Ottawa, Ontario, March 5, 2007
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
Applicant
and
AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] The applicant submitted an application for permanent residence in the Federal Skilled Worker Class. A visa officer rejected the application on the basis that the applicant did not establish that she had one year of continuous full-time employment experience, or the equivalent in part-time employment experience, within the ten-year period preceding the date of the application. The applicant alleges a reasonable apprehension of bias and claims that the visa officer prejudged the matter. She also asserts that there was a breach of procedural fairness because the visa officer did not apprise her of concerns in relation to the application. As a result, the applicant claims to have been taken by surprise at the interview.
[2] Despite the articulate and capable submissions of the applicant’s counsel, the applicant has not demonstrated the existence of a reasonable apprehension of bias. Nor have I been persuaded that there was a breach of procedural fairness. On the information submitted by the applicant, the visa officer’s decision was justified. Consequently, the application for judicial review will be dismissed.
Background
[3] The applicant is a 31-year-old citizen of India who arrived in Canada for the purpose of obtaining her Ph.D. at the University of Victoria. She obtained her M.A. in English in November of 2003. The Ph.D. studies were abandoned due to difficulties encountered with the qualifying exams. In January of 2004, the applicant obtained a position as a manuscript developer. She applied for and was granted a post-graduate work permit valid from June 15, 2004 until February 15, 2005. She worked as a manuscript developer from June until September of 2004, when her employer became ill and could no longer employ her. During this period of employment, the applicant received $60 remuneration. Her efforts to obtain new employment were unsuccessful.
[4] On September 23, 2004, the applicant submitted her application for permanent residence under the Federal Skilled Worker class. She relied upon work experience in Canada and in India. Regarding the latter, she claimed to have worked for eight months as an editor for a bi-monthly journal for school teachers in Hyderabad, part-time over a period of two years as a post-secondary research and teaching assistant at the Indian Institute of Technology, and full-time as a teaching associate at the same institution for almost four months.
[5] The application was screened and a preliminary assessment of 73 points was awarded. Initially, the screening officer thought that an interview was not necessary, although additional documents were required. A letter to this effect was sent to the applicant requesting the following additional documents:
• updated certified true copies of letters of reference detailing her present and previous work experience from her current employer;
• proof of current employment in the form of W2 or T4 income statements and pay stubs.
[6] The applicant replied that she was unemployed and could not provide these documents. In correspondence dated December 9, 2006, the applicant was informed that an interview was necessary. Subsequently, the interview was scheduled for June 6, 2006. On April 18, 2006, upon the applicant’s request, Citizenship and Immigration Canada (CIC) provided a copy of the Computer Assisted Immigration Processing System (CAIPS) notes to the applicant. The following entry appears for December 1, 2005:
THE ONLY DOCUMENT ON FILE ATTESTING TO THE SUBJ’S EXP AS A MANUSCRIPT DEVELOPER IS A “JOB OFFER LETTER” FROM THE SWITCHBOARD – TELEPHONE SERVICES OF U of VICTORIA. SUBJ IS CURRENTLY UNEMPLOYED. INTERVIEW WARRANTED TO DETERMINE LEVEL OF EXPERIENCE.
The Decision
[7] The applicant was interviewed on June 6, 2006. On the same day, the visa officer rejected the application. The refusal letter stated that the applicant did not meet the requirements for immigration to Canada because she had failed to provide reliable documentation to demonstrate that she had “one year paid experience in skill level 0, A or B occupation”.
The following explanation was given.
The letters of reference provided did not clearly define your duties and responsibilities or that you received financial compensation for your services. You stated that you never paid income tax in India. The letters of reference, therefore, are deemed self serving evidence of your stated employment.
Statutory Provisions
[8] The relevant statutory provisions are attached to these reasons as Schedule “A”.
Issues
[9] There are three issues:
(1) whether the applicant has established a reasonable apprehension of bias;
(2) whether there was a breach of procedural fairness; and
(3) whether the decision is unreasonable.
The Applicant’s Argument
[10] The applicant notes that there were two visa officers involved with her file. She argues that where an administrative decision-maker has a concern regarding a particular aspect of a file, the specific concern should be conveyed to an applicant who should then be granted an opportunity to respond. The first visa officer identified specific concerns regarding the applicant’s current employment. Because this officer failed to communicate (other than through the CAIPS), those specific concerns to the second visa officer (the decision-maker), the applicant was taken by surprise. The second visa officer focussed on past employment concerns and the applicant (not having been provided notice) was not prepared for the visa officer’s questions in this respect.
[11] Further, according to the applicant, the visa officer prejudged the matter because the officer had already determined that, in the absence of income tax information or pay stubs, the application must be refused. No such requirement exists in the legislation or CIC policy. The visa officer’s mind was closed to the applicant’s explanations for the absence of these documents. The applicant also contends that the visa officer’s repeated rude and disparaging remarks, comments, mannerisms and unfair behaviour during the interview indicate bias.
[12] The visa officer has sworn an affidavit denying the allegations and denying any impropriety in the conduct of the interview. The officer was cross-examined on her affidavit.
Analysis
Reasonable Apprehension of Bias
[13] The standard of review is not applicable to this issue. In Au v. Canada (Minister of Citizenship and Immigration) (2001), 202 F.T.R. 57 (T.D.), Mr. Justice Nadon, then of the Trial Division, stated:
22 The standard which will apply to determine if there is a reasonable apprehension of bias will vary, depending on the nature, role and function of the particular tribunal or decision-maker. Since visa officers do not act in a judicial or quasi-judicial capacity, a test of bias similar to the test applied to judges or decision-makers acting judicially is not, in my view, appropriate. In my opinion, a less stringent test should be applied to visa officers, one which requires an absence of conflict of interest and a mind that is open to persuasion. Visa officers are expected to have examined an applicant's file and to have conducted an investigation in order to determine if there are any grounds under which an applicant would be inadmissible to Canada before the interview with the applicant takes place. The purpose of the interview, which is usually conducted once the visa officer has determined that he or she has doubts as to whether the applicant is admissible, is for the applicant to dissipate the visa officer's concerns and persuade him that he or she is admissible. The visa officer represents the Minister, and therefore cannot be expected to be as impartial as a judge should be.
23 In the case at bar, the applicant's concern is that Officer Schultz prejudged his case. On that subject, in D.J.M. Brown & J.M. Evans, Judicial Review of Administrative Action in Canada, vol. 2 (Toronto: Canvasback Publishing, 1998), the learned authors make the following comments at pages 11-39 and 11-40:
Circumstances which appear to diverge from the proper adjudicative process by revealing an improper predisposition to deciding the issues in dispute one way rather than another are closely related to instances of "interest", "hostility" and "relationships". That is, an appearance may be created, either from certain behaviour or past circumstances, that evidence has come before the adjudicator other than through the medium of the parties' proofs and arguments, or that the decision-maker did not come to the hearing with an open mind. Thus, there may be thought to have been "prejudgment," "prior knowledge," "prior adjudication," or "excessive interference," or that the decision-maker may have had ex parte contacts with third persons in relation to the matter in question. These circumstances can be loosely characterized as creating an appearance of unfairness.
Nevertheless, decision-makers cannot realistically be expected to approach an issue unencumbered by attitudes, knowledge or experience that to some extent predispose them in one direction or another. In the words of one judge, to charge adjudicators with bias:
is not merely to say that they would be likely to decide a particular matter in a particular way, but to say that they would do so improperly.
Accordingly, the question typically becomes one of whether the decision-maker exhibited such a degree of prejudgment or predisposition to one side or to the other that it gives rise to a reasonable apprehension that the decision-maker is or would be unresponsive to the evidence and arguments advanced at the hearing. [footnotes omitted]
[14] In short, a finding of reasonable apprehension of bias on the part of a decision-maker requires something more than an allegation. The evidence before me does not demonstrate a reasonable apprehension of bias.
[15] In the absence of any evidence to the contrary, it must be presumed that a decision-maker will act impartially: Zündel v. Citron, [2000] 4 F.C. 225 (C.A.) leave to appeal refused, [2000] S.C.C.A. No. 322. Even in the context of judicial hearings, the apprehension of bias must be reasonable and be held by reasonable and right-minded persons applying themselves to the question and obtaining the required information. The question is -- what would an informed person, viewing the matter realistically and practically, having thought the matter through, conclude? The grounds must be substantial and the test should not be related to the very sensitive or scrupulous conscience. A real likelihood or probability of bias must be demonstrated and mere suspicion is not sufficient: Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369.
[16] Given the visa officer’s complete denial of the allegations, her reasonable responses on cross-examination and her ultimate reasons for denying the application, the applicant has not demonstrated that bias, or a reasonable apprehension of bias, arose.
Breach of Procedural Fairness
[17] Again, the standard of review does not apply. With respect to procedural fairness, there is no duty to inform an applicant of concerns regarding the strength of the application and supporting materials. While there is some authority to support the proposition that a visa officer has an obligation to inform an applicant when extraneous material (not the situation here) has been considered in evaluating the application for permanent residence, the fact remains that an applicant must provide sufficient information and material to attain a positive outcome.
[18] Where a visa officer’s concerns relate to the requirements set out in the legislation, the visa officer is under no obligation to apprise an applicant of those concerns: Parmar v. Canada (Minister of Citizenship and Immigration) (1997), 139 F.T.R. 203 (T.D.); Ali v. Canada (Minister of Citizenship and Immigration) (1998), 151 F.T.R. 1 (T.D.); Shaikh v. Canada(Minister of Citizenship and Immigration) (1998), 156 F.T.R. 136 (T.D.); Heer v. Canada (Minister of Citizenship and Immigration) (2001), 215 F.T.R. 57 (T.D.); Nehme v. Canada (Minister of Citizenship and Immigration) (2004), 245 F.T.R. 139 (F.C.); Ramos-Frances v. Canada (Minister of Citizenship and Immigration), 2007 FC 142, F.C.J. No. 192.
[19] In this case, the visa officer’s concerns stemmed from a deficiency regarding the applicant’s supporting documentation. There was no duty to put the applicant on notice. The nature of the information was the same as that required upon the submission of the application. The applicant knew precisely what the letters of reference must contain. The question of the applicant’s “knowledge” is discussed in the next section of these reasons. There was no breach of procedural fairness.
The Reasonableness of the Decision
[20] Decisions of visa officers with respect to applications for permanent residence under the Federal Skilled Worker category attract a standard of review of reasonableness or patent unreasonableness. I need not dwell on the distinction because the visa officer’s decision meets the less deferential standard of reasonableness in any event.
[21] The applicant’s record includes the “appendix a” document check list submitted with her application for permanent residence (applicant’s record, tab 22). There are specific instructions regarding the contents of reference letters (applicant’s record, p. 75). The applicant checked off the various requirements except those which stated:
• your main responsibilities in each position;
• your total annual salary plus benefits.
[22] Thus, the applicant was aware that her letters of reference were deficient. The visa officer concluded that the reference letters regarding the position as an editor (tribunal record, pp. 10, 11) and the positions as a research assistant and teaching associate (tribunal record pp. 12-15) did not indicate the applicant’s salary and benefits. The applicant did not produce any other evidence (beyond an oral statement that she was paid) to establish that her employment in India was paid employment. Consequently, the visa officer was totally justified in concluding that the applicant failed to provide sufficient evidence of paid employment.
[23] The applicant is correct that the visa officer could have allowed additional time to enable her to file more comprehensive information about her work experience. However, the officer was not obliged to do so. The visa officer’s failure to provide additional time does not constitute reviewable error.
[24] Finally, while the information contained in the applicant’s record reveals that the applicant may meet the legislative requirements, that information was not provided to the visa officer and therefore was not before the officer when the decision was made. In Nejad v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 1810, FC 144, at paragraphs 15 and 16, I stated:
15 Ms. Nejad's affidavit of September 25, 2006, reveals that she is not aware of, or is confused regarding, the extent of the court's jurisdiction in matters of judicial review. Judicial review proceedings are narrow in scope. Their essential purpose is the review of decisions for the purpose of assessing their legality. The reviewing court (absent exceptional circumstances not applicable here) is bound by the record that was before the board. Fairness to the parties and the tribunal under review dictates such a limitation: Bekker v. Canada (2004), 323 N.R. 195 (F.C.A.). The reviewing court must proceed on the record as it exists, confining itself to the criteria for judicial review: Canada (Attorney General) v. McKenna, [1999] 1 F.C. 401 (C.A.).
16 Although it is evident that the noted principles apply to preclude the court, on judicial review, from receiving evidence that was not before the decision-maker, Mr. Justice MacKay's comments in Wood v. Canada (Attorney General) (2001), 199 F.T.R. 133 also provide insight. At paragraph 34, he stated:
34 [...] On judicial review, a Court can consider only evidence that was before the administrative decision-maker whose decision is being reviewed and not new evidence (see Brychka v. Canada (Attorney General), [1998] F.C.J. No. 124, supra; Franz v. Canada (Minister of Employment and Immigration) (1994), 80 F.T.R. 79; Via Rail Canada Inc. v. Canada (Canadian Human Rights Commission) (re Mills) (August 19, 1997), Court file T-1399-96, [1997] F.C.J. No. 1089; Lemiecha v. Canada (Minister of Employment & Immigration) (1993), 72 F.T.R. 49, 24 Imm. L.R. (2d) 95; Ismaili v. Canada (Minister of Citizenship and Immigration), (1995) 100 F.T.R. 139, 29 Imm.L.R. (2d) 1). [...]
[25] Moreover, the inclusion of this information in the applicant’s record demonstrates that the applicant could (and should) have provided it in her initial application. It remains open to the applicant to reapply in compliance with the legislative requirements.
[26] For the foregoing reasons, the application for judicial review will be dismissed. Counsel did not suggest a question for certification and none arises.
ORDER
THIS COURT ORDERS THAT the application for judicial review is dismissed.
Judge
SCHEDULE “A”
to the
Reasons for order dated March 5, 2006
in
ANUPAMA AYYALASOMAYAJULA
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
IMM-4371-06
|
Immigration and Refugee Protection Act, S.C. 2002, c. 27
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.
|
Loi sur l'immigration et la protection des réfugiés (2001, ch. 27)
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. |
|
Immigration and Refugee Protection Regulations, SOR/2002-227
10. (1) Subject to paragraphs 28(b) to (d), an application under these Regulations shall
(a) be made in writing using the form provided by the Department, if any;
(b) be signed by the applicant;
(c) include all information and documents required by these Regulations, as well as any other evidence required by the Act;
(d) be accompanied by evidence of payment of the applicable fee, if any, set out in these Regulations; and
(e) if there is an accompanying spouse or common-law partner, identify who is the principal applicant and who is the accompanying spouse or common-law partner.
(2) The application shall, unless otherwise provided by these Regulations,
(a) contain the name, birth date, address, nationality and immigration status of the applicant and of all family members of the applicant, whether accompanying or not, and a statement whether the applicant or any of the family members is the spouse, common-law partner or conjugal partner of another person;
(b) indicate whether they are applying for a visa, permit or authorization;
(c) indicate the class prescribed by these Regulations for which the application is made; and
(c.1) include the name, postal address and telephone number of any person who represents the applicant, and the person's fax number and electronic mail address, if any;
(c.2) if the person who represents the applicant is charging a fee for representation, include
(i) the name of the organization referred to in the definition "authorized representative" of which the person is a member, and
(ii) the membership identification number issued by that organization to the person; and
(d) include a declaration that the information provided is complete and accurate.
|
Règlement sur l’immigration et la protection des réfugiés, (DORS/2002-227)
10. (1) Sous réserve des alinéas 28b) à d), toute demande au titre du présent règlement : a) est faite par écrit sur le formulaire fourni par le ministère, le cas échéant; b) est signée par le demandeur; c) comporte les renseignements et documents exigés par le présent règlement et est accompagnée des autres pièces justificatives exigées par la Loi; d) est accompagnée d’un récépissé de paiement des droits applicables prévus par le présent règlement; e) dans le cas où le demandeur est accompagné d’un époux ou d’un conjoint de fait, indique celui d’entre eux qui agit à titre de demandeur principal et celui qui agit à titre d’époux ou de conjoint de fait accompagnant le demandeur principal. (2) La demande comporte, sauf disposition contraire du présent règlement, les éléments suivants : a) les nom, date de naissance, adresse, nationalité et statut d’immigration du demandeur et de chacun des membres de sa famille, que ceux-ci l’accompagnent ou non, ainsi que la mention du fait que le demandeur ou l’un ou l’autre des membres de sa famille est l’époux, le conjoint de fait ou le partenaire conjugal d’une autre personne; b) la mention du visa, du permis ou de l’autorisation que sollicite le demandeur; c) la mention de la catégorie réglementaire au titre de laquelle la demande est faite; c.1) le nom, l’adresse postale, le numéro de téléphone et, le cas échéant, le numéro de télécopieur et l’adresse électronique de toute personne qui représente le demandeur; c.2) si la personne qui représente le demandeur le fait contre rémunération : (i) le nom de l’organisation visée à la définition de «représentant autorisé» dont elle est membre, (ii) le numéro de membre qui lui a été délivré par l’organisation; d) une déclaration attestant que les renseignements fournis sont exacts et complets.
|
|
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.
(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.
(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.
|
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. (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. (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.
|
|
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, [...]
(iii) experience, in accordance with section 80,
[...]
|
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 : […] (iii) l’expérience, aux termes de l’article 80, […]
|
|
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.
|
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.
|
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4371-06
STYLE OF CAUSE: ANUPAMA AYYALASOMAYAJULA
v.
MCI
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: February 28, 2007
AND ORDER: Layden-Stevenson J.
APPEARANCES:
|
Mr. Sean Hern
|
|
|
Ms. Sandra Weafer
|
SOLICITORS OF RECORD:
|
Mr. Sean Hern Farris, Vaughan, Wills & Murphy LLP Vancouver, British Columbia
|
|
|
John H. Sims, Q.C. Deputy Attorney General of Canada |