The files that were located at the Canadian Consulate in Buffalo, NY, have been transferred to the Ottawa office but the process has substantially slowed the finalization of those applications. Still, the story below is not completely accurate, as some kinds of applications that were being dealt with in Buffalo, such as sponsorships, have actually seen a marked improvement in processing time, Our office has been receiving decisions on sponsorships originally located in Buffalo in approximately six months. I think that the problem of delay is most acute with files where the medical exams have not yet been ordered. Also, the subject of the article below may not be the best indicator of processing times, as citizens from certain couturiers like Iran may be subject to more scrutiny than those from other countries.
Buffalo immigration backlog leaves new Canadians in limbo
By Tobi Cohen, Postmedia NewsDecember 5, 2012
Concordia University graduate and immigrant from Iran, Alireza Saberi, poses for a photograph in his neighbourhood of Cote-des-Neiges in Montreal on Tuesday. Saberi's Canadian residency has already been delayed for two years after the federal government closed the Buffalo visa office and transferred applications to the Ottawa office.
Photograph by: Dario Ayala / For Postmedia News, Postmedia News
OTTAWA — The closure of a visa office in upstate New York last spring has meant extra long delays for thousands of increasingly cash-strapped would-be permanent residents and Canada could risk losing the very immigrants it wants most as a result.International students and foreign workers — young, educated newcomers with so-called Canadian experience, the kind of people Canada’s revamped immigration system is increasingly keen to court — comprise the vast majority of the nearly 10,000 files that were transferred to Ottawa from Buffalo, N.Y.
Some say they have waited as many as two years for their papers while they watched others who applied later get their permanent residency before them. A number of them are now on the hook for expensive new medical tests since their previous ones expired, while others are growing desperate as their savings runs out.
Many self-described “forgotten ones of Buffalo” have even taken to Facebook to voice their concerns and swap status updates.
Alireza Saberi, a 28-year-old McGill University electrical engineering graduate from Iran, is one of the organizers. He estimates he’s among some 4,000 students and recent grads in the Montreal area now in limbo.
“I am jobless and looking to find a job. Just spending my personal savings,” said Saberi, who applied to the federal skilled worker program after receiving the okay from Quebec in December 2011, about a year after he graduated.
He received a post-graduate permit that allows him to work and has applied to hi-tech companies like Cisco Systems and Qualcomm, but each time it’s the same refrain.
“I passed the qualification but it’s the last level of HR where they request you to be a permanent resident at least,” he said. “By default, I was rejected.”
He figures he’s got enough savings to survive another three or four months and isn’t sure what he’ll do if processing takes any longer. Returning home is certainly an option and he knows of others who are already considering it.
It’s the situation Loic Kerbrat now finds himself in. The 29-year-old from France came to Quebec three years ago on a holiday working visa, found a girl and a new calling and would like to stay.
The childcare worker with a degree in nursing, however, has spent the last nine months doing volunteer work, trying not to cut too far into the money he’s saved for a down payment on a house.
He can’t work, pending his permanent residency, and says he’s already decided to return to France in January if there’s still been no movement on his file.
“I followed all of the rules, I did everything I was told to do. Mostly I was disturbed by the lack of information from the government. I just want this to be over” he said.
“I don’t understand how this kind of thing could happen in Canada.”
Canada closed its Buffalo visa office in May after announcing foreign students and workers living in Canada would no longer have to leave the country to renew a visa or apply for permanent residency. At the time, about 9,508 permanent residency applications and 700 temporary resident applications were packed up and sent to a new office in Ottawa for processing.
Citizenship and Immigration spokesman Remi Lariviere said the packing started around June and the files were received in Ottawa in July. The files spanned all immigration streams and involved applicants across Canada, though it appears a good number of them involved Quebec skilled workers.
When the office closed, processing times were around 15 months, though Lariviere said new files now received in Ottawa will take only nine months to be finalized. He said the Buffalo backlog should be completed by next summer.
“By centralizing more processing in Canada, particularly for files that are more straightforward and with lower risk, we can be more efficient and create jobs in Canada,” he said.
The opposition has raised the issue on several occasions in the House of Commons over the last few weeks.
In an interview Tuesday, NDP immigration critic Jinny Sims said she suspects overworked, understaffed citizenship officers “just forgot” about the boxes of Buffalo files sitting in the corner as many of them haven’t even received a file number or been assigned a case worker yet which means they’re still in the very early stages of processing.
“It creates a lot of instability. I think my fear is we’re going to have people not trusting their government and beginning to look somewhere else for places to go to and that is a real concern,” she said.
In response to repeated questions in the House of Commons, Immigration Minister Jason Kenney merely noted that the “new central processing office in Ottawa is processing applications more quickly than they were in Buffalo.”
Applicants are reminded that they are responsible for providing sufficient evidence of experience in their Skilled Worker applications
Afolabi v. Canada (Minister of Citizenship and
Immigration)
BetweenBabatunde Joseph Afolabi, Applicant, and The Minister of Citizenship and Immigration, Respondent
[2012] F.C.J. No. 1474
2012 FC 1364
Docket IMM-2568-12
Federal Court Toronto, Ontario
Russell J.
Heard: November 8, 2012. Judgment: November 26, 2012.
(33 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 RUSSELL J.:-- 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 Visa Officer (Officer) of the High Commission of Canada in
Accra, Ghana, dated 28 February 2012 (Decision), which refused the Applicant's
application for permanent residence in Canada as a member of the Skilled Worker
class.
BACKGROUND
2 The
Applicant is 35-year-old citizen of Nigeria. He submitted an application for
Permanent Residence as a Federal Skilled Worker at the High Commission of
Canada in Accra, Ghana based on his professional qualifications as a Financial
Manager. His application was refused because he failed to reach the 67 point
threshold stipulated by regulation 76(1)(a) of the Immigration
and Refugee Protection Regulations, (SOR/2002-227)
[Regulations].
3 The
Applicant started his banking career in June 2004, working at Gulf Bank PLC. He
worked there until December 2006. He submitted letters from Gulf Bank dated 4
June 2004, 20 April 2005, 4 May 2005, and 5 September 2005. These letters
describe the Applicant's terms of employment and discuss certain transfers and
promotions. None of them make any mention of the Applicant's job description or
duties.
4 In
December 2006, the Applicant started working at Equitorial Trust Bank, where he
remained until June 2009. He submitted an offer of employment from Equitorial
dated 13 December 2006, which laid out the basic terms of employment such as
hours and pay. He also submitted a reference letter from Equitorial dated 14
December 2009. This letter, however, did describe his job duties.
5 The
Applicant then started working for Oceanic Bank International PLC in June 2009,
and he has remained there ever since. He submitted a letter of offer from
Oceanic dated 15 April 2009, which did not provide a job description. A letter
of promotion from Oceanic was also provided dated 22 February 2010, which again
did not provide a job description.
6 The
Computer Assisted Immigration Processing System (CAIPS) Notes indicate that the
Applicant first submitted an application for permanent residence to the
Centralized Intake Office in Sydney, Nova Scotia in September 2009. Based on
the Applicant's self-assessment of his work experience, he was found to have
one year's worth of experience in the NOC 0111 category. As a result, his file
was transferred to the Canadian High Commission in Accra, Ghana.
7 In
October 2010, the Applicant was 'provisionally' given 17 points for work
experience. By letter dated 15 October 2010, the Applicant was asked to submit
additional proof of his work experience as a Financial Manager, such as
'letters from your employer(s) that indicate your job title, specific duties,
responsibilities and length of employment.'
8 In
November 2010, the Applicant responded and submitted his business card, a
letter of introduction from Oceanic Bank, and a letter indicating he was
registered to take his IELTS exam in January 2011. He also provided some
contact information for his superiors at Oceanic Bank.
9 The
same officer who assessed the file in October 2010 assessed the file again in
November 2010 and awarded the Applicant 15 points for work experience, based on
the letter from Oceanic Bank. In February 2011, a copy of the IELTS test
results was received, and the file was again reviewed by the same officer. The
Applicant was still assessed as having less than two years experience (June
2009 - February 2011). The application was forwarded to the Officer for a final
decision.
10 The
Officer awarded the Applicant 17 points for his work experience, which is the
number prescribed for more than two but less than three years of work
experience. As such, the Applicant did not reach 67 points and the Officer rejected
his application on 28 February 2012. The Applicant contends that he has five
years of work experience and should have been awarded the full 21 points
available under this category; this would have put him over the 67 point
threshold.
DECISION UNDER REVIEW
11 The
Decision in this case consists of the Officer's CAIPS Notes.
12 The
Officer awarded the Applicant points for work experience based upon his
employment at Oceanic Bank, starting in June 2009 until February 2012, the time
of the Decision. This was under three years, so the Applicant was awarded 17
points. On 20 February 2012 he Officer stated:
·It is possible that he has experience as Financial Manager from June
2009 to date of letter from Oceanic Bank Mar. 4, 2010 because the letter refers
to him as a senior officer. However, for the period of Jan. 4, 2007 to June 26,
2009 his position at Equitorial Trust bank was Banking Officer and his job
duties did not include management of staff as would normally be required at the
level of 0111 of the NOC, as indicated by the lead statement and main duties.
Therefore I will not award any points for experience for period prior to June
26, 2009.
13 The
Officer awarded 17 points out of a possible 21 for work experience. This put
the Applicant's total points at 63, and as such his application was refused
pursuant to subsection 11(1) of the Act. A request for re-assessment was
received on 28 February 2012, which was refused on 28 March 2012. The Applicant
then commenced this application for judicial review.
ISSUES
14 The
Applicant raises the following issue in this application:
·a.
Whether the Officer
erred in the assessment of the Applicant's work experience.
STANDARD OF REVIEW
15 The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 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 well-settled by past
jurisprudence, the reviewing court may adopt that standard of review. Only
where this search proves fruitless must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis.
16 The
award of points in a permanent residence application is a mixed question of
fact and law that attracts a standard of review of reasonableness (Patel v Canada (Minister of Citizenship and Immigration), 2011 FCA 187 at paragraphs 36-38). Further, the decision of a visa
officer to grant a permanent residency is reviewable on a standard of
reasonableness (see Enriquez v Canada (Minister of
Citizenship and Immigration), 2012 FC 1091 at paragraph
4; Torres v Canada (Minister of Citizenship and
Immigration), 2011 FC 818 at paragraph 26). Thus, the
standard of review is reasonableness.
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 paragraph 47, and Canada (Minister
of Citizenship and Immigration)v Khosa, 2009 SCC 12 at paragraph 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:
·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.
[...]
Obligation - answer truthfully
·16.
(1) A person who makes
an application must answer truthfully all questions put to them for the purpose
of the examination and must produce a visa and all relevant evidence and
documents that the officer reasonably requires.
* * *
·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.
·[...]
·Obligation du demandeur
·16. (1) L'auteur d'une demande au titre de la
présente loi doit répondre véridiquement aux questions qui lui sont posées lors
du contrôle, donner les renseignements et tous éléments de preuve pertinents et
présenter les visa et documents requis.
19 The
following provisions of the Regulations are applicable in this proceeding:
·Selection criteria
·76.
(1) For the purpose of
determining whether a skilled worker, as a member of the federal skilled worker
class, will be able to become economically established in Canada, they must be
assessed on the basis of the following criteria:
·(a) the skilled worker
must be awarded not less than the minimum number of required points referred to
in subsection (2) on the basis of the following factors, namely,
·(i)
education, in
accordance with section 78,
·(ii)
proficiency in the
official languages of Canada, in accordance with section 79,
·(iii)
experience, in
accordance with section 80,
·(iv)
age, in accordance with
section 81,
·(v)
arranged employment, in
accordance with section 82, and
·(vi)
adaptability, in
accordance with section 83; and
·(b) the skilled worker
must
·(i)
have in the form of
transferable and available funds, unencumbered by debts or other obligations,
an amount equal to half the minimum necessary income applicable in respect of
the group of persons consisting of the skilled worker and their family members,
or
·(ii)
be awarded the number
of points referred to in subsection 82(2) for arranged employment in Canada
within the meaning of subsection 82(1).
[...]
Experience (21 points)
·80.
(1) Up to a maximum of
21 points shall be awarded to a skilled worker for full-time work experience,
or the full-time equivalent for part-time work experience, within the 10 years
preceding the date of their application, as follows:
·(a) for one year of
work experience, 15 points;
·(b) for two years of
work experience, 17 points;
·(c) for three years of
work experience, 19 points; and
·(d) for four or more
years of work experience, 21 points.
·[...]
* * *
·Critères de sélection
·76.
(1) Les critères
ci-après indiquent que le travailleur qualifié peut réussir son établissement
économique au Canada à titre de membre de la catégorie des travailleurs
qualifiés (fédéral) :
·a) le travailleur qualifié accumule le nombre
minimum de points visé au paragraphe (2), au titre des facteurs suivants
:
·(i)
les études, aux termes
de l'article 78,
·(ii)
la compétence dans les
langues officielles du Canada, aux termes de l'article 79,
·(iii)
l'expérience, aux
termes de l'article 80,
·(iv)
l'âge, aux termes de
l'article 81,
·(v)
l'exercice d'un emploi
réservé, aux termes de l'article 82,
·(vi)
la capacité
d'adaptation, aux termes de l'article 83;
·b)
le travailleur qualifié
:
·(i)
soit dispose de fonds
transférables -- non grevés de dettes ou d'autres obligations financières --
d'un montant égal à la moitié du revenu vital minimum qui lui permettrait de
subvenir à ses propres besoins et à ceux des membres de sa famille,
·(ii)
soit s'est vu attribuer
le nombre de points prévu au paragraphe 82(2) pour un emploi réservé au Canada
au sens du paragraphe 82(1).
[...]
Expérience (21 points)
·80.
(1) Un maximum de 21
points d'appréciation sont attribués au travailleur qualifié en fonction du
nombre d'années d'expérience de travail à temps plein, ou l'équivalent temps
plein du nombre d'années d'expérience de travail à temps partiel, au cours des
dix années qui ont précédé la date de présentation de la demande, selon la
grille suivante :
·a)
pour une année de
travail, 15 points;
·b)
pour deux années de
travail, 17 points;
·c)
pour trois années de
travail, 19 points;
·d)
pour quatre années de
travail, 21 points.
[...]
ARGUMENTS
The Applicant
20 The
Applicant says that for a decision to be reasonable it must be supported by
reasons 'that can stand up to a somewhat probing examination' (Canada (Director of Investigation and Research Competition Act) v
Southam Inc, [1997] 1 S.C.R. 748 at 776). The Officer
awarded the Applicant 17 points for work experience, which is the amount
attributed to two years experience. However, the Applicant says he submitted
evidence indicating that he had five yeas of experience, and thus deserved to
be awarded 21 points. The Applicant submits the Officer ignored the evidence
demonstrating the Applicant has five years of work experience.
21 The
Applicant submits that the Decision is based on an erroneous finding of fact
because the Officer did not consider the evidence that the Applicant had five
years of work experience. There is nothing in the Decision to indicate that the
Officer considered this evidence. The Applicant submits that the magnitude of
this error is such that the Decision should be set aside.
The Respondent
22 The
Respondent states that the evidence provided by the Applicant does not
demonstrate that he has four or more years of experience in his intended
occupation. The Applicant only produced one letter from one of his past
employers that described the duties he performed from January 2007 to June
2009.
23 Not
only did the Applicant only submit one letter describing his job duties, none
of the duties match any of the duties of a Financial Manager set out in NOC
0111. Although there is no description of any of the duties performed by the
Applicant at Oceanic Bank, it appears the Officer still gave him the benefit of
the doubt and awarded him experience for this employment. The Applicant did not
submit any other evidence that he is experienced in the activities described in
NOC 0111 - Financial Manager.
24 Based
on the evidence provided by the Applicant in support of this application, he
has not shown that the Officer erred, or that he should have been awarded 21
points for work experience to bring his total to 67. This is a fact-driven
decision, and entirely reasonable for the Officer to reject the application.
The Respondent submits that this application for judicial review be dismissed.
ANALYSIS
25 In
his permanent resident visa application, the Applicant sought to be assessed
for NOC 0111 Financial Manager. The Applicant was awarded 17 points for
experience in the NOC 0111 category for the period from June 2009 to the time
of the Decision (i.e. two years and eight months) for a total of 63 points.
26 The
Applicant now says that he had five years of experience under paragraph 80(1)(d) of the Regulations so that he should have
been awarded the maximum of 21 points for experience. The Applicant says that he
provided evidence to the Officer which demonstrated that he had five years of
experience, and that the Officer's assessment was not based upon the evidence
before him.
27 Hence,
this review involves a very narrow assessment of whether the Officer overlooked
evidence of the Applicant's claimed five years of experience.
28 I
have reviewed the evidence submitted by the Applicant to show his experience in
NOC 0111. In my view, there is insufficient evidence of experience as a
Financial Manager to demonstrate that the Officer's Decision to award the
Applicant 17 points for experience was unreasonable.
29 This
is because, as the Respondent points out, the Applicant has produced one letter
from one bank describing the duties that he performed from January 2007 to June
2009. None of the duties described in the letter match any of the main duties
of a financial manager set out in the NOC 0111.
30 Nor
was there any other evidence provided by the Applicant to show that he was
involved in the development and implementation of policies and systems, or that
he established performance standards, and prepared financial reports for senior
management -- activities listed in the lead statement of a Financial Manager.
31 I
think it is also worth pointing out that the Applicant was given notification
of the deficiencies in his application regarding the need for additional proof
of experience under NOC 0111. The Applicant simply failed to provide evidence
that would establish additional relevant experience.
32 I
cannot say that the Decision contains a reviewable error. My own assessment
convinces me that the Decision falls within the Dunsmuir range.
33 Counsel
agree there is no question for certification and the Court concurs.
A common misconception amongst applicants is that they do not need to dsclose children where they have no custody, or when they are from another relationship. That is incorrect.
Ikede v. Canada (Minister of Citizenship and
Immigration)
BetweenOnome Joseph Ikede, Applicant, and The Minister of Citizenship and Immigration, Respondent
[2012] F.C.J. No. 1463
2012 FC 1354
Docket IMM-1582-12
Federal Court Toronto, Ontario
Manson J.
Heard: November 20, 2012. Judgment: November 23, 2012.
(25 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 MANSON J.:-- Mr. Onome Joseph Ikede [the
Applicant] is seeking judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA] of the decision
of Mark Giralt, immigration counsellor for the High Commission of Canada
Immigration Section in Ghana [Officer], dated December 12, 2011, in which the
Officer concluded that the Applicant is inadmissible for permanent residence in
Canada for a period of two years, for a misrepresentation related to being the
parent of two children in his visa application. The Applicant seeks an order
setting aside the Officer's decision.
·I.
Background
2 The
Applicant is a citizen of Nigeria who applied for permanent residence as a
provincial nominee in May 2008, at which point he paid the processing fee for
himself, his spouse at the time and his two dependent children born in 1985 and
1986, the latter three of whom are living in Canada.
3 In
January 2009, the Applicant advised the immigration office that he had been
separated from his spouse since July 2008; she was removed from his application
in June 2010.
4 In
March 2011, the Applicant asked that his two children living in Canada be removed
from his application. The immigration office requested updated information to
ascertain the Applicant's current situation.
5 In
April 2011, the immigration office received an updated application which
reflected the separation from his former spouse and the removal of his two
children from his application.
6 In
June 2011, the Applicant asked to have his infant daughters; Onanefe and Oniefe
born September 14, 2008 and April 5, 2010 respectively as well as his partner
Enite (their mother) born February 8, 1983, accompany him to Canada.
7 The
Officer reviewing the file noted some discrepancies in the Applicant's file and
sent a procedural fairness letter on June 13, 2011 asking for clarification as
to the omission of the two infant children up until that point.
8 The
Officer reviewed the Applicant's response received in August 2011 and found the
explanation not to be credible, as it was inconsistent with the message that
the Applicant had sent in his correspondence in June 2011; specifically, there
was no mention of any paternity concerns with respect to Onanefe Miriam Ikede
and Oniefe Lisa Marie Ikede, which, was the Applicant's justification for
failure to include the children in his submitted in the August 2011 letter.
9 The
case was referred for consideration of refusal, for misrepresentation
concerning the children, and the application was refused on December 12, 2011.
The Officer stated that the misrepresentation or withholding of this fact
induced or could have induced errors in the administration of the IRPA because reliance on this information
could have led to the conclusion that the Applicant had declared all his family
members - a requirement in the assessment of admissibility for permanent
residence.
10 The
decision turned on subsection 40(1)(a) of the IRPA, which states that a foreign national is inadmissible for permanent
residence for misrepresentation if he or she directly or indirectly
misrepresents or withholds material facts that induce or could induce an error
in the administration of the IRPA.
·II.
Issues
11 The
Applicant raises the following issues in the application for judicial review:
·a.
Did the Officer err in
his assessment of section 117 (9)(d) of the Immigration
and Refugee Protection Rules [IRPR]?
·b.
Did the Officer reach a
conclusion before fully examining the Applicant's application for permanent
residence?
·c.
Did the Officer breach
the Applicant's right to a fair hearing and/or principles of natural
justice?
·d.
Did the Officer fail to
consider the objective as set out in the IRPA?
12 Having
read the Applicant's factum, the two main issues, as rephrased, are:
·a.
Did the Officer err in
his assessment of the evidence particularly in respect to his finding of lack
of credibility?
·b.
Did the Officer breach
the Applicant's rights to a fair hearing and the principles of natural
justice?
·III.
Standard of Review
13 Counsel
for the Applicant and the Respondent agree that the applicable standard of
review is reasonableness for the issue of the Board's assessment of the
evidence (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47 [Dunsmuir]) and correctness for the issue of procedural fairness (Malik v Canada (Minister of Citizenship and Immigration), 2009 FC 1283, [2009] F.C.J. No. 1643 at para 23; Khan v Canada (Minister of Citizenship and Immigration), 2009 FC 302, [2009] F.C.J. No. 676 at para 11).
14 When
reviewing a decision on the standard of reasonableness, the Court is 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" (Dunsmuir, above, at para 47; and Canada (Minister of
Citizenship and Immigration)v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at
para 59). The Court should only intervene if it finds that the impugned
decision is unreasonable and falls outside the range of possible, acceptable
outcomes.
·IV.
Analysis
A. Did the Officer Err in
his Assessment of the Evidence?
15 The
Applicant submitted that the Officer erred in stating that the information
provided by the Applicant would have induced an error in the administration of
the IRPA, by failing to update
the information concerning his being the father of two children and at the
timing of finally advising the office of this fact, such that the Applicant's
explanation was not credible.
16 The
Computer Assisted Immigration Processing notes [CAIP notes] indicate that the
Applicant did not include his children Onanefe Miriam Ikede and Oniefe Lisa
Ikede and their mother in the IMM008 form completed by the Applicant in April
2011, notwithstanding one of the children was born September 14, 2008 and the
second child was born in 2010. The Applicant first acknowledged the children
and their mother in a letter dated June 11, 2011 after receiving a procedural
fairness letter.
17 The
Applicant explained in an email dated August 1, 2011 that he had not previously
disclosed the two children and his partner given that the children's mother and
he were not married, and that he did not accept parentage when the children
were born because he had paternity reservations given he and the mother did not
reside together (even though they had a sexual relationship). Further, the
Officer found that it appeared that the Applicant had misrepresented his
family's composition by failing to declare his older daughter Miriam Ikede in
his family information form submitted and dated April 8, 2009, notwithstanding
the daughter's date of birth was earlier, having been born in 2008.
18 The
Officer concluded that the information was material as it could have induced an
error in the administration of the IRPA, as without the knowledge of the existence of both daughters, he
would not have examined all family members in the application and would not
have been able to make an accurate decision concerning inadmissibility.
19 Counsel
agreed that the "time of the application", as stated in section
117(9)(d) of the IRPR, refers to
the time the applicant submits his application for visa and continues until the
time the applicant is granted a right to enter Canada as a permanent resident
at the port of entry (see dela Fuente v Canada (MCI), 2006 FCA 186, [2006] F.C.J. No. 774). Accordingly, changes made by
the Applicant with respect to his family composition were provided within that
time, not after the Applicant was granted permanent resident status. In
essence, counsel for the Applicant has argued that the Officer's credibility
findings were flawed because the Officer failed to account for the Applicant's
reasonable explanations for delays in acknowledging his two children and
partner. Secondly, even if Applicant's credibility was undermined, the Officer
had an obligation to allow the Applicant to further explain the delay in
acknowledging his children and the mother by way of an oral hearing.
20 As
has been noted, the Officer's credibility findings are entitled to the most
deferential standard of review, that of reasonableness as this Court has found
the Board has well-established expertise in the determination of questions of
fact, particularly in the evaluation of the credibility (see Rahaman v Canada (Minister of Citizenship and Immigration),[2000] F.C.J. No. 1800, 101 ACWS (3d) 140 at para 38 (QL) (TD); and Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425, 157 FTR 35 at para 14). In this case, the
Officer's credibility findings were supported by the evidence before it, and
are therefore reasonable. Moreover, it is open to the Officer to reject the
Applicant's explanation therefore, as stated above, the Applicant's failure to
put his best foot forward when given the opportunity to do so and not only
acknowledge his children, but also explain why he had not included them earlier
on his application, renders the Officer's findings reasonable.
21 Moreover,
as set out in Baker v Canada (Minister of Citizenship
and Immigration), [1999] 2 S.C.R. 817, [1999] S.C.J. No.
39, an oral hearing is not always necessary, and even under the duty of
procedural fairness, there is no unqualified right to an oral hearing, or issue
from a procedural fairness perspective. The question is whether an oral hearing
is necessary to provide a reasonable opportunity for the parties to effectively
make their case. In this case, it was not necessary.
B. Did the Officer Breach
the Applicant's Right to a Fair Hearing and/or Principles of Natural Justice?
22 The
Applicant submits that the Officer acted unfairly or unreasonably by not
alerting the Applicant about his reservations or concerns that negated the
Applicant's case, in finding that he lacked credibility concerning his two
children and partner given the timing of disclosure of the same. While there is
no question that an Officer should give an opportunity to respond to any
credibility concerns, either by conducting an interview or by sending the
Applicant a letter setting out his concerns so those concerns could be
addressed, in this case the Applicant was given such an opportunity by the
Officer.
23 Given
that the explanation provided was found not to be credible, there was no
further obligation to provide another or further opportunity to explain or
respond to the Officer's concerns; the burden is on the Applicant to establish
that show that he was not inadmissible (see Shi v Canada
(Minister of Citizenship and Immigration), 2005 FC 1224,
[2005] F.C.J. No. 1490 at para 16). As no convincing evidence was put forth by
the Applicant in response to the procedural fairness letter, there was no
breach of procedural fairness by the Officer.
24 Neither
party proposed a question for certification although Applicant's counsel asked
the Court to consider a possible question under reserve, namely:
·When there is a credibility issue with respect to a visa applicant's
application, is the applicant entitled to an oral hearing?
25 This
question has been answered in the negative in many cases before this Court, and
therefore I do not consider it appropriate to certify.
JUDGMENT
THIS COURT'S JUDGMENT is that the Applicant's judicial review application is dismissed.
