Mamdouh Issa Mamdouh ALBAJJALI Applicant v. THE MINISTER OF CITIZENSHIP, 2013 FC 660

Federal Court Cour fédérale Date: 20130620 Docket: IMM-8471-12 Citation: 2013 FC 660 Ottawa, Ontario, this 20 th day of June 2013 Present: The Honourable Mr. Justice Pinard BETWEEN: Mamdouh Issa Mamdouh ALBAJJALI Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR JUDGMENT AND JUDGMENT [ 1 ] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act , SC 2001, c 27 (the “Act”) of a decision by a visa officer (the “officer”) with the visa office at the Embassy of Canada in Ankara, Turkey.

In the decision, dated June 28, 2012, the officer refused the applicant’s application for permanent residence under the Federal Skilled Worker class. [ 2 ] The applicant is a 39-year-old citizen of Jordan who applied for a permanent resident visa under the Federal Skilled Worker class.

He indicated that he had work experience as an electrician. [ 3 ] In support of his application and to be awarded five points under the adaptability factor, the applicant indicated that he had a maternal uncle living in Canada. [ 4 ] The applicant submitted numerous documents related to the said relative’s status in Canada, including the relative’s Canadian citizenship card and Canadian passport.

To establish the relative’s residency in Canada, the applicant also submitted the relative’s Ontario driver’s license, some credit card and utility bills and a letter from the relative’s lawyer regarding the purchase of a home in Mount Albert, Ontario. [ 5 ] The applicant provided two documents relating to his blood relation with the said relative: the applicant’s own birth certificate and a travel document belonging to the stated relative. * * * * * * * *

[ 6 ] The officer assessed the applicant’s points as follows: Points assessed Maximum Possible Age 10 10 Education 20 25 Experience 21 21 Arranged employment 0 10 Official language proficiency 10 24 Adaptability 4 10 TOTAL 65 100 [ 7 ] The officer stated he was unable to award the applicant any points for having a relative in Canada, pursuant to subsection 83(5) of the Immigration and Refugee Protection Regulations , SOR/2002-227 (the “Regulations”) , as he was not satisfied a blood relationship existed between the applicant and his stated relative.

The officer noted that the applicant had not provided birth certificates for his mother and his stated relative in Canada. [ 8 ] The officer provided more detail for the reasons for his decision in the Global Case Management System notes. The officer noted that the applicant had provided his birth certificate, which stated his mother’s name and his mother’s father’s name, and that he had also provided a copy of what appeared to be his stated relative’s travel document showing the relative’s mother’s name.

However, the officer found there was insufficient documentation to allow him to conclude that there was indeed a blood relationship between the applicant and his stated relative. * * * * * * * * [ 9 ]

Section 83 of the Regulations provides the following:

(1) A maximum of 10 points for adaptabilityshall be awarded to a skilled worker on the basisof any combination of the following elements: […] (

d) for being related to a person living in Canadawho is described in subsection (5), 5 points; and […]

(5) For the purposes of paragraph (1)(d), askilled worker shall be awarded 5 points if (

a) the skilled worker or the skilled worker’saccompanying spouse or accompanyingcommon-law partner is related by blood,marriage, common-law partnership or adoption toa person who is a Canadian citizen or permanentresident living in Canada and who is […] (vi) a child of the father or mother of their fatheror mother, other than their father or mother, 83.

(1) Un maximum de 10 pointsd’appréciation sont attribués au travailleurqualifié au

titre de la capacité d’adaptation pourtoute combinaison des éléments ci-après, selon lenombre indiqué : […]

d) pour la présence au Canada de l’une ou l’autredes personnes visées au paragraphe (5), 5 points; […]

(5) Pour l’application de l’alinéa (1)d), letravailleur qualifié obtient 5 points dans les cassuivants :

a) l’une des personnes ci-après qui est un citoyencanadien ou un résident permanent et qui vit auCanada lui est unie par les liens du sang ou del’adoption ou par mariage ou union de fait ou,dans le cas où il l’accompagne, est ainsi unie àson époux ou conjoint de fait : […] (vi) un enfant de l’un des parents de l’un deleurs parents, autre que l’un de leurs parents, * * * * * * * * [10] As a preliminary issue, the respondent submits, in his written memorandum of argument, that the evidence attached to theapplicant’s immigration consultant’s affidavit submitted in support of this application, namely copies of a birth certificate and a marriagedocument, is fresh evidence that was not before the visa officer.

As such, the respondent states the evidence should not be included aspart of the record on judicial review. [11] The applicant did not reply to this submission. [12] Upon judicial review of an administrative decision, evidence that was not before the decision-maker is only admissible in verylimited circumstances (Alabadleh v The Minister of Citizenship and Immigration, 2006 FC 716 at para 6). The applicant has not assertedhow the fresh evidence adduced in the present case falls into the exceptional circumstances of being admissible.

I therefore agree withthe respondent that the evidence is inadmissible. [13] The only issue raised on the merits of the application is whether the officer breached the duty of procedural fairness by notproviding the applicant an opportunity to submit additional evidence.

This is an issue that should be assessed on the correctness standard(Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 , [2009] 1 SCR 339 at para 43; Veryamani v The Minister ofCitizenship and Immigration, 2010 FC 1268 at para 27). * * * * * * * * [14] It is well established that an officer is under no duty to inform an applicant about any concerns regarding his or herapplication that arise directly from the requirements of the legislation or regulations and do not pertain to the veracity of the documents(Hassani v Canada (Minister of Citizenship and Immigration), 2006 FC 1283 , [2007] 3 FCR 501 at paras 23 and 24; Uddin vThe Minister of Citizenship and Immigration, 2012 FC 1005 at para 38 [Uddin]).

[ 15 ] As Justice Luc Martineau states in the recent case of El Sherbiny v The Minister of Citizenship and Immigration , 2013 FC 69 , at paragraph 6 : [6] On one hand, an applicant bears the onus of providing adequate and sufficient evidence in support of his application, which means that the immigration officer is under no obligation to request further clarification from an applicant if he or she finds there is not enough evidence initially submitted.

On the other hand, where there is a question related to the credibility, accuracy, or genuineness of the information an applicant has submitted, then the officer must give the applicant the opportunity to respond to the officer’s concerns, but the credibility issue must be determinative. [ 16 ] In the previous case of Uddin , supra , Justice John O’Keefe also states, at paragraph 38: [38] … The onus is always on the applicant to satisfy the officer of all parts of his application.

The officer is under no obligation to ask for additional information where the applicant’s material is insufficient (see Sharma v Canada (Minister of Citizenship and Immigration) , 2009 FC 786 , [2009] FCJ No 910 at paragraph 8 ; and Veryamani v Canada (Minister of Citizenship and Immigration) , 2010 FC 1268 , [2010] FCJ No 1668 at paragraph 36 ). [ 17 ] In the case at bar, the officer reasonably found that the applicant had not satisfied him that he had a blood relationship with his stated relative pursuant to subsection 83(5) .

As the respondent underlines, the applicant only provided two documents to establish his blood relationship with his stated relative: his birth certificate showing his parent’s names and a travel document belonging to his stated relative in Canada which showed his relative’s mother’s name.

Moreover, the applicant does not take issue with the officer’s assessment that there was insufficient evidence to prove the applicant’s blood relation with his uncle. [ 18 ] In my view, as the officer’s concerns arose directly from the Regulations , he was under no duty to inform the applicant that he had provided insufficient information to establish a blood relationship with the stated relative. [ 19 ] The applicant relies on Marr v The Minister of Citizenship and Immigration , 2011 FC 367 and Mansouri v The Minister of Citizenship and Immigration , 2012 FC 1242 , but in both cases, the applicant sought reconsideration of a Federal Skilled Worker application and submitted new evidence to confirm previously disclosed facts shortly after a negative decision was issued.

It was these circumstances that the Court found gave rise to a duty to reconsider a negative decision. In the case at bar, there is no evidence the applicant made a reconsideration request accompanied by evidence to support his blood relationship with his uncle. I therefore fail to see the analogy between the present case and Marr or Mansouri . * * * * * * * * [ 20 ] For these reasons, the application for judicial review is dismissed. [ 21 ] I agree with the parties that this is not a matter for certification.

JUDGMENT The application for judicial review of the decision by a visa officer at the Embassy of Canada in Ankara, Turkey, dated June 28,

2012, is dismissed. “Yvon Pinard” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-8471-12 STYLE OF CAUSE: Mamdouh Issa Mamdouh ALBAJJALI v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Vancouver , British Columbia DATE OF HEARING: May 7, 2013 REASONS FOR JUDGMENT AND JUDGMENT: Pinard J. DATED: June 20, 2013 APPEARANCES : Me Richard Kurland FOR THE APPLICANT Me Hilla Aharon FOR THE RESPONDENT

SOLICITORS OF RECORD : Kurland , Tobe FOR THE APPLICANT Vancouver , British Columbia William F. Pentney FOR THE RESPONDENT Deputy Attorney General of Canada