The Federal Court ordered the re-processing of an application under the Federal Skilled Worker program where the applicant was caught in the policy changes that rendered the occupation ineligible under the program. The circumstances of the case are unique, as the Centralized Intake Office ( CIO) gave the impression to the applicant that the file was still in process, and the information conveyed was somewhat confusing.
Bhatia v. Canada (Minister of Citizenship and Immigration)
Between
Dilip Bhagwandas Bhatia, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2011] F.C.J. No. 1554
2011 FC 1272
Docket IMM-1238-11
Federal Court
Toronto, Ontario
Rennie J.
Heard: October 18, 2011.
Judgment: November 7, 2011.
(16 paras.)
________________________________________
REASONS FOR JUDGMENT AND JUDGMENT
1 RENNIE J.:-- The applicant seeks judicial review of a decision dated January 6, 2011 by the Federal Skilled Worker Centralized Intake Office (FSWCIO) of the respondent Minister which refused his application for permanent residency in the Federal Skilled Workers (FSW) category. For the reasons that follow, the application is granted.
Facts
2 On May 14, 2010, the applicant submitted an application for permanent residency under the FSW category to the FSWCIO in Sydney, Nova Scotia. The application was date-stamped received on May 14, 2010.
3 In a July 30, 2010 letter, the FSWCIO informed the applicant that his application did not conform to section 10 of the Immigration and Refugee Protection Regulations (SOR/2002-227) (IRPR), was incomplete, was being returned to him and had not been "received" by that office. The letter indicated, in an attached Appendix C, those parts of the application that were considered by the FSWCIO to be incomplete.
4 Two boxes were checked in Appendix C. The first box indicated that essential fields were not completed, the second that the Visa Office which would process the application was not indicated.
5 In a subsequent letter dated August 26, 2010, the FSWCIO also informed the applicant that his application did not meet the June 26, 2010 ministerial instructions nor the requirements of section10 of the IRPR because his application was not accompanied by the results of English or French language proficiency test.
6 I pause at this point in the review of the facts to point out that no explanation was given as to why, if on July 30, 2010, the FSWCIO advised the applicant that his application had been returned and "not received" it wrote to the applicant some three weeks later.
7 In a January 6, 2011 letter, the FSWCIO informed the applicant that, inter alia, his application was ineligible for processing because his intended occupation (NOC Code 0213) no longer corresponded to the list of eligible occupations listed in the June 26, 2010 ministerial instructions.
Issue
8 The single issue in this case is whether the applicant's application was "received" by the FSWCIO before June 26, 2010. It was on this date the list of occupational codes had changed. If the application was received before June 26, 2010, it would have been governed by the ministerial instructions which prevailed at the time, not the June 26, 2010 ministerial instructions. The occupation code which the applicant indicated in his application was on the list of eligible occupations before June 26, 2010, but not after this date.
9 The interface between the facts surrounding the receipt of the application and the requirements of section 10(1)(c) of the IRPR is a mixed question of fact and law, to be assessed against a standard of reasonableness. The decision falls short of the standard.
10 There is no evidence in the record which supports the conclusion reached that the application was incomplete, nor which justified deeming it not to have been received. All aspects of the form were completed. The fact that the applicant offered either London or Dubai as an acceptable Visa Office, a factor presumably to the respondent's advantage, did not render the application incomplete and it was unreasonable to consider it to be so. Section 10(1)(c) of the IRPR requires that "all information be provided". All information was provided. None was omitted.
11 Notwithstanding its letter deeming the application not to be complete the respondent continued to treat the May 14, 2010 application as if it was in fact extant. In the August 26, 2010 correspondence, the respondent wrote to the applicant "referring to your application for permanent residency" and advising him that his application (which presumably had not been received and of which no record kept) was rejected on the basis of the fact that it was not accompanied by the results of English or French language proficiency tests. It notes that the occupational codes had changed as of June 26, 2010, but curiously, it does not reject the application on that basis, but solely on the basis of absence of language proficiency tests.
12 The August 26, 2010 letter is, of course, inconsistent with the July 30, 2010 letter, but is consistent with the conclusion that the application was still extant and was being considered as such.
13 On January 9, 2011, the applicant was advised that the review of his application for permanent residence in Canada as a Federal Skilled Worker "has been completed" and that it was rejected on the basis that his declared occupational code no longer corresponded to the eligible occupations.
Analysis
14 The respondent sought to explain the August 26, 2010 letter by speculating that the letter was prompted by a subsequent or intervening application. Matters such as this cannot be the subject of speculation. If the respondent Minister thought that a second application was made, he should have cross-examined on the affidavit. He did not. Nor was this second phantom application averred to in the respondent's affidavit. What is proposed as an explanation is not a reasonable or logical inference to be drawn from a series of known facts, but is in the realm of pure speculation, and requires a certain measure of disbelief. The May 14, 2010 application was considered in roughly ten weeks but on the theory advanced by the respondent, the second application was received and considered in less than three weeks, including the time for the transmission of letters from Sydney, Nova Scotia, to Dubai and from Dubai back to Sydney.
15 The Court must be governed by the record and evidence before it and will not speculate or fill in the blanks to make a case that could otherwise have been made on the record according to the rules of civil procedure and evidence.
Remedy
16 In Al Mashtouli v Canada (Minister of Citizenship and Immigration) 2006 FC 94, the respondent Minister, in similar but not identical circumstances, advised the Court that if the point of law was determined against him, the application would be processed in accordance with the regulations that prevailed at the time. In consequence, the application was adjourned for one year, after which it could be brought back to the Court if it had not been resolved. No such undertaking was offered in this case. In consequence, mandamus will issue.
JUDGMENT
THIS COURT'S JUDGMENT is that:
• 1. The application for judicial review is granted.
• 2. An Order of mandamus is granted directing the respondent to consider the applicant's application for permanent residence under the Federal Skilled Worker program as per the ministerial directions in place as of the date the application was received, May 14, 2010.
• 3. No question for certification arises.
RENNIE J.
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