Date: 20070831
Docket: IMM-4492-06
Citation: 2007 FC 877
Ottawa, Ontario, August 31,
2007
PRESENT: The Honourable Mr. Justice Blais
BETWEEN:
ALAA
SALMAN
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application
pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, S.C. 2001,
c. 27 (the Act), for
judicial review of a decision of a visa officer dated June 27, 2006, wherein
the visa officer determined that the applicant was not a member of the live-in
caregiver class and denied his application for a work permit.
BACKGROUND
[2]
Alaa K.
Salman (the applicant) is a 40-year old Iraqi citizen who applied for a work
permit under the live-in caregiver class in June 2006.
[3]
The applicant attended an interview at the Canadian Embassy
in Damascus on June 18, 2006, and his application was refused the same day, on
the ground that the visa officer was not satisfied that the applicant had
completed the equivalent of a secondary school education, as required by
section 112 of the Immigration and Refugee Protection Regulations, S.O.R./2002-227 (the Regulations).
[4]
Following this rejection, the applicant’s future employer
in Canada obtained an evaluation by
the Comparative Education Service of the University of Toronto, confirming that the program of study in which the applicant
was enrolled was the academic equivalent of the Ontario Secondary School
Diploma. This letter from the University of Toronto was then faxed to the
Embassy, and the applicant was granted a second interview on June 27, 2006,
with a different visa officer.
[5]
At the conclusion of this second interview, the applicant’s
application for a work permit was once again denied. In his letter dated June
27, 2006, the visa officer concluded that the applicant did not meet the
requirements for a work permit, as the visa officer was not satisfied that the applicant
had successfully completed secondary school or that he intended to work for the
family that had offered him a contract.
ISSUES FOR CONSIDERATION
[6]
The following issues are raised in this application for judicial
review:
1)
Did the visa officer breach the duty of procedural fairness
owed to the applicant?
2)
Did the visa officer err by concluding that the applicant
did not meet the requirements of the Regulations to be issued a work permit?
PERTINENT LEGISLATION
Immigration
and Refugee Protection Regulations, S.O.R./2002-227
|
112. A work permit shall not be issued to a foreign national
who seeks to enter Canada as a live-in caregiver unless they
(a) applied for a
work permit as a live-in caregiver before entering Canada;
(b) have
successfully completed a course of study that is equivalent to the successful
completion of secondary school in Canada;
(c) have the
following training or experience, in a field or occupation related to the
employment for which the work permit is sought, namely,
(i) successful completion
of six months of full-time training in a classroom setting, or
(ii) completion of one
year of full-time paid employment, including at least six months of
continuous employment with one employer, in such a field or occupation within
the three years immediately before the day on which they submit an
application for a work permit;
(d) have the
ability to speak, read and listen to English or French at a level sufficient
to communicate effectively in an unsupervised setting; and
(e) have an
employment contract with their future employer.
|
112. Le permis de travail ne peut être délivré à
l’étranger qui cherche à entrer au Canada au titre de la catégorie des aides
familiaux que si l’étranger se conforme aux exigences suivantes :
a) il a fait une demande de permis de travail
à titre d’aide familial avant d’entrer au Canada;
b) il a terminé avec succès des études d’un
niveau équivalent à des études secondaires terminées avec succès au Canada;
c) il a la formation ou l’expérience ci-après
dans un domaine ou une catégorie d’emploi lié au travail pour lequel le
permis de travail est demandé :
(i) une formation à temps plein de six mois en salle de classe, terminée
avec succès,
(ii) une année d’emploi rémunéré à temps plein — dont au moins six mois
d’emploi continu auprès d’un même employeur — dans ce domaine ou cette
catégorie d’emploi au cours des trois années précédant la date de présentation
de la demande de permis de travail;
d) il peut parler, lire et écouter l’anglais
ou le français suffisamment pour communiquer de façon efficace dans une
situation non supervisée;
e) il a conclu un contrat d’emploi avec son
futur employeur.
|
STANDARD OF REVIEW
[7]
It
is well established in law that decisions of visa officers are discretionary
decisions based essentially on factual assessments and as such, deference must
be shown by the Court when reviewing such decisions. As
the Federal Court of Appeal held in Jang v. Canada
(Minister of Citizenship and Immigration), 2001 FCA 312, [2001] F.C.J. No. 1575,
at paragraph 12:
An application to be
admitted to Canada as an immigrant gives rise to a discretionary decision on the part of a
visa officer, which is required to be made on the basis of specific statutory
criteria. Where that statutory discretion has been exercised in good faith and
in accordance with the principles of natural justice and where reliance has not
been placed upon considerations irrelevant or extraneous to the statutory
purpose, courts should not interfere (Maple Lodge Farms Limited v.
Government of Canada et al., [1982] 2 S.C.R. 2 at
pages 7-8; To v. Canada, [1996] F.C.J. No. 696
(F.C.A.)).
[8]
Therefore, the decision of the visa
officer on the merit of the visa application will be reviewed on a standard of
patent unreasonableness.
[9]
However, the allegations of a breach of procedural
fairness will be reviewed on a standard of correctness (Ellis-Don Ltd. v. Ontario
(Labour Relations Board), [2001] 1 S.R.C.
221 at paragraph 65). If a breach of procedural fairness is found, the decision
will be set aside (Congrégation des témoins de Jéhovah de
St-Jérôme-Lafontaine v. Lafontaine (Village), [2004] 2 S.C.R. 650 at 665).
ANALYSIS
1)
Did the visa officer breach the duty of procedural fairness owed to the
applicant?
[10]
The applicant submits that the visa officer committed a
fundamental breach of natural justice and the duty of fairness, when he
determined that the applicant had failed to provide the necessary documentation
both in his application and at the interview.
[11]
It is trite law that it is the responsibility of the visa
applicant to provide the visa officer with all necessary material in support of
the application (Madan v. Canada (Minister of Citizenship and Immigration)
(1999), 172 F.T.R. 262).
[12]
This Court has also recognized, in Hassani v. Canada (Minister of Citizenship and
Immigration), 2006 FC 1283, a duty on the part of the
visa officer to express his concerns to the applicant when the issue is one of
credibility or the genuineness of documents, and to provide the applicant with
an opportunity to respond to such concerns. I am not satisfied that this duty
was met in this case.
[13]
The applicant was granted an interview and, while there is
no transcript of this interview, the CAIPS notes indicate that the visa officer
did question the applicant on his educational credentials. Nevertheless, I am
of the opinion that the visa officer failed to consider the applicant’s
explanation for having only this document as proof of his completion of study.
[14]
The applicant explained that the Ministry of Education in Iraq does not provide transcripts. He also pointed out that the
diploma that he submitted states that he “was admitted to the Baccalaureate
Examination for the Preparatory Schools (Literature Section) in 1986-1987”…. “He/she
passed obtaining the following marks:”.
[15]
The applicant also provided a copy of an evaluation by
Comparative Education Service from the University
of Toronto, which indicates that the applicant’s high school diploma
is equivalent to an Ontario Secondary
School Diploma. Even though the officer refers to that evaluation in his CAIPS
notes, he makes no analysis or comments as to why he is rejecting that
evidence.
[16]
In my opinion, in this particular case and with the
evidence before him, the visa officer had a duty to investigate this point more
thoroughly.
[17]
In Kojouri v. Canada
(Minister of Citizenship and Immigration), 2003
FC 1389, Justice John A. O’Keefe wrote at paragraphs 18 and 19:
18 The
visa officer was concerned that two of the letters provided by the applicant
quoted directly from the duties listed in NOC 3214 (clinical perfusionist). As
a result, the visa officer decided that the documents were not credible, nor
was the applicant's training and work experience. While it is true that the
visa officer did raise some concerns about the applicant's training and
experience at the interview, he did not give the applicant an opportunity to
respond to his specific concerns about the veracity of the letters, nor did he
make further inquiries to determine whether or not the letters were valid. The
cross-examination of the visa officer established that he was not certain that
the certification stamp on the letters applied only to the translation. The
issue of the certification on the letters should have been verified.
19 I
am of the opinion that the visa officer made reviewable errors in failing to
make further inquiries and in failing to apprise the applicant of his belief
before deciding that the documents were not credible. This is consistent with
the jurisprudence in Huyen v. Canada (Minister of Citizenship and Immigration),
[2001]
F.C.J. No. 1267 (T.D.), 2001
FCT 904, where Lemieux J. stated at paragraph 5:
Moreover, the visa officer rejected documentary evidence
proving she had worked as a cook in a restaurant in Vietnam because it was not on
letterhead and was handwritten. I find that a rejection of documentary proof on
this basis, without more verification to be unreasonable.
These errors, in the circumstances of this case, constitute
a breach of the duty of fairness the visa officer owed to the applicant.
[18]
In the case at bar, rejecting the evidence at this stage
amounts to a breach of the duty of procedural fairness.
[19]
The interest of justice will be better served with a more
reasonable assessment of the evidence provided by the applicant regarding his
secondary school diploma.
[20]
Therefore, this error is sufficient to justify the
intervention of the Court.
[21]
Given my conclusion on the first issue, it will not be
necessary to address the second one.
JUDGMENT
1. The application is allowed.
2. The decision of the visa
officer is set aside and the matter is referred back for redetermination by a
different visa officer.
3. Neither counsel suggested
questions for certification.
“Pierre
Blais”
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