Ottawa, Ontario, February 7, 2007
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
FRANCISCO JAVIER RAMOS-FRANCES
Applicant
and
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Francisco Javier Ramos-Frances, a citizen of Spain, applied for permanent residence in Canada as a skilled worker in the occupation of “Flight Crew Member” (National Occupational Classification (NOC) 2271). At the time of his application, Mr. Ramos-Frances was working in Canada as authorized by a work permit. Therefore, his application for permanent residence was filed at the Canadian Consulate in Buffalo, New York.
[2] Subsection 75(2) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations) provides that:
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75.(2) A foreign national is a skilled worker if (a) within the 10 years preceding the date of their application for a permanent resident visa, they have at least one year of continuous full-time employment experience, as described in subsection 80(7), or the equivalent in continuous part-time employment in one or more occupations, other than a restricted occupation, that are 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; and (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. [underlining added] |
75.(2) Est un travailleur qualifié l’étranger qui satisfait aux exigences suivantes : a) il a accumulé au moins une année continue d’expérience de travail à temps plein au sens du paragraphe 80(7), ou l’équivalent s’il travaille à temps partiel de façon continue, au cours des dix années qui ont précédé la date de présentation de la demande de visa de résident permanent, dans au moins une des professions appartenant aux genre de compétence 0 Gestion ou niveaux de compétences 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. [Le souligné est de moi.] |
[3] The officer who reviewed Mr. Ramos-Frances’ application had concerns regarding his work experience. Specifically, Mr. Ramos-Frances’ salary did not appear to be commensurate with his stated occupation as a flight crew member. Mr. Ramos-Frances’ application was not assisted by the fact that the letter sent by his employer for the purpose of verifying his work experience was silent as to whether Mr. Ramos-Frances had performed the actions or duties contained in the lead statement to NOC 2271 or listed in the description of the main duties of the occupation. Therefore, Mr. Ramos-Frances was required to attend a personal interview at the Canadian Consulate in Detroit, Michigan.
[4] Mr. Ramos-Frances responded to the correspondence notifying him of his scheduled interview by advising that he no longer had legal status in the United States so he would be unable to attend an interview in Detroit. He stated that he was now living in Chile and requested his file be transferred to the Canadian Embassy in Santiago, Chile, so he could attend an interview there. This request was refused. When Mr. Ramos-Frances did not attend the scheduled interview in Detroit, his application was assessed on the basis of the information contained within his file. The application was rejected because the officer was not satisfied Mr. Ramos-Frances had met the requirements of paragraphs (a), (b) and (c) of subsection 75(2) of the Regulations.
[5] On this application for judicial review of that decision, Mr. Ramos-Frances says that he was denied procedural fairness because his request for the transfer of his file was unfairly and unreasonably refused. Also, Mr. Ramos-Frances argues when the officer learned that he could not attend an interview in the United States, the officer unfairly continued to require that Mr. Ramos-Frances attend the interview.
[6] For the reasons that follow, I have concluded that the officer did not breach the requirements of procedural fairness.
[7] Before turning to address the substantive issue raised by Mr. Ramos-Frances, it is necessary to consider the standard of review to be applied to the asserted errors. It is, I believe, well-settled law that no deference is owed to tribunals on questions of procedural fairness. It is for a reviewing court to determine the content of the duty of fairness.
[8] There is an abundance of jurisprudence from this Court with respect to what the duty of fairness requires of officers when considering applications for permanent residence. Much of the jurisprudence deals with the issue of when an officer is required to inform an applicant of concerns the officer has with respect to the application so as to afford the applicant an opportunity to address the officer’s concerns. As a general rule, the jurisprudence is to the effect that when the officer’s concern arises directly from the requirements of the legislation or the Regulations, an officer is not under a duty to provide an opportunity for the applicant to address those concerns. See, for example, Hassani v. Canada (Minister of Citizenship and Immigration), 2006 FC 1283 and the authorities reviewed therein. Mr. Justice Rothstein, then a judge of this Court, expressed the situation as follows in Lam v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1239 at paragraph 4:
4. A visa officer may inquire further if he or she considers a further enquiry is warranted. Obviously, a visa officer cannot be wil[l]fully blind in assessing an application and must act in good faith. However, there is no general obligation on a visa officer to make further inquiries when an application is ambiguous. The onus is on an applicant to file a clear application together with such supporting documentation as he or she considers advisable. The onus does not shift to the visa officer and there is no entitlement to a personal interview if the application is ambiguous or supporting material is not included.
[9] With this in mind, I turn to the officer’s alleged breach of fairness by refusing Mr. Ramos-Frances’ request that his file be transferred to the Canadian Embassy in Chile. The Computer Assisted Immigration Processing System notes record the following consideration of the request for the file transfer:
applicant writes that he is now in Chile. no reason provided. no evidence if he lawfully entered. requests transfer of file. I have reviewed the file and do not feel that it is warranted. JOC to advise request denied.
[10] The officer was concerned about Mr. Ramos-Frances’ legal status in Chile. Mr. Ramos-Frances argues that fairness required that he be given an opportunity to address that concern so that he would know the case to be met.
[11] Officers are instructed in section 5.17 of Chapter 1 of the Overseas Processing Manual that:
Visa offices are not required to transfer applications for permanent or temporary entry to Canada upon the request of an applicant or their designated representative.
Visa offices should transfer files only if that transfer would enhance program integrity. Conversely, visa offices should refuse to transfer files if such a transfer diminishes program integrity. Officers should consider consulting potential receiving visa offices to seek assistance in finalizing cases before transferring a file.
[…]
As part of program integrity considerations, officers should also be mindful that the intent of R11 is to ensure that, as much as possible, visa applications are reviewed by the offices with the local knowledge and expertise necessary to conduct an effective case review.
[12] Subsection 11(1) of the Regulations, referred to in the Manual, provides:
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11.(1) An application for a permanent resident visa — other than an application for a permanent resident visa made under Part 8 — must be made to the immigration office that serves (a) the country where the applicant is residing, if the applicant has been lawfully admitted to that country for a period of at least one year; or (b) the applicant's country of nationality or, if the applicant is stateless, their country of habitual residence other than a country in which they are residing without having been lawfully admitted.
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11.(1) L’étranger fait sa demande de visa de résident permanent — autre que celle faite au titre de la partie 8 — au bureau d’immigration qui dessert : a) soit le pays dans lequel il réside, s’il y a été légalement admis pour une période d’au moins un an; b) soit le pays dont il a la nationalité ou, s’il est apatride, le pays dans lequel il a sa résidence habituelle — autre que celui où il n’a pas été légalement admis.
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[13] Mr. Ramos-Frances’ application was not made under Part 8 of the Regulations therefore the requirements of section 11 of the Regulations apply to his application. Chile is not Mr. Ramos-Frances’ country of nationality and he provided no information in his request for file transfer with respect to how long he had been in Chile, or what his legal status in Chile was.
[14] In my view, the officer’s concerns were relevant, bona fide and arose directly out of subsection 11(1) of the Regulations. Given that, the fact that there is no absolute entitlement to an interview, and the fact that the onus is on an applicant for permanent residence to ensure that his or her file is complete, I find that the officer did not breach the duty of fairness, either by failing to advise about her concerns under subsection 11(1) of the Regulations or by failing to transfer the file.
[15] With respect to the officer’s continued insistence that Mr. Ramos-Frances attend an interview, Mr. Ramos-Frances argues that knowing he could not attend an interview, fairness required the officer to consider other means of obtaining information to satisfy her concerns. It is suggested that she could have called Mr. Ramos-Frances’ former Canadian employer. In my view, fairness did not require the officer to make inquiries. I adopt the comments of my colleague Mr. Justice Hugessen in Ahmad v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1166 at paragraphs 2 and 3, where he wrote:
2. First, it is alleged that the Visa Officer erred in awarding the applicant no points whatever for the category of experience in the applicant's intended occupation in Canada. The reason that the Visa Officer decided in that way was that he gave no credibility whatever to the only evidence which the applicant produced to support his assertion that he had experience in the proposed occupation, namely, an undated letter from the alleged former employer of the applicant in Pakistan. That letter was not on printed letterhead, and on the applicant's own evidence, had only been received by him a few days before his interview with the Visa Officer rather than, as one might normally expect, upon his having left the alleged employment. The Visa Officer, as I have said, assigned no credibility whatever to that letter.
3. Counsel argues that the Visa Officer had a duty to inquire further and that he should have picked up the telephone and called the signer of that letter, whose name was typewritten at the bottom, at the telephone number which was shown at the top of the letter. That, according to counsel, is part of the duty of fairness. I disagree. There is no duty on the part of the Visa Officer to make that sort of inquiry. The assessment of the credibility of all the evidence that is put before a trier of fact, whether that evidence be testimonial or documentary, is entirely a matter for the trier's appreciation and there is no duty on the part of the trier of fact to go further and make his or her own inquiries. Indeed, frequently there is a breach of the duty of fairness when the trier of fact takes it upon him or herself to make such inquiries. That is the only part that is said to have been wrong with the Visa Officer's assessment of the experienced factored. And, as I say, I can find no error in it. [underlining added]
[16] To the extent it is suggested that the officer could have asked for further written information such as pay stubs, a copy of his work permit or a further letter from his employer, I am not persuaded that the duty of fairness required that the officer advise Mr. Ramos-Frances of the inadequacies of his written materials so that he could, in effect, buttress his application.
[17] For these reasons, the application for judicial review will be dismissed. Counsel posed no question for certification and I agree that no question arises on this record.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. The application for judicial review is dismissed.
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1062-06
STYLE OF CAUSE: FRANCISCO JAVIER RAMOS-FRANCES, Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION, Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JANUARY 16, 2007
APPEARANCES:
CHANTAL DESLOGES FOR THE APPLICANT
DAVID CRANTON FOR THE RESPONDENT
SOLICITORS OF RECORD:
CHANTAL DESLOGES FOR THE APPLICANT
GREEN AND SPIEGEL
TORONTO, ONTARIO
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA