Docket: IMM-1600-15
Citation:
2015 FC 1289
Ottawa, Ontario, November 19, 2015
PRESENT: The
Honourable Mr. Justice Annis
|
BETWEEN:
|
|
AMIR RASHID
WARAICH
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Introduction
[1]
This is an application for judicial review
pursuant to section 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA or the Act] challenging a decision by an Immigration Officer
from the Immigration and Medical Services Division of the High Commission of
Canada in London, U.K. [the Officer] refusing the Applicant’s skilled worker permanent
resident visa application. The Applicant is seeking an order setting aside the
Officer’s decision and referring the matter back for reconsideration.
[2]
For the reasons that follow, the application is
allowed.
II.
Background
[3]
The Applicant, Amir Rashid Waraich, is a citizen
of Pakistan and has resided with his family in the United Arab Emirates since
2002. On May 18, 2010, the Applicant applied for a permanent resident visa as
skilled worker under the Information Systems Manager (NOC 0231) occupation. The
Applicant’s spouse and three minor children were included in the application.
[4]
On April 5, 2012, the Applicant’s application
was refused on the basis that he was accredited a total of 63 points, which did
not meet the minimum requirement of 67 points. Due to a lack of supporting
documents, no points were awarded for the Applicant’s spouse’s education.
[5]
On April 26, 2012, the Applicant’s representative,
by way of letter, advised the Immigration and Medical Services Division of the
High Commission of Canada that a clerical error was made as the spouse’s degree
was not included with the application.
[6]
On May 4, 2012, the High Commission informed the
Applicant that he would have to reapply, as newly submitted information would
not be considered as the file was closed.
[7]
On May 17, 2012, the Applicant filed to have the
May 4, 2012 decision judicially reviewed by the Federal Court of Canada. An
Order granting leave was issued on September 20, 2012.
[8]
On September 24, 2012, the Applicant
discontinued his judicial review application following a settlement agreement.
The file was sent to another officer for redetermination and it is this
decision that is the subject of these proceedings.
III.
Impugned Decision
[9]
The Applicant’s file was reopened on October 16,
2012, but was once again refused on March 6, 2015 on the grounds that the
Applicant and his spouse were not awarded the required minimum 67 points.
[10]
On October 26, 2012, the Officer accepted the certified
copy of the Applicant’s spouse’s transcript and informed the Applicant of this
decision.
[11]
On January 29, 2014, the Officer requested that
the Applicant’s spouse’s document and diploma be sent to the Anti-Fraud Unit to
verify their authenticity, which were confirmed to be a match with the issuing
institution’s records on November 11, 2014.
[12]
On December 8, 2014, the Officer reviewed the
file and found that there was insufficient evidence regarding the Applicant’s
employment as an Information Systems Manager with Al Muheeb Computer Devices
Trading [Al Muheeb]. The Officer found the Applicant’s documentation lacking in
details regarding the company’s specific business. After performing an online
research and assessing the evidence, the Officer found it strange that a
company that employs an Information Systems Manager had no website and
concluded that Al Muheeb was likely a small computer repair and sales company.
[13]
As a result, the Officer requested that a
procedural fairness letter be sent to the Applicant allowing him 30 days to
remedy the Officer’s insufficient evidence finding. The letter was sent to the
Applicant indicated the following: “[p]lease submit any
additional evidence that you wish to have considered in support of your
employment in this capacity.”
[14]
The Applicant then submitted a new employment
reference letter from Al Muheeb listing his responsibilities, as well as new
documentation regarding his previous employment at Cool Industries from 1994 to
2002 as a computer programmer and Information Systems Manager.
[15]
The Officer awarded the Applicant 2 years’
worth of work experience for his employment at Cool Industries because the
company had a legitimate web presence and the new evidence included a job
description document and a reference letter.
[16]
The Officer found that the Applicant’s work experience
evidence at Al Muheeb continued to be insufficient as the new employment letter
was ridden with spelling and grammatical errors, and the document was of low
print quality. The Officer indicated that it was unlikely that a company that
employed an Information Systems Manager would not have its own website. The
Officer thus concluded that the Applicant had worked at this company but not as
an Information Systems Manager and awarded no points for this employment.
[17]
The Officer awarded the Applicant and his spouse
a total of 66 points, assigned as follows: 10 points for age, 17 points for 2
years’ worth of work experience, 25 points for more than 17 years’ worth of
education, 10 points for language, and 4 points for adaptability based on the
Applicant’s spouse’s university degree.
IV.
Issues
[18]
The following issues were brought forth by the
Applicant:
1.
Did the Respondent err in law in finding that
the Applicant did not meet the requirement of an Information Systems Manager
(NOC 0213)?
2.
Was the Applicant denied procedural fairness
because the Respondent did not provide the Applicant with a reasonable
opportunity to address the Respondent’s concerns?
V.
Standard of Review
[19]
A visa officer’s decision to refuse permanent
residence based on a finding that the Applicant does not meet employment
requirements is reviewable on a standard of reasonableness: Quin v Canada
(Minister of Citizenship and Immigration), 2013 FCA 263 at para 25.
[20]
A breach of procedural fairness, however, is
reviewable on a standard of correctness: Mission Institution v Khela,
2014 SCC 24 at para 79.
VI.
Analysis
A.
Did the Respondent err in law in finding that
the Applicant did not meet the requirement of an Information Systems Manager?
[21]
The Applicant submits that he was denied
procedural fairness because the Officer did not provide him with a reasonable
opportunity to address the Officer’s concerns.
[22]
The gravamen of the Applicant’s case can best be
demonstrated by comparing the Officer’s concerns as described in the Global
Case Management System [GCMS], with those in the fairness letter sent the
Applicant.
[23]
The Officer expressed his concerns as described
in the GCMS as follows:
On documentation
provided, the company’s specific business is not described in any detail … His
employer does not have a website, which is strange for a company that employs
an information systems manager. Online research indicates that the limited web
presence for the company shows that it is a wholesale/used computer sales company.
… Although he may be employed at this company in some way, the evidence
suggests that this company is a small computer repair and sales company. L.M.
please prepare procedural fairness letter to applicant advising that … I am not
satisfied with the evidence submitted to date that he has worked as an Information
Systems Manager since 2003.
[24]
The fairness letter stated as follows:
At this time there
is insufficient evidence before me to satisfy me that you have been employed as
an Information Systems Manager. Please submit any additional evidence in
support of your employment in this capacity. I would like to provide you with
the opportunity to respond to this information.
[25]
The Officer rejected the Applicant’s application
stating as follows:
I have awarded two
years’ worth of work experience for your stated employment with Cool Industries
in Pakistan (2000-2002). However, after reviewing your new submissions in
support of your employment with Al Muheeb, when viewed in conjunction with the
already existing evidence, this continues to be insufficient to satisfy me that
you have been employed at Al Muheeb as an Information Systems Manager since
2003.
[26]
I agree with the Applicant’s submission that
although the Applicant appears to have been given a reasonable opportunity to
address the Officer’s concerns, he was not. The letter the Applicant received
did not indicate the Officer’s real concern that the Applicant was claiming to
occupy a nonexistent position. Accordingly, the Applicant was unaware that the “insufficiency”
he had to address was whether his position actually existed, as opposed to his work
experience in relation to the position.
[27]
More importantly, as I interpret the Officer’s
notes, I am satisfied that the Officer did not find that the Applicant was credible.
While the Respondent argues that this is a matter of insufficiency of evidence,
I find it clear from the GCMS notes that the Officer did not believe the
Applicant’s employer maintained a position of Information Systems Manager for
various reasons. By that observation I find that the Officer was concerned that
the Applicant was intentionally misrepresenting his position.
[28]
While the dividing line between insufficiency
and credibility is not always clear, when the declared fact is of the nature
that it cannot be misstated without a likely intention to do so, it is usually
a matter of credibility.
[29]
The Applicant’s statement that he was occupying
a position that the Officer did not believe existed is an example of a
misrepresentation that most likely was deliberate. It is difficult to make a
mistake as to whether a position like that of Information Systems Manager exists
in a company. The factors referred to by the Officer, (no website, small wholesale/used
computer sales company) demonstrate that he did not think that this was the
type of business which would have the position of Information Systems Manager, meaning
that the Applicant was deliberately misstating his employment.
[30]
In such circumstances, the Applicant must be
provided with sufficient details to identify the credibility concerns such that
he knows the case he has to meet and can reasonably respond to it: Nauman v
Canada (Minister of Citizenship and Immigration), 2013 FC 964 at para 16.
[31]
This obligation was not met by the fairness
letter, and as such, the Court finds that the Applicant was denied a reasonable
opportunity to address the Officer’s credibility concerns about his statement
that he held the position of Information Systems Manager.
VII.
Conclusion
[32]
The application is allowed and the matter is directed
to be sent back for redetermination by another officer. No questions are
certified for appeal.
Email this Content