Docket: IMM-2684-14
Citation:
2015 FC 1253
Ottawa, Ontario, November 5, 2015
PRESENT: The
Honourable Mr. Justice O'Keefe
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BETWEEN:
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MAHESH KUMAR
SHARMA
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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 of
the decision of the First Secretary (Immigration) of the High Commission of
Canada in New Delhi, India, dated February 15, 2014, wherein the First
Secretary refused the applicant’s application for a permanent resident visa in
Canada under the federal skilled worker category (the decision).
[2]
The applicant seeks an order setting aside the
negative decision and returning the matter to a different individual for redetermination.
I.
Background
[3]
The applicant is a citizen of India. He
submitted an application for permanent residence in Canada under the federal skilled
worker class.
[4]
The applicant worked with North India Computers
from November 1, 1997 to May 22, 2005 as a computer instructor. This employment
was used to fulfill the work experience requirement under the federal skilled
worker program.
[5]
On April 28, 2012, a processing officer [or
officer] called North India Computers, the business where the applicant was alleged
to have worked as a computer instructor, for verification of the facts. The
officer was given contradictory statements by two employees: i) Mr. Sameer, an
employee of eight years stated North India Computers deals in sales/purchase/repairs,
but not education; and he has never heard of the applicant; and ii) Mr. Tony, a
senior employee of 15 years, confirmed the business is in sales/purchase and
repair of computers business for the last five years and was in the computer
education business earlier at 2451-52, Sector 22-C, Chandigarh. He also
confirmed the name of Mahesh as one of the four instructors at Sector 22-C.
[6]
On February 19, 2013, a visa officer sent a
procedural fairness letter to the applicant and requested clarification of the
inconsistencies noted from the information obtained during the verification
phone call and the facts supplied by the applicant. The following issues were
highlighted: i) a long term employee with North India Computers confirmed that
the company does not offer computer education courses but it specialized in the
sale, purchase and repair of computers; ii) contradictory information provided
between the applicant and an employee of North India Computers regarding the
location of North India Computers at the time of the applicant’s employment;
and iii) the applicant was unable to describe his duties at North India
Computers although he worked there for eight years.
[7]
On March 7, 2013, the applicant sent a letter in
response to the February 19, 2013 request.
II.
Decision Under Review
[8]
In the Global Case Management System [GCMS]
notes dated January 13, 2014, a processing officer observed the applicant wrote
in his response letter that he requested information from North India Computers
addressing the officer’s concerns, such as proof of address change and a list
of employees to be sent directly to the High Commission. However, to this date,
no such documentation was received. The processing officer was also not
satisfied with the applicant’s explanations and found they did not overcome the
concerns raised by the phone verification. The officer gave more weight to the
information obtained during the phone verification. Therefore, the processing officer
was not satisfied that the applicant was employed as a computer instructor at
North India Computers. The processing officer concluded that the applicant has
submitted fraudulent work experience documents and therefore does not meet the
work experience requirements under NOC 4131 as a computer instructor.
[9]
The officer further stated that on a balance of
probabilities, the applicant misrepresented his work experience.
[10]
In a letter dated February 15, 2014, the First Secretary
refused the applicant’s application finding that the applicant was not employed
as he alleged and that he was inadmissible for misrepresenting or withholding
material facts related to his employment experience. The First Secretary
reviewed the notes of processing officers, the verification notes and the
applicant’s response to the procedural fairness letter. The First Secretary found
the applicant is inadmissible to Canada under section 40 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act].
III.
Issues
[11]
The applicant raises the following issues:
1.
Did the First Secretary breach the principles of
fairness as a result of failure to give full details in the fairness letter
with respect to the information collected during the further inquiry, thereby
preventing the applicant from having an opportunity to respond to that
information?
2.
Did the First Secretary make an error of fact by
ignoring that the applicant himself completed his computer education diploma
from North India Computers before being employed as a computer instructor at
the same place?
[12]
The respondent raises one issue: the applicant
has failed to demonstrate that there is an arguable issue of law upon which the
proposed application for judicial review might succeed.
[13]
I would rephrase the issues as follows:
A.
What is the standard of review?
B.
Did the First Secretary breach procedural
fairness?
C.
Was the First Secretary’s decision reasonable?
IV.
Applicant’s Written Submissions
[14]
The applicant submits the standard of review for
questions of fact is the standard of reasonableness and the standard of review
for questions of law is the standard of correctness (Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir]).
[15]
First, the applicant submits an officer
partially communicated the findings of the investigation and did not disclose
the full details of the investigation; hence, the officer breached procedural
fairness. Procedural fairness requires that applicants for permanent residence
be provided a meaningful opportunity to respond to perceived material inconsistencies
or credibility concerns (Qin v Canada (Minister of Citizenship and
Immigration), 2013 FC 147, [2013] FCJ No 167). Under Amin v Canada
(Minister of Citizenship and Immigration), 2013 FC 206, [2013] FCJ No 216,
this Court found an officer’s reliance on extrinsic evidence without allowing
an applicant the opportunity to know and reply to that evidence amounts to
procedural unfairness. Here, the applicant did not have the opportunity to
provide a more detailed explanation to address the inconsistencies the processing
officer observed from the phone verification.
[16]
With respect to the discrepancy of the location
of North India Computers, the applicant argues he explained the issue of
location to the officer. He submitted 20-C was the registered office of the
business and 22-C mentioned by Mr. Tony was the computer education facility.
North India Computer possessed both of these premises.
[17]
The applicant argues had he been informed about
the extrinsic evidence the officer obtained through the phone evidence, he
would have been able to dispute those facts.
[18]
Also, the applicant argues the officer failed to
afford equal weight to all elements of the investigation. The officer did not
ask the applicant to obtain a letter or proof that the employer had submitted
the information the applicant requested as noted in his response to the
fairness letter.
[19]
Second, the applicant submits the officer
disregarded key evidence. The officer ignored the statements of the senior
employee, the applicant’s diploma indicating that the applicant himself
obtained his computer education from North India Computers and affidavits of
the applicant’s students.
V.
Respondent’s Written Submissions and Further
Memorandum
[20]
In the form of preliminary objection, the
respondent submits the following evidence postdates the First Secretary’s
decision dated February 15, 2014 and should not be considered by this Court: i)
Exhibit F, a letter dated March 12, 2013 with a notary stamp of May 28, 2014;
ii) Exhibit I, an affidavit sworn on June 2, 2014; and iii) Exhibit J,
affidavits sworn on May 28, 2014. The respondent also argues these documents
are not properly sworn exhibits to the applicant’s affidavit filed in support
of this application.
[21]
First, the respondent submits the First
Secretary did not breach procedural fairness. It argues the letter sent to the
applicant advised him of the processing officer’s concerns as well as how these
concerns came to be. The letter informed the applicant of the phone
verification and the resulting discrepancies discovered. The respondent argues
although the processing officer did not specifically advise the applicant of
the statement of the senior employee, this does not have an impact on the
discrepancy as perceived by the officer because the discrepancy was about the
business of the company.
[22]
Further, the applicant’s own response to the
fairness letter indicates he had a full opportunity to respond. In his
response, he indicated that he requested information from North India Computers
such as proof of address change and a list of employees. Therefore, the
applicant had a full opportunity to provide any necessary explanations.
[23]
Second, the respondent submits the First Secretary’s
decision was reasonable. It argues the duty of the officer was fulfilled by
giving the applicant notice of the discrepancies and giving him an opportunity
to explain. The applicant had the onus to provide the necessary explanation and
supporting documents. The officer did not have the duty to send another
follow-up request (Oladipo v Canada (Minister of Citizenship and
Immigration), 2008 FC 366 at paragraph 24, [2008] FCJ No 468). Even in
light of all the other documents, the officer was reasonable to find the
applicant’s explanation did not overcome concerns in the absence of information
from North India Computers.
[24]
In the respondent’s further memorandum, it
argues with respect to procedural fairness, there is no obligation on the part
of the First Secretary to make further inquiries if an application is ambiguous
(Lam v Canada (Minister of Citizenship and Immigration), 1998 CanLII
8315 (FC) at paragraph 4 [Lam]).
[25]
I need not deal with the issue of evidence that
post-dated the First Secretary’s decision as the applicant informed the Court
that he was not relying on evidence that was not before the First Secretary.
VI.
Analysis and Decision
A.
Issue 1 – What is the standard of review?
[26]
Insofar as the issue of procedural fairness is
concerned, it is a matter of natural justice and it is reviewed on the standard
of correctness (Kastrati v Canada (Minister of Citizenship and Immigration),
2008 FC 1141 at paragraphs 9 and 10, [2008] FCJ No 1424).
[27]
With respect to the issue of the reasonableness
of the First Secretary’s decision is concerned, it involves questions of fact
and it is reviewed on the standard of reasonableness. The standard of
reasonableness means that I should not intervene if the Board’s decision is
transparent, justifiable, intelligible and within the range of acceptable
outcomes (Dunsmuir at paragraph 47). Here, I will set aside the First
Secretary’s decision only if I cannot understand why it reached its conclusions
or how the facts and applicable law support the outcome (Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62 at paragraph 16, [2011] 3 S.C.R. 708). As the Supreme Court held in Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraphs 59 and 61,
[2009] 1 S.C.R. 339, a court reviewing for reasonableness cannot substitute its
own view of a preferable outcome, nor can it reweigh the evidence.
B.
Issue 2 - Did the First Secretary breach
procedural fairness?
[28]
The applicant submits that the First Secretary
breached procedural fairness by not disclosing all of the evidence received
from North India Computers’ employees, Mr. Sameer and Mr. Tony.
[29]
Mr. Sameer, who worked at North India Computers
from 2004 until 2012, told the processing officer that the company only dealt
in the sale, purchase and repair of computers and it did not offer computer
education courses. However, Mr. Tony, who was employed by North India Computers
from 1997 to 2012, stated to the processing officer that the company was in the
sale/purchase and repair of computers business for the last five years (i.e.
2007 to 2012) and that earlier, the company was in the computer education
business. He also stated that one of the instructors had the name Mahesh. The
applicant had stated that he worked at North India Computers as a computer
instructor from November 1997 to May 2005.
[30]
The First Secretary, in the fairness letter to
the applicant, disclosed Mr. Sameer’s evidence that the company did not offer
computer education courses but failed to mention Mr. Tony’s evidence that
computer education courses were offered prior to 2005 and that one of the
instructors had the name Mahesh.
[31]
In my view, the failure of the First Secretary
to mention evidence that favoured the applicant and which should have answered
the concerns about the applicant working as a computer instructor constitutes a
breach of procedural fairness.
C.
Issue 3 - Was the First Secretary’s decision
reasonable?
[32]
I am of the view that the First Secretary’s
decision was unreasonable. The First Secretary made an erroneous finding of
fact without regard to the evidence (Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration), [1998] FCJ No 1425 at paragraphs 16 and 17,
157 FTR 35). The First Secretary appears to have ignored the evidence of Mr.
Tony relating to the company providing computer education. The First Secretary
also did not address the evidence that stated the applicant studied at North
India Computers and received a diploma from North India Computers. This
constitutes a reviewable error by the First Secretary.
[33]
As a result, the application for judicial review
must be allowed and the decision of the First Secretary is set aside and the
matter is referred to a different individual for redetermination.
[34]
Neither party wished to submit a proposed
serious question of general importance for my consideration for certification.
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