Date: 20090722
Docket: IMM-4664-08
Citation: 2009 FC 744
Ottawa, Ontario, July 22, 2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
GLENDA
ANGELES
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to s. 72 (1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (Act) for judicial review of a decision of
an Officer of Citizenship and Immigration Canada stationed at Makati City,
Philippines (Officer), dated August 13, 2008 (Decision), refusing the
Applicant’s application for a work permit.
BACKGROUND
[2]
The
Applicant is a citizen of the Philippines. She was born on
October 11, 1985 in San Miguel Pampanga, Philippines. She has
been married to Johnston Angeles for two years.
[3]
The
Applicant and her husband have a daughter, Jiah, who was born on December 20,
2006. The Applicant has made arrangements for her parents to look after Jiah
while she and her husband work as fish processors in Canada for two
years. The Applicant’s husband has secured a visa and is currently working as a
fish processor in British Columbia, Canada. The Applicant hopes
that by coming and working in Canada she can prepare a “better financial future
for [her and her] family.”
[4]
The
Applicant graduated from Guagua National College on March
2004 and is certified as a Nursing Aide. She has been working as a nursing aide
for over three years. She works at Mercy Clinic Hospital in Guagua, Pampanga, Philippines.
She draws a monthly salary of 8000 pesos per month, which is equivalent to
$195.00 CDN.
[5]
The
Applicant has received an offer of employment from Grand Hale, a fish
processing plant in Richmond, British Columbia as a fish processor. She
would be responsible to cut, clean and pack fish and other seafood products.
The Applicant would make $12 per hour CDN, which is 70720 pesos more per month
than she currently makes at her job.
[6]
The
Applicant completed a medical examination requested by the Canadian Consulate
in Makati City on June
6, 2008. She also received a positive Labour Market Opinion from Service
Canada.
DECISION UNDER REVIEW
[7]
The
Officer held that the Applicant was required to establish that she met all of
the requirements under Part 11 of the Immigration and Refugee Protection Regulations, SOR/2002-227
(Regulations):
(1) that she would not contravene the conditions of admission; (2) that she does
not belong in a category of persons inadmissible to Canada under the Act; (3)
that her intentions were bona fide; and (4) that she would leave Canada
by the end of the period authorized for her stay.
[8]
The
Officer concluded that the Applicant had not satisfied him that she would leave
Canada by the end
of the period authorized for her stay because she “h[ad] not demonstrated ties
that would satisfy [the Officer] of [the Applicant’s] intention to return.”
[9]
The
Officer indicated that the Applicant did not meet the requirements of the Act
and the Regulations and her application was refused.
[10]
In
the Officer’s CAIPS notes, he noted that the Applicant’s qualifications were
inconsistent with her desired employment in Canada, since she worked in health
care but had prospective employment that required “repetitive, manual,
labour-intensive tasks.” The Officer expressed concern about whether the
Applicant “would be able to perform [the] duties and terms and conditions of
the contract and the LSP.”
[11]
The
Officer also noted the Applicant’s present weak economic ties and noted that
her spouse was applying for the same job, which further weakened familial ties.
ISSUES
[12]
The
Applicant submits the following issues on this application:
1)
Should
the Officer’s Decision be quashed and the matter be referred back for a fresh
decision by another officer on the basis that it is unreasonable in law?
STATUTORY PROVISIONS
[13]
The
following provisions of the Act are applicable in this proceeding:
|
20. (1) Every foreign national, other than a
foreign national referred to in section 19, who seeks to enter or remain in Canada
must establish,
…
(b) to become a temporary resident, that they hold the
visa or other document required under the regulations and will leave Canada
by the end of the period authorized for their stay.
|
20. (1) L’étranger non visé à l’article 19 qui cherche à entrer au Canada
ou à y séjourner est tenu de prouver :
…
b) pour devenir
un résident temporaire, qu’il détient les visa ou autres documents requis par
règlement et aura quitté le Canada à la fin de la période de séjour
autorisée.
|
STANDARD OF REVIEW
[14]
The
Applicant submits that the standard of review of a decision of a visa officer
is the standard applicable to the Immigration of Refugee Board which, in the
Applicant’s view, is correctness: Dunsmuir v. New Brunswick, 2008 SCC 9
(Dunsmuir) and Pushpanathan v. Canada (Minister of
Citizenship and Immigration), [1998] 1 S.C.R. 982.
[15]
The
Respondent submits that the Officer’s assessment of the application for a work
permit involved an exercise of statutory discretion which should be given a
high degree of deference. Therefore, the appropriate standard of review is
reasonableness: Dunsmuir. The Respondent also submits that this Court
defer to an officer’s decision if his or her findings are justified,
transparent and intelligible, and fall within the range of possible outcomes
given the evidence as a whole. See: Dunsmuir and Choi v. Canada (Minister of
Citizenship and Immigration) 2008 FC 577. The Respondent says that the
standard of review is not correctness as the Applicant asserts.
[16]
The
standard of review for decisions of a visa officer has been reasonableness simpliciter:
Castro v. Canada (Minister
of Citizenship and Immigration) 2005 FC 659 at paragraph 6 and Ram v. Canada (Minister of Citizenship and Immigration),
[2003]
F.C.J. No. 855. When a visa officer refuses a work permit solely on
statutory interpretation, the standard of review is correctness: Singh v. Canada (Minister of
Citizenship and Immigration) 2006 FC 684 at paragraph 8 and Hamid v. Canada (Minister of Citizenship and
Immigration) 2005 FC 1632 at paragraph 4.
[17]
In Dunsmuir, the Supreme
Court of Canada recognized that, although the reasonableness simpliciter
and patent unreasonableness standards are theoretically different, “the analytical
problems that arise in trying to apply the different standards undercut any
conceptual usefulness created by the inherently greater flexibility of having
multiple standards of review”: Dunsmuir at paragraph 44.
Consequently, the Supreme Court of Canada held that the two reasonableness
standards should be collapsed into a single form of “reasonableness” review.
[18]
The Supreme Court of Canada in Dunsmuir also held that the
standard of review analysis need not be conducted in every instance. Instead,
where the standard of review applicable to the particular question before the
court is well-settled by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless must the reviewing
court undertake a consideration of the four factors comprising the standard of
review analysis.
[19]
Thus, in light of the Supreme Court of Canada’s decision in Dunsmuir and
the previous jurisprudence of this Court, I find the standard of review
applicable to the stated issue to be reasonableness. When reviewing a decision
on the standard of reasonableness, the analysis will be concerned with “the
existence of justification, transparency and intelligibility within the
decision-making process [and also with] whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: Dunsmuir at paragraph 47. Put another way,
the Court should only intervene if the Decision was unreasonable in the sense that it falls
outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law.”
[20]
In
written arguments the Applicant also raised procedural fairness issues. The
standard of review for procedural fairness is correctness: Suresh v. Canada (Minister of
Citizenship and Immigration) 2002 SCC 1.
ARGUMENTS
The
Applicant
[21]
The
Applicant says that the Officer’s Decision should be quashed and the matter
referred back for a fresh decision by another Officer on the basis that it is
unreasonable in law. The Applicant says that she meets the requirements of
section 20 of the Act and that the Officer’s Decision was unreasonable since
relevant evidence was ignored and unwarranted assumptions drawn.
[22]
The
Applicant submits that the Officer made assumptions that the Applicant was not
economically established and would not return to the Philippines on the expiry of her work
permit. The Applicant says that this is “without foundation, irrational and
untenable.”
[23]
As
well, the Applicant states that the Officer ignored the relevant facts in front
of him including that the Applicant:
1)
Has
an active working history;
2)
Has
a daughter and elderly parents in the Philippines;
3)
Owns
and will inherit property in the Philippines;
4)
Has
customs and traditions that are consistent with her returning to her homeland
upon the expiration of the work permit; and
5)
Deposed
in her affidavit that she is aware that this employment contract is not
extendable.
[24]
The
Applicant states that, even in applying the most stringent standard of review,
the Officer erred if he relied on a single fact to outweigh all the other
relevant facts provided by the Applicant. See: Guo v. Canada (Minister of
Citizenship and Immigration) 2001 FCT 1353; Yuan v. Canada (Minister of
Citizenship and Immigration) 2001 FCT 1356 and Malhi v. Canada (Minister of
Citizenship and Immigration) 2005 FC 1120.
[25]
The
Applicant submits that the Officer’s “purported personal experiences or
knowledge cannot be the primary basis of his decision. The decision must be
based primarily on the merits of the case.” See: Wang v. Canada (Minister of
Citizenship and Immigration) 2003 FCT 365.
[26]
The
Applicant says she was not given an opportunity to respond to any of the
concerns the Officer may have had. The Officer made unsupportable assumptions
when refusing her work permit application. She says she must be given an
opportunity to provide an explanation for perceived or apparent deficiencies
and respond to an Officer’s concerns. See: Vandi v. Canada (Minister of
Citizenship and Immigration) 2002 FCT 515 and Chow v. Canada (Minister of
Citizenship and Immigration) 2001 FCT 996.
Respondent
[27]
The
Respondent submits that the Officer considered all of the evidence,
particularly since the Officer’s CAIPS notes indicate that:
1)
The
Applicant has a two-year offer of employment in Canada;
2)
She
is a 22-year-old married female with one dependant;
3)
She has
no previous travel and no relatives in Canada;
4)
She has
been employed as a nursing aide since May 2004;
5)
Her
qualifications are inconsistent with her desired employment in Canada, as her work experience
is in health care;
6)
The
prospective employment is menial, repetitive and labour-intensive. There was
also some concern as to whether the Applicant would be able to perform the
duties specified; and
7)
Her
husband had applied for the same job, so this suggests weak familial ties.
[28]
The
Respondent submits that the Officer reasonably considered the Applicant’s
specific circumstances.
[29]
The
Respondent submits that the onus was on the Applicant to satisfy the Officer
that she would depart Canada at the end of the period authorized for any
temporary work in Canada. The Officer was
entitled to examine the totality of the circumstances relating to the
Applicant’s case. The Applicant’s financial and other ties to the Philippines, age, family
circumstances, and employment were all relevant factors for the Officer to
consider. When an applicant has an incentive to remain in Canada, this is part
of the “broader picture” that an officer ought to consider in assessing whether
an applicant will leave Canada at the end of the period authorized for any
temporary stay. The weight to be assigned to each factor is a matter for an
officer’s discretion and is not a basis for judicial review. See: Wang v.
Canada (Minister of Citizenship and Immigration) 2006 FC 1298 at paragraphs
9-10; Nguyen v. Canada (Minister of Citizenship and Immigration) 2005 FC 1087; Skoruk
v. Canada (Minister of
Citizenship and Immigration) 2001 FCT 1220 and Ayatollahi v. Canada
(Minister of Citizenship and Immigration) 2003 FCT 248 at paragraph 23.
[30]
In
relation to the Applicant’s argument that she should have been granted an
interview, the Respondent submits that the duty of fairness prescribes minimum
standards of procedural decency and that the content of the duty varies
according to context. Several factors tend to reduce the content of the duty of
fairness owed to visa applicants, some of which are considered in Chiau v.
Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297
(F.C.A.) at paragraphs 35-36. The factors tending to limit the content of the
duty in the case at bar include: the absence of a legal right to a visa; the
imposition on the applicant of the burden of establishing eligibility for a
visa; and the less serious impact on the individual that the refusal of a visa
typically has. See also: Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817 at paragraphs 21-28 and Ha v. Canada (Minister of
Citizenship and Immigration) 2004 FCA 49 at paragraph 37.
[31]
The
Respondent says that when dealing with the duty of fairness for determining
visa applications, the Court must guard against imposing a level of procedural
formality that, given the volume of applications that officers are required to
process, would unduly encumber efficient administration. The public interest in
containing administrative costs and in not hindering expeditious decision-making
must be weighted against the benefits of participation in the process by the
person directly affected. See: Khan v. Canada (Minister of
Citizenship and Immigration), [2002] 2 F.C. 413 (F.C.A.) and Fargoodarzi v.
Canada (Minister of
Citizenship and Immigration) 2008 FC 90.
[32]
The
Respondent concludes that the Applicant’s application should be dismissed.
ANALYSIS
[33]
The
assessment of an application for a work permit involves an exercise of
statutory discretion and attracts a high degree of deference from this Court.
Apart from the procedural fairness issues raised, the applicable standard of
review in this case is reasonableness. See: Dunsmuir and Choi.
[34]
The
Applicant says that the Decision is unreasonable because the Officer ignored all
of the relevant facts in front of him and did not make appropriate inquiries
about facts which were in question.
[35]
The
Decision makes it clear that all of the Applicant’s submissions were considered
and that the deciding factor was that the Applicant had failed to satisfy the Officer
that she would leave Canada at the end of the authorized period.
[36]
The
CAIPS notes reveal the Officer noted that the Applicant:
a) Was 22 years old and
married;
b) Had one dependent;
c) Had no declared
relatives in Canada;
d) Had completed a Nursing
Aide course and had worked as a Nursing Aide in a hospital;
e) Had job qualifications
inconsistent with the desired employment in Canada;
f)
Had
weak economic ties with the Philippines;
g) Had a husband who was
applying for the same job in Canada.
[37]
It
is, of course, always possible to disagree with a decision and to take issue
with it. But disagreement does not render a decision unreasonable. The fact
that a decision in favour of the Applicant might have been reasonable does not
mean that the Officer’s negative Decision was unreasonable. On the present
facts, I cannot say that the Officer ignored relevant evidence or made an
unreasonable Decision on the evidence presented by the Applicant. The weight to
be assigned to the various factors is a matter for the Officer’s discretion.
See Wang at paragraphs 9-10. The CAIPS notes reveal that the Officer
based his Decision on the fact that the Applicant did not appear to be
established in the Philippines and that she had weak
economic ties there. Also, her husband was applying for the same job in Canada,
which weakened familial ties.
[38]
The
Applicant says the evidence showed that she was well-established in the Philippines: she was born there;
she was married; she had a child and a job waiting for her there. Also, she
argues that she did not have weak economic ties because she was leaving behind
her daughter, siblings and parents, as well as a stable and permanent job that
she could go back to. She also points out that the Officer was speculating
about the requirements of the Canadian job and her inability to perform the
duties at the fish plant.
[39]
On
the other hand, she does appear to be ready to walk away from her child (in
fact, both husband and wife have shown themselves willing to leave their child
behind.)
[40]
I
can see that a decision in favour of the Applicant might also have been
reasonable. But there is nothing in this Decision that takes it outside the
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
[41]
The
Applicant also says that the Decision is unfair because she was not given an
interview or an opportunity to respond to the Officer’s concerns. This brings
upon procedural fairness issues that I have reviewed on a standard of
correctness.
[42]
Justice
Zinn recently conducted a review of the jurisprudence dealing with whether a
visa officer is under an obligation to allow an applicant an interview or an
opportunity to address concerns. See Singh v. Canada (Minister of
Citizenship and Immigration) 2009 FC 620 at paragraph 7. In the present
situation, there was no obligation on the Officer to hold an interview with the
Applicant or to conduct some kind of dialogue with the Applicant.
[43]
It
is also worth pointing out that the Officer makes it clear in his Decision that
“If there is any significant new information that you would like to be
considered, you are welcome to re-apply. Where possible, a different officer
will be assessing the application.”
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that
1. This
application is dismissed.
2. There is no
question for certification.
“James
Russell”
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