Date: 20100226
Docket: IMM-2190-09
Citation: 2010 FC 225
Ottawa, Ontario, February 26,
2010
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
RAJITH NIROSHAN WICKRAMASEKERA
DILKA ROSHANI DE LIVERA KARUNARATNE
HERANTHA SHAMAL WICKRAMASEKERA
ANISHKA
MANEETH WICKRAMASEKERA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of the decision (the decision), dated
March 2, 2009, of an Immigration Officer to refuse the Applicant’s application
for Immigrant Visas to Canada under the Federal Skilled Worker category of
migrants.
[2]
For
the reasons set out below, this application is dismissed.
I. Background
[3]
The
principal Applicant is a 38 year-old citizen of Sri Lanka. He is
married to Dilka Roshani De Livera Karunaratne, the co-Applicant in this
judicial review. In April 2007, the Applicant and his family applied for
Immigrant Visas to Canada under the Federal Skilled Worker (FSW) category.
This category works on a point system and points are allotted based on criteria
such as age, education, language skills, and work experience. Normally an
applicant must score 67 points to be eligible for a Visa. The Applicant scored
60 points.
[4]
The
Applicant applied for a “substituted evaluation” of his application under subsection 76(3)
of the Immigration and Refugee Protection Regulations, SOR/2002-227. The
Applicant cited his good educational qualifications, international exposure and
good financial circumstances as the basis for the substituted evaluation. The
Immigration Officer denied the Applicant’s request for substituted evaluation
and denied the Applicant’s application as a whole.
[5]
In
a letter to the Applicant, the Immigration Officer stated the following with
regard to denying the Applicant’s request for substituted evaluation:
I’ve also noted your request
for positive substituted evaluation in this case. After a careful review of the
file, I’m satisfied that the points awarded are an accurate reflection of your
ability to settle in Canada and as such that substituted evaluation
in this case is not warranted.
[6]
The
Immigration Officer’s notes, which can also be considered part of the reasons
(see Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817; [1999] S.C.J. No. 39), state:
As fully reviewed the file,
I’m satisfied that the pnts awarded in this case are an accurate reflection of
the PI’s ability to settle in Canada. I am satisfied that SOE is
not warranted in this case.
II. Legislative
Framework
[7]
The
FSW category is governed by sections 75-85 of the Immigration and Refugee
Protection Regulations. The primary method for determining whether an
applicant qualifies to be a member of this category is set out in subsection
76(1)(a) of the Regulations. Subsection 76(3) provides the Immigration
Officer with the discretion to substitute criteria in the evaluation if the
number of points awarded is not a sufficient indicator of whether the skilled
worker may become economically established in Canada. The
relevant provision is set out thus:
|
Selection
criteria
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).
Number
of points
(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.
Circumstances
for officer's substituted evaluation
(3)
Whether or not the skilled worker has been awarded the minimum number of
required points referred to in subsection (2), an officer may substitute for
the criteria set out in paragraph (1)(a) 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.
|
Critères
de sélection
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).
Nombre
de points
(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.
Substitution
de l’appréciation de l’agent à la grille
(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 à l’alinéa (1)a).
|
[8]
It
should be noted that the discretion under subsection 76(3) is clearly
exceptional and applies only in cases where the points awarded are not a
sufficient indicator of whether the skilled worker will become economically
established in Canada (see Esguerra v. Canada (Minister of Citizenship and
Immigration), 2008 FC 413; [2008] F.C.J. No. 549).
III. Standard
of Review
[9]
The
standard of review of a discretionary decision of a visa officer for
substituted evaluation is reasonableness (see Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190; Canada (Minister of Citizenship and
Immigration) v. Khosa, 2009 SCC 12; [2009] 1 S.C.R. 339, Poblano v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1167; [2005] F.C.J. No. 1424). Issues
related to the duty of fairness are evaluated on a correctness standard.
IV. Issue
[10]
The
Applicant raises the following issue: did the Immigration Officer err by
failing to provide reasons for the decision to deny the Applicant’s request for
substituted evaluation?
[11]
The
Applicant argues that the Immigration Officer breached the duty of fairness
owed to the Applicant as she or he failed to provide the Applicant with
coherent and understandable reasons as to why his request for substituted
evaluation was denied.
[12]
The
Respondent argues that the Officer’s reasons with respect to the substituted
evaluation were adequate.
[13]
The
provision of reasons performs two main functions. First, they help ensure that
the decision-maker has focused on the factors that must be considered in the
decision making process. Second, they enable parties to exercise their right to
judicial review and for the court to conduct a meaningful review of the
decision (see Ragupathy v. Canada (Minister of
Citizenship and Immigration), 2006 FCA 151; [2007] 1 F.C.R. 490).
[14]
The
fact that the reasons may be short is not an error in itself. In Almasy v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 701; [2001] F.C.J. No. 1041,
Justice Frederick Gibson considered the provision of very short reasons in a
refugee claim. Justice Gibson held that this is not, in itself, a fault. He
stated that brief reasons are to be encouraged where those reasons reflect a
clear grasp of the evidence and an adequate analysis of the evidence against
the relevant statutory, regulatory and jurisprudential law (see paragraph 9).
[15]
In
Poblano, above, Justice Konrad von Finckenstein considered the issue of
an Immigration Officer refusing to exercise their discretion for a substituted
evaluation of the applicant’s claim. In Poblano, above, the applicant
submitted that the Officer did not provide any reasons for her decision in the
refusal letter. Justice von Finckenstein held that there was no reason for the
Court to set the decision aside. At paragraphs 6 and 7 he stated:
6 The affidavit of
the officer (on which she was not cross examined) and the CAIPS notes clearly
indicate that the officer considered the letter.
7 As for written reasons, while they
are always desirable, there is no requirement for them. See Behnam v. Canada (Minister of Citizenship and Immigration),
[2003] F.C.J. No. 798 at paragraph 6: The officer merely has to inform the
applicant that she considered the request for substitution of evaluation. That
was done in this case.
[16]
In
this case, the reasons set out that the Officer considered the Applicant’s
request for a substituted evaluation. The Officer then stated that basis for
denying the request: that she or he was not satisfied that substituted
evaluation was warranted as the points awarded were an accurate reflection of
the Applicant’s ability to settle in Canada. While short, these
reasons fulfill the two main functions as set out in Ragupathy, above. There
is no basis for this Court to intervene.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
this
application for judicial review is dismissed; and
2.
there
is no award for costs.
“ D.
G. Near ”
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