Docket: IMM-374-16
Citation:
2016 FC 1006
Ottawa, Ontario, September 6, 2016
PRESENT: The
Honourable Madam Justice Gagné
BETWEEN:
|
MAHMOUD
HOSEINNEJAD ASL
|
Applicant
|
and
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
Respondent
|
JUDGMENT AND REASONS
I.
Nature of the Matter
[1]
Mr. Mahmoud Hoseinnejad Asl is seeking judicial
review of a visa officer’s decision refusing his application for permanent
residence under the Skilled Worker category, on the basis that he is
inadmissible pursuant to paragraphs 40(1)(a) and 40(2)(a) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA]. The Applicant was found
to have made a material misrepresentation by providing the visa officer with a
letter of reference that was not genuine and that was not from his employer.
II.
Background
[2]
The Applicant is a citizen of Iran. In May 2013,
he submitted an application for permanent residence in Canada under the Skilled
Worker class. He included his wife in his application. The Applicant intended
to work as a civil engineer in Canada. He has a Master’s Degree in
Architectural Engineering from the Iran University of Science and Technology in
Tehran and, since July 2008, he has worked as a construction engineer at the
Endowments and Charity Affairs Organization [AWQAF]. Previously, he worked as a
construction engineer for Khesht o Naghsh Markazi Co, from March 2004 to
December 2005, and from August 2007 to July 2008.
[3]
In his application for permanent residence, the
Applicant submitted documentation to describe his job and duties at AWQAF,
including a reference letter from the employer detailing the duties performed,
as well as documentation regarding other related work experience. On April 16,
2014, the Canadian Embassy in Warsaw, Poland requested a medical examination
and additional documents from the Applicant. He replied on May 21, 2014, with
additional supporting documents including an updated Job Certificate from
AWQAF, dated April 27, 2014, once again outlining his occupational duties.
[4]
Sometime before January 4, 2015, the visa
officer contacted the personnel department at AWQAF to follow up on a document
verification request which had been faxed to AWQAF earlier. The visa officer
was advised that although the Applicant worked at AWQAF, the reference letter
was not genuine and was not issued by AWQAF. An excerpt of the visa officer’s
subsequent Global Case Management System [GCMS] entry states: “Was advised that although [the Applicant] is working there,
work reference letter submitted by him is not genuine and was not issued by
this organization.”
[5]
The Applicant became aware of the previous fax
inquiry from the visa officer and sent him an email advising that: “[AWQAF] is a public organization governed by hardliners and
unfortunately in such public organizations a proclamation was strictly issued
prohibiting any kind of communication with foreign countries without embassy in
Iran. Therefore, the international affairs or human resource managers are not
allowed to respond to your fax inquiry.”
[6]
It is not clear whether the Applicant was aware
of the officer’s conversation with a representative of AWQAF at this time. In
the email, the Applicant offered to facilitate the visa officer’s connection
with his direct manager, in charge of the “Engineering
Department”, and also asked whether he could assist by providing further
documentation. He indicated that he had not advised AWQAF of his intention to
immigrate to Canada, because this would put his job at risk. He explained that
his “work reference” had therefore been
addressed to a local company in Iran.
[7]
On January 27, 2015, the visa officer sent the
Applicant a procedural fairness letter. Here is the relevant excerpt of the
letter:
In an attempt to verify the authenticity of
your work reference letter, I contacted [AWQAF] in Iran and I was advised that
the work reference letter which was submitted by you was not genuine and was
not issued by this organization. Therefore, it is my belief that you have
deliberately tried to mislead me in a relevant matter which could induce an
error in the administration of the Immigration and Refugee Protection Act and I
am considering recommending to my supervisor that you be found inadmissible to
Canada for misrepresentation pursuant to subsection 40(1)(a) of the Act. […]
You have 30 days from the date of this letter to respond in writing to my
concerns as noted above.
[8]
The Applicant responded to the procedural
fairness letter and forwarded additional documentation to address the visa
officer’s concerns. He thereby stated that the human resources manager at AWQAF
had told him that “we are not allowed to verify your
work reference in response and furthermore your job certificate was issued to a
local company and you were not permitted to send it to Canadian embassy”.
According to the Applicant, this was the reason that the visa officer had been
told the reference letter was not genuine.
[9]
The Applicant further explained that his work
reference had originally been addressed to Canpars, the local company to which
the Applicant had referred to in his previous email. However, he had
subsequently deleted Canpars as the addressee in order to submit the reference
letter for immigration purposes, without the knowledge of his employer. The
attached translated letter from Canpars confirmed that the company had received
the Applicant’s Job Certificate addressed to it, dated April 27, 2014. The only
difference from the same certificate previously submitted by the Applicant is
that it says: “To: Canpars Company” in the
heading. Furthermore, the attached letter from Pendar Official Translation
Bureau stated that:
According to strict rules come into force in
most of Iranian public organizations, issuance of personnel’s job certificate
to foreign countries without embassy in Iran is forbidden, so these letters are
usually issued addressing a local company. Also for immigration purposes, the
content of the letter it [sic] more important than the receiver then it is
common that official translation bureau usually delete the receivers of
letters.
Considering all this point, Mahmoud
Hosinnejad [sic] Asl requested the translation office for necessary
modifications and the newly formatted letter bearing the addressed company
(Canpars Company) that is attached.
[10]
Other additional AWQAF documentation provided by
the Applicant were: a social insurance document; an employee contract; salary
slips; an affidavit of three of the Applicant’s colleagues, swearing they work
with him; customers’ letters from the Department General of Technical
Supervision verifying the Applicant’s position; the Applicant’s personnel card
and those of three of his colleagues; a job title table of people working at
the Department General and the position of the Applicant himself; and an
organization chart.
[11]
On September 22, 2015, the Applicant sent
another letter to the officer, reiterating his position. He also attached a job
certificate issued by a new human resources manager at AWQAF whom he described
as not being as much of a hardliner as the previous manager. The Applicant
suggested that the officer verify his work reference through either the Italian
or Norwegian Embassy in Tehran, given the government proclamation prohibiting
companies like AWQAF from providing any response to communications from a
country without an embassy in Iran.
III.
Impugned Decision
[12]
The visa officer found that the Applicant was “inadmissible for misrepresentation for directly or
indirectly misrepresenting or withholding material facts relating to a relevant
matter that induces or could induce an error in the administration of this Act”,
pursuant to paragraph 40(1)(a) of the IRPA. The visa officer stated that
he reached this determination on the basis that AWQAF had been unable to
confirm the genuineness of the Applicant’s employment references; thus, the
Applicant had provided an inaccurate account of his employment experience
history. He would accordingly be inadmissible for five years following this
determination, by virtue of paragraph 40(2)(a) of the IRPA.
[13]
The GCMS notes form part of the visa officer’s
decision. The visa officer’s entry for April 24, 2015, states that after
reviewing the Applicant’s submissions responding to the procedural fairness
letter:
[…] information provided failed to disabuse
me of my concerns regarding this application. The fact is that the
[Applicant’s] employer did not confirm the genuineness of the work references
submitted by [him]. Although [he] might be working for this employer, in light
of submission of references which are not genuine, it is not certain in what
capacity he is working and whether his work experience meets the minimum
requirements and Ministerial Instructions. […]
This office has conducted numerous
verifications in Iran, including with state institutions such as judiciary
institutions, universities, etc. and none of the issues raised by the [A]pplicant
were noted. […]
[14]
The GCMS entry for December 3, 2015 is similar.
In it, the officer notes that he has considered the documentation and
information provided by the Applicant, as well as his response; however, “[t]he response from the client has not disabused me of the
concerns raised. In my opinion, on a balance of probabilities, I find it
reasonable to conclude that the applicant does not have the stated employment
experience as claimed.”
IV.
Issues and Standard of Review
[15]
This application for judicial review raises the
following issues:
A.
Did the officer err in finding that the
Applicant misrepresented his employment experience?
B.
Did the officer err by not disclosing extrinsic
evidence to the Applicant and/or by not providing him with an opportunity to
address that extrinsic evidence?
[16]
The first question is a question of mixed fact
and law, and is reviewable on the standard of reasonableness (Seraj v Canada
(Citizenship and Immigration), 2016 FC 38 at para 11; Singh v Canada,
2015 FC 377 at para 12; Karami v Canada (Citizenship and Immigration),
2009 FC 788 at para 14).
[17]
As to the second question, issues relating to
extrinsic evidence and its disclosure are questions of procedural fairness, and
are reviewable on the standard of correctness (Qureshi v Canada (Citizenship
and Immigration), 2009 FC 1081 at para 14; Dios v Canada (Citizenship
and Immigration), 2008 FC 1322 at para 23).
V.
Analysis
A.
Did the officer err in finding that the
Applicant misrepresented his employment experience?
[18]
I do not agree with the Applicant that the
officer ignored multiple pieces of evidence. As acknowledged by the parties,
decision-makers are not required to refer to every piece of evidence (Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration) (1998), 157 FTR 35 at
para 16). In Herrera Andrade v Canada (Citizenship and Immigration),
2012 FC 1490 at paragraph 11, Justice Gleason held that “the starting point for the inquiry in respect of an argument
regarding the impact of failure to mention key evidence is that the reviewing
court must presume that the tribunal considered the entire record”, and
thus the Applicant “bear[s] a high burden of
persuasion”. Second, in assessing reasonableness, the Court must assess
both the outcome and the reasons of the tribunal, as per Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62 at paragraph 14. Third, the Court must give deference to the tribunal’s
findings, especially where such findings are at the core of the tribunal’s
expertise.
[19]
Moreover, Andrade, above at paragraph 9,
holds that Cepeda-Gutierrez “does not stand for
the proposition that failure to analyze evidence that runs contrary to a
tribunal's conclusion necessarily renders a decision unreasonable”.
Instead, a decision will only be overturned in circumstances “where the non-mentioned evidence is critical, contradicts
the tribunal’s conclusion and the reviewing court determines that its omission
means that the tribunal did not have regard to the material before it”. Thus,
the bar for finding that the decision is unreasonable is high.
[20]
The Applicant has not convinced me that this bar
is reached in this case. The officer considered the supporting documents
submitted by the Applicant, as well as the job certificate, and found that
these documents had not disabused him of his original concerns, i.e. that a
representative from AWQAF stated that the Applicant’s reference letter was not
genuine and was not issued by AWQAF. The subsequent documentation provided by
the Applicant simply did not change the officer’s mind that the original
reference letter was fraudulent. Moreover, I agree with the Respondent that the
Applicant did not provide evidence that he was targeted by hardliners. Such
evidence could have helped substantiate his claim that the AWQAF representative
told the officer his letter was not genuine because of the purported government
proclamation. The Applicant did provide the letter from the Pendar Official
Translation Bureau stating that such a proclamation was in effect, but it did
not state that AWQAF was subject to it. In any event, the officer was able to
successfully contact AWQAF and the person contacted did confirm that the
Applicant worked there.
[21]
I acknowledge that a finding of inadmissibility
due to misrepresentation is a serious one, and that it must be made with “clear and convincing” evidence (Chughtai v Canada
(Citizenship and Immigration), 2016 FC 416 at para 29; Xu v Canada
(Minister of Citizenship and Immigration), 2011 FC 784 at para 16). I find
that the statement from the AWQAF representative to the officer was clear and
convincing to the effect that the reference letter was neither genuine, nor
issued by AWQAF. The Applicant did not discharge his burden of proving
otherwise.
B.
Did the officer err by not disclosing extrinsic evidence
to the Applicant or by not providing him with an opportunity to address that
extrinsic evidence?
[22]
When dealing with a question of extrinsic
evidence, this Court has held that it is not necessary to discuss the standard
of review, but that it should evaluate whether the rules of procedural fairness
have been adhered to (Qureshi above at para 14; Dios above at
para 23). For other questions of procedural fairness, the standard of review is
correctness (Sharma v Canada (Citizenship and Immigration), 2015 FC 1253
at para 26; Singh above at para 12). In light of this, and for the
reasons below, I find that the officer did not breach procedural fairness.
[23]
First of all, I would note that the procedural
fairness owed by visa officers is on the low end of the spectrum (Hamza v
Canada (Citizenship and Immigration), 2013 FC 264 at para 23). Of course,
the duty of fairness in this context still “require[s]
visa officers to inform applicants of their concerns so that an applicant may
have an opportunity to disabuse an officer of such concerns.” (Talpur
v Canada (Citizenship and Immigration), 2012 FC 25 at para 21).
[24]
The officer provided the Applicant with a
procedural fairness letter on January 27, 2015, after sending a fax inquiry and
speaking with a representative of AWQAF. In the letter, the officer states that
the representative advised him that the reference letter was not genuine and
not issued by AWQAF, and thus that the officer believed that the Applicant had
attempted to mislead him. The letter made it clear that this was the concern
that the Applicant had to address, therefore the onus was on the Applicant to demonstrate
that no misrepresentation occurred (Bhamra v Canada (Citizenship and
Immigration), 2014 FC 239 at para 43).
[25]
The question of whether Iranian companies
respond to foreign authorities did not form part of the officer’s concerns,
since he was able to successfully communicate with the AWQAF representative. It
does not matter whether the Applicant knew of this communication when he sent
his email on January 4, 2015, because he was advised of it in the procedural
fairness letter a few weeks later, and had an opportunity to fully address it
then. For instance, if the Applicant was convinced that the fact that the AWQAF
representative had spoken to the officer meant he was being targeted by
hardliners, he could have provided evidence to that effect, and/or more general
evidence that Iranian companies, including AWQAF, cannot communicate with
foreign authorities. He did not do so.
[26]
The officer’s statement in the GCMS notes that
the Canadian Embassy has successfully contacted other Iranian companies in the
past only corroborated his own successful verification attempt with AWQAF. I am
not convinced that this constitutes extrinsic evidence, as the Applicant asserts.
Rather, it is simply general knowledge which forms part of the officer’s
expertise. Indeed, as this Court held in Bahr v Canada (Citizenship and
Immigration), 2012 FC 527 at paragraph 42:
[42] So it seems to me that what
applicants should expect is that the onus is upon them to make a convincing
case and that, in assessing their applications, visa officers will use their
general experience and knowledge of local conditions to draw inferences and
reach conclusions on the basis of the information and documents provided by the
applicant without necessarily putting any concerns that may arise to the
applicant. The onus is upon the applicant to ensure that the application is
comprehensive and contains all that is needed to make a convincing case.
[27]
While the Applicant was not aware of the
officer’s general knowledge, the Applicant did know about the officer’s
communication with AWQAF. As I mentioned above, if the Applicant was of the
view that the communication between the officer and the AWQAF representative
was abnormal, he could have addressed this with evidence to support it in his
reply to the procedural fairness letter. He was given a reasonable opportunity
to present his case (see e.g. Atahi v Canada (Citizenship and Immigration),
2012 FC 753 at para 31).
[28]
In any event, even if the Applicant is correct
in asserting that the knowledge of the Canadian Embassy’s prior successful
communications constitutes extrinsic evidence, I note that officers are not
required to disclose extrinsic evidence where the applicant could reasonably
anticipate that it would be consulted (Qin v Canada (Citizenship and
Immigration), 2013 FC 147 at para 38). In this case, it was reasonable to
anticipate that the officer would refer to his general knowledge and that this
would include knowledge of past interactions or communications between the
Canadian Embassy and Iranian companies.
[29]
To go a step further, even if the officer
breached procedural fairness by not disclosing extrinsic evidence to the
Applicant, I find that the officer’s decision could be upheld, because the
breach would not have changed the outcome of the decision on the merits (Renaud
v Canada (Attorney General), 2013 FCA 266 at paras 4-6). Since the officer
successfully contacted AWQAF, and obtained the information about the fraudulent
letter from that phone call, he could have reached his decision without the
knowledge of the Canadian Embassy’s previous contacts with Iranian companies.
[30]
As for the Applicant’s argument that the officer
also breached procedural fairness by not disclosing that AWQAF had confirmed
that he worked there, I cannot agree. As indicated above, the officer clearly
expressed the issue in the procedural fairness letter: he was concerned that
the reference letter was fraudulent. Even if the officer believed that the
Applicant worked at AWQAF, this did not change the fact that the Applicant
could provide a fraudulent reference letter from that employer.
[31]
The Applicant had the opportunity to respond to
the officer’s concerns, and failed to discharge his burden of proving
otherwise. For instance, he could have provided sworn evidence from the author
of the reference letter attesting that it was truthful. He did not do so.
VI.
Conclusion
[32]
This application for judicial review is
dismissed. The parties have proposed no question of general importance to be
certified and none arises from this case.