Patil v. Canada (Citizenship and Immigration), 2020 FC 495 : CEC Refusal Set Aside Where Officer Questioned Credibility of Employment Evidence Without Giving Applicant an Opportunity to Respond

Dakshesh Kishor Patil sought judicial review after an immigration officer refused his Canadian Experience Class permanent residence application. The officer doubted that Patil had genuinely worked as a gas station supervisor under NOC 6211 because he continued to earn minimum wage after his promotion. The Federal Court found that the officer’s concern went beyond the sufficiency of the evidence and effectively questioned the credibility and authenticity of Patil’s employment evidence. Procedural fairness therefore required that he be given an opportunity to respond.

Key Principle

An immigration officer is generally not required to alert an applicant to deficiencies or insufficiencies in the evidence submitted with an application. However, where the officer’s concern relates to the credibility, veracity, or authenticity of the applicant’s evidence, procedural fairness may require that the applicant be given an opportunity to respond. An officer cannot effectively reject an employment letter as unreliable based on an adverse credibility inference without first putting that concern to the applicant.

Background

Patil, an Indian citizen, came to Canada as a student in 2015 and completed his studies at Centennial College in December 2016. He later received a post-graduation work permit.

He began working part-time at a Shell gas station as an attendant and moved to full-time employment in February 2017. On May 1, 2017, he was promoted to a Sales Supervisor position. Patil’s wage nevertheless remained at the applicable provincial minimum wage and increased only when Ontario’s minimum wage increased.

He was invited to apply for permanent residence under the Canadian Experience Class in July 2018 and relied on more than one year of work experience as a gas station supervisor under NOC 6211.

The officer refused the application because Patil continued to earn minimum wage and therefore concluded that, on a balance of probabilities, his employment did not correspond to NOC 6211.

Court Findings

• Officer’s Concern Was About Credibility, Not Merely Sufficiency

The GCMS notes expressly stated that “there may be concerns regarding client’s credibility.” The officer questioned why a supervisor would earn the same amount as the sales associates he allegedly supervised and also expressed concerns about the timing of changes to his pay stubs and similarities between his employment letter and explanation letter.

The Court found that these concerns went beyond simply finding that Patil had failed to provide enough evidence. The officer was effectively questioning whether the claimed promotion and employment were genuine.

• Employment Letter Was Direct Evidence of the Claimed Position

Patil submitted an employment letter stating that he worked as a gas station supervisor, listing his duties and confirming his wage of $14 per hour plus benefits. There was no finding that the stated duties failed to correspond to the claimed NOC.

The Court emphasized that there is no general rule requiring multiple employment documents where one employment letter accurately and completely sets out the applicant’s duties.

• Wage Alone Could Not Be Used to Impugn Evidence Without Fairness

The officer effectively rejected the employer’s evidence because Patil earned minimum wage. The Court found that this amounted to an adverse credibility assessment. Once the officer used Patil’s wage to question whether the employment letter and claimed supervisory role were genuine, Patil should have been given an opportunity to explain.

The Court also rejected speculative assumptions about why Patil had not changed employers or negotiated a higher wage. Individuals may not necessarily have the ability to change jobs easily or obtain higher wages simply because they receive a promotion.

Outcome

The Federal Court granted judicial review, set aside the permanent residence refusal, and remitted the matter to a different decision-maker for redetermination. No question was certified.

Case Citation:

Patil v. Canada (Citizenship and Immigration), 2020 FC 495 (CanLII)