issues for consideration:
1. Did the officer
breach the principles of natural justice by making remarks in the interview and
the reasons that demonstrate a reasonable apprehension of bias against the
applicant?
2. Did the remarks of
the officer at the beginning of the interview lead to her decision that H&C
consideration do not apply to the applicant by breaching the procedural
fairness in not accepting the documentary evidence that the applicant provided
at the interview together with the prejudging of the country situation and
taking into consideration without providing the evidence on which the officer
reached a conclusion that the situation in Sri Lanka has returned to normal?
3. Did the officer
breach procedural fairness by not giving the applicant an opportunity to
address his concerns with regard to the documentary evidence that she has
relied on in prejudging the applicant’s application for immigration to Canada to be
considered on humanitarian and compassionate considerations?
4. Did the officer
breach procedural fairness by not accepting the documentary evidence that the
applicant tendered and failing to take into consideration the totality of the
evidence, which was properly before her?
5. Did the officer
breach procedural fairness by not providing the applicant adequate reasons why
the humanitarian and compassionate consideration do not apply, particularly
after refusing to consider the documentary evidence the applicant submitted and
the evidence on which she has relied in making a finding of fact that the
country situation in Sri Lanka has returned to normal?
6. Is the decision of
the officer unreasonable after she failed to observe the principles of natural
justice and breached the procedural fairness as require by the law?
[11]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the officer deny
the applicant procedural fairness?
3. Was the officer’s
decision reasonable?
Applicant’s Written Submissions
[12]
The
applicant submits that a high level of fairness was required from the officer
in this case.
[13]
According
to the applicant, remarks made by the officer at the beginning of the interview
indicated a reasonable apprehension of bias that the officer had made up her
mind on the country conditions of Sri Lanka and was not open to
assessing the application on humanitarian and compassionate grounds.
[14]
The
applicant further submits that the officer did not provide him an opportunity
to respond to her concerns, that she consulted extrinsic evidence and did not
consider the totality of the evidence before her.
[15]
Finally,
the applicant submits that the officer did not provide adequate reasons for why
the applicant did not meet the H&C considerations for exemption under
section 25 of the Act.
Respondent’s Written Submissions
[16]
The
respondent submits that the minimum standards of procedural fairness vary
depending on the context and that the duty of fairness owed by visa officers
determining applications for permanent residence is on the lower end of the
spectrum.
[17]
The
respondent submits that the officer did not breach procedural fairness. She
considered and assessed the applicant’s evidence including a receipt from the
Human Rights Commission and a police certificate. Further, the officer never
disclosed her Sinhalese ethnicity in the interview. The applicant was able to
respond to any of the officer’s concerns and present evidence.
[18]
The
respondent further submits that the reasons of the officer were also adequate. In
no way did the reasons received by the applicant prejudice his ability to seek
judicial review. Further the reasons indicate the factors considered by the
officer and that they did not represent unusual, undeserved or disproportionate
hardship.
Analysis and Decision
[19]
Issue
1
What is the
appropriate standard of review?
Where previous jurisprudence has determined
the standard of review applicable to a particular issue, the reviewing court
may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 at paragraph 57).
[20]
A visa officer’s determination of eligibility for permanent
residence under the federal skilled worker class involves findings of fact and
law and is reviewable on a standard of reasonableness (see Malik v Canada (Minister
of Citizenship and Immigration), 2009 FC 1283 at paragraph 22).
[21]
Any
issues of natural justice involving visa officers, however, are evaluated on a
correctness standard (see Khosa v Canada (Minister
of Citizenship and Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339 at
paragraph 43).
[22]
Issue 2
Did the officer deny the
applicant procedural fairness?
The Supreme
Court of Canada held in Cie pétrolière Impériale c Québec (Tribunal Administratif), [2003] 2 SCR
624 at paragraph 31) that the content of the duty of impartiality
will vary with the functions of the decision maker and the nature of the
question being decided. The Federal Court of Appeal held in Patel v Canada (Minister
of Citizenship and Immigration), 2002 FCA 55 at paragraph 10 that:
The content of the duty of
fairness owed by a visa officer when determining a visa application by an
applicant in the independent category is located towards the lower end of the
range.
This must be taken into account when
assessing the various ways the applicant submits that the officer breached his
right to procedural fairness.
[23]
First,
the applicant submits that the officer prejudged his application and exhibited
a reasonable apprehension of bias by disclosing her Sinhalese ethnicity.
[24]
The
test for a reasonable apprehension of bias, as stated by the Supreme Court, is
whether an informed
person, viewing the matter realistically and practically, would conclude that
it is more likely than not that the decision maker would not decide fairly (see
Committee for Justice and Liberty et al v National Energy Board et al,
[1978] 1 S.C.R. 369 at 394).
[25]
The
applicant has not met the test for reasonable apprehension of bias.
[26]
The
officer avers in her affidavit that at no time did she discuss her ethnicity
with the applicant or think it was relevant to his application. Further the
applicant made several statements in his affidavit which are not correct and
for this reason, I prefer the sworn evidence of the officer to that of the
applicant.
[27]
For
example, the applicant misrepresented the date of his interview. At page 11 of
the applicant’s record in his affidavit, the applicant swears that:
…my lawyers were informed that the
interview, which was scheduled to be held for me on July 14, 2010, has been
postponed to be held on July 26, 2010 […]
I attended the interview on July 26, 2010
as requested along with the documents, which I was asked to bring for the interview.
[28]
However,
the CAIPS notes, which include a date imprint for when information is recorded
that cannot be altered, indicate the applicant showed up to the High Commission
on July 12, 2010 and was interviewed on that day (see tribunal record page 6).
[29]
Further,
the applicant swears in his affidavit at page 12 of the applicant’s record
that:
The Immigration Officer did not ask me
any questions other than my education and my work experience. […] She did not
allow me or ask any question about my personal hardships to continue to live in
Vavuniya.
[30]
However,
the CAIPS notes indicate that the officer asked the applicant multiple
questions about his concerns in Sri Lanka:
Q. WHY DO YOU WANT TO GO TO CDA? I HAVE
MANY PROBS IN SL.
Q. WHO IS GIVING YOU PROBLEMS? SOME
GROUPS.
Q. WHO ARE THESE GROUPS? I DON T KNOW.
Q. HOW DO YOU KNOW ITS MORE THAN 1 GROUP?
THEY COME TO OUR HOUSES AND ASK FOR MONEY . . KEEP GUN TO MY HEAD.
Q. HOW DO YOU KNOW THAT’S ITS MORE THAN 1
GROUP? EVERY NIGHT THEY COME TO HOME AND ASK FOR MONEY.
Q. YOU ARE NOT ANSWERING MY QUESTION.
YOU TELL ME THAT SEVERAL GROUPS ASK FOR MONEY AND YOU STILL HAVE NOT TOLD ME
HOW YOU KNOW THAT ITS NOT JUST ONE GROUP? DIFFERENT PEOPLE COME AND ASK.
Q. WHEN DID THIS PROBLEM START? IN NOV
2007.
Q. ARE THESE MEN ASKING MONEY FROM YOU OR
YOUR FAMILY? FROM MY FAMILY (MY PARENTS).
Q. SO WHAT DOES YOUR FATHER DO WHEN THE
GROUPS ASK MONEY FROM HIM? HE GAVE MONEY.
Q. HOW MUCH MONEY HAS HE GIVEN IN TOTAL? 4
GOLD SOVERIGNS AND RS 30,000 IN GOLD.
Q. HOW OFTEN ARE THESE GROUPS VISITING
YOU? THEY COME IN THE NIGHT.
Q. HOW OFTEN ARE THESE GROUPS COMING?
EVERY NIGHT.
Q. SINCE NOV 2007 YOU ARE TELLING ME THAT
A GROUP COMES ASKING FOR MONEY EVERY NIGHT? YES.
Q. WHY DO THEY RETURN WHEN YOU HAVE GIVEN
THEM THE MONEY? THEY WANT MORE.
[31]
The
officer then asked 22 more questions concerning the applicant’s problems in Sri Lanka.
[32]
Consequently,
I find that the officer did not disclose her ethnicity nor rely on it while
determining the application for permanent residence, as she swears in her
affidavit.
[33]
Second,
the applicant submits that the officer did not consider the totality of the
evidence or that she considered extrinsic evidence. Yet, there is nothing to
indicate that the officer consulted extrinsic evidence during her assessment of
the application. Further, it is clear from the CAIPS notes that the officer did
consider the documentary evidence provided by the applicant. The officer
considered the applicant’s police certificate and Human Rights Commission
complaint. However, the officer gave little weight to these documents as the
applicant stated that the body of the documents was being translated and he
only provided the “receipt” from the Human Rights Commission complaint.
[34]
Third,
the applicant submits that he was not provided an opportunity to respond to the
officer’s concerns. However, even a superficial reading of the CAIPS notes
indicates that the applicant had several opportunities to address the officers
concerns. He was able to provide documentary evidence of his hardship in Sri Lanka and he was
given multiple opportunities to respond to her questions and concerns about the
groups that have been harassing the applicant and his family.
[35]
Finally,
the applicant submits that the officer did not provide adequate reasons.
[36]
The
jurisprudence is clear that the CAIPS notes explicitly form part of the reasons
for the decision (see Ziaei
v Canada (Minister of Citizenship and Immigration), 2007 FC 1169 at
paragraph 21; Toma v Canada (Minister of Citizenship and Immigration) 2006 FC 779 at
paragraph 10).
[37]
The
officer provided adequate reasons. She indicated that the applicant had not met
the required points under the Act for permanent residence as a federal skilled
worker. She further indicated in the CAIPS notes that the applicant has never
been arrested or detained, that the applicant did not provided sufficient
evidence to demonstrate that unknown groups have visited him over 1,000 times
demanding money. For these reasons, the officer concluded that sufficient
H&C considerations did not exist. These constitute adequate reasons.
[38]
I
am unable to find any instance where the officer breached the applicant’s right
to procedural fairness or natural justice.
[39]
Issue
3
Was the officer’s decision
reasonable?
The applicant clearly did not
meet the 67 points required by subsection 76(1) of the Act for permanent
residence under the federal skilled worker class. The officer assessed the
H&C considerations but she was not satisfied with the veracity of the
applicant’s allegations nor that he had provided sufficient evidence to support
his claim. Given the above assessment, this was a reasonable decision.
[40]
I
would therefore dismiss the application for judicial review.
[41]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[42]
IT IS
ORDERED that the
application for judicial review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Immigration
and Refugee Protection Act,
SC 2001,
c 27
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25. (1) The Minister must, on
request of a foreign national in Canada who is inadmissible or who does not
meet the requirements of this Act, and may, on request of a foreign national
outside Canada, examine the circumstances concerning the foreign national and
may grant the foreign national permanent resident status or an exemption from
any applicable criteria or obligations of this Act if the Minister is of the
opinion that it is justified by humanitarian and compassionate considerations
relating to the foreign national, taking into account the best interests of a
child directly affected.
. . .
72. (1) Judicial review by the
Federal Court with respect to any matter — a decision, determination or order
made, a measure taken or a question raised — under this Act is commenced by
making an application for leave to the Court.
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25. (1) Le
ministre doit, sur demande d’un étranger se trouvant au Canada qui est
interdit de territoire ou qui ne se conforme pas à la présente loi, et peut,
sur demande d’un étranger se trouvant hors du Canada, étudier le cas de cet
étranger; il peut lui octroyer le statut de résident permanent ou lever tout
ou partie des critères et obligations applicables, s’il estime que des
considérations d’ordre humanitaire relatives à l’étranger le justifient,
compte tenu de l’intérêt supérieur de l’enfant directement touché.
. . .
72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
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Immigration
and Refugee Protection Regulations,
SOR/2002-227
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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.
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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.
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