Docket:
IMM-3207-11
Citation:
2012 FC 855
Ottawa, Ontario, July
5, 2012
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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GURINDER SINGH
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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 section officer of the Nova Scotia Case Processing
Centre (the officer), dated April 29, 2011, wherein the applicant was denied permanent residence under the federal skilled worker class
of subsection 12(2) of the Act and subsection 76(1) of the Immigration and
Refugee Protection Regulations, SOR/2002-227 (the Regulations). This
decision was based on the officer’s finding that the applicant did not meet the
minimum point requirement to qualify for immigration to Canada.
[2]
The applicant requests that the officer’s decision be quashed and
the matter be remitted for redetermination by a different officer.
Background
[3]
The
applicant, Gurinder Singh, is a citizen of India. He currently resides in Australia.
[4]
The
applicant submitted an application for permanent residence under the federal
skilled worker class as a cook. His wife, Amanpreet Kaur, was included as a
dependent.
[5]
As
part of his application, the applicant indicated that Ajit Singh Nagra and
Nasib Kaur Nagra, his maternal grandparents, were permanent residents in Canada and that Balwinder Singh Nagra, his maternal uncle, was a Canadian citizen. All
three allegedly live together in Surrey, British Columbia. In support, the
applicant filed the following documents:
1. Affidavit from
Ajit Singh Nagra, Nasib Kaur Nagra and Balwinder Singh Nagra attesting to their
relationship with the applicant and their residency in Canada;
2. Permanent
residence cards for Ajit Singh Nagra and Nasib Kaur Nagra; and
3. Canadian passport
for Balwinder Singh Nagra.
Officer’s Decision
[6]
In
a letter dated April 29, 2011, the officer denied the applicant’s application.
The Global Case Management System (GCMS) notes that form part of the officer’s
decision explain the reasons for the denial.
[7]
The
officer assessed a total of 62 points for the
applicant’s application for permanent residence:
Age: 10 points
Education: 15 points
Official language
proficiency: 16 points
Arrangement employment: 0
points
Experience: 21 points
Adaptability: 0 points
[8]
The
officer explained why no points were awarded for adaptability as follows:
No
points have been assigned for a relative in Canada as insufficient evidence is
on file to satisfy me of your relationship to Balwinder Singh Nagra, Ajit Singh
Nagra or Nasib Kaur Nagra. No documents (such as birth certificates) were
provided to link Balwinder Singh Nagra, Ajit Singh Nagra or Nasib Kaur Nagra
with either of your parents. In addition, there is insufficient evidence on
file to satisfy me of your relative residing in Canada.
[9]
As
the applicant’s total assessed points was below the minimum statutory requirement
of 67 points, the officer found that the
applicant had failed to prove that he would be able to become economically
established in Canada. His application for permanent residence under the
skilled worker class was therefore denied.
Issues
[10]
The
applicant submits the following points at issue:
1. What is the
standard of review?
2. Is the decision
unreasonable because the applicant’s evidence that he had family in Canada was disregarded without explanation by the officer?
3. Is the decision
unfair because it is deficient?
4. Is the decision
unfair because the officer should have provided the applicant with an
opportunity to address his concerns?
5. Should costs be
awarded to the applicant?
[11]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the officer
deny the applicant procedural fairness?
Applicant’s Written Submissions
[12]
The
applicant submits that the correctness standard applies to issues of procedural
fairness whereas the reasonableness standard applies to the review of the
officer’s consideration of the evidence.
[13]
The
applicant submits that it is a reviewable error for an officer to disregard
evidence without providing clear reasons for so doing. In this case, the
officer erred in not explaining why the evidence that the applicant submitted
for his relatives in Canada was insufficient. This error rendered his decision
unreasonable.
[14]
The
applicant submits that the evidence he did file (permanent residence cards,
passport and affidavit) was sufficient to award him five points under the
adaptability factor, as per subparagraphs 83(5)(a)(ii) and (v) of the Act. Had
these five points been awarded, his score would have reached the required 67
points.
[15]
Further,
the applicant submits that it was not open to the officer to reject his
evidence without further inquiries. If the officer had concerns about the
veracity or truth of the evidence, he should have interviewed the applicant or
at least notified him by letter and provided him with an opportunity to
respond.
[16]
The
applicant also submits that the officer’s errors were so egregious that they
warrant the awarding of costs. The deficient reasons indicate that the officer
treated the decision making process in a cavalier manner.
Respondent’s Written Submissions
[17]
The
respondent submits that an officer’s decision on a skilled worker application
attracts deference. The awarding of points is primarily a factual determination
that attracts significant deference. Conversely, issues of procedural fairness
are reviewable on a correctness standard.
[18]
The
applicant bears the onus of providing all relevant information and
documentation required to meet the statutory requirements of the Act. Contrary
to the applicant’s submissions, the respondent submits that to benefit under
the adaptability category, applicants bear the onus of demonstrating that
qualifying relatives reside in Canada. This onus does not shift to the officer.
The officer is not obliged to gather or seek additional evidence or to make
further inquiries.
[19]
The
respondent submits that the passports and permanent residence cards submitted
by the applicant do not show the addresses of these individuals nor their
relation to the applicant or his spouse. Further, no documentary evidence was
attached to the affidavit to objectively prove the information contained
therein. The officer was not obliged to accept the affidavit as the probative
value of affidavits submitted by interested parties is limited.
[20]
The
respondent also submits that the applicant has not provided birth certificates
or other documentation to link Balwinder Singh Nagra, Ajit Singh Nagra or Nasib
Kaur Nagra with either of his parents. The document checklist that the
applicant submitted with his application specifically instructed him to provide
this proof. Not only did he not provide this proof, but he also failed to provide
a letter indicating why he was unable to do so. The officer clearly indicated
in his decision that he refused to award these points due to the lack of a birth
certificate or other document showing that the applicant was related to the
stated individuals. The respondent also notes that the applicant did not
provide any documentary evidence that these individuals reside in Canada such as leases, mortgages, tax forms or pay stubs.
[21]
In
summary, the respondent submits that the officer’s factual conclusion was
reasonable. The applicant has also not shown that any special reasons exist to
warrant this Court awarding costs.
Analysis and Decision
[22]
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).
[23]
An officer’s determination of eligibility for permanent residence
under the federal skilled worker class involves findings of fact and law and is
reviewable on a standard of reasonableness (see Malik v Canada (Minister of
Citizenship and Immigration), 2009 FC 1283, [2009] FCJ No 1643 at
paragraph 22; and Khan v Canada (Minister of Citizenship and Immigration),
2009 FC 302, [2009] FCJ No 676 at paragraph 9).
[24]
Conversely,
the appropriate standard of review for issues of procedural fairness and
natural justice is correctness (see Malik above, at paragraph 23; Khan
above, at paragraph 11; and Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] SCJ
No 12 at paragraph 43). No deference is owed
to officers on this issue (see Dunsmuir above, at paragraph 50).
[25]
Issue
2
Did the officer deny the
applicant procedural fairness?
The applicant raises two
procedural fairness issues in this application:
1. The officer erred
by not explaining why the evidence submitted on his Canadian relatives was
insufficient; and
2. The officer erred
by rejecting his evidence without making further inquiries.
[26]
Before
engaging in the analysis on these issues, it is notable that applicants for
permanent residence under the federal skilled worker class are not entitled to
strong procedural safeguards. As described by Mr. Justice Robert Mainville in Malik
above, at paragraph 26:
[…]
The nature of the regulatory scheme, the role of the decision of the visa
officer in the overall scheme, and the choice of procedure made do not
therefore suggest the need for strong procedural safeguards beyond what is
already provided for in the legislation, save the procedural safeguard
concerning proper information to applicants as to the criteria used and the
documentation required to properly assess their applications. Though the
decision to grant or not an application for permanent residence under the
federal skilled worker class is obviously important to the individual affected,
it is not such as to affect the fundamental freedoms or other fundamental
rights of an applicant, such as a criminal proceeding or, in the immigration
context, a deportation proceeding might have. In addition, no undertakings are
made to applicants as to an interview or as to additional notification if
documentation is missing or insufficient, thus considerably limiting
expectations of applicants in such matters.
[27]
This
constraint on procedural safeguards is in place to ensure the efficiency and
equity of the system to all applicants (see Singh v Canada (Minister of Citizenship and Immigration), 2011 FC 956, [2011] FCJ No 1172 at paragraph
14).
[28]
Turning
to the applicant’s first issue, the officer did provide some explanation in the
decision for his finding that the evidence was insufficient:
No
documents (such as birth certificates) were provided to link Balwinder Singh
Nagra, Ajit Singh Nagra or Nasib Kaur Nagra with either of your parents.
[29]
Further,
as stated by the respondent, the probative value of affidavits from interested
parties is limited. As Mr. Justice Russel Zinn explained in Ferguson
v Canada (Minister of Citizenship and Immigration), 2008 FC 1067, [2008]
FCJ No 1308 (at paragraph 27):
Evidence
tendered by a witness with a personal interest in the matter may also be
examined for its weight before considering its credibility because typically
this sort of evidence requires corroboration if it is to have probative value.
If there is no corroboration, then it may be unnecessary to assess its
credibility as its weight will not meet the legal burden of proving the fact on
the balance of probabilities. When the trier of fact assesses the evidence in
this manner he or she is not making a determination based on the credibility of
the person providing the evidence; rather, the trier of fact is simply saying
the evidence that has been tendered does not have sufficient probative value,
either on its own or coupled with the other tendered evidence, to establish on
the balance of probability, the fact for which it has been tendered. […]
[30]
As
the affidavit here was unsupported by corroborating evidence, the only evidence
on the applicant’s relatives in Canada were the permanent residence cards and
the Canadian passport. These did not show that the applicant or his wife were related
to these individuals. Further, in the document checklist that the applicant
filed with his application, the first point under the section titled “Proof of
relationship in Canada” clearly states: “Proof of relationship to your close
relative in Canada, such as birth, marriage or adoption certificates”. As noted
by the officer, none of this information was provided.
[31]
Bearing
in mind the lack of strong procedural safeguard rights granted to permanent
residence applicants under the federal skilled worker class, I do not find that
the officer erred by not explaining why the evidence that the applicant
submitted for his relatives in Canada was insufficient.
[32]
Turning
to the second issue, the applicant submits that it was not open to the officer
to reject his evidence without making further inquiries. However, it is
established jurisprudence 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 and that 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).
[33]
In
this case, the officer found that the applicant’s application was insufficient
with respect to information on his stated Canadian relatives. To be awarded
points for adaptability under the Act and the Regulations, adequate supporting information
must be submitted. The applicant did have prior notice of the application
requirements by way of the document checklist that he filled in and submitted
with his permanent residence application. In addition, contrary to the
applicant’s submissions, there was no suggestion that the credibility, accuracy
or genuine nature of the information was of concern to the officer. Therefore,
according to the established jurisprudence, the officer was not required to ask
for additional information of the applicant and the applicant was not denied procedural
fairness.
[34]
In
summary, I find the applicant has failed to show any reviewable error. The
officer was under no obligation to explain his findings in greater detail or to
request more information from the applicant. As such, I would dismiss this
judicial review.
[35]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
[36]
The
applicant requested an award of costs, however, I am not prepared to award
costs as I am of the view that special reasons do not exist in this case.
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.
. . .
14.(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;
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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.
. . .
14.(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;
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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).
83. (1) A
maximum of 10 points for adaptability shall be awarded to a skilled worker on
the basis of any combination of the following elements:
(a) for
the educational credentials of the skilled worker's accompanying spouse or accompanying
common-law partner, 3, 4 or 5 points determined in accordance with subsection
(2);
(b) for
any previous period of study in Canada by the skilled worker or the skilled
worker's spouse or common-law partner, 5 points;
(c) for
any previous period of work in Canada by the skilled worker or the skilled
worker's spouse or common-law partner, 5 points;
(d) for
being related to a person living in Canada who is described in subsection
(5), 5 points; and
(e) for
being awarded points for arranged employment in Canada under subsection
82(2), 5 points.
. . .
(5) For
the purposes of paragraph (1)(d), a skilled worker shall be awarded 5 points
if
(a) the
skilled worker or the skilled worker's accompanying spouse or accompanying
common-law partner is related by blood, marriage, common-law partnership or
adoption to a person who is a Canadian citizen or permanent resident living
in Canada and who is
(i) their
father or mother,
(ii) the
father or mother of their father or mother,
(iii) their
child,
(iv) a
child of their child,
(v) a
child of their father or mother,
(vi) a
child of the father or mother of their father or mother, other than their
father or mother, or
(vii) a
child of the child of their father or mother; or
(b) the
skilled worker has a spouse or common-law partner who is not accompanying the
skilled worker and is a Canadian citizen or permanent resident living in Canada.
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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).
83. (1) Un
maximum de 10 points d’appréciation sont attribués au travailleur
qualifié au titre de la capacité d’adaptation pour toute combinaison des
éléments ci-après, selon le nombre indiqué :
a) pour
les diplômes de l’époux ou du conjoint de fait, 3, 4 ou 5 points
conformément au paragraphe (2);
b) pour
des études antérieures faites par le travailleur qualifié ou son époux ou
conjoint de fait au Canada, 5 points;
c) pour
du travail antérieur effectué par le travailleur qualifié ou son époux ou
conjoint de fait au Canada, 5 points;
d) pour
la présence au Canada de l’une ou l’autre des personnes visées au
paragraphe (5), 5 points;
e) pour
avoir obtenu des points pour un emploi réservé au Canada en vertu du
paragraphe 82(2), 5 points.
. . .
(5) Pour
l’application de l’alinéa (1)d), le travailleur qualifié obtient
5 points dans les cas suivants :
a) l’une
des personnes ci-après qui est un citoyen canadien ou un résident permanent et
qui vit au Canada lui est unie par les liens du sang ou de l’adoption ou par
mariage ou union de fait ou, dans le cas où il l’accompagne, est ainsi unie à
son époux ou conjoint de fait :
(i) l’un
de leurs parents,
(ii) l’un
des parents de leurs parents,
(iii) leur
enfant,
(iv) un
enfant de leur enfant,
(v) un
enfant de l’un de leurs parents,
(vi) un
enfant de l’un des parents de l’un de leurs parents, autre que l’un de leurs
parents,
(vii) un
enfant de l’enfant de l’un de leurs parents;
b) son
époux ou conjoint de fait ne l’accompagne pas et est citoyen canadien ou un
résident permanent qui vit au Canada.
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