Venkata v. Canada (Citizenship and Immigration)

Venkata v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2017-04-28
Neutral citation
2017 FC 423
File numbers
IMM-3816-16
Notes
A correction was made on April 28, 2021.
Decision Content
Date: 20170428
Docket: IMM-3816-16
Citation: 2017 FC 423
Ottawa, Ontario, April 28, 2017
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
SUBRAHMANYAM PILAKA VENKATA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
I. INTRODUCTION
[1] This is an application under s 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 for judicial review of the decision of an immigration officer at the Embassy of Canada in Warsaw [Visa Officer], dated July 15, 2016 [Decision], which denied the Applicant’s application for permanent residence as a member of the Federal Skilled Worker [FSW] class.
II. BACKGROUND
[2] The Applicant is a 39-year-old citizen of India. On November 26, 2014, he filed an application for permanent residence in Canada as a member of the FSW class. The application was received on December 1, 2014, which was one day after the Applicant turned 37-years-old.
[3] On March 24, 2015, the Central Intake Office reviewed the application and recommended substituted evaluation [SE]. The application was transferred to the visa office in Warsaw, Poland, where a visa officer decided that SE was not warranted.
[4] The application was refused on July 22, 2015 because the Applicant had obtained only 66 of the 67 points required. The Applicant commenced proceedings for judicial review of the decision, but the matter was settled on March 23, 2016, with the parties agreeing that the application should be reconsidered by a different visa officer.
[5] The Applicant received a procedural fairness letter on June 10, 2016. The letter advised that although the Applicant had requested his application be reviewed under SE, the visa officer concluded that SE was not warranted because the points awarded and information provided accurately reflected the Applicant’s ability to establish himself economically in Canada. The letter also advised that the Applicant had 30 days to respond to the letter with additional information, which the Applicant did on June 27, 2016.
[6] On July 7, 2016, the Applicant’s former representative, Borders Law Firm [Borders], requested an extension of the deadline to obtain and provide further evidence. The Applicant did not receive a response to this letter.
[7] On the same day, Citizenship and Immigration Canada [CIC] received a request from the Applicant that Borders be removed as a representative and for all future correspondence to be sent to his personal e-mail address. On July 15, 2016, CIC informed Borders that the Applicant had cancelled their appointment as a representative.
III. DECISION UNDER REVIEW
[8] The Decision sent from the Visa Officer to the Applicant by letter dated July 15, 2016 determined that the Applicant did not qualify for immigration to Canada as a member of the FSW class.
[9] The Visa Officer determined that under the assessment criteria set out in s 76(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations], the Applicant qualified for 66 of the 67 required points:
Criteria Points Assessed
Age 10
Education 23
Experience 13
Arranged employment 0
Official language proficiency 20
Adaptability 0
Total 66
[10] The Visa Officer then acknowledged the Applicant’s request for his application to be considered under SE. However, the Visa Officer determined that the points awarded were a sufficient indicator of the Applicant’s ability to become economically established in Canada. The Visa Officer then noted that the Applicant had been informed of the decision that SE would not be used in a procedural fairness letter dated June 10, 2016 and that the response failed to satisfy the Visa Officer of his ability to become economically established. Accordingly, the Visa Officer concluded that the application would not be reviewed under SE.
[11] In the Global Case System Management [GCMS] notes, an entry dated June 10, 2016 detailed the points awarded to the Applicant. Under experience, the Applicant was awarded 13 points based on his previous employment as a civil engineer from March 2004 to May 2009, which totaled 5 years and 1 month. The entry also noted that although the Applicant had resided in Canada for over 5 years with authorization to work, there was no evidence that demonstrated he was able to secure employment and become economically established.
[12] With regards to the procedural fairness letter, the GCMS entries note that the Applicant’s response to the letter was received on July 5, 2016 and additional documents were received July 6, 2016. In his response, the Applicant had stated that due to his 15 years of work experience in 5 countries and education, he felt confident that he could operate his own company in Canada. The Applicant also submitted evidence regarding his self-employment income from 2010 to 2014. However, the Visa Officer noted that the income during the periods of self-employment was minimal and that the Applicant’s ability to obtain employment from 2010 to 2012 was insufficient.
[13] The GCMS entries also note that the Applicant’s request for a change of mailing and addresses was received on July 7, 2016. On the same day, CIC received an e-mail request for an extension of time to provide additional documents, but noted that some documents had already been received and the matter was sent to the PM for review.
IV. ISSUES
[14] The Applicant submits that the following are at issue in this proceeding:
Did the Visa Officer commit a breach of procedural fairness by rendering a decision prior to responding to the Applicant’s request for an extension of time?
Did the Visa Officer err in awarding points under the experience factor for which the Applicant was eligible and would have resulted in sufficient points to qualify for permanent residency?
Did the Visa Officer err in fact and law by misconstruing the Applicant’s request for SE and ignore critical evidence which resulted in the request being denied?
V. STANDARD OF REVIEW
[15] The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is settled in a satisfactory manner by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless, or where the relevant precedents appear to be inconsistent with new developments in the common law principles of judicial review, must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis: Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 48.
[16] As a matter of procedural fairness, the first issue regarding whether the Visa Officer should have responded to the Applicant’s request for an extension of time before rendering a decision will be reviewed under the standard of correctness: Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43 [Khosa].
[17] The second and third issues regard a visa officer’s assessment of an application for permanent residence, which involves questions of mixed fact and law and is reviewable under the standard of reasonableness: Canada (Citizenship and Immigration) v Young, 2016 FCA 183 at para 7; Odunsi v Canada (Citizenship and Immigration), 2016 FC 208 at para 13.
[18] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir, above, at para 47, and Khosa, above, at para 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
VI. STATUTORY PROVISIONS
[19] The following provisions from the Regulations are relevant in this proceeding:
Selection criteria
Critères de sélection
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:
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) 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,
a) le travailleur qualifié accumule le nombre minimum de points visé au paragraphe (2), au titre des facteurs suivants :
(i) education, in accordance with section 78,
(i) les études, aux termes de l’article 78,
(ii) proficiency in the official languages of Canada, in accordance with section 79,
(ii) la compétence dans les langues officielles du Canada, aux termes de l’article 79,
(iii) experience, in accordance with section 80,
(iii) l’expérience, aux termes de l’article 80,
(iv) age, in accordance with section 81,
(iv) l’âge, aux termes de l’article 81,
(v) arranged employment, in accordance with section 82, and
(v) l’exercice d’un emploi réservé, aux termes de l’article 82,
(vi) adaptability, in accordance with section 83; and
(vi) la capacité d’adaptation, aux termes de l’article 83;
(b) the skilled worker must
b) le travailleur qualifié :
(i) have in the form of transferable and available funds, unencumbered by debts or other obligations, an amount equal to one half of the minimum necessary income applicable in respect of the group of persons consisting of the skilled worker and their family members, or
(i) soit dispose de fonds transférables et disponibles — 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) be awarded points under paragraph 82(2)(a), (b) or (d) for arranged employment, as defined in subsection 82(1), in Canada.
(ii) soit s’est vu attribuer des points aux termes des alinéas 82(2)a), b) ou d) pour un emploi réservé, au Canada, au sens du paragraphe 82(1).
Number of points
Nombre de points
(2) The Minister shall fix and make available to the public the minimum number of points required of a skilled worker, on the basis of
(2) Le ministre établit le nombre minimum de points que doit obtenir le travailleur qualifié en se fondant sur les éléments ci-après et en informe le public :
(a) the number of applications by skilled workers as members of the federal skilled worker class currently being processed;
a) le nombre de demandes, au titre de la catégorie des travailleurs qualifiés (fédéral), déjà en cours de traitement;
(b) the number of skilled workers projected to become permanent residents according to the report to Parliament referred to in section 94 of the Act; and
b) le nombre de travailleurs qualifiés qui devraient devenir résidents permanents selon le rapport présenté au Parlement conformément à l’article 94 de la Loi;
(c) the potential, taking into account economic and other relevant factors, for the establishment of skilled workers in Canada.
c) les perspectives d’établissement des travailleurs qualifiés au Canada, compte tenu des facteurs économiques et autres facteurs pertinents.
Circumstances for the officer’s substituted evaluation
Substitution de l’appréciation de l’agent à la grille
(3) Whether or not the skilled worker has been awarded the minimum number of required points referred to in subsection (2), an officer may substitute for the criteria set out in paragraph (1)(a) their evaluation of the likelihood of the ability of the skilled worker to become economically established in Canada if the number of points awarded is not a sufficient indicator of whether the skilled worker may become economically established in Canada.
(3) Si le nombre de points obtenu par un travailleur qualifié — que celui-ci obtienne ou non le nombre minimum de points visé au paragraphe (2) — n’est pas un indicateur suffisant de l’aptitude de ce travailleur qualifié à réussir son établissement économique au Canada, l’agent peut substituer son appréciation aux critères prévus à l’alinéa (1)a).
[…]
[…]
Conformity — applicable times
Application
77 For the purposes of Part 5, the requirements and criteria set out in sections 75 and 76 must be met on the date on which an application for a permanent resident visa is made and on the date on which it is issued.
77 Pour l’application de la partie 5, les exigences et critères prévus aux articles 75 et 76 doivent être remplis au moment où la demande de visa de résident permanent est faite et au moment où le visa est délivré.
[…]
[…]
Experience (15 points)
Expérience (15 points)
80 (1) Points shall be awarded, up to a maximum of 15 points, to a skilled worker for full-time work experience, or the equivalent in part-time work, within the 10 years before the date on which their application is made, as follows:
80 (1) Un maximum de 15 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 pour un travail à temps partiel, au cours des dix années qui ont précédé la date de présentation de la demande, selon la grille suivante :
(a) 9 points for one year of work experience;
a) 9 points, pour une année d’expérience de travail;
(b) 11 points for two to three years of work experience;
b) 11 points, pour deux à trois années d’expérience de travail;
(c) 13 points for four to five years of work experience; and
c) 13 points, pour quatre à cinq années d’expérience de travail;
(d) 15 points for six or more years of work experience.
d) 15 points, pour six années d’expérience de travail et plus.
[20] The following provisions from the Federal Courts Rules, SOR/98-106 [FCR] are relevant in this proceeding:
Content of affidavits
Contenu
81 (1) Affidavits shall be confined to facts within the deponent’s personal knowledge except on motions, other than motions for summary judgment or summary trial, in which statements as to the deponent’s belief, with the grounds for it, may be included.
81 (1) Les affidavits se limitent aux faits dont le déclarant a une connaissance personnelle, sauf s’ils sont présentés à l’appui d’une requête – autre qu’une requête en jugement sommaire ou en procès sommaire – auquel cas ils peuvent contenir des déclarations fondées sur ce que le déclarant croit être les faits, avec motifs à l’appui.
[21] The following provisions from the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22 [FC CIRPR] are relevant in this proceeding:
16 Where leave is granted, all documents filed in connection with the application for leave shall be retained by the Registry for consideration by the judge hearing the application for judicial review.
16 Lorsque la demande d’autorisation est accueillie, le greffe garde les documents déposés à l’occasion de la demande, pour que le juge puisse en tenir compte à l’audition de la demande de contrôle judiciaire.
[22] The following provisions from the Canada Evidence Act, RSC 1985, c C-5 [CEA]are relevant in this proceeding:
Application of this part
Application
52 This Part extends to the following classes of persons:
52 La présente partie s’applique aux catégories suivantes de personnes :
(a) officers of any of Her Majesty’s diplomatic or consular services while performing their functions in any foreign country, including ambassadors, envoys, ministers, charges d’affaires, counsellors, secretaries, attaches, consuls general, consuls, vice-consuls, proconsuls, consular agents, acting consuls general, acting consuls, acting vice-consuls and acting consular agents;
a) les fonctionnaires de l’un des services diplomatiques ou consulaires de Sa Majesté, lorsqu’ils exercent leurs fonctions dans tout pays étranger, y compris les ambassadeurs, envoyés, ministres, chargés d’affaires, conseillers, secrétaires, attachés, consuls généraux, consuls, vice-consuls, proconsuls, agents consulaires, consuls généraux suppléants, consuls suppléants, vice-consuls suppléants et agents consulaires suppléants;
(b) officers of the Canadian diplomatic, consular and representative services while performing their functions in any foreign country or in any part of the Commonwealth and Dependent Territories other than Canada, including, in addition to the diplomatic and consular officers mentioned in paragraph (a), high commissioners, permanent delegates, acting high commissioners, acting permanent delegates, counsellors and secretaries;
b) les fonctionnaires des services diplomatiques, consulaires et représentatifs du Canada lorsqu’ils exercent leurs fonctions dans tout pays étranger ou dans toute partie du Commonwealth et territoires sous dépendance autre que le Canada, y compris, outre les fonctionnaires diplomatiques et consulaires mentionnés à l’alinéa a), les hauts commissaires, délégués permanents, hauts commissaires suppléants, délégués permanents suppléants, conseillers et secrétaires;
(c) Canadian Government Trade Commissioners and Assistant Canadian Government Trade Commissioners while performing their functions in any foreign country or in any part of the Commonwealth and Dependent Territories other than Canada;
c) les délégués commerciaux du gouvernement canadien et les délégués commerciaux adjoints du gouvernement canadien lorsqu’ils exercent leurs fonctions dans un pays étranger ou dans toute partie du Commonwealth et territoires sous dépendance autre que le Canada;
(d) honorary consular officers of Canada while performing their functions in any foreign country or in any part of the Commonwealth and Dependent Territories other than Canada;
d) les fonctionnaires consulaires honoraires lorsqu’ils exercent leurs fonctions dans tout pays étranger ou dans toute partie du Commonwealth et territoires sous dépendance autre que le Canada;
(e) judicial officials in a foreign country in respect of oaths, affidavits, solemn affirmations, declarations or similar documents that the official is authorized to administer, take or receive; and
e) les fonctionnaires judiciaires d’un État étranger autorisés, à des fins internes, à recevoir les serments, les affidavits, les affirmations solennelles, les déclarations ou autres documents semblables;
(f) persons locally engaged and designated by the Deputy Minister of Foreign Affairs or any other person authorized by that Deputy Minister while performing their functions in any foreign country or in any part of the Commonwealth and Dependent Territories other than Canada.
f) les employés engagés sur place et désignés par le sous-ministre des Affaires étrangères ou toute autre personne autorisée par lui à procéder à une telle désignation lorsqu’ils exercent leurs fonctions dans tout pays étranger ou dans toute partie du Commonwealth et des territoires sous sa dépendance autre que le Canada.
Oaths taken abroad
Serments déférés à l’étranger
53 Oaths, affidavits, solemn affirmations or declarations administered, taken or received outside Canada by any person mentioned in section 52 are as valid and effectual and are of the like force and effect to all intents and purposes as if they had been administered, taken or received in Canada by a person authorized to administer, take or receive oaths, affidavits, solemn affirmations or declarations therein that are valid and effectual under this Act.
53 Les serments, affidavits, affirmations solennelles ou déclarations déférés, recueillis ou reçus à l’étranger par toute personne mentionnée à l’article 52 sont aussi valides et efficaces et possèdent la même vigueur et le même effet, à toutes fins, que s’ils avaient été déférés, recueillis ou reçus au Canada par une personne autorisée à y déférer, recueillir ou recevoir les serments, affidavits, affirmations solennelles ou déclarations qui sont valides ou efficaces en vertu de la présente loi.
VII. ARGUMENTS
A. Applicant
(1) Procedural Fairness
[23] The Applicant submits that the Visa Officer committed a breach of procedural fairness by rendering a decision prior to responding to the Applicant’s request for an extension of time. The jurisprudence demonstrates that where an applicant requests an extension of time and receives no response, it is a breach of procedural fairness for a decision to be rendered prior to the expiry of that extension and the matter must be sent back for redetermination: Hussain v Canada (Citizenship and Immigration), 2012 FC 1199 at paras 6-11 [Hussain].
[24] In the present case, the Visa Officer confirmed that the Applicant’s request for an extension of time to provide additional documentation in response to the procedural fairness letter was received on July 7, 2016. Yet three days later, the Visa Officer rendered a decision without responding to the Applicant’s request. As a result, the Applicant did not have the opportunity to provide additional documents. Although the Visa Officer noted that certain documents had been provided, this does not absolve the Visa Officer of the responsibility to respond to the request because the Applicant had clearly requested additional time to provide a full and complete response. The Applicant submits that judicial intervention is warranted on this error alone.
(2) Points Awarded
[25] The Applicant also submits that the Visa Officer erred in awarding points under the experience factor for which the Applicant was eligible. The Visa Officer determined that under s 80(1) of the Regulations, the Applicant was only entitled to 13 points; however, at the time of the decision, the Applicant had over 6 years of relevant experience and was entitled to 15 points. The Applicant’s response to the procedural fairness letter requested that his additional experience from December 2014 to the present be considered.
[26] The Court has held that for the purposes of evaluating work experience, a visa officer must evaluate the application for permanent residence on the basis of the facts as they stand at the time of the exercise of that discretion: Belousyuk v Canada (Citizenship and Immigration), 2004 FC 746 at paras 17-19 [Belousyuk]. The Applicant submits that there is no room for discretion regarding governing points under the Regulations. If the Applicant had received 15 points for experience, he would have obtained 68 points and qualified for permanent residence. The Applicant submits that this error of law warrants judicial intervention.
(3) Request for SE
[27] The Applicant also submits that the Visa Officer erred in fact and law by misconstruing the Applicant’s request for a SE as a request to be granted additional points under the factor of age, which resulted in the denial of the request. The Applicant had requested “the use of a substituted evaluation based on a holistic analysis of the applicant’s ability to establish himself economically in Canada” under s 76(3) of the Regulations.
[28] This Court has held that when a visa officer makes a SE, the visa officer does so in lieu of the usual criteria of points earned; in other words, an exception is made under s 76(3) to consider factors in addition to those numerated under s 76(1)(a): Xu v Canada (Citizenship and Immigration), 2010 FC 418 at para 18; Kisson v Canada (Citizenship and Immigration), 2010 FC 99 at para 13; Choi v Canada (Citizenship and Immigration), 2008 FC 577 at para 20.
[29] Accordingly, the Applicant submits that the Visa Officer misunderstood the request. He had stated that the fact that he was 36-years-old a mere day before the application was received was a better indicator of his ability to become economically established than the corresponding points awarded for applicants who are 37-years-old. The Visa Officer did not conduct a SE; instead, the Visa Officer considered the points grid and only took into account the factors listed under s 76(1)(a) of the Regulations.
[30] Given that the Applicant was prevented from adducing additional information due to the breach of procedural fairness, the Applicant submits that the Visa Officer’s Decision was not reasonable.
B. Respondent
(1) Reasonableness
[31] The Respondent takes the position that the Decision is reasonable and in accordance with the law. Under ss 77 and 81 of the Regulations, candidates are entitled to be assessed as of the date on which the application is made. With regard to experience obtained after the date of the application, s 80(1) of the Regulations specifies that points are awarded for work experience “within 10 years before the date on which their application is received.” Similarly, the Regulations provide that age is to be assessed on the date of the application. Consequently, the Applicant’s request to be assessed on dates other than the date of the application is without legal basis.
[32] With regards to the issue of SE, the Respondent argues that the decision to forego SE was reasonable. The Visa Officer’s assessment found that the Applicant, who had failed to meet the minimum required points, did not demonstrate that the points assessment was an inaccurate reflection of his chances of successful economic integration in Canada. The Visa Officer also noted that the Applicant had not become successfully established despite living in Canada for several years. Upon review of all the material, including documentation that the Applicant had to be prompted to provide via a procedural fairness letter and the Applicant’s rationale for a positive SE, the Visa Officer reasonably found that SE was not warranted.
(2) Rebuttal of Applicant’s Submissions
[33] With regards to the Applicant’s claim that the request for an extension of time to respond to the procedural fairness letter was not addressed, the Respondent submits that neither he nor his authorized representative made the request. While Borders sent a request on July 7, 2016, the request was unauthorized as the Applicant had notified CIC of a change of representative on the same day. The Applicant’s personal reconsideration letter dated July 15, 2016 confirms that Borders acted without the Applicant’s knowledge and authorization because the letter contained no reference to the request for an extension of time or indication that he wanted to adduce additional material. Consequently, the Visa Officer did not err in not responding to the request from Borders. The jurisprudence cited by the Applicant is not helpful as it considers a valid request from the applicant; in the present case, the request was not valid. The Applicant misrepresents the request as one initiated by him, when it was actually initiated by a former representative without authorization.
[34] As to the matter of the assessment of points, the Respondent argues that there is no basis in law for the claim that the Visa Officer should have assessed the Applicant’s work experience as of the date of assessment rather than the date of application. The Applicant seeks contradictory positions on the appropriate date as he requests his age to be considered as of the date of application but his experience to be considered as of the date of assessment. The reliance on Belousyuk, above, is misplaced because the Court in that decision did not involve an application under the FSW class and does not state that work experience can continue to accrue after the date of application. The Regulations are clear in that assessment of points for full-time work experience concerns the 10 years prior to the date on which the application is made.
[35] On the issue of SE, the Respondent contends that the Applicant’s arguments are baseless. The GCMS notes demonstrate that the Visa Officer reviewed whether the Applicant’s case accurately reflected his chances of successful establishment. Given that the Applicant did not provide evidence of prior successful establishment, the Visa Officer determined that the Applicant should still be rejected, which shows the Visa Officer considered all material, not just an assessment of points. The Respondent submits that the Applicant seeks to argue an unfavourable result but the facts demonstrate no arguable issue of law.
C. Applicant’s Reply
(1) Validity of Request for Extension of Time
[36] The Applicant disagrees with the Respondent’s submission that the Applicant had sent a notice of change of representative. The GCMS notes demonstrate that on the same day that the request for an extension was received, the required form to cancel the Applicant’s appointment of representative was incomplete. There is no evidence that demonstrates the Applicant completed the notice of change of representative. The Respondent concedes that the request was ignored, but argues that this was justified because the request was unauthorized. However, the record shows that at the time of the request, Borders was still the authorized representative; accordingly, the request was valid. Additionally, neither Borders nor the Applicant were notified that CIC would ignore the request for an extension of time. As a result, the Applicant relies on his prior submissions that the failure to respond to the request for an extension of time is a breach of procedural fairness that prevented him from adducing additional documentation.
(2) Jurisprudence on Points Assessment
[37] The Applicant also refutes the claim that the submissions on the Visa Officer’s assessment of points has no basis in law. The Applicant has cited several cases, including Belousyuk, above, that indicate the Visa Officer incorrectly interpreted s 80(1) of the Regulations. The Applicant clearly requested that his additional work experience be considered, which is supported by jurisprudence that states that visa officers must evaluate applications on the facts as they exist at the time of assessment. If the Visa Officer had complied with this request, and thereby made an assessment in compliance with both the Regulations and the jurisprudence, the Applicant would have received 68 points and qualified for permanent residence. Consequently, the Visa Officer’s failure to do so is an error in law.
(3) Reasonableness of SE Decision
[38] The Applicant also counters the Respondent’s claim that the Visa Officer’s decision not to use a SE was reasonable. The Applicant had requested a SE, which would consider factors outside of those enumerated in s 76(1)(a) of the Regulations. The Visa Officer misconstrued this request as a request for additional points under the age factor, which is listed under s 76(1)(a) of the Regulations. Given that the Visa Officer ignored the request for an extension of time and rendered a decision without allowing the Applicant an opportunity to adduce additional information regarding SE, the Decision is in breach of procedural fairness and is also unreasonable. The Applicant also points out that this is the second judicial review required for his application.
D. Applicant’s Further Argument
(1) Validity of Request for Extension of Time
[39] The Applicant continues to argue that the Visa Officer ignored a valid request for an extension of time and rendered a decision, which is a breach of procedural fairness. The certified tribunal record demonstrates that the request was made on July 7, 2016 by Borders on behalf of the Applicant and that a completed form IMM 5476 to remove Borders as an authorized representative was received on July 13, 2016. The form states that the form must be used if an application wishes to cancel the appointment of the authorized representative; the GCMS entry dated July 7, 2016 repeats these instructions. The Applicant followed the instructions and returned the form on July 11, 2016; however, he did not request that the extension of time sought on his behalf of the representative be cancelled as well. Consequently, the request was valid.
[40] The Applicant submits that CIC should not be allowed to justify its choice to ignore the request by retroactively applying the form to the day the request was received. CIC did not receive and was not notified of the cancellation of the authorized representative until July 13, 2016, a week after the request. Accordingly, CIC should have at least informed the Applicant that the request would not be processed. The Applicant points out that the Respondent has not provided further information as to why a valid request for an extension of time by an authorized representative was not responded to prior to refusing the application only eight days after receipt of that valid request.
(2) Points Assessment
[41] Next, the Applicant cites the 2014 version of s 80(1) of the Regulations to show that 15 points should be awarded for six or more years of full-time work experience within the 10 years before the date on which the application is made. CIC’s Overseas Processing manual [OP] provides that the work experience must have occurred during the 10 years immediately preceding the date of application and that officers must take into account any years of experience that occur between application and assessment and for which the applicant has submitted the necessary documentation. The OP has been cited with approval by this Court in Dash v Canada (Citizenship and Immigration), 2010 FC 1255, which held that post-application experience is not relevant until an applicant meets the minimum requirements at the time the application is made as well as the time that the visa is issued.
[42] The Applicant submits that although the most recent version of the OP does not require visa officers to take into account post-application work experience, there is no indication that the instruction from the previous OP no longer applies. Additionally, there is no substantive change in the legislative provision addressing the award of points for work experience to justify such a change in the interpretation that points ought to be awarded for post-application work experience when the necessary supporting documentation is submitted. As a result, the Respondent cannot assert that s 80(1) of the Regulations does not allow the consideration of post-application work experience for the awarding of points, as this would be contrary to the previous interpretation endorsed in the previous version of the OP that was approved by this Court.
[43] Moreover, in Hamid v Canada (Citizenship and Immigration), 2006 FCA 217 at para 49, the Federal Court of Appeal distinguished age, as opposed to other criteria such as employment experience, on the basis that age is outside of the control of the applicant and a lock-in for age would always favour the applicant. Thus, the jurisprudence is consistent in finding that a visa officer can consider many facts which occur after the date of application and must evaluate an application for permanent residence based on the facts of the case as they stand at the time of decision-making.
[44] In the present case, the Applicant specifically requested that his post-application experience be considered, which is supported by the OP and jurisprudence of this Court. As a result, the Visa Officer’s failure to award the additional two points is a highly material error which cost the Applicant his eligibility to meet the minimum required points for permanent residence.
E. Respondent’s Further Argument
(1) Admissibility of Affidavits
[45] The Respondent takes issue with the admissibility of the Applicant’s affidavits on the basis that they were not properly sworn. The documents demonstrate that they were signed before an official that attested only to the Applicant’s identity, not the contents. Documents that are merely signed and not sworn or affirmed are not admissible affidavit evidence: s 81 of the FCR; s 14 of the CEA. Additionally, the Respondent submits that a random consular official at the Indian embassy in the jurisdiction in which the Applicant resides is not competent to swear evidence, as foreign officials are not listed among the categories of people who may swear others abroad: ss 52, 53 of the CEA.
(2) Validity of Request for Extension of Time
[46] The Respondent continues to take the position that the request for an extension of time was not authorized by the Applicant. Although CIC required the Applicant to complete a change of representative form to action his request, it does not follow that Borders continued as an authorized representative such that the request was authorized. The form requirements are merely to facilitate proper communication. The Applicant communicated to CIC that he would represent himself and to accept the Applicant’s arguments on form requirements would be victory of form over substance. The Applicant seeks to exploit the fact that Borders sent the request on the same day that he indicated he did not wish Borders to represent him. The consideration of the validity of the request must be decided legally and principally.
[47] The facts of the case demonstrate that the Applicant dismissed Borders and intended to act on his own behalf, which is supported by the completed change of representative form and the fact that Borders had no further involvement in the Applicant’s case. The fact that it took the Applicant days to comply with the formal requirements does not change the fact that Borders was dismissed by the Applicant. Since the request was not authorized, the Visa Officer was permitted to decline to respond. Furthermore, the Respondent notes that the Applicant has not attested that Borders’ request was authorized by him in any of the affidavits filed, which must be taken as a tacit acknowledgment that Borders was not acting within his authority.
(3) Points Assessment
[48] The Respondent reiterates that the Regulations permit the award of points for experience earned only up to the date of application. The portions of the OP cited by the Applicant are outside of context and do not demonstrate any error of law in the assessment of the application. However, the Respondent concedes that CIC may consider whether an applicant has obtained additional experience in the period since the application, provided that the minimum requirements of s 75(2) of the Regulations are met. This assessment is not a right under the Regulations, but a practice. The Visa Officer considered this practice, but after a complete review, concluded that there was insufficient evidence to support the Applicant’s claims that he had obtained more work experience. The issue is therefore one of assessment of evidence and the Visa Officer was entitled to find the material relied upon by the Applicant to be insufficient, which distinguishes the present case from the other jurisprudence cited by the Applicant.
F. Applicant’s Written Submissions
[49] The Applicant submits that his affidavits are admissible. They were both drawn in first person, confined only to facts within his personal knowledge, and are compliant with s 81 of the FCR. The consular officer who stamped and signed the affidavits falls within the class of persons described in s 52(e) of the CEA; thus, the affidavits are valid and effectual under s 53 of the CEA.
[50] Alternatively, if the affidavits are not valid under the CEA, the Applicant submits that procedural fairness and the interests of justice require the admission of the affidavits into evidence. Since the Respondent intends to challenge the Applicant’s evidence or credibility, excluding the affidavits would deny the Applicant an opportunity to respond and lead to a breach of procedural fairness. Additionally, since the affidavits are part of the evidenc