Docket: IMM-2938-17
Citation:
2018 FC 85
Ottawa, Ontario, January 29, 2018
PRESENT: The
Honourable Madam Justice Elliott
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BETWEEN:
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YOUSEF NASERI
ASBAGH
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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
I.
Nature of the Matter
[1]
The Applicant, Mr. Asbagh, is seeking judicial
review of the May 3, 2017, decision [Decision] of a visa officer at the
Immigration Section of the Embassy of Canada in France [Officer], rejecting his
application for permanent residence. Specifically, the Officer determined that
Mr. Asbagh had misrepresented or withheld certain material facts in his
application, thus deeming him inadmissible to Canada for a period of five years
as specified under s. 40 of the Immigration and Refuge Protection Act,
SC 2001, c 27 [IRPA].
[2]
This application involves a review of the
Officer’s reasons for determining that Mr. Asbagh’s response to a
procedural fairness letter [PFL] was not sufficient to overcome the initial concern
that one of the supporting documents originally submitted by the Applicant was
fraudulent.
[3]
For the reasons set out below, the application
is allowed and the matter is remitted to the Immigration Section for
redetermination.
II.
Background
[4]
Mr. Asbagh is an Iranian national. In April
2016, following his nomination by the Province of Saskatchewan, he applied to
be a permanent resident of Canada under the Federal Skilled Worker Program.
[5]
To prove his length of employment in Iran, Mr.
Asbagh initially submitted two Social Security Organization [SSO] certificates,
along with certified translations. One certificate was associated with his
position at Sana Pazhouhesh Gostar Technology Co. [Sana]. It covered the period
from August 23, 2010 to May 20, 2016 [the Sana SSO Certificate]. The other
certificate covered the period from November 22, 2005 to February 18, 2009 when
he was employed by Fanavari Azmayeshgahi Ltd. Only the Sana SSO Certificate is
in issue in this proceeding.
[6]
Upon review of the certificates, the Officer was
concerned that the numbers on the Sana SSO Certificate were written in “Roman numerals” (in fact, they are Arabic numerals),
whereas they should have been written in Persian numerals. As well, the Sana
SSO Certificate stated the Applicant had only worked 637 days since 2010, far
less than what had been indicated in a previously submitted employment letter. Accordingly,
the Officer sent a PFL to Mr. Asbagh. In it, the Officer indicated that he had
concerns that the Sana SSO Certificate provided in support of the application
was fraudulent. The specific bases upon which the Officer believed the
certificate to be fraudulent were not set out in the letter.
[7]
In a letter dated September 24, 2016, by which Mr.
Asbagh responded to the PFL, the matter of the “Roman
numerals” was not addressed. However, Mr. Asbagh did address the
discrepancy in work days by explaining that Sana had paid his insurance
premiums to two different SSO branches (Tabriz Branches 1 and 5), and that the
contributions made to Branch 1 had not been accounted for in the previously
submitted Sana SSO Certificate.
[8]
Attached to his letter, Mr. Asbagh provided a new
SSO certificate which combined, corrected and updated the information from the
other two certificates [Consolidated SSO Certificate]. It was certified, signed
and stamped by Branch 5 of the SSO of Tabriz.
[9]
Finally, Mr. Asbagh also submitted an “Employment Certificate” letter from Sana. It confirmed
that Mr. Asbagh had been employed with Sana as an Electrical Engineer on a
full-time basis since August 23, 2010, and that the information contained in
the Consolidated SSO Certificate was accurate.
III.
Analysis
[10]
There is no dispute between the parties that two
issues arise in this application: Was the Decision reasonable and was it
arrived at in a procedurally fair manner? I agree.
[11]
The Officer’s finding of misrepresentation under
s. 40(1)(a) of the IRPA involves questions of mixed fact and law, reviewable on
the standard of reasonableness (Ge v Canada (Citizenship and Immigration),
2017 FC 594 at para 14 [Ge]; Seraj v Canada (Minister of Citizenship
and Immigration), 2016 FC 38 at para 11). The standard of correctness
applies to the procedural fairness issues arising in this case (Ge,
above; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para
43).
[12]
As explained below, it is my view that the
Decision, which includes the Global Case Management System [GCMS] notes, is not
reasonable. It is therefore not necessary to address the question of whether
the process was procedurally fair.
[13]
The letter set out two reasons for the Officer’s
finding that Mr. Asbagh was inadmissible for misrepresentation or
withholding material facts relating to relevant matter:
I reached this determination because the
format of the certificate is incorrect and your identity number differs from
document to document.
[14]
The Minister concedes that, contrary to the
Officer’s determination, the identity number was the same from document to
document. The Officer erred in making the finding of fact that it differed.
[15]
The GCMS notes, which contain additional reasons
for the determination, indicate that the Officer placed reliance on his
mistaken belief about the identification number. The note written on May 3,
2017, the same date as the letter, states in the relevant part:
L'explication fournie par le requérant n'est
pas satisfaisante du tout. En effet, les relevés ou
certificats SSO sont toujours écrit en chiffres et lettres
persanes. De plus, même si le paiement des cotisations avait été faite [sic]
auprès de 2 branches différentes, les numéros de SS ou d’identification des
personnes ne changeraient pas (tout comme au Canada ou en France).
[Translation]
The explanation provided by the moving party is not at all satisfying. In fact,
the SSO statements or certificates are always in Persian figures and letters.
As well, although the contributions were paid to two different branches, the SS
numbers or the identification of the individuals would not change (like in
Canada or France).
[16]
This note confirms that the Officer had only two
grounds for finding that the response provided by Mr. Asbagh to the PFL was “not at all satisfactory”: (1) SSO certificates are
always written in Persian numerals and letters; and (2) even if payments had
been made to two different branches, the identification number of the individual
would not change.
[17]
The reference in the GCMS note that “[d]e plus, même si le paiement des cotisations avait
été faite [sic] auprès de 2 branches différentes” “[a]s well, although the contributions were paid to two
different branches” [Translation] implies that the Officer was not
entirely satisfied by the Applicant’s explanation that payments were made to
two different branches of the SSO (emphasis added). It is also apparent from
the immediately following words in the GCMS note (that is, that the identification
number should not change) that the Officer relied on his mistake about the
identification number in order to resolve the matter definitively against
Mr. Asbagh.
[18]
It is clear that the identification number was a
significant factor in the Officer’s analysis. It is not clear, however, whether
the Officer would have reached the same conclusion on the merits had the
mistake about the identification number not been made.
[19]
As a result of the foregoing, the reasons are
not transparent, intelligible or justified. The outcome is therefore not found
to be within the range of possible, acceptable outcomes defensible on the facts
and law (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
[20]
For these reasons, the application
is allowed and the matter is returned to the Immigration Section for
redetermination.
[21]
No question for
certification arises on these facts nor was one proposed by either party.
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