Date:
20100416
Docket: IMM-4911-09
Citation: 2010 FC 418
Vancouver, British Columbia, April 16, 2010
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
LILY
SIAO XU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicant did not have the requisite points for admission as a member of the
federal skilled worker class. She asked the officer to exercise her discretion
to make a substituted evaluation pursuant to section 76(3) of the Regulations
to the Immigration and Refugee Protection Act, R.S.C. 2001, c. 27. The
applicant is seeking to set aside the officer’s decision not to make a
substituted evaluation.
[2]
For
the reasons that follow this application is dismissed.
I. Background
[3]
Lily
Siao Xu is a citizen of the Philippines. She is married and
has two children. In January 2004 she applied for a permanent
resident visa as a member of the federal skilled worker class. In her
application, Ms. Xu assessed her point score as 67 and she also requested
substituted evaluation in the event the officer determined that she did not
have the requisite points necessary for the federal skilled worker class.
[4]
In
January 2008, Ms. Xu provided the officer with further information and the
officer conducted an assessment of the application. The officer determined
that the applicant possessed 65 points, two less than the minimum
required. No issue is taken in this application with the officer’s calculation
of the applicant’s points.
[5]
In
the decision letter, the officer does not address the issue of the substituted
evaluation request that the applicant had made in her application. However, in
the CAIPS notes the officer did consider this request. The officer wrote:
I HAVE CONSIDERED SUBSTITUTION
OF EVALUATION BUT I AM SATISFIED THAT THE PTS AWARDED ARE SUFFICIENT INDICATORS
TO REFLECT THE CAPACITY OF THE SUBJ TO BECOME SUCCESSFULLY ESTABLISHED IN
CDA. SUBJ DOES NOT QUALIFY UNDER IRPA. THE APPLICATION IS REFUSED.
[sic]
II. Issues
a. The applicant raises two
issues with respect to the officer’s consideration of her substituted
evaluation request:
1.
Whether
the officer committed an error in law by failing to provide adequate reasons
for her analysis pursuant to section 76(3) of the Regulations.
2.
In
the alternative, whether the officer committed an error in law by carrying out
a deficient analysis pursuant to section 76(3) of the Regulations by failing to
render a decision that is justified, transparent and intelligible.
1. Were the
reasons adequate?
[6]
The
applicant submits that in the context of her application, the bald statement
that the officer had considered but rejected substituted evaluation, does not
satisfy the duty to give reasons. She submits that the contrary decision in Poblado
v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1167 should not be followed
because it was decided on the standard of patent unreasonableness, which no
longer exists. The applicant further submits that the contrary decision in Budhooram
v. Canada (Minister of
Citizenship and Immigration), 2009 FC 18 is distinguishable, and that
even though the decision in this case may be within the range of possible and
acceptable outcomes, it is insufficiently transparent and therefore
unreasonable.
[7]
The
respondent cites Poblado at para. 7 and Budhooram at para. 32 for
the proposition that there is no duty to give reasons when an officer
refuses to exercise the discretion described in section 76(3) of the
Regulations. The respondent submits that the reasons the officer proffered
satisfied any duty to give reasons that may exist.
[8]
Whether
the officer provided adequate reasons is a question of procedural fairness and
therefore reviewable on the correctness standard.
[9]
This Court has held that “[t]here is no requirement
under the regulations, guidelines or jurisprudence that visa officers give
reasons for the refusal to exercise discretion” granted them under section
76(3) of the Regulations: Budhooram at para. 31. The same proposition
was put by Justice von Finckenstein in Poblado at para. 7:
As for written reasons, while they are
always desirable, there is no requirement for them. The officer merely has to
inform the applicant that she considered the request for substitution of
evaluation (citations omitted).
This
proposition can be traced back to Channa v. Canada
(Minister of Citizenship and Immigration) (1996), 124
F.T.R. 290 (T.D.) wherein Justice Simpson held:
In circumstances
where the statute only requires reasons when discretion is used, I am not
prepared to conclude that reasons are also required when that discretion is not
exercised. If that result had been intended, it would have been expressed in
the statute.
[10]
The applicant argues that Poblado should
not be followed because it was based on the patent unreasonableness standard.
While it is correct that that the Supreme Court in Dunsmuir v.
New Brunswick, 2008 SCC 9 collapsed the standards
of patent unreasonableness and reasonableness simpliciter into a single
reasonableness standard, this significant change in the approach to standard of
review analysis does not bring into question every decision that was rendered
according to the patent unreasonableness standard. Prudence might suggest that
such decisions be approached with caution, but they do not become bad law
because of Dunsmuir. In Poblado the patent unreasonableness
standard had no relevance to Justice von Finckenstein’s reasoning
regarding the duty to give reasons. This reasoning was based on the decision
in Channa and its
interpretation of the requirements in the Act at that time.
[11]
The applicant further submits that Budhooram should
not be followed because it is distinguishable from the facts of this case.
Specifically, she points to paragraph 18 of the Reasons in Budhooram and
submits that the officer there explained to the applicant his concerns,
something not done in this case. That paragraph reads as follows:
The Officer informed the applicant about
certain concerns he had, such as the fact that the applicant’s mother continued
to support him financially. The information and explanations provided by
the applicant did not satisfy the Officer that he had or would be able to
become economically established in Canada. As a result, the Officer did not
substitute his evaluation pursuant to subsection 76(3) of the Regulations.
[12]
First, it is not clear to me that the fact that
the officer had a discussion with the applicant is so significant to the
decision reached that Budhooram is distinguishable. Second, on my read
of the decision and, in particular paragraph 31 thereof, the officer’s
decision, like that here, was reflected in the CAIPS notes. The officer
indicated he was not satisfied that the points were an inaccurate reflection of
the applicant’s ability to become established in Canada.
This was not reflected in the previous discussion, even if it could be said
that the discussion formed a part of the reasons.
[13]
In this case, whether there is a duty to give
reasons or not, reasons were provided. I prefer, therefore to analyze the
adequacy of those reasons assuming that there was a duty to give them.
[14]
The applicant submits that in assessing whether the officer
met her duty to provide reasons the Court is restricted to an examination of
the letter sent to the applicant and cannot also examine the “reasons” set out
in the CAIPS notes. I disagree. This Court has found in a myriad of
circumstances in immigration matters that the information in the CIAIPS notes written
prior to the decision constitutes the reasons as well as anything directly
provided to the individual. In Baker
v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817
the Supreme Court of Canada held that notes form part of the reasons. At para.
44 the Court stated:
In my view,
however, the reasons requirement was fulfilled in this case since the appellant
was provided with the notes of Officer Lorenz. The notes were given to Ms.
Baker when her counsel asked for reasons. Because of this, and because there is
no other record of the reasons for making the decision, the notes of the
subordinate reviewing officer should be taken, by inference, to be the reasons
for decision. Accepting documents such as these notes as sufficient reasons is
part of the flexibility that is necessary, as emphasized by Macdonald and
Lametti, supra, when courts evaluate the requirements of the duty of fairness
with recognition of the day-to-day realities of administrative agencies and the
many ways in which the values underlying the principles of procedural fairness
can be assured. It upholds the principle that individuals are entitled to
fair procedures and open decision-making, but recognizes that in the
administrative context, this transparency may take place in various ways.
I conclude that the notes of Officer Lorenz satisfy the requirement for reasons
under the duty of procedural fairness in this case, and they will be taken to
be the reasons for decision.
[15]
While a better practice may be to include that
detail in the formal correspondence, it does not follow that there were no
reasons simply because they were not repeated in the decision letter sent to
the applicant.
2. Was the
decision justified,
transparent and intelligible?
[16]
The
applicant cites Dunsmuir at para. 47 for the proposition that the
officer’s exercise of discretion must be justified, transparent and
intelligible. The applicant relies on Lackhee v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1270 and Espinosa v. Canada
(Minister of Citizenship and Immigration), 2009 FC 609 for the proposition
that in this type of application an officer must consider all the relevant
factors put forward by an applicant, including the availability of settlement
funds. The applicant submits that the officer failed to consider five factors:
1.
The
applicant was only 2 points short of the passing mark of 67;
2.
Had
the applicant scored only slightly higher on any of the abilities tested on the
language exam, she would have gained an extra two points;
3.
The
applicant’s brother resides in Canada, is a permanent resident, and could assist
her in getting established;
4.
The
applicant’s husband has significant business experience as a manager; and
5.
The
applicant had a net worth well above the minimum amount required.
Only the last of these factors was
strenuously advanced during oral submissions.
[17]
At
the time of the applicant’s application, Parliament had determined that 67
points were required for a foreign national to be considered a skilled worker;
this is the bare minimum standard. Accordingly, a score below the bare minimum,
without more, is evidence that the applicant would not become economically
established if admitted to Canada.
[18]
In
my view, it is irrelevant whether the applicant was just below the bare minimum
or very much below the bare minimum – she did not have the requisite points to
meet the definition of skilled worker. It is no doubt true that an officer may
be more prepared to find that the points are not a sufficient indicator of the
ability to become economically established in Canada, and thus exercise his substituted
evaluation discretion, if an applicant is just below the bare minimum, and presents
another reason why the score is not indicative of their ability to become
economically established; but the fact that the applicant was only two points
short of the passing mark alone does not impugn the officer’s conclusion that
her point score was indicative of her ability to become economically
established in Canada.
[19]
The
applicant’s submissions regarding the language test scores that she could have
obtained are without merit. The fact is that the applicant obtained the score
that she did. The officer need not have considered the points that the
applicant could or might have obtained if she had performed at a higher level –
she did not.
[20]
The
officer did consider the fact that the applicant’s brother resided in Canada and had
permanent residence. The officer awarded the applicant an additional 5 points,
where she had self-assessed at zero, under the heading of “adaptability”.
[21]
The
officer provided the applicant with an opportunity to arrange an offer of
employment. Yet, despite her skill set and the possibility of assistance from
her brother, she was unable to obtain any offer of employment. Having awarded
the applicant an additional five points for adaptability, the officer did not
need to consider the applicant’s brother again when exercising her discretion
under section 76(3).
[22]
Without
a specific explanation from the applicant as to how her spouse would help her
become economically established – and none was provided to the officer – I fail
to see why the officer was obligated to consider this factor when determining
whether the applicant was likely to become economically established
notwithstanding her inability to meet the bare minimum point requirement.
[23]
The
final factor that the applicant submits was overlooked was the amount of her settlement
funds.
[24]
The
applicant’s available funds were substantially higher than the bare minimum
required. The applicant submits that the officer did not refer to these funds
when concluding that the applicant’s point score was indicative of her ability
to become economically established. In fact, as she points out, there is no
reference to the amount of her settlement funds at all in the CAIPS notes.
[25]
The
record reveals that when the applicant first applied in 2004, she disclosed
settlement funds of $153,207.00. Two years later, in her updated application,
she disclosed her settlement funds of $135,469.08. Regardless of the reduction,
the amount was substantially above the minimum required by the Minister.
[26]
The
applicant submits that it is required than an officer consider the applicant’s
settlement funds when considering whether to exercise his or her discretion
under section 76(3). She cites and relies on the following decisions of this Court:
Hernandez v. Canada (Minister of Citizenship and Immigration), 2004 FC
1398; Choi v. Canada (Minister of Citizenship and Immigration), 2008 FC
577; Lackhee
v. Canada (Minister of Citizenship and Immigration), 2008 FC 1270; Espinosa
v. Canada (Minister of Citizenship and Immigration), 2009 FC 609; and Roberts
v. Canada (Minister of Citizenship and Immigration), 2009 FC 518.
[27]
In
Hernandez, Justice Heneghan held that section 76(3), as it then read,
required consideration of settlement funds when deciding whether to make a
substituted evaluation of a persons’ ability to become economically
established in Canada. It is significant, in my opinion, that
section 76 then read as follows:
|
76.
(1) For the purpose of determining whether a skilled worker, as a member of
the federal skilled worker class, will be able to become economically
established in Canada, they must be assessed on the basis of the following
criteria:
(a)
the skilled worker must be awarded not less than the minimum number of
required points referred to in subsection (2) on the basis of the following
factors, namely,
(i)
education, in accordance with section 78,
(ii)
proficiency in the official languages of Canada, in accordance with section 79,
(iii)
experience, in accordance with section 80,
(iv)
age, in accordance with section 81,
(v)
arranged employment, in accordance with section 82, and
(vi)
adaptability, in accordance with section 83; and
(b)
the skilled worker must
(i)
have in the form of transferable and available funds, unencumbered by debts
or other obligations, an amount equal to half the minimum necessary income
applicable in respect of the group of persons consisting of the skilled
worker and their family members, or
(ii)
be awarded the number of points referred to in subsection 82(2) for arranged
employment in Canada within the meaning of
subsection 82(1).
(2)
The Minister shall fix and make available to the public the minimum number of
points required of a skilled worker, on the basis of
(a)
the number of applications by skilled workers as members of the federal
skilled worker class currently being processed;
(b)
the number of skilled workers projected to become permanent residents
according to the report to Parliament referred to in section 94 of the Act;
and
(c)
the potential, taking into account economic and other relevant factors, for
the establishment of skilled workers in Canada.
(3)
Whether or not the skilled worker has been awarded the minimum number of
required points, an officer may substitute for the criteria set out in
subsection (1) their evaluation of the likelihood of the ability of the
skilled worker to become economically established in Canada if the number of
points awarded is not a sufficient indicator of whether the skilled worker
may become economically established in Canada.
(4)
An evaluation made under subsection (3) requires the concurrence of a second
officer.
|
76. (1) Les critères ci-après indiquent que le travailleur
qualifié peut réussir son établissement économique au Canada à titre de
membre de la catégorie des travailleurs qualifiés (fédéral):
a) le travailleur qualifié accumule le nombre minimum de points
visé au paragraphe (2), au titre des facteurs suivants :
(i) les études, aux termes de l'article 78,
(ii) la compétence dans les langues officielles du Canada, aux
termes de l'article 79,
(iii) l'expérience, aux termes de l'article 80,
(iv) l'âge, aux termes de l'article 81,
(v) l'exercice d'un emploi réservé, aux termes de l'article 82,
(vi) la capacité d'adaptation, aux termes de l'article 83;
b) le travailleur qualifié :
(i) soit dispose, pour une période d'un an à compter de son
entrée au Canada, de fonds transférables - non grevés de dettes ou d'autres
obligations financières - d'un montant égal à la moitié du revenu vital minimum
qui lui permettrait de subvenir à ses propres besoins et à ceux des membres
de sa famille,
(ii) soit s'est vu attribuer le nombre de points prévu au
paragraphe 82(2) pour un emploi réservé au Canada au sens du paragraphe
82(1).
(2) Le ministre établit le nombre minimum de points que doit
obtenir le travailleur qualifié en se fondant sur les éléments ci-après et en
informe le public :
a) le nombre de demandes, au titre de la catégorie des
travailleurs qualifiés (fédéral), déjà en cours de traitement;
b) le nombre de travailleurs qualifiés qui devraient devenir
résidents permanents selon le rapport présenté au Parlement conformément à
l'article 94 de la Loi;
c) les perspectives d'établissement des travailleurs qualifiés
au Canada, compte tenu des facteurs économiques et autres facteurs
pertinents.
(3) Si le nombre de points obtenu par un travailleur qualifié -
que celui-ci obtienne ou non le nombre minimum de points visé au paragraphe
(2) - ne reflète pas l'aptitude de ce travailleur qualifié à réussir son
établissement économique au Canada, l'agent peut substituer son appréciation
aux critères prévus au paragraphe (1).
(4) Toute décision de l'agent au titre du paragraphe (3) doit
être confirmée par un autre agent.
|
[28]
Section
76(1), as it then read, made it clear that there were two parts to the
assessment as to whether a candidate would become economically established
in Canada: (a) points awarded for the six factors set out, and (b) the minimum
settlement funds held or employment that the candidate had arranged. Under
that version of the legislation, when the candidate did not have the necessary
point score, it provided that the “officer may substitute for the criteria set
out in subsection (1), their evaluation of the likelihood of the ability to become
economically established in Canada.” In short, the officer was substituting his or her evaluation
for all of the criteria set out above under both (a) and (b). Given that one such
factor was settlement funds, Justice Heneghan, correctly in my view, held that
the officer must consider the candidate’s settlement funds when determining
whether or not to substitute his opinion.
[29]
However,
the legislation was subsequently amended and it currently reads as follows:
|
76. (1) For the purpose of
determining whether a skilled worker, as a member of the federal skilled
worker class, will be able to become economically established in Canada, they
must be assessed on the basis of the following criteria:
(a) the skilled worker must be awarded
not less than the minimum number of required points referred to in subsection
(2) on the basis of the following factors, namely,
(i) education, in accordance with section 78,
(ii) proficiency in the official languages of Canada, in accordance
with section 79,
(iii) experience, in accordance with section
80,
(iv) age, in accordance with section 81,
(v) arranged employment, in accordance with
section 82, and
(vi) adaptability, in accordance with section
83; and
(b) the skilled worker must
(i) have in the form of transferable and
available funds, unencumbered by debts or other obligations, an amount equal
to half the minimum necessary income applicable in respect of the group of
persons consisting of the skilled worker and their family members, or
(ii) be awarded the number of points referred to in subsection
82(2) for arranged employment in Canada within the meaning of subsection 82(1).
|
76. (1) Les critères ci-après
indiquent que le travailleur qualifié peut réussir son établissement
économique au Canada à titre de membre de la catégorie des travailleurs
qualifiés (fédéral) :
a) le travailleur qualifié
accumule le nombre minimum de points visé au paragraphe (2), au titre des
facteurs suivants :
(i) les études, aux termes de l’article 78,
(ii) la compétence dans les langues
officielles du Canada, aux termes de l’article 79,
(iii) l’expérience, aux termes de l’article
80,
(iv) l’âge, aux termes de l’article 81,
(v) l’exercice d’un emploi réservé, aux termes
de l’article 82,
(vi) la capacité d’adaptation, aux termes de l’article
83;
b) le travailleur
qualifié :
(i) soit dispose de fonds transférables — non
grevés de dettes ou d’autres obligations financières — d’un montant égal à la
moitié du revenu vital minimum qui lui permettrait de subvenir à ses propres
besoins et à ceux des membres de sa famille,
(ii) soit s’est vu attribuer le nombre de points prévu au
paragraphe 82(2) pour un emploi réservé au Canada au sens du paragraphe
82(1).
|
[30]
What
is evident in the current section 76(3) is that the officer may only substitute
his or her opinion “for the criteria set out in subsection 1(a)” which are the
point factors, he or she cannot substitute his or her opinion for the factors
set out in subsection 1(b), the settlement funds or arranged employment.
[31]
Parliament
chose not only to make settlement funds or arranged employment a minimum
requirement but also removed those considerations from the list of criteria for
which an officer may substitute his or her opinion. It might reasonably be
suggested that it did so because it was of the view that settlement funds,
beyond a minimum level, are not indicative of the likelihood of economic
establishment. Section 76(1)(b) of the Regulations points to Parliament being concerned
with how skilled workers will meet their immediate economic needs upon arriving
in Canada. If they have arranged
employment they will have an income flow; but if they do not, then they need a
minimum amount of resources to act as a buffer until they find employment. Presumably,
these buffer resources are not included in the point calculation because
eventually they will run out without employment, and they say nothing of
whether a foreign national will find employment. In contrast, an arranged
offer of employment is strong evidence that a foreign national is sufficiently
skilled to compete in the Canadian job market for their specific skill,
which is why points are awarded for pre-arranged employment.
[32]
In
my opinion, for this Court to import the requirement that these funds must
be considered by an officer is to overstep the proper role of the Court. I
read section 76(3) of the Regulations as not requiring consideration of the
settlement funds available to the applicant; however, that is not to say
that an officer cannot consider the applicant’s settlement funds.
[33]
Justice
Kelen in Choi did not hold that the officer was required to consider
settlement funds; rather he held that “any consideration under subsection
76(3) should not be limited to the assessment of points, but rather should be
open to all factors identified in subsection 76(1).” In my view, the decisions
in Lackhee and Roberts stand on their own facts and are not
counter to that basic principle, nor do they stand for the bald proposition
that an officer must consider settlement funds in every case.
[34]
In Lackhee
Justice Pinard allowed the application for judicial review because he found
that the officer failed to take account of the updated information regarding
the applicant’s settlement funds. When the application was initially filed the
applicant had $25,000 in settlement funds; however, he updated that information
prior to the decision indicating that he had $90,000 in settlement funds. The
officer’s notes merely reflected the initial amount provided. Although the
officer filed a subsequent affidavit in which she claimed that she was aware of
this increased amount, Justice Pinard held that “it is not enough that she was
aware of this information; she had a duty to reflect this awareness in her
notes and/or reasons, in the interests of ‘justification, transparency and
intelligibility’.” Thus, the error was not in failing to consider the
settlement funds; it was in failing to reflect exactly what amount of
settlement funds had been considered by the officer.
[35]
The
applicant relies on Roberts for the proposition that the officer is
required to consider the extent of settlement funds. It must firstly be
noted that the officer in Roberts did consider the applicant’s
settlement funds (see para. 27) and thus any comments made by the learned Deputy
Judge that are relied on by the applicant are obiter. Moreover, to the
extent that Deputy Judge Teitelbaum, relying on Hernandez, holds
that an officer must consider all of the factors set out in section 76(1),
he is, with respect, in error. It must be noted that it was not put to him that
the statutory provision had been amended since Hernandez. As noted
earlier, Choi and Lackhee do not stand for the proposition
suggested in Roberts.
[36]
What
Lackhee and Roberts establish is that if an applicant puts
forward a case as to why his or her settlement funds render the point
calculation not indicative of the likelihood of economic establishment, then the
officer should be open to considering it.
[37]
In
this case, the applicant made no submissions as to why any of the factors she
now raises should have prompted the officer to substitute her opinion. All
that the applicant submitted was as follows:
If for some reason you find that she does
not receive sufficient points to qualify under the Selection System set out in
Section 76 of the Regulations, please evaluate her under Section 76(3) of the
Regulations and use your discretion with the concurrence of a second officer to
issue immigrant visas to her and her dependants.
[38]
In
the face of such a general submission, the officer’s decision that she was
satisfied that the points awarded were sufficient indicators to reflect
the capacity of the applicant to become economically established in Canada, in
my view, is
justified,
transparent and intelligible. Accordingly, this application is dismissed.
[39]
Neither
party proposed a question to be certified. In my view there is no certifiable
question on these facts.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1.
This
application is dismissed; and
2.
No
question is certified.
“Russel W. Zinn”
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