Date:
20120820
Docket:
IMM-5733-11
Citation:
2012 FC 1005
Ottawa, Ontario,
August 20, 2012
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
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MUHAMMAD ZULHAZ UDDIN
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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
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a decision
of an immigration officer at the High Commission of Canada in Singapore (the officer),
dated May 24, 2011, wherein the applicant was denied permanent
residence under the federal skilled worker class pursuant to subsection
12(2) of the Act and subsection 76(3) of the Immigration and Refugee
Protection Regulations, SOR/2002-227 (the Regulations). This decision was
based on the officer’s finding that the applicant’s English language
proficiency was insufficient for him to become economically established in Canada.
[2]
The applicant requests that the officer’s decision be quashed and
the matter be remitted for redetermination by a different officer, at a
different visa office, or both.
Background
[3]
The
applicant, Muhammad Zulhaz Uddin, is a citizen of Bangladesh. He is married with
one dependent child.
[4]
On
November 10, 2009, the applicant filed an application for permanent residence
under the federal skilled worker class. His listed occupations were financial
manager (NOC 0111) and/or accountant (NOC 1111).
[5]
In
a letter dated March 3, 2011, the officer informed the applicant that he had
assessed the applicant’s application and the applicant had received 72 points.
Nevertheless, the officer stated that he was considering making a negative
substituted evaluation finding pursuant to subsection 76(3) of the Regulations.
The officer explained that he considered the applicant’s English language
abilities were such that the points awarded to him were not a sufficient
indicator of his likelihood of becoming economically established in Canada. The officer stated:
I
am not satisfied that this level of English competency would facilitate your
economic establishment in Canada, as a Financial Manager, or similar, nor am I
satisfied that you have otherwise acceptable experience in another field of
expertise, found on the NOC list, in which you might reasonably be expected to
secure employment. You have not demonstrated that you are sufficiently
proficient in English to communicate as effectively as would be required in
your field of expertise.
[6]
The
applicant was given sixty days to respond to the officer’s concerns.
[7]
On
April 25, 2011, the applicant sent the Canadian High Commission in Singapore supplementary submissions to address the officer’s concerns. These submissions
included: a statement from the applicant regarding his English language
abilities; an updated personal worth statement with supporting evidence; and proof
of relationship to cousin in Canada and evidence of cousin’s residence in Canada.
Officer’s Decision
[8]
In
a letter dated May 24, 2011, the officer denied the applicant’s application for
permanent residence as a skilled worker. The Computer Assisted Immigration
Processing System (CAIPS) notes that form part of the officer’s decision also
explain the reasons for the denial.
[9]
The
officer stated that the applicant’s application was assessed based on the
occupation requests: NOC Code: 1111, financial administrator or similar. The
officer assessed the following points for the applicant:
Age:
10 points
Education:
25 points
Official
language proficiency: 6 points
Experience:
21 points
Arrangement
employment: 0 points
Adaptability:
10 points
[10]
The
points for adaptability were calculated based on the sum of five points for the
applicant’s spouse’s education and five points for having a relative in Canada.
[11]
The
points for official language proficiency were based on the applicant’s
International English Language Testing System (IELTS) test on April 10, 2010.
These test results indicated that the applicant was a modest user of English as
per the IELTS band scale descriptions.
[12]
The
officer noted that in a letter dated March 3, 2011, the applicant was informed
that his application was being considered for refusal on the basis of his
limited ability to communicate in English. Recognizing the subsequent
submissions that the applicant made in response to this letter, the officer
stated:
[…]
I am unsatisfied that the points awarded to you accurately reflect the
likelihood that you will be able to successfully economically establish in Canada; your submission did not present any new evidence or information that has changed my
assessment of your file. I have made this evaluation because, as a Financial
Administrator, or similar, fields for which communication is critical, prospective
employers would reasonably expect you to be able to communicate at a high level
in English, or French. […]
[13]
In
the CAIPS notes, the officer expanded on his reasons. Referring to the new
evidence submitted on the applicant’s cousin, the officer noted:
Note
that rep now states that PA [applicant] has maternal cousin in Canada; not included on original applcication [sic]. Nonetheless, this information per
relative in Canada does not present new information that would positively
impact my concerns re PA’s [applicant’s] ability to establish. Cousin states
she will assist PA [applicant] if required; note that PA’s [applicant’s] letter
of employment shows her salary at $11.00/hour. Combined with concerns over PA’s
[applicant’s] capacity in English, hsi [sic] family make-up (spouse and child),
conncers [sic] remain that PA [applicant] will not establish economically under
NOC code applied for.
[14]
The
officer also stated that a senior officer concurred in his evaluation of the
applicant’s application and subsequent submissions.
[15]
The
Court notes that although the officer referred to 67 points being awarded to
the applicant, in fact the total number of points awarded was 72.
Issues
[16]
The
applicant submits the following points at issue:
1. What is the
appropriate standard of review?
2. Did the officer
err in substituting a negative determination pursuant to subsection 76(3) of
the Regulations?
Applicant’s Written Submissions
[17]
The
applicant submits that this judicial review concerns a question of fact and
law. It therefore attracts a standard of review of reasonableness.
[18]
The
applicant does not dispute the points awarded for his application. Rather, the
applicant submits that the officer erred in substituting a negative
determination pursuant to subsection 76(3) of the Regulations. This error arose
from the officer’s failure to consider all the evidence before him.
[19]
The
applicant also submits that the officer failed to assess the applicant’s
ability on the broader and correct standard of the likelihood of becoming
economically established. Rather than concluding that the applicant needed to
demonstrate that he could pursue a career as a “financial administrator or
similar”, the officer should have considered whether the applicant would become
economically established as a skilled worker and not just in the limited
professions noted in the decision. This need is reflected in the changes to the
Act and Regulations, which altered the approach to skilled worker applications
from an occupation-specific one to one that emphasizes the adaptability of
skilled worker applicants to become economically established.
[20]
In
support of his position that the officer did not consider all the evidence
before him, the applicant highlights specific grounds that he included in his
response to the officer’s request for more information, namely:
1. His ability to work
constructively in the English language on a daily basis at his workplace in Bangladesh;
2. The availability of
settlement funds to cover his short and mid-term financial obligations in Canada (an amount double that which he initially indicated); and
3. The presence of his
cousin, Sharminaz Sultana in Canada who has offered to provide financial and
emotional support to the applicant and his family.
[21]
The
applicant submits that the officer was required to reflect his assessment of
this information in his decision. The officer also erred in not referring to
the settlement funds in his decision.
[22]
With
regards to his cousin in Canada, the applicant submits that the officer erred
by dismissing this evidence on the basis of the cousin’s hourly salary. This
approach failed to take into account the cousin’s spouse and led to the
suggestion that the applicant would be financially reliant on his cousin. The
officer thus misconstrued the purpose of the cousin’s evidence. As the
applicant did have access to settlement funds, his cousin’s evidence was merely
provided to show that there was a home available to the applicant and his
family in Canada until they became settled.
[23]
In
summary, the applicant submits that any reasonable analysis of the evidence
would indicate that the applicant would not have any difficulty in becoming
successfully economically established in Canada.
Respondent’s Written Submissions
[24]
The
respondent agrees with the applicant that the standard of review of the
officer’s decision is reasonableness.
[25]
In
response to the applicant’s allegation that the officer limited his assessment
to the applicant’s potential to become economically established as a “financial
administrator or similar”, as opposed to as a skilled worker in general, the
respondent submits that the CAIPS notes clearly indicate that the officer did
consider the applicant’s potential for establishment in other fields of
expertise on the NOC list.
[26]
The
respondent submits that the applicant’s English skills were properly assessed.
The respondent highlights the fact that the officer gave the applicant sixty
days to provide additional information after making his preliminary finding.
However, aside from a personal statement, the applicant did not provide any
documentation to support his submissions that:
1. The language of
choice at his workplace in Bangladesh was English;
2. He intended to work
in Canada in the same capacity as he does in Bangladesh; and
3. Notwithstanding his
English language deficiencies, he had demonstrated professional success in Bangladesh.
[27]
The
respondent submits that an applicant’s settlement fund is not a relevant
consideration in a substituted evaluation. Further, the applicant did not explain
how his settlement fund would alleviate the officer’s concerns about his
limited English capabilities. The officer therefore did not err in not
considering the settlement funds in his decision.
[28]
Finally,
the respondent submits that there is no merit to the applicant’s allegation
that the officer did not consider his cousin in Canada. The CAIPS notes clearly
indicate that this evidence was considered. The respondent acknowledges the
applicant’s submissions that his cousin was prepared to assist him in the
transition to Canada, both her and her husband were employed on a full-time
basis and that they owned a home in Brampton where the applicant and his family
could stay until they adjusted to life in Canada. However, none of these
submissions explained why the presence of the applicant’s cousin should
alleviate the officer’s concerns about his limited English. The applicant’s
submissions are thus limited to the officer’s weighing of the evidence, which
does not amount to a reviewable error.
Analysis and Decision
[29]
Issue
1
What is the appropriate
standard of review?
Where previous jurisprudence
has determined the standard of review applicable to a particular issue before
the court, the reviewing court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 57).
[30]
A determination under subsection 76(3) of the Regulations is a
fact-driven exercise in an area where officers have significant experience. It
is therefore reviewable on a standard of reasonableness (see Debnath v
Canada (Minister of Citizenship and Immigration), 2010 FC 904, [2010] FCJ
No 1110 at paragraph 8; Philbean v Canada (Minister of Citizenship and
Immigration), 2011 FC 487, [2011] FCJ No 606 at paragraph 8; and Roohi v
Canada (Minister of Citizenship and Immigration), 2008 FC 1408, [2008] FCJ
No 1834 at paragraph 13).
[31]
In
reviewing the officer’s decision on the standard of reasonableness, the Court
should not intervene unless the officer came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir above, at
paragraph 47; Canada (Citizenship and Immigration) v Khosa, 2009
SCC 12, [2009] 1 S.C.R. 339 at paragraph 59). As the Supreme Court held in Khosa
above, it is not up to a reviewing court to substitute its own view of a
preferable outcome, nor is it the function of the reviewing court to reweigh
the evidence (at paragraphs 59 and 61).
[32]
Issue
2
Did the officer err in
substituting a negative determination pursuant to subsection 76(3) of the
Regulations?
The current regulatory
scheme for permanent residence applicants under the skilled worker class was
succinctly described by Madam Justice Danièle Tremblay-Lamer in Philbean
above, at paragraph 9:
Subsection
12(2) of the IRPA indicates that, for the purposes of permanent residence, a
person may be selected as a member of the economic class on the basis of their
ability to become economically established in Canada. Subsection 76(1) of the
Regulations indicates that, for the purposes of determining whether a skilled
worker will be able to become economically established in Canada, two
requirements must be met: a) the applicant must be awarded at least a minimum
number of points based on education, language, experience, age, arranged
employment, and adaptability, and b) the applicant must either (i) have a
certain amount of money available to use for settlement in Canada, or (ii) have
been awarded a certain number of points for having already arranged employment
in Canada. […]
[33]
In
this case, the officer first assessed the applicant’s application under subsection
76(1) of the Regulations and thereby awarded the applicant 72 points. The
officer then exercised his discretion under subsection 76(3) of the Regulations
to evaluate the likelihood of the applicant becoming economically established
in Canada despite the fact that the points awarded to him met the statutory
requirement.
[34]
Madam
Justice Tremblay-Lamer also described this provision in Philbean above,
at paragraph 11:
Subsection
76(3) of the Regulations […] allows for an immigration officer to substitute
his or her own evaluation as to whether or not an applicant will be able to
become economically established in Canada for the points-based assessment set
out in paragraph 76(1)(a) in circumstances where the officer finds that the
number of points awarded is not a sufficient indicator as to the applicant's
actual ability to become established. Justice Leonard Mandamin, in Roohi,
above, described subsection 76(3) as allowing, inter alia, “for screening out
applicants who pass the initial assessment but ought not be accepted for valid
reasons”.
[35]
As
noted by the applicant, subsection 76(3) requires a two-stage analysis. This
analysis was described by Mr. Justice Leonard Mandamin in Roohi above,
at paragraph 17:
Section
76(3) engages a two stage process for arriving at a substituted evaluation:
first, the visa officer must decide if the s. 76(1) assessment is not a
sufficient indicator of whether the skilled worker applicant may become
economically established in Canada; second, the visa officer must evaluate the
likelihood of the skilled worker becoming economically established in Canada by conducting an adequate substitute assessment on proper grounds.
[36]
These
substituted evaluations under subsection 76(3) of the Regulations introduce an
element of flexibility into the skilled worker application process (see Roohi
above, at paragraph 25). Deference is owed to the officer in making the
decision; however, it must nonetheless be consistent with the Act, the
Regulations and the thrust of the skilled worker provisions (see Roohi
above, at paragraph 26).
[37]
In
this case, the officer found that the applicant’s English language proficiency
rendered the subsection 76(1) assessment insufficient as an indicator of the
applicant’s potential to become economically established in Canada. The officer therefore notified the applicant of his concerns and allowed the
applicant to file additional submissions to alleviate them.
[38]
It
is notable that an officer is under no duty to inform the applicant about any
concerns regarding the application that arise directly from the requirements of
the legislation or regulations and do not pertain to the veracity of the
documents (see Hassani v Canada (Minister of Citizenship and Immigration),
2006 FC 1283, [2006] FCJ No 1597 at paragraphs 23 and 24). The onus is always
on the applicant to satisfy the officer of all parts of his application. The
officer is under no obligation to ask for additional information where the
applicant’s material is insufficient (see Sharma v Canada (Minister of Citizenship and Immigration), 2009 FC 786, [2009] FCJ No 910 at paragraph 8;
and Veryamani v Canada (Minister of Citizenship and Immigration), 2010
FC 1268, [2010] FCJ No 1668 at paragraph 36). Nevertheless, in this case the
officer did provide the applicant with an opportunity to disabuse his concerns.
[39]
In
response to the officer’s concerns, the applicant filed a personal statement on
his English language abilities, accounts showing increased settlement funds and
proof of his cousin’s establishment in Canada. However, the officer found that
the additional submissions did not present any new information or evidence that
changed his assessment of the file.
[40]
The
decision clearly indicates that the officer’s main concern was the applicant’s
English language proficiency. Although the applicant stated in his personal
statement that all of his regular work was conducted in English, the officer
had the applicant’s IELTS scores before him that contradicted this submission.
I therefore do not find that the officer erred in not affording much weight to
this submission.
[41]
With
regards to the settlement funds, recent jurisprudence has established that
officers are not required to consider these in subsection 76(3) analyses (see Xu
v Canada (Minister of Citizenship and Immigration), 2010 FC 418, [2010] FCJ
No 483 at paragraph 32; Philbean above, at paragraph 19; and Debnath
above, at paragraph 15). Similarly to Debnath above, the question of
settlement funds was irrelevant to the officer’s main concerns; namely, the
applicant’s English language proficiency in this case (see Debnath
above, at paragraphs 13 and 14). I therefore find no error in the officer’s
assessment of the applicant’s settlement funds.
[42]
Turning
to the applicant’s cousin in Canada, the applicant submits that the officer
erred by dismissing it on the basis of her salary. The applicant submits that
the officer misconstrued the evidence as indicative of the applicant’s financial
reliance on his cousin rather than as evidence of a home for the applicant and
his family to reside in until they became settled in Canada.
[43]
I
first note that although the applicant criticizes the fact that the officer
mentioned the cousin’s salary without delving into her husband’s employment,
the husband’s salary was not included in the applicant’s submissions. Further
and more importantly, the officer’s main concern with the applicant’s
application was his English language proficiency. Therefore, I do not find that
the officer erred in finding that the submissions on his cousin did not qualify
as new information that would positively impact his concerns. There was nothing
to suggest that his cousin would help him with the English language which, as
stated above, was the officer’s main concern with the applicant’s ability to
successfully economically establish in Canada.
[44]
Finally,
as noted by the applicant, revisions to the Regulations have changed the
approach in skilled worker applications from one focused on a specific
occupation to one in which greater emphasis is placed on the adaptability of
the applicant to becoming economically established in Canada (see Roohi above, at paragraph 28). However, contrary to the applicant’s submissions,
I find that the officer in this case did adopt the broader approach. As
mentioned above, the officer explicitly stated in his letter dated March 3,
2011 that:
I
am not satisfied that this level of English competency would facilitate your
economic establishment in Canada, as a Financial Manager, or similar, nor am
I satisfied that you have otherwise acceptable experience in another field of
expertise, found on the NOC list, in which you might reasonably be expected
to secure employment. [emphasis added]
[45]
This
clearly indicates that the officer did not limit his assessment to the
applicant’s competency in a specific occupation, but rather also considered his
adaptability into other fields.
[46]
In
summary, I find that the officer considered all the evidence before him in exercising
his discretion under subsection 76(3) of the Regulations. This evidence
included both the applicant’s initial application and his subsequent
submissions. I find that the officer’s decision was transparent, justifiable
and intelligible and within the range of acceptable outcomes based on the
evidence before it. I would therefore dismiss this application.
[47]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed.
“John A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Immigration and Refugee
Protection Act,
SC 2001, c 27
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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.
(2) The
regulations may prescribe, and govern any matter relating to, classes of
permanent residents or foreign nationals, including the classes referred to
in section 12, and may include provisions respecting
(a) selection
criteria, the weight, if any, to be given to all or some of those criteria,
the procedures to be followed in evaluating all or some of those criteria and
the circumstances in which an officer may substitute for those criteria their
evaluation of the likelihood of a foreign national’s ability to become
economically established in Canada;
72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
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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.
(2) Ils
établissent et régissent les catégories de résidents permanents ou
d’étrangers, dont celles visées à l’article 12, et portent notamment sur :
a) les
critères applicables aux diverses catégories, et les méthodes ou, le cas échéant,
les grilles d’appréciation et de pondération de tout ou partie de ces
critères, ainsi que les cas où l’agent peut substituer aux critères son
appréciation de la capacité de l’étranger à réussir son établissement
économique au Canada;
72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
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Immigration and Refugee
Protection Regulations,
SOR/2002-227
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75. (1) For
the purposes of subsection 12(2) of the Act, the federal skilled worker class
is hereby prescribed as a class of persons who are skilled workers and who
may become permanent residents on the basis of their ability to become
economically established in Canada and who intend to reside in a province
other than the Province of Quebec.
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).
. . .
(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.
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75. (1) Pour
l’application du paragraphe 12(2) de la Loi, la catégorie des travailleurs
qualifiés (fédéral) est une catégorie réglementaire de personnes qui peuvent
devenir résidents permanents du fait de leur capacité à réussir leur
établissement économique au Canada, qui sont des travailleurs qualifiés et
qui cherchent à s’établir dans une province autre que le Québec.
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).
. . .
(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) — n’est
pas un indicateur suffisant de 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.
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