Docket: IMM-6655-11
Citation: 2012 FC 791
Ottawa, Ontario, June 25,
2012
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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DALJIT SINGH SRAN AND
RUPINDER JIT KAUR SRAN
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Applicants
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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
[1]
This
is an application for judicial review under section 72 of the Immigration
and Refugee Protection Act, SC 2001, c 26 (hereafter the IRPA) of a decision
rendered by an Immigration Officer denying an application for permanent
resident status in the provincial nominees’ class.
[2]
The
principal applicant, Mr. Daljit Singh Sran, is a citizen of India born in 1962.
He is married to Rupinder Jit Kaur Sran, also a citizen of India, born in 1969.
They have two children and are currently living in New Zealand.
[3]
Mr.
Sran has a high school education, a diploma in Divinity and was a farmer in India. He is
working as a store clerk in New Zealand. His wife has a Bachelor of Arts and a
Bachelor of Education form India. She worked as a teacher in India for nearly
10 years. Since moving to New Zealand, she obtained a diploma in horticulture
and is currently working in that field.
[4]
Mr.
Sran’s parents live in Calgary, Alberta. He was nominated under the Alberta
Immigrant Nominee Program (hereafter the AINP) in the Family Stream and
approved by the Alberta program office.
[5]
The
officer did
not believe that Mr. Sran has the ability of becoming economically established
in Canada. His wife’s education and experience was considered to be relevant,
but insufficient to overcome the deficiencies in Mr. Sran’s application. He had not
demonstrated fluency in English, did not speak French and required an
interpreter for the interview. The applicant admitted that his divinity credential was of
little use in Canada.
[6]
The
officer found that the applicant earned a minimum wage as a store clerk. The
evidence provided about his current employment was vague and inconsistent with
his letter of reference. The applicant was not specific, spontaneous or
forthcoming during his interview. He did not provide evidence of National
Occupational Classification (hereafter NOC) duties. Accordingly, the officer
found that the applicant would not qualify as a skilled worker. Moreover, he
did not have the experience to run a business as he hoped to do in Canada. His
wife is also not working as a skilled worker in New Zealand.
[7]
The
officer’s decision was reviewed and confirmed by a second officer. That officer
added that the farming experience in India was likely not transferable to
Canada.
ISSUES:
[8]
The
issues raised on this application are as follows:
1. Was the officer’s decision
reasonable?
2. Did the officer breach the duty
of procedural fairness?
ANALYSIS:
Standard of review
[9]
The
officer’s decision
was factual in nature and is reviewable on a standard of reasonableness: Pacheco
Silva v Canada (Minister of
Citizenship and Immigration), 2007 FC 733 at paras 6‑7; and Wai v Canada (Minister of Citizenship
and Immigration),
2009 FC 780 at para 18.
[10]
The
proper approach to issues of procedural fairness is to ask whether the
requirements of the duty of fairness in the particular circumstances have been
met: Singh v Canada (Minister of Citizenship and Immigration), 2011 FC
813 at para 9; and Krishnamoorthy
v Canada (Minister of
Citizenship and Immigration), 2011 FC 1342 and at para 13.
Was the
officer’s decision reasonable?
[11]
The framework for
permanent residency under the Provincial Nominees Class is established by s. 12
of the IRPA and s. 87 of the Immigration and Refugee Protection
Regulations,
SOR/2002-227 (hereafter the Regulations). These provisions are set out below:
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12.
(2) A foreign national may
be selected as a member of the economic class on the basis of their ability
to become economically established in Canada.
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12.
(2) La sélection des étrangers de la catégorie « immigration économique » se
fait en fonction de leur capacité à réussir leur établissement économique au
Canada.
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87. (1) For the purposes of subsection
12(2) of the Act, the provincial nominee class is hereby prescribed as a
class of persons who may become permanent residents on the basis of their
ability to become economically established in Canada.
(2) A foreign
national is a member of the provincial nominee class if
(a)
subject to subsection (5), they are named in a nomination certificate issued
by the government of a province under a provincial nomination agreement
between that province and the Minister; and
(b)
they intend to reside in the province that has nominated them.
(3) If the
fact that the foreign national is named in a certificate referred to in
paragraph (2) (a) is not a sufficient indicator of whether they may
become economically established in Canada and an officer has consulted the
government that issued the certificate, the officer may substitute for the
criteria set out in subsection (2) their evaluation of the likelihood of the
ability of the foreign national to become economically established in Canada.
(4) An
evaluation made under subsection (3) requires the concurrence of a second
officer.
[…]
(12) A foreign
national who is an accompanying family member of a person who makes an
application as a member of the provincial nominee class shall become a permanent
resident if, following an examination, it is established that
a)
the person who made the application has become a permanent resident; and
b)
the foreign national is not inadmissible.
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87.
(1) Pour
l’application du paragraphe 12(2) de la Loi, la catégorie des candidats des
provinces est une catégorie réglementaire de personnes qui peuvent devenir
résidents permanents du fait de leur capacité à réussir leur établissement
économique au Canada.
(2)
Fait partie de la catégorie des candidats des provinces l’étranger qui
satisfait aux critères suivants :
a) sous réserve du paragraphe (5), il
est visé par un certificat de désignation délivré par le gouvernement
provincial concerné conformément à l’accord concernant les candidats des
provinces que la province en cause a conclu avec le ministre;
b) il cherche à s’établir dans la
province qui a délivré le certificat de désignation.
(3)
Si le fait que l’étranger est visé par le certificat de désignation mentionné
à l’alinéa (2)a) n’est pas un indicateur suffisant de l’aptitude à
réussir son établissement économique au Canada, l’agent peut, après
consultation auprès du gouvernement qui a délivré le certificat, substituer
son appréciation aux critères prévus au paragraphe (2).
(4)
Toute décision de l’agent au titre du paragraphe (3) doit être confirmée par
un autre agent.
[…]
(12)
L’étranger qui est un membre de la famille et qui accompagne la personne qui
présente une demande au titre de la catégorie des candidats des provinces
devient résident permanent si, à l’issue d’un contrôle, les éléments ci-après
sont établis :
a) la personne qui présente la demande
est devenue résident permanent;
b) il n’est pas interdit de territoire.
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[12]
Under
this framework, the provinces have signed agreements with the federal
government to establish provincial nomination programs. The relevant agreement
in this application is the Canada-Alberta Immigration Agreement. Under that
Agreement, Alberta established the AINP. In this case, the applicant obtained a
provincial nomination certificate under the AINP Family Stream.
[13]
The
provincial decision to issue a certificate must be accorded deference but is
not binding on the officer. Immigration Officers do not have to consider the
same criteria as the province and the evaluation of potential economic
establishment is linked to the person named in the nomination certificate; in
this case that was Mr. Sran.
[14]
Subsection
87(3) of the Regulations permits an officer, after consulting with the
provincial nomination program, to evaluate the application if the officer is
not satisfied that the provincial certificate is a sufficient indicator of the
likelihood of establishment in Canada. In the present case, the officer
consulted the provincial office and the AINP confirmed its decision to nominate
the applicant. The officer’s evaluation was then reviewed by a second officer
in accordance with subsection 87(4).
[15]
It cannot
be said that the officer made the decision without regard to the evidence. The
Computer Assisted Immigration Processing System notes in the record indicate
that the officer considered the decision of Alberta, including the response received
from his inquiry, the work experience and education of the applicant and his
spouse, the applicant’s motivations, the applicant’s family living in Canada
and the language skills of the applicant.
[16]
The
key question on this application is whether the officer gave sufficient
consideration to the wife’s credentials. It is clear that he gave them less
weight than that accorded by the province. Was that reasonable?
[17]
Departmental
policy documents such as operational manuals are not law
and the Minister and her agents are not bound by them, but they can be of great
assistance to the Court in determining reasonableness: Canada
(Minister of Citizenship & Immigration) v Thamotharem, 2007 FCA 198 at para
59; and Baker v Canada (Minister of Citizenship and Immigration), [1999]
2 SCR 817 at para 72.
[18]
Section
7.7 of the Overseas Processing Manual OP 7b states that overaged dependants
named in a provincial nomination certificate should, on a case by case basis,
be carefully evaluated in their own right. The officer should refuse the
application if they have strong reason to believe that the applicant is very
unlikely to become economically established even with the assistance of their
other family members. It is consistent with the legislation, the policy states,
to approve cases where there is some likelihood of successful settlement within
a reasonable time.
[19]
In
the present case, it is clear from the reasons that the officer did not
evaluate the spouse in her own right but simply as a relevant factor in
considering her husband’s settlement prospects. The officer’s reasons are clear
that he only considered the spouse’s credentials as “relevant”. The fact that
she was not interviewed is another indication that her potential contribution
was discounted. This was problematic in two ways: first it was contrary to the
AINP Family Stream and, therefore, the ability of Alberta to determine its needs
in economic immigration; and, secondly, it did not respect Citizenship and
Immigration Canada’s own policy to examine overage dependents in their own
right.
[20]
The
applicant also submits that there was insufficient evidence to rebut the
presumption created by the provincial certificate. Section 7.8 of OP 7b stated:
Immigration
officers can assume that a candidate nominated by a province does, in the view
of the provincial officials, intend to reside in the nominating province and
has a strong likelihood of becoming economically established in Canada.
[…]
There
are three bases upon which a provincial nominee who meets all statutory
admissibility requirements can be refused a visa:
·
The officer has
reason to believe that the applicant does not intend to live in the province that
has nominated them;
·
The officer has
reason to believe that the applicant is unlikely to be able to successfully
establish economically in Canada;
·
The officer has
reason to believe that the applicant is participating in, or intends to
participate in, a passive investment or an immigration-linked investment scheme
as defined in R87(5) to R87(9) of the Regulations.
In
each case, the officer must have some evidence to support this belief and
overcome the presumptions implied by the provincial nomination. …
[Emphasis
added]
[21]
Here,
the officer’s reasons indicate why he does not believe that the applicant is
very likely to become economically established in Canada: see Wai, above,
at para 45. The Court’s task is not to reweigh the evidence and substitute its
own analysis for that of the officer. Absent a reviewable error, the Court’s
intervention is not warranted. The assertion that the evidence was insufficient
to rebut the presumption does not constitute a reviewable error as it would
require that this Court reweigh the evidence.
[22]
The
officer’s duty was to determine if the applicant or his spouse were likely to
become economically established in Canada: s.87(3) of the Regulations; and s.5, 7.6, 7.7
and 7.8 of the OP 7b. The IRPA and the Regulations do not define “become
economically established”. However, the OP 7b, at section 7.7, offers some
guidance:
There
is no definition in the legislation of “become economically established,”
leaving the term open to interpretation. There is also no indication of the exact
moment when an applicant must become economically established: immediately upon
landing or after an initial period of adjustment. However, it is clear, from
the way in which the term is used throughout the economic classes, that to
become economically established means to join and participate in the labour
market in Canada. It is also clear that the selection criteria do
not apply to the provincial nominee class in the same way as they apply to
federal skilled workers and that it is the overall intention of the
legislation and the Federal-Provincial-Territorial agreements to allow the
provinces some latitude in their nomination decisions.
[Emphasis
added]
[23]
The
officer evaluated the competence of the applicant and of his spouse using the
NOC, a tool to determine applications from those seeking to be admitted as
members of the federal skilled worker category. The OP 7b makes it clear that the
federal skilled worker class and the provincial nominee class are two different
categories with different criteria.
[24]
In
my view, the officer erred in relying primarily on the skilled worker
classification tool to evaluate the likelihood that the applicant would become
economically established in Canada. In comparing the applicant’s skills to the
NOC criteria, the officer lost sight of the factors that had persuaded the Alberta government that the
family could be settled including the wife’s education and the parents’
willingness to support the family.
[25]
As
a result, I am satisfied that the 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 at para 47; and Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12 at para
59.
[26]
Considering
my conclusion on the unreasonableness of the decision, it is unnecessary to
address the procedural fairness issue. Nevertheless, I would have not found
that the officer breached his duty of procedural fairness as it is trite law that an
officer does not have to apprise an applicant of concerns relating to the
requirements of the legislation; in this case the economic establishment of the
applicant in Canada: Madan v Canada (Minister of Citizenship and
Immigration), [1999] FCJ No 1198 at para 6; Mbala v Canada (Minister of
Citizenship and Immigration), 2006 FC 1057 at paras 21-22; and Ayyalasomayajula
v Canada (Minister of Citizenship and Immigration), 2007 FC 248 at paras
17-18.
[27]
No
serious questions of general importance were proposed and none will be
certified.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application is granted and
the matter remitted for reconsideration by a different officer. No questions
are certified.
“Richard
G. Mosley”
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