Date:
20130903
Docket:
IMM-8481-12
Citation:
2013 FC 931
Ottawa, Ontario, September 3, 2013
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
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ALI ZAHEDI
ELENA PAZIRAIE
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Applicants
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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]
Ali
Zahedi and his wife, Elena Paziraie, seek judicial review of the decision of an
immigration officer refusing Mr. Zahedi’s
application for permanent residence in Canada as a member of the Federal
Skilled Worker Class.
[2]
Mr.
Zahedi asserts that he was denied procedural fairness in the processing of his
application for permanent residence as the officer failed to provide him with
an opportunity to address the officer’s concerns as to the existence of Mr.
Zahedi’s employer and with respect to his job duties. Mr. Zahedi further
contends that the officer’s finding that he had failed to provide sufficient
evidence that he had performed the duties of a Construction Manager was unreasonable.
[3]
For the
reasons that follow, I have concluded that Mr. Zahedi was indeed denied
procedural fairness in this matter as he was never provided an opportunity to
address the concerns that arose as a result of the immigration officer’s
independent research regarding the existence of his employer. As a consequence,
the application will be granted.
Analysis
[4]
Mr.
Zahedi and his wife are citizens of Iran. Mr. Zahedi claims to be employed as a
Construction Manager with Abadi-O-Tarh-O-Tadbir Consulting Engineers Co. Ltd. (“Abadi-O-Tarh-O-Tadbir”).
[5]
Mr.
Zahedi applied for permanent residence under the Federal Skilled Worker Class
in April 2010. He applied under the National Occupational Classification [“NOC”]
0711 as Construction
Manager, providing documents in support of his application that included job
letters from his employers and Notices of Incorporation and Notices of
Resolution from the Iranian Gazette for Abadi-O-Tarh-O-Tadbir.
[6]
Mr.
Zahedi was never asked to provide any further documentation, nor was he
interviewed in connection with his application.
[7]
The
decision letter states that the refusal was based upon Mr. Zahedi’s failure to
provide sufficient evidence to show that he had performed the actions described
in the lead statement for the Construction Manager occupation, or that he had
performed all of the essential duties and a substantial number of main duties
of a Construction Manager. The officer further found that the duties described
in Mr. Zahedi’s employment letter did not match the occupational description in
the NOC.
[8]
I
agree with the respondent that there was no obligation on the immigration
officer to go back to Mr. Zahedi to seek additional information with respect to
his job duties. The onus is on a visa applicant to provide sufficient evidence to
demonstrate that he or she had fulfilled the requirements of the applicable
NOC. There is no obligation on immigration officers to make further inquiries
in order to allow a visa applicant to shore up an otherwise deficient
application: Kaur v. Canada (Minister of Citizenship and Immigration),
2010 FC 442, at paras. 9-10. The failure of the officer to do so in this case
thus did not constitute a denial of procedural fairness.
[9]
However,
as the respondent notes, the refusal letter has to be read in conjunction with
the Global Case
Management System [GCMS] notes which constitute the officer’s reasons. While it is not evident
from the refusal letter, it appears from the GCMS notes that the deficiencies in Mr. Zahedi’s documentation
was only one of the reasons for refusing his application. The officer clearly
had a second concern with respect to the application.
[10]
After
discussing the extent to which the job information provided by Mr. Zahedi met the requirements of the NOC,
the officer then went on in the GCMS notes to state “Moreover, have made a
search for [Mr.
Zahedi’s] employer on the internet … and no records were found, which I find
unusual”.
[11]
As
this Court noted in Talpur v. Canada (Minister of Citizenship and Immigration),
2012 FC 25, even if the degree of fairness owed to visa applicants is
relatively low, visa officers are required to put concerns to an applicant
where those concerns relate to the authenticity or credibility of the evidence
provided by the applicant: at para. 21.
[12]
It
is common ground that the officer never put her concerns with respect to
Abadi-O-Tarh-O-Tadbir to Mr. Zahedi in order to allow him to try to address
those concerns. This constitutes a denial of procedural fairness. Mr. Zahedi
could not reasonably have anticipated that the officer would have concerns as a
result of her inability to locate a website for his employer, and thus he could
not have pre-emptively endeavoured to address those concerns in his original
application materials: Kuhathasan v. Canada (Minister of Citizenship and Immigration),
2008 FC 457, at paras. 39-41.
[13]
The
respondent urges me to dismiss the application on the basis that the officer
had concluded that Mr. Zahedi had failed to provide sufficient evidence of his
work experience and had not demonstrated that he had performed the functions of
a Construction Manager. As a consequence, the respondent says that the
officer’s concerns arising out of the internet search were essentially
immaterial to the result.
[14]
I
do not agree.
[15]
The
officer’s concerns with respect to the existence of Mr. Zahedi’s putative
employer were sufficiently serious that they were noted in the GCMS notes. Furthermore, the
officer’s use of the word “moreover” in discussing the results of the internet
search suggests that these concerns did indeed form part of the officer’s
reasons for refusing the visa application.
[16]
The officer was clearly sceptical
about the legitimacy of Mr. Zahedi’s application in light of the fact that an
internet search did not disclose any reference to Abadi-O-Tarh-O-Tadbir. We cannot
know the extent to which that scepticism may have affected the officer’s analysis of the application as
a whole.
[17]
It
further appears from Mr. Zahedi’s affidavit that he had an explanation for the
fact that no record for the company was found through an internet search. While
there is no obligation on a visa officer to accept that explanation, Mr. Zahedi
is entitled to at least have the explanation considered.
[18]
I
also do not accept the respondent’s submission that even if there was a denial
of procedural fairness in this case, nothing is to be gained by remitting Mr.
Zahedi’s application for reassessment as it is clear that he had not
established that he met the requirements of the Construction Manager NOC.
[19]
As a general
rule, a breach of procedural fairness will void the hearing and the resulting
decision: see Cardinal v. Director of Kent Institution, [1985] 2 S.C.R.
643, [1985] S.C.J. No. 78. The Supreme Court observed in Cardinal that
the right to a fair hearing is “an independent, unqualified right which finds
its essential justification in the sense of procedural justice which any person
affected by an administrative decision is entitled to have”: at para. 23. The
Court went on in the same paragraph to observe that “[i]t is not for a court to
deny that right and sense of justice on the basis of speculation as to what the
result might have been had there been a [fair] hearing”.
[20]
There is a
limited exception to this rule. That is, a reviewing court may disregard a
breach of procedural fairness “where the demerits of the claim are such that it
would in any case be hopeless”: Mobil Oil Canada Ltd. et al. v.
Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, [1994]
S.C.J. No. 14 (QL) at para. 53. See also Yassine v. Canada (Minister of Employment and Immigration) (1994), 172 N.R. 308 at para. 9
(F.C.A.). This situation may arise where, for example, the circumstances of the
case involve a legal question which has an inevitable answer: Mobil Oil at
para. 52. This is not such a case.
Conclusion
[21]
For these
reasons, the application for judicial review is allowed. I agree with the
parties that the case does not raise a question for certification.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. This
application for judicial review is allowed, and Mr. Zahedi’s visa application is remitted to a different
immigration officer for re-determination.
“Anne
L. Mactavish
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