Many applicants think that they are clever and copy the job description found in the National Occupational Classification ( NOC) to support their permanent residency application, either because they are ignorant of the law or receive bad advice from "friends" or unscrupulous individuals. In the case below, the Federal Court held that the visa officer was entitled to raise credibility concerns and consequently refuse the case.
Ansari v. Canada (Minister of Citizenship and
Immigration)
Between
Mahdi Ansari, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2013] F.C.J. No. 892
2013 FC 849
Docket IMM-7044-12
Federal Court
Toronto, Ontario
Kane J.
Heard: July 10, 2013.
Judgment: August 8, 2013.
(37 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 KANE J.:-- The applicant seeks judicial
review pursuant to section 72 of the Immigration and
Refugee Protection Act, SC 2001, c 27 [the Act], of a decision of a visa officer [the
Officer] at the Canadian Embassy in Ankara, Turkey, made on May 25, 2012, which
determined that he did not meet the requirements for permanent resident status
in Canada as a Federal Skilled Worker pursuant to subsections 87.3 (2) and (3)
of the Act.
2 Mr.
Ansari, a citizen of Iran, applied for permanent residence as a member of the
Federal Skilled Worker [FSW] class, under National Occupational Classification
[NOC] 0213 (Computer and Information Systems Manager).
3 The
Officer found that he did not provide "sufficient evidence" that he
"performed the actions described in the lead statement for the occupation,
as set out in the occupational descriptions of the NOC and that [he] performed
all of the essential duties and a substantial number of the main duties, as set
out in the occupational descriptions of the NOC." The GCMS notes, which
form part of the reasons, shed more light on why the Officer came to this
conclusion:
· Subject has provided a letter from Iran Poust Co Ltd outlining
applicants duties and responsibilities. It should be noted that letter has
paraphased (sic) main duties as found in the NOC description on the website. It
should also be noted that subject does not appear to have preformed (sic) some of
the main duties of the NOC 0123. - I am not satisfied that subject has
preformed (sic) duties of the lead statement or some of the main duties
underlined in the NOC of 0213.
4 The
refusal letter reiterates the above and adds, the duties described in the
employment letter submitted are "closely paraphrased from occupational
descriptions of the NOC, diminishing the overall credibility of the employment
letter. As such I am not satisfied that you are a Computer and Information
Systems Manager - 0213".
The Issues
5 The
applicant submits that the Officer breached the duty of procedural fairness and
relies on several cases that establish that where concerns related to
credibility or the authenticity of documents arise there is a duty to inform an
applicant of such concerns and provide an opportunity to respond: Liao v Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1926 at paras 15-17; Talpur
v Canada (Minister of Citizenship and Immigration),
2012 FC 25, [2012] F.C.J. No. 22 [Talpur] at para 21; Hassani v Canada (Minister of
Citizenship and Immigration), 2006 FC 1283, [2007] 3
FCR 501 [Hassani].
6 The
applicant submits that an Officer's concern about paraphrasing from an NOC
description is a credibility issue triggering this duty. The applicant noted
jurisprudence from this Court including Patel v Canada
(Minister of Citizenship and Immigration) 2011 FC 571,
[2011] F.C.J. No. 714 [Patel] at
paras 26-27; Farooq v Canada (Minister of Citizenship
and Immigration), 2013 FC 164, [2013] F.C.J. No. 162; Madadi v Canada (Minister
of Citizenship and Immigration), 2013 FC 716, [2013]
F.C.J. No. 798 [Madadi].
7 The
applicant also submits that the Officer unreasonably concluded that the
applicant did not perform some of the main duties of NOC 0213 given that the
case law has established that the applicant need only demonstrate that one or
more of the main duties are performed (Tabanag v Canada
(Minister of Citizenship and Immigration), 2011 FC
1293, [2011] F.C.J. No. 1575). The letter from the applicant's employer
described two of the duties, and the FSW application lists two additional
duties. The applicant further argues that the Officer failed to consider
relevant evidence, including the applicant's curriculum vitae and Schedule 3,
which included a list of his current duties.
8 The
respondent submits that there was no breach of procedural fairness. The Officer
followed the process and was not required to inform the applicant of his
concerns about the similarity between the job duties submitted and the language
of NOC code 0213.
9 The
respondent points to the jurisprudence that has established that an Officer has
no duty to notify applicants of concerns where they arise directly from the
requirements of the legislation or regulations and relies on Kamchibekov v Canada (Minister of Citizenship and Immigration), 2011 FC 1411, [2011] F.C.J. No. 1782 [Kamchibekov] at para 26; Kaur v Canada (Minister of
Citizenship and Immigration), 2010 FC 442, [2010]
F.C.J. No. 587 [Kaur] at para 9;
and Hassani, cited above.
10 The
respondent submits that the Officer reasonably found that the applicant did not
perform a substantial number of the duties, that the employment letter,
Schedule 3 and the application all paraphrased or copied from the NOC and
described only two duties, and that the employment letter did not describe the
nature of the business or the lead or essential duties which the applicant must
satisfy.
11 The
respondent also submits that visa officers need not refer to every piece of
evidence submitted since there is a presumption that it has been considered: Florea v Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (CA) (QL); Newfoundland
and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 16. The affidavit of the Officer, which the
applicant objects to, simply confirms that the Officer did consider all the
documents, which is otherwise presumed.
Standard of review
12 The
applicant and respondent are in agreement about the applicable standards of
review. If an issue of procedural fairness arises, it is reviewable on a
correctness standard: Canada (Minister of Citizenship
and Immigration) v Khosa, 2009 SCC 12, 2009 CarswellNat
434 at para 43. The Officer's decision with respect to the applicant's
eligibility for permanent resident status pursuant to the FSW class requires
the Officer to assess the application and exercise his discretion and is,
therefore, reviewable on a reasonableness standard: Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190.
Was there a breach of procedural fairness?
13 The
key issue is whether the Officer breached the duty of procedural fairness by
not providing the applicant with an opportunity to address the Officer's
concerns regarding the applicant's employment letter, which copied the duties
set out in the NOC and led the Officer to note, "diminishing the overall
credibility of the employment letter".
14 If
the concern is truly about credibility, the case law has established that a
duty of procedural fairness may arise [Hassani]. However, if the concern is about the sufficiency of evidence,
given that the applicant is clearly directed to provide a complete application
with supporting documents, no such duty arises. Distinguishing between concerns
about sufficiency of evidence and credibility is not a simple task as both
issues may be related.
15 In
Kamchibekov, the applicant
copied her duties directly from the NOC description. Justice Pinard determined
that the Officer's decision was reasonable and that the Officer did not have a
duty to inform the applicant of the duplication concerns. In addition, and as
in the present case, the Officer was also not satisfied that the applicant
performed the duties set out in the lead statement. Justice Pinard noted:
· [15] According to Operational Bulletin 120 - June 15, 2009, Federal
Skilled Worker (FSW) Applications - Procedures for Visa Offices, descriptions
of duties taken verbatim from the NOC are to be regarded as self-serving. When
presented with such documents, visa officers are entitled to wonder whether
they accurately describe the applicant's work experience. Where a document
lacks sufficient detail to permit its verification and ensure a credible
description, the applicant will not have produced sufficient evidence to
establish eligibility: the visa officer must proceed to a final determination
and if the evidence is insufficient, a negative determination of eligibility
should be rendered.
· [16] Therefore, the officer was entitled to give less weight to the
applicant's description of his work experience, being an almost exact replica
of the NOC tasks. Nonetheless, the applicant claims that the officer's failure
to consider the other documentary evidence he provided constitutes a reviewable
error.
· [...]
· [20] Since the applicant's application was a virtual copy of the NOC
tasks, as was his reference letter, the officer could not properly evaluate
whether the applicant had the requisite work experience as a Restaurant and
Food Manager, and consequently declared the applicant ineligible, in conformity
with the guidelines (Operational Bulletin 120, above).
· [...]
· [27] In the case at hand, the officer did not have the obligation to
hold an interview or to inform the applicant of his concerns with regards to
the duplication of the NOC listed duties, much like in Kaur. In the words of Justice Danièle Tremblay-Lamer at paragraph
14:
· [...] It did not help that the Applicant's own description of her
duties appeared to be copied from the National Occupational Classification.
Thus, it was open to the visa officer, on the basis of the scant evidence
before him, to find that the Applicant had not established that she had
sufficient work experience in her stated occupation, and to reject her
application on that basis.
· [28] Therefore, the officer did not breach his duty of procedural
fairness.
16 In
Obeta v Canada (Minister of Citizenship and Immigration), 2012 FC 1542, [2012] F.C.J. No. 1624 [Obeta], Justice Boivin upheld an officer's decision not to issue a visa
on the basis of credibility with respect to the employment letter. In addition
to the fact that the employment letter copied the NOC duties, there were other
concerns about the authenticity of the letter and the plausibility that the
applicant had been hired as a Construction Project Manager with no prior
training or experience.
17 Justice
Boivin noted that Hassani, which
has been cited in many subsequent cases to support the proposition that
concerns about credibility should prompt the officer to put these concerns to
the applicant, does not in fact create an absolute obligation. As Justice
Boivin points out, in Hassani,
Justice Mosley stated:
· [24] [...] 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.
18 Justice
Boivin emphasized in Obeta that
the burden is on the applicant to provide a relevant, complete and unambiguous
application, as he explained at para 25:
· [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.
19 The
jurisprudence also supports the position that when a concern is raised that is
truly about credibility, there may be - and often will be - a duty to notify an
applicant of these concerns so that the applicant may be able to provide an
explanation or further documentation.
20 In
Talpur, Justice de Montigny
reviewed the case law and, relying on Hassani, found that issues of procedural fairness will arise where a visa
officer's concerns relate to the credibility of evidence:
· 21 It is by now well established that the duty of fairness, even if
it is at the low end of the spectrum in the context of visa applications (Chiau v Canada (Minister of Citizenship and Immigration) (2000), [2001] 2 F.C. 297 (Fed. C.A.) at para 41; Trivedi v. Canada (Minister of Citizenship & Immigration), 2010 FC 422 (F.C.) at para 39), require visa officers to inform
applicants of their concerns so that an applicant may have an opportunity to
disabuse an officer of such concerns. This will be the case, in particular,
where such concern arises not so much from the legal requirements but from the
authenticity or credibility of the evidence provided by the applicant. After
having extensively reviewed the case law on this issue, Justice Mosley was able
to reconcile the apparently contradictory findings of this Court in the
following way:
· Having reviewed the factual context of the cases cited above, it is
clear that where aconcern 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]
· Hassani v. Canada (Minister of Citizenship and Immigration), 2006 FC 1283 at para 24, [2007] 3 F.C.R. 501.
21 In
Talpur, no breach of procedural
fairness was found because the officer had asked the applicant to provide more
information or supporting material before coming to a final determination of
the application.
22 Patel v Canada (Minister of Citizenship and Immigration), 2011 FC 571, [2011] F.C.J. No. 714 is extensively relied on to
support the proposition that where the NOC duties are copied, a credibility
concern is raised leading to a duty to put that concern to the applicant.
However, it is clear that Justice O'Keefe concluded after fully assessing the
facts of that case, including that the NOC duties were copied, the reasons were
not adequate, and the officer regarded the letter as fraudulent. The central
issue, as stated by Justice O'Keefe, is the same issue we are faced with in the
present case:
· 20 The central issue in this case is whether the officer rejected the
application due to concerns about the credibility of the letter of experience
or because she found that the principal applicant did not produce sufficient
evidence of his work experience.
· 21 The case law specifies that a visa officer is not under a duty to
inform an applicant about any concerns regarding the application which arise
directly from the requirements of the legislation or regulations (see Hassani
v. Canada (Minister of Citizenship and Immigration), 2006 FC 1283 at paragraphs
23 and 24).
· 22 However, a visa officer is obligated to inform an applicant of
any concerns related to the veracity of documents and will be required to make
further inquires (see Hassani above, at paragraph 24).
· 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 principal 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].
23 In
the recent case of Hamza v Canada (Minister of Citizenship and
Immigration), 2013 FC 264, [2013] F.C.J. No. 284, the
applicant was refused permanent resident status as a FSW, for among other
reasons, copying the NOC duties. Justice Bédard extensively reviewed the
applicable case law and provided a summary of the relevant principles: the onus
falls on the applicant to establish that they meet the requirements of the Immigration and Refugee Protection Regulations by providing sufficient evidence
in support of their application; the duty of procedural fairness owed by visa
officers is at the low end of the spectrum; there is no obligation on a visa
officer to notify the applicant of the deficiencies in the application or the
supporting documents; and, there is no obligation on the visa officer to
provide the applicant with an opportunity to address any concerns of the
officer when the supporting documents are incomplete, unclear or insufficient
to satisfy the officer that the applicant meets the requirements.
24 Justice
Bédard also noted that, as determined in Hassani, an officer may have a duty to provide the applicant with an
opportunity to respond to the officer's concerns when such concerns arise from
the credibility, veracity, or authenticity of the documents rather than from
the sufficiency of the evidence.
25 Justice
Bédard noted that it is necessary to first determine if the concern is about
credibility or sufficiency of evidence. She also noted that each case must be
determined on its own facts:
· [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.
26 In
Ghannadi v Canada (Minister of Citizenship and Immigration),
2013 FC 515, [2013] F.C.J. No. 550, Justice Phelan found an officer's refusal
of a FSW application to be unreasonable where the officer rejected the
employment letter that closely paralleled the NOC duties. Justice Phelan noted
the distinction between credibility and sufficiency and found that if the
concern was in fact about credibility, the duty of procedural fairness would
have been breached but if the concern related to the sufficiency of the
evidence, the decision was not reasonable:
· [9] Firstly, a fair review of that employer's letter does not
disclose the type of mindless copying of the NOC description which gives some
basis for undermining the weight to be given to that evidence. The letter does
not list all of the functions in the NOC description and it separates out what
functions were performed in respect of two key projects. Those functions were
not identical with each project. This was an unfair and unreasonable
characterization.
· [10] Secondly, as Justice Heneghan held in Siddiqui
v Canada (Minister of Citizenship and Immigration)
(January 26, 2011), Toronto IMM-2327-10 (FC), the use of language in reference
letters similar to job descriptions in the NOC Code "is not, per se, grounds for dismissing those
reference letters".
· [...]
· [15] As to the breach of procedural fairness, the Officer used the
term "credibility" to undermine the employer's letter. If, as it
appears, the Officer concluded that the letter was a fraud or
misrepresentation, the Applicant would have been entitled to an opportunity to
address that concern (Ma v Canada (Minister of Public
Safety and Emergency Preparedness), 2009 FC 1042, 84
Imm LR (3d) 280, and Hassani v Canada (Minister of
Citizenship and Immigration), 2006 FC 1283, [2007] 3
FCR 501). If what the Officer meant is that he gave it less weight, it was an
unreasonable basis to conclude lack of sufficiency of evidence.
27 In
the very recent case of Madadi v Canada (Minister of Citizenship and
Immigration), 2013 FC 716, [2013] F.C.J. No. 798,
Justice Zinn dealt with a refusal letter and GCMS notes worded very similarly
to those in the present case and concluded that a duty of procedural fairness
was owed. Justice Zinn's conclusion was also based on finding that the
applicant had otherwise provided sufficient evidence that the requirements were
met:
· [6] The jurisprudence of this Court on procedural fairness in this
area is clear: Where an applicant provides evidence sufficient to establish
that they meet the requirements of the Act or regulations, as the case may be,
and the officer doubts the "credibility, accuracy or genuine nature of the
information provided" and wishes to deny the application based on those
concerns, the duty of fairness is invoked: Perez
Enriquez v Canada (Citizenship and Immigration), 2012
FC 1091 at para 26; See also among many decisions Patel
v Canada (Citizenship and Immigration), 2011 FC 571; Hamza v Canada (Citizenship and Immigration),
2013 FC 264; Farooq v Canada (Minister of Citizenship
and Immigration), 2013 FC 164; and Ghannadi v Canada (Minister of Citizenship and Immigration), 2013 FC 515.
28 In
the present case the applicant does not dispute that the employment letter
cites similarly worded duties to the NOC but submits that the application was
complete and that the applicant had met the requirements for eligibility. The
applicant submits that as noted by Justice O'Keefe in Kumar
v Canada (Minister of
Citizenship and Immigration), 2010 FC 1072, [2010]
F.C.J. No. 1335 at para 29, "...if an application, on its face meets all
of the applicable requirements, an immigration officer would be under a duty to
inform the applicant of any other consideration or concern prior to
rejection".
29 The
applicant submits that the issue is straightforward and the case law as clear;
the Officer indicated his concern was about the credibility of the employment
letter and, therefore, a duty of procedural fairness was owed.
30 The
case law has established that each case must be assessed to determine if the
concern does in fact relate to credibility. In several of the cases referred
to, although the duties were copied or paraphrased from the NOC, there were
additional factors confirming that the concern of the officer was about the
authenticity or veracity of the document or the credibility of the author of
the document. Simply using the term credibility is not determinative of whether
the concern is about credibility, though the use of the term cannot be ignored.
31 I
agree with Justice Phelan's comment that it is not surprising that employer's
letters mirror the NOC. I accept that in many cases the applicant has no better
or other words to describe what his duties are and that using other
descriptions runs the risk of not meeting the NOC criteria. On the other hand,
an applicant should be able to describe the duties they perform in the context
of their employment or the business they are engaged in and relate these to the
NOC duties.
32 In
this case, the Officer indicated that the copying of the NOC duties diminished
the credibility of the letter. In a case such as this, where all the references
to the duties and experience of the applicant (the employment letter, Schedule
3 and the CV) copy or paraphrase from the NOC, the Officer is justified in
being doubtful and, while he may express these as credibility concerns, he is,
as a result, not able to assess whether the applicant meets the requirements
because of the insufficiency of the evidence. The two issues are clearly
related: if the criteria are copied, the Officer cannot be confident that the
applicant actually has the experience since he cannot articulate his own
experience or duties or responsibilities in his own words and in relation to
the job he actually performed.
33 The
case law relied on by both the applicant and respondent for their respective
positions is consistent in pointing to the need to determine whether the
concern is about credibility or sufficiency before determining if a duty of
procedural fairness is owed.
34 If
a concern about copying or paraphrasing from the NOC is characterized as
related to credibility, without assessing whether it is in fact a credibility
concern, then applicants who copy the NOC duties may come to expect an
opportunity to provide further information or respond to the Officer's
concerns. This will lead to delays in processing FSW applications and is
inconsistent with the instructions provided to applicants to provide all the
relevant documents with their applications and to visa officers to assess the
application as presented.
35 As
noted by Justice Snider in Sharma v Canada (Minister of Citizenship and Immigration), 2009 FC 786, [2009] F.C.J. No. 910 at para 8, such a process would
be akin to requiring visa officers to give advance notice of a negative
decision:
· [8] Turning my mind to this question of a breach of procedural
fairness, I note that the onus rests on the Applicant to provide adequate and
sufficient evidence to support his application. A visa officer is under no duty
to clarify a deficient application (see, for example, Fernandez
v. Canada (Minister of Citizenship and Immigration),
[1999] F.C.J. No. 994 (QL); Lam v. Canada (Minister of
Citizenship and Immigration) (1998), 152 F.T.R. 316
(F.C.T.D.) at para. 4). The imposition of such a requirement would be akin to
requiring the visa officer to give advance notice of a negative decision, an
obligation that Justice Rothstein (as he then was) expressly rejected in Ahmed v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 940 (QL).
36 On
the facts of the present case, although the Officer did indicate that the
copying diminished the credibility of the letter, his key findings were about
the insufficient evidence. There were no other concerns noted that point to
credibility. As in Kamchibekov
and Obeta the applicant's
description of his duties replicated the NOC and the Officer was entitled to
give the evidence less weight, and as a result, the applicant had not met the
burden of providing sufficient information.
37 For
the reasons set out above, I find that there was no breach of procedural
fairness and the Officer's decision was reasonable.
JUDGMENT
THIS COURT'S JUDGMENT is that:
· 1.
The application for
judicial review is dismissed.
· 2.
No question is
certified.
KANE J.
