Hamza v. Canada (Minister of Citizenship and Immigration)
Between
Abu Asim Hamza, Applicant, and
The Minister of Citizenship and Immigration, Respondent
The Minister of Citizenship and Immigration, Respondent
[2013] F.C.J. No. 284
2013 FC 264
Docket IMM-3693-12
Federal Court
Montréal, Quebec
Bédard J.
Heard: January 30, 2013.
Judgment: March 12, 2013.
Docket IMM-3693-12
Federal Court
Montréal, Quebec
Bédard J.
Heard: January 30, 2013.
Judgment: March 12, 2013.
(45 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 BÉDARD J.:-- Mr Hamza (the applicant or Mr
Hamza) is a citizen of Pakistan. He submitted an application for permanent
residence in Canada in the Federal Skilled Worker class as a family physician.
On January 27, 2012, his application was refused at the screening stage by the
Canadian High Commission in London because the visa officer (the Officer) found
that the applicant had not provided sufficient independent documentation
demonstrating his experience as a general practitioner or family physician.
2 This
application seeks judicial review of that decision pursuant to section 72 of
the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act]. For the following reasons the application
is allowed.
Background
3 On
June 22, 2009, the applicant submitted an application for permanent residence
in Canada as a member of the Federal Skilled Worker class. He included his wife
and three children in his application.
4 The
requirements that foreign nationals applying for permanent residence as Federal
Skilled Workers must satisfy are set out in the Act and in the Immigration and Refugee Protection Regulations, SOR 2002-227 [the Regulations]. Subsection 12(2) of the Act states
that foreign nationals may be selected as members of the economic class
"on the basis of their ability to become economically established in
Canada." Subsection 75(1) of the Regulations specifies that the Federal
Skilled Worker class refers to a class of persons who are skilled, and who have
the ability to become economically established in Canada. Subsection 75(2) of
the Regulations defines the skilled worker as a person who has at least one
year of continuous full-time employment experience in one of the listed
occupations of the National Occupational Classification (NOC) within the last
10 years. In order to be recognized as a skilled worker, a person must
establish that during that period of employment, he or she performed the
actions described in the lead statement of the NOC for the relevant position
and a substantial number of the main duties as set out in the NOC, including
all of the essential duties (paragraphs 75(2)(b) and (c)). The occupation of
"general practitioner and family physician" is described in NOC 3112.
5 In
schedule 1 of his application form, the applicant indicated that he has been
working as a family physician, both at his privately owned clinic and at the
Sindh Governmental Hospital in Karachi since 1988. To establish his work
experience, he provided a self-declared certificate, attesting that he had been
practicing as a family physician at his clinic since 1988 and setting out his
main duties and responsibilities. He also filed a letter, dated November 14,
2009, from Dr Imtiaz Haroon, Medical Superintendent of the Sindh Government
Hospital of Liaquatabad in Karachi (the employment letter), attesting that the
applicant has been working in their organization as a family physician since
1988. Dr Haroon also listed the applicant's major responsibilities, which
mirror several duties listed in the NOC 3112. The employment letter ends with a
comment from the Superintendent stating that the applicant is "very
co-operative, hard working and a dedicated doctor". In addition, the
Superintendent noted that the certificate was being issued at the applicant's
request.
Decision under review
6 The
Officer determined that Mr Hamza's application was not eligible for processing.
In her letter refusing eligibility, the Officer indicated that she was not
satisfied that the applicant was a general practitioner or family physician
because he failed to provide sufficient independent documentation demonstrating
his experience. The refusal letter further states as follows:
· You have indicated that you have work experience in (an)
occupation(s) with the following NOC (National Occupational Classification)
code(s) 3112: General Practitioners and Family Physicians.
· Although the NOC code(s) correspond(s) to the occupations specified
in the Instructions, the main duties that you listed do not indicate that you
performed the actions described in the lead statement for the occupation, as
set out in the occupational descriptions of the NOC, or that you performed all
of the essential duties and a substantial number of the main duties, as set out
in the occupational descriptions of the NOC.
· You have not provided sufficient independent documentation to
demonstrate your experience in NOC code 3112. I am therefore not satisfied that
you are a General Practitioner or Family Physician.
· Since you did not provide satisfactory evidence that you have work
experience in any of the listed occupations, you do not meet the requirements
of the Ministerial Instructions and your application is not eligible for processing.
· [Emphasis added]
7 The
Officer's Computerized Assisted Immigration Processing System (CAIPS) notes,
which form part of the Officer's decision (Taleb v
Canada (Minister of Citizenship and Immigration), 2012
FC 384 at para 25, 407 FTR 185), capture in more detail the reasoning that led
the Officer to reject Mr Hamza's application at the selection stage:
· Applicant has provided only two references to demonstrate his
experience. One is prepared by himself and the other is prepared by the office
of the medical Sup. Karachi dated 14/11/9 which is covering experience from
June 1988 to date and the Job duties mirror NOC
description. This reference
appears to be prepared for this application and therefore is self serving. There are no other supporting documents to demonstrate his employment as a physician and therefore his application is refused at
screening.
· [Emphasis added]
The issues
8 This
application raises two issues.
9 The
first issue relates to procedural fairness: Did the Officer breach her duty of
procedural fairness by not providing the applicant with an opportunity to
address her concerns regarding the applicant's employment letter?
10 This
issue requires the Court to determine, first, if the Officer's concerns were
related to the credibility of the employment letter provided by the applicant,
or to the sufficiency of the evidence provided. Second, if the Court is
satisfied that the Officer's concerns were related to the veracity of the
employment letter, it must determine whether, in the circumstances of this
case, the Officer should have provided the applicant with an opportunity to
address her concerns.
11 The
second issue raised by this application is whether it was reasonably open for
the Officer to conclude, on the basis of the evidence submitted by the
applicant, that he had not satisfactorily established his work experience as a
family physician.
The standards of review
12 The
parties are in agreement as to the appropriate standards of review.
13 No
deference is accorded to the Officer's decision regarding issues of procedural
fairness and, therefore, the first issue is reviewable on a correctness
standard of review (Canada (Citizenship and Immigration)
v Khosa, 2009 SCC 12 at para 43, [2009] 1 SCR 339; Sketchley v Canada (Attorney General), 2005
FCA 404 at para 53, [2006] 3 FCR 392; Zhu v Canada
(Minister of Citizenship and Immigration), 2013 FC 155
at para 22 (available on CanLII) [Zhu]; Enriquez v Canada (Minister of Citizenship
and Immigration), 2012 FC 1091 at para 6 (available on
CanLII)[Enriquez]; Sandhu v Canada (Minister of Citizenship and Immigration), 2010 FC 759 at para 23, 371 FTR 239 [Sandhu]; Singh v Canada (Minister of Citizenship
and Immigration), 2010 FC 1306 at para 36, 95 Imm. L.R.
(3d) 83; Talpur v Canada (Minister of Citizenship and
Immigration), 2012 FC 25 at para 20, 210 ACWS (3d) 765
[Talpur]).
14 However,
the Officer's analysis of the applicant's eligibility for permanent residence
as a Federal Skilled Worker involves an assessment of the evidence and the
exercise of discretion and is reviewable on the reasonableness standard of
review (Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 SCR 190; Zhu, above at para 23; Rashed v Canada (Minister
of Citizenship and Immigration), 2013 FC 175 at para 44
(available on CanLII); Enriquez,
above at para 4; Ismaili v Canada (Minister of
Citizenship and Immigration), 2012 FC 351 at para 10
(available on CanLII)[Ismaili]; Torres v Canada (Minister of Citizenship and Immigration), 2011 FC 818 at para 26, 2 Imm. L.R. (4th) 57 [Torres]).
Arguments of the
parties
A. The applicant's
submissions
15 In
his written representations, the applicant attacked the Officer's decision on
different fronts. It included an allegation that the Officer had blindly and
unreasonably relied on a check-list to reject the applicant's certificate where
he listed his duties when working at his own clinic because it was not
corroborated by third-party documentation. However, at the hearing, counsel for
the applicant informed me that the applicant was no longer pursuing this
argument and was relying solely on the remaining arguments presented in his
written submissions relating to the employment letter.
16 Essentially,
the applicant argues that it was unreasonable and an abuse of process for the
Officer not to give any weight to the employment letter from the applicant's
supervisor for the simple fact that it mirrors the NOC description.
17 Further,
the applicant contends that the CAIPS notes reveal that the Officer's concerns
were related to the credibility and veracity of the employment letter, as
opposed to the sufficiency of the documentation that he provided. In this
regard, the applicant insists that it is normal that the employment letter was
"prepared for this application" and was "self-serving"
since it was specifically provided to comply with the requirements set out in
the check-list. He also insists that the letter is both independent and
objective, as it was prepared by a government officer. In addition, the
applicant contends that the CAIPS notes clearly suggest that the Officer was
not questioning the sufficiency of the evidence provided, but rather, its
credibility. Therefore, the applicant argues that the Officer should have
provided him with an opportunity to address her concerns. By failing to do so,
the Officer breached her duty of procedural fairness. The applicant contends
that this principle has been recognized in the jurisprudence and he relies
mainly on Patel v Canada (Minister of Citizenship and
Immigration), 2011 FC 571 at paras 20-27 (available on
CanLII) [Patel] and on Hassani v Canada (Citizenship and Immigration), 2006 FC 1283 at paras 23-24, [2007] 3 FCR 501 [Hassani]. At the hearing, counsel for the
applicant stated that he acknowledged that in Obeta v
Canada (Minister of Citizenship and Immigration), 2012
FC 1542 (available on CanLII) [Obeta], Justice Boivin departed from this principle, but he insisted that
the circumstances in Obeta were
totally different from those in this case.
B. The respondent's
submissions
18 The
respondent argues that the Officer's decision is reasonable, and that the
Officer did not breach the applicant's right to procedural fairness. The
respondent contends that the Officer did not question the credibility of the
evidence provided by the applicant, but was concerned with the sufficiency of
that evidence. The respondent submits that one could not infer from the
indication that the employment letter was "self-serving", that the
Officer thought that the letter was fraudulent. In the respondent's view, the
employment letter was clearly insufficient and should have contained a detailed
description of the applicant's duties and responsibilities.
19 Further,
the respondent submits that the letter is not disinterested evidence as it
advocates for a particular position by copying elements from the NOC, instead
of providing a detailed description of the applicant's tasks. The respondent
argues that it was reasonable, in the circumstances, for the Officer to give
little weight to a letter merely mirroring the NOC. Further, the respondent
submits that when the evidence provided in support of an application is
insufficient, a visa officer is not required to inform the applicant of his or
her concerns before making a negative determination. The respondent suggests
that the circumstances in Patel,
above, are distinguishable as it was clear in that case that the officer's
concerns were related to the authenticity of the evidence, which is not the
case here.
20 In
the alternative, the respondent relies on Obeta, above, to establish that even if the Court is of the view that the
Officer's concerns were related to the credibility of the employment letter, it
does not establish that the Officer had an obligation to provide the applicant
with an opportunity to address these concerns. The respondent also relied on Kamchibekov v Canada (Minister of Citizenship and Immigration), 2011 FC 1411 (available on CanLII) [Kamchibekov].
Analysis
Did the Officer breach her duty of procedural
fairness by not providing the applicant with an opportunity to address her
concerns regarding the applicant's employment letter?
21 This
Court has had numerous occasions to discuss the issue of the sufficiency of
evidence that applicants for permanent residence must provide in support of
their applications. The following principles have been reiterated on several
occasions.
22 First,
the onus clearly falls on the applicant to establish that he or she meets the
requirements of the Regulations by providing sufficient evidence in support of
his or her application (El Sherbiny v Canada (Minister
of Citizenship and Immigration), 2013 FC 69 at para 6
(available on CanLII) [El Sherbiny]; Enriquez, above at
para 8; Torres, above at paras
37-40; Kaur v Canada (Minister of Citizenship and
Immigration), 2010 FC 758 at para 30 (available on
CanLII) [Kaur]; Oladipo v Canada (Minister of Citizenship and Immigration), 2008 FC 366 at para 24, 166 ACWS (3d) 355; Ismaili, above, at para 18.
23 Second,
the duty of procedural fairness owed by visa officers is on the low end of the
spectrum (Farooq v Canada (Minister of Citizenship and
Immigration), 2013 FC 164 at para 10 (available on
CanLII) [Farooq]; Sandhu, above at para 25; Trivedi v Canada (Minister of Citizenship and Immigration, 2010 FC 422 at para 39 (available on CanLII) [Trivedi]; Khan v
Canada (Minister of Citizenship and Immigration), 2001
FCA 345 at paras 30-32, [2002] 2 FC 413; Patel v Canada
(Minister of Citizenship and Immigration), 2002 FCA 55
at para 10, 288 NR 48; Chiau v Canada (Minister of
Citizenship and Immigration) (2000), [2001] 2 FC 297 at
para 41 (available on CanLII) (CA), leave to appeal to SCC refused, 28418
(August 16, 2001).
24 Third,
a visa officer has neither an obligation to notify an applicant of inadequacies
in his or her application nor in the material provided in support of the
application. Furthermore, a visa officer has no obligation to seek
clarification or additional documentation, or to provide an applicant with an
opportunity to address his or her concerns, when the material provided in
support of an application is unclear, incomplete or insufficient to convince
the officer that the applicant meets all the requirements that stem from the
Regulations (Hassani, above at
paras 23-24; Patel, above at
para 21; El Sherbiny, above at
para 6; Sandhu, above at para,
25; Luongo v Canada (Minister of Citizenship and Immigration), 2011 FC 618 at para 18 (available on CanLII); Ismaili, above at para 18; Triveldi, above at para 42; Singh, above at para 40; Sharma v Canada (Minister of Citizenship and Immigration), 2009 FC 786 at para 8, 179 ACWS (3d) 912 [Sharma]).
25 Nevertheless,
a duty to provide an applicant with the opportunity to respond to an officer's
concerns may arise when the officer is concerned with the credibility, the
veracity, or the authenticity of the documentation provided by an applicant as
opposed to the sufficiency of the evidence provided.
26 The
judgments rendered by Justice Mosley in Rukmangathan v
Canada (Minister of Citizenship and Immigration), 2004
FC 284, 247 FTR 147 [Rukmangathan] and Hassani, above,
are often cited as being authoritative on this issue. In Rukmangathan, Justice Mosley enunciated the
principle and its limits:
· [22] It is well established that in the context of visa officer
decisions procedural fairness requires that an applicant be given an
opportunity to respond to extrinsic evidence relied upon by the visa officer
and to be apprised of the officer's concerns arising therefrom: Muliadi, supra. In my view, the Federal Court
of Appeal's endorsement in Muliadi, supra, of Lord
Parker's comments in In re H.K. (An Infant), [1967] 2 Q.B. 617, indicates
that the duty of fairness may require immigration officials to inform
applicants of their concerns with applications so that an applicant may have a
chance to "disabuse" an officer of such concerns, even where such concerns
arise from evidence tendered by the applicant. Other decisions of this court
support this interpretation of Muliadi, supra. See, for example, Fong v. Canada (Minister
of Employment and Immigration), [1990] 3 F.C. 705
(T.D.), John v. Canada (Minister of Citizenship and
Immigration), [2003] F.C.J. No. 350 (T.D.)(QL) and Cornea v. Canada (Minister of Citizenship and Immigration) (2003), 30 Imm. L.R. (3d) 38 (F.C.T.D.), where it had been held
that a visa officer should apprise an applicant at an interview of her negative
impressions of evidence tendered by the applicant.
· [23] However, this principle of procedural fairness does not stretch
to the point of requiring that a visa officer has an obligation to provide an
applicant with a "running score" of the weaknesses in their
application: Asghar v. Canada (Minister of Citizenship
and Immigration), [1997] F.C.J. No. 1091 (T.D.)(QL) at
para. 21 and Liao v. Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No. 1926 (T.D.)(QL) at
para. 23. And there is no obligation on the part of a visa officer to apprise
an applicant of her concerns that arise directly from the requirements of the
former Act or Regulations: Yu v. Canada (Minister of
Employment and Immigration) (1990), 36 F.T.R. 296, Ali v. Canada (Minister of Citizenship and Immigration) (1998), 151 F.T.R. 1 and Bakhtiania v.
Canada (Minister of Citizenship and Immigration),
[1999] F.C.J. No. 1023 (T.D.)(QL).
27 Two
years later, he reiterated the principle in Hassani, in the following terms:
· [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.
28 Justice
Snider provided a good summary of the applicable principles in Enriquez, above, and insisted that to trigger
a duty to provide an opportunity to respond to an officer's concerns, the
applicant must first provide an application that is complete:
· [26] The first duty raised by the Applicant is the duty to seek
clarification. When an Applicant puts his or her best foot forward by
submitting complete evidence and a visa officer doubts that evidence, the
officer has a duty to seek clarification (Sandhu, above at paras 32-33). Although this duty is not triggered in
situations where an applicant simply presents insufficient evidence, it will
arise if the officer entertains concerns regarding the veracity of evidence;
for example, if the officer questions the credibility, accuracy or genuine
nature of the information provided (Olorunshola, above at paras 32-35). On the facts of this case, a duty to
clarify may have arisen but was discharged by the Officer's questions to the
Applicant during the interview. There was no breach of fairness.
· [27] The second duty raised by the Applicant is a duty to provide an
opportunity to respond. When an applicant submits information that, if
accepted, supports the application, he or she should be given an opportunity to
respond to the officer's concerns if the officer wishes to make a decision
based on those concerns (Kumar,
above at paras 30-31). Procedural fairness may require an interview; for
example, if a visa officer believes an applicant's documents may be fraudulent
(Patel, above at paras 24-27).
(...)
· [See also Sandhu,
above, at paras 27-32; Farooq,
above, at para 12; Patel, above,
at paras 22-26, Singh, above, at
paras 41-42; Talpur, above, at
para 21; Baybazarov c Canada (Minister of Citizenship
and Immigration), 2010 FC 665 at para 12 (available on
CanLII); Kumar v Canada (Minister of Citizenship), 2010 FC 306 at paras 29-30 (available on CanLII) [Kumar]; Nabin v Canada
(Minister of Citizenship and Immigration), 2008 FC 200
at para 8, 165 ACWS (3d) 341]
29 In
this case, the first issue to be determined is whether the Officer's concerns
were related to the sufficiency or to the credibility of the evidence submitted
by the applicant to establish his work experience.
30 A
visa officer may have raised concerns about the credibility of an applicant's
documentary evidence even though he or she did not express an explicit
credibility finding. Visa officers' decisions must be analysed as a whole and
in the context of the specific facts of each case. As stated by Justice Mosley
in Adeoye v Canada (Minister of Citizenship and
Immigration), 2012 FC 680 at para 8, 216 ACWS (3d) 191:
"Although the officer did not make any explicit credibility findings, his
scepticism about the applicant's claim and supporting documents is apparent
from the decision." The same may apply in this case,
31 The
context of the case at bar is somewhat similar to that in Patel, above, where the applicant provided
only a single employment document in which the job duties were largely copied
from the NOC. This situation concerned the visa officer. Justice O'Keefe found
that the officer's concerns were related to the veracity of the employment
letter and that the officer should have offered the applicant an opportunity to
address his concerns. In this regard, Justice O'Keefe expressed the following:
· [23] The onus is always on the principal applicant to satisfy the
visa officer of all parts of his application. The officer is under no
obligation to ask for additional information where the principal applicant's
material is insufficient (see Madan v. Canada (Minister
of Citizenship and Immigration) (1999), 172 FTR 262,
[1999] F.C.J. No. 1198 (FCTD) (QL) at paragraph 6).
· [24] Regulation 75 clearly indicates that a foreign national is only
a skilled worker if he can show one year of full time employment where he
performed the actions in the lead statement of the NOC and a substantial number
of the main duties.
· [25] As such, if the visa officer were concerned only that the
employment letter was insufficient proof that the prinicipal [sic] applicant met the requirements of
Regulation 75, then she would not have been required to conduct an
interview.
· [26] However, the officer states that her
concern is that the duties in the employment letter have been copied directly
from the NOC description and that the duties in the experience letter are
identical to the letter of employment. I agree with the principal applicant
that the officer's reasons are inadequate to explain why this was problematic.
I find that the implication from these concerns is that the officer considered
the experience letter to be fraudulent.
· [27] Consequently, by viewing the letter as fraudulent, the officer
ought to have convoked an interview of the principal applicant based on the
jurisprudence above. As such, the officer denied the principal applicant
procedural fairness and the judicial review must be allowed.
· [Emphasis added]
32 In
Talpur, above, the visa officer
also expressed concerns about an employment attestation that mirrored the
duties set out in the NOC. The officer's concerns were clearly stated as
relating to the credibility of the letter, but the applicant had been invited
to reply to the officer's concerns during an interview. Therefore, the Court
concluded that the officer had not breached the principles of natural justice
given that the applicant was "afforded a reasonable opportunity to make
her case or to demonstrate the genuineness of her application" (at para
22).
33 In
the case at bar, the applicant provided two documents to establish his work
experience: a self-declared certificate describing the duties that he performs
when he works at his own clinic and an employment letter from Dr Harroon, the
Medical Superintendent of the hospital. As previously stated, the certificate
was not corroborated by third-party evidence as requested in the check-list and
the applicant has abandoned his argument regarding that certificate. Therefore,
the only evidence left in support of the applicant's allegation that he
performed the responsibilities and duties of a family physician, is the
employment letter signed by the hospital's Medical Superintendent.
34 The
NOC for general practitioners and family physicians (3112) contains the
following description:
· General practitioners and family physicians diagnose and treat the
diseases, physiological disorders and injuries of patients. They provide
primary contact and continuous care toward the management of patients' health.
They usually work in private practice, including group or team practices,
hospitals and clinics. Residents in training to be general practitioners and
family physicians are included in this unit group.
· (...)
· Main duties
· General practitioners and family physicians perform some or all of
the following duties:
Examine patients and
take their histories, order laboratory tests, X-rays and other diagnostic
procedures and consult with other medical practitioners to evaluate patients'
physical and mental health
Prescribe and administer
medications and treatments
Perform and assist in
routine surgery
Provide emergency
care
Provide acute care
management
Vaccinate patients to
prevent and treat diseases
Deliver babies and
provide pre-natal and post-natal care
Advise patients and
their families on health care including health promotion, disease, illness and
accident prevention
Provide counselling
and support to patients and their families on a wide range of health and
lifestyle issues
Perform patient advocacy
role
Co-ordinate or manage
primary patient care
Provide continuous
care to patients
Supervise home care
services
Report births, deaths,
and contagious and other diseases to governmental authorities.
35 The
employment letter states that the applicant has been performing the following
duties:
Prescribe and
administer medications and treatments.
Provide emergency
care.
Inoculate and vaccinate
patients.
Provide acute care
management.
Provide emergency
care.
Advise patients and
their families on health care including health promotion, disease, illness and
accident prevention.
Examine patients and
take their histories, order laboratory tests, X-rays and other diagnostic
procedures and consult with other medical practitioners to evaluate patients'
physical and mental health.
36 It
is worth quoting again the Officer's notes in the CAIPS:
· Applicant has provided only two references to demonstrate his
experience. One is prepared by himself and the other is prepared by the office
of the medical Sup. Karachi dated 14/11/9 which is covering experience from
June 1988 to date and the Job duties mirror NOC
description. This reference
appears to be prepared for this application and therefore is self serving. There are no other supporting documents to demonstrate his employment as a physician and therefore his application is refused at
screening.
· [Emphasis added]
37 There
is no doubt that the letter of reference lists duties performed by the
applicant that are identical to several of the duties set out in NOC 3112.
However, it is also clear from the letter that the Medical Superintendent is
attesting that the applicant has been performing these duties.
38 I
find it difficult to conclude that the Officer's concerns did not relate to the
credibility of the employment letter. My understanding of her reasoning is as
follows: (1) the letter mirrors the NOC description; (2) the letter appears to
have been prepared for the purpose of the applicant's application and,
therefore, because it also
mirrors the NOC description, it is self-serving. In my view, by stating that
the employment letter is self-serving, the Officer is saying that she doubts
the veracity of its content. I fail to see what other interpretation can be
given to this finding that the letter is self-serving on the facts of this
case.
39 In
the employment letter, the Medical Superintendent unequivocally indicated that
the applicant has been working at the Government Hospital of Karachi as a
family physician, and that he has been performing the duties listed in the
letter. By saying that this letter is self-serving and by finding this letter to be insufficient in the absence of
other supporting documents to establish the applicant's work experience, the
Officer questions the independence of Dr Haroon and the veracity of his account
of the applicant's duties. Had the Officer been satisfied that the duties
listed in the employment letter were actually the duties performed by the
applicant, then, there would be no reason, considering that these duties
correspond to the main duties set out in the NOC, for the Officer to find this
evidence to be insufficient. There is no rule that requires an applicant to
provide more than one employment letter to establish sufficient work
experience. An application can be deemed complete even if the work experience
is supported by a single employment letter, as long as the employment letter
accurately and completely lists the main duties performed by the applicant. I
cannot say that it was unreasonable for the Officer to wonder whether the
employment letter accurately reflected the applicant's duties and
responsibilities. However, in my view, she should have allowed the applicant an
opportunity to address her concerns before rendering her decision.
40 This
case is distinguishable from the case in Kaur v Canada
(Minister of Citizenship and Immigration), 2010 FC 442
(available on CanLII), where the employment letter failed to include any
information regarding the duties performed by the applicant and was limited to
stating that the applicant was "a good worker and had learned to cook many
types of Indian meals" (at para 3). In that case, the Court found that the
applicant failed to provide sufficient evidence in support of her application
and that, in light of this insufficient evidence, the visa officer was not
required to advise her of the inadequacy of her material. In this case, the
employment letter did list the duties performed by the applicant.
41 In
Kamchibekov, above, Justice
Pinard found that there was no duty on the visa officer to offer the applicant
an opportunity to disabuse him of his concerns because the employment letter
mirrored the duties set out in the NOC. Justice Pinard was of the view that the
evidence provided by the applicant was ambiguous and insufficient. One must
keep in mind that every case is fact-driven. In Kamchibekov, the applicant had applied to be accepted in the category of
Restaurant and Food Service Manager. The NOC for that position provided very
generic duties and the letter of employment mirrored those generic duties.
Furthermore, there was no indication in the officer's letter that his concerns
were related to the veracity of the letter and the decision was limited to
stating that the applicant had not provided satisfactory evidence of his work
experience. In this case, the Officer was not satisfied with the employment
letter because she found it to be self-serving and the job duties described
mirrored the NOC description.
42 This
case can also be distinguished from Obeta, above. In that case, the Court concluded that there was no
absolute obligation on the officer to allow the applicant an opportunity to
respond to credibility concerns that he had in a context where the application
was, on its face, void of credibility because the employment letter was likely
fabricated. This is not the case here. It cannot be said that the employment
letter is, on its face, fabricated or otherwise void of any credibility.
43 Therefore,
for the reasons set out above, I am of the view that the Officer had a duty to
provide the applicant with an opportunity to address her concerns and that, by
failing to do so, she breached the applicant's right to procedural fairness.
44 This
conclusion is sufficient to dispose of the application, and there is no need
for me to determine whether the Officer's decision is reasonable.
45 The
parties did not submit questions for certification, and this case does not
raise serious questions of general importance.
JUDGMENT
THIS COURT'S JUDGMENT is that this application for judicial review is allowed. The Officer's
decision is overturned and the application is returned for re-determination (de novo) before a different visa officer.
BÉDARD J.
cp/e/qlecl/qlrdp
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