Date:
20130919
Docket:
IMM-6273-12
Citation:
2013 FC 964
Ottawa, Ontario,
September 19, 2013
PRESENT: The
Honourable Mr. Justice Annis
BETWEEN:
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AMBREEN NAUMAN
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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, pursuant to section 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27, of a decision refusing the
applicant’s application for permanent residence in Canada in the Federal
Skilled Worker category.
[2]
The applicant is requesting an order of certiorari quashing
the negative decision and an order of mandamus
compelling the respondent to reconsider her application.
Background
[3]
Ms.
Nauman is a Pakistani national. She applied to immigrate as a Federal Skilled
Worker under National Occupation Code [NOC] 3142, Physiotherapist, on October
14, 2010. She provided her University of Karachi B.Sc. and M.Sc. transcripts,
her membership certification in the Pakistan Physiotherapy Society, and
documentation from the Ashfaq Memorial Hospital in Karachi indicating that she
had worked there as a Senior Physiotherapist from July 2002 to July 2009 and
listing her duties as a physiotherapist.
[4]
Her
application was provisionally approved by the Citizenship and Immigration
Canada [CIC] office in Sydney, Nova Scotia, which forwarded it to the High
Commissions in Islamabad, Pakistan and London, UK.
[5]
The
visa officer in London assessed the applicant’s experience against the NOC
description, and decided that Ms. Nauman had not adequately demonstrated that
she had the minimum of one year’s work experience in this listed occupation.
The visa officer recorded in the Computer Assisted Immigration Processing
System [CAIPS] notes that the list of duties provided matched the NOC
description of a physiotherapist’s duties almost verbatim. He also noted that
he had concerns about the authenticity of the documentation from Ashfaq Memorial Hospital, given that the salary certificate, contract, and reference letter
were in the same format although dated eight years apart, and that the
letterhead was pixelated. However, he did not send a fairness letter informing
the applicant of this concern. He denied the application. In the refusal letter,
he stated that this was because the list of duties carried out did not
demonstrate that the applicant had performed all of the essential duties and a substantial
number of the main duties of the NOC.
Issues
[6]
The
issues are:
•
Did
the visa officer deny procedural fairness in failing to provide the applicant
with an opportunity to address his concerns?
•
Did
the visa officer come to an unreasonable decision based on the documentation
before him?
Standard of
review
[7]
Where
jurisprudence has already determined the standard of review applicable to a
particular issue, the reviewing court may adopt that standard (Dunsmuir v New Brunswick,
2008 SCC 9, at paragraph 57). As noted in Patel v Canada
(MCI),
2011 FC 571 [Patel], at paras 18-19 and in Kamchibekov v Canada (MCI),
2011 FC 1411 [Kamchibekov], at paras 12-13, it has been established that
while questions of procedural fairness are reviewable on a standard of
correctness, a visa officer’s determination on eligibility under the Federal
Skilled Worker class is a question of mixed fact and law and is reviewable on a
standard of reasonableness.
Analysis
Did the visa officer
deny procedural fairness in failing to provide the applicant with an opportunity
to address his concerns?
(i) What
constitutes the decision?
[8]
There
are two preliminary issues to be considered before the analysis of the issue of
procedural fairness can be conducted. The first is what document constitutes
the impugned decision. The applicant argues that the decision provided to her
by way of letter dated May 9, 2012 is significantly different from the reasons
recorded in the CAIPS notes. The letter states only that the “main duties […]
listed do not indicate that you performed the actions described in the lead
statement of the NOC […]”.
[9]
The
notes repeat the point of the insufficiency of the description of duties, but
thereafter spell out two reasons underlying the decision: firstly, that the information
submitted was insufficient because the main duties listed on Schedule 3 and the
work experience description from the employer had been copied almost verbatim from
NOC 3142; and secondly, that the visa officer had concerns about the “authenticity”
of the documents submitted given the pixelation of letterhead and format of
documents signed by the same person eight years apart, which I would describe
as credibility factors.
[10] I
agree with the applicant that the CAIPS notes represent “the decision” for the
purposes of consideration in this application, which includes reference to both
sufficiency and credibility as factors related to its rejection. See Sanif v
Canada (MPSEP), 2010 FC 115.
(ii) What
is the content of the duty to act fairly?
[11] A
second and more complicated preliminary issue is the distinction argued by the
parties between a “sufficient” description of the applicant’s work experience
and the “authenticity”, or what I would call the credibility and reliability aspects,
of the supporting documentation provided. The answer to this question appears
to turn on the content of the duty to act fairly of the visa officer.
[12] The
respondent submits that there is no distinction in result between “sufficiency”
and “authenticity” and relies on the decision of Obeta v Canada (Citizenship and Immigration),
2012 FC 1542 [Obeta], in particular at paragraph 25 as follows:
[25]
As explained earlier, the burden of providing sufficient information rests on
the applicant, and where the Officer’s concerns arise directly from the
requirements of the Act or its Regulations, there is no duty on the Officer to
raise doubts or concerns with the applicant (Kaur v Canada (Minister of
Citizenship and Immigration), 2010 FC 442 (CanLII), 2010 FC 442 at para 11,
[2010] FCJ No 587 (QL) [Kaur]; Hassani, above, at para 24). Also, and contrary
to the applicant’s submission, there is no such absolute duty on the Officer
where the application, on its face, is void of credibility. In terms of
sufficient information, the onus will not shift on the Officer simply on the
basis that the application is “complete”. The applicant has the burden to put
together an application that is not only “complete” but relevant, convincing
and unambiguous (Singh v Canada (Minister of Citizenship and Immigration) 2012
FC 526 (CanLII), 2012 FC 526, [2012] FCJ No 548; Kamchibekov, above, at para
26). Despite the distinction that the applicant attempts to make between
sufficiency and authenticity, the fact of the matter is that a complete
application is in fact insufficient if the information it includes is
irrelevant, unconvincing or ambiguous.
[Emphasis
added]
[13] The
facts in Obeta were different
from this matter inasmuch as the applicant’s description of his work experience
would have been sufficient but for findings mentioned at paragraph 6 of the
decision that the supporting letters were determined by the visa officer to be
“not credible and fabricated for immigration purposes”, i.e. similar to not
being authentic.
[14] In
contradistinction to Obeta, I would differentiate between the situation
of rejecting information relating to its insufficiency or inadequacy, which
would also include irrelevant, unconvincing, and even ambiguous information, versus
information not considered to be credible or authentic. In the latter
circumstances, the case is really being made against the complainant. In
this the issue is infused with moral implications i.e. mendacity, fraudulent
documents etc., and is not merely about the information submitted per se.
I would think that in these latter circumstances it is incumbent on the visa officer
to advise the applicant of the concerns raised and provide an opportunity to
respond.
[15] I
recognize that the content of the duty of fairness of a visa officer is at the
lower end of the spectrum, per Canada (MCI) v Patel, 2002 FCA 55
at para 10:
As part of the duty of procedural fairness, the
content of the duty to give reasons depends on the particular decision-making
context to which the duty is being applied. The content of the duty of fairness
owed by a visa Officer when determining a visa application by an applicant in
the independent category is located towards the lower end of the range.
[Emphasis added]
[16] However,
I believe the content of the duty of fairness in circumstances of an visa officer
drawing adverse inferences relating to the applicant would be greater than the
minimal standard, i.e. not limited to ensuring that the decision was not based
on an erroneous finding of fact, made in a perverse or capricious manner or
without regard for the material before the decision-maker. In the circumstances
of a preliminary attribution of negative inferences about the applicant, I
would expand the duty to act fairly to include providing an opportunity to
respond.
[17] I
believe this to be the reasoning of my colleague, Mr. Justice Mosley, in Hassani
v Canada (MCI), 2006 FC 1283 [Hassani], at paragraphs 24 to 27, as
follows:
[24] Having
reviewed the factual context of the cases cited above, it is clear that where a
concern arises directly from the requirements of the legislation or related
regulations, a visa Officer will not be under a duty to provide an opportunity
for the applicant to address his or her concerns. Where however the issue is
not one that arises in this context, such a duty may arise. This is often the
case where the credibility, accuracy or genuine nature of information submitted
by the applicant in support of their application is the basis of the visa Officer’s
concern, as was the case in Rukmangathan, and in John [John v. Canada (Minister
of Citizenship and Immigration) (2003), 26 Imm. L.R. (3d) 221 (F.C.T.D.)] and
Cornea [Cornea v. Canada (Minister of Citizenship and Immigration) (2003), 30
Imm. L.R. (3D) 38 (F.C.)] cited by the Court in Rukmangathan, above.
[25] In
the present case, the applicant argues that the Officer erred in failing to put
her concerns to the applicant, particularly with respect to her concern that he
had no experience in “operation/admin/accounting/ mgmt”, and that he had no
English language ability.
[26] The
finding of the Officer that the applicant had failed to show that he had
experience in “operation/ admin/accounting/mgmt” and therefore did not meet the
qualification of maintenance/operations and account manager, is a finding based
directly on the requirements of the legislation and regulations. The duty was
on the applicant to demonstrate that he met the criteria of the occupation
under which he had requested his assessment. The applicant was not required to
be apprised of the Officer’s concerns in this regard with respect to the
evidence submitted.
[27] With
respect to the question of English language ability, as discussed below, the Officer
was required under the Immigration Regulations, 1978 to conduct a language
assessment of the applicant. In the present case the Officer concluded that the
applicant had no English language ability without conducting an assessment,
despite the fact that the applicant had assessed himself as being able to speak
English with difficulty and being able to read and write well. Other than
referencing the fact that the interview had to be conducted with an
interpreter, the CAIPS notes of the Officer do not reveal how or why her
conclusion that the applicant had “no English language ability” was reached.
Furthermore, the notes of the Officer make it clear that she did not apprise
the applicant of her concerns in this regard.
[18] Although
Mosley J. distinguishes between concerns arising directly from the legislation
and otherwise, I think it may also be correctly stated as applying to an
adverse inference relating personally to the applicant, which also engages the
duty to act fairly.
[19] Accordingly,
I would disagree with the submission of the respondent that there remains no
distinction between the insufficiency of information and its authenticity. I
also reject the suggestion that the legislation has somehow changed these
requirements since Hassani. I believe that the applicable content of the
duty of fairness in these matters prevents the drawing of a relevant adverse
inference relating to the attributes of an individual that disqualifies the
person from receiving a benefit without giving the person an opportunity to
respond.
(iii) Characterizing
copying an NOC description as fraudulent conduct
[20] To
further complicate matters, it would appear that there is a divergence of views
in this Court on the characterization of a visa officer’s conclusion that an
applicant has copied verbatim an NOC description in his or her application.
[21] In Kamchibekov,
cited above, Pinard J. dismissed a judicial review application as
not being unreasonable, noting at paras 19-21 that since the
applicant's application was a virtual copy of the NOC tasks, as was his
reference letter, the visa officer could not properly evaluate whether the
applicant had the requisite work experience. I believe that this reasoning
would be in harmony with Hassani and those cases
which have followed it.
[22] It is
important to note that in Kamchibekov, the Court did not treat the verbatim
repetition of the NOC tasks as an issue of credibility of the applicant
vis-à-vis the authenticity of the documentation filed. In addition, the visa officer
did not provide the applicant with an opportunity to provide further
information because a verbatim repetition of the NOC duties would not
adequately describe the applicant’s work.
[23] The Court
in Kamchibekov did not consider, or at least refer to, Patel, cited
above, which had been decided a few months earlier. In what appear to be
identical or very similar facts, the Court had found that merely copying the
NOC description was considered by the visa officer to be fraudulent, stating at
paragraph 26 as follows:
[26] However, the Officer states that her concern is that
the duties in the employment letter have been copied directly from the NOC
description and that the duties in the experience letter are identical to the
letter of employment. I agree with the principal (sic) applicant that the Officer’s
reasons are inadequate to explain why this was problematic. I find that the
implication from these concerns is that the Officer considered the experience
letter to be fraudulent.
[24] The
Court in Patel found that the visa officer concluded that copying the
NOC description was considered to be fraudulent conduct and therefore had a
duty of fairness to allow the applicant to respond. There is no
reference in Patel to the jurisprudence cited in Kamchibekov, or
for that matter Operational Bulletin 120; Federal Skilled
Worker (FSW) Applications – Procedures for Visa Offices [OB 120,
set out below] concerning the insufficiency of an application that
merely copies the work description from the NOC description, nor the discretion
of the visa officer to question an inadequate work description.
[25] Were
the facts in this decision limited to merely copying the NOC description,
without the findings regarding the authenticity of the accompanying
documentation, and were I required to choose between Patel and Kamchibekov
I would prefer the latter decision, that this only amounts to insufficiency
without implying bad faith, which also appears to conform to the extensive line
of jurisprudence cited therein.
[26] I
conclude that it is not clear, without more information, how a finding of fraud
could be made merely by her employer copying the NOC description, as opposed to
the visa officer concluding that the applicant and her employer simply did not
know or follow the instructions on completing the application. Imputing fraud
requires a higher standard of proof based upon evidence that would allow an
inference of intention or knowledge on the part of the applicant. Without more,
I think the better conclusion would be to characterize the visa officer’s
decision as merely rejecting the material for being insufficient without the
attribution of any negative mental state or motive to the applicant.
[27] Applying
this reasoning to the facts in this matter therefore, means that no adverse inference
necessarily flows out of merely copying the NOC description that would give
rise to a duty to allow the applicant an opportunity to respond to the visa officer’s
concerns.
[28] However,
this does not end the discussion on a duty to act fairly inasmuch as the visa officer’s
decision appears to rely not only upon insufficiency of the materials, but
explicit reference to the “authenticity” of the documentation and thereby the
credibility of the applicant. Thus, the facts match neither Patel nor Kamchibekov.
Moreover, the respondent’s submission that credibility issues are irrelevant
remains extant because, whether the applicant was credible or not, there are no
grounds to conclude that the information was sufficient.
(iv) Does
a duty to act fairly nevertheless arise out of the visa officer’s discretion to
seek an explanation from the applicant?
[29] I
think that the question of fairness remains in play in that an adverse
credibility finding should be considered in the context of the visa officer’s
discretion whether to question the applicant to verify that the NOC accurately
describes the applicant’s experience.
[30] In
this regard, the respondent has referred to the OB 120 as
being relevant, but not determinative, to this matter. The OB 120 states:
For SW1
(one of the 38 occupations listed in the MI), review the documents related
to work experience. These documents should include those listed in the Appendix
A document checklist of the visa office specific forms. They should include
sufficient detail to support the claim of one year of continuous work
experience or equivalent paid work experience in the occupation in the last
10 years. Documents lacking sufficient information about the employer or,
containing only vague descriptions of duties and periods of employment, should
be given less weight. Descriptions of duties taken verbatim from the NOC
should be regarded as self-serving. Presented with such documents, visa
Officers may question whether they accurately describe an applicant’s
experience. A document that lacks sufficient detail to permit eventual
verification and a credible description of the applicant’s experience is
unlikely to satisfy an officer of an applicant’s eligibility.
[Emphasis
added]
[31] The
applicant submits that the bulletin implies that the visa officer should
question applicants, but I do not share that view. I agree with the
respondent that OB 120 suggests that the visa officer may
question the applicant further, but that there is no requirement to do so. I
find only that it describes a discretion that the visa officer may exercise to
seek further information on a verbatim NOC description.
[32] However,
given the discretion, two questions relating to a duty of fairness arise:
firstly, whether there is a duty on the officer to give reasons why the applicant
was not questioned further on the issue of her document accurately describing her
experience; and secondly, even if not, does the adverse credibility finding
require that she be provided with an opportunity to respond?
A Requirement to
Provide Reasons
[33] The
applicant pointed out that persons applying under the Federal Skilled Worker
class were not directed or advised of OB 120. In light of the number of cases
where copying NOC descriptions arise, it would seem reasonable to amend the
instructions to applicants to make it clear that merely reproducing the NOC description
would normally be insufficient without further particularization of how the NOC
requirements were met.
[34] I
also think that it is reasonable that applicants would repeat the wording of
the requirements of the position. Indeed, I would be surprised if they were not
included in most responses. The real problem is the failure of an applicant to
explain sufficiently what his or her job consisted of to demonstrate
eligibility. I could imagine the applicant indicating to her employer that the
supporting letter needed to indicate that her work consisted of the elements listed
as the requirements of the NOC and that is what she got back.
[35] The
fundamental determinant in considering whether to exercise the discretion to seek
further information from the applicant would depend upon the contents of her
documents. The officer should be looking to see whether there
was other information that suggested the applicant would likely possess the
requirements for the position and whether the failure to provide sufficient
information may have been due to confusion on her or her employer’s
part
as
to the niceties of “form-filling”.
[36] In this
case, the educational documentation included in the application demonstrated
that the applicant had many years of education as a physiotherapist, including
obtaining her Masters, and was a member in good standing with the Association
of Physiotherapists. There is no issue with the authenticity of the documents
containing this information Accordingly, I would think that the
application included sufficient and probative information to raise a serious question
as to whether the applicant’s application accurately described her experience despite
failing to particularize the NOC requirements,
[37] It
should be recalled as well, that Canada needs appropriately trained skilled
workers. It is in our country’s interests to locate persons having these
qualifications and to encourage them to move to Canada. This should be another
factor to induce a visa officer to follow-up on apparent confusion in the
applicant’s documents.
[38] As
pointed out in Patel above, the duty to give reasons is highly
contextual. The Court of Appeal avoided rendering a decision on the duty by
finding that the officer provided sufficient reasons to explain why the
application was rejected. Reading between the lines from that case, I normally
would be hesitant to impose on these officers an obligation to provide reasons
why they did not exercise their discretion to seek further information from the
applicant when an application was insufficient because it merely mouthed the
requirements of the NOC. The case law cited above generally supports this
reasoning, although no case was brought to my attention that precisely dealt with
this issue.
[39] However,
I conclude that the context in this matter is such that a duty arose on the
officer to explain why he would not exercise his discretion to ensure the
applicant’s documents accurately reflected her qualifications.
[40] Were
it not for the fact that there have been a number of decisions before this Court
involving copying of NOC requirements, I would not impose a duty to provide
reasons. However, I am concerned that a practice may be forming of not
exercising a discretion to question whether the documents accurately reflect
the applicant’s qualifications, even where there is good reason, given the
overall package of documents, to think that this may well be the case.
[41] As noted above, this
issue has arisen in a number of cases, such that a caution not to merely copy
should be provided in the instructions. I conclude that it should not be
unexpected that misunderstanding and confusion may arise when an employer
merely states, without providing reasons or details, that the employee meets
the requirements of the NOC. In light of the circumstances of this case,
which suggest that the applicant does have the necessary qualifications, and in
light of the purpose of the legislation, which is to encourage qualified
persons in the designated categories to emigrate to Canada, I conclude that a
duty arose on the visa officer to give reasons why he would not make the
discretionary inquiries described in OB 120.
[42] I
emphasize however, that the duty expressed above should be very narrowly
circumscribed to its facts.
Even if no Duty
to Provide Reasons Arises, did a Duty to Respond to Credibility Findings
Nevertheless Arise?
[43] The Patel
decision also stands for the proposition that a failure in procedural fairness
will not be acted upon where the court is satisfied that the breach would not
have affected the decision. Paragraph 5 of the reasons stated as follows:
[5] A similar discretion has been exercised in
judicial review proceedings when a person's right to procedural fairness has
been breached, but the reviewing court is satisfied that the breach could
not have affected the decision: see, for example, Mobil Oil Canada Ltd. v.
Canada-Newfoundland Offshore Petroleum Board, 1994 CanLII 114 (SCC), [1994] 1
S.C.R 202, at page 228; Yassine v. Canada (Minister of Employment and
Immigration) (1994), 172 N.R. 308 (F.C.A.).
[Emphasis added]
[44] While
the application on its face may not have been sufficient to demonstrate that
the applicant had performed all of the necessary tasks required, I conclude
that the visa officer’s discretion to question whether the applicant's
documents accurately describe an applicant’s experience raises a duty of
fairness upon his attribution of adverse inferences to the applicant regarding
her credibility. The duty arises because the failure to question the applicant
on the authenticity of her documents could have affected the decision.
[45] In
recognizing that a visa officer has a discretion to seek, or not to seek, more
information from the applicant - which for the purposes of this argument, I
conclude, does not necessitate the providing of reasons - I find that once the
officer finds a lack of credibility or bad faith on the part of the applicant,
the situation changes.
[46] Implicitly,
the officer is stating that the reason he is not exercising his discretion in a
situation where there exists other information on the file that suggests the
applicant may well be qualified but may have misunderstood the requirements of
the application, is because he did not believe her because her documents were not
authentic; i.e. had fraudulently been copied to gain entry to the country.
[47] In such
circumstances, where the visa officer has specifically referred to authenticity
issues as being a factor in his decision to deny her eligibility to the Federal
Skilled Workers program and other evidence suggests that there may have been
some misunderstanding of what was required, I conclude that there is a duty of
fairness to determine whether there was any explanation for her providing
documents that raised issues of authenticity. Were a reasonable explanation
provided to the issue of the authenticity of the documents, the visa officer
would not have any reason not to seek further information regarding her
qualifications in further particulars. The further information supplied may
have resulted in the visa officer accepting her application.
Conclusion
[48] Having
failed to provide reasons for not seeking further information from the
applicant confirming no error in her application had been made, or
alternatively by not providing an opportunity to respond to his conclusions
that the applicant was not credible because she had provided inauthentic
documents, a breach of procedural fairness occurred.
[49] As a
result, the application is allowed and the decision is set aside to be heard by
a different visa officer, after providing the applicant with an opportunity to
respond to concerns about the authenticity of her documentation and to provide
more detailed information describing how her work met the requirements of the
NOC.
[50] In
light of the conclusions above, there is no necessity to address the issue of
the reasonableness of the decision.
[51] The
decision of the visa officer is quashed, and the matter will be sent back for
redetermination by another visa officer.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application is granted.
“Peter Annis”
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