Date:
20121220
Docket:
IMM-2293-12
Citation:
2012 FC 1521
Ottawa, Ontario,
December 20, 2012
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
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GHANAI GHAZELEH
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant is a citizen of Iran who applied to immigrate to Canada under the federal skilled worker class. She seeks judicial review of a decision of
an immigration visa officer (the Officer) denying this application. The
Officer was not satisfied that the applicant had a genuine offer of employment
in Canada and therefore determined that she did not meet the minimum
requirements for permanent residence under this category.
[2]
The
Officer also rejected a request for a substituted evaluation based on her
application and $600,000 in funds said to be available to her to support her
transition to Canada.
[3]
In
Gill v Canada (Citizenship and Immigration), 2010 FC 466, Justice Sean
Harrington observed that whether a visa officer is entitled to override an
opinion by the Department of Human Resources and Skills Development that
an arranged offer of employment was genuine was a question “best left for
another day”. That day has arrived.
[4]
For
the reasons that follow the application is dismissed.
Applicable Regulations
[5]
Section
75 of the Immigration and Refugee Protection Regulations, SOR/2002-227
(the Regulations) describes federal skilled workers as those who may
become permanent residents on the basis of their ability to become economically
established in Canada.
[6]
Immigration
officers award applicants points on the basis of factors listed in paragraph
76(1)(a) of the Regulations: education, proficiency in English and
French, experience, age, arranged employment and adaptability. Applicants must
be awarded at least 67 points to be eligible for a federal skilled worker visa.
[7]
Under
paragraph 82(2)(c), applicants from outside of Canada are entitled to ten
points for arranged employment, provided that:
(i)
The
employer has made an offer to employ the skilled worker on an indeterminate
basis once the permanent resident visa is issued to the skilled worker; and
(ii)
An
officer has approved that offer of employment based on an opinion provided to
the officer by the Department of Human Resources and Skills Development at the request of the
employer or an officer that:
(a) the offer of
employment is genuine;
(b) the employment is not
part-time or seasonal employment; and
(c) the wages offered to
the skilled worker are consistent with the prevailing wage rate for the
occupation and the working conditions meet generally accepted Canadian
standards;
[8]
Under
subsection 76(3), the immigration officer has the discretion to undertake a
substituted evaluation if the officer determines that the number of points
awarded is not a sufficient indicator of the applicant’s ability to become
economically established in Canada.
Decision Under
Review
[9]
The
applicant obtained an offer of employment as a technical sales specialist from
a company in North Vancouver, British Columbia. Human Resources and Skills
Development / Service Canada (HRSDC) considered this offer and provided her
with a positive determination of eligibility for processing, also known as a
positive Arranged Employment Opinion (AEO).
[10]
The
applicant provided evidence in support of her application, including:
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International
English Language Testing System results with an overall score of 5.5 out of 9;
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The
positive AEO and offer of employment;
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Evidence
of her current employment as a production manager;
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A
letter indicating that she had studied French for one year;
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University
transcripts and her bachelor’s degree;
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Evidence
that her brother lived in Canada;
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Banking
information.
[11]
The
Officer considered this evidence and awarded the applicant 65 points, two less
than the minimum requirement. The applicant received high scores for age,
education and experience. She received five points out of a maximum ten for
adaptability because she has family in Canada. The Officer credited her
English language ability but did not award any points for French because she
had not submitted test results.
[12]
However,
the applicant received no points for arranged employment. The Officer was not
satisfied by HRSDC’s positive assessment of the employment offer, had concerns
about the company’s ability to employ the applicant and requested the company’s
tax information which revealed substantial losses in 2010.
[13]
The
Visa Officer wrote to the applicant’s representative who conceded that they
could not alleviate the Officer’s concerns. No further information came to
light in response to a subsequent fairness letter. The applicant did, however,
request a substituted evaluation of her ability to be economically established
in Canada under subsection 76(3) of the Regulations. Therefore, the
representative requested an opportunity to provide French test results. In the
alternative, the representative requested substituted evaluation in light of
the applicant’s net worth and immediate family living in Canada.
[14]
The
Officer did not invite the applicant to submit further evidence. The Officer
also declined to conduct a substituted evaluation having concluded that the
points awarded accurately reflected her ability to become established in Canada.
Issues
[15]
The
applicant raises three issues:
(i)
Whether
the Officer was entitled to consider the genuineness of the employment offer;
(ii)
Whether the Officer
reasonably assessed the evidence; and
(iii)
Whether the Officer breached
the duty of procedural fairness.
[16]
Questions
of jurisdiction and procedural fairness are reviewed on the standard of
correctness, whereas the Officer’s overall assessment
attracts substantial deference and is reviewed based on reasonableness: Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.
Analysis
Jurisdiction
[17]
The
applicant submits that the Officer must accept HRSDC’s assessment as to whether
the employment offer is genuine. The applicant refers to the Regulations,
which state that an immigration officer shall award points for arranged employment
if the officer “has approved that offer of employment based on an opinion
provided to the officer by the Department of Human Resources and Skills
Development”. The applicant argues that the Regulations did not permit
the Officer to look beyond the AEO.
[18]
HRSDC’s
opinion is the first step in the validation of an employment offer; it does not
end the inquiry. Under section 82 of the Regulations, an immigration
officer must approve of employment offers and consider whether applicants are
“able to perform and are likely to accept and carry out the employment”.
[19]
As
Justice Judith Snider explained in Bellido v Canada (Minister
of Citizenship and Immigration), 2005 FC
452 at paragraph 21:
HRDC validation is not, as the Applicant
submits, sufficient evidence of arranged employment. Such validation does not
remove the obligation of the Visa Officer to assess whether the Applicant is
able to perform the job described in the validation.
[20]
An
applicant cannot, in the language of section 82 of the Regulations, accept,
perform and carry out an employment offer that does not exist, or, as in this
case, could not be implemented because of the employer’s financial
circumstances. A visa officer must be satisfied that the criteria specified in
section 82 of the Regulations are met. Furthermore, in my view, HRSDC’s
opinion is just that, an opinion, it is not determinative of whether a visa
should issue. The immigration officer is the ultimate decision maker.
[21]
It is true that HRSDC has a different mandate than that of a visa
officer. Its specialization lies in the identification of deficiencies in the
labour market and providing an opinion that the position is genuine. However,
an immigration officer has the overriding discretion to refuse a visa, in
appropriate circumstances. Indeed, it would be
incumbent on a visa officer to do so if they became aware of facts or
circumstances which questioned the legitimacy of the offer.
[22]
The authority to grant access to Canadian territory is vested in
the Minister of Citizenship and Immigration, and specifically, to the visa
officer. Subsection 11(1) of the IRPA provides:
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11. (1) A
foreign national must, before entering Canada, apply to an officer for a visa
or for any other document required by the regulations. The visa or document
may be issued if, following an examination, the officer is satisfied that the
foreign national is not inadmissible and meets the requirements of this Act.
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11. (1) L’étranger
doit, préalablement à son entrée au Canada, demander à l’agent les visa et
autres documents requis par règlement. L’agent peut les délivrer sur preuve,
à la suite d’un contrôle, que l’étranger n’est pas interdit de territoire et
se conforme à la présente loi.
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[23]
It is the Minister of Citizenship and Immigration who is
accountable, legally, for the decision to grant a visa. To conclude that he
was bound by the HRSDC opinion would be either an impermissible delegation of
the Minister’s statutory obligations under the IRPA or a fettering of the
Minister’s discretion. To conclude, it is the Minister of Citizenship and
Immigration who makes the decision, not the Minister of HRSDC. HRSDC rather,
offers an opinion.
Procedural Fairness
[24]
The
applicant submits that the Officer’s refusal to conduct a substituted
evaluation violated her right to procedural fairness. The applicant argues
that she should have been given the opportunity to prove her ability to become
established in Canada based on her age, relatives in Canada and her and her
husband’s combined net worth.
[25]
The
applicant was already awarded points for her age and relatives in Canada. With regard to her claimed net worth of $600,000, the Officer gave brief reasons
for deciding that a substituted evaluation was not warranted.
[26]
The
applicant is obligated to provide the best evidence demonstrating her ability
to become economically established in Canada. There
was no unfairness in the Officer’s assessment of the evidence as presented,
without inviting further submissions, the decision, regardless of its
conclusionary nature, was reasonable. The adequacy of the reasons needs to be
assessed in light of the information in front of the Officer, which in this
case was simply a bold statement that she had a net worth of $600,000. The
reasoning was commensurate with the scant and superficial nature of the
evidence before her in support of the request for a substituted evaluation.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed. There is no question for certification.
"Donald J.
Rennie"
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