DAKSHESH KISHOR PATIL Applicant v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION, 2020 FC 495

Date: 20200407 Docket: IMM-1306-19 Citation: 2020 FC 495 Ottawa, Ontario, April 7, 2020 PRESENT: The Honourable Mr. Justice Ahmed BETWEEN:DAKSHESH KISHOR PATILApplicantandTHE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent JUDGMENT AND REASONS I. Overview [1] This case concerns the decision of an immigration officer (the "“Officer”") dated February 13, 2019, wherein the Officer denied theApplicant’s permanent residency application. [2] The Applicant submits that the Officer’s decision was improperly speculative and that the Officer breached procedural fairness.

TheRespondent submits that the Officer reasonably assessed the evidence, that the Applicant’s arguments amount to asking this Court toreweigh the evidence, and that the low level of procedural fairness owed to the Applicant was met. [3] For the reasons that follow, this application for judicial review is allowed. II.

Preliminary Issue: Evidence [4] As Exhibit B to the Applicant’s Affidavit for this application for judicial review, the Applicant attached a "“Wage Report”"published by the Government of Canada, which lists wages for "“Retail Sales Supervisor”" positions throughout Canada, correspondingto the National Occupational Classification ("“NOC”") 6211.

I note that this Wage Report was not submitted by the Applicant as part ofhis permanent residency application. [5] In response to the Wage Report, the Respondent submitted job postings in the Greater Toronto Area ("“GTA”"), showing the wagescorresponding to gas station manager positions, and noting that the position held by the Applicant was not a "“gas station manager”" buta "“supervisor”", also further submitted wages corresponding to gas station supervisors. [6] It is trite law that on judicial review this Court only examines evidence that was before the underlying decision-maker (AyodeleGeorge v Canada (Citizenship and Immigration), 2007 FC 1315 at para 12; Bodine v Canada (Citizenship and Immigration),2008 FC 848 at para 12).

Therefore, the evidence submitted by counsel for the Applicant and Respondent is inadmissible. However, given that both counsel relied extensively on the Wage Report, and GTA job postings during the hearing, I will make briefreferences in my decision. [7] Furthermore, for purposes of the analysis, I wish to note that even if the GTA job postings evidence had been admitted, it wouldhave been irrelevant to the case at bar, as it is not disputed that some other gas station supervisors earn more than the minimum wagerate.

It is only relevant that some gas station supervisors are indeed paid at the minimum wage rate—as the Applicant had been andindicated in the Wage Report. III. Facts A. The Applicant [8] Mr. Dakshesh Kishor Patel (the "“Applicant”") is a 33-year-old citizen of India. The Applicant is a father and husband. His wifeand one-year-old son reside in India. [9] The Applicant came to Canada in September 2015 on a study permit. The Applicant studied at Centennial College in Toronto, andcompleted his studies in December 2016.

Subsequently, the Applicant applied for and received a "“post-graduate work permit”". [10] While in school, the Applicant began working for Debbie Williams Enterprises Inc., a company that operates Shell gas stations. The Applicant worked part-time as a gas station attendant. After completing his studies at Centennial College, the Applicant continuedworking for Debbie Williams Enterprises Inc. on a full-time basis beginning on February 15, 2017. On May 1, 2017, the Applicant waspromoted to a full-time "“Sales Supervisor”" position—a gas station supervisor position.

[ 11 ] The Applicant consistently earned minimum wage while working for Debbie Williams Enterprises Inc. He began working in October 2015 when the minimum hourly wage was $11.25. The Applicant’s hourly wage increased along with the minimum wage rate increases, which reached $14.00 in January 2018. B. Procedural History [ 12 ] The Applicant was invited to apply for permanent residence via the Canadian Experience Class ( " “CEC” " ) on July 25, 2018. The Applicant accepted the invitation and applied for permanent residence to Canada through the CEC on September 19, 2018. [ 13 ] The requirements for the CEC are set out in

section 87.1(2) of the Immigration and Refugee Protection Regulations , SOR/2002-227 ( " “ IRPR ” " ), which reads as follows: Member of the class

(2) A foreign national is a member of the Canadian experience class if (

a) they have acquired in Canada, within the three years before the date on which their application for permanent residence is made, at least one year of full-time work experience, or the equivalent in part- time work experience, in one or more occupations that are listed in Skill Type 0 Management Occupations or Skill Level A or B of the National Occupational Classification matrix, exclusive of restricted occupations; and (

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 ; (

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; (

d) they have had their proficiency in the English or French language evaluated by an organization or institution that is designated under subsection 74(3) using a language test that is approved under that subsection, the results of which must indicate that the foreign national has met the applicable threshold that is fixed by the Minister under subsection 74(1) for each of the four language skill areas; and (

e) in the case where they have acquired the work experience referred to in paragraph (

a) in more than one occupation, they meet the threshold for proficiency in the English or French language, fixed by the Minister under subsection 74(1), for the occupation in which they have acquired the greater amount of work experience in the three years referred to in paragraph (a). Qualité

(2) Fait

partie de la catégorie de l’expérience canadienne l’étranger qui satisfait aux exigences suivantes:

a) l’étranger a accumulé au Canada au moins une année d’expérience de travail à temps plein, ou l’équivalent temps plein pour un travail à temps partiel, dans au moins une des professions, autre qu’une profession d’accès limité, appartenant au genre de compétence 0 Gestion ou aux niveaux de compétence A ou B de la matrice de la Classification nationale des professions au cours des trois ans précédant la date de présentation de sa demande de résidence permanente;

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 la Classification nationale des professions ;

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 la Classification nationale des professions , notamment toutes les fonctions essentielles;

d) il a fait évaluer sa compétence en français ou en anglais par une institution ou une organisation désignée en vertu du paragraphe 74(3) qui utilise un test d’évaluation linguistique approuvé en vertu de ce paragraphe et les résultats de ce test démontrent qu’il a obtenu, pour chacune des quatre habiletés langagières, le niveau de compétence applicable établi par le ministre en vertu du paragraphe 74(1);

e) s’il a acquis l’expérience de travail visée à l’alinéa a) dans le cadre de plus d’une profession, il a obtenu le niveau de compétence en anglais ou en français établi par le ministre en vertu du paragraphe 74(1) à l’égard de la profession pour laquelle il a acquis le plus d’expérience au cours des trois années visées à l’alinéa a).

[ 14 ] The Applicant applied to the CEC on the basis that he had at least one year of full-time work experience in a skilled work position as a gas station supervisor, which the Applicant claims corresponds to NOC 6211. [ 15 ] The Global Case Management System ( " “GCMS” " ) notes stated that the Applicant had previously applied for a spousal work permit, but had been denied because he had then been working as a sales associate, which did not fall within the NOC 0, A or B categories. [ 16 ] The Applicant included his wife, Priyanka Dakshesh Patil, and their recently-born son, Prerit Dakshesh Patil, on his permanent residence application. [ 17 ] By decision dated February 13, 2019, the Applicant’s permanent residence application was denied.

This is the underlying decision

on this application for judicial review. C. The Underlying Decision [18] The Officer found that the Applicant did not meet the requirements of the CEC. The requirements included "“temporary residentstatus during the qualifying period of work in Canada, meeting the minimum language proficiency threshold in either English or French,and qualifying Canadian skilled work experience”".

The Officer noted that the Applicant was being assessed on the basis that he held askilled work position as a gas station supervisor (NOC 6211) at Debbie Williams Enterprises Inc. [19] However, the Officer concluded that the Applicant did not meet the skilled work experience requirement of the CEC because theApplicant’s pay stubs showed that he was continuously making minimum wage. The Officer reasoned that the salary or wage rateswould be higher in a supervisor role (the Applicant’s current position) than in a sales associate role (the Applicant’s previous position).

Therefore, on a balance of probabilities, the Officer found that the Applicant’s position at Debbie Williams Enterprises Inc. did notcorrespond to NOC 6211. [20]

Section 11.2(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 ("“IRPA”") states that: 11.2

(1) An officer may not issue avisa or other document in respect ofan application for permanentresidence to a foreign national whowas issued an invitation underDivision 0.1 to make that applicationif — at the time the invitation wasissued or at the time the officerreceived their application — theforeign national did not meet thecriteria set out in an instruction givenunder paragraph 10.3(1)(

e) or did nothave the qualifications on the basisof which they were ranked under aninstruction given under paragraph10.3(1)(

h) and were issued theinvitation. 11.2

(1) Ne peut être délivré àl’étranger à qui une invitation àprésenter une demande de résidencepermanente a été formulée en vertude la

section 0.1 un visa ou autredocument à l’égard de la demande si,lorsque l’invitation a été formulée ouque la demande a été reçue parl’agent, il ne répondait pas auxcritères prévus dans une instructiondonnée en vertu de l’alinéa 10.3(1)e)ou il n’avait pas les attributs sur labase desquels il a été classé au titred’une instruction donnée en vertu del’alinéa 10.3(1)

h) et sur la basedesquels cette invitation a étéformulée. [21] The Officer found that because the Applicant no longer satisfied the requirements of the CEC, the Applicant did not satisfy therequirements of

section 11.2(1) of the IRPA. Therefore, the Officer refused the Applicant’s application for permanent residence. [22] It is well established that the GCMS notes also form part of the reasons of the decision (Khowaja v Canada (Citizenship andImmigration), 2013 FC 823 at para 3; Ghirmatsion v Canada (Citizenship and Immigration), 2011 FC 519 at para 8).

In the GCMS entry dated February 13, 2019, the Officer noted that the Applicant’s pay increases were reflective of the increase inminimum wage rates, and that it was unreasonable for the Applicant to earn "“the same amount as the Sales Associates he is allegedlysupervising”". [23] In the GCMS notes, the Officer noted that "“there may be concerns regarding the client’s credibility”" because the Applicantcontinued to make minimum wage even after he became a gas station supervisor. The Officer pointed out that the Applicant’s pay stubsindicated his occupation as a "“Sales Associate”" until November 2017.

The Officer also noted that the wording found in the letter ofemployment was very similar to the wording in the Applicant’s explanation letter, and therefore noted concerns on the authenticity of theletter of employment. IV. Issue and Standard of Review [24] In my view, the procedural fairness argument is dispositive of this application, and therefore I find that there is only one issue: A.

Did the Officer breach the duty of procedural fairness by failing to give the Applicant an opportunity to address the Officer’sconcerns regarding the Applicant’s hourly wage? [25] Prior to the Supreme Court’s recent decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65[Vavilov], issues of procedural fairness were reviewable on a correctness standard (Canada (Citizenship and Immigration) v Khosa, 2009SCC 12 [Khosa] at para 72; Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54;Saatchi v Canada (Citizenship and Immigration), 2018 FC 1037 at para 15).

In Vavilov at paragraph 23, the Supreme Court writes: Where a court reviews the merits of an administrative decision (i.e., judicial review of an administrative decisions other thana review related to a breach of natural justice and/or the duty of procedural fairness), the standard of review it applies mustreflect the legislature’s intent with respect to the role of the reviewing court, except where giving effect to that intent isprecluded by the rule of law.

The starting point for the analysis is a presumption that the legislature intended the standard ofreview to be reasonableness. [26] A reading of paragraphs 76 and 77 in Vavilov reveals the Supreme Court’s acknowledgement that the "“requirements of the duty ofprocedural fairness in a given case…will impact how a court conducts reasonableness review.”" In my view, this is instructive for a

reviewing court to first determine whether a duty of procedural fairness exists, and in light of the procedural fairness requirements (ifapplicable), apply the presumption of the reasonableness standard on the overall decision. In Vavilov, the duty of procedural fairnessconcerned whether reasons for the administrative decision was required and provided (Vavilov at para 78). Having found that reasonswere both required and provided in this case, the Supreme Court moves onto its discussion on whether the decision is substantivelyreasonable.

The following excerpt is also helpful, where the duty of procedural fairness is distinguished from the reasonablenessanalysis (Vavilov at para 81): […] The starting point for our analysis is therefore that where reasons are required, they are the primary mechanism bywhich administrative decision makers show that their decisions are reasonable — both to the affected parties and to thereviewing courts.

It follows that the provision of reasons for an administrative decision may have implications for itslegitimacy, including in terms both of whether it is procedurally fair and of whether it is substantively reasonable. [27] The specific issue raised by the Applicant, whether he was entitled to an opportunity to address the Officer’s concerns, is anestablished issue of procedural fairness reviewed on a correctness standard (Hamza v Canada (Citizenship and Immigration), 2013 FC264 at paras 9, 13 [Hamza]). The Officer is not entitled to deference upon review of this issue (Hamza at para 13).

Thecorrectness standard continues to apply to the issue of procedural fairness in the case at bar. V. Analysis A. The Applicant’s Submissions [28] The Applicant submits that the Officer breached the duty of procedural fairness by failing to bring their concerns regarding theApplicant’s permanent residency application to the Applicant’s attention. The Applicant submits that the Officer could have contactedthe Applicant’s employer to verify the veracity of the Applicant’s employment letter, but the Officer did not.

In failing to let theApplicant address the Officer’s concerns, the Officer breached procedural fairness. [29] The Applicant disputes the Respondent’s reliance on Hamza and submits that Hamza involved an application for permanentresidency with deficient evidence.

In contrast, the Applicant submits that his evidence before the Officer was not deficient, but that theOfficer still rejected the evidence without giving the Applicant an opportunity to address the Officer’s concerns, which amounts to aviolation of procedural fairness. [30] The Applicant specifically draws this Court’s attention to the fact that his letter of employment stated that his pay was $14/hourplus benefits. The Applicant submits that the Officer should have inquired into the meaning of "“benefits”" because it may haveaddressed the Officer’s concerns. B.

The Respondent’s Submissions [31] The Respondent submits that the duty of fairness owed to visa and permanent resident applicants is at the low end of the spectrum.

The Respondent cites several cases in support of its position: Tahereh v Canada (Citizenship and Immigration), 2008 FC 90 atpara 12; Khan v Canada (Minister of Citizenship and Immigration), 2001 FCA 345 at paras 31-32 [Khan]; Chiau v Canada(Minister of Citizenship and Immigration), (FCA), [2001] 2 FC 297 (FCA) at para 41. [32] The Respondent submits that where an officer’s concerns arise from the requirements of the legislation or regulations, the applicantis not entitled to an opportunity to address the Officer’s concerns (Zeeshan v Canada (Citizenship and Immigration), 2013 FC 248 at para 33; Rukmangathan v Canada (Minister of Citizenship and Immigration), 2004 FC 284 at para 23). [33] The Respondent further cites Hamza for the principle that an officer does not have to notify an applicant of inadequacies with anapplication (Hamza at para 24).

The Respondent argues that the relevant issue in this case is that the Applicant’s submitted materialswere inadequate. The Respondent cites Chadha v Canada (Citizenship and Immigration), 2013 FC 105 at paras 37-39, 47-49for the same principle [Chadha]. [34] The Respondent submits that an officer is entitled to draw from their own experiences and expertise, and that an officer does notneed to alert an applicant if they draw from their own experience (Singh v Canada (Citizenship and Immigration), 2012 FC 526 at para 52; Bahr v Canada (Citizenship and Immigration), 2012 FC 527 at para 42).

The Respondent argues that there was nobreach in procedural fairness as the Officer relied on their own experiences and expertise to draw their conclusions. C. Analysis [35] In my view, the Officer breached procedural fairness, and I find this Court’s decision in Hamza to be particularly helpful. InHamza, the applicant submitted an application for permanent residence through the Federal Skilled Worker program.

The applicant’spermanent residency application was refused because the visa officer found that the applicant had not submitted sufficient documentationsupporting his experience as a general practitioner or family physician (Hamza at para 1).

The officer had concerns with the employmentletter submitted by the applicant, which mirrored the job duties found in the applicable NOC code (Hamza at para 7). [36] In Hamza, in order to assess whether there had been a breach of procedural fairness, the Court explained at paragraph 10: This issue requires the Court to determine, first, if the Officer's concerns were related to the credibility of the employmentletter provided by the applicant, or to the sufficiency of the evidence provided.

Second, if the Court is satisfied that theOfficer's concerns were related to the veracity of the employment letter, it must determine whether, in the circumstances ofthis case, the Officer should have provided the applicant with an opportunity to address her concerns.

[37] I note that the Respondent is correct that where an officer’s concerns relate to the sufficiency of evidence, procedural fairness doesnot entitle an applicant to address an officer’s concerns (Chadha at paras 47-49).

The Respondent is similarly correct that the proceduralfairness owed to the Applicant in the case at bar is on the low-end of the spectrum (Khan at paras 31-32; Hamza at para 23). [38] However, as noted in Hamza at paragraph 25: Nevertheless, a duty to provide an applicant with the opportunity to respond to an officer’s concerns may arise when theofficer is concerned with the credibility, the veracity, or the authenticity of the documentation provided by an applicant asopposed to the sufficiency of the evidence provided. [39] Moreover, although an immigration officer need not make explicit credibility findings, where the officer’s decision as a wholedemonstrates their skepticism of an applicant’s claim, the applicant’s right to address an officer’s concerns is triggered (Hamza at para 30citing Adeoye v Canada (Citizenship and Immigration), 2012 FC 680 at para 8 [Adeoye]). [40] In Hamza, the Court also found that the officer questioned the veracity of the applicant’s submissions because the officer labelledthe letter of employment as "“self-serving”" and because the officer found the letter to be "“insufficient in the absence of othersupporting documents”" (Hamza at paras 38-39).

As a result, the Court concluded that the officer breached procedural fairness byfailing to provide the applicant with an opportunity to address the concerns with his evidence. [41] Similarly, in the case at bar, the Officer flagged a possible credibility concern with the Applicant’s submissions by noting that"“there may be concerns regarding client’s credibility”". The Officer criticized the Applicant’s evidence, in particular, the Applicant’sminimum wage rate, and the timing of when the paystubs were updated to reflect the Applicant’s promotion to a gas station supervisor.

The Officer’s reasons ultimately paint the picture that the Applicant’s evidence was not credible, not that there was insufficient evidenceto support the Applicant’s work experience. [42] Moreover, I find that the Officer’s comments was indicative of an overall skepticism of the Applicant’s claim. The Officer’scredibility concerns rested on the fact that the Applicant worked minimum wage. There was no explicit, final determination that theApplicant was not credible, and the Officer appeared to cast doubt on the veracity of the Applicant’s claim on the mere fact that theApplicant worked at the minimum wage rate.

However, as noted in Hamza and Adeoye, an overall skepticism in the decision canwarrant a finding that the officer breached procedural fairness. [43] It is undisputed that the Applicant submitted a letter of employment, which stated that he was a gas station supervisor and listedboth the Applicant’s wages and his duties. As noted in Hamza, "“There is no rule that requires an applicant to provide more than oneemployment letter to establish sufficient work experience.

An application can be deemed complete even if the work experience issupported by a single employment letter, as long as the employment letter accurately and completely lists the main duties performed bythe applicant,”" (Hamza at para 39).

In the case at bar, although there was no suggestion in the Officer’s reasons that the Applicant’sletter of employment did not accurately or sufficiently list the required duties of his claimed position, the Officer refused the applicationon the basis that the Applicant earned minimum wage. [44] By focusing on the Applicant’s wage as the determinative issue, the Officer’s decision gives the impression that the letter ofemployment was not a reliable or credible source of information.

Despite a letter from the Applicant’s employer stating that theApplicant made $14/hour and that he worked as a gas station supervisor with the accompanying duties, the Officer—in effect—impugned the credibility of the employment letter by concluding that a gas station supervisor would not be earning the minimum wagerate at $14/hour. [45] During the hearing, the Court brought to the attention of the Respondent that a "“common sense”" approach is not the applicableframework in the case at bar.

The Respondent argued that it would have been "“common sense”" for the Applicant to find a similarposition that had higher wages. However, there is no need to consult "“common sense”". The evidence indicated that the Applicant wasa supervisor, but that the Officer did not accept this fact based on his adverse credibility assessments.

The Respondent questioned duringthe hearing as to why the Applicant did not switch positions to a higher paying company or seek out better opportunities, despite the factthat he did not get a raise at his current position along with the promotion to a sales supervisor. [46] However, such speculative questioning is inappropriate, and it is certainly not the Respondent’s job to speculate on the reasons whythe Applicant may have stayed at his current position. Some individuals may lack the luxury of changing jobs with ease or negotiatingfor a higher wage rate.

Furthermore, it is troubling that the Respondent emphasized in a disrespectful manner that the minimum wagerate is a "“starting wage”" for gas station supervisors. [47] The issue in the case at a bar is a question of procedural fairness and the Officer is not entitled to deference. The Applicant wasentitled to an opportunity to address the Officer’s concerns because the Officer’s decision as a whole demonstrated skepticism of theApplicant’s claim that he was a gas station supervisor. This was not merely an issue of the sufficiency of evidence.

The Officerconnected the Applicant’s wage to a concern that the Applicant was not credible, and the Officer implicitly suggested that theApplicant’s letter of employment was similarly not credible. VI. Certified Question [48] Counsel for each party was asked if there were any questions requiring certification. They each stated that there were no questionsfor certification and I concur. VII. Conclusion [49] The Officer questioned the veracity of the Applicant’s application without giving him an opportunity to address the Officer’s

concerns. In doing so, the Officer breached the Applicant’s right to procedural fairness. This application for judicial review is allowed. JUDGMENT IN IMM-1306-19 THIS COURT’S JUDGMENT is that : 1 . The decision is set aside and the matter referred back for redetermination by a different decision-maker. 2 . There is no question to certify. "Shirzad A." Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-1306-19 STYLE OF CAUSE: DAKSHESH KISHOR PATIL v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: November 28, 2019 JUDGMENT AND REASONS: AHMED J.

DATED: April 7, 2020 APPEARANCES : Dan Miller For The Applicant Alex C. Kam For The Respondent SOLICITORS OF RECORD : Dan Miller Barrister & Solicitor Toronto, Ontario For The Applicant Attorney General of Canada Toronto, Ontario For The Respondent