APPLICANTS MUST PROVIDE COMPLETE APPLICATIONS

Applicants  must remember that it is their responsibility to provide complete applications,, as noted by the recent decision below.

Rezvani v. Canada (Minister of Citizenship and Immigration)

Between
Amir Rezvani, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2015] F.C.J. No. 948

2015 FC 951

Docket: IMM-6394-14

 Federal Court
Toronto, Ontario

Southcott J.

Heard: July 21, 2015.
Judgment: August 6, 2015.

(32 paras.)

---

JUDGMENT AND REASONS

1     SOUTHCOTT J.:-- This is an application for judicial review of the June 8, 2012 decision (the Decision) of a Visa Officer (the Officer), which refused the applicant's application for permanent residence under the Federal Skilled Worker (FSW) program. The applicant claims that this decision should be quashed because the Officer breached procedural fairness, by not providing him with an opportunity to respond to credibility concerns, and on the basis that the decision is unreasonable because the Officer did not adequately assess the evidence.

2     For the reasons set out below, the application for judicial review is dismissed.

I. Background

3     The applicant, Mr. Amir Rezvani, is a citizen of Iran. He applied for permanent residence in Canada in 2010 based on his experience as a Financial Manager and an Accountant, being occupations with National Occupational Classification (NOC) codes NOC 0111 and NOC 1111, respectively. Based on a review of the application, the Centralized Intake Office in Sydney, Nova Scotia recommended that it be referred to the overseas visa office for a final determination of eligibility. A full application, including copies of employment letters and educational degrees, was submitted to the visa office on or around February 12, 2011.

4     Although the Decision was initially made on June 8, 2012, the record shows that the applicant did not receive the letter advising him of the Decision. In 2014, the applicant sent an updated application to add his new-born son. The visa office then sent him the Decision that had been made in 2012, which he received on July 4, 2014. Counsel for the applicant requested to have the file reopened to provide additional evidence. This was refused by the visa office. The applicant then filed an application for leave and judicial review on September 2, 2014.

II. Officer's Decision

5     The Officer found that the applicant had not provided sufficient evidence that he performed the actions described in the lead statement of the relevant occupations, as set out in the occupation descriptions of the NOC. The Decision stated that the employment documents submitted by the applicant only contained a vague description of his job duties and that the applicant's own descriptions of his duties were often copied directly out of the NOC, which diminished the overall credibility of the employment. Therefore, based on the information before the Officer, the Officer was not satisfied that the application fit within the categories of Financial Manager or Accountant.

6     The Global Case Management System (GCMS) notes also stated that the employment documents submitted by the applicant contained a lot of jargon related to the companies and that it was not always clear what was meant by the duties described. The notes stated that no explanation was provided by the applicant or the companies, and it appeared to the Officer that the applicant's experience matched that of a bookkeeper rather than an Accountant or Financial Manager. Therefore, the application was refused.

III. Submissions of the Parties

·       A. Applicant's Submissions

7     The applicant submits that where a visa officer's concerns relate to the credibility of the evidence, as opposed to the sufficiency of the evidence, the applicant must be given an opportunity to respond to the concerns (Fang v Canada (MCI), 2014 FC 196, at para 19 [Fang]; Rukmangathan v Canada (MCI), 2004 FC 284, at para 22, 38 [Rukmangathan]; Talpur v Canada (MCI), 2012 FC 25, at para 21 [Talpur]; Madadi v Canada (MCI), 2013 FC 716, at para 6 [Madadi]). This duty extends even where a visa officer is conducting an initial assessment of a case (Kumar v Canada (MCI), 2010 FC 1072, at para 29 [Kumar]).

8     The applicant's position is that the Officer clearly indicated that there were credibility concerns with the applicant's description of his job duties. Therefore, the Officer was obliged to inform the applicant of any concerns related to the credibility of the information contained within his application (Patel v Canada (MCI), 2011 FC 571, at paras 20, 22 [Patel]; Liao v Canada, [2000] F.C.J. No 1926, at para 17). In addition to the information that had been copied from the NOC, the applicant had submitted employment letters from his current and former employers, detailing his duties, and there was no reason for the Officer to consider the evidence to be insufficient or lacking in credibility. The applicant argues that the Officer's failure to provide him with an opportunity to respond to concerns related to the credibility of the evidence represents a breach of procedural fairness (Hassani v Canada (MCI), 2006 FC 1283, at para 24 [Hassani]).

9     The applicant further submits that where a decision-maker does not mention relevant evidence, this leads to a conclusion that the evidence in question was overlooked or ignored (Cepeda-Gutierrez v Canada (1998), 157 FTR 35, at para 17). The applicant contends that the Officer ignored the information in the employment letters, which contained relevant details about the duties he performed in his positions, as well as his educational degrees. The Officer accordingly failed to consider evidence that would have disabused him of concerns relating to the applicant's duties in his positions. The applicant also submits that the respondent's written argument represents an impermissible attempt to supplement the Officer's reasons by conducting his own analysis of the employment letters (Qi v Canada (MCI), 2009 FC 195, at para 35).

10     The applicant also argues for a time extension in his Memorandum of Arguments, given that he only received the refusal letter on July 4, 2014 and filed within 60 days of receiving it. However, given his evidence that he only became aware of the refusal letter on July 4, 2014, and that he filed his application for leave and judicial review within 60 days of being made aware of the decision, on September 2, 2014, there appears to be no need for a time extension according to the legislation (Immigration and Refugee Protection Act, SC 2001, c 27, ss. 72(2)(b)). In any event, the Respondent's counsel advised at the hearing that, given that leave for this application has been granted, the Respondent does not raise an issue with the timeliness of the application.

·       B. Respondent's Submissions

11     The respondent first submits that there was no breach of procedural fairness. The Officer's role is to assess the visa application on the basis of the information and evidence provided, and there is no general duty for visa officers to ask for clarification or additional information if the evidence is insufficient (Madan v Canada (MCI) (1999), 172 FTR 262, at para 6). The respondent contends that, contrary to the applicant's arguments, there were no credibility findings by the Officer. Rather, the Officer determined that the applicant repeated the terms used in the NOC instead of describing his position in his own words. The Officer took this into account and felt the applicant's evidence was insufficient, which is not a credibility finding (Kamchibekov v Canada (MCI), 2011 FC 1411 [Kamchibekov]).

12     Similarly, the respondent's position is that the Officer did not take issue with the credibility or the authenticity of the employment letters, but rather with their lack of specificity. There was therefore no need for additional procedural fairness (Obeta v Canada (MCI), 2012 FC 1542, at para 25 [Obeta]; Singh v Canada (MCI), 2009 FC 620, at para 7; Dhillon v Canada (MCI), 2009 FC 614, at para 30; Qin v Canada (MCI), 2002 FCT 815, at para 7). The respondent also argues that, even where an officer makes a reference to credibility, the duty of fairness may not be engaged where it appears that the officer's concerns were more about the adequacy of evidence provided by the applicant (Gharialia v Canada (MCI), 2013 FC 745, at paras 21-22 [Gharialia]). Relevant work experience is a concern that arises directly from the requirements in the legislation (Kamchibekov, at paras 25-27; Rukmangathan, at para 23).

13     The respondent argues that the duty of fairness for visa applicants is at the low end of the spectrum and that the burden is on the applicant to provide a complete application (Tahereh v Canada (MCI), 2008 FC 90, at para 12 [Tahereh]; Khan v Canada (MCI), 2001 FCA 345, at paras 31-32 [Khan]; Chiau v Canada (MCI), [2001] 2 FC 297, at para 41 (FCA); Obeta, at para 25). No further procedural fairness was required in this case, especially given that this application was refused at the eligibility stage of processing (Chadha v Canada (MCI), 2013 FC 105, at para 38; Kamchibekov, at paras 17-18, 26).

14     Overall, the respondent' position is that the Officer properly took into account all the evidence. The Officer considered the employment letters submitted by the applicant and reasonably determined that there was insufficient evidence that the applicant had performed the actions described in the lead statement of his stated occupations of Financial Manager and Accountant. The duties contained within the employment letters were closer to those of bookkeeper. The respondent also submits that the applicant's education is not determinative of the required work experience. Rather the Officer had to look at the duties performed. The Officer has expertise in evaluating whether the applicant has the necessary job experience, and the applicant did not provide sufficient evidence to satisfy the Officer (Buttar v Canada (MCI), 2010 FC 984 [Buttar]; Bhatia v Canada (MCI), 2012 FC 1278; Bighashi v Canada (MCI), 2013 FC 1110).

IV. Standard of Review

15     The applicant submits that the standard of review for issues of procedural fairness is correctness (Canada (MCI) v Khosa, 2009 SCC 12, at para 43 [Khosa]) and that the standard of review for questions involving an exercise of discretion and questions of mixed law and fact is reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]). The applicant submitted in his Memorandum of Fact and Law that failure to consider important evidence is a legal error and is subject to the correctness standard of review (Ozdemir v Canada (MCI), 2001 FCA 331, at para 7; Uluk v Canada (MCI), 2009 FC 122, at para 16). However, I understood his counsel to confirm at the hearing that the standard of review in assessing whether the Decision properly took the evidence into account is one of reasonableness.

16     The respondent submits that the applicable standard of review is reasonableness, because the determination of whether or not an applicant has performed the required duties for an occupation in the context of a skilled worker application is largely a matter of fact (Dunsmuir, at para 47; Tiwana v Canada (MCI), 2008 FC 100, at para 12 [Tiwana]; Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, at paras 17-18).

17     In my view, the issue of procedural fairness raised by the applicant is reviewable on the standard of correctness (Khosa, at para 43) and the issue whether the Decision properly took into account all the evidence is reviewable on the standard of reasonableness (Dunsmuir, at para 47; Kamchibekov, at para 12-13; Obeta, at paras 13-14).

V. Issues

18     Based on the parties' submissions, this application raises the following issues:

·       1. 

Was there a breach of procedural fairness? 

·       2. 

Was the Officer's decision reasonable? 

VI. Analysis

·       A. Was there a breach of procedural fairness?

19     The applicable jurisprudence establishes that, in cases dealing with visa officers' decisions on applications for permanent residence, the duty of fairness is generally at the low end of the spectrum. This is due to the absence of a legal right to permanent residence, the burden being on the applicant to establish eligibility, the impact on the applicant being less serious than in cases of the removal of a benefit, and the public interest in containing administrative costs (Tahereh, at para 12; Khan, at paras 39-40).

20     I agree with the applicant that, as part of the required procedural fairness in permanent residence applications, it has also been established in the jurisprudence that visa officers have a duty to inform the applicant of concerns relating to something other than the sufficiency of the evidence, such as the credibility or authenticity of the evidence presented (Fang, at para 19; Rukmangathan, at paras 22, 28; Talpur, at para 21; Madadi, at para 6; Kumar, at para 29; Hassani, at para 24).

21     However, it is also true that the burden is on the applicant to provide a complete application. Concerns arising out of sufficiency of the evidence do not have to be communicated to the applicant, given that this is part of the initial burden of providing a complete application. In Obeta, a case in which the visa officer noted that the tasks listed in employment letters had been copied directly from the relevant NOC codes, Justice Boivin stated as follows, at para 25:

·       ... 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 & Immigration), 2012 FC 526, [2012] F.C.J. No. 548 (F.C.); 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. [emphasis added] 

22     In the case at hand, the Officer determined that the applicant had not provided sufficient evidence that he had performed the actions described in the lead statement for the occupation, as set out in the occupational descriptions of the NOC. The Officer came to this conclusion based on the employment documents submitted by the applicant, which he considered to contain only vague descriptions of the job duties, and the applicant's own descriptions of the duties performed, which were often copied directly out of the NOC. This precise situation arose in Kamchibekov where Justice Pinard stated at para 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. 

23     In Kamchibekov, the applicant's description of the tasks he claimed to have performed were a verbatim copy of tasks listed in the NOC. Justice Pinard's analysis of whether procedural fairness requirements arose is set out as follows at paragraphs 25-28:

·       [25] Alternatively, the applicant claims that even if the officer's reasons are sufficient, the latter breached his duty of fairness in not conducting an interview, denying the applicant the right to respond to the officer's concerns as to the veracity of the application, which is the reason his application was rejected. As defined by the applicant, the officer's duty of fairness required the applicant be given the opportunity to respond to the officer's concerns (Olorunshola v. Minister of Citizenship and Immigration, 2007 FC 1056 [Olorunshola]). Inversely, the respondent emphasizes the context of the decision: at this eligibility stage, notification is not a requirement of procedural fairness and the applicant was not entitled to a running tally or an interview to correct his deficient application (Kaur v. Minister of Citizenship and Immigration, 2010 FC 442 [Kaur]). 

·       [26] In Kaur, procedural fairness did not require the visa officer to notify the applicant of the inadequacies in the materials she had provided: the onus is on an applicant to submit sufficient evidence in support of his application (Kaur at para 9). Therefore, in such cases, the applicant is not entitled to an interview to remedy his own shortcomings (Kaur at para 9). Moreover, where the visa officer's concerns arise directly from the requirements of the legislation or regulations, he is under no duty to notify the applicant (Kaur at para 11; Rukmangathan v. Minister of Citizenship and Immigration, 2004 FC 284 at para 23). Relevant work experience is a concern that arises from the regulations: a visa officer is under no duty to mention his concerns as to the applicant's work experience (Kaur at para 12). Ultimately, the visa officer has no obligation to make inquiries where the applicant's application is ambiguous: "there is no entitlement to an interview if the application is ambiguous or supporting material is not included" (Kaur at para 10; Sharma v. Minister of Citizenship and Immigration, 2009 FC 786 at para 8 [Sharma]; Lam v. Canada (Minister of Citizenship and Immigration) (1998), 152 F.T.R. 316 at para 4). To hold otherwise would impose on visa officers an obligation to give advance notice of a negative finding of eligibility (Sharma at para 8). 

·       [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. 

24     Therefore, where descriptions of duties are copied from the NOC, the visa officer is entitled to find that there is insufficient evidence to establish eligibility. In this case, although the visa officer used the word "credibility" in the Decision, the Officer appears to have been making a finding on the sufficiency of the evidence, given that it is supporting the overall finding that the applicant had not provided sufficient evidence that he performed the actions described in the lead statement for the occupation. As in Gharialia, at paras 21-22, I agree with the respondent that, notwithstanding that the Officer used the term "credibility", the Officer's findings were not actually credibility findings, but rather a finding of insufficiency of evidence. There was no breach of procedural fairness given that the burden is on the applicant to provide a complete application.

25     Relevant work experience is a concern that arises directly from the requirements in the legislation, and the Officer therefore was not required to put concerns relating to this aspect of the application directly to the applicant (Kamchibekov, at paras 25-27; Rukmangathan, at para 23).

26     I find the decision in Patel, on which the applicant relies, to be distinguishable. It is clear from Justice O'Keefe's reasons, at paragraphs 26-27, that he concluded the visa officer to have regarded the employment letter in that case, into which the duties had been copied directly from the NOC description, to be fraudulent. That case therefore did involve an issue of credibility or authenticity rather than one of sufficiency of the evidence. At the hearing, the Applicant also emphasized the decision in Madadi. That case, however, also involved a situation where the Court found that the visa officer had rejected an application based on the credibility of the employer's letter.

27     I therefore find that there was no breach of procedural fairness in the Officer's processing of the applicant's application for permanent residence.

·       B. Was the Officer's decision reasonable?

28     I do not regard the assessment of the evidence by the Officer as unreasonable. First, it is clear from the Officer's letter to the Applicant rejecting his application, and from the GCMS notes, that the Officer did consider the employment letters submitted by the applicant. He refers to the "employment documents" and "letters" from the companies for which the applicant worked, which demonstrates that they were considered in the assessment of the application.

29     The Officer stated that the employment documents contained "jargon related to the companies", that it was "not always clear what the duties described mean", and that the "employment documents only contain a vague description of [the applicant's] job duties". From what the Officer understood from the letters, he determined that the applicant's "experience matches more that of a bookkeeper rather than an accountant or financial manager". When considering the employment letters, it was open to the Officer to come to the conclusion that the duties described were closer to that of a bookkeeper than an accountant or financial manager.

30     At the hearing of this application, the Applicant's counsel also referred the Court to the Applicant's resume that formed part of the material submitted to the Officer. The Applicant argues that the Officer took into account only the applicant's application form, which the Officer found contained descriptions of his duties that were often copied directly from the NOC. The Officer failed to refer to the resume, which represents an explanation of the "jargon" contained in the employments letters, for which the GCMS notes say no explanation was provided. However, having reviewed the resume, I see that it contains essentially the same information as the application form, including substantial portions that match the language in the NOC. I accordingly find no merit in this argument.

31     A visa officer has the expertise to evaluate the applicant's job experience, and deference is owed to this evaluation (Buttar, at para 9; Tiwana, at para 12). The Officer found in this case that the evidence was insufficient to support a conclusion that the applicant's duties matched those of a Financial Manager or Accountant This was a reasonable conclusion that falls within the "range of possible, acceptable outcomes which are defensible in respect of the facts and law" (Dunsmuir, at para 47).

VII. Conclusions

32     For the reasons above, the application for judicial review is dismissed. Counsel were consulted on whether either party wished to raise an issue to be certified for appeal for the Court's consideration. No such issue was raised.

JUDGMENT

THIS COURT'S JUDGMENT is that the application for judicial review is dismissed. No question is certified for appeal.

SOUTHCOTT J.

VISA OFFICER NOT REQUIRED TO PROVIDE "RUNNING SCORE" OF CONCERNS

While the duty of fairness requires an officer to provide a meaningful opportunity to an applicant to address his concerns, it does not require the officer to provide a "laundry list" of all the concerns on a running basis. See case below:

Khoshnavaz v. Canada (Minister of Citizenship and Immigration)

Between Mohammad Javad Khoshnavaz, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2013] F.C.J. No. 1242

2013 FC 1134

Docket: IMM-9494-12

 Federal Court
Toronto, Ontario

Shore J.

Heard: November 4, 2013.
Judgment: November 13, 2013.

(44 paras.)

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REASONS FOR JUDGMENT AND JUDGMENT

SHORE J.:--

 

·        I. 

Overview

1     This Court has repeatedly stated that the duty of fairness only requires disclosure of information to provide an applicant with a meaningful opportunity to fully and fairly present his or her case, and to correct any prejudicial misunderstandings, misstatements, errors or omissions (Dasent v Canada (Minister of Citizenship and Immigration), [1995] 1 FC 720; Nadarasa v Canada (Minister of Citizenship and Immigration), 2009 FC 1112 at para 25; Pizarro Gutierrez v Canada (Citizenship and Immigration), 2013 FC 623). As stated in Rukmangatham v Canada (Minister of Citizenship and Immigration), 2004 FC 284, 247 FTR 147, this duty does not stretch to the point of requiring a visa officer to provide an applicant with a "running score" of the weaknesses in his or her application (at para 23 of that decision; also, specifically, para 2 and 12 of Hsieh v Canada (Minister of Citizenship and Immigration), 2011 FC 1524; and, Construction Labour Relations v Driver Iron Inc., 2012 SCC 65, [2012] 3 SCR 405 at para 3).

 

·        II. 

Introduction

2     The Applicant seeks judicial review of the refusal of an Immigration Officer to process his application for permanent residence under the federal skilled worker class [PR application].

 

·        III. 

Judicial Procedure

3     This is an application under subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA ] for judicial review of the Officer's decision, dated July 9, 2012.

 

·        IV. 

Background

4     The Applicant, Mr. Mohammad Javad Khoshnavaz, is a citizen of Iran, born in 1981.

5     The Applicant received a Master's degree in Geophysics from Islamic Azad University in 2009.

6     On July 28, 2010, the Applicant submitted an application for a permanent resident visa as a skilled worker.

7     In his application, the Applicant indicated he has been working as a Geophysicist for Farayand Sazan Energy Consulting Engineers Co. [Farayand] since 2005. He explained he worked part-time for Farayand from January 2005 to January 2007 and then full-time from January 2007 to July 2010.

8     The Applicant also performed his compulsory military service in the Iranian army from 2007-2009.

9     On February 21, 2013, the Officer sent a letter to the Applicant requesting that he provide evidence of his work history for the past 10 years in the form of a statement confirming contributions to a social security plan from the Social Security Organization (SSO) of Iran.

10     On March 19, 2013, the Applicant's representative replied to this request by submitting a letter from Farayand explaining that "[b]ased on the contents of the contract, he [the Applicant] is free from paying insurance premiums" (Certified Tribunal Record [CTR] at p 13).

11     The Officer did not accept this explanation and, on April 3, 2012, sent a further letter to the Applicant indicating that he was still not satisfied that the employment references he submitted were genuine or that he had the work experience he alleged as a Geophysicist. The Officer gave the Applicant an additional 30 days to provide a response to his concerns regarding his work experience.

12     On April 30, 2012, the Applicant responded to the Officer's concerns in a letter stating:

 

·        Please note that as confirmed in a letter from the company the applicant is working for, attached herein for your reference, the applicant is not obliged to pay social security. In Iran, public entities have this requirement for its employees. As far as private companies, such as the one the applicant is working for, they have the option of registering with social security or not. In this case, the Applicant is not subject to social security and therefore cannot provide the evidence you requested as it does not exist. 

(CTR at p 7).

13     On July 9, 2012, the Officer determined that the Applicant was not eligible to have his PR Application processed.

 

·        V. 

Decision under Review

14     In his decision, the Officer noted that, according to information from the SSO, "all salaried employees are subject to payment of social security contributions" in Iran.

15     In the absence of proof that the Applicant made such contributions, the Officer stated that he could not be satisfied that the Applicant had in fact worked for Farayand.

16     Consequently, the Officer determined that the Applicant had failed to provide sufficient evidence that he met the work experience requirements under subsection 75(2) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations ] and refused to process the PR application.

 

·        VI. 

Issues

17     

 

·        (1) 

Did the Officer breach the rules of procedural fairness by not disclosing to the Applicant that he consulted extrinsic evidence? 

·        (2) 

Did the Officer err in failing to consider evidence regarding the Applicant's work history? 

 

·        VII. 

Relevant Legislative Provisions

18     The following legislative provisions of the IRPA are relevant:

 

·        Application before entering Canada

 

·        11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act. 

 

·        Economic immigration

 

·        12. (2) A foreign national may be selected as a member of the economic class on the basis of their ability to become economically established in Canada. 

* * *

 

·        Visa et documents

 

·        11. (1) L'étranger doit, préalablement à son entrée au Canada, demander à l'agent les visa et autres documents requis par règlement. L'agent peut les délivrer sur preuve, à la suite d'un contrôle, que l'étranger n'est pas interdit de territoire et se conforme à la présente loi. 

 

·        Immigration économique

 

·        12. (2) La sélection des étrangers de la catégorie "immigration économique" se fait en fonction de leur capacité à réussir leur établissement économique au Canada. 

19     The relevant provisions of the Regulations are:

 

·        Class

 

·        75. (1) For the purposes of subsection 12(2) of the Act, the federal skilled worker class is hereby prescribed as a class of persons who are skilled workers and who may become permanent residents on the basis of their ability to become economically established in Canada and who intend to reside in a province other than the Province of Quebec. 

Skilled workers

 

·        (2) A foreign national is a skilled worker if 

 

·        (a) within the 10 years before the date on which their application for a permanent resident visa is made, they have accumulated, over a continuous period, at least one year of full-time work experience, or the equivalent in part-time work, in the occupation identified by the foreign national in their application as their primary occupation, other than a restricted occupation, that is listed in Skill Type 0 Management Occupations or Skill Level A or B of the National Occupational Classification matrix; 

 

·        (b) during that period of employment they performed the actions described in the lead statement for the occupation as set out in the occupational descriptions of the National Occupational Classification; 

 

·        (c) during that period of employment they performed a substantial number of the main duties of the occupation as set out in the occupational descriptions of the National Occupational Classification, including all of the essential duties; 

 

·        (d) they have submitted the results of an evaluation -- by an organization or institution designated under subsection 74(3) and which must be less than two years old on the date on which their application is made -- of their proficiency in either English or French indicating that they have met or exceeded the applicable language proficiency threshold fixed by the Minister under subsection 74(1) for each of the four language skill areas; and 

 

·        (e) they have submitted one of the following: 

 

·        (i) 

their Canadian educational credential, or 

·        (ii) 

their foreign diploma, certificate or credential and the equivalency assessment, which assessment must be less than five years old on the date on which their application is made. 

...

 

·        Minimal requirements

 

·        (3) If the foreign national fails to meet the requirements of subsection (2), the application for a permanent resident visa shall be refused and no further assessment is required. 

* * *

 

·        Catégorie

 

·        75. (1) Pour l'application du paragraphe 12(2) de la Loi, la catégorie des travailleurs qualifiés (fédéral) est une catégorie réglementaire de personnes qui peuvent devenir résidents permanents du fait de leur capacité à réussir leur établissement économique au Canada, qui sont des travailleurs qualifiés et qui cherchent à s'établir dans une province autre que le Québec. 

 

·        Qualité

 

·        (2) Est un travailleur qualifié l'étranger qui satisfait aux exigences suivantes : 

 

·        a) il a accumulé, de façon continue, au moins une année d'expérience de travail à temps plein ou l'équivalent temps plein pour un travail à temps partiel, au cours des dix années qui ont précédé la date de présentation de sa demande de visa de résident permanent, dans la profession principale visée par sa demande appartenant au genre de compétence 0 Gestion ou aux niveaux de compétence A ou B de la matrice de la Classification nationale des professions, exception faite des professions d'accès limité; 

 

·        b) pendant cette période d'emploi, il a accompli l'ensemble des tâches figurant dans l'énoncé principal établi pour la profession dans les descriptions des professions de cette classification; 

 

·        c) pendant cette période d'emploi, il a exercé une partie appréciable des fonctions principales de la profession figurant dans les descriptions des professions de cette classification, notamment toutes les fonctions essentielles; 

 

·        d) il a fourni les résultats d'une évaluation de sa compétence en français ou en anglais -- datant de moins de deux ans au moment où la demande est faite -- faite par une institution ou organisation désignée en vertu du paragraphe 74(3), et il a obtenu, pour chacune des quatre habiletés langagières, au moins le niveau de compétence applicable établi par le ministre en vertu du paragraphe 74(1); 

 

·        e) 

il a soumis l'un des documents suivants : 

 

·        (i) 

son diplôme canadien, 

·        (ii) 

son diplôme, certificat ou attestation étranger ainsi que l'attestation d'équivalence, datant de moins de cinq ans au moment où la demande est faite. 

...

 

·        Exigences

 

·        (3) Si l'étranger ne satisfait pas aux exigences prévues au paragraphe (2), l'agent met fin à l'examen de la demande de visa de résident permanent et la refuse. 

 

·        VIII. 

Position of the Parties

20     The Applicant submits that the Officer breached the rules of natural justice by failing to disclose that he consulted extrinsic evidence, namely, the SSO website, in determining that he was not eligible to have his PR application processed. The Applicant submits that, as a result of not being made aware of this extrinsic evidence, he was not granted an opportunity to respond to the Officer's concerns regarding the genuineness of his employment references.

21     The Applicant states that, contrary to the Officer's belief, not all employees in Iran are compelled to contribute to the SSO; it is possible to be employed on a private contractual basis without contributing to the SSO. The Applicant submits that the Officer, therefore, erred in his understanding of the social security scheme in Iran.

22     The Applicant also submits that the Officer failed to consider the letter submitted by his employer (Farayand) explaining that the Applicant was employed on a contract-basis and, therefore, not subject to paying for social security (CTR at p 13). The Applicant argues that the fact that the decision-maker did not mention this specific evidence in his decision demonstrates that it was overlooked or ignored.

23     The Respondent submits that there was no breach of procedural fairness by the Officer in not disclosing that he consulted extrinsic evidence. The Respondent submits that the Officer reiterated his concerns to the Applicant regarding his employment history several times and the Applicant was fully aware of the Officer's concerns with regard to the lack of evidence on contributions to the SSO (Nagulathas v Canada (Minister of Citizenship and Immigration), 2012 FC 1159).

24     The Respondent also submits that the Officer was not required to mention all of the evidence in his decision, including the Applicant's statement that he is a contract employee and, therefore, is exempt from paying SSO contributions (Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708).

25     The Respondent contends that the evidence presented in the Applicant's affidavit was not before the Officer and cannot be used to assist in demonstrating how the Applicant met the requirements of the IRPA and its Regulations (Roberts v Canada (Minister of Citizenship and Immigration), 2009 FC 518; Pacheco Silva v Canada (Minister of Citizenship and Immigration), 2007 FC 733; Nehme v Canada (Minister of Citizenship and Immigration), 2004 FC 64, 245 FTR 139).

 

·        IX. 

Analysis

Standard of Review

26     The first issue advanced by the Applicant is a question of law and warrants review on a standard of correctness. A denial of the opportunity to respond to an officer's concerns is a procedural fairness issue that is always reviewable on a standard of correctness (Hara v Canada (Ministerof Citizenship and Immigration), 2009 FC 263, 341 FTR 278 at para 16-17). As a result, the decision-maker is owed no deference (Malik v Canada (Minister of Citizenship and Immigration), 2009 FC 1283 at para 23; Sketchley v Canada (Attorney General), 2005 FCA 404, [2006] 3 FCR 392 at para 53).

27     Conversely, issues regarding an applicant's eligibility for permanent residence as a skilled worker are based on discretionary findings of fact and are therefore reviewed by this Court on a standard of reasonableness (Samuel v Canada (Minister of Citizenship and Immigration), 2010 FC 223 at para 26-27; Senadheera v Canada (Minister of Citizenship and Immigration), 2012 FC 704, 412 FTR 286 at para 6).

28     In reviewing an officer's decision on the standard of reasonableness, the Court should not intervene unless the officer came to a conclusion that is not transparent, justifiable and intelligible and within the range of acceptable outcomes based on the evidence before it (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para 47; Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR 339 at para 59).

Preliminary Issue

29     As part of the Applicant's Record, the Applicant has submitted a personal affidavit that contains information that was not part of the record before the Officer. As this information was not before the Officer, the Court agrees with the Respondent that it should not be considered in the judicial review of the Officer's decision (Lemiecha (Litigation guardian of) v Canada (Minister of Employment and Immigration) (1993), 72 FTR 49, 24 Imm LR (2d) 95; Vong v Canada (Minister of Citizenship and Immigration), 2006 FC 1480, 306 FTR 175; Dezameau v Canada (Minister of Citizenship and Immigration), 2010 FC 559, 369 FTR 151).

 

·        (1) 

Did the Officer breach the rules of procedural fairness by not informing the Applicant that he consulted extrinsic evidence? 

30     In Rukmangathan, above, this Court held that 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" (at para 22) (reference is also made to Talpur v Canada (Minister of Citizenship and Immigration), 2012 FC 25). The duty of procedural fairness owed in the context of visa applications, however, is fairly low (Farooq v Canada (Minister of Citizenship and Immigration), 2013 FC 164). This is particularly so where the Officer's concerns arise directly from the requirements of the IRPA or its Regulations, as is the case here (Obeta v Canada (Minister of Citizenship and Immigration), 2012 FC 1542 at para 25).

31     This Court has repeatedly stated that this duty of fairness only requires disclosure of information to provide an applicant with a meaningful opportunity to fully and fairly present his or her case, and to correct any prejudicial misunderstandings, misstatements, errors or omissions (Dasent, above; Nadarasa, above, at para 25; Pizarro Gutierrez, above). As stated in Rukmangatham, above, this duty does not stretch to the point of requiring a visa officer to provide an applicant with a "running score" of the weaknesses in his or her application (at para 23 of that decision, also; specifically, para 2 and 12 of Hsieh, above; and, Construction Labour Relations, above, at para 3).

32     An Applicant has the burden to put together an application that is "not only complete but relevant, convincing and unambiguous" (Obeta, above, at para 25). A visa officer is under no duty to complete a deficient application (Sharma v Canada (Minister of Citizenship and Immigration), 2009 FC 786 at para 8).

33     In the present case, the Court cannot agree with the Applicant that the decision should be overturned due to an alleged breach of natural justice. As it clearly appears on the record, the Applicant was expressly made aware of the Officer's concerns regarding his contributions to the SSO. The Officer expressed these concerns in his April 3 letter to the Applicant (CTR at p 9).

34     In his letter, the Officer also provided notice of his intention to refuse the application if no further evidence corroborating the Applicant's employment references was received. The Applicant, however, took no steps to address the Officer's concerns. In his response letter, dated April 30, 2012 (CTR at p 7), the Applicant simply replied that he was not obliged to pay social security as he worked on contract for a private company, and, therefore, could not provide proof of contributions to the SSO. The Applicant provided no evidence in support of this proposition nor did he attempt to provide other corroborating evidence in support of his employment references.

35     In the Court's view, there is no question that the Applicant knew, or should have known, precisely what issues were of concern to the Officer based on this letter. Moreover, in the circumstances of this case, the Court finds that the Officer's review of the SSO website should not be considered to trigger a duty of fairness on the part of the Officer to inform the Applicant. The information retrieved by the Officer in this case was publicly available. The Applicant could, thus, reasonably be expected to have had knowledge of that information; especially as someone who is working in Iran and ostensibly complying with Iranian labour laws.

36     Similarly, the Applicant should also have reasonably expected that a diligent officer would likely inquire into the rules regarding contributions to the SSO after being informed that the Applicant was exempt from such contributions, without any supporting documentation.

37     As reminded in Adetunji v Canada (Citizenship and Immigration), 2012 FC 708:

 

·        [38] The question is not whether the impugned document was available to the Applicant, but whether the information contained in that document was available to the Applicant, and whether the Applicant could reasonably be expected to have knowledge of that information (see Jiminez v Canada (Minister of Citizenship and Immigration), 2010 FC 1078 at paras 17-19 (available on CanLII); Stephenson v Canada (Minister of Citizenship and Immigration), 2011 FC 932 at paras 38-39 (available on CanLII))... [Emphasis added.] 

38     On the facts of this case, this Court does not find a breach of procedural fairness in the failure of the Officer to disclose to the Applicant that he had accessed the SSO website in arriving at the decision under review.

 

·        (2) 

Did the Officer err in failing to consider evidence regarding the Applicant's work history? 

39     In the present case, it is evident that the Applicant disagrees with the Officer's weighing of the evidence; however, he does not demonstrate that the Officer committed a reviewable error.

40     Contrary to the Applicant's allegations, the Officer specifically mentioned that he took the Applicant's letter of April 30, 2012 into consideration in arriving at his decision; however, he indicated that it was not sufficient to disabuse him of his concerns.

41     It was up to the Officer to weigh this evidence and to make negative findings supported by the evidence (Antrobus v Canada (Minister Citizenship and Immigration), 2012 FC 3). It is not the function of this Court to reweigh the evidence and substitute its decision for that of the Officer (Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration) (1998), 157 FTR 35).

42     The Court finds that the evidence on the record reasonably supports the Officer's finding that the Applicant did not provide satisfactory evidence to demonstrate that he had work experience as a Geophysicist.

43     Consequently, the Court does not find that its intervention is warranted (Dunsmuir, above, at para 47).

 

·        X. 

Conclusion

44     For all of the above reasons, the Applicant's application for judicial review is dismissed.

JUDGMENT

THIS ORDERS that the Applicant's application for judicial review be dismissed with no question of general importance for certification.

SHORE J.