Date: 20080502
Docket: IMM-3320-07
Citation: 2008 FC 565
Ottawa, Ontario, May 2, 2008
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
MAZEN
HAMZEH TANTASH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of the decision of
Visa Officer Ms. Sweetman-Griffin (the Officer), dated June 19, 2007,
refusing the applicant’s
application for permanent residence in Canada under the economic skilled
workers class, on the ground that he had not submitted the requested documents,
and he was therefore not satisfied that he was admissible.
ISSUES
[2]
I
would state the sole issue arising from the arguments in the case at bar as
follows: did the Officer err by breaching a principle of natural justice or of
procedural fairness?
[3]
For
the following reasons, the application for judicial review shall be dismissed.
FACTS
[4]
The
applicant is a citizen of Jordan, born in Kuwait. He studied
in the United
States
for five years, and currently resides in the United Arab Emirates (UAE). He
made an application to immigrate to Canada as a member of the economic skilled
worker class on June 9, 2004 at the Canadian Consulate in London, England.
[5]
The
Computer Assisted Immigration Processing System (CAIPS) notes dated April 27,
2006 indicate that the applicant received the required number of points to
immigrate as a member of the economic skilled worker class. However, the
application for permanent residence was denied because the Officer was not
satisfied that the applicant was admissible due to his failure to submit police
certificates, for all countries in which the applicant had lived for longer
than six months.
[6]
A
brief chronology of the relevant events is helpful to understand the parties’
submissions and the decision under review:
a) January 17,
2007 – the Officer requested that Jordanian police certificates, as well as FBI
clearance certificates and State police certificates be provided from Washington. The
Officer gave the applicant 90 days to submit the documents.
b) March 13,
2007 – the applicant sent a letter to the Consulate with the Jordanian
certificates and requested an extension of time to submit the remaining police
certificates.
c) March 20,
2007 – the applicant sent a letter to the Consulate containing the certificates
from Washington
State, and again
requested an extension of time in which to file the FBI clearance certificate.
d) April 2, 2007
– the Officer indicated in the CAIPS notes that the deadline for filing the FBI
clearance certificate would be extended by 30 days, until May 17, 2007.
e) June 19, 2007
– the Officer refused the permanent resident application.
[7]
A
discrepancy in the parties’ accounts of the facts should be noted before
proceeding. The applicant contends that the letter dated March 13, 2007,
clearly explained that long delays in acquiring FBI clearance certificates were
due to the backlog of requests, and that a printout from the FBI website was
attached to the letter as proof that delays range between 16 and 18 weeks. The
respondent asserts that no expected date of receipt was provided in the letter.
A careful review of the file reveals that the website printouts were not
included in the list of enclosures to the March 13, 2007 letter. While all
other enclosures are contained in the tribunal record, no such printouts can be
found. Further, the printout included in the applicant’s record at pages 16 and
17 bears the date July 17, 2007, which postdates the letter by several
months.
DECISION UNDER REVIEW
[8]
The
Officer refused the application for permanent residence on June 19, 2007, on
the ground that the applicant failed to submit information required by the
Officer. Having not received any update regarding the FBI clearance
certificate, the Officer was satisfied that she had given the applicant
sufficient time to submit it. Consequently, she held that she was not satisfied
that the applicant was not criminally inadmissible.
RELEVANT LEGISLATION
[9]
Immigration
and Refugee Protection Act, 2001, c. 27.
|
Application
before entering Canada
11. (1) A foreign national
must, before entering Canada, apply to an officer for a
visa or for any other document required by the regulations. The visa or
document shall be issued if, following an examination, the officer is
satisfied that the foreign national is not inadmissible and meets the
requirements of this Act.
Obligation
— answer truthfully
16. (1) A person who makes an
application must answer truthfully all questions put to them for the purpose
of the examination and must produce a visa and all relevant evidence and
documents that the officer reasonably requires.
|
Visa
et documents
11. (1) L’étranger doit,
préalablement à son entrée au Canada, demander à l’agent les visa et autres
documents requis par règlement, lesquels sont délivrés sur preuve, à la suite
d’un contrôle, qu’il n’est pas interdit de territoire et se conforme à la
présente loi.
Obligation
du demandeur
16. (1) L’auteur d’une demande
au titre de la présente loi doit répondre véridiquement aux questions qui lui
sont posées lors du contrôle, donner les renseignements et tous éléments de
preuve pertinents et présenter les visa et documents requis.
|
ANALYSIS
Did
the Officer err by breaching a principle of natural justice or of procedural
fairness?
[10]
It
is trite law that questions of natural justice and procedural fairness will be
reviewed on a standard of correctness.
[11]
The
applicant argues that the Officer breached the principles of natural justice
and procedural fairness by refusing a request for an extension of time. It is
submitted that the 30-day extension of the delay is capricious in light of the
internet printouts which provide that FBI clearance is only processed within
five to six months. The applicant notes that the Officer made her initial
request on January 17, 2007, and based on the information in the printouts, it
would have been reasonable to expect that the clearance certificates would not
be available prior to July 2007.
[12]
In
support of his submissions, the applicant cites Ching-Chu v. Canada (Minister of
Citizenship and Immigration), 2007 FC 855, [2007] F.C.J. No. 1117. More
specifically, the applicant relies on Ching-Chu to argue that because an
extension was sought prior to the expiry of the delay, and because an
explanation for the extension was provided, that the Officer in this case
breached the principles of natural justice and procedural fairness. In the
above mentioned decision, Justice Kelen states at paragraphs 17 to 20:
[17] In support of this position,
the applicant relies on the 2000 decision of this Court in Gakar v. Canada (Minister of Citizenship and
Immigration)
(2000), 189 F.T.R. 306. In that case, Mr. Justice Teitelbaum allowed an application
for judicial review on the basis that the applicant's rights to procedural
fairness were breached when the visa officer refused his request for a 30-day
extension to file the documents requested. In his decision, Mr. Justice
Teitelbaum states at paragraphs 36 and 39:
[36] I could well
understand a refusal for an extension of time if the request was for 90 or 180
days. I cannot understand and do not understand a refusal for a 30 day
extension of time when it is the first request for an extension of time and it
has no adverse effect on the respondent. ...
[39] As I have said, and
I repeat, a visa officer must be understanding and flexible in deciding on a
request for an extension of time. To simply say no is a breach of natural
justice....
[18] What the applicant does not
address, however, are the factual differences between this situation and the
one arising in Gakar. First, in Gakar the applicant was only
given a 30-day window to collect the requested information. In this case, the
applicant was given a total of 68 days to address the visa officer's invitation
for additional information.
[19] Second, in Gakar the
applicant requested an extension within the pre-established 30-day window. In
this case, the applicant's request for additional time did not come until
December 2, 2006 and December 13, 2006, i.e., after the visa officer's deadline
and almost three months after his September 18, 2006 fairness letter inviting
further submissions.
[20] Finally, in Gakar the
applicant provided reasons as to why he was unable to satisfy the request
within the pre-determined time frame. Specifically, the applicant's letter made
clear that he was "unable to gather the necessary documents within the 30
day window." In this case, the applicant's counsel provided no reasons as
to why the extension was sought, nor any reasons why the applicant could not
satisfy the request within the original 68-day window.
[13]
The
respondent argues that no question of procedural fairness arises in this case;
rather, the Officer’s determination was based on the applicant’s failure to
provide her with the requisite information. The respondent cites subsection
16(1) of the Act in support of this assertion, as well as the policy on CIC’s
website which requires that a police certificate be presented from each country
in which an applicant has resided for over six months since the age of 18.
[14]
The
respondent submits that the Officer’s decision to reject the application over a
month after the additional 30-day delay had elapsed does not amount to a breach
of procedural fairness.
[15]
It
is my opinion that the facts of this case do not support the allegation of a
breach of procedural fairness. Despite the applicant’s claim that proof was
offered of a five to six month delay in processing FBI clearance certificates,
this is not reflected in the record. The record does not demonstrate that any
internet printout was provided to the Officer, and as such the applicant’s
assertion that reasons for the extension were provided with the request is
untenable. As in Ching-Chu, above, the applicant did not provide any
reasons as to why the extension was required, nor did he provide reasons why
the 90-day delay was insufficient.
[16]
Although
the applicant made his request for an extension within the 90-day delay, which
was not the case in Ching-Chu, his request for an extension was granted,
and not categorically rejected as in the aforementioned case. In fact, the
Officer only rejected the application after nearly 150 days had elapsed since
the date of her initial request. At no time did the applicant attempt to
provide the Officer with reasons for the lengthy wait in providing the FBI
clearance certificate, nor did he provide her with any timeframe in which he
anticipated receiving the documents. No communication was received by the
Officer following the letter dated March 20, 2006.
[17]
The
refusal resulted from the applicant’s failure to provide the Officer with the
evidence and documents that were reasonably required. Reasonable timeframes
must be respected in order to allow that applications be processed in an
expeditious manner (Ching-Chu, above at paragraphs 22 and 23).
[18]
Therefore,
it is my opinion that the Officer’s decision to refuse the application and refuse
any further extension of time is free of any breach of procedural fairness or
natural justice.
[19]
The
parties did not submit questions for certification and none arise.
JUDGMENT
THIS COURT
ORDERS that the application for
judicial review is dismissed. No question is certified.
“Michel
Beaudry”
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