Singh v. Canada (Minister of Citizenship and
Immigration)
Between
Gurinder Singh, Applicant, and
The Minister of Citizenship and Immigration, Respondent
The Minister of Citizenship and Immigration, Respondent
[2012] F.C.J. No. 962
2012 FC 855
Docket IMM-3207-11
Federal Court
Toronto, Ontario
O'Keefe J.
Heard: January 16, 2012.
Judgment: July 5, 2012.
Docket IMM-3207-11
Federal Court
Toronto, Ontario
O'Keefe J.
Heard: January 16, 2012.
Judgment: July 5, 2012.
(36 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 O'KEEFE J.:-- This is an application pursuant
to subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (the Act) for judicial
review of a decision of an immigration section officer of the Nova Scotia Case
Processing Centre (the officer), dated April 29, 2011, wherein the applicant
was denied permanent residence under the federal skilled worker class of
subsection 12(2) of the Act and subsection 76(1) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the
Regulations). This decision was based on the officer's finding that the
applicant did not meet the minimum point requirement to qualify for immigration
to Canada.
2 The
applicant requests that the officer's decision be quashed and the matter be
remitted for redetermination by a different officer.
Background
3 The
applicant, Gurinder Singh, is a citizen of India. He currently resides in
Australia.
4 The
applicant submitted an application for permanent residence under the federal
skilled worker class as a cook. His wife, Amanpreet Kaur, was included as a
dependent.
5 As
part of his application, the applicant indicated that Ajit Singh Nagra and
Nasib Kaur Nagra, his maternal grandparents, were permanent residents in Canada
and that Balwinder Singh Nagra, his maternal uncle, was a Canadian citizen. All
three allegedly live together in Surrey, British Columbia. In support, the
applicant filed the following documents:
Affidavit from Ajit
Singh Nagra, Nasib Kaur Nagra and Balwinder Singh Nagra attesting to their
relationship with the applicant and their residency in Canada;
Permanent residence
cards for Ajit Singh Nagra and Nasib Kaur Nagra; and
Canadian passport for
Balwinder Singh Nagra.
Officer's Decision
6 In
a letter dated April 29, 2011, the officer denied the applicant's application.
The Global Case Management System (GCMS) notes that form part of the officer's
decision explain the reasons for the denial.
7 The
officer assessed a total of 62 points for the applicant's application for
permanent residence:
Age:
|
10 points
|
||
Education:
|
15 points
|
||
Official language
proficiency:
|
16 points
|
||
Arrangement
employment:
|
0 points
|
||
Experience:
|
21 points
|
||
Adaptability:
|
0 points
|
8 The
officer explained why no points were awarded for adaptability as follows:
· No points have been assigned for a relative in Canada as
insufficient evidence is on file to satisfy me of your relationship to
Balwinder Singh Nagra, Ajit Singh Nagra or Nasib Kaur Nagra. No documents (such
as birth certificates) were provided to link Balwinder Singh Nagra, Ajit Singh
Nagra or Nasib Kaur Nagra with either of your parents. In addition, there is
insufficient evidence on file to satisfy me of your relative residing in
Canada.
9 As
the applicant's total assessed points was below the minimum statutory
requirement of 67 points, the officer found that the applicant had failed to
prove that he would be able to become economically established in Canada. His
application for permanent residence under the skilled worker class was
therefore denied.
Issues
10 The
applicant submits the following points at issue:
What is the standard of
review?
Is the decision
unreasonable because the applicant's evidence that he had family in Canada was
disregarded without explanation by the officer?
Is the decision unfair
because it is deficient?
Is the decision unfair
because the officer should have provided the applicant with an opportunity to
address his concerns?
Should costs be awarded
to the applicant?
11 I
would rephrase the issues as follows:
What is the appropriate
standard of review?
Did the officer deny
the applicant procedural fairness?
Applicant's Written Submissions
12 The
applicant submits that the correctness standard applies to issues of procedural
fairness whereas the reasonableness standard applies to the review of the
officer's consideration of the evidence.
13 The
applicant submits that it is a reviewable error for an officer to disregard
evidence without providing clear reasons for so doing. In this case, the
officer erred in not explaining why the evidence that the applicant submitted
for his relatives in Canada was insufficient. This error rendered his decision
unreasonable.
14 The
applicant submits that the evidence he did file (permanent residence cards,
passport and affidavit) was sufficient to award him five points under the
adaptability factor, as per subparagraphs 83(5)(a)(ii) and (v) of the Act. Had
these five points been awarded, his score would have reached the required 67
points.
15 Further,
the applicant submits that it was not open to the officer to reject his
evidence without further inquiries. If the officer had concerns about the
veracity or truth of the evidence, he should have interviewed the applicant or
at least notified him by letter and provided him with an opportunity to
respond.
16 The
applicant also submits that the officer's errors were so egregious that they
warrant the awarding of costs. The deficient reasons indicate that the officer
treated the decision making process in a cavalier manner.
Respondent's Written Submissions
17 The
respondent submits that an officer's decision on a skilled worker application
attracts deference. The awarding of points is primarily a factual determination
that attracts significant deference. Conversely, issues of procedural fairness
are reviewable on a correctness standard.
18 The
applicant bears the onus of providing all relevant information and
documentation required to meet the statutory requirements of the Act. Contrary
to the applicant's submissions, the respondent submits that to benefit under
the adaptability category, applicants bear the onus of demonstrating that
qualifying relatives reside in Canada. This onus does not shift to the officer.
The officer is not obliged to gather or seek additional evidence or to make
further inquiries.
19 The
respondent submits that the passports and permanent residence cards submitted
by the applicant do not show the addresses of these individuals nor their
relation to the applicant or his spouse. Further, no documentary evidence was
attached to the affidavit to objectively prove the information contained
therein. The officer was not obliged to accept the affidavit as the probative
value of affidavits submitted by interested parties is limited.
20 The
respondent also submits that the applicant has not provided birth certificates
or other documentation to link Balwinder Singh Nagra, Ajit Singh Nagra or Nasib
Kaur Nagra with either of his parents. The document checklist that the
applicant submitted with his application specifically instructed him to provide
this proof. Not only did he not provide this proof, but he also failed to
provide a letter indicating why he was unable to do so. The officer clearly
indicated in his decision that he refused to award these points due to the lack
of a birth certificate or other document showing that the applicant was related
to the stated individuals. The respondent also notes that the applicant did not
provide any documentary evidence that these individuals reside in Canada such
as leases, mortgages, tax forms or pay stubs.
21 In
summary, the respondent submits that the officer's factual conclusion was
reasonable. The applicant has also not shown that any special reasons exist to
warrant this Court awarding costs.
Analysis and Decision
Issue 1
What is the appropriate standard of review?
22 Where
previous jurisprudence has determined the standard of review applicable to a
particular issue before the court, the reviewing court may adopt that standard
(see Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 SCR 190 at paragraph 57).
23 An
officer's determination of eligibility for permanent residence under the
federal skilled worker class involves findings of fact and law and is
reviewable on a standard of reasonableness (see Malik v
Canada (Minister of Citizenship and Immigration), 2009
FC 1283, [2009] FCJ No 1643 at paragraph 22; and Khan v
Canada (Minister of Citizenship and Immigration), 2009
FC 302, [2009] FCJ No 676 at paragraph 9).
24 Conversely,
the appropriate standard of review for issues of procedural fairness and natural
justice is correctness (see Malik above, at paragraph 23; Khan above, at paragraph 11; and Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12,
[2009] SCJ No 12 at paragraph 43). No deference is owed to officers on this
issue (see Dunsmuir above, at
paragraph 50).
Issue 2
Did the officer deny the applicant procedural
fairness?
25 The
applicant raises two procedural fairness issues in this application:
The officer erred by
not explaining why the evidence submitted on his Canadian relatives was
insufficient; and
The officer erred by
rejecting his evidence without making further inquiries.
26 Before
engaging in the analysis on these issues, it is notable that applicants for
permanent residence under the federal skilled worker class are not entitled to
strong procedural safeguards. As described by Mr. Justice Robert Mainville in Malik above, at paragraph 26:
· [...] The nature of the regulatory scheme, the role of the decision
of the visa officer in the overall scheme, and the choice of procedure made do
not therefore suggest the need for strong procedural safeguards beyond what is
already provided for in the legislation, save the procedural safeguard
concerning proper information to applicants as to the criteria used and the
documentation required to properly assess their applications. Though the
decision to grant or not an application for permanent residence under the
federal skilled worker class is obviously important to the individual affected,
it is not such as to affect the fundamental freedoms or other fundamental
rights of an applicant, such as a criminal proceeding or, in the immigration
context, a deportation proceeding might have. In addition, no undertakings are
made to applicants as to an interview or as to additional notification if
documentation is missing or insufficient, thus considerably limiting
expectations of applicants in such matters.
27 This
constraint on procedural safeguards is in place to ensure the efficiency and
equity of the system to all applicants (see Singh v
Canada (Minister of Citizenship and Immigration), 2011
FC 956, [2011] FCJ No 1172 at paragraph 14).
28 Turning
to the applicant's first issue, the officer did provide some explanation in the
decision for his finding that the evidence was insufficient:
· No documents (such as birth certificates) were provided to link
Balwinder Singh Nagra, Ajit Singh Nagra or Nasib Kaur Nagra with either of your
parents.
29 Further,
as stated by the respondent, the probative value of affidavits from interested
parties is limited. As Mr. Justice Russel Zinn explained in Ferguson v Canada (Minister of Citizenship and Immigration), 2008 FC 1067, [2008] FCJ No 1308 (at paragraph 27):
· Evidence tendered by a witness with a personal interest in the
matter may also be examined for its weight before considering its credibility
because typically this sort of evidence requires corroboration if it is to have
probative value. If there is no corroboration, then it may be unnecessary to
assess its credibility as its weight will not meet the legal burden of proving
the fact on the balance of probabilities. When the trier of fact assesses the
evidence in this manner he or she is not making a determination based on the
credibility of the person providing the evidence; rather, the trier of fact is
simply saying the evidence that has been tendered does not have sufficient
probative value, either on its own or coupled with the other tendered evidence,
to establish on the balance of probability, the fact for which it has been tendered.
[...]
30 As
the affidavit here was unsupported by corroborating evidence, the only evidence
on the applicant's relatives in Canada were the permanent residence cards and
the Canadian passport. These did not show that the applicant or his wife were
related to these individuals. Further, in the document checklist that the
applicant filed with his application, the first point under the section titled
"Proof of relationship in Canada" clearly states: "Proof of
relationship to your close relative in Canada, such as birth, marriage or
adoption certificates". As noted by the officer, none of this information
was provided.
31 Bearing
in mind the lack of strong procedural safeguard rights granted to permanent
residence applicants under the federal skilled worker class, I do not find that
the officer erred by not explaining why the evidence that the applicant
submitted for his relatives in Canada was insufficient.
32 Turning
to the second issue, the applicant submits that it was not open to the officer
to reject his evidence without making further inquiries. However, it is
established jurisprudence that an officer is under no duty to inform the
applicant about any concerns regarding the application that arise directly from
the requirements of the legislation and that do not pertain to the veracity of
the documents (see Hassani v Canada (Minister of
Citizenship and Immigration), 2006 FC 1283, [2006] FCJ
No 1597 at paragraphs 23 and 24). The onus is always on the applicant to
satisfy the officer of all parts of his application. The officer is under no
obligation to ask for additional information where the applicant's material is
insufficient (see Sharma v Canada (Minister of
Citizenship and Immigration), 2009 FC 786, [2009] FCJ
No 910 at paragraph 8; and Veryamani v Canada (Minister
of Citizenship and Immigration), 2010 FC 1268, [2010]
FCJ No 1668 at paragraph 36).
33 In
this case, the officer found that the applicant's application was insufficient
with respect to information on his stated Canadian relatives. To be awarded
points for adaptability under the Act and the Regulations, adequate supporting
information must be submitted. The applicant did have prior notice of the
application requirements by way of the document checklist that he filled in and
submitted with his permanent residence application. In addition, contrary to
the applicant's submissions, there was no suggestion that the credibility,
accuracy or genuine nature of the information was of concern to the officer.
Therefore, according to the established jurisprudence, the officer was not
required to ask for additional information of the applicant and the applicant
was not denied procedural fairness.
34 In
summary, I find the applicant has failed to show any reviewable error. The
officer was under no obligation to explain his findings in greater detail or to
request more information from the applicant. As such, I would dismiss this
judicial review.
35 Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
36 The
applicant requested an award of costs, however, I am not prepared to award
costs as I am of the view that special reasons do not exist in this case.
JUDGMENT
THIS COURT'S JUDGMENT is that the application for judicial review is dismissed.
O'KEEFE J.
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