Bajwa v. Canada (Immigration, Refugees and Citizenship)

Bajwa v. Canada (Immigration, Refugees and Citizenship)
Court (s) Database
Federal Court Decisions
Date
2017-02-21
Neutral citation
2017 FC 202
File numbers
IMM-2124-16, IMM-2125-16
Decision Content
Date: 20170221
Dockets: IMM-2124-16
IMM-2125-16
Citation: 2017 FC 202
Ottawa, Ontario, February 21, 2017
PRESENT: The Honourable Mr. Justice Russell
Docket: IMM-2124-16
BETWEEN:
POONAM BAJWA
Applicant
and
THE MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP
Respondent
Docket: IMM-2125-16
AND BETWEEN:
MANJINDER SINGH RANDHAWA
Applicant
and
THE MINISTER OF IMMIGRATION, REFUGEES AND CITIZENSHIP
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 [Act] for judicial review of two decisions of an immigration officer at the Citizenship and Immigration Canada office in Edmonton [Visa Officer], both dated May 9, 2016 [Decisions], which denied the Applicants’ applications for work permit extensions. The applications have been consolidated into a single hearing because the application of Manjinder Singh Randhawa [Male Applicant] is dependent on the work status of Poonam Bajwa [Female Applicant].
II. BACKGROUND
[2] The Applicants are a wife and husband who are citizens of India. By profession, the Female Applicant is a religious worker; specifically, a Granthi or Sikh priest. The Male Applicant is a truck driver. Prior to their arrival in Canada, they were employed in Greece for several years. On February 26, 2013, the Applicants entered Canada via Toronto on visitor visas with a stated purpose of visiting a friend in Calgary.
[3] The Female Applicant was issued a work permit ostensibly dated February 27, 2013 in Coutts, Alberta. She received an employment offer dated February 26, 2014 from the Sri Guru Arjun Dev Ji Sikh Society of Saskatoon [Sikh Society]. She then applied twice to extend her work permit and was refused on February 12, 2014 and June 22, 2015. After the latter refusal, the Female Applicant was advised to leave Canada. She then submitted a third application for a work permit extension, which was refused. That refusal is the subject of this judicial review.
[4] On May 27, 2013, the Male Applicant was issued a work permit in Coutts, Alberta. The work permit was extended on April 3, 2014. Subsequent applications to further extend the work permit as a dependent of his spouse were denied and the Male Applicant was advised to leave Canada on June 22, 2015. The Male Applicant then submitted another application for a work permit extension on June 26, 2015, which was refused. This is the other decision under review.
III. DECISIONS UNDER REVIEW
[5] Decisions sent from a Visa Officer to the Applicants by letters dated May 9, 2016 determined that the Applicants did not qualify for work permit extensions.
[6] The Visa Officer determined that the Applicants had failed to meet the requirements for a work permit extension. In both Decisions, the Visa Officer was not satisfied that the Applicants were genuine workers in Canada and would leave at the end of their stay as temporary residents. In reaching the Decisions, the Visa Officer considered several factors, including the length of their proposed stay in Canada, their reasons for original entry and reasons for requested extension, and the purpose of their visits.
A. Female Applicant
[7] In the Global Case Management System [GCMS] Notes for the Female Applicant, the Visa Officer considered the Female Applicant’s immigration history and noted that although she had been advised to leave Canada after the refusal of a prior application for a work permit extension, the Female Applicant had remained in Canada.
[8] The Visa Officer also considered the circumstances of the Applicants’ arrival in Canada. The Applicants entered Canada via Toronto, Ontario on February 26, 2013 with a stated purpose of visiting a friend in Calgary. The next day, the Applicants applied for work permits in Coutts, Alberta. Based on this sequence of events, the Visa Officer was not satisfied that the Applicants had entered Canada with the intention of visiting friends rather than working.
[9] Next, the Visa Officer concluded that, based on the vague outline of her job description and duties, the Female Applicant had failed to satisfy the Visa Officer that she had the ability to minister to a congregation under the auspices of the Sikh religious denomination.
[10] Additionally, the Visa Officer noted that the website provided for the employer did not exist, nor did evidence of the Female Applicant’s pay stubs, despite claims to the contrary.
[11] Furthermore, the Visa Officer was not satisfied with the letters provided by the employer, as there were discrepancies in the signatures.
[12] Finally, the Visa Officer noted that the Female Applicant had gained a significant amount of experience in Canada and would not have problems seeking employment outside of Canada.
[13] Based on these reasons, the Visa Officer was not satisfied that the Female Applicant was a bona fide worker or would leave after her authorized stay and refused the application for a work permit extension.
B. Male Applicant
[14] In the GCMS Notes for the Male Applicant, the Visa Officer also considered the Male Applicant’s immigration history and noted that, despite being advised to leave Canada after the refusal of prior applications for work permit extensions, the Male Applicant had remained in Canada. The Visa Officer also concluded that the Male Applicant did not qualify for a work permit extension since his application was dependent on being the spouse of a skilled worker and the Female Applicant’s application for a work permit extension had been denied.
IV. ISSUES
[15] The Applicants submit that the following are at issue in this application:
Did the Visa Officer err in the assessment of the applications by not basing it on reasonable inferences drawn from the known facts, thereby rendering the Decisions unreasonable?
Did the Visa Officer act without jurisdiction, act beyond his or her jurisdiction, or refuse to exercise his or her jurisdiction?
Did the Visa Officer fail to observe a principle of natural justice, procedural fairness, or other procedure that she was required by law to observe?
Did the Visa Officer err in law in making a decision or an order, whether or not the error appears on the face of the record?
Did the Visa Officer base his or her decision or order on an erroneous finding of fact that she made in a perverse or capricious manner or without regard for the material before him or her; in particular, the finding that the employment offer was not genuine?
Did the Visa Officer fail to treat the Applicants fairly and fail to provide the Applicants with any procedural safeguards, including full disclosure and full opportunity to cross-examine any evidence alleged against the Applicants?
Did the Visa Officer abuse the process by taking irrelevant considerations into account and failing to properly execute his or her discretion, fettering his or her discretion, and abusing his or her discretion by using it for an improper purpose?
Did the Visa Officer exhibit bias against the Applicants, thereby preventing the impugned Decisions from being allowed to stand?
Did the Visa Officer deny the Applicants the right to a properly constituted hearing, conducted accordingly with all of the proper judicial principles, including the proper rules of evidence and procedure?
Did the Visa Officer:
Fail to follow the rule of audi alteram partem?
Make a decision that was against the evidence and the weight of the evidence?
Fail to act judicially in all of the circumstances?
iv. Base his or her decision on undisclosed factors and assumptions that were not made known to the Applicants?
Did the Visa Officer act in any other way that was contrary to law?
Did the Visa Officer fail to observe the principles of natural justice and procedural fairness and base his or her decisions on erroneous findings without regard to the materials before him or her?
[16] The above are generic grounds that don’t necessarily arise on the facts of this case. A review of the submissions suggests the following actual issues for review:
Is the Visa Officer’s decision reasonable?
Did the Visa Officer err in inferring that the Applicants’ purpose of visit was to obtain work rather than visit a friend? Alternatively, did the Visa Officer make an error of fact in determining the Applicants had applied for work permits the day after their arrival in Canada?
Did the Visa Officer err in finding that the job description provided by the Female Applicant was too vague to demonstrate she had the ability to perform the job?
Did the Visa Officer err in inferring that the job did not exist for the reason that:
The employer’s website did not exist at the time it was investigated?
There were no pay stubs in the application, despite the cover letter stating their inclusion?
Did the Visa Officer err in according less weight to the employer’s letters on the basis that the signatures were different despite being from the same person?
Did the Visa Officer err in not providing the Female Applicant an opportunity to respond to the concerns regarding the documentation?
Did the Visa Officer demonstrate bias against the Applicants?
[17] The Respondent submits that the following are at issue in this application:
Are the affidavits submitted by the Applicants admissible?
Was the Visa Officer’s decision reasonable?
Was the Visa Officer’s decision made with procedural fairness?
V. STANDARD OF REVIEW
[18] 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.
[19] The issues raised by the Applicants regarding a visa officer’s assessment of an application in the context of a decision regarding the issuance of a work permit is reviewable on a standard of reasonableness: see Sharma v Canada (Citizenship and Immigration), 2014 FC 786 at para 10.
[20] The Applicants have also raised issues concerning procedural fairness, including bias, which will be reviewed under the standard of correctness and tests established in the jurisprudence for these issues: Khosa v Canada (Citizenship and Immigration), 2009 SCC 12 at para 43 [Khosa].
[21] 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
[22] The following provisions from the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations] are relevant in this proceeding:
Work permits
Permis de travail — demande préalable à l’entrée au Canada
200 (1) Subject to subsections (2) and (3) — and, in respect of a foreign national who makes an application for a work permit before entering Canada, subject to section 87.3 of the Act — an officer shall issue a work permit to a foreign national if, following an examination, it is established that
200 (1) Sous réserve des paragraphes (2) et (3), et de l’article 87.3 de la Loi dans le cas de l’étranger qui fait la demande préalablement à son entrée au Canada, l’agent délivre un permis de travail à l’étranger si, à l’issue d’un contrôle, les éléments ci-après sont établis :
(a) the foreign national applied for it in accordance with Division 2;
a) l’étranger a demandé un permis de travail conformément à la section 2;
(b) the foreign national will leave Canada by the end of the period authorized for their stay under Division 2 of Part 9;
b) il quittera le Canada à la fin de la période de séjour qui lui est applicable au titre de la section 2 de la partie 9;
(c) the foreign national
c) il se trouve dans l’une des situations suivantes :
(i) is described in section 206 or 208,
(i) il est visé aux articles 206 ou 208,
(ii) intends to perform work described in section 204 or 205 but does not have an offer of employment to perform that work or is described in section 207 but does not have an offer of employment,
(ii) il entend exercer un travail visé aux articles 204 ou 205 pour lequel aucune offre d’emploi ne lui a été présentée ou il est visé à l’article 207 et aucune offre d’emploi ne lui a été présentée,
(ii.1) intends to perform work described in section 204 or 205 and has an offer of employment to perform that work or is described in section 207 and has an offer of employment, and an officer has determined, on the basis of any information provided on the officer’s request by the employer making the offer and any other relevant information,
(ii.1) il entend exercer un travail visé aux articles 204 ou 205 pour lequel une offre d’emploi lui a été présentée ou il est visé à l’article 207 et une offre d’emploi lui a été présentée, et l’agent a conclu, en se fondant sur tout renseignement fourni, à la demande de l’agent, par l’employeur qui présente l’offre d’emploi et tout autre renseignement pertinent, que :
(A) that the offer is genuine under subsection (5), and
(A) l’offre était authentique conformément au paragraphe (5),
(B) that the employer
(B) l’employeur, selon le cas :
(I) during the six-year period before the day on which the application for the work permit is received by the Department, provided each foreign national employed by the employer with employment in the same occupation as that set out in the foreign national’s offer of employment and with wages and working conditions that were substantially the same as — but not less favourable than — those set out in that offer, or
(I) au cours des six années précédant la date de la réception de la demande de permis de travail par le ministère, a confié à tout étranger à son service un emploi dans la même profession que celle précisée dans l’offre d’emploi et lui a versé un salaire et ménagé des conditions de travail qui étaient essentiellement les mêmes — mais non moins avantageux — que ceux précisés dans l’offre,
(II) is able to justify, under subsection 203(1.1), any failure to satisfy the criteria set out in subclause (I), or (iii) has been offered employment, and an officer has made a positive determination under paragraphs 203(1)(a) to (e); and
(II) peut justifier le non-respect des critères prévus à la sous-division (I) au titre du paragraphe 203(1.1), (iii) il a reçu une offre d’emploi et l’agent a rendu une décision positive conformément aux alinéas 203(1)a) à e);
(d) [Repealed, SOR/2004-167, s. 56]
d) [Abrogé, DORS/2004-167, art. 56]
(e) the requirements of subsections 30(2) and (3) are met, if they must submit to a medical examination under paragraph 16(2)(b) of the Act.
e) s’il est tenu de se soumettre à une visite médicale en application du paragraphe 16(2) de la Loi, il satisfait aux exigences prévues aux paragraphes 30(2) et (3).
…
…
Application for renewal
Demande de renouvellement
201 (1) A foreign national may apply for the renewal of their work permit if
201 (1) L’étranger peut demander le renouvellement de son permis de travail si :
(a) the application is made before their work permit expires; and
a) d’une part, il en fait la demande avant l’expiration de son permis de travail;
(b) they have complied with all conditions imposed on their entry into Canada.
b) d’autre part, il s’est conformé aux conditions qui lui ont été imposées à son entrée au Canada.
Renewal
Renouvellement
(2) An officer shall renew the foreign national’s work permit if, following an examination, it is established that the foreign national continues to meet the requirements of section 200.
(2) L’agent renouvelle le permis de travail si, à l’issue d’un contrôle, il est établi que l’étranger satisfait toujours aux exigences prévues à l’article 200.
…
…
Canadian interests
Intérêts canadiens
205 A work permit may be issued under section 200 to a foreign national who intends to perform work that
205 Un permis de travail peut être délivré à l’étranger en vertu de l’article 200 si le travail pour lequel le permis est demandé satisfait à l’une ou l’autre des conditions suivantes:
…
…
(d) is of a religious or charitable nature.
d) il est d’ordre religieux ou charitable.
VII. ARGUMENTS
A. Applicants
[23] The Applicants base their submissions on the position of the Female Applicant as the Male Applicant’s application is dependent on her work status.
[24] The Applicants submit that the Visa Officer erred by refusing the Female Applicant’s application for a work permit without valid or justifiable reason. In particular, the Applicants take issue with the Visa Officer’s failure to consider the Female Applicant’s acceptance as a Provincial Nominee by the Province of Saskatchewan, which needlessly deprived a congregation of a Granthi who was urgently needed. If the Applicants are forced to leave, it will be difficult for the Sikh Society to find a full-time replacement and religious services will have to be suspended.
(1) Employment Position Description
[25] In the GCMS Notes related to the Decisions, the Visa Officer doubted the Female Applicant’s ability to perform such work due to a “vague job description.” The Applicants take issue with this reason because the job description provided is nearly identical to the advertisements for religious worker positions on official government websites. Additionally, the Applicants argue that the ability to perform the work has no relation to the provision of a job description. Furthermore, the Female Applicant qualifies as a religious worker in accordance with the National Occupation Classification [NOC] Code 4154 for Ministers of Religion. In fact, the NOC description closely mirrors the Female Applicant’s job description, with the exception of specific adaptations for the Sikh religion. Moreover, the Applicants argue that it is not necessary to provide lengthy and complicated details because the duties required for a priest or minister of a religion are almost universally understood. Finally, the law is clear that visa officers are not experts and should not assess the employment qualifications of applicants: see Chen v Canada (Minister of Citizenship and Immigration), [2000] FCJ No 594 at paras 21-24.
(2) The Sikh Society Website
[26] Next, the Applicants disagree with the Visa Officer’s implication that the employment position does not exist due to her inability to access the Sikh Society website. At the time of the application, the website was functional; however, in the ten and a half months following the application, the website was hacked and the Sikh Society decided to create a new website with a different address, which contains photographs of the Female Applicant in her role as a Granthi. The Applicants argue that they should not be blamed for the demise of the old website; rather, the fault is on the Visa Officer, who took ten and a half months to investigate the matter. Additionally, the Applicants contend that the website was not submitted, but merely appeared as part of a letterhead and for that reason they were not obligated to provide the new website. The Applicants believe the Visa Officer should have conducted a proper investigation by attempting to contact the employer through physical mail, e-mail, or telephone rather than merely view a website and conclude the job, like the website, must be non-existent.
(3) Mr. Singh’s Letters
[27] With regards to the letters written by Mr. Balvir Singh, the director of the Sikh Society, the Visa Officer had concerns with discrepancies. However, the Applicants argue that the letters are in fact consistent with each other. Two are offers of employment dated February 26, 2014 and March 4, 2015 and another is a letter of reference dated March 11, 2015; furthermore, Mr. Singh has sworn an affidavit that states he is the author of all three letters. The reason for the second offer of employment is because Citizenship and Immigration Canada required a new letter upon the Female Applicant’s completion of the one-year term of employment. Additionally, the Applicants argue that if there had been issues concerning the credibility of the letters, the Visa Officer was obligated to provide the Applicants an opportunity to respond: see Kaur v Canada (Citizenship and Immigration), 2011 FC 219 at paras 23-29 [Kaur]. As for the reason why the Applicants did not explain any discrepancies between the letters, the Applicants argue that they did not believe anything to be wrong with the letters since they were provided by her employer; thus, there was no obligation to explain the letters.
(4) Pay Stubs
[28] As to the concerns regarding the lack of pay stubs for 2014 to support the application, the Applicants contend that pay stubs were submitted, which is why they were referenced in the covering letter that accompanied the Female Applicant’s application. The Applicants believe that Citizenship and Immigration Canada misplaced them; however, they have provided copies in this application. The Applicants are entitled to correct errors and omissions; the reason why they could not do so previously is because they were never informed that the pay stubs were not in the file until the process for judicial review was initiated. The Applicants also do not believe they should be attributed blame for the absence of the pay stubs in the application; rather, it is the fault of Citizenship and Immigration Canada.
(5) The Visa Officer’s Conclusions
[29] The Applicants also find the Visa Officer’s conclusions to be contradictory. Despite implying that the employment position is fraudulent, the Visa Officer found that the Female Applicant had gained significant experience in Canada and would not have problems finding employment elsewhere. These conclusions are inconsistent with each other.
[30] The Applicants also argue that it was inappropriate for the Visa Officer to conclude that the Female Applicant was not a bona fide worker who would not leave after her authorized stay. The position of a Granthi requires work of a religious or charitable nature; thus, the Female Applicant is a bona fide worker. In regards to the assumption that the Female Applicant would not leave after her stay, the Applicants submit that this is an inappropriate assumption as the Applicants have never broken immigration laws, whether in Canada or elsewhere; nor do they have criminal records. The jurisprudence requires visa officers to provide reasonable explanations for such a conclusion, which are not present in this case: see Patel v Canada (Citizenship and Immigration), 2009 FC 602; Villagonzalo v Canada (Citizenship and Immigration), 2008 FC 1127; Portillo v Canada (Citizenship and Immigration), 2014 FC 866 at para 27 [Portillo]. Moreover, the jurisprudence also requires visa officers to provide an opportunity to respond to any doubts regarding intentions to leave Canada on the expiry of a visa: see Li v Canada (Citizenship and Immigration), 2008 FC 1284.
[31] Furthermore, the Applicants submit that the Visa Officer made a mistake in determining that the Female Applicant applied for the work permit in Coutts, Alberta on February 27, 2013, the day after her arrival. In actuality, the application was made on February 27, 2014. The Applicants contend that the Visa Officer did not have the proper document when making the Decision; otherwise, the year in which the first work permit was issued would have been clear. Additionally, the Visa Officer completely ignored the third letter from Mr. Singh, which is not referenced in the Decision.
(6) Seriousness of the Decision
[32] Another issue that the Applicants disagree with is the contention that the Decision does not carry serious consequences. The Applicants claim that once an applicant is rejected for a work permit, it is very unlikely the applicant will be permitted to return to Canada, let alone be granted a work permit. Although they may be technically permitted to apply, the grant of a work permit to a previously denied applicant is rare, as evident by the question on the application form that asks whether the applicant has ever been required to leave or been denied entry to Canada. Thus, this Decision does carry a serious consequence because the Applicants may be barred from ever working in Canada or other countries.
(7) Bias
[33] The Applicants submit that the Visa Officer was, as described in para 45 of Portillo, above, quoting Justice Harrington in Serrudo Sempertegui v Canada (Citizenship and Immigration), 2009 FC 1176 at para 9, an officer “who simply will not be satisfied, no matter what.” The Visa Officer was biased in assuming that the Female Applicant would break the law and remain in Canada unauthorized. The Applicants believe that the reasons display extreme bias and were possibly motivated by racism or malice. The Applicants contend that the Visa Officer exhibited utter contempt for the Female Applicant, her employment position, her employment, and her religion by declaring that the job was fraudulent without providing a rational basis. Moreover, the Applicants argue that the Visa Officer’s extra scrutiny and ultimate refusal were influenced by her bias against a foreign religion practiced by non-Caucasians and racism against non-Caucasians.
(8) Additional Evidence
[34] Finally, the Applicants submit that they are justified in submitting additional evidence as part of this judicial review. Mr. Singh’s third letter was submitted because it was missing from Citizenship and Immigration Canada’s file and it was not clear which of his letters the Visa Officer referred to in the Decision. The pay stubs were submitted because, again, they were missing from Citizenship and Immigration Canada’s file despite their inclusion in the original application. The Female Applicant’s reference to the new Sikh Society website was also necessary to explain why the old website did not work and counter the Visa Officer’s inference that the job was fraudulent.
B. Respondent
(1) Additional Evidence
[35] The Respondent submits that the affidavits submitted by the Applicants are inadmissible for the reason that they consist largely of evidence that was not before the Visa Officer, hearsay evidence, and/or argument. The affidavits attempt to introduce new evidence that was not submitted as part of the work permit applications, including a third letter from Mr. Singh, a reference to a new website address, previous experience as an unpaid Granthi in Greece, pictures of the Female Applicant, and pay stubs. The new evidence, such as Mr. Singh’s letter and the pay stubs, which was not before the decision-maker is not admissible in a judicial review proceeding save in exceptional circumstances, which the Applicants have not demonstrated: see Bekker v Canada, 2004 FCA 186 at para 11 [Bekker]. Additionally, affidavits should be confined to facts within the personal knowledge of the deponent; the Applicant’s affidavits consist of conclusions and arguments as to the merits of the Visa Officer’s Decision or other non-factual matters and should be inadmissible: see Bakary v Canada (Citizenship and Immigration), 2006 FC 1111 at para 5.
(2) Reasonableness
[36] The Respondent submits that the Visa Officer’s conclusion that the Female Applicant was not a bona fide worker who would leave at the end of her authorized stay was reasonable based on the record. The Female Applicant had provided minimal information supporting her work, which consisted of: a letter from the Saskatchewan Immigration Nominee Program; documentation related to her education; a copy of her work permit BB 162 265 530; a cover letter that indicated the provision of a pay stub, which was not submitted; and two letters from Mr. Singh, dated March 5, 2015 and March 11, 2015, with two different signatures. Additionally, both Applicants had already failed to leave Canada upon the expiry of a previous permit.
[37] As a temporary work permit applicant, the Female Applicant had the onus of providing all relevant supporting documentation and sufficient credible evidence to satisfy the Visa Officer that she could fulfil the job requirements: see Sulce v Canada (Citizenship and Immigration), 2015 FC 1132 at para 10. Although she indicated that she submitted pay stubs in her cover letter, the Visa Officer’s notes state there was no evidence of a pay stub in any attachment in the GCMS and a bare assertion that documents were sent as part of a package is generally insufficient to prove that they were actually sent to the decision-maker: see Jeevaratnam v Canada (Citizenship and Immigration), 2011 FC 1371 at para 7.
[38] It was reasonable for the Visa Officer to assess whether the work to be performed by the Female Applicant was of a religious or charitable nature and whether the Female Applicant would leave at the end of her stay because s 200 of the Regulations requires the issuance of a work permit to a foreign national if, following an examination, it is established that the foreign national applied for it in an appropriate manner, would leave following its expiry, and intends to perform the work described in s 205 of the Regulations.
[39] As the Applicants state in their Memorandum of Argument, the job description provided in Mr. Singh’s letter of March 4, 2015 mirrored the generic description for NOC Code 4154 – Ministers of Religion. This did not establish the particular Sikh rituals or other functions that the Female Applicant would be asked to perform or what her qualifications were to satisfy the description. Thus, it was reasonable for the Visa Officer to conclude that she was not satisfied the Female Applicant had the ability to minister.
[40] The Respondent argues that it was reasonable for the Visa Officer to determine the letters to be inadequate. First, the signatures are significantly different and this is can be observed with a brief examination. Second, the March 4, 2015 letter states that the position was offered following the application and interview with a start date of May 1, 2015. Meanwhile, the March 11, 2015 letter indicates the Female Applicant had worked there since March 1, 2014. Based on this inconsistency and the lack of indication elsewhere in the record to establish the Female Applicant’s prior employment with the Sikh Society, it was reasonable for the Visa Officer not to give Mr. Singh’s letters any weight.
[41] Furthermore, the Visa Officer was unable to review pay stubs or the employer’s website because they were not provided and did not work, respectively. If the website address had changed, the Female Applicant was obligated to notify the Visa Officer. However, since the Visa Officer did not have these documents available for review, the Decision had to be made based on the vague job description provided in letters that could not be given much weight. Thus, the Respondent submits it was reasonable for the Visa Officer to find the Female Applicant was not a bona fide worker.
[42] The Female Applicant made her initial application for a work permit one day after arriving in Canada, which is strong evidence that she entered with the intention to work rather than visit a friend. Although the Applicants’ Memorandum of Further Argument states that she applied for the permit on February 27, 2014 and not February 27, 2013, there is no evidence in her affidavit that supports this contention. Thus, such evidence would also not have been before the Visa Officer. Additionally, the work permit submitted by the Female Applicant had a date of February 27, 2013. As with the letters, if there was a reason as to why this date was inaccurate, the onus was on the Female Applicant to provide an explanation. Furthermore, the fact that the Applicants had failed to leave when their previous applications for work permit extensions were denied on June 22, 2015 provides a basis for the Visa Officer’s conclusion that they would not leave after the end of their authorized stay. Thus, the Visa Officer’s conclusion was reasonable and not made based on bias or stereotype.
(3) Procedural Fairness
[43] The Respondent argues that the Visa Officer’s Decision was not based on the credibility of the Female Applicant but rather on the insufficient information provided by the Female Applicant to establish that she met the requirements of ss 200 and 205 of the Regulations. In immigration applications, the applicant has the onus of satisfying the officer of all parts of the application and it is generally not a procedural fairness requirement that work permit applicants be granted an opportunity to respond to the concerns of officers, particularly when there is no evidence of serious consequences to the applicant: see Li v Canada (Citizenship and Immigration), 2012 FC 48 at para 31.
[44] The discrepancies in Mr. Singh’s letters were evident on the face of the documents, and the Female Applicant should have been aware of them; thus, she had the opportunity to explain the discrepancies when the letters were submitted and there was no obligation on the Visa Officer to provide a further opportunity. The Female Applicant had the onus of satisfying the Visa Officer on all parts of the application, which she did not do.
VIII. ANALYSIS
A. Preliminary Matters
(1) Conduct of Counsel
[45] The written submissions of Applicants’ counsel (Atinder Jit Uppal of Uppal Pandher LLP) are replete with extravagant and/or offensive language and accusations that have no evidentiary basis to support them. I will provide a few examples to illustrate the problems from the Applicants’ Reply to the Respondent’s Memorandum of Argument:
(a) Paragraph 12:
First of all, to respond in general, to the Memorandum, it must be pointed out, that both presently in this document, and in the previous Memorandum of Applicant, as well as her and the employer’s Affidavits, the Applicant and employer were merely responding to the Rule 9 Reasons, and they are certainly entitled to do so, particularly as the Reasons were so FULL OF ERRORS ON THE FACE OF THE RECORD, and exhibited EXTREME BIAS, to the point of great unreasonableness, possibly motivated by RACISM or MALICE against the Respondent. At the very least, Officer has exhibited utter contempt for the Applicant, her job (which is/was real), her employer (who is also real), and the Sikh religion (and possibly religion and religious workers generally), to the extent of declaring her job to be fake, without any rational basis for that, whereas another officer would normally have accepted her applications and documents at face value, as they were in fact, in the first time she applied for her Work Permit, when she encountered no difficulties at all with the Respondent, and it was routinely granted as it should have been.
(b) Paragraph 16:
An Applicant clearly can not be expected to re-supply earlier documents that she or her employer submitted to CIC on earlier applications, one clearly expects that the Officer would have access to all of these, and be able to refer to it in the decision making process. In Officer’s failure in this regard, and in making the errors that she did, the Officer displayed gross incompetence and negligence of a high degree.
(c) Paragraph 20:
Both the Applicant and the Employer were very shocked and surprised by the refusal, as both believe strongly that everything was done correctly; she submitted precisely the same types of documents on the most recent application, as were submitted on the first, nothing was known to be wrong. It is our understanding that normally applications for Religious Workers, especially of Ministers of Religion, are accepted routinely by the Respondent, as a matter of course, and very seldom questioned. It is believed that the extra scrutiny and ultimate refusal by the Officer may have been influenced by BIAS against a “foreign” religion practised by “non-whites”[.]
(d) Paragraph 22:
Another indicia of the Officer’s gross incompetence is that it took her ten and a half months to come up with a decision, while she was supposedly “investigating” this matter. It is submitted, that no bona fide “INVESTIGATION” ever actually took place, the only thing she acknowledges that was ever done, was to attempt to view the website that had become defunct (probably many months after the fact), and NOTHING ELSE. THERE WAS NO ATTEMPT TO CONTACT APPLICANT OR HER EMPLOYER WHATSOEVER, TO ASK ANY QUESTIONS, OR TO CLARIFY, AND THIS COULD HAVE VERY EASILY BEEN DONE, AS A PHYSICAL/MAILING ADDRESS, TELEPHONE NUMBER, AND E-MAIL WERE PROVIDED. IT WOULD HAVE BEEN VERY EASY TO VERIFY THE EXISTENCE OF THE SIKH TEMPLE, AND OF THE GENUINENESS (“BONA FIDES”) OF THE JOB AND JOB OFFER, BUT NO SUCH CONTACT FROM CIC WAS EVER RECEIVED. Both the Applicant, as well as Balvir Singh and/or anyone else at the Temple would gladly have answered questions to allay any doubts CIC may have had. SO WHAT WAS THE OFFICER DOING FOR THOSE 10 1/2 MONTHS? CERTAINLY NOT “INVESTIGATING” ANYTHING PERTAINING TO THIS MATTER. Clear evidence of incompetence, and then a .decision was made based on inaccurate and patently unreasonable perceptions.
(e) Paragraph 31:
In the second paragraph of the Officer's Report, entitled “Details”, it was stated: “The client provided a vague outline of her job description and her duties. I am not satisfied that the client has the ability to minister to a congregation under the auspices of the Sikh religious denomination due to her vague job description”. This is a complete non-sequitur, and a totally stupid statement to make, and also the statement is completely false, as a proper 41-word job description complying with NOC 4154 had in fact been provided in the job offer letter. Therefore, this job description is obviously very clear and not “vague” in any way. In fact, it appears to coincide identically or near-identically to the advertisements for this position that were posted on the SaskJobs (provincial) and Job Bank (federal) websites. A job description does not need to be excessively lengthy and complicated. The fact is, that this job description does appear to be very closely patterned on that found in NOC 4154 - Ministers of Religion, with much of the wording being identical or very similar, with a few adaptations specific to the Sikh religion. Further, ability to minister to a congregation, which Balvir Singh wrote he was very satisfied with, has nothing whatsoever to do with the length of a job description, or whether some bureaucrat, departing from normal past practice and policy, thinks it is too short or supposedly “vague”. It is plain and obvious that this person knows nothing at all about the Sikh religion. Nor does she appear to know anything, or have any understanding of what a priest – minister of religion – preacher – clergyperson – Granthi actually does, whereas most ordinary Canadian do understand this occupation very well.
(f) Paragraph 38:
It is submitted that the Officer exhibited bias against the Applicant & therefore, the impugned decision can not be allowed to stand. In particular, and without restr