Date: 20091210
Docket: IMM-2077-09
Citation: 2009 FC 1258
Ottawa, Ontario, December 10, 2009
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
TIKVAH BERYL ABRO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), of the decision of
Immigration Officer Theresa Bason (the Officer) refusing to substitute her
evaluation of the Applicant’s application for permanent residence in Canada under
the federal skilled worker class.
Factual Background
[2]
Tikvah
Beryl Abro (the Applicant) made an application for permanent residence as a
member of the federal skilled worker class to the High Commission of Canada in Pretoria, South
Africa. She is a citizen of South Africa and has two adult
children who are Canadian citizens. She made her initial application in
November 2008 but did not have the requisite number of points to be granted
permanent resident status. Consequently, she requested an officer’s substituted
evaluation under subsection 76(3) of the Immigration and Refugee Protection
Regulations, SOR/2002-227 (the Regulations).
[3]
In
her decision dated March 20, 2009, the Officer refused to substitute a positive
evaluation and did not grant the application. The Applicant now seeks review of
this decision.
Impugned Decision
[4]
In
both the decision and her CAIPS notes, the Officer indicates that she has
considered the Applicant’s submissions in support of the evaluation under
subsection 76(3) of the Regulations, including the Applicant’s extensive work
experience, arranged employment, available settlement funds and the support of
her children in Canada. However, after a review of the factors, the
Officer concludes that the 62 points awarded are an accurate reflection of the
Applicant’s ability to become economically established in Canada and the use of
a substituted evaluation is not appropriate.
[5]
The
Officer specifies she has come to this determination because the Applicant has
run her own business in South Africa since 1986 and has not
worked for an employer since that time. Also, the Applicant did not take up
employment or establish herself in Canada when she was previously
granted permanent resident status in 1997. Finally, the Officer notes that if
the Applicant wishes to take up permanent residence in Canada, she can be
sponsored by one of her sons in Canada.
Relevant Legislation
[6]
Immigration
and Refugee Protection Regulations, SOR/2002-227.
|
76.
(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.
|
76.
(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) — ne reflète
pas 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).
|
Issue
[7]
The
Applicant raises only one issue:
a.
Did
the Officer err in her assessment of the substituted evaluation by failing to
take into account relevant facts and the totality of the Applicant’s
circumstances?
[8]
The
application for judicial review shall be allowed for the following reasons.
Analysis
Standard of review
[9]
Both
parties submit and the Court agrees that in accordance with Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 and the jurisprudence of
this Court, the assessment of an application for permanent residence under the
federal skilled worker class involves the exercise of discretion and should be
afforded considerable deference (Wang v. Canada (Minister of Citizenship and
Immigration), 2008 FC 798, [2008] F.C.J. No. 995 (QL); Requidan v.
Canada (Minister of Citizenship and Immigration), 2009 FC 237, [2009]
F.C.J. No. 280 (QL)). Accordingly, the decision attracts a standard of
reasonableness and there must be justification, transparency and
intelligibility within the decision making process. The decision must fall
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and the law (Dunsmuir, at paragraph 47).
Did the Officer err in
her assessment of the substituted evaluation by failing to take into account
relevant facts and the totality of the Applicant’s circumstances?
[10]
The
Applicant submits that the decision is unreasonable given the evidence before
the Officer. She argues that the Officer, as evidenced by her decision, did not
analyse the totality of the Applicant’s circumstances in refusing to substitute
her evaluation. The Applicant does not take issue with the points assessed,
only the decision regarding the substituted evaluation.
[11]
Moreover,
the Applicant argues that the visa officer failed to consider a number
of factors in deciding against substituting her evaluation for the points
assessed. Specifically, the Applicant contends that the Officer did not analyse
how the Applicant’s positive Arranged Employment Opinion might increase the
likelihood of the Applicant would work for an employer in Canada. She also advances
that the Officer did not consider the effect of her available settlement
funds. She adds that the Officer failed to analyse the reasons why she
previously gave up her permanent resident status and her current motivation for
submitting a new application. Lastly, she claims the Officer failed to explain
why an application under the skilled worker category instead of under the
family class category should lead to a negative substituted evaluation
decision.
[12]
The
Applicant relies on the decision in Choi v. Canada (Minister
of Citizenship and Immigration), 2008 FC 577, [2008] F.C.J.
No. 734 (QL) where it was found that an officer’s failure to refer to an
applicant’s settlement funds and to give no weight to a strong letter from the
school that wanted to hire the applicant rendered the decision unreasonable.
[13]
The
Respondent, on the other hand, states that considering the exceptional nature
of a substituted evaluation, written reasons, although desirable, are not
required. The officer need only inform an applicant that the request for the
substituted evaluation was considered (Poblado v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1167, [2005] F.C.J. No. 1424 (QL);
Requidan, above). Accordingly, the Officer need not address each factor
separately and her statement that she had considered the request and that she
believed that the points assessed are reflective of the Applicant’s ability to
become economically established is sufficient.
[14]
In
this case, the Officer states that she considered the request for substituted
evaluation but could not act upon it as she felt the points assessed accurately
reflected the Applicant’s ability to become economically established in Canada.
[15]
The
Court finds that the decision is unreasonable because the Officer had in front
of her the evidence that the Applicant was issued a Positive Arranged
Employment Opinion with Combined Metals Industries Inc. in Toronto that was
approved by Service Canada (HRSDC) (Tribunal's record, page 32) and the Applicant
had the equivalent of $450,000 Canadian to bring to Canada to become
established by selling her house in Johannesburg, South Africa (Tribunal's
record, page 37) of which no reference was made by the Officer (Choi, at
paragraph 22).
[16]
The
Court also finds that it was unreasonable for the Officer to conclude that the Applicant
would not become economically established in Canada because she had run her own
business in South
Africa
since 1986 and had not worked for an employer since that time. There is no
basis in the evidence to substantiate such a conclusion.
[17]
Although
the Officer's decision is a discretionary one, the Court considers that its
intervention is warranted.
[18]
In
its oral argument, the Applicant did not seek costs.
[19]
No
questions for certification were proposed and none arise.
JUDGMENT
THIS COURT
ORDERS that the application for
judicial review be allowed. The decision is quashed. The matter is
remitted back for redetermination by a newly appointed Officer. No question is
certified.
“Michel
Beaudry”
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