Date: 20101101
Docket: IMM-4599-09
Citation: 2010 FC 1072
Ottawa, Ontario, November 1, 2010
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
NAVRAT
KUMAR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application made pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the Act) for judicial review of a
decision of an immigration officer of Citizenship and Immigration Canada (the
immigration officer) dated July 3, 2009, wherein the immigration officer (the
officer) found the applicant to be ineligible to make an application for
permanent residence in Canada as a member of the federal skilled worker class.
[2]
The
applicant seeks an order from this Court quashing the decision of the officer
and remitting the matter back to Citizenship and Immigration Canada (CIC) for
reconsideration by a different officer.
Background
[3]
On
February 26, 2008, the Federal Government introduced changes to the Act’s
skilled worker processing scheme. These amendments permitted the issuance of Ministerial
Instructions which may establish an order, by category or otherwise, for the
processing of applications or requests and may set the number of applications
or requests by category or otherwise, to be processed in any year.
[4]
On
November 28, 2008, the Government of Canada published in the Canada Gazette
instructions issued by the Minister of Citizenship and Immigration under subsection
87.3(3) of the Act (Ministerial Instructions). The Ministerial Instructions
outline eligibility criteria that apply with respect to processing of all
applications for permanent residence visas made under the federal skilled worker
class as defined in the Act, that were received by CIC on or after February 27,
2008. Under the Ministerial Instructions, if an application does not meet the
eligibility criteria, it will not be processed and the application fee amount
paid will be fully refunded.
[5]
For
the federal skilled worker class, all applications must be sent to the
Centralized Intake Office (CIO) in Sydney, Nova Scotia. The CIO
assesses whether the application should be placed into processing at a visa
office. If the application corresponds with the Ministerial Instructions, the
applicant will be sent a letter requesting him or her to submit a full
application and supporting documents within 120 days to the indicated visa
office. If the application does not correspond with the Ministerial
Instructions, the CIO will send a letter informing the applicant that the
application is not eligible for processing.
[6]
The
relevant portion of the Ministerial Instructions provides that:
. . . applications submitted by foreign
nationals residing legally in Canada for at least one year as Temporary Foreign
Workers or International Students . . .
shall be placed into processing immediately
upon receipt (Ministerial Instructions, Canada Gazette, Vol. 142, No. 48, p.
3044).
Facts
[7]
The
applicant is a citizen of Thailand. She arrived in Canada in September
of 2005 on a study permit valid until August 2006. She received a diploma in
human resources management from a college in Toronto in July of
2006. She then obtained a work permit valid until May 20, 2007 and began
working as a human resources assistant at the Holiday Inn. She was promoted to
a management position and obtained an extension of her work permit until July
25, 2007. Prior to this expiry date, Holiday Inn obtained a positive labour
market opinion for the applicant’s position and obtained for her a work permit
valid until September of 2009.
[8]
In
December of 2008, the applicant resigned from her position at Holiday Inn in
favour of a position with another employer. The new employer later withdrew
their offer leaving the applicant unemployed.
[9]
In
May 2009, a lawyer representing the applicant submitted an application for
permanent residence to the CIO for assessment against the Ministerial
Instructions as a temporary foreign worker. As evidence of legally residing and
working in Canada for the
required twelve months, the applicant included copies of her current and prior
work permits. She did not submit a letter of employment as required by the CIC
applicable online checklist because she was not currently employed.
[10]
There
is some dispute about when the application was received. The applicant claims
it was received on May 8th, while the respondent asserts that CIO did not
receive the application until May 27th. Meanwhile, on April 30, 2009, the
applicant returned to Thailand to await the decision
on her application.
[11]
On July 3, 2009, the applicant received the decision of the
immigration officer at the CIO rejecting the applicant’s application,
indicating that she did not meet the requirements of the Ministerial
Instructions and was not eligible for further processing. The immigration
officer was not satisfied that the applicant had been legally residing and
working in Canada as a temporary foreign worker for at least one year
immediately prior to submitting the application.
Issues
[12]
The
issues are as follows:
1. What
is the standard of review?
2. Did
the immigration officer commit a reviewable error of fact or law in concluding
that the applicant’s application did not meet the requirements of the
Ministerial Instructions?
3. Did
the immigration officer provide the applicant with a fair process?
Applicant’s Written
Submissions
[13]
The
applicant primarily argues that the Ministerial Instructions have been
misinterpreted by the CIO. The requirement that an applicant be “… residing legally
in Canada for at least one year…”, applies to any period of twelve months prior
to the submission of the application and does not require the applicant to be
presently employed or presently studying at the time the application is
submitted. It only requires present legal status in Canada after
completing twelve months of employment or studies. The immigration officer’s
use of the word immediately in the decision letter was an error of law. The
applicant’s work permits and her signed declaration stating that she had worked
at the Holiday Inn for more than twelve months constitutes sufficient evidence
to establish in fact that she was (i) a legal resident of Canada when she
submitted the skilled worker application and (ii) that she had worked in Canada
for at least one year. Accordingly, the immigration officer’s decision to
refuse her application was unreasonable.
[14]
In
the alternative, even if the applicant had not submitted sufficient evidence
that she had legally resided and worked in Canada for at least one year, the
applicant submits that the officer’s decision was nonetheless unreasonable
because it was based on a lack of evidence of her residency status, evidence
that the applicant was specifically instructed not to include by the applicable
checklist.
[15]
Finally,
the applicant submits that she was not given the opportunity to present her
case fully and fairly. There was nothing in the applicant’s application to
suggest that she had not been legally residing in Canada or working in Canada for at least
twelve months prior to the submission. Therefore, the immigration officer had a
duty to inform her of the officer’s concerns and allow her the opportunity to
reply. Had the applicant known that evidence beyond what CIC requested in their
checklist was required, she would have provided this.
Respondent’s Written Submissions
[16]
The
applicant’s application was not recommended for further processing simply
because she was not legally residing and working in Canada at the time
her application was received. There is no dispute that the applicant was
unemployed at the time, so while she was legally residing in Canada, she was not
a temporary foreign worker.
[17]
The
applicant’s argument that she was only required to have worked in Canada for twelve
months at any time is incorrect. This Court has definitively stated that the
Ministerial Instructions require a year of legal residence in Canada as a
temporary foreign worker or an international student immediately prior
to application (see Jin v. Canada (Minister of Citizenship
and Immigration), 2009 FC 1234, 86 Imm. L.R. (3d) 13). Nor does the
applicant’s suggested interpretation accord with the spirit, true intent and
meaning of the Ministerial Instructions. The true intent was to prioritize the
processing of those applicants with experience in categories of occupations
that are needed in Canada and those who could make an immediate
contribution to the Canadian economy and easily integrate into the labour
market.
[18]
In
any event, the applicant’s departure from Canada before the
application was received by the respondent has rendered her claim academic. The
jurisprudence makes it clear that the lock-in date for the processing of an application
is the date that the application is received by the respondent. Therefore, she
was not a legal resident, even if her reading of the Ministerial Instructions
is correct.
Analysis and Decision
[19]
Issue
1
What is the standard of
review?
In accordance with the
direction of the Supreme Court of Canada in Dunsmuir v. New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the appropriate standard of
review for the immigration officer’s factual determination is reasonableness. Dunsmuir
above, also confirms that curial deference is to be extended to an
administrative body’s interpretations of their enabling legislation and
applicable subordinate enactments and rules with which it will have particular
familiarity (at paragraph 54). Thus, the immigration officer’s interpretation
of the Ministerial
Instructions is to be afforded deference.
[20]
Of
course, where an issue of procedural fairness is brought to the Court’s
attention, no federal board, commission or tribunal is to be afforded
deference. Administrative processes, including the Commission’s, must be fair
(see Donoghue v. Canada (Minister of National Defense), 2010 FC 404 at
paragraph 27 and Ellis-Don Ltd. v. Ontario (Labour Relations Board), 2001
SCC 4, [2001] 1 S.C.R. 221 at paragraph 65).
[21]
Issue
2
Did
the immigration officer commit a reviewable error of fact or law in concluding
that the applicant’s application did not meet the requirements of the
Ministerial Instructions?
The
relevant portion of the Ministerial Instructions reads as follows:
Federal Skilled Worker
applications submitted on or after February 27, 2008, meeting the following
criteria shall be placed into processing immediately upon receipt:
-
Applications
submitted with an offer of Arranged Employment and applications submitted by
foreign nationals residing legally in Canada for at least one year
as Temporary Foreign Workers or International Students;
…
[22]
As
noted, the applicant points out that the text does not explicitly require that
a year of legal residence in Canada as a temporary foreign worker or an international
student be completed immediately prior to submission of the application.
Indeed, submits the applicant, there is no temporal restriction at all.
[23]
The
applicant suggests that the text be interpreted to allow for any one year of
legal work or studies in Canada, as long as the applicant has maintained
legal residency, i.e. a valid work permit or study permit, at the time the
application is received by the CIO.
[24]
While
this may be a reasonable compromise, it cannot overturn the CIO’s
interpretation. The applicant’s suggested interpretation is no more in
conformity with the actual words of the Ministerial Instructions than the
CIO’s. Further, the CIO’s interpretation is to be afforded deference and will
not be found unreasonable merely because an alternative interpretation is
suggested.
[25]
In
addition, the CIO’s interpretation has been affirmed as correct by this Court
in Jin above, at paragraphs 11 and 12:
The terms of the Instructions are clear
on the residency requirements. The words "applications submitted by
foreign nationals residing legally in Canada
for at least one year as Temporary Foreign Workers or International
Students" suffer no ambiguity. The choice of verb tense makes it
abundantly clear that the Temporary Foreign Worker or the International Student
must have been residing legally in Canada
for at least one year immediately prior to his or her application. The French wording is also
unambiguous and conveys the same meaning: «demandes présentées par des
étrangers vivant légalement au Canada depuis au moins une année à titre de
travailleurs étrangers temporaires ou d'étudiants étrangers».
Where the Ministerial instructions wish
to convey that a past period of time can be considered, they state so clearly,
such as in the footnote concerning applications from skilled workers with
evidence of experience which clearly provides for recognition of past
experience in the following terms: "[a]t least one year of continuous
full-time or equivalent paid work experience in the last ten years".
As a result, I would not interfere with the
CIO’s interpretation of the Ministerial Instructions.
[26]
This
disposes of the applicant’s first argument. Once the immigration officer’s
interpretation is accepted, there remains no question as to whether the correct
determination was reached.
[27]
Issue
3
Did
the immigration officer provide the applicant with a fair process?
Again, since I have determined
that there was nothing unlawful about the immigration officer’s interpretation
of the Ministerial Instructions, there can be no claim of procedural
unfairness.
[28]
To
repeat, the applicant’s argument on this issue is that since there was nothing
in her application to suggest that she had not been legally residing in Canada
or working in Canada for at least
twelve months prior to the submission of her application, the immigration
officer had a duty to inform her of the officer’s concerns. This argument is of
course based on the applicant’s interpretation that she need only have worked
for at least twelve months at any time in the past in Canada.
[29]
I
accept the proposition that if an application, on its face meets all of the
applicable requirements, an immigration officer would be under a duty to inform
the applicant of any other consideration or concern prior to rejection. Here,
the application was clearly missing a required component. The CIC’s posted checklist
required submission of a letter of employment or other proof of employment
status. The applicant submitted neither and simply indicated that she was
unemployed.
[30]
There
was no breach of procedural fairness in this case.
[31]
The
application for judicial review is therefore dismissed.
[32]
After
the hearing of this matter, the applicant filed an additional document, namely,
the applicant’s temporary resident visa (multiple-entry valid from April 21,
2008 to September 18, 2009). I will allow this document to be filed. However, I
am of the view that this document does not assist the applicant as at the date
of the lock-in, the applicant’s job offer had been withdrawn and she was not
working in Canada.
[33]
The
applicant proposed the following serious question of general importance for my
consideration for certification:
Are the words “residing legally” in the
criteria under Category Three of the Ministerial Instructions properly defined
as physical presence in Canada or do they include legal temporary resident
status in Canada as a worker or student and are the words “at least one year as
Temporary Foreign Workers or International Students” restricted to the year
“immediately prior” [sic] the application is received by the Centralized
Intake Office in Sydney, Nova Scotia or do they include any year of previous
work or study in Canada as long as the Applicant has maintained unbroken valid
temporary resident status?
[34]
I
am not prepared to certify this question as it is not determinative of the
issues of this case and as well, it has also been determined previously by this
Court.
JUDGMENT
[35]
IT
IS ORDERED that the application for judicial review is dismissed and no
question is certified.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Immigration and Refugee Protection
Act, S.C.
2001, c. 27
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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.
87.3(1) This section applies to
applications for visas or other documents made under subsection 11(1), other
than those made by persons referred to in subsection 99(2), sponsorship
applications made by persons referred to in subsection 13(1), applications
for permanent resident status under subsection 21(1) or temporary resident
status under subsection 22(1) made by foreign nationals in Canada and to
requests under subsection 25(1) made by foreign nationals outside Canada.
(2) The
processing of applications and requests is to be conducted in a manner that,
in the opinion of the Minister, will best support the attainment of the
immigration goals established by the Government of Canada.
(3) For the
purposes of subsection (2), the Minister may give instructions with respect
to the processing of applications and requests, including instructions
(a)
establishing categories of applications or requests to which the instructions
apply;
(b)
establishing an order, by category or otherwise, for the processing of
applications or requests;
(c) setting
the number of applications or requests, by category or otherwise, to be
processed in any year; and
(d) providing
for the disposition of applications and requests, including those made
subsequent to the first application or request.
(4) Officers
and persons authorized to exercise the powers of the Minister under section
25 shall comply with any instructions before processing an application or
request or when processing one. If an application or request is not
processed, it may be retained, returned or otherwise disposed of in
accordance with the instructions of the Minister.
(5) The fact
that an application or request is retained, returned or otherwise disposed of
does not constitute a decision not to issue the visa or other document, or
grant the status or exemption, in relation to which the application or
request is made.
(6)
Instructions shall be published in the Canada Gazette.
(7) Nothing in
this section in any way limits the power of the Minister to otherwise
determine the most efficient manner in which to administer this Act.
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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.
87.3(1)
Le présent article s’applique aux demandes de visa et autres documents visées
au paragraphe 11(1), sauf celle faite par la personne visée au paragraphe
99(2), aux demandes de parrainage faites par une personne visée au paragraphe
13(1), aux demandes de statut de résident permanent visées au paragraphe
21(1) ou de résident temporaire visées au paragraphe 22(1) faites par un
étranger se trouvant au Canada ainsi qu’aux demandes prévues au paragraphe
25(1) faites par un étranger se trouvant hors du Canada.
(2)
Le traitement des demandes se fait de la manière qui, selon le ministre, est
la plus susceptible d’aider l’atteinte des objectifs fixés pour l’immigration
par le gouvernement fédéral.
(3)
Pour l’application du paragraphe (2), le ministre peut donner des
instructions sur le traitement des demandes, notamment en précisant l’un ou
l’autre des points suivants :
a)
les catégories de demandes à l’égard desquelles s’appliquent les
instructions;
b) l’ordre de
traitement des demandes, notamment par catégorie;
c) le nombre
de demandes à traiter par an, notamment par catégorie;
d)
la disposition des demandes dont celles faites de nouveau.
(4)
L’agent — ou la personne habilitée à exercer les pouvoirs du ministre prévus
à l’article 25 — est tenu de se conformer aux instructions avant et pendant
le traitement de la demande; s’il ne procède pas au traitement de la demande,
il peut, conformément aux instructions du ministre, la retenir, la retourner
ou en disposer.
(5)
Le fait de retenir ou de retourner une demande ou d’en disposer ne constitue
pas un refus de délivrer les visa ou autres documents, d’octroyer le statut
ou de lever tout ou partie des critères et obligations applicables.
(6)
Les instructions sont publiées dans la Gazette du Canada.
(7)
Le présent article n’a pas pour effet de porter atteinte au pouvoir du
ministre de déterminer de toute autre façon la manière la plus efficace
d’assurer l’application de la loi.
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