Here is a case where there was contradiction between the applicant's documents and a verification call made to the employer. The result was a refusal and a finding of misrepresentation.
Bhamra v. Canada (Minister of Citizenship and
Immigration)
Between
Varinder Singh Bhamra, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2014] F.C.J. No. 250
2014 FC 239
Docket IMM-11287-12
Federal Court
Toronto, Ontario
Russell J.
Heard: December 5, 2013.
Judgment: March 11, 2014.
(48 paras.)
Counsel:
Angela Princewill, for the Applicant.
Monmi Goswami, for the Respondent.
REASONS FOR JUDGMENT AND JUDGMENT
RUSSELL J.:--
INTRODUCTION
1 This
is an application under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [Act] for
judicial review of the decision of a Designated Immigration Officer [Officer],
dated 16 October 2012 [Decision], which refused the Applicant's application for
permanent residence in Canada under the Economic Class as a provincial nominee
under subsection 11(1) of the Act and section 87 of the Immigration
and Refugee Protection Regulations, SOR/2002-227
[Regulations]. The Officer found that the Applicant was inadmissible for
misrepresentation under subsection 40(1)(a).
BACKGROUND
2 The
Applicant is a 24 year old citizen of India who applied to the Saskatchewan
Immigrant Nominee Program [SINP] in February 2009 as a carpenter. His
application was approved by the Province of Saskatchewan on 11 January 2011,
and he then submitted his application for permanent residence through the
Canadian High Commission in New Delhi [Embassy] on 21 February 2011. While the
Province of Saskatchewan selects successful applicants under the SINP,
Citizenship and Immigration Canada [CIC], through specifically designated
officers, makes the final decision on their admission to Canada, including the
determination of whether they are inadmissible to Canada under the Act.
3 As
part of his SINP application, the Applicant provided a sworn statement dated 15
January 2009 from an employer, Jit Singh. This statement indicated that the
Applicant was working for Mr. Singh's company, Panesar Timber Store, as a
carpenter specializing in cabinet making, from 20 May 2008 "till
date". The Applicant also submitted Experience Certificates signed by Mr.
Singh with his permanent residence application stating that he had worked at
Panesar Timber Store.
4 On
1 August 2011, an employee from the Embassy contacted Jit Singh in an attempt
to verify the Applicant's employment and experience. Two land lines listed on
the letterhead for Panesar Timber Store were not in service, but the Embassy
employee, who spoke Punjabi, was successful in reaching a person who claimed to
be Jit Singh at the mobile phone number listed on that letterhead. Mr. Singh
stated that Panesar Timber Store was in the business of trading in wood to be
used for doors and door frames, and had never been in the business of making
cabinets or other furniture. He stated that they "only make door frames
and doors." Mr. Singh also stated that there was no one with the
Applicant's name working for him. After being informed that it was the Embassy
calling, Mr. Singh again stated that no one with the Applicant's name had ever
worked for him. The Embassy employee ended the call and entered the code TVE-2
(Employment confirmed fraudulent) on the Applicant's file.
5 On
25 July 2012, the Applicant sent a letter to the Embassy stating that he had
changed his employment, and attached a letter from a new employer, Devgan Wood
Works, also stating that he was working as a carpenter.
6 On
14 August 2012, a Visa Officer at the Embassy sent a "procedural
fairness" letter to the Applicant informing him of the phone conversation
with Mr. Singh, and stating that it was therefore reasonable to believe that
the Applicant had provided fraudulent experience letters. The Visa Officer
outlined the provisions of the Act dealing with inadmissibility due to
misrepresentation, and gave the Applicant 30 days to respond to the concerns
raised in writing, after which a decision would be made. The letter also stated
that the Applicant's recent change of employers was "of no
relevance," as he was nominated by the province of Saskatchewan based on
his experience with Panesar Timber Store, which was now deemed to be
misrepresented.
7 The
Applicant responded with a letter dated 1 September 2012 stating that the
information in the procedural fairness letter was incorrect, and attaching
another sworn and notarized statement from Jit Singh, dated 30 August 2012. The
latter emphatically denied the facts alleged in the procedural fairness letter,
reaffirmed that the Applicant had worked for Panesar Timber Store from 15 June
2007 to 15 December 2007 and again from 20 May 2008 to 3 February 2012, and
stated that this work involved "manufacture of door and window frames,
kitchen cupboards and cabinets in the bedrooms, to be precise and miscellaneous
woodwork jobs in residential flats." Mr. Singh wrote that he did not
recall receiving a phone call from the Embassy, and speculated that the call
"may have been received by a person who did not know Varinder Singh Bhamra
or was on inimical relations with him and happened to be then present in [Mr.
Singh's] office."
8 On
16 December 2012 a letter was sent to the Applicant informing him that he was
found to be inadmissible to Canada for misrepresentation, and denying his
application for permanent residence.
DECISION UNDER REVIEW
9 The
Decision consists of the 16 December 2012 letter and the notes on the
Applicant's file in the Global Case Management System [GCMS notes].
10 The
letter stated that under subsection 40(1)(a) of the Act, a foreign national is
inadmissible for misrepresentation for directly or indirectly misrepresenting
or withholding material facts relating to a relevant matter that induces or
could induce an error in the administration of the Act, and that under
subsection 40(2)(a) such inadmissibility continues for a period of two years.
The letter stated that having considered all of the information submitted and
collected, including the Applicant's response to the Embassy's letter of 14
August 2012, the Officer had concluded that the Applicant had misrepresented or
withheld material facts related to his work experience. The further documents
submitted did not overcome the concerns raised by the telephone verification as
the Officer was"not satisfied that the person that our office spoke with
during the phone verification was not Mr. Jit Singh, proprietor of Panesar
Timber Store." The Officer found that the Applicant had misrepresented a
material fact that could have induced errors in the administration of the Act,
because an officer could have been led to believe that the Applicant's stated
work experience was genuine and that he met the provincial nominee
requirements. As a result of this finding of misrepresentation, the letter
states, the Applicant is inadmissible to Canada for a period of two years from the
date of the letter.
11 The
GCMS notes include further information on the processing of the Applicant's
file. An entry of 21 September 2012 by a user identified as
"ACO1326", following a review of the Applicant's response to the
procedural fairness letter, states in part:
· ... Mr. Bhamra has provided a statement from the Proprietor of
Panesar Timber Store, Mr Jit Singh stating that PA is employed with his
company. The statement from Mr. Singh denies ever having received a call from
our office. The verification call was made to the same phone number that is
listed on both the letterhead of the experience certificate and that of the new
statement from employer (...). The person who conducted the verification call
confirmed with the responding party at the beginning of the call that they were
Jit Singh, owner of Panesar Timber Store. There was no reason or incentive for
the responding party to identify himself as Jit Singh if in fact he was not.
The Respondent denied on several occasions during the call that he knew or
employed Varinder Singh Bhamra. The Respondent also twice confirmed that the
company only makes door frames and doors. Furthermore, the respondent did
identify his three employees, which did not include the applicant. Two of the
employees that the respondent noted are also mentioned as employees in the
recent written statement provided. The call ended by advising the respondent
the call was coming from the High Commission of Canada and requesting a final
confirmation that Varinder Singh Bhamra works or has ever worked for Mr Jit
Singh, and the respondent confirmed this person has never worked for him. No.
indication was given by the respondent at the time of the verification call
that he might not be able to provide reliable information about these facts.
The respondent of the verification phone call would have had no reason or
incentive to pretend to be Mr Jit Singh, proprietor of Panesar Timber Store, or
to provide our office with incorrect information pertaining to Mr Bhamra. The
person making the verification call identified themselves as calling from the
Canadian High Commission at the end of the phone call, and the respondent did
not change his answers at that time. The respondent was also able to identify
the other employees of the shop while confirming Mr Bhamra was not among them.
I am satisfied that the person spoken to during the verification call was Mr
Jit Singh, owner for Panesar Timber Store, and that Mr. Bhamra is not, and has
not ever been, an employee of Panesar Timber Store. I am not satisfied that the
statement provided by Mr Jit Singh on 30 August 2012 that he never received our
call is credible given the information provided in the phone verification. The
further documents submitted by the applicant do not overcome the concerns
raised by the telephone verification. In my opinion, on a balance of
probabilities, the applicant misrepresented that he has work experience as a
Carpenter by submitting an inauthentic experience certificate in support of
this fact... I therefore recommend that the applicant be made inadmissible to
Canada under section 40 of the Act...
12 On
16 October 2012, the date of the Decision, another user identified as
"CMO2803," who is presumably the Officer, made the following GCMS
entry:
· Misrepresentation assessment: I have reviewed the documentation and
information relating to Mr. Varinder Singh Bhamra's employment which have been
submitted as part of his application for permanent residence in Canada under
the Saskatchewan provincial nominee program. Due to concerns about the
genuineness of the applicant's stated employment experience, a telephone
investigation was undertaken by this office on 1 August 2011. During the course
of this verification, significant discrepancies related to the employment history
of Mr. Bhamra were identified and these have been set out in the case notes. A
procedural fairness letter dated 14 August 2012 was sent to the applicant and a
response, with attached documents, was received at the CHC on 6 SEP 2012. All
information relating to Mr. Bhamra's employment, was reviewed in rendering this
decision. In my opinion, on a balance of probabilities, the applicant
misrepresented his employment history by submitting inauthentic documents and
information relating to his stated employment as a carpenter at Panesar Timer
[sic] Store in Jagraon. Following a review of the information, I find it
reasonable to conclude that Mr. Bhamra does not have the experience claimed in
his application. This information provided in support of this application is
material and could have led to an error in the administration of the Act... I
am therefore, of the opinion that the applicant is inadmissible to Canada under
section 40 of the Act. This application is refused.
13 The
Applicant argues that the following entry of 5 March 2011, created by a user
identified as"LB00260," is also relevant to these proceedings:
· ... Pls confirme [sic] Applicant's [experience] at Panesar Timber
Store - working as a carpenter. Seems strange that the experience letter would
have a colour photo of applicant in letterhead??...
ISSUES
14 The
Applicant raises the following issues in this proceeding:
· *
Was the Officer's
finding that he is inadmissible to Canada under subsection 40(1)(a) of the Act
unreasonable?
· *
Did the Officer breach
a duty of procedural fairness in coming to this conclusion?
STANDARD OF REVIEW
15 The
Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9 [Dunsmuir] held that a standard of review analysis need not be conducted in every
instance. Instead, where the standard of review applicable to a particular
question before the court is settled in a satisfactory manner by past
jurisprudence, the reviewing court may adopt that standard of review. Only
where this search proves fruitless, or where the relevant precedents appear to
be inconsistent with new developments in the common law principles of judicial
review, must the reviewing court undertake a consideration of the four factors
comprising the standard of review analysis: Agraira v.
Canada (Public Safety and Emergency Preparedness), 2013
SCC 36 at para 48.
16 The
parties agree, and the Court concurs, that the standard of review for the first
issue is reasonableness (see Dunsmuir, above, at para 47), and the standard of review with respect to the
second issue, which raises a question of procedural fairness, is correctness
(see Canadian Union of Public Employees (C.U.P.E.) v.
Ontario (Minister of Labour), 2003 SCC 29 at para 100; Sketchley v. Canada (Attorney General), 2005
FCA 404 at para 53).
17 When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with"the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law." See Dunsmuir, above, at para 47, and Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59. Put another
way, the Court should intervene only if the Decision was unreasonable in the
sense that it falls outside the "range of possible, acceptable outcomes
which are defensible in respect of the facts and law."
STATUTORY PROVISIONS
18 The
following provisions of the Act are applicable in these proceedings:
· Misrepresentation
· 40.
(1) A permanent
resident or a foreign national is inadmissible for misrepresentation
· (a)
for directly or
indirectly misrepresenting or withholding material facts relating to a relevant
matter that induces or could induce an error in the administration of this
Act;
[...]
Application
· (2)
The following
provisions govern subsection (1):
· (a)
the permanent resident
or the foreign national continues to be inadmissible for misrepresentation for
a period of two years following, in the case of a determination outside Canada,
a final determination of inadmissibility under subsection (1) or, in the case
of a determination in Canada, the date the removal order is enforced; and
[...]
* * *
· Fausses déclarations
· 40.
(1) Emportent
interdiction de territoire pour fausses déclarations les faits suivants :
· a)
directement ou
indirectement, faire une présentation erronée sur un fait important quant à un
objet pertinent, ou une réticence sur ce fait, ce qui entraîne ou risque
d'entraîner une erreur dans l'application de la présente loi;
[...]
· Application
· (2)
Les dispositions
suivantes s'appliquent au paragraphe (1):
· a)
l'interdiction de
territoire court pour les deux ans suivant la décision la constatant en dernier
ressort, si le résident permanent ou l'étranger n'est pas au pays, ou suivant
l'exécution de la mesure de renvoi;
[...]
ARGUMENT
Applicant
Reasonableness of the Decision
19 The
Applicant argues that the Officer acted unreasonably and single-mindedly in
finding that the Applicant had misrepresented himself, relying exclusively on
the telephone call to the Applicant's purported employer and failing to address
the other available evidence. He notes that the Officer reached this conclusion
despite a provincial nominee program [PNP] official being satisfied as to the
veracity of the Applicant's employment history, and despite being provided with
a sworn letter of employment from the Applicant's employer and another sworn
statement of the employer in response to the procedural fairness letter. The
Applicant says that the Officer failed to consider this evidence and failed to
provide adequate reasons for doubting its veracity: Bellido
v. Canada (Minister of Citizenship and Immigration),
2005 FC 452.
20 The
Applicant says the information from the telephone call was contrary to all of
the other evidence, and the Officer failed to provide any comment as to why the
additional evidence was not sufficient to overcome his or her credibility
concerns. He argues that the Officer's preference for the telephone call
evidence is especially problematic given that the Officer did not personally make
the call, and states that it cannot be ascertained whether the full transcript
of the conversation is present.
21 The
Applicant says that the GCMS notes reveal that it was the Applicant's
photograph, affixed to the letterhead of the employer's 15 January 2009 letter
that mistakenly caused concern about his employment claims. He says no
explanation was given for why this was of concern, nor was this concern ever
put to the Applicant.
Procedural Fairness
22 The
Applicant argues that before departing from the decision of the PNP officials,
the Officer was required to ascertain why those officials were satisfied as to
the Applicant's credibility and fit for the program. The relevant CIC manuals
make it clear that there is to be a dialogue between the Immigration Officer
and PNP Officials when concerns arise, and the Applicant had a legitimate
expectation that such a dialogue would occur. He quotes Baker
v. Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817 at para 26 [Baker] for the proposition that "[i]f the claimant has a legitimate
expectation that a certain procedure will be followed, this procedure will be
required by the duty of fairness..." While immigration manuals are not
binding authorities, they provide instructions to officers as to how they are
to carry out their duties, and can give rise to a legitimate expectation
regarding the procedures to be followed: Park v. Canada
(Minister of Citizenship and Immigration), 1999 CanLII
8221, 172 F.T.R. 152 (FC) at paras 8-9. He quotes from section 10.4 of
Enforcement Manual 2 / Overseas Processing Manual 18 (ENF 2/OP 18 Evaluating
Inadmissibility), which reads in relevant part [with the Applicant's emphasis
included]:
· In provincial nominee cases, misrepresentation may be an issue that
needs to be addressed by CIC as well as by the province. Where, in examining
the application, there is persuasive evidence that the province's selection
decision was based on direct or indirect misrepresentation or withholding
material facts relating to a relevant matter that induces or could induce an
error in the administration of IRPA, the following should be considered.
· It is CIC's responsibility to determine whether applicants are inadmissible.
This includes misrepresentation. Before rendering an
inadmissibility decision pursuant to A40, the officer must examine issues of
relevancy and materiality. As this may be related to
the selection decision made by the province, the visa officer should consult
with the provincial official to gather all the information necessary regarding
materiality and relevancy. This consultation process and the evidence gathered
from the province should be clearly explained and recorded in the file notes for
possible use as evidence in the Federal Court or before the IRB.
· The procedure outlined below should be followed in cases involving
misrepresentation:
· 1.
As per normal standards
of procedural fairness, the visa officer should advise the applicant of the
concerns and give the applicant at least 30 days to respond to the concerns.
The province should receive a copy of this letter, and the applicant should be
advised that the province is being provided with the copy.
· 2.
If the reply from the
applicant provides a satisfactory explanation to meet
the visa officer's concerns, case processing may
continue normally without referral to the province.
· 3.
If there is no reply, or if the reply does not provide a satisfactory
explanation to meet the concerns of misrepresentation in line with normal
procedural fairness standards, the visa officer should
proceed as follows:
· *
Consult with the
responsible provincial authority, asking the province to confirm the concerns
regarding misrepresentation and request that they withdraw the provincial
nomination certificate
· *
The visa office
must
· a)
provide the province
with documentation from the file regarding their concerns;
· b)
advise the province
that the applicant had been provided with an opportunity to respond and the
nature of that response; and
· c)
inform them of the
visa officer's conclusion that misrepresentation of a material fact relating to
a relevant matter has occurred. [...]
23 The
Applicant argues that these statements in the ENF 2 / OP 18 manual show that he
had a legitimate expectation that PNP officials in Saskatchewan would be
consulted before his application for permanent residence was refused by CIC,
and that there is no evidence that such a consultation took place. Without it,
he says, CIC had no way of knowing whether PNP officials contacted the
Applicant's employer, Jit Singh. The PNP officials were clearly convinced of
the authenticity of the Applicant's past employment, and the Officer ought to
have inquired as to the reasons for this before reaching an opposite
conclusion. The Officer's failure to follow through on the procedure set out in
the manual was contrary to the Applicant's legitimate expectation and a breach
of natural justice: Menon v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1273 at paras
21-22.
24 Furthermore,
the Officer's preference of the verification call evidence over the employer's
sworn statements shows that the Officer doubted the credibility of both the
Applicant and his employer, the Applicant argues, and procedural fairness
required that the Officer make follow-up inquiries or grant the Applicant an
in-person interview before making a decision on that basis. He says he was
placed in an untenable position: he was asked to provide a response to the
Officer's allegations, but any denial of the telephone conversation was deemed
to lack credibility. The employer's sworn statement was an appropriate means of
responding to the Officer's credibility concerns: Lu v.
Canada (Minister of Citizenship and Immigration), 2008
FC 625 at para 30 [Lu]. Beyond
this statement, and without the benefit of an in-person interview, the
Applicant is left wondering what more he could have done to satisfy the
Officer.
25 The
Applicant argues that the Court's reasoning in Guo v.
Canada (Minister of Citizenship and Immigration), 2006
FC 626 [Guo] applies to this
case. In that case, a visa office called an employer to verify Ms. Guo's employment
history, was provided with information that contradicted her application, and
sent a procedural fairness letter. Ms. Guo's response included a letter from
the employer explaining that the information provided over the phone was
incorrect, but this was characterized by the visa office as a
"retraction" of the telephone conversation and found not to be
credible. Justice Harrington found that the visa office should have made
further inquiries and was not justified in preferring the evidence from the telephone
call (Guo, above, at paras
14-15):
· [14] ... In this case, the error rested with [the employer's
representative]. Ms. Guo acted sensibly and approached him immediately. The
doubts the Ministry had should have been dealt with by follow-up queries (Huang v. Canada (Minister of Citizenship and Immigration) 2005 FC 1615, [2005] F.C.J. No. 1990).
· [15] Of course, it may be that Ms. Guo is lying, and that the
information provided by Mr. Wang in his telephone call was true. However, there
was simply no evidentiary record to allow the immigration officers to
disbelieve her. Consequently, the application for judicial review shall be
granted. There is no serious question of general importance to certify.
26 In
the present case, the Applicant argues that he did all he could to satisfy the
Officer that the telephone call was unreliable, and the Officer failed to
explain why the sworn statements were not reliable. When confronted with a
sworn statement that was directly contrary to the notes from the verification
call, the Officer was required as a matter of fairness to go beyond explaining
why those notes were to be preferred. The sworn statement should have raised a
doubt in the mind of the Officer, and those doubts "should have been dealt
with by follow-up queries"(Guo, above, at paras 5, 7-8, 14). The duty of fairness could have been
satisfied by making a second phone call to the employer or by inviting the
Applicant for an interview (see Baker, above, at paras 22, 24, 28), but neither of these things occurred.
27 Greater
procedural protections were required in this case both because of the serious
consequences to the Applicant, who is excluded from seeking entry to Canada for
two years, and also because economic class applications are made largely on
objective criteria: Haghighi v. Canada (Minister of
Citizenship and Immigration), [2000] 4 F.C. 407, 2000
CanLII 17143 (FCA) at para 31. While an oral hearing is not always necessary,
the Applicant was owed the opportunity to meaningfully respond to concerns and
have his responses fully and fairly considered: Ghasemzadeh
v. Canada (Minister of Citizenship and Immigration),
2010 FC 716 at para 27.
Respondent
28 The
Respondent says that the Applicant's application for permanent residence was
dismissed because he misrepresented his work experience. The Decision was
reasonable, and the process leading up to it was fair.
29 Contrary
to the Applicant's assertions, the record shows that the Officer considered
both the Applicant's acceptance through the PNP and the fact that his alleged
boss, Jit Singh, provided sworn statements verifying his employment, the
Respondent argues. The Applicant simply disagrees with the assignment of
greater weight to the verification phone call.
30 Furthermore,
the notion that it is problematic that the verification call was not made by
the same officer who made the decision is without merit, as the Applicant fails
to cite any authority or provide any explanation for why this is problematic or
unfair.
31 The
Respondent also rejects the argument that it is unclear why the evidence from
the verification phone call was preferred over the sworn statements of the
purported employer. The GCMS notes state several reasons for this preference:
· (a)
The verification phone
call was made to the same phone number listed on the Company's
letterhead;
· (b)
The person who
conducted the verification call confirmed with the responding party at the
beginning of the call that they were Singh;
· (c)
There was no reason or
incentive for the responding party to identify himself as Singh, if he in fact
was not;
· (d)
The responding party
denied on several occasions during the call that he knew the Applicant, or that
the Applicant had worked for him;
· (e)
The responding party
confirmed twice that the company only makes doors and door frames;
· (f)
The responding party
named his three employees and the Applicant was not one of them. Two of these
employees were also mentioned as employees in the written statement provided in
response to CIC's fairness letter; and
· (g)
The responding party
was only told at the end of the call that he was talking to the Canadian High
Commission.
32 The
Respondent argues that there was no obligation on the Officer to conduct an
interview with the Applicant to assess his credibility. Fairness required that
the Applicant be advised of the Officer's concerns through the procedural
fairness letter following the verification call, but the Officer was not
required to blindly accept the Applicant's response to the fairness letter.
Rather, the Officer was required to assess whether the response satisfied and
alleviated his or her concerns, and that assessment is to be reviewed on a
standard of reasonableness: Chen Guo Hui v. Canada
(Minister of Citizenship and Immigration), 10 December
2010, IMM-2357-10 (FC) [Chen]; Ni v. Canada (Minister of Citizenship and Immigration), 2010 FC 162 at para 18 [Ni].
33 The
Respondent says that Lu, above,
does not assist the Applicant, as Justice Zinn's comments in that case
regarding the sworn affidavit that could have addressed the officer's
credibility concerns were made in obiter after dismissing the application. The comments were case specific
and directed to the parties involved.
34 The
Respondent argues that Guo,
above, is also distinguishable. In that case, the visa office had no
evidentiary basis to disbelieve the Applicant's response to the fairness
letter, whereas in the present case, the Officer clearly set out why he or she
preferred the verification phone call and what specific evidence was relied
upon in dismissing the application: Guo, above, at para 15; Ni, above, at para 18.
35 The
Respondent says the argument that CIC was required to find out from
Saskatchewan authorities why he was nominated for their PNP before dismissing
his application has already been rejected by this Court. In Hui v. Canada (Minister of Citizenship and Immigration), 2011 FC 1098 [Hui],
another PNP nominee had his application for permanent residence dismissed due
to misrepresentation of his work experience, and argued that CIC erred by
dismissing his application before consulting with officials from Saskatchewan.
Justice Barnes addressed this argument as follows:
· [12] Mr. Hui also contends that the Visa Officer breached the duty
of fairness by failing to consult with officials from Saskatchewan before his
claim was rejected. This argument has no merit. Article 4.10 of the
Canada-Saskatchewan Immigration Agreement requires Canada to notify
Saskatchewan of the reasons for a possible refusal of a provincial nominee.
Here that was done when Canada copied Saskatchewan with the Visa Officer's
fairness letter and Saskatchewan declined to intervene. Canada met its
contractual obligations and no further duty was owed to Mr. Hui.
36 In
the present case, the Respondent says, Saskatchewan authorities were emailed a
copy of the procedural fairness letter two days after it was sent to the
Applicant.
ANALYSIS
37 I
can find no reviewable error in this Decision.
38 First
of all, the Decision is not unreasonable. The record shows that the Officer
considered the fact that the Applicant had been accepted as a member of the
Saskatchewan PNP and that letters from Mr. Singh purported to verify the
Applicant's employment. The Officer simply weighed these facts against the
phone call and came to the conclusion, for reasons given, that a
misrepresentation had occurred.
39 As
the Respondent points out, the GCMS notes make it clear that the verification
phone call outweighed all other facts, and for good reason:
· a)
The verification phone
call was made to the same phone number listed on the Company's
letterhead.
· b)
The person who
conducted the verification phone call confirmed with the responding party at
the beginning of the phone call that they were Singh.
· c)
There was no reason or
incentive for the responding party to identify himself as Singh, if he in fact
was not.
· d)
The responding party
denied on several occasions during the call that he knew the Applicant, or that
the Applicant had worked for him.
· e)
The responding party
confirmed twice that the company only makes doors and door frames.
· f)
The responding party
named his three employees and the Applicant was not one of them. Two of these
employees were also mentioned as employees in the written statement provided in
response to CIC's fairness letter.
· g)
The responding party
was only told at the end of the call that he was talking to the Canadian High
Commission.
40 Mr.
Singh's later suggestion that the verification call "may have been
received by a person who did not know Varmider Singh Bharma or was on inimical
relations with him and happened to be then present in [Mr. Singh's
office]" is fantasy, not evidence. It explains nothing. If such a person
exists, there is no explanation as to who he might be and why he might have had
access to Mr. Singh's office and his telephone at precisely the time the
verification call was made. Without such a fantasy figure, there is simply no
explanation as to why Mr. Singh would provide such contradictory information.
There is nothing unreasonable about the Officer's conclusions on this point.
41 There
was considerably more that the Applicant could have done in response to the
fairness letter, but he failed to avail himself of the opportunity it gave him.
For example, he could have submitted documentation to corroborate his position
at the company and letters from other employees. Instead, he left the Officer
to choose between the notes on the earlier verification call and Mr. Singh's
denial that he received that call.
42 Nor
was there any procedural unfairness. The Applicant was provided with a fairness
letter and given every opportunity to resolve the misrepresentation issue in
his own favour. What he offered was contradictory letters and an unbelievable
and entirely unsubstantiated reason for the contradiction. As Justice Mandamin
pointed out in Chen, above,
quoting Justice Zinn in Ni,
above, at para 18:
· I agree with the applicant that a high degree of fairness is
required in misrepresentation determinations. This is why the officer sent the
applicant a procedural fairness letter expressly raising his concerns and
permitting the applicant to file a response. This is what fairness required in
the circumstances and the officer met that burden. It does not require that the
officer blindly accept the response to the fairness letter without question.
The officer is required to assess whether the response satisfies and alleviates
his concerns. That decision is reviewed, as stated, on the reasonableness
standard.
It is the fairness letter that, in this context,
provides the Applicant with a meaningful opportunity to respond and present his
case fully in accordance with Baker principles. The Applicant has not shown me that he could not have
presented any response he wished to the fairness letter.
43 The
Applicant was given his opportunity to explain the contradiction and
demonstrate that no misrepresentation had occurred. He was the one with access
to the facts. It is not up to CIC to investigate unexplained contradictions.
Provided the fairness letter makes clear what the problem is, the onus is upon
the Applicant to establish that no misrepresentation has occurred. See Ni, above, at para 18; Banik v. Canada (Minister of Citizenship and Immigration), 2013 FC 777 at paras 69-75; Ikede v. Canada
(Minister of Citizenship and Immigration), 2012 FC 1354
at para 23. In this case, the Applicant did not discharge that onus and
presented the Officer with an implausible explanation.
44 The
Applicant's argument that CIC was required to ascertain from Saskatchewan why
he was nominated for the province's PNP before dismissing his application has
been addressed by this Court. In Hui, above, at para 12, Justice Barnes notes:
· Mr. Hui also contends that the Visa Officer breached the duty of
fairness by failing to consult with officials from Saskatchewan before his
claim was rejected. This argument has no merit. Article 4.10 of the
Canada-Saskatchewan Immigration Agreement requires Canada to notify
Saskatchewan of the reasons for a possible refusal of a provincial nominee.
Here that was done when Canada copied Saskatchewan with the Visa Officer's
fairness letter and Saskatchewan declined to intervene. Canada met its
contractual obligations and no further duty was owed to Mr. Hui.
45 In
the present case, the record shows that a copy of the procedural fairness
letter was sent to Saskatchewan officials 2 days after it was sent to the
Applicant and before the final decision was made. In addition, the Applicant
has not demonstrated how anything that transpired between CIC and Saskatchewan,
or that did not transpire, prevented him from providing a full response to the
fairness letter.
46 The
Applicant's reliance on Guo,
above, is misplaced. In Guo,
Justice Harrington found that "there was no evidentiary record to allow
the immigration officers to disbelieve her ..." (para 15). That is not the
case here. Ms. Guo provided a plausible explanation and significant details for
the discrepancy in that case that warranted further investigation. The
Applicant did not provide anything that warranted further investigation and he
has failed to place before me any suggestion of what further investigation
could have revealed that would be of assistance to him.
47 The
basis for the Officer's concerns about misrepresentation was made very clear in
the fairness letter. All the Applicant did was provide a contradictory
follow-up from Mr. Singh with no plausible explanation for the contradiction.
He has still provided no plausible explanation to the Court. There is nothing
before me to suggest that procedural unfairness occurred in this case.
48 The
parties agree that there is no question for certification and the Court
concurs.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
· 1.
the application is dismissed;
and
· 2.
there is no question
for certification.
RUSSELL J
