Date:
20120612
Docket:
IMM-6340-11
Citation:
2012 FC 704
Ottawa, Ontario,
this 12th day of June 2012
Present: The
Honourable Mr. Justice Pinard
BETWEEN:
NIHAL TISSA SENADHEERA
Applicant
and
THE MINISTER OF
CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review by Nihal Tissa Senadheera (the
“applicant”) of
the decision, dated June 24, 2011, of Designated Immigration Officer U.
Atukorala (the “officer”), pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”). The officer
refused the applicant’s application for a permanent resident visa as a skilled
worker pursuant to subsection 12(2) of the Act and section 76 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the “Regulations”).
[2]
The
applicant is a citizen of Sri Lanka. He holds a Bachelor of Science and a
Masters of Business Administration, and has owned and operated his own company,
Fidelity International (Private) Ltd. since 1996.
[3]
In
2008, the applicant obtained a positive Arranged Employment Opinion (“AEO”) for
the position of Business Development Manager with North American Tea &
Coffee Inc., in Delta, British Columbia. He submitted an application for
permanent residence in Canada under the Federal Skilled Worker Program in
December 2009. In the application, the applicant requested that the
decision-maker consider substituted evaluation under subsection 76(3) of the
Regulations if he did not obtain the minimum required points.
[4]
After
submitting all other required documentation in support of his application, the
applicant received a letter dated May 23, 2011 advising him that he did not
meet the requirements for a skilled worker visa pursuant to subsection 75(2) of
the Regulations, specifically because he had not provided sufficient evidence
of his employment experience. Counsel for the applicant contacted Citizenship
and Immigration Canada Program Manager B. Hudson, requesting reconsideration on
the basis that further documentation should have been requested if there was a
concern about a lack of work experience. The officer decided that his first
decision-letter dated May 23, 2011 was sent in error and that the applicant was
entitled to a point assessment under section 76 of the Regulations because
he had a positive AEO.
[5]
The
applicant raises the following issues:
- Did
the officer err in failing to recognize the applicant’s work experience?
- Did
the officer err by failing to exercise his or her discretion pursuant to
subsection 76(3) of the Regulations?
- Did
the officer err by failing to recognize the applicant’s accompanying
spouse’s post-secondary education documents, or the applicant’s AEO?
- Did
the officer fail to observe principles of procedural fairness by providing
inadequate reasons?
[6]
Decisions
regarding applicants’ eligibility for permanent residence as skilled workers
are based on discretionary findings of fact and are therefore to be reviewed by
this Court based on a standard of reasonableness, only to be disturbed if the
officer’s reasoning was flawed and the resulting decision falls outside the
“range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190 at para 47). Although there may be more than one possible outcome, as long
as the officer’s decision making process was justified, transparent and
intelligible, a reviewing court cannot substitute its own view of a preferable
outcome (Canada (Minister of Citizenship and Immigration) v. Khosa, 2009
SCC 12, [2009] 1 S.C.R. 339 at para 59).
[7]
The
officer’s obligation to consider whether to exercise his or her discretion
under subsection 76(3) of the Regulations is not discretionary, however, and is
reviewable on a correctness standard (Miranda v. Minister of Citizenship and
Immigration, 2010 FC 424). Questions of procedural fairness are also
reviewed on a standard of correctness (Suresh v. Canada (Minister of
Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3).
i. Did the officer err in
failing to recognize the applicant’s work experience?
[8]
The
applicant argues that if the officer had concerns about the applicant’s work
experience, he had a duty to notify the applicant of his concerns and give the
applicant an opportunity to respond (Torres v. Minister of Citizenship and
Immigration, 2011 FC 818 at paras 37-40).
[9]
The
respondent notes that the Documents Checklist specifies the required
documentation to prove work experience, and indicates that: “If you cannot
provide a reference from your current employer, provide a written explanation.”
[10]
The
respondent is right that the Documents Checklist clearly sets out the required
documents to prove work experience, specifically, letters of reference from
past and current employers. The Checklist advises those who cannot provide
references to provide an explanation. The applicant did not submit the required
documents, and he did not provide an explanation for why he could not obtain
them. I do not accept the applicant’s contention that he had no way of proving
his work experience except through his own statements. As the respondent
submits, he could, for example, have obtained letters of support from his
clients detailing his duties (Bandoo v. Canada (Minister of Citizenship and
Immigration), [1997] F.C.J. No. 603 (T.D.) (QL)).
[11]
I
also agree with the respondent that the officer was under no obligation to
notify the applicant of the deficiencies in his application — the onus was on
the applicant to submit a complete application that established that he met the
requirements for a skilled worker visa. Since the applicant failed to submit
sufficient evidence of his work experience, it was reasonable for the officer
to award no points under this category.
[12]
I
note that, since the applicant did not establish that he had at least one year
of continuous full-time employment experience within the preceding ten years,
he did not satisfy the minimum requirements of a skilled worker under
subsection 75(2) of the Regulations. Therefore, the application should have
been refused under subsection 75(3) and no further analysis should have been
conducted. The officer appears to have believed that the applicant was entitled
to a point assessment under section 76 of the Regulations because he had a
positive AEO. However, a positive AEO does not exempt an applicant from the
requirements of subsection 75(2) of the Regulations.
[13]
I
can find nothing in the Act, the Regulations or the Ministerial Instructions to
suggest that an applicant is exempted from the requirements of subsection 75(2)
if he or she has a positive AEO. The Ministerial Instructions state that
applications will be immediately processed if an applicant has a positive AEO,
but the application must still meet the requirements of the Act and
Regulations. Therefore, I cannot understand why the officer determined that
this application was entitled to a point assessment, since the officer found
that the applicant had not established his work experience, meaning he had not
shown he met the requirements of subsection 75(2) of the Regulations. It
appears to me that the application was properly refused pursuant to subsection
75(3) the first time, an outcome which remains unaffected.
[14]
For
this reason, the present application for judicial review will be dismissed,
since all of the other alleged errors occurred in the point assessment under
section 76 of the Regulations. Since the application was not properly
considered under section 76, these alleged errors would not alter the outcome.
[15]
I
agree with counsel for the parties that this is not a matter for certification.
JUDGMENT
The application for
judicial review of the decision of Designated Immigration Officer
U. Atukorala, refusing the applicant’s application for a permanent resident
visa as a skilled worker pursuant to subsection 12(2) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27, and section 76 of the Immigration
and Refugee Protection Regulations, SOR/2002-227, is dismissed.
“Yvon
Pinard”
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