"On the basis of the evidence on record, the Court
is of the view that the Officer's reasons are adequate, as they explicitly make
reference to the issue of "credibility and fabrication for immigration
purposes"."
Applicants are cautioned not to resor to tactics that can be construed as attempting to mislead the administration fo the Act.
Obeta v. Canada (Minister of Citizenship and
Immigration)
Between
Michael Okwu Obeta, Applicant, and
The Minister of Citizenship and Immigration, Respondent
The Minister of Citizenship and Immigration, Respondent
[2012] F.C.J. No.
1624
2012 FC 1542
Docket IMM-4390-12
Federal Court
Montréal, Quebec
Boivin J.
Heard: December 5, 2012.
Judgment: December 21, 2012.
Docket IMM-4390-12
Federal Court
Montréal, Quebec
Boivin J.
Heard: December 5, 2012.
Judgment: December 21, 2012.
(29 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 BOIVIN J.:-- This is an application for
judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act] in
which the applicant seeks to quash the decision of a Visa Officer (the Officer)
dated March 14, 2012, denying his application for a permanent resident visa
under the federal skilled worker class on the basis that he failed to adduce
adequate evidence of his work experience. For the following reasons, the
application for judicial review will be dismissed.
Factual background
2 Mr.
Michael Okwu Obeta (the applicant) is a citizen of Nigeria. He is married and
has two (2) minor children. The applicant applied for a permanent resident visa
under the Federal Skilled Worker class. He has eighteen (18) years of formal
education and holds a Bachelor's of Science in Accountancy and a Project
Management Professional certificate. The applicant's spouse has seventeen (17)
years of formal education and also holds a Bachelor's of Science (Tribunal
Record, pp 25-26, 29, 34 and 62). The applicant claims to have over four (4)
years of experience under the National Occupational Classification (NOC) code
0711 as a Construction Project Manager, and over two (2) years of work
experience under the NOC code 0111 as a Financial Control Manager (Tribunal
Record, p 39).
3 The
applicant's application was received on January 14, 2010 and forwarded to the
Visa Office in Accra, Ghana, after an initial assessment on March 8, 2010
(Tribunal Record, pp 3-4). The applicant was asked at that time to submit his
full application within one hundred and twenty (120) days and to send it to
Accra (Tribunal Record, p 4). Further documents were requested from the
applicant on November 28, 2011. The applicant submitted several documents in
support of his application, including:
letters of employment
from Cirico Technical Services Limited (Cirico): a first letter dated March 30,
2010 (Tribunal Record, p 72), and a second letter submitted after the November
28, 2011 request, dated December 2, 2011 (Tribunal Record, p 85);
letter of employment
from Indepco Ltd (Indepco), dated March 30, 2010 (Tribunal Record, p 73);
letter of employment
from the Nigeria Union of Local Government Employees (Nulge), dated April 26,
2010, which does not refer to a listed NOC code for Federal Skilled Workers
(Tribunal Record, p 74)
employment offer from
Indepco, dated August 6, 2001 (Tribunal Record, pp 79-81), signed August 9,
2004
employment offer from
Cirico, dated February 6, 2004 (Tribunal Record, pp 75-78), signed on February
10, 2004.
4 The
letters from Cirico attested to the applicant's position as a Construction
Project Manager since February 2004 and listed ten (10) main duties
(corresponding to NOC code 0711). The letter from Indepco indicated that the
applicant had worked for this company from August 2001 until January 2004 as a
Financial Control Manager and listed nine (9) main duties (corresponding to NOC
code 0111).
5 The
applicant's application was reviewed and denied by the Officer on March 14,
2012 (Tribunal Record, p 7-10).
Decision under review
6 The
Computer Assisted Immigration Processing System (CAIPS) notes indicate that the
applicant had, at a preliminary stage, sufficient points to meet the
requirements of the Act, having accumulated a total of sixty-nine (69) points
while the required amount is sixty-seven (67). Of the applicant's sixty-nine
(69) points, twenty-one (21) were provisionally awarded for work experience
based on the applicant's submissions (Tribunal Record, p 7). However, upon
review by the Officer, the documents supporting the applicant's work experience
were rejected and his application was therefore deemed ineligible for
processing.
7 The
Officer found the letter submitted by the applicant from Cirico describing his
duties as a Construction Project Manager since February 2004 was not credible
and was likely fabricated for immigration purposes (Tribunal Record, pp 7 and
72). The letter listed tasks which appeared to be copied directly from the NOC
code 0711 and slightly modified. The company's letterhead and the business card
attached to the letter were printed using an ink-jet printer. Furthermore, the
Officer found it improbable that the applicant would be hired as a Construction
Project Manager when he had no previous experience or training in the
construction industry.
8 The
Officer also gave little weight to a letter submitted by the applicant from
Indepco Ltd. to corroborate his experience under the NOC code 0111 as a
Financial Control Manager, also finding that it was likely fabricated for
immigration purposes (Tribunal Record, pp 8 and 73). The Officer noted that the
letter was printed on the same type of paper, using the same low-quality
ink-jet printer, and otherwise looked very similar to the Cirico reference
letter. The Officer noted that the duties listed on this letter also appear to
be copied from the wording of the NOC code 0111.
9 Given
the lack of satisfactory evidence concerning the applicant's work experience
under the NOC code 0711 and NOC code 0111, the application was deemed
ineligible for processing and was refused. The letter sent to the applicant,
dated March 14, 2012, informed the applicant that he had "not provided
sufficient evidence that [he] performed the actions described in the lead
statement for those occupations" (Tribunal Record, p 9). The applicant
requested reconsideration of the refusal decision on March 23, 2012. Attached
to this request was a more detailed letter of employment from Cirico
(Applicant's Record, Applicant's Affidavit, Exhibits H and I, pp 37-43). The
applicant having received no response to his request for reconsideration, a
reminder was sent via email by his counsel on April 3, 2012, which has also
allegedly remained unanswered (Applicant's Record, Applicant's Affidavit, Exhibit
J, p 46). The applicant therefore filed this application for judicial review.
Issues
10 After
considering both parties' proposed issues for this application for judicial
review, the Court is of the view that the issues are as follows:
Did the Officer breach
the duty of procedural fairness by not giving the applicant the opportunity to
address his doubts about the evidence being falsified?
Did the Officer err in
deciding that the applicant's permanent residence application was ineligible
for processing?
Statutory provisions
11 The
relevant provisions of the Act and the Immigration and
Refugee Protection Regulations, SOR/2002-227 [the
Regulations], setting out the legislative framework for permanent residence
applicants under the Federal Skilled Workers class, are set out in annex to
this judgment. The Regulations require a minimum of one (1) year experience in
a listed NOC code in the ten (10) year period preceding the application.
12 Furthermore,
section 87.3 of the Act provides for the issuance of Ministerial Instructions
by the Minister of Citizenship and Immigration. The Ministerial Instructions,
which were applicable to Federal Skilled Workers when the applicant applied for
permanent residence, are entitled "MI1" (Ministerial Instructions,
(2008) C Gaz I, 3043). They were applicable to applications received between
February 27, 2008 and June 26, 2010. According to the MI1, applicants had to
meet the requirements set forth under the instructions before being eligible
for processing. Specifically, applicants had to have secured an Arranged
Employment Offer (AEO) or have at least one (1) year of continuous full-time
paid work experience over the last ten (10) years in one of the specified
occupations set out by the NOC and listed in the Ministerial Instructions.
Having no AEO, the applicant in the present case had to demonstrate that he had
at least one (1) year of continuous full-time paid work experience in a listed
NOC code during the ten (10) preceding years for his application to be eligible
for processing.
Standard of review
13 Both
parties submit that the issue is one of procedural fairness. When examining an
issue of procedural fairness, the task for the Court is to determine whether
the process followed by the decision-maker satisfied the level of fairness
required in all of the circumstances (Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at
para 43, [2009] 1 SCR 339).
14 The
issue of whether or not the Officer should have brought his concerns to the
attention of the applicant and offered him an opportunity to address them is a
question of procedural fairness, and is reviewable on a standard of
correctness. However, the Officer's concerns themselves, namely his assessment
of the evidence and subsequent conclusion that the application was ineligible
for processing, are reviewable on the standard of reasonableness (Kamchibekov v Canada (Minister of Citizenship and Immigration), 2011 FC 1411 at para 12, [2011] F.C.J. No. 1782 (QL) [Kamchibekov]). Deference being owed to the
Officer in his assessment of the evidence, the Court will only interfere with
the Officer's conclusions if they do not fall "within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law"
((Dunsmuir v New Brunswick, 2008
SCC 9 at para 47, [2008] 1 SCR 190 [Dunsmuir]).
Analysis
15 From
the outset, the Court recalls that visa applicants are owed a degree of
procedural fairness which falls at the low end of the spectrum (Dash v Canada (Minister of Citizenship and Immigration), 2010 FC 1255 at para 27, [2010] F.C.J. No. 1565 (QL) [Dash]), there being no substantive rights at
issue as an applicant has no right to enter Canada (Wang
v Canada (Minister of Citizenship and Immigration),
2006 FC 1298 at para 20, 302 FTR 127). The decision on the application is
neither judicial nor quasi-judicial in nature.
16 In
the present circumstances, the main issue raised by the applicant concerns
allegations of breach of the duty of procedural fairness: i.e., that the
Officer erred by not informing the applicant of his concerns with the authenticity
of the letters provided in support of this application.
17 More
particularly, the applicant submits that the Officer should have provided him
with a meaningful opportunity to respond to his concerns, and by failing to do
so, the Officer committed a breach of procedural fairness (Li v Canada (Minister of Citizenship and Immigration), 2008 FC 1284, 337 FTR 100; Rahim v Canada
(Minister of Citizenship and Immigration), 2006 FC 1252
at para 12, 152 ACWS (3d) 501). In this regard, the applicant relies on Torres v Canada (Minister of Citizenship and Immigration), 2011 FC 818 at para 38, 2 Imm LR (4th) 57 [Torres], to argue that "where credibility, accuracy or the genuine
nature of information is in question, a duty also exists to give an opportunity
to an applicant to disabuse an officer of any concerns that may arise"
(also relying on Hassani v Canada (Minister of
Citizenship and Immigration), 2006 FC 1283, [2007] 3
FCR 501 [Hassani]). The
applicant submits that his application was complete and that the issue is
accordingly not one of sufficiency, but rather of authenticity, of the
documents provided in support of his application. In the applicant's view, it
follows that the Officer owed him a duty of fairness.
18 The
respondent disagrees and argues that the documents presented to the Officer
contained numerous defects and lacked credibility. In such circumstances,
maintains the respondent, no duty of fairness arises.
19 The
applicant in this case agrees that an Officer is under no obligation to allow a
given applicant to make further submissions if the concern is one that arises
from the legislation or regulation. However, the applicant submits that his
application was complete as it included the information required. As such, the
applicant contends that he complied with the legislation and regulation and
provided sufficient
information. As indicated above, the applicant alleges that this case is not
one that raises an issue of sufficiency of information - where no duty is owed by the Officer - but of authenticity of information. On the basis of
this distinction, the applicant relies strongly on paragraph 24 in Hassani, and asserts that the Officer had a
duty to provide him with an opportunity to address his concerns regarding the
authenticity of the documents provided in support of his application. Justice
Mosley in Hassani, above, at
paragraph 24, observed the following:
· [24] Having reviewed the factual context of the cases cited above,
it is clear that where a concern arises directly from the requirements of the
legislation or related regulations, a visa officer will not be under a duty to
provide an opportunity for the applicant to address his or her concerns. Where however the issue is not one that arises in this context, such
a duty may arise. This is often the case where the credibility, accuracy or
genuine nature of information submitted by the applicant in support of their
application is the basis of the visa officer's concern,
as was the case in Rukmangathan,
and in John and Cornea cited by the Court in Rukmangathan, above.
|
[Emphasis added.]
|
|
20 For
the reasons that follow, the Court cannot agree with the applicant's position
and interpretation of Hassani.
21 Firstly,
the use of the word may at
paragraph 24 in Hassani is an
indication that Justice Mosley did not frame the duty of the Officer in
absolute terms, as the applicant seems to suggest. In other words, Justice
Mosley did not rule that there is necessarily a duty to provide an opportunity for the applicant to address his
or her concerns when they arise outside the context of requirements pursuant to
the legislation or related regulations.
22 Likewise,
the use of the word often is
another indication that such a duty is not necessarily triggered even where the
credibility, accuracy or genuine nature of information submitted by the
applicant is at issue. Depending on the circumstances, this duty may simply not
arise. Here, the Officer referred to the fact that the reference letters from
past employers were most probably fabricated for immigration purposes.
23 The
Court observes, for instance, that the Officer noticed that the letters at
pages 72, 73 and 74 of the Tribunal Record have the same font. He also noticed
that the business cards make reference to a @yahoo.com and a @gmail.com email
addresses, but not to a corporate email. Two (2) letters from two (2) different
employers are signed on the same day, using the same type of paper with both
letterheads printed in poor quality ink-jet and are otherwise quite alike
(Tribunal Record, pp 72 and 73). The Officer further noticed that the duties
enumerated in the letter from Cirico are nearly copied from the NOC. The
applicant's comparative table between the NOC and the reference letters
submitted to the Court failed to convince this Court (Applicant's Reply, para
6). Furthermore, the Officer noted that it would be unlikely for a company to
hire the applicant for a position (Construction Project Manager) for which he
had no apparent previous experience (Tribunal Record, p 8). Thus, on the basis
of this information, the Court is of the opinion that the Officer's decision
was reasonable.
24 Following
the decision to the effect that the application was ineligible for processing
and hence refused, the applicant attempted to perfect his application (Tribunal
Record, pp 41-42). For instance, he explained that the use of ink-jet printers
and the particular type of paper used by the employers is common practice for
businesses in Nigeria (Applicant's Record, Applicant's Affidavit, p 16;
Affidavit of Arinze Samuel Chukwudile, p 49), and that the font used on the
letters is a default font on many computers in Nigeria (Applicant's Record,
Applicant's affidavit, paras 31-32, pp 16-17). The Court agrees with the
respondent that these statements made by the applicant in his own affidavit
with respect to generalized business practice in Nigeria as to the paper,
printer and font typically used are self-serving statements. (Applicant's
Record, Affidavit of the Applicant, paras 28, 30 and 32, pp 16-17).
25 As
explained earlier, the burden of providing sufficient information rests on the
applicant, and where the Officer's concerns arise directly from the
requirements of the Act or its Regulations, there is no duty on the Officer to
raise doubts or concerns with the applicant (Kaur v
Canada (Minister of Citizenship and Immigration), 2010
FC 442 at para 11, [2010] F.C.J. No. 587 (QL) [Kaur]; Hassani, above, at
para 24). Also, and contrary to the applicant's submission, there is no such
absolute duty on the Officer where the application, on its face, is void of
credibility. In terms of sufficient information, the onus will not shift on the
Officer simply on the basis that the application is "complete". The
applicant has the burden to put together an application that is not only
"complete" but relevant, convincing and unambiguous (Singh v Canada (Minister of Citizenship and Immigration) 2012 FC 526, [2012] F.C.J. No. 548; Kamchibekov, above, at para 26). Despite the distinction that the applicant
attempts to make between sufficiency and authenticity, the fact of the matter
is that a complete application is in fact insufficient if the information it
includes is irrelevant, unconvincing or ambiguous.
26 Moreover,
the Court refers to the observations of Justice Zinn in Singh
v Canada (Minister of Citizenship and Immigration),
2009 FC 620 at para 7, [2009] F.C.J. No. 797:
· [7] I find that there is no merit to the submission that the officer
ought to have provided the applicant with an opportunity to address his
concerns. Justice Russell in Ling v Canada (Minister of
Citizenship and Immigration), 2003 FC 1198, reviewed
the law as to when a visa officer ought to provide such an opportunity. Relying
on Ali v Canada (Minister of Citizenship and
Immigration), [1998] F.C.J. No. 468, he noted firstly
that there was no statutory right to an interview, or any dialogue of the sort
suggested here. Secondly, it was noted that generally
an opportunity to respond is available only when the officer has information of
which the applicant is not aware. As in Ling, that is not the situation here and thus no opportunity was
required to be given to Mr. Singh to address the officer's concerns. Further,
when as here the officer is relying only on materials submitted by or known to
the applicant, there is no need for an interview.
|
[Emphasis added.]
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27 Finally,
the applicant relies on the case of Patel v Canada
(Minister of Citizenship and Immigration), 2011 FC 571
at paras 21-27, [2011] F.C.J. No. 714 (QL) [Patel], to support his argument that when the concern relates to the
veracity (authenticity) of a document, as opposed to its sufficiency, an officer
is obligated to inform an applicant of any concerns. In Patel, the officer was concerned about the veracity of the letter because
the duties appeared to be copied directly from the NOC descriptions. The Court
held that it was an error not to inform the applicant of such doubts on the
credibility of the submitted documents and set aside the officer's decision for
breach of procedural fairness. However, the Patel decision is distinguishable from the present case. Indeed, in Patel, the Court found that the officer's
reasons were inadequate (Patel,
para 26). On the basis of the evidence on record, the Court is of the view that
the Officer's reasons are adequate, as they explicitly make reference to the
issue of "credibility and fabrication for immigration purposes".
28 In
the result, the applicant has not established that the Officer erred in
considering the information before him, or that the Officer had a duty to give
the applicant an opportunity to address his concerns. On the basis of the record
taken as a whole and discussed above, the Court is therefore of the view that
the Officer's decision was not unreasonable (Newfoundland
and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708; Smith v
Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 SCR 160; Construction Labour Relations v Driver Iron Inc., 2012 SCC 65, [2012] S.C.J. No. 65).
29 Consequently,
the application for judicial review will be dismissed.
JUDGMENT
THIS COURT'S JUDGMENT is that the application for judicial review is dismissed. No question of
general importance is certified.
BOIVIN J.
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