Date: 20090226
Docket: IMM-3310-08
Citation: 2009 FC 207
Ottawa, Ontario, February 26, 2009
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
VIKAS
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
O’KEEFE J.
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA), for judicial review of the
decision of a visa officer at the Canadian Consulate General in Detroit (the officer)
dated May 20, 2008, wherein the officer denied the applicant for permanent
residence as a member of the economic class.
[2]
The
applicant requests the following relief:
1. An order for a writ
of certiorari quashing the decision;
2. An order for a writ
of mandamus directing that:
- The
respondent reassess the application at a different visa office and/or by
a different visa officer;
- In the
event that the respondent develops concerns about the application, that
they should apprise the applicant of their concerns and provide an
opportunity to address them;
- That
costs on a solicitor and client scale be granted; and
- Such
other relief as the Court may deem just and equitable.
Background
[3]
Vikas
(his only name) filed an application for permanent residence as a skilled
worker through the Consulate in Buffalo, New York on or about July 31, 2006. He listed
the occupations of cashier supervisor (NOC 6211), retail store supervisor-retail
(NOC 6211) and/or supervisor-retail (NOC 6211) in his application.
[4]
The
respondent requested information via letter in the summer of 2007. The letter
was sent to the wrong address and resent in November of that year.
[5]
The
applicant attended a two-part interview in Detroit on April 30, 2008. The first
part was conducted by H. Roznawski and the latter part by the officer, Ms. J.
Stoneberg who made the final decision on this file. The applicant’s educational
background and work experience were discussed.
[6]
At
the interview, the applicant provided information about his employers,
responsibilities and hours worked. The officer confirmed with him that while he
was employed with MIRC Electronics Ltd. (MIRC), he worked 30 hours per week
from January 2001 to December 2004 and then 40 hours per week from January 2005
to August 2005. At the end of the interview, the officer performed a
calculation on paper, without explaining exactly what she was doing or making
any further comment. The applicant understood this silence to mean that she was
satisfied that he had sufficient hours and the interview ended there. He states
that the officer never told him that she would be awarding him only 19 points
for his work experience. The applicant was asked to provide further details
with respect to his employment at MIRC and provided with two weeks to provide
further documentation.
Officer’s Decision
[7]
In
her decision dated May 20, 2008, the officer determined that the applicant did
not meet the requirements for immigration to Canada as a member
of the economic class, skilled worker. The officer informed the applicant that
pursuant to subsection 76(1) of the Immigration and Refugee Protection
Regulations, S.O.R./2002-227 (the Regulations), skilled worker applicants
are assessed based on certain selection criteria.
[8]
The
applicant received 66 points in total whereas 67 is the minimum required. The applicant
received no points for arranged employment or adaptability and 12 of a possible
24 for language, but has not raised any issue with respect to these
conclusions. The applicant received 19 out of a possible 21 points for
experience and this is the finding that is being challenged.
[9]
The
officer accepted that the applicant met the requirements to be assessed under
NOC 6211 retail trade supervisor through his experience working at MIRC. The
reason he received only 19 points was that he did not satisfy the minimum
number of months of work experience (48 months) required to receive 21 points.
The officer calculated his work experience as follows:
4 years x 52 weeks x 30 hours/week = 3.2
years of work experience
3.2 years + 8 months full-time work =
46.4 months of work experience
Issue
[10]
Did
the officer breach her duty of fairness by failing to alert the applicant to
her concerns as to the number of points that she intended to award him for his
work experience?
Applicant’s Submissions
[11]
The
applicant states that he was surprised that the application was refused because
the applicant was 1.6 months short of the minimum experience required for 21
points since he was not informed of the officer’s concerns during the interview
or thereafter or that he would be receiving only 66 points in total. He was
also not provided with the chance to respond. This is a breach of the duty of
fairness.
[12]
An
officer must provide an applicant with the opportunity to respond to any
concerns before a negative assessment is rendered. If the officer breaches the
duty of fairness, the decision is quashed and remitted to a different visa
officer.
[13]
For
example, in Muliadi v. Canada (Minister of Employment
and Immigration), [1986] 2 F.C. 205, the application was dismissed largely due
to information received from provincial authorities. The applicant was not
given a chance to respond to the concerns of the officer who was found to have
breached the duty of fairness.
[14]
Other
cases, including Fong v. Canada (Minister of Employment
and Immigration), [1990] F.C.J. No. 641 and Yang v. Canada (Minister of
Employment and Immigration), [1989] F.C.J. No. 218, have concluded that the
officer must ask appropriate questions to address any concerns that an
application is deficient.
[15]
There
is no good reason why the officer could not have alerted the applicant to her
concerns. Furthermore, because he was not informed, she denied the applicant
the opportunity to request that she exercise her discretion positively pursuant
to subsection 76(3) of the Regulations to accept the applicant even if he was
missing one point.
[16]
The
applicant submits that he is the ideal candidate for Canada. He is well
educated, and had lived in Canada for almost two and a half years at the time
of the interview, having studied for almost two years and worked for almost one
year in this country. Any reasonable person would conclude that he could
successfully establish himself economically here and the point total of 66 is
not an accurate indicator. This case cries out for substituted evaluation as
the only reason the applicant was refused is that he was 1.6 months short of
work experience.
[17]
The
applicant further submits that the officer must assess the applicant’s
experience and time spent to award units of assessment for experience. In this
case, the officer failed in doing so.
Respondent’s Submissions
[18]
First,
the officer was not under any obligation to provide the applicant with a
“running score” at each step or to stress all of her concerns which arose
directly from the Act and Regulations that bind the officer’s assessment: Abanzukwe
v. Canada (Minister of Citizenship and Immigration), [2001]
F.C.J. No. 1181 at paragraph 11; Ali v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 468 at paragraphs 18
to 21; Ashghar v. Canada (Minister of Citizenship and Immigration), [1997]
F.C.J. No. 1091 at paragraph 21. The cases cited by the applicant are not
applicable because they relate to concerns arising from extrinsic evidence,
rather than the Act and Regulations.
[19]
Second,
the applicant was given an opportunity to provide additional documents as he
was given two weeks to submit further information after the interview.
[20]
The
applicant could, as most applicants do, have requested a substituted evaluation
at any time prior to a decision being made. The applicant is presumed to know
the law and was represented by experienced counsel.
Applicant’s Reply
[21]
Though
the officer is not obligated to provide a “running score”, the unique
circumstances of this case required that the applicant be alerted to the officer’s
concerns.
[22]
Furthermore,
the applicant submits, Muliadi above, is not restricted to the issue of
third party or extrinsic evidence: see for example Dhaliwal v. Canada (Minister of Employment
and Immigration),
[1992] F.C.J. No. 122 and Fong above.
[23]
Also,
the fact that the applicant was invited to provide further information about
his employment at MIRC is irrelevant since the CAIPs notes from after the
interview show that the officer was satisfied the applicant was employed there
in his intended occupation and the applicant had already informed her of the
hours he worked there.
[24]
Finally,
the Act and Regulations seek to attract skilled workers who are able to
establish themselves economically in Canada. The applicant would clearly have little
trouble in doing so.
Analysis and Decision
[25]
Issue
Did the officer breach
her duty of fairness by failing to alert the applicant to her concerns as to
the number of points that she intended to award him for his work experience?
The applicant in the present
case was one point short of the required 67 points needed for his application
to be successful.
[26]
As
noted earlier, the officer part way through the interview informed the
applicant that she wanted to determine whether he had enough hours. She then
proceeded to perform some type of calculation in the presence of the applicant.
After she finished the calculation, she continued the interview.
[27]
Apparently,
the officer concluded from her calculation that the applicant did not have
sufficient work experience to qualify for the 21 points. The officer did not
tell the applicant the result of her calculation.
[28]
The
issue now becomes whether the officer’s failure to notify the applicant of the
result of her calculation amounts to a breach of the duty of procedural
fairness.
[29]
I
agree with the respondent that an officer is not required to give an applicant
a running score at each step of the interview. However, I am of the view that
the facts of the present case are unique. It was not unreasonable for the
applicant to assume that the results of the officer’s calculation were
favourable to him when she did not tell him the results were not in his favour.
[30]
I
am of the opinion that the failure of the officer to tell the applicant of the
negative result of her calculations, on the unique facts of this case, resulted
in a breach of the duty of procedural fairness.
[31]
Since
I have found a breach of the duty of procedural fairness, I must set the
officer’s decision aside.
[32]
The
decision of the officer is therefore set aside and the matter is referred to a
different officer for redetermination.
[33]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[34]
IT
IS ORDERED that the application for judicial review is allowed, the decision
of the officer is set aside and the matter is referred to a different officer
for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
The
relevant statutory provisions are set out in this section.
The
Immigration and Refugee Protection Regulations, SOR/2002-227:
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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).
(2) The
Minister shall fix and make available to the public the minimum number of
points required of a skilled worker, on the basis of
(a) the number
of applications by skilled workers as members of the federal skilled worker
class currently being processed;
(b) the number
of skilled workers projected to become permanent residents according to the
report to Parliament referred to in section 94 of the Act; and
(c) the
potential, taking into account economic and other relevant factors, for the
establishment of skilled workers in Canada.
(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.
80.(1) Up to a
maximum of 21 points shall be awarded to a skilled worker for full-time work
experience, or the full-time equivalent for part-time work experience, within
the 10 years preceding the date of their application, as follows:
(a) for one
year of work experience, 15 points;
(b) for two
years of work experience, 17 points;
(c) for three
years of work experience, 19 points; and
(d) for four
or more years of work experience, 21 points.
(2) For the
purposes of subsection (1), points are awarded for work experience in
occupations, other than a restricted occupation, that are listed in Skill
Type 0 Management Occupations or Skill Level A or B of the National
Occupational Classification matrix.
(3) For the
purposes of subsection (1), a skilled worker is considered to have experience
in an occupation, regardless of whether they meet the occupation's employment
requirements of the occupation as set out in the occupational descriptions of
the National Occupational Classification, if they performed
(a) the
actions described in the lead statement for the occupation as set out in the
National Occupational Classification; and
(b) at least a
substantial number of the main duties of the occupation as set out in the
occupational descriptions of the National Occupational Classification,
including all the essential duties.
(4) A period
of work experience that exceeds full-time work in one occupation, or
simultaneous periods of work experience in more than one full-time
occupation, shall be evaluated as a single period of full-time work
experience in a single occupation.
(5) A skilled
worker must specify in their application for a permanent resident visa the
four-digit code of the National Occupational Classification that corresponds
to each of the occupations engaged in by the applicant and that constitutes
the skilled worker's work experience.
(6) An officer
is not required to consider occupations that have not been specified in the
application.
(7) For the
purposes of this section, full-time work is equivalent to at least 37.5 hours
of work per week.
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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).
(2)
Le ministre établit le nombre minimum de points que doit obtenir le
travailleur qualifié en se fondant sur les éléments ci-après et en informe le
public :
a) le nombre
de demandes, au titre de la catégorie des travailleurs qualifiés (fédéral),
déjà en cours de traitement;
b)
le nombre de travailleurs qualifiés qui devraient devenir résidents
permanents selon le rapport présenté au Parlement conformément à l’article 94
de la Loi;
c)
les perspectives d’établissement des travailleurs qualifiés au Canada, compte
tenu des facteurs économiques et autres facteurs pertinents.
(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).
(4)
Toute décision de l’agent au titre du paragraphe (3) doit être confirmée par
un autre agent.
80.(1)
Un maximum de 21 points d’appréciation sont attribués au travailleur qualifié
en fonction du nombre d’années d’expérience de travail à temps plein, ou
l’équivalent temps plein du nombre d’années d’expérience de travail à temps
partiel, au cours des dix années qui ont précédé la date de présentation de
la demande, selon la grille suivante :
a)
pour une année de travail, 15 points;
b) pour deux
années de travail, 17 points;
c) pour trois
années de travail, 19 points;
d) pour quatre
années de travail, 21 points.
(2)
Pour l’application du paragraphe (1), des points sont attribués au
travailleur qualifié à l’égard de l’expérience de travail dans toute
profession ou tout métier appartenant aux genre de compétence 0 Gestion ou
niveaux de compétences A ou B de la matrice de la Classification nationale
des professions — exception faite des professions d’accès limité.
(3)
Pour l’application du paragraphe (1), le travailleur qualifié, indépendamment
du fait qu’il satisfait ou non aux conditions d’accès établies à l’égard
d’une profession ou d’un métier dans la Classification nationale des
professions est considéré comme ayant acquis de l’expérience dans la
profession ou le métier :
a) s’il a
accompli l’ensemble des tâches figurant dans l’énoncé principal établi pour
la profession ou le métier dans les descriptions des professions de cette
classification;
b) s’il a
exercé une partie appréciable des fonctions principales de la profession ou
du métier figurant dans les descriptions des professions de cette
classification, notamment toutes les fonctions essentielles.
(4)
Les heures supplémentaires effectuées dans le cadre d’un emploi à temps plein
sont sans effet sur le calcul de l’expérience acquise dans cet emploi, non
plus que le fait d’occuper simultanément plusieurs emplois à temps plein.
(5)
Le travailleur qualifié indique dans sa demande de visa de résident
permanent, à l’aide du code à quatre chiffres de la Classification nationale
des professions, toutes les professions qu’il a exercées et qui correspondent
à son expérience de travail.
(6)
L’agent n’a pas à tenir compte des professions qui ne sont pas mentionnées
dans la demande.
(7)
Pour l’application du présent article, le travail à temps plein équivaut à au
moins trente-sept heures et demie de travail par semaine.
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