Date: 20090729
Docket: IMM-4975-08
Citation: 2009 FC 776
Toronto, Ontario, July 29,
2009
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
RAMI
EL HABET
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Rami El Habet seeks
judicial review of the decision of a visa officer refusing his application for
permanent residence as a skilled worker. Mr. El Habet says that the
officer erred in failing to carry out a substituted evaluation with respect to
his ability to become economically established in Canada, and in failing to consider humanitarian and compassionate
factors in relation to his application. Mr. El Habet also asserts that
the officer’s failure to interview him meant that he was denied
procedural fairness in relation to his application.
[2]
For the reasons that
follow, I am not persuaded that the officer erred as alleged.
Consequently, the application will be dismissed.
The Failure
to Conduct a Substitute Evaluation
[3]
Mr. El Habet’s
application was assessed in relation to the selection criteria set out in
section 76 of the Immigration and Refugee Protection Regulations. To qualify as a skilled worker,
a candidate needs to obtain 67 points. Mr. El Habet received a total of
66 points, including 10 points for his English language ability, based upon his
results in an International English Language Test System (or
“IELTS”) test.
[4]
Mr. El Habet
does not take any issue with either the fairness or the accuracy of the points
awarded to him by the visa officer in this case, including the points awarded
for his linguistic capabilities. Rather, he argues that his English language
abilities would have improved quickly once he came to Canada, and that the officer erred in failing
to recognize this. In the circumstances, Mr. El Habet says that it was
incumbent on the visa officer to carry
out a substituted evaluation with respect to his ability to become economically
established in Canada.
[5]
The
jurisprudence of this Court is clear that there is no obligation on a visa
officer to carry out a
substituted evaluation of an applicant’s ability to become economically
established in Canada, in the absence of a request for such an evaluation by
the applicant: see, for example, Lam v. Canada (Minister of Citizenship and
Immigration), [1998] F.C.J. No. 1239 and Lu v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 520.
[6]
Given that Mr. El
Habet did not request the exercise of the visa officer’s discretion with
respect to a substituted evaluation, the failure of the officer to exercise his
discretion in this regard does not amount to a reviewable error.
The Failure
of the Visa Officer to Interview Mr. El Habet
[7]
Mr. El Habet also
argues that he was denied procedural fairness in this matter, as a result of
the failure of the officer to interview him in order to carry out a further
evaluation of Mr. El Habet’s English language skills.
[8]
The assessment of an
applicant’s proficiency in either of Canada’s
official languages is governed by section 79 of the Regulations.
Subsection 79(4) of the Regulations provides that the results of an assessment
of the language proficiency of an applicant by a designated organization or
institution, and the correlation of those results with the benchmarks in
accordance with subsection 79(3) of the Regulations are conclusive evidence of
the skilled worker's proficiency in the official languages of Canada for the
purposes of the Regulations. The IELTS test carried out in this case was done
by a designated organization or institution.
[9]
Mr. El Habet does not
take issue with the 10 points awarded to him with respect to his English
language proficiency, nor do I understand there to be any question with respect
to the correlation of the results of his IELTS test with the benchmarks set out
in the Regulations. These were, therefore, conclusive evidence of Mr. El
Habet’s English language proficiency. In these circumstances, it
was unnecessary for, or even open to, the visa officer to carry out a further
evaluation of Mr. El Habet’s English language skills by means of a
personal interview.
The Failure
of the Visa Officer to Consider H&C Factors
[10]
Finally, Mr. El Habet
asserts that the visa officer erred in failing to have regard to the
humanitarian and compassionate factors in his case, in particular, the fact
that he is a stateless Palestinian.
[11]
Section 25 of the Immigration
and Refugee Protection Act provides for the granting of an exemption from
criteria imposed by the Act, where justified, “upon request of a
foreign national”. [my emphasis]
[12]
I will assume for the
purposes of this decision that it is open to a visa officer to take H&C
factors into account in assessing an application for permanent residency as a
skilled worker. However, Mr. El Habet never requested an exemption from
the requirements of the Act on humanitarian and compassionate grounds, nor did
he ever ask the visa officer to consider the fact that he was a stateless
Palestinian in assessing his application. In the circumstances, the visa
officer could hardly be faulted for failing to consider H&C factors in this
case.
Conclusion
[13]
In her argument,
counsel repeatedly emphasized the fact that Mr. El Habet was young, single,
well-educated, affluent, and had a family member in Canada, in submitting that the decision of the visa officer was
unreasonable. While these were undoubtedly factors operating in Mr. El
Habet’s favour, each of these factors was taken into account in the
assessment of application, and each is reflected in the points that were
awarded to him.
[14]
While Mr. El Habet
was understandably disappointed by the rejection of his application for
permanent residence, he has not persuaded me that the visa officer acted in a
procedurally unfair manner in the assessment of the application, or that the
decision itself was unreasonable. Consequently, the application for
judicial review is dismissed.
Certification
[15]
Neither party has
suggested a question for certification, and none arises here.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES that:
1. This
application for judicial review is dismissed; and
2.
No serious question of general
importance is certified.
“Anne
Mactavish”
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