Date: 20100910
Docket: IMM-5998-09
Citation: 2010 FC 904
Ottawa, Ontario, September 10,
2010
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
KALLYAN
KISHORE DEBNATH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
Dr.
Debnath seeks judicial review of the November 9, 2009 decision of the Visa
Officer in Malaysia in which his
application for permanent residence was refused. He had applied under the
category of skilled class being a medical doctor.
II. BACKGROUND
[2]
The
Applicant, although a citizen of Bangladesh, is currently
practising medicine at a large government hospital in Malaysia.
[3]
The
Applicant’s first permanent residence application decision was quashed on
consent because of an admitted denial of procedural fairness.
[4]
This
is one of the rare cases where a visa officer exercised discretion to evaluate
the likelihood of an applicant to become economically established in Canada,
despite the number of points earned in the usual evaluation process. In this
case, the Applicant secured 68 points where 67 points were the minimum
required.
[5]
The
discretion to evaluate, despite the points earned, is provided in section 76 of
the Immigration and Refugee Protection Regulations (Regulations), in
particular subsections (2), (3) and (4):
|
(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
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.
(4) An evaluation made
under subsection (3) requires the concurrence of a second officer.
|
(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 à l’alinéa (1)a).
(4) Toute décision de
l’agent au titre du paragraphe (3) doit être confirmée par un autre agent.
|
[6]
At
the interview, the Visa Officer advised the Applicant of his concerns about the
potential for recognition of his medical qualifications in Canada and
therefore whether he was likely to become economically established.
Subsequently, the Applicant submitted various documents related to his medical
qualifications, courses and workshops attended, and newspaper articles and
letters to editors which he had written. In summary, the Applicant was of the
view that he could become qualified in Canada within six
to twelve months of arrival.
[7]
The
gravamen of the Visa Officer’s decision was that he was not satisfied that the
Applicant’s qualifications and experience placed him in a position to readily
obtain certification to practise medicine or become competitive as a physician
in Canada.
III. ANALYSIS
[8]
The
standard of review for this type of decision is well settled since Dunsmuir
v. New
Brunswick,
2008 SCC 9. The Applicant’s analysis of patent unreasonableness and
reasonableness simpliciter is not particularly useful. The decision is
significantly fact driven in a field in which visa officers have experience, if
not expertise. The standard of review, therefore, is reasonableness, and a high
degree of deference to the factual findings of a visa officer is owed.
[9]
The
Applicant raised an issue of actual bias in that he was of the view that the
interview conducted was a sham and that the Visa Officer was in league with
other officers to deny him his application. The standard of review for this
kind of allegation is correctness.
[10]
However,
there is no factual basis for the allegation of bias, the only materials
submitted were an affidavit by the Applicant expressing his “feelings” and the
matter need not be considered further.
[11]
There
are two more substantive issues raised. The first is whether the decision to
substitute the Visa Officer’s evaluation for that of the point system is reasonable
and secondly, whether the ultimate decision itself is reasonable.
[12]
The
Applicant has argued that the Visa Officer failed to consider the Applicant’s
settlement funds in assessing his ability to become economically established in
Canada.
[13]
This
argument must be dismissed on two grounds. Firstly, the Visa Officer was aware
of those funds and secondly, and perhaps more importantly, the matter of settlement
funds was irrelevant to the Visa Officer’s decision.
[14]
The
settlement funds were irrelevant for two reasons. Firstly, the decision did not
turn on the Applicant’s ability to establish himself financially based on funds
available but on whether the medical qualifications to practise would be
accepted. Secondly, settlement funds are no longer relevant to a consideration
of whether to exercise a discretion to make a substitute evaluation.
[15]
As
held by Justice Zinn in Xu v. Canada (Minister of Citizenship and
Immigration), 2010 FC 418, section 76 of the Regulations was amended to
provide that when an officer makes a substitute evaluation of a likelihood to
become economically established, the officer does so in lieu of the usual
criteria of points earned and available settlement funds. Therefore, the
Applicant’s settlement funds are irrelevant if the exercise of discretion to
substitute is sustainable.
[16]
In
that regard, the Visa Officer’s decision to perform a substituted evaluation
was reasonable. The Applicant’s points were on the cusp of acceptability and
the Applicant’s plans to become economically established were “cloudy” at best.
[17]
The
Visa Officer’s ultimate decision to deny the visa was likewise reasonable. The
Applicant had failed to establish on an objective basis how he would upgrade
and qualify as a doctor in Canada; his only evidence on this point was an
indication that such an upgrade of the qualification was possible, and his own
subjective evaluation that he was likely to succeed. In essence, this case
turned on the sufficiency of the evidence, and the Applicant failed to put
forward sufficient evidence to convince the Visa Officer that he was likely to
become economically established.
[18]
Considering
the record as a whole, the Visa Officer’s decision was reasonable as it fell
within a range of acceptable outcomes on the evidence presented.
IV. CONCLUSION
[19]
Therefore,
this judicial review will be dismissed. There is no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is dismissed.
“Michael
L. Phelan”
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