Docket: IMM-1238-11
Citation: 2011 FC 1272
Ottawa, Ontario, November 7,
2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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DILIP BHAGWANDAS BHATIA
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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]
The
applicant seeks judicial review of a decision dated January 6, 2011 by the
Federal Skilled Worker Centralized Intake Office (FSWCIO) of the respondent
Minister which refused his application for permanent residency in the Federal
Skilled Workers (FSW) category. For the reasons that follow, the application
is granted.
Facts
[2]
On
May 14, 2010, the applicant submitted an application for permanent residency
under the FSW category to the FSWCIO in Sydney, Nova Scotia. The application was date-stamped
received on May 14, 2010.
[3]
In a
July 30, 2010 letter, the FSWCIO informed the applicant that his application
did not conform to section 10 of the Immigration and Refugee Protection
Regulations (SOR/2002-227) (IRPR), was
incomplete, was being returned to him and had not been “received” by that
office. The letter indicated, in an attached Appendix C, those parts of the
application that were considered by the FSWCIO to be incomplete.
[4]
Two
boxes were checked in Appendix C. The first box indicated that essential
fields were not completed, the second that the Visa Office which would process
the application was not indicated.
[5]
In a
subsequent letter dated August 26, 2010, the FSWCIO also informed the applicant
that his application did not meet the June 26, 2010 ministerial instructions
nor the requirements of section10 of the IRPR because his application
was not accompanied by the results of English or French language proficiency
test.
[6]
I
pause at this point in the review of the facts to point out that no explanation
was given as to why, if on July 30, 2010, the FSWCIO advised the applicant that
his application had been returned and “not received” it wrote to the applicant
some three weeks later.
[7]
In a
January 6, 2011 letter, the FSWCIO informed the applicant that, inter alia,
his application was ineligible for processing because his intended occupation
(NOC Code 0213) no longer corresponded to the list of eligible occupations
listed in the June 26, 2010 ministerial instructions.
Issue
[8]
The
single issue in this case is whether the applicant’s application was “received”
by the FSWCIO before June 26, 2010. It was on this date the list of
occupational codes had changed. If the application was received before June 26,
2010, it would have been governed by the ministerial instructions which
prevailed at the time, not the June 26, 2010 ministerial instructions. The
occupation code which the applicant indicated in his application was on the
list of eligible occupations before June 26, 2010, but not after this date.
[9]
The
interface between the facts surrounding the receipt of the application and the
requirements of section 10(1)(c) of the IRPR is a mixed question of fact
and law, to be assessed against a standard of reasonableness. The decision
falls short of the standard.
[10]
There
is no evidence in the record which supports the conclusion reached that the
application was incomplete, nor which justified deeming it not to have been
received. All aspects of the form were completed. The fact that the applicant
offered either London or Dubai as an acceptable Visa Office, a factor
presumably to the respondent’s advantage, did not render the application
incomplete and it was unreasonable to consider it to be so. Section 10(1)(c)
of the IRPR requires that “all information be provided”. All
information was provided. None was omitted.
[11]
Notwithstanding
its letter deeming the application not to be complete the respondent continued
to treat the May 14, 2010 application as if it was in fact extant. In the
August 26, 2010 correspondence, the respondent wrote to the applicant
“referring to your application for permanent residency” and advising him that
his application (which presumably had not been received and of which no record
kept) was rejected on the basis of the fact that it was not accompanied by the
results of English or French language proficiency tests. It notes that the
occupational codes had changed as of June 26, 2010, but curiously, it does not
reject the application on that basis, but solely on the basis of absence of
language proficiency tests.
[12]
The
August 26, 2010 letter is, of course, inconsistent with the July 30, 2010
letter, but is consistent with the conclusion that the application was still
extant and was being considered as such.
[13]
On
January 9, 2011, the applicant was advised that the review of his application
for permanent residence in Canada as a Federal Skilled Worker “has been completed” and that it
was rejected on the basis that his declared occupational code no longer
corresponded to the eligible occupations.
Analysis
[14]
The
respondent sought to explain the August 26, 2010 letter by speculating that the
letter was prompted by a subsequent or intervening application. Matters such
as this cannot be the subject of speculation. If the respondent Minister
thought that a second application was made, he should have cross-examined on
the affidavit. He did not. Nor was this second phantom application averred to
in the respondent’s affidavit. What is proposed as an explanation is not a
reasonable or logical inference to be drawn from a series of known facts, but is
in the realm of pure speculation, and requires a certain measure of disbelief. The
May 14, 2010 application was considered in roughly ten weeks but on the theory advanced
by the respondent, the second application was received and considered in less
than three weeks, including the time for the transmission of letters from
Sydney, Nova
Scotia, to
Dubai and from Dubai back to Sydney.
[15]
The
Court must be governed by the record and evidence before it and will not
speculate or fill in the blanks to make a case that could otherwise have been
made on the record according to the rules of civil procedure and evidence.
Remedy
[16]
In Al
Mashtouli v Canada (Minister of Citizenship
and Immigration)
2006 FC 94, the respondent Minister, in similar but not identical
circumstances, advised the Court that if the point of law was determined
against him, the application would be processed in accordance with the
regulations that prevailed at the time. In consequence, the application was
adjourned for one year, after which it could be brought back to the Court if it
had not been resolved. No such undertaking was offered in this case. In
consequence, mandamus will issue.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
1.
The
application for judicial review is granted.
2.
An
Order of mandamus is granted directing the respondent to consider the
applicant’s application for permanent residence under the Federal Skilled
Worker program as per the ministerial directions in place as of the date the
application was received, May 14, 2010.
3.
No
question for certification arises.
"Donald
J. Rennie"
APPENDIX A
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Immigration
and Refugee Protection Regulations (SOR/2002-227)
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Règlement sur l’immigration
et la protection des réfugiés (DORS/2002-227)
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Form
and content of application
10. (1) Subject
to paragraphs 28(b) to (d), an application under these
Regulations shall
(a) be
made in writing using the form provided by the Department, if any;
(b) be signed by the applicant;
(c) include all information and documents
required by these Regulations, as well as any other evidence required by the
Act;
(d) be accompanied by evidence of payment of
the applicable fee, if any, set out in these Regulations; and
(e) if there is an accompanying spouse or
common-law partner, identify who is the principal applicant and who is the
accompanying spouse or common-law partner. Required information
(2) The application shall, unless otherwise provided
by these Regulations,
(a) contain the name, birth date, address,
nationality and immigration status of the applicant and of all family members
of the applicant, whether accompanying or not, and a statement whether the
applicant or any of the family members is the spouse, common-law partner or
conjugal partner of another person;
(b) indicate whether they are applying for a
visa, permit or authorization;
(c) indicate the class prescribed by these
Regulations for which the application is made;
(c.1) if the applicant is represented in
connection with the application, include the name, postal address and
telephone number, and fax number and electronic mail address, if any, of any
person or entity — or a person acting on its behalf — representing the
applicant;
(c.2) if the applicant is represented, for
consideration in connection with the application, by a person referred to in
any of paragraphs 91(2)(a) to (c) of the Act, include the name
of the body of which the person is a member and their membership
identification number;
(c.3) if the applicant has been advised, for
consideration in connection with the application, by a person referred to in
any of paragraphs 91(2)(a) to (c) of the Act, include the
information referred to in paragraphs (c.1) and (c.2) with
respect to that person;
(c.4) if the applicant has been advised, for
consideration in connection with the application, by an entity — or a person
acting on its behalf — referred to in subsection 91(4) of the Act, include
the information referred to in paragraph (c.1) with respect to that
entity or person; and
(d) include a declaration that the
information provided is complete and accurate.
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Forme et contenu de la demande
10. (1) Sous réserve des alinéas 28b)
à d), toute demande au titre du présent règlement :
a) est
faite par écrit sur le formulaire fourni par le ministère, le cas échéant;
b) est
signée par le demandeur;
c) comporte
les renseignements et documents exigés par le présent règlement et est
accompagnée des autres pièces justificatives exigées par la Loi;
d) est
accompagnée d’un récépissé de paiement des droits applicables prévus par le
présent règlement;
e) dans
le cas où le demandeur est accompagné d’un époux ou d’un conjoint de fait,
indique celui d’entre eux qui agit à titre de demandeur principal et celui
qui agit à titre d’époux ou de conjoint de fait accompagnant le demandeur
principal.
Renseignements à fournir
(2) La
demande comporte, sauf disposition contraire du présent règlement, les
éléments suivants :
a) les nom, date de naissance,
adresse, nationalité et statut d’immigration du demandeur et de chacun des
membres de sa famille, que ceux-ci l’accompagnent ou non, ainsi que la
mention du fait que le demandeur ou l’un ou l’autre des membres de sa famille
est l’époux, le conjoint de fait ou le partenaire conjugal d’une autre
personne;
b) la
mention
du visa, du permis ou de l’autorisation que sollicite le demandeur;
c) la
mention
de la catégorie réglementaire au titre de laquelle la demande est faite;
c.1) si le demandeur est représenté relativement à la
demande, le nom, l’adresse postale, le numéro de téléphone et, le cas
échéant, le numéro de télécopieur et l’adresse électronique de toute personne
ou entité — ou de toute personne agissant en son nom — qui le représente;
c.2) si le demandeur est représenté, moyennant rétribution,
relativement à la demande par une personne visée à l’un des
alinéas 91(2)a) à c) de la Loi, le nom de l’organisme
dont elle est membre et le numéro de membre de celle-ci;
c.3) si le demandeur a été conseillé, moyennant rétribution, relativement
à la demande par une personne visée à l’un des alinéas 91(2)a)
à c) de la Loi, les renseignements prévus aux alinéas c.1)
et c.2) à l’égard de cette personne;
c.4) si le demandeur a été conseillé, moyennant rétribution,
relativement à la demande par une entité visée au paragraphe 91(4) de la
Loi — ou une personne agissant en son nom —, les renseignements prévus à
l’alinéa c.1) à l’égard de cette entité ou personne.
d) une
déclaration attestant que les renseignements fournis sont exacts et complets.
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