Monday, March 06, 2017

Singh: failure to engage with evidence after fairness letter

Singh v. Canada (Citizenship and Immigration), 2017 FC 132

Barnes, 2 February 2017, online at: http://canlii.ca/t/h03cj

Decision under review: Refusal of application under Federal Skilled Worker/Express Entry Program

For Applicant: Raj Sharma, Stewart Sharma Harsanyi (Calgary)

For Respondent: Gwen MacIsaac, Dept. of Justice (Saskatoon)

The Applicant applied under FSW/EE, as a financial auditor/accountant, and the Officer doubted his experience (para. 2). In his FSW/EE application, Mr. Singh claimed he had worked as an auditor with a particular accounting firm between December 1, 2011 and August 14, 2013; however, in previous student and temporary work visas, he had allegedly not listed this same work experience (paras. 2-3).

The Officer sent a fairness letter to Mr. Singh, stating that his work experience was in doubt based on an absence of corroborating evidence, failure to declare the work history in earlier applications, and that period of work overlapping with another at the Institute of Chartered Accountants of India (para. 4). Mr. Singh replied that he had not been employed by the Institute of Chartered Accountants of India but doing a co-op placement through them; he also submitted additional corroborating evidence; and he explained that he had omitted it from the previous applications through a misunderstanding, thinking that the previous applications required him to list his work experience in Canada (para. 5). He stated further that he would have included this experience because it would have been helpful to his applications – the clear implication of his statement is that he would have included it had he known he could.

The Officer’s refusal letter simply states that after the issue was raised, “You replied with further information and documents which were fully reviewed and assessed. However based on balance of probabilities and the evidence provided I am not satisfied that you acquired foreign work experience you have declared.” (para. 6). According to the FOSS/GCMS notes (para. 7), the Officer rejected Mr. Singh’s explanations because:

  • Mr. Singh stated he “would not have” failed to mention his work experience in the previous applications, but he did fail to mention it;
  • The fact the he was only mentioning it now “brings into doubt the credibility” of Mr. Singh; the Court went on to note that Mr. Singh had actually given several documents for corroboration, including those specifically requested by the officer, and to agree with counsel for Mr. Singh that the Officer had “failed to engage in a meaningful way with the evidence” (paras. 8-9);
  • During the period of overlap, he could not have been both working and studying, both on a full-time basis; the Court went on to note that as he was doing a co-op or internship, this was precisely what he was doing (para. 10);
  • The Officer also raised the issue that Mr. Singh had not yet been able to gain employment in Canada; the Court notes that this is a non sequitur and irrelevant (para. 11)

An Officer cannot merely pay lip service to submissions in response to a fairness letter; he or she must genuinely engage with the submissions.

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