Date: 20131112
Docket: IMM-12936-12
Citation: 2013 FC 1147
Toronto, Ontario, November 12, 2013
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
|
|
DAVINDER SINGH DEOL
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
|
|
Respondent
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
Mr. Deol’s application for permanent residence
under the Manitoba Provincial Nominee Program as a skilled worker was denied on
the basis that he had misrepresented or withheld material facts relating to his
employment that could induce an error in the administration of the Immigration
and Refugee Protection Act, SC 2001, c 27, contrary to s. 40(1)(a).
[2]
Mr. Deol says that in reaching that decision,
the officer breached the duty of fairness by: (1) not granting a request for an
extension of time to respond to the fairness letter, (2) not indicating in the
fairness letter all of the facts that raised credibility concerns, and (3) not
adequately carrying out an investigation before determining that the applicant
had misrepresented or withheld material information.
[3]
In my view, the only issue requiring the Court’s
attention is the question of whether the officer’s failure to grant an
extension of time to respond to the fairness letter constituted a breach of
procedural justice. In this regard, the Court drew the parties’ attention to Kaur
v Canada (Minister of Citizenship and Immigration), 2013 FC 1023, a very
recent decision of Justice Roy wherein he found that a failure to agree to an
extension of time to respond to a fairness letter, in the facts therein,
constituted a breach of procedural fairness.
[4]
I agree with counsel for the Minister that facts
are important. Not every refusal to grant an extension of time will constitute
a breach of procedural fairness. However, the facts of this case are such that
I must conclude that the refusal did constitute such a breach.
[5]
On November 21, 2011, an officer called Mr.
Deol’s employer and also subsequently spoke to Mr. Deol. The officer noted
several discrepancies in what they told her. For reasons unexplained, no
further action was taken on the application until August 13, 2012 when a
fairness letter was sent to Mr. Deol.
[6]
The fairness letter raised four questions. Two
related to discrepancies between what the officer was told by Mr. Deol and his
employer. The third, related to Mr. Deol’s failure to file an Authorized
Representative Form for the “travel agent” who assisted him with the
application, and the last concerned deposits into his bank account that
appeared greater than his income. Mr. Deol was given 30 days to respond.
[7]
Mr. Deol, or his Canadian relatives, then
retained Canadian counsel to respond on his behalf. Counsel, on September 10,
2012, within the initial 30 day response period, filed a Use of Representative
Form and wrote seeking a 90 extension of time to respond:
Further to your [fairness
letter] we would request an additional period of 90 days to provide a
comprehensive response to the concerns set out in your letter in the interests
of procedural fairness as our office has just been retained. We have
sent out an Access to Information request to access Mr. Deol’s file and
computer notes thereto, and are currently awaiting these materials that will
assist in our review of his file. As you may know, it can take a minimum 45-60
days to receive these materials. [emphasis added]
[8]
One must conclude from the cases referred to by
the parties that it is Departmental policy not to respond to such requests,
unless, perhaps, an extension is granted. If that is the Department’s policy,
perhaps it ought to be reviewed. Common courtesy, if not fairness should
govern interactions between the Department and applicants and their counsel.
[9]
The officer in the decision under review
addresses the request for an extension of time as follows:
A
request for an extension of an additional 90 days was received by [sic]
your authorized representative; however, I do not feel that an extension to
submit documents is warranted in this case. [emphasis added]
[10]
Perhaps the officer is correct that an applicant
ought not to require more than 30 days to “submit documents” but that is not
what the fairness letter sought. The officer in the fairness letter, after
setting out the concerns wrote: “I am providing you with the opportunity to comment
on the above concern or provide any observation or explanation in
writing” [emphasis added].
[11]
Given that the officer’s concerns as recited in
the fairness letter related to what was said by Mr. Deol and his employer some
eight months earlier, and given that counsel had just been retained, it is
hardly surprising that counsel wished to see what exactly had been said to the
officer. Had the fairness letter been sent a few days after the conversation,
when memories were fresh, it may have been that a 90 day extension would have
been unnecessary – a shorter extension would have been sufficient time for recently
retained counsel to make inquiries and draft a fulsome response. I agree
entirely with the observation of Justice Roy in Kaur at para 20:
It seems to me that if fairness
commands that the applicant be advised of admittedly legitimate concerns, it
follows that a fair opportunity to respond must be given. In the particular
circumstances of this case the precipitation of the respondent remains
unexplained, as well as the fact that it did not communicate with the
applicant’s representative in due course. Efficient decision-making cannot
obviate the need to allow for representations to be made. In the particular
circumstances of this case, I believe a proper response was not given.
[12]
The failure of the officer to consent to any
extension of time was procedurally unfair in the circumstances and the decision
must be set aside.
[13]
A different officer must review the application
and in that process Mr. Deol and his counsel must be provided with an
opportunity to address the concerns previously raised and any new concerns that
arise from the new assessment.
[14]
Mr. Deol’s counsel proposed a question for
certification that focused on whether it was fair to provide a set time for
response based on the date of the fairness letter knowing that its recipient
would not receive it for some time. I agree with counsel for the Minister that
the proposed question is not one of general importance. Further, given the
basis for the disposition of this case, it would not be dispositive of an
appeal.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that the application is allowed, the decision
dated October 4, 2012 is set aside, Mr. Deol’s application for permanent
residence under the Manitoba Provincial Nominee Program as a skilled worker is
to be assessed by a different officer in accordance with these Reasons, and no
question is certified.
"Russel W. Zinn"
Email this Content