Docket:
IMM-4008-13
Citation: 2014 FC 150
Vancouver, British Columbia, February 14, 2014
PRESENT: The Honourable Mr. Justice Barnes
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BETWEEN:
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GURJIT SINGH VIRK
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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 by
Gurjit Singh Virk challenging a decision by a Visa Officer (Officer)
refusing to issue a temporary work permit. The authorization was refused on two
grounds: that Mr. Virk had failed to demonstrate that he adequately met the job
requirements of the proposed Canadian employment and that he had failed to
satisfy the Officer that he would leave Canada at the end of the two-year
authorization.
[2]
The Officer’s computer file notes provide the
following additional particulars for the decision:
(a) Mr.
Virk’s application failed to disclose a previous refusal;
(b) Mr. Virk failed to disclose the
presence in Canada of grandparents and uncles;
(c) the application contained no
evidence of relevant educational or vocational training;
(d) Mr. Virk failed to provide
satisfactory evidence of an ability to communicate in English; and
(e) Mr. Virk failed to adequately
prove his income or savings.
[3]
Mr. Gautam made strong arguments challenging
some of the Officer’s findings. He pointed out that the required application
does not seek the disclosure of extended family members and it was, therefore,
unreasonable to expect that information to be volunteered. The Officer’s
concern about the absence of satisfactory proof of Mr. Virk’s educational or
vocational qualifications was also said to be unfounded in the face of the
Service Canada Labour Market Opinion stating that no formal education was
required. It was open to the Officer to make an independent determination of
Mr. Virk’s ability to do the job, but in applying employment criteria that
exceeded the employer’s stated requirements, fairness arguably dictated that Mr.
Virk, and probably the employer, be given an opportunity to respond.
[4]
The Officer’s bare conclusion that Mr. Virk’s
declared financial circumstances were insufficiently proven is also a matter of
some concern. Mr. Virk tendered a considerable amount of information about
his income and landholdings in India. Some analysis of that evidence is
essential to understanding the basis for the adverse finding on this point and
none was provided.
[5]
Notwithstanding the above-noted problems with
the decision, they are not determinative of this application. That is so
because the Officer also found that Mr. Virk had failed to provide evidence of
his ability to communicate in English. The Labour Market Opinion clearly stated
that the position required basic oral and written English. This requirement is
hardly surprising in the context of proposed employment as an ironworker working
at various construction sites in Surrey. The Document Checklist also clearly
states that an applicant must provide “proof indicating you meet the
requirements of the job being offered.”
[6]
Mr. Virk provided nothing to the Officer to
verify his English language skills. I do not accept Mr. Gautam’s argument that
an English language application and cover letter is any evidence of language
proficiency but, even if it was, it was not unreasonable for the Officer to
require something more. I also do not accept Mr. Gautam’s argument that the
Officer had an obligation to seek out the missing evidence. Mr. Virk was
informed about the requirement and ignored it, perhaps for the reason that he
could not read the instructions. This is the type of evidence that
the Applicant is required to submit without being prompted or reminded.
There is no breach of procedural fairness in these circumstances and the
Officer’s finding that an essential aspect of the proposed employment was
missing was reasonable. To the extent that the unreported decision in Mohan
Singh v Canada (Minister of Citizenship and Immigration), IMM-852-10
suggests that a higher duty of procedural fairness is owed, I decline to follow
it. Instead, I adopt the following passage by Justice Marshall Rothstein in Qin
v Canada (Minister of Citizenship and Immigration), 2002 FCT 815 at paras
5-6, [2002] F.C.J. No. 1098:
[5] I think it
is important first to place the procedural fairness argument in context. The concern
here is with an application for a worker’s visa to work in Canada for a temporary period. There is no indication that working in Canada will be important to the Applicant in any material way, such as enhancing his career
opportunities when he returns to China. It is well accepted that the
requirements of procedural fairness will vary with the circumstances. In
cases of deportation, for example, when the consequences of a negative
decision will be disruptive to an individual, the requirements for procedural
fairness will be greater than in the case of an Applicant for a temporary
worker’s visa when there is no evidence that denying the Applicant the
opportunity for Canadian work experience will cause him hardship. In addition,
in a case of a temporary worker’s visa it is open to an Applicant to reapply
and provide a visa officer with further information that will help to
demonstrate that his intentions are indeed temporary. I recognize that the
Applicant would prefer to have his application redetermined following a
successful judicial review with directions given to the visa officer. However,
that is not a reason for raising the requirements of procedural fairness when
there is no evidence of serious consequences to the Applicant. In such cases,
the requirements for procedural fairness will be relatively minimal.
[6] Turning to the specific facts
here, the letter from the Applicant’s Chinese employer was handwritten with a
handwritten letterhead that did not specify an address or telephone number. In
the circumstances, I do not think it was unfair for the visa officer not to
make other efforts to obtain further information from the Applicant’s employer.
The list of documents supplied to the Applicant by the Canadian Embassy
requires that a Letter of Permission be on company letterhead. It would seem
obvious that the requirement for the letter to be on company letterhead is to
establish at least prima facie authenticity together with information
that would permit the visa officer to contact the employer if necessary. Where
the required information is not provided, I do not think the onus shifts to the
visa officer to pursue the matter further.
[7]
It is unnecessary to deal conclusively with the
issue of Mr. Virk’s failure to disclose his previous immigration refusal. It is
sufficient to observe that scrupulous adherence to full disclosure is always
essential. Although Mr. Virk’s previous immigration file was disclosed with his
application, it was not done with sufficient clarity that the Officer’s concern
could be said to be misplaced. Indeed, one could fairly conclude that the
Officer overlooked the oblique reference to the prior history and
only learned about the problem by other means.
[8]
For the foregoing reasons, this application is
dismissed.
[9]
Neither party proposed a certified question and
no issue of general importance arises on this record.
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