Khoshnavaz v. Canada (Minister of Citizenship and
Immigration)
Between
Mohammad Javad Khoshnavaz, Applicant, and
The Minister of Citizenship and Immigration, Respondent
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.
Docket: IMM-9494-12
Federal Court
Toronto, Ontario
Shore J.
Heard: November 4, 2013.
Judgment: November 13, 2013.
(44 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
SHORE J.:--
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).
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].
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.
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.
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.
Issues
17
Did the Officer breach
the rules of procedural fairness by not disclosing to the Applicant that he
consulted extrinsic evidence?
Did the Officer err in
failing to consider evidence regarding the Applicant's work history?
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:
their Canadian
educational credential, or
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);
il a soumis l'un des
documents suivants :
son diplôme
canadien,
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.
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).
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).
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.
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).
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.
