Date:
20130506
Docket:
IMM-6444-12
Citation:
2013 FC 469
Ottawa, Ontario,
May 6, 2013
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
BETWEEN:
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MOHAMMAD-REZA ARYAIE
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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]
This
is an application for judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act] of a decision by an
immigration officer [the officer] at the Embassy of Canada in Warsaw, Poland
[the Embassy], wherein officer refused the applicant’s application for a
permanent resident visa as a member of the federal skilled worker class.
FACTS
[2]
The
applicant is a 32 year-old citizen of India. He applied for permanent residence
in Canada as a federal skilled worker in August 2009.
[3]
On
February 2, 2012, an officer at the Embassy sent the applicant’s representative
an email requesting the following documents be submitted within 30 days of the
date of the email:
-
certified
copies of the applicant’s bachelor’s and master’s diplomas, accompanied with a
translation;
-
original
updated police certificates from each country in which the applicant resided
for longer than 6 months; and
-
Updated
Schedule 1 and Supplementary Information Forms.
[4]
The
applicant’s representative sent a letter to the Embassy requesting an extension
of time to provide an Iranian police certificate. On February 29, 2012, the
immigration section of the Embassy responded by email that the extension
was granted. This correspondence is not in the Certified Tribunal Record [CTR].
[5]
The
Computer Assisted Immigration Processing System [CAIPS] notes indicate that
the extension was provided for two weeks.
[6]
By
letter dated March 28, 2012, the applicant’s representative sent the Embassy
notarized true copies of the applicant’s bachelor’s marks sheet and his
master’s marks sheet, as well as notarized true copies of the applicant’s
master’s degree final examination certificate and transcript. This package of
further documents is not in the CTR.
[7]
In
mid-April the applicant’s representative received the officer’s negative
decision, which was dated March 27, 2012.
[8]
The
applicant’s representative twice requested that the officer reconsider the
decision on the basis that the decision was made prior to receipt of the
further documents. The officer refused by email dated June 5, 2012. The
correspondence regarding the reconsideration requests is not in the CTR.
[9]
The
officer found the applicant obtained insufficient points to qualify for
immigration to Canada, as the minimum requirement was 67 points.
ISSUES
[10]
The
present application raises the following issues:
- Did the
officer breach the duty of procedural fairness?
- Should the
decision be set aside as a result of certain documentation being absent in
the CTR?
ARGUMENTS AND
ANALYSIS
1. Did
the officer breach the duty of procedural fairness?
[11]
On
the one hand, the applicant submits the officer failed to provide him with a
meaningful opportunity to respond to the request for further documents.
According to the applicant, no deadline for the extension was communicated to
him. The officer made the decision less than thirty days after approving the
extension.
[12]
The
applicant notes that there is no independent corroborating evidence to support
the CAIPS notes entry indicating that the applicant was granted a two week
extension. As the dispute regarding the extended deadline results from an
incomplete CTR, the applicant submits it should be held against the respondent
(Parveen v Canada (Minister of Citizenship and Immigration), [1999] FCJ
660 at para 9 [Parveen]).
[13]
Furthermore,
the applicant submits it was unfair to grant an extension, without a deadline,
and then render a negative decision without waiting a reasonable amount of time
and proceed to refuse to reconsider the decision.
[14]
The
applicant maintains that the officer’s errors were material to his application
because had he received the 25 points to which he was entitled for a master’s
degree and 17 years of full-time or full-time equivalent studies, he would have
been awarded a total of 70 points.
[15]
On
the other hand, the respondent submits that as indicated in the CAIPS notes,
the applicant requested an extension of time to provide the police certificate.
There was no mention of an extension of time to provide the education documents
requested. Moreover, the applicant had thirty days from February 2, 2012
to provide the documents requested and a two week extension of time to submit
the further documents was granted on February 29, 2012. As the decision was
made on March 27, 2012, which was beyond the two week extension granted, the
respondent submits the applicant had ample opportunity to provide the requested
information and that any procedural requirement that might have been owed to the
applicant was fully met in this case. I agree with the respondent.
[16]
The
Embassy sent the applicant’s representative an email on February 2, 2012 giving
him 30 days to provide the following specific documentation: certified copies
of the applicant’s bachelor’s and master’s diplomas (with a translation),
original updated police certificates from each country in which the applicant
had resided for longer than 6 months and certain updated forms. The letter the
applicant’s representative sent the Embassy on February 27, 2012 demonstrates
that he requested an extension, but only with respect to one of the requested
documents: an Iranian police certificate. The letter stated the following:
In regards to your letter dated February 02, 2012.
Requested Iranian Police Certificate will require more time to provide. It
would be greatly appreciate [sic] if you grant him more time.
As noted by the respondent, the
applicant’s representative did not mention in the letter that more time was
needed in order to provide the applicant’s bachelor’s and master’s diplomas.
[17]
Even
if he was not given a new deadline when the extension was granted, I fail to
understand how the officer would have breached procedural fairness in this
case. The officer rejected the applicant’s application on March 27, 2012, more
than three weeks after the unchanged deadline for the applicant to submit
copies of his bachelor’s and master’s diplomas had expired. Had he provided
this information within the 30 days he had been afforded, he would have received
the 25 points to which he was entitled. It is clear that even if the officer
had waited to receive the Iranian police certificate prior to making the
decision, the applicant would still not have been entitled to a sufficient
amount of points to qualify for immigration under the federal skilled worker
program because of his failure to submit the requested education documents.
[18]
As
such, the officer did not breach the duty of procedural fairness by issuing his
decision before he received the police certificate.
2. Should the
decision be set aside as a result of certain documentation being absent in the
CTR?
[19]
The
applicant maintains that an incomplete CTR can be an independent ground for
allowing an application for judicial review (Parveen, above, at para 9)
[20]
The
applicant submits the CTR is demonstrably incomplete. Most critically, it lacks
the correspondence in dispute in this case regarding the request for an
extension. Other documents the applicant states are absent from the CTR include
his initial application, the Appendix A Checklist submitted as part of the
applicant’s complete application, correspondence between the applicant and the
federal skilled worker centralized intake office and correspondence between the
applicant and the Canadian Embassy in Damascus.
[21]
The
respondent submits the absence of the correspondence regarding the applicant’s
extension request in the CTR does not give rise to a reviewable error because
it is clear the extension request was considered and this correspondence is
before the Court in the applicant’s record (Bolanos v Canada (Minister of
Citizenship and Immigration), 2011 FC 388 at para 52 [Bolanos]).
[22]
The
respondent notes that while it is not disputed that an extension of time was
granted the record before this Court does not establish that the letter dated
February 27, 2012, which is included in the applicant’s record, was ever
actually sent to the Embassy.
[23]
With
respect to the other documents the applicant claims are missing from the CTR,
the respondent submits the applicant has not shown that those documents were
material to the decision and therefore the decision cannot be quashed on the
basis that these documents are missing from the CTR (Yadav v Canada
(Minister of Citizenship and Immigration), 2010 FC 140 at para 36 [Yadav]).
[24]
In
Bolanos, above, at para 52, Justice Russell determined that the missing
documents in the CTR did not give rise to a problem, as the applicant had
reproduced the gaps in the CTR as part of her record and the record showed that
the Board had considered these documents.
[25]
Similarly,
in the present case the applicant has reproduced extension-related
correspondence between the applicant and the Embassy that is missing from the
CTR and I am persuaded, upon review of the CAIPS notes and the record as a
whole, that the Embassy did consider the extension request.
[26]
With
respect to the other documents the applicant states are missing from the CTR,
it is trite law that a failure to include documents in the CTR will not
automatically lead to the quashing of the impugned decision unless the omitted
documents were material to the decision (Yadav, above, at paras
36-37).
[27]
The
other documents the applicant states are missing from the CTR were not material
to the decision. They contained information that was background or peripheral
to the applicant’s complete application. I do not understand how the officer
would have relied on this information to come to his decision.
[28]
Therefore,
I cannot quash the decision on the basis that certain documentation is absent
from the CTR.
[29]
For
these reasons, the application for judicial review is dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
The application
for judicial review is dismissed. No questions are certified.
“Danièle
Tremblay-Lamer”
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