Docket: IMM-1575-17
Citation:
2017 FC 1036
Ottawa, Ontario, November 14, 2017
PRESENT: The
Honourable Mr. Justice Phelan
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BETWEEN:
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MANPREET KAUR
ARORA
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Applicant
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and
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THE MINISTER OF
IMMIGRATION, REFUGEES AND CITIZENSHIP
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
This is the judicial review of a decision by an
immigration officer [the Officer] which denied the Applicant’s application for
permanent residence under the Federal Skilled Worker Program through the
National Occupational Classification for “early
childhood educators and assistants”.
The
Officer found that the Applicant had misrepresented the material fact that she
had worked as a teacher at Tender Kids Pre-School [Tender Kids] which rendered
her inadmissible for five years pursuant to s 40(1)(a) of the Immigration
and Refugee Protection Act, SC 2001, c 27:
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40 (1) A permanent resident or a
foreign national is inadmissible for misrepresentation
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40 (1)
Emportent interdiction de territoire pour fausses déclarations les faits
suivants :
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(a) 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;
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a) directement ou indirectement, faire une
présentation erronée sur un fait important quant à un objet pertinent, ou une
réticence sur ce fait, ce qui entraîne ou risque d’entraîner une erreur dans
l’application de la présente loi;
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II.
Facts
[2]
The Applicant, a citizen of India, claimed that
she worked at Tender Kids in Delhi as a play school teacher since October 2008.
[3]
The Officer was unable to find any evidence of
the existence of her alleged employers, Akash Public School and Tender Kids.
[4]
The Officer became concerned that a reference
letter included in the Applicant’s application materials could be fraudulent when
the telephone numbers given for the principal were unreachable mobile numbers associated
with a name different from the principal’s. The Officer sent a procedural fairness
letter outlining this concern.
[5]
In response, the Applicant provided a letter of
explanation, a mobile phone bill, and an affidavit of the principal.
[6]
Pursuant to an invitation from the Applicant, a
site visit took place that is a matter of controversy in this case. Two
immigration officers, including Mr. Hetherington, First Secretary at the High
Commission of Canada, reported as follows about the site visit:
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the owner of a beauty parlour next door did not
recognize a photograph of the Applicant, but recognized other school staff
members;
•
no neighbours were willing to provide
information;
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the owner was not available because of illness;
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a Ms. Kaur recognized the Applicant’s photograph
and said she had been there two days before;
•
Ms. Kaur and a cleaner confirmed that the
Applicant had been working as a teacher at Tender Kids;
•
another teacher, Nancy Kaur [Nancy] refused to
provide information, but both Ms. Kaur and Nancy confirmed that the Applicant
had not come to school that day;
•
the Applicant, when telephoned because she was
not at the school for the site visit, denied that there was a beauty parlour
nearby and said that she had been at the school that morning, despite two
witnesses who said the opposite, but explained that she was out running an
errand which one of these same witnesses knew about; and
•
Ms. Kaur started receiving telephone calls from
the principal during her interview and the officers asked that she turn off the
telephone.
[7]
The officers, clearly suspicious of the
circumstances, pressed the witnesses for the truth. Ms. Kaur admitted orally,
and in writing confirmed, that the Applicant was not working at Tender Kids.
[8]
It was the officers’ conclusion that in view of
the discrepancies, the Applicant had misrepresented her work experience.
[9]
The Applicant, four days after the site visit,
filed a complaint with the Embassy in Warsaw, the immigration section
responsible for the file. She complained about the nature and tone of the
visit. Attached to the complaint was a statement by Ms. Kaur in which she
claimed that:
•
the officers prevented anyone from leaving the
school and locked the three teachers in separate rooms;
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people were barred from contacting the principal
and cell phones were confiscated;
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three teachers and the cleaner confirmed that
the Applicant worked at the school;
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one of the officers asserted that there was
fraud and that Ms. Kaur could lose her job; and
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Ms. Kaur was pressured and signed whatever the
officer required.
[10]
As a result of the site visit, the Officer sent
a second procedural fairness letter.
[11]
The Applicant’s response, prepared through a
Canadian immigration consultant, contained a package of uncertified statements
from third parties and an affidavit of Ms. Kaur largely repeating the incidents
of aggressive behaviour with slight embellishment.
As
noted in the Respondent’s argument, what is missing from this affidavit is any
statement as to the Applicant working as a teacher at the school.
[12]
The Officer’s decision reiterated the key facts
and, in substantial reliance on the site visit report, concluded that the
Applicant had misrepresented her employment status. The Officer considered the
ebb and flow of Ms. Kaur’s statements regarding the Applicant’s position as a
teacher and discounted her affidavit.
The
Officer denied the application and found the Applicant to have misrepresented a
material fact.
[13]
The Applicant challenges both the decision and
the way in which it was made. To this latter end, the Applicant submitted two
affidavits attempting to buttress the unfairness of the investigation and the
Respondent, while objecting to the Applicant’s affidavits, filed an affidavit
of Mr. Hetherington as to events at the site visit. The Respondent justified
Mr. Hetherington’s affidavit as giving the Court general background.
[14]
While the affidavits go to the merits of the
decision, they also go to the issue of procedural fairness in the way in which
the decision was arrived at.
In
these unusual and convoluted proceedings, I have admitted all the affidavits.
They relate to a procedural fairness argument involving the decision maker
having a “closed mind”, a matter that touches on
both issues in this judicial review.
III.
Analysis
[15]
There are two matters in dispute:
1.
whether the finding of misrepresentation was
appropriate; and
2.
whether the manner in which it was arrived at
was procedurally fair.
[16]
It is well established now that the finding of
misrepresentation is subject to a reasonableness standard of review (Patel v
Canada (Citizenship and Immigration), 2017 FC 401, 279 ACWS (3d) 810), and
procedural fairness is assessed on a correctness standard (Rahimi v Canada
(Citizenship and Immigration), 2017 FC 758, 282 ACWS (3d) 842).
A.
Misrepresentation
[17]
As to the misrepresentation of a material fact,
there is no issue that the Applicant’s status as a teacher at Tender Kids was a
material fact.
[18]
On the issue of misrepresentation, the Officer
reviewed in detail the conflicting evidence. The Officer weighed the evidence
and gave greater weight to some and less or no weight to other evidence. In
that regard, the Officer carried out the mandate imposed on him.
[19]
It was open to the Officer to prefer the site
visit report over the evidence with which it conflicted. Because the Officer
relied on an internal report over that of an applicant, the Court carefully
reviews such conclusions for unintended institutional preference.
I
can find none here. Given the totality of the evidence, I cannot see that the
Officer could have reached a different reasonable conclusion.
B.
Procedural Fairness
[20]
There are two aspects to this issue. The first
is that the Officer had a “closed mind” – an
allegation of bias or a reasonable apprehension of bias. Whether one dresses it
up as an argument of “confirmation bias”, it is
bias none the less.
The
second is the manner in which some of the damning evidence was obtained,
particularly at the site visit.
[21]
The Applicant claims that this “closed mind” issue arose when the Officer, having
been unable to locate the school, issued the first procedural fairness letter
stating concerns around misrepresentation. That “closed
mind” attitude then went on to taint all the other aspects of the
decision making process, including the assessment of evidence provided in
response to the procedural fairness letters.
[22]
While the Officer’s first procedural fairness
letter could have been phrased more benignly given the then uncertain state of
affairs, the Officer is caught in a catch-22 situation. If the letter is
phrased more benignly, the allegation later is that the recipient was misled as
to the consequences of a response, but if phrased more severely, as in this
case, bias is alleged.
[23]
I can see no unfairness of bias in outlining
directly the concerns the Officer had and in stating what might flow from a
less than forthright response.
[24]
As to the events at the site visit, it was not
unfair to rely on that evidence. The Applicant had notice of what happened and
was able to respond. The only issue that could arise is that if events unfolded
as alleged, the evidence was coerced. It is incumbent on the Applicant to
establish the underlying facts of coercion or mistreatment.
[25]
In my view, the Applicant has not made out the
case, on a balance of probabilities, that the two immigration officers engaged
in the high-handed and aggressive conduct alleged.
[26]
In sum, I can find no breach of procedural
fairness.
IV.
Conclusion
[27]
For all these reasons, despite the impassioned
and balanced argument of the Applicant’s counsel, this judicial review will be
dismissed. No question for certification exists.
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