Date: 20110421
Docket: IMM-4840-10
Citation: 2011 FC 487
Montréal, Quebec, April 21,
2011
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
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SUSAN PHILBEAN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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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, SC 2001, c 27 [IRPA], of a decision of a
Designated Immigration Officer with the High Commission of Canada in the United
Kingdom of Great Britain and Northern Ireland (the UK), dated June 7, 2010,
whereby the officer refused an application submitted by the applicant for
permanent residence as a skilled worker. The officer was not satisfied that the
applicant would be able to become economically established in Canada as per
subsection 12(2) of the IRPA and section 76 of the Immigration and
Refugee Protection Regulations, SOR/2002-227 [Regulations].
I. Background
[2]
The
applicant, born March 24, 1947, is a citizen of the UK. She worked
there as a registered nurse from 1969 until March 2007, with a break from 1976
to 1984 to raise her family. In March 2007, the applicant moved with her
partner, Allen Stratton, to Canada. Mr. Stratton had been issued a temporary
work permit to come to Canada to work as a long haul truck driver. The
applicant was issued a temporary visitor permit, the terms of which prohibited
her from engaging in employment or from taking any academic or training courses
while in Canada. In March
2009, at the expiry of their respective permits, the couple returned to the UK.
[3]
In
April 2009, the applicant submitted an application for permanent residence in Canada in the
Federal Skilled Worker Class based on her qualifications and work experience as
a registered nurse. The application was recommended for further processing and
so, in June of 2009, a full application was submitted to the Canadian High
Commission in the UK. By letter dated November 4, 2009, the Designated
Immigration Officer, whose decision is currently under review, wrote to the
applicant to inform her of her concerns that the applicant would not
participate in the labour force if she were to come to Canada.
[4]
The
applicant submitted an affidavit, among other things, in response. In the
affidavit, she explained that although she was “happy for a career break”, she
nonetheless had, “many years of full time work left in [her]”. Despite not
being able to work while previously in Canada, the applicant indicated that she
had visited a local hospice in Grimsby, Ontario “many times” in order to “gain
an understanding of the employment requirements, standards and procedures when
working in a hospice as a Registered Nurse, Licensed Practical Nurse and Nurse’s
Aide”.
[5]
By
letter dated June 7, 2010, the applicant was informed that her application for
permanent residence had been refused. The officer indicated that although the
applicant had been assessed as having over the minimum number of required
points, her application was nonetheless being rejected pursuant to subsection
76(3) of the Regulations because the officer was not satisfied that the
applicant would be able to become economically established in Canada.
[6]
A
CAIPS note from June 7, 2010 reveals that, prior to the letter being sent to
the applicant, a second officer – as required under the Regulations -
had concurred with this determination.
III. Issues
[8] This application raises the
following issues:
a) What is the
applicable standard of review?
b) Did the officer
err in substituting a negative determination pursuant to subsection 76(3) of
the Regulations?
IV. Analysis
A.
What is the
applicable standard of review?
[7]
Determining
whether or not an applicant has demonstrated his or her ability to become
economically established as per the requirements of the IRPA and the Regulations
is a very fact-driven exercise. This is an area in which immigration officers
have significant experience, if not expertise. As such, the appropriate
standard of review is reasonableness (Debnath v Canada (Minister of
Citizenship and Immigration), 2010 FC 904 at para 8; Roohi v Canada (Minister of
Citizenship and Immigration), 2008 FC 1408 at para 26 [Roohi]).
The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 at
para 47, [2008] 1 S.C.R. 190 described the reasonableness standard as being
“concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process. But it is also concerned
with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law.”
B.
Did the officer
err in substituting a negative determination pursuant to subsection 76(3) of
the Regulations?
[8]
Subsection
12(2) of the IRPA indicates that, for the purposes of permanent
residence, a person may be selected as a member of the economic class on the
basis of their ability to become economically established in Canada. Subsection
76(1) of the Regulations indicates that, for the purposes of determining
whether a skilled worker will be able to become economically established in
Canada, two requirements must be met: a) the applicant must be awarded at least
a minimum number of points based on education, language, experience, age,
arranged employment, and adaptability, and b) the applicant must either (i)
have a certain amount of money available to use for settlement in Canada, or
(ii) have been awarded a certain number of points for having already arranged
employment in Canada. Subsection 76(1) reads:
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Selection
criteria
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).
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Critères
de sélection
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).
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[9]
The
applicant satisfied both requirements under subsection 76(1): a) she was
awarded 69 points, 2 points more than the required minimum of 67 points, and b)
she had sufficient settlement funds to satisfy the minimum requirements set out
in subparagraph 76(1)(b)(i).
[10]
Subsection
76(3) of the Regulations, however, was invoked in the current case. It
allows for an immigration officer to substitute his or her own evaluation as to
whether or not an applicant will be able to become economically established in
Canada for the points-based assessment set out in paragraph 76(1)(a) in
circumstances where the officer finds that the number of points awarded is not
a sufficient indicator as to the applicant’s actual ability to become
established. Justice Leonard Mandamin, in Roohi, above, described
subsection 76(3) as allowing, inter alia, “for screening out applicants who
pass the initial assessment but ought not be accepted for valid reasons”. It
reads:
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Circumstances
for officer's substituted evaluation
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.
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Substitution
de l’appréciation de l’agent à la grille
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) — n’est
pas un indicateur suffisant de 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).
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[11]
The
applicant takes issue with the officer’s determination for a number of reasons.
[12]
First,
she argues that it was unreasonable for the officer to conclude that the
applicant, whose career spanned a period of thirty-four years, would have lost
her skills after taking a sabbatical break for a period of less than three
years. This argument is without merit. At no point did the officer indicate
that she believed the applicant had lost any of her skills. The officer’s
concern was that, given she had not worked for three years, and given that she
was 63 years old, that her opportunities for employment would be limited.
[13]
Second,
the applicant submits that the officer failed to sufficiently account for the
affidavit evidence which demonstrated that the applicant had informed herself
of the licensing requirements for nurses in Ontario and that she was willing to be “subjected
to” that process. I agree with the respondent that this argument is essentially
an argument as to weight. The applicant’s evidence in this regard was not
sufficient to address the officer’s concerns. Although the applicant might have
liked the officer to accord this evidence more weight, it is not this Court’s
role to re-weigh the evidence on judicial review.
[14]
Third,
with regards to the officer’s concerns that the applicant had not taken steps
towards professional certification in Canada, the applicant submits that any
upgrading of skills or assessment would presumably have been done while
qualifying for her Ontario nursing licence, and
not before. This is not necessarily the case. While the applicant was prevented
from taking professional training courses by the terms of her Canadian visitor
permit, there is nothing to suggest that she was prevented from taking steps
towards having her UK credentials recognized.
After returning to the UK in March of 2009, it
would also have been open to the applicant to take steps to update her skills
in order to prepare for entering the work force in Canada. The officer concluded
that, by not taking these steps, the applicant had failed to show initiative.
It cannot be said that this conclusion was unreasonable.
[15]
Fourth,
the applicant argues that the officer’s concerns over the fact that she had not
applied for work while living in Canada were unwarranted because the IRPA
contains no such requirement. However, the officer specifically acknowledged
that this was not a requirement of the IRPA. Instead, she indicated
that, given the particular circumstances of the case – in particular, given
that the applicant had lived in Canada for two years – it was a concern that the
applicant had not made any effort to find work. I cannot say that this
determination was unreasonable.
[16]
Fifth,
the applicant submits that the officer did not take sufficient account of the
fact that she was qualified to work in at least three professions described in
the National Occupational Classification (NOC). This argument is also without
merit. As already mentioned, the officer did not, at any point, question the
applicant’s qualifications.
[17]
Finally,
the applicant submits that the officer did not sufficiently consider that the
applicant’s partner would have been readily employable upon his return to Canada and that they, as a
couple, were financially stable. I agree with the respondent that the
immigration officer was not required to assess the situation and financial
capability of the applicant’s partner, but instead was required to assess the
personal situation of the applicant. In any event, the CAIPS notes reveal that
the officer did consider the fact that the applicant’s partner had an informal
job offer to work as a truck driver in Canada. She found that this offer, combined with the
fact that a Labour Market Opinion for the husband’s line of unskilled work had
not been issued for a second stay, raised concerns as to whether or not the
applicant actually intended to seek out employment as a skilled worker in Canada.
[18]
As
to whether or not the officer was required to consider the couple’s settlement
money under subsection 76(3), it is worth noting that Justice Russel Zinn in Xu
v Canada (Minister of
Citizenship and Immigration), 2010 FC 418 at para 32, 366 FTR 230 indicated
that subsection 76(3) does not require such consideration.
[19]
The
officer was concerned not only about the applicant’s ability to find employment
in Canada, but also her willingness
in that regard. These concerns were not based solely on the applicant’s age.
Instead, the officer considered the applicant’s age in combination with a
number of other circumstances, including: that the applicant had already
effectively retired in the UK, that despite having lived in Canada for two
years she had not taken concrete steps towards certification or towards
securing future employment in Canada, and that the applicant’s husband had been
offered work in Canada but that an “LMO for his line of unskilled work [had]
not been issued for a second stay”.
[20]
Ultimately,
the role of this Court is not to substitute its own view for that of the
immigration officer. I cannot find that the officer’s decision to substitute a
negative determination under subsection 76(3) of the Regulations lacked
justification, transparency or intelligibility or fell outside the range of
possible, acceptable outcomes defensible in respect of the facts and law. As
such, this application for judicial review is dismissed.
JUDGMENT
THIS COURT
ORDERS that
the application for judicial review be dismissed.
“Danièle
Tremblay-Lamer”
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