Date: 20101125
Docket: IMM-604-10
Citation: 2010 FC 1182
Ottawa, Ontario, November 25,
2010
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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MIRA MINA
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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
I. Introduction
[1]
It
is trite law that procedural fairness varies from one type of a decision to
another:
The
concept of procedural fairness is eminently variable and its content is to be
decided in the specific context of each case…
(Knight v. Indian Head School Division
No. 19, [1990] 1 S.C.R. 653 at 682).
[2]
That
does not mean that procedural fairness is arbitrary. Procedural fairness must
be examined in light of the situation, the circumstances and the context in
which it is scrutinized, to ensure that neither the means nor the ends are
sacrificed, thus, to ensure the picture as a whole is seen in its entirety. The
forest must not be lost for a tree.
II. Judicial Procedure
[3]
This
matter is in respect of an application in regard to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), for leave to seek
judicial review of a decision by a Visa Officer, dated November 11, 2009,
wherein the Applicant’s permanent resident application, based on her skill as
an architect, was denied.
III. Background
[4]
The
Applicant, Ms. Mira Mina, is an Egyptian national who applied for permanent
residence as a member of the federal skilled worker class. A Visa Officer considered
her application but rejected it. Subsequent to subsection 76(3) if the Immigration
and Refugee Protection Regulations, SOR/2002-227 (IRPR), the Officer also
considered whether to exercise discretion to undertake a substituted decision.
This option, however, was rejected as the points awarded to the Applicant
appeared to accurately reflect her chances of economic settlement in Canada. The Officer
also provided reasons for rejecting the application in the Computer Assisted
Immigration Processing System (CAIPS) (Applicant’s Application Record (AR),
Refusal letter at pp. 6-7; CAIPS Notes at pp. 8-9).
IV. Issue
[5]
Has
the Applicant raised an arguable case?
V. Analysis
[6]
In
an application for leave and for judicial review, a serious, arguable case with
serious issues must be submitted; for the reasons noted below, the Applicant
has not raised an arguable case. Leave, therefore, the application, should be
dismissed (Krishnapillai v. Canada, [2002] 3 F.C. 74, 2001 FCA 378 at
paras. 10-11 (C.A.); Dzah v. Canada (Minister of Citizenship and
Immigration) (1995), 92 F.T.R. 309, 54 A.C.W.S. (3d) 326).
[7]
Although
the Applicant argues that the Officer should have considered a substituted
evaluation under subsection 76(3) of the IRPR in light of missing the minimum
point total by two points, it is evident from the CAIPS Notes and refusal
letter, that the Officer did just that. The argument, as such, is not serious:
Subsection 76(3) of the IRPA Regulations
permit an officer to substitute their evaluation of the likelihood to become
economically established in Canada if the number of points awarded are not a
sufficient indicator of whether the skilled worker may become economically
established in Canada. Subsection 76(4) states that
such an evaluation requires the concurrence of a second officer. I have
considered your case under this section. I have determined that the points that
you have been awarded are an accurate reflection of the likelihood of your
ability to become economically established in Canada. As a result, I did not forward your
application to the program manager for consideration.
(AR, Refusal letter at p. 7).
R76(3) CONSIDERED. POINTS APPEAR TO
ACCURATELY REFLECT CHANCES FOR ECONOMIC SETTLEMENT.
(AR, CAIPS Notes at p. 9).
[8]
The
Applicant argues that the Officer should have, when considering a substituted
evaluation, considered her credentials, professional experience, financial
establishment and her husband’s credentials. The CAIPS Notes (at pp. 8-9) show
that the Officer did do so; therefore, the Court is in complete agreement with
the position of the Respondent.
[9]
To
be clear, while remarks on all these factors were made at least once in the
CAIPS Notes, none were reiterated a second time for the purposes of the
Officer’s substituted evaluation consideration. No duty to undertake such a
repetitious task, however, exists. Certainly, the Applicant points to no
caselaw suggesting otherwise. Indeed caselaw would appear to point in the
opposite direction, especially where no evidence exists that the Applicant actually
requested a substituted evaluation: “… The officer was not required to address
each factor separately…”
(Requidan v. Canada (Minister of
Citizenship and Immigration), 2009 FC 237, [2009] F.C.J. No. 280 (QL)
at para. 28).
[10]
The
Applicant argues that the Officer ignored her settlement funds when considering
a substituted evaluation. This argument is not serious. No evidence suggests
that the Officer ignored this factor.
[11]
The
Officer did write about the Applicant’s settlement funds in the CAIPS Notes:
LICO: 6587KWD = CAD 25443
LICO MET
(AR, CAIPS Notes at p. 9).
[12]
It
bears noting, furthermore, that the Applicant’s settlement funds were not
significant – the $26,000 she claimed to have in fungible funds was merely a
few hundred dollars over the low-income-cut-off (LICO) calculated for her. In
addition to the caselaw cited above, no duty exists for a Visa Officer to
expressly review each relevant factor, administrative law principle posists
that only significant factors affecting a decision need require comment. It is
clear that meeting the LICO cannot, ipso facto, be considered a factor
relatively more significant than any other factor which a visa applicant
encounters (Cepeda-Gutierrez v. Canada (Minister of Citizenship and
Immigration) (1998), 157 F.T.R. 35, 83 A.C.W.S. (3d) 264 at paras. 15-17).
[13]
Indeed,
if the Officer in the within case was required to comment on the Applicant’s
settlement funds, then such a duty would effectively be imposed on officers
every time someone met the LICO. This is clearly not the situation as it stands
as to what Parliament intended (Dunsmuir v. New Brunswick, [2008] 1
S.C.R. 190, 2008 SCC 9 at para. 47).
[14]
The
Applicant argues that the Officer failed to properly exercise her discretion
under subsection 76(3) of the IRPR. No grounds, in this regard, are advanced;
nor are any facts referenced in support of this argument. As such, therefore,
the argument is not considered serious.
[15]
The
Applicant complains that the Officer used a boiler plate refusal passage when
writing about her refusal to substitute her decision under subsection 76(3) of
the IRPR, stating that it is inadequate. This argument is not serious, however,
for three reasons.
[16]
First,
describing a set of reasons as of a ‘boiler plate’ variety required
consideration which this Court gives. The purpose of written reasons is to
provide substantive proof that an applicant’s application or request was
considered; therefore, it is essential to evaluate the substance of the
reasons, not simply how they have been categorized. No serious issue,
therefore, arises from such a categorization without substantiation.
[17]
Second,
if formatted decisions were inadequate per se, then, decisions, on the
basis of checkmarks would be invalid. This is not the case.
[18]
Third,
no legal requirement exists under the existing circumstances for the Officer to
have written a lengthier or more in-depth written passage for the purposes of a
substituted evaluation. Indeed, an officer need only acknowledge consideration
of a substituted evaluation:
[7] …
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. (Emphasis added).
(Poblado v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1167, 142 A.C.W.S. (3d) 146).
[19]
This
was done; thus, no serious issue exists. (AR, Refusal letter at p. 7; CAIPS
Notes at p. 9).
[20]
The
Applicant points to Adu v. Canada (Minister of Citizenship and Immigration),
2005 FC 565, 139 A.C.W.S. (3d) 164, to suggest that more fulsome reasons were
required in respect of the officer’s refusal to exercise positive discretion
under subsection 76(3) of the IRPR. This matter, however, is in regard to a
humanitarian and compassionate (H&C) decision. It is trite law that
procedural fairness varies from one type of decision to another:
The
concept of procedural fairness is eminently variable and its content is to be
decided in the specific context of each case…
(Knight, above).
[21]
The
Applicant points to Ogunfowora v. Canada (Minister of
Citizenship and Immigration), 2007 FC 471, 157 A.C.W.S. (3d) 628,
however, it is not relevant to this matter as it is in respect of a decision as
to a visitor’s visa (TRV).
[22]
That
both H&C and TRV decisions are different from a decision on a substituted
evaluation, is clear from the fact that the first two decisions determine a
main application, whereas a substituted evaluation is made after a main
application has been rejected and then, only, in “clearly exceptional”
circumstances (Fernandes v. Canada (Minister of Citizenship and Immigration),
2008 FC 243, 165 A.C.W.S. (3d) 340 at para. 7; Requidan, above, at para.
29).
[23]
The
substituted evaluation is, therefore, more of a discretionary nature and
subject to a standard of fairness which is different from standards applicable
to H&C and TRV decisions. Although the CAIPS Notes, in an of themselves,
were sparse, they were acceptable:
[10] … I agree with the respondent that the reasons in the
officer’s CAIPS notes, though spare, meet the benchmark established in the
jurisprudence: they are “sufficiently clear, precise and intelligible so that a
claimant may know why his or her claim has failed and be able to decide whether
to seek leave for judicial review” (Mendoza v. Minister of Citizenship and
Immigration, 2004 FC 687, at paragraph 4).
(Odutola v. Canada (Minister of
Citizenship and Immigration), 2008 FC 1352, 337 F.T.R. 276).
VI. Conclusion
[24]
The
Applicant has not raised any serious issues. No arguable case has been
demonstrated; therefore, the application for judicial review is dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application for judicial review be dismissed;
2.
No
serious question of general importance be certified.
“Michel M.J. Shore”
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