Docket: IMM-1042-14
Citation:
2015 FC 499
Montréal, Quebec, April 20, 2015
PRESENT: The
Honourable Mr. Justice Locke
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BETWEEN:
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MARGARITA
HAKOBYAN
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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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JUDGMENT AND REASONS
I.
Background
[1]
This is an application for judicial review of a
decision of a visa officer denying a work permit to the applicant, Margarita
Hakobyan, a citizen of Armenia. Two grounds were cited as the basis for the
officer’s conclusion that the requirements of the Immigration and Refugee
Protection Act, SC 2001, c 27 and the Immigration and Refugee Protection
Regulations, SOR/2002-227 (the Rules) had not been met:
- The officer was
not satisfied that the employment offer in Canada from Diversified
Construction Maintenance Inc. (DCM), upon which the applicant’s work
permit application depended, was genuine; and
- The officer
found that documentation submitted in relation to the applicant’s
pre-existing employment in Armenia lacked authenticity.
[2]
For the reasons set out below, I have concluded
that the impugned decision should stand and the present application should be
dismissed.
II.
Overview of the Parties’ Arguments
[3]
The applicant argues that the officer erred on
both of the grounds for his decision. The applicant argues that the officer
breached his duty of procedural fairness in relation to his findings both on
the authenticity of documentation concerning the applicant’s employment in
Armenia, and on the genuineness of the offer of employment in Canada. The
applicant asserts that the officer’s decision was of considerable importance to
the applicant, that an elevated duty of procedural fairness applied as a
result, and that the officer should have shared his concerns with the applicant
and with DCM and given them an opportunity to address those concerns. The
applicant further argues that, if the officer had complied with his duty of
procedural fairness, the applicant would have been able to satisfy the officer
as to the authenticity of the documentation concerning the applicant’s
employment in Armenia, and as to the genuineness of the offer of employment in
Canada.
[4]
The respondent acknowledges that, as regards the
assessment of the authenticity of documentation concerning the applicant’s
employment in Armenia, the officer breached his duty of procedural fairness.
However, the respondent argues that there was no breach of procedural fairness
in the assessment of the genuineness of the offer of employment in Canada. The
respondent asserts that the officer requested certain relevant documents from
DCM and considered the documents he received in response. The respondent also
asserts that the officer’s decision did not have serious consequences for the
applicant since she could simply file another application for a work permit with
better evidence. Accordingly, the officer’s duty of procedural fairness in this
regard was relatively low, and the officer was not required to express his
concerns either to the applicant or to DCM after reviewing the documents he
received. The respondent further argues that, despite the error in assessing
the authenticity of employment documents in Armenia, the present application
for judicial review should be dismissed because the finding of non-genuineness
of the Canadian job offer was distinct and sufficient, by itself, to support
the denial of the applicant’s work permit.
[5]
The applicant replies that the finding of a lack
of authenticity of documentation concerning the applicant’s employment in
Armenia cannot be separated from the conclusion of non-genuineness of the offer
of employment in Canada because doubts as to authenticity put the applicant’s
credibility in issue, and credibility is also important to the assessment of
genuineness. The applicant asserts that findings of lack of authenticity and non-genuineness
are essentially findings of misrepresentation and bad faith, and that the
seriousness of such findings is a further basis for recognizing a high duty of
procedural fairness in the present case. The applicant goes so far as to assert
that DCM, who has employed many successful work permit applicants in the past,
is now “black-marked” because of the
non-genuineness finding, and cannot expect to be successful in any future
application unless the officer’s decision is set aside.
III.
Analysis
[6]
I am not satisfied that the officer’s finding of
a lack of authenticity in the documentation relating to the applicant’s
employment in Armenia had any effect on the officer’s finding of
non-genuineness of the DCM job offer. There is no indication or suggestion to that
effect in the documents and notes concerning the decision. Accordingly, I
conclude that the issue of the genuineness of the DCM job offer can be dealt
with distinctly. I also agree with the respondent that, provided I am satisfied
that the issue of the genuineness of the DCM job offer was decided fairly and
reasonably, the officer’s decision as a whole can stand.
[7]
As regards procedural fairness, I agree with the
respondent that the burden on the officer was low. The onus was on the
applicant to satisfy the officer of all parts of the application (Li v
Canada (Citizenship and Immigration), 2012 FC 484 at para 31; Singh Grewal
v Canada (Citizenship and Immigration), 2013 FC 627 at para 19), and on DCM
to establish that it was actively engaged in the business in respect of which
the offer of employment was made (subsection 200(5) of the Rules). I
also agree with the respondent that the officer’s negative decision does not
have serious consequences for the applicant since she can simply make another
application and ensure that it is supported by stronger evidence. I am not
satisfied that the finding of non-genuineness suggests any misrepresentation or
bad faith on the part of the applicant or DCM. I accept that the finding of
non-genuineness in this case was simply a finding that the evidence was
insufficient. I am not satisfied that either the applicant or DCM is likely to
suffer any negative effects in the future from the officer’s decision. The
applicant provided no support for her statement that DCM is now “black-marked” because of the non-genuineness finding.
[8]
As regards the reasonableness of the officer’s
finding of non-genuineness, I note that the finding appears to be based solely
on the failure of the prospective employer to provide the requested tax documentation
to show that DCM was actively engaged in the business in respect of which the
offer of employment was made. Specifically, the Notice of Assessment provided
was not for the year the officer sought. The respondent also notes that the
Notice of Assessment provided indicated zero amounts for all federal taxes and
a credit for provincial tax; however, it is not clear that the officer
considered this. In any case, the officer concluded that the documents provided
did not show that DCM was actively engaged in the business in respect of which
the job offer was made.
[9]
Though the officer relied on scant evidence to
conclude that the offer of employment was non-genuine, I am satisfied that the
lack of evidence is the failing of the applicant and/or DCM, not of the
officer. Even if DCM had provided exactly the documents the officer had
requested, there was no guarantee that the officer’s decision would have been
favourable.
[10]
The applicant cited evidence from Laurel
Stevenson, Office Manager at DCM, who indicated that if the officer had
expressed any doubts about the genuineness of the offer of employment, she
could have provided documents that would have alleviated such doubts. I note,
however, that the applicant did not actually provide any such documents, either
through Ms. Stevenson or through another affiant. I am left with no more than
Ms. Stevenson’s opinion that the documents she was referring to would have
alleviated the officer’s concerns. I am not convinced.
IV.
Conclusion
[11]
In the end, I conclude that the officer’s
finding that the evidence failed to establish that DCM was actively engaged in
the business in respect of which the offer of employment was made, and
therefore that the offer of employment should be considered not genuine, was
reasonable.
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