Date: 20070305
Docket: IMM-4371-06
Citation: 2007
FC 248
Ottawa, Ontario,
March 5, 2007
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
ANUPAMA
AYYALASOMAYAJULA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant
submitted an application for permanent residence in the Federal Skilled Worker
Class. A visa officer rejected the application on the basis that the applicant
did not establish that she had one year of continuous full-time employment
experience, or the equivalent in part-time employment experience, within the
ten-year period preceding the date of the application. The applicant alleges a
reasonable apprehension of bias and claims that the visa officer prejudged the
matter. She also asserts that there was a breach of procedural fairness
because the visa officer did not apprise her of concerns in relation to the
application. As a result, the applicant claims to have been taken by surprise
at the interview.
[2] Despite
the articulate and capable submissions of the applicant’s counsel, the
applicant has not demonstrated the existence of a reasonable apprehension of
bias. Nor have I been persuaded that there was a breach of procedural
fairness. On the information submitted by the applicant, the visa officer’s
decision was justified. Consequently, the application for judicial review will
be dismissed.
Background
[3] The
applicant is a 31-year-old citizen of India who arrived in Canada
for the purpose of obtaining her Ph.D. at the University of Victoria. She
obtained her M.A. in English in November of 2003. The Ph.D. studies were
abandoned due to difficulties encountered with the qualifying exams. In
January of 2004, the applicant obtained a position as a manuscript developer.
She applied for and was granted a post-graduate work permit valid from June 15,
2004 until February 15, 2005. She worked as a manuscript developer from June
until September of 2004, when her employer became ill and could no longer
employ her. During this period of employment, the applicant received $60
remuneration. Her efforts to obtain new employment were unsuccessful.
[4] On
September 23, 2004, the applicant submitted her application for permanent
residence under the Federal Skilled Worker class. She relied upon work
experience in Canada and in India. Regarding the latter, she claimed to
have worked for eight months as an editor for a bi-monthly journal for school
teachers in Hyderabad, part-time over a period of two years as a post-secondary
research and teaching assistant at the Indian Institute of Technology, and
full-time as a teaching associate at the same institution for almost four
months.
[5] The
application was screened and a preliminary assessment of 73 points was
awarded. Initially, the screening officer thought that an interview was not
necessary, although additional documents were required. A letter to this
effect was sent to the applicant requesting the following additional documents:
• updated
certified true copies of letters of reference detailing her present and
previous work experience from her current employer;
• proof
of current employment in the form of W2 or T4 income statements and pay stubs.
[6] The
applicant replied that she was unemployed and could not provide these
documents. In correspondence dated December 9, 2006, the applicant was
informed that an interview was necessary. Subsequently, the interview was
scheduled for June 6, 2006. On April 18, 2006, upon the applicant’s request,
Citizenship and Immigration Canada (CIC) provided a copy of the Computer
Assisted Immigration Processing System (CAIPS) notes to the applicant. The
following entry appears for December 1, 2005:
THE ONLY DOCUMENT ON FILE ATTESTING TO
THE SUBJ’S EXP AS A MANUSCRIPT DEVELOPER IS A “JOB OFFER LETTER” FROM THE
SWITCHBOARD – TELEPHONE SERVICES OF U of VICTORIA. SUBJ IS CURRENTLY
UNEMPLOYED. INTERVIEW WARRANTED TO DETERMINE LEVEL OF EXPERIENCE.
The Decision
[7] The
applicant was interviewed on June 6, 2006. On the same day, the visa officer
rejected the application. The refusal letter stated that the applicant did not
meet the requirements for immigration to Canada because she
had failed to provide reliable documentation to demonstrate that she had “one
year paid experience in skill level 0, A or B occupation”.
The following explanation was given.
The letters of reference provided did not
clearly define your duties and responsibilities or that you received financial
compensation for your services. You stated that you never paid income tax in India. The letters of reference, therefore,
are deemed self serving evidence of your stated employment.
Statutory Provisions
[8] The
relevant statutory provisions are attached to these reasons as Schedule “A”.
Issues
[9] There
are three issues:
(1)
whether
the applicant has established a reasonable apprehension of bias;
(2)
whether
there was a breach of procedural fairness; and
(3)
whether
the decision is unreasonable.
The Applicant’s Argument
[10] The
applicant notes that there were two visa officers involved with her file. She
argues that where an administrative decision-maker has a concern regarding a
particular aspect of a file, the specific concern should be conveyed to an
applicant who should then be granted an opportunity to respond. The first visa
officer identified specific concerns regarding the applicant’s current
employment. Because this officer failed to communicate (other than through the
CAIPS), those specific concerns to the second visa officer (the
decision-maker), the applicant was taken by surprise. The second visa officer
focussed on past employment concerns and the applicant (not having been
provided notice) was not prepared for the visa officer’s questions in this
respect.
[11] Further,
according to the applicant, the visa officer prejudged the matter because the
officer had already determined that, in the absence of income tax information
or pay stubs, the application must be refused. No such requirement exists in
the legislation or CIC policy. The visa officer’s mind was closed to the
applicant’s explanations for the absence of these documents. The applicant
also contends that the visa officer’s repeated rude and disparaging remarks,
comments, mannerisms and unfair behaviour during the interview indicate bias.
[12] The
visa officer has sworn an affidavit denying the allegations and denying any
impropriety in the conduct of the interview. The officer was cross-examined on
her affidavit.
Analysis
Reasonable Apprehension of
Bias
[13] The
standard of review is not applicable to this issue. In Au v. Canada (Minister of
Citizenship and Immigration) (2001), 202 F.T.R. 57 (T.D.), Mr. Justice
Nadon, then of the Trial Division, stated:
22 The standard which will apply to determine if there
is a reasonable apprehension of bias will vary, depending on the nature, role
and function of the particular tribunal or decision-maker. Since visa officers
do not act in a judicial or quasi-judicial capacity, a test of bias similar to
the test applied to judges or decision-makers acting judicially is not, in my
view, appropriate. In my opinion, a less stringent test should be applied to
visa officers, one which requires an absence of conflict of interest and a mind
that is open to persuasion. Visa officers are expected to have examined an applicant's
file and to have conducted an investigation in order to determine if there are
any grounds under which an applicant would be inadmissible to Canada before the interview with the applicant
takes place. The purpose of the interview, which is usually conducted once the
visa officer has determined that he or she has doubts as to whether the
applicant is admissible, is for the applicant to dissipate the visa officer's
concerns and persuade him that he or she is admissible. The visa officer
represents the Minister, and therefore cannot be expected to be as impartial as
a judge should be.
23 In the case at bar, the applicant's concern is that
Officer Schultz prejudged his case. On that subject, in D.J.M. Brown & J.M.
Evans, Judicial Review of Administrative Action in Canada, vol. 2 (Toronto:
Canvasback Publishing, 1998), the learned authors make the following comments
at pages 11-39 and 11-40:
Circumstances which appear to
diverge from the proper adjudicative process by revealing an improper predisposition
to deciding the issues in dispute one way rather than another are closely
related to instances of "interest", "hostility" and
"relationships". That is, an appearance may be created, either from
certain behaviour or past circumstances, that evidence has come before the
adjudicator other than through the medium of the parties' proofs and arguments,
or that the decision-maker did not come to the hearing with an open mind. Thus,
there may be thought to have been "prejudgment," "prior knowledge,"
"prior adjudication," or "excessive interference," or that
the decision-maker may have had ex parte contacts with third persons in
relation to the matter in question. These circumstances can be loosely
characterized as creating an appearance of unfairness.
Nevertheless, decision-makers
cannot realistically be expected to approach an issue unencumbered by
attitudes, knowledge or experience that to some extent predispose them in one
direction or another. In the words of one judge, to charge adjudicators with
bias:
is not merely to say that they would be likely to decide a
particular matter in a particular way, but to say that they would do so
improperly.
Accordingly, the question typically becomes one of whether
the decision-maker exhibited such a degree of prejudgment or predisposition to
one side or to the other that it gives rise to a reasonable apprehension that
the decision-maker is or would be unresponsive to the evidence and arguments
advanced at the hearing. [footnotes omitted]
[14] In
short, a finding of reasonable apprehension of bias on the part of a
decision-maker requires something more than an allegation. The evidence before
me does not demonstrate a reasonable apprehension of bias.
[15] In
the absence of any evidence to the contrary, it must be presumed that a
decision-maker will act impartially: Zündel v. Citron, [2000] 4 F.C. 225
(C.A.) leave to appeal refused, [2000] S.C.C.A. No. 322. Even in the context
of judicial hearings, the
apprehension of bias must be reasonable and be held by reasonable and
right-minded persons applying themselves to the question and obtaining the
required information. The question is -- what would an informed person, viewing
the matter realistically and practically, having thought the matter through,
conclude? The grounds must be substantial and the test should not be related to
the very sensitive or scrupulous conscience. A real likelihood or probability
of bias must be demonstrated and mere suspicion is not sufficient: Committee
for Justice and Liberty v. Canada (National Energy Board), [1978] 1
S.C.R. 369.
[16] Given
the visa officer’s complete denial of the allegations, her reasonable responses
on cross-examination and her ultimate reasons for denying the application, the
applicant has not demonstrated that bias, or a reasonable apprehension of bias,
arose.
Breach of Procedural
Fairness
[17] Again, the standard of
review does not apply. With respect to procedural fairness, there is no duty
to inform an applicant of concerns regarding the strength of the application
and supporting materials. While there is some authority to support the
proposition that a visa officer has an obligation to inform an applicant when
extraneous material (not the situation here) has been considered in evaluating
the application for permanent residence, the fact remains that an applicant
must provide sufficient information and material to attain a positive outcome.
[18] Where a visa officer’s
concerns relate to the requirements set out in the legislation, the visa
officer is under no obligation to apprise an applicant of those concerns: Parmar
v. Canada (Minister of Citizenship and Immigration) (1997), 139
F.T.R. 203 (T.D.); Ali v. Canada (Minister of Citizenship and Immigration)
(1998), 151 F.T.R. 1 (T.D.); Shaikh v. Canada(Minister of Citizenship and
Immigration) (1998), 156 F.T.R. 136 (T.D.); Heer v. Canada (Minister of
Citizenship and Immigration) (2001), 215 F.T.R. 57 (T.D.); Nehme
v. Canada (Minister of Citizenship and Immigration) (2004), 245
F.T.R. 139 (F.C.); Ramos-Frances v. Canada (Minister of Citizenship and Immigration),
2007 FC 142, F.C.J. No. 192.
[19] In this case, the visa
officer’s concerns stemmed from a deficiency regarding the applicant’s
supporting documentation. There was no duty to put the applicant on notice.
The nature of the information was the same as that required upon the submission
of the application. The applicant knew precisely what the letters of reference
must contain. The question of the applicant’s “knowledge” is discussed in the
next section of these reasons. There was no breach of procedural fairness.
The Reasonableness of
the Decision
[20] Decisions of visa
officers with respect to applications for permanent residence under the Federal
Skilled Worker category attract a standard of review of reasonableness or
patent unreasonableness. I need not dwell on the distinction because the visa
officer’s decision meets the less deferential standard of reasonableness in any
event.
[21] The applicant’s record
includes the “appendix a” document check list submitted with her application
for permanent residence (applicant’s record, tab 22). There are specific
instructions regarding the contents of reference letters (applicant’s record,
p. 75). The applicant checked off the various requirements except those which
stated:
• your
main responsibilities in each position;
• your total annual
salary plus benefits.
[22] Thus, the applicant was
aware that her letters of reference were deficient. The visa officer concluded
that the reference letters regarding the position as an editor (tribunal
record, pp. 10, 11) and the positions as a research assistant and teaching
associate (tribunal record pp. 12-15) did not indicate the applicant’s salary
and benefits. The applicant did not produce any other evidence (beyond an oral
statement that she was paid) to establish that her employment in India was paid employment.
Consequently, the visa officer was totally justified in concluding that the
applicant failed to provide sufficient evidence of paid employment.
[23] The applicant is correct
that the visa officer could have allowed additional time to enable her to file
more comprehensive information about her work experience. However, the officer
was not obliged to do so. The visa officer’s failure to provide additional
time does not constitute reviewable error.
[24] Finally, while the
information contained in the applicant’s record reveals that the applicant may
meet the legislative requirements, that information was not provided to the
visa officer and therefore was not before the officer when the decision was
made. In Nejad v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 1810,
FC 144, at paragraphs 15 and 16, I stated:
15 Ms. Nejad's affidavit of September 25, 2006, reveals
that she is not aware of, or is confused regarding, the extent of the court's
jurisdiction in matters of judicial review. Judicial review proceedings are
narrow in scope. Their essential purpose is the review of decisions for the
purpose of assessing their legality. The reviewing court (absent exceptional
circumstances not applicable here) is bound by the record that was before the
board. Fairness to the parties and the tribunal under review dictates such a
limitation: Bekker v. Canada (2004), 323 N.R. 195 (F.C.A.). The reviewing
court must proceed on the record as it exists, confining itself to the criteria
for judicial review: Canada (Attorney General) v. McKenna, [1999] 1 F.C. 401 (C.A.).
16
Although it is evident that the noted principles apply to preclude the court,
on judicial review, from receiving evidence that was not before the
decision-maker, Mr. Justice MacKay's comments in Wood v. Canada (Attorney
General) (2001), 199 F.T.R. 133 also provide insight. At paragraph 34, he
stated:
34
[...] On judicial review, a Court can consider only evidence that was before
the administrative decision-maker whose decision is being reviewed and not new
evidence (see Brychka v. Canada (Attorney General), [1998] F.C.J. No.
124, supra; Franz v. Canada (Minister of Employment and Immigration)
(1994), 80 F.T.R. 79; Via Rail Canada Inc. v. Canada (Canadian Human Rights
Commission) (re Mills) (August 19, 1997), Court file T-1399-96,
[1997] F.C.J. No. 1089; Lemiecha v. Canada (Minister of Employment &
Immigration) (1993), 72 F.T.R. 49, 24 Imm. L.R. (2d) 95; Ismaili v. Canada (Minister of Citizenship and
Immigration), (1995) 100
F.T.R. 139, 29 Imm.L.R. (2d) 1). [...]
[25] Moreover, the inclusion
of this information in the applicant’s record demonstrates that the applicant
could (and should) have provided it in her initial application. It remains
open to the applicant to reapply in compliance with the legislative
requirements.
[26] For the foregoing
reasons, the application for judicial review will be dismissed. Counsel did
not suggest a question for certification and none arises.
ORDER
THIS COURT ORDERS THAT the application for
judicial review is dismissed.
“Carolyn
Layden-Stevenson”
SCHEDULE “A”
to
the
Reasons
for order dated March 5, 2006
in
ANUPAMA
AYYALASOMAYAJULA
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
IMM-4371-06
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Immigration and Refugee Protection Act,
S.C.
2002, 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.
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Loi sur l'immigration et la protection
des réfugiés (2001, ch. 27)
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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Immigration and Refugee Protection Regulations, SOR/2002-227
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.
(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; and
(c.1) include the name, postal address
and telephone number of any person who represents the applicant, and the
person's fax number and electronic mail address, if any;
(c.2) if the person who represents the
applicant is charging a fee for representation, include
(i) the name of the organization referred
to in the definition "authorized representative" of which the
person is a member, and
(ii) the membership identification number
issued by that organization to the person; and
(d) include a declaration that the
information provided is complete and accurate.
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Règlement sur l’immigration et la protection des réfugiés, (DORS/2002-227)
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.
(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) le nom, l’adresse postale, le numéro de téléphone et, le cas
échéant, le numéro de télécopieur et l’adresse électronique de toute personne
qui représente le demandeur;
c.2) si la personne qui représente le demandeur le fait contre
rémunération :
(i) le nom
de l’organisation visée à la définition de «représentant
autorisé» dont elle est membre,
(ii) le
numéro de membre qui lui a été délivré par l’organisation;
d) une déclaration attestant que les renseignements fournis sont
exacts et complets.
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75. (1)
For the purposes of subsection 12(2) of the Act, the federal skilled worker
class is hereby prescribed as a class of persons who are skilled workers and
who may become permanent residents on the basis of their ability to become
economically established in Canada and who intend to reside in a province
other than the Province of Quebec.
(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.
(3) If the foreign national fails to meet
the requirements of subsection (2), the application for a permanent resident
visa shall be refused and no further assessment is required.
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75. (1) Pour l’application du
paragraphe 12(2) de la Loi, la catégorie des travailleurs qualifiés (fédéral)
est une catégorie réglementaire de personnes qui peuvent devenir résidents
permanents du fait de leur capacité à réussir leur établissement économique
au Canada, qui sont des travailleurs qualifiés et qui cherchent à s’établir
dans une province autre que le Québec.
(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 cette 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.
(3) Si l’étranger ne satisfait pas aux exigences prévues au
paragraphe (2), l’agent met fin à l’examen de la demande de visa de résident
permanent et la refuse.
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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,
[...]
(iii) experience, in accordance with section 80,
[...]
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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 :
[…]
(iii) l’expérience, aux termes de
l’article 80,
[…]
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80. (1) Up to a maximum of 21 points shall be
awarded to a skilled worker for full-time work experience,
or the full-time equivalent for part-time work experience, within the 10
years preceding the date of their application, as follows:
(a) for one year of work experience, 15
points;
(b) for two years of work experience, 17
points;
(c) for three years of work experience,
19 points; and
(d) for four or more years of work
experience, 21 points.
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80. (1) Un maximum de 21 points
d’appréciation sont attribués au travailleur qualifié en fonction du nombre
d’années d’expérience de travail à temps plein, ou l’équivalent temps plein
du nombre d’années d’expérience de travail à temps partiel, au cours des dix
années qui ont précédé la date de présentation de la demande, selon la grille
suivante :
a) pour une année de travail, 15 points;
b) pour deux années de travail, 17 points;
c) pour trois années de travail, 19 points;
d) pour
quatre années de travail, 21 points.
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