Docket: IMM-1323-11
Citation: 2011 FC 1077
Ottawa, Ontario, September 20, 2011
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
|
|
PRABHAT PRATAP DEV
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP &
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
I. Overview
[1]
Mr.
Prabhat Pratap Dev applied for permanent residence in Canada as a member
of the Federal Skilled Worker Class. An immigration officer at the High
Commission of Canada in New Delhi found that Mr. Dev fell
four points short of the required score of 67.
[2]
Mr.
Dev claims that the immigration officer treated him unfairly by failing to
consider whether he was likely to become economically established in Canada
notwithstanding that he did not have the required number of points for success
(a “substituted evaluation”). He also maintains that the officer failed to
provide adequate reasons for dismissing his application. He asks me to set
aside the officer’s decision and order another officer to reconsider his
application.
[3]
I
can find no grounds for overturning the officer’s decision and must, therefore,
dismiss this application for judicial review.
[4]
There
are two issues:
1. Did the officer fail
to carry out a substituted evaluation?
2. Were the officer’s
reasons inadequate?
II. The Officer’s Decision
[5]
The
officer evaluated Mr. Dev’s ability to become economically established in Canada under s
76(1) of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (Regulations cited are set out in an Annex). The officer
considered the prescribed criteria – age, education, official language
proficiency, experience, arranged employment, and adaptability – and found that
Mr. Dev fell four points short of the required score of 67.
[6]
Mr.
Dev had asked the officer to conduct a substituted evaluation under s 76(3) of
the Regulations if he did not achieve the required score. However, his request
was not accompanied by any significant additional information with respect to
economic establishment. While Mr. Dev mentioned that his spouse could
communicate in French, and that he had unencumbered assets worth about
$100,000, he did not provide any corroborating documentary evidence.
[7]
In
her decision letter, the officer did not mention any substituted evaluation.
However, it was referred to in her notes where she stated that she had reviewed
all of the documents on file but had “not found any additional factor(s) that
have not already been accounted for in the points awarded or warranting the
consideration for substituted evaluation”.
III. Issue One - Did the officer
fail to carry out a substituted evaluation?
[8]
Mr.
Dev argues that the officer treated him unfairly by failing to consider his
request for substituted evaluation.
[9]
It
is clear from the record that the officer considered Mr. Dev’s request. I see
no basis for Mr. Dev’s complaint of unfair treatment.
IV. Were the officer’s reasons
inadequate?
[10]
An
officer’s notes form part of his or her reasons (see Baker v Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817). As Justice Russell
Zinn has observed, this Court has recognized in a myriad of cases that
information in an officer’s notes form part of the reasons (Xu v Canada
(Minister of Citizenship and Immigration), 2010 FC 418, at para 14). I also
agree with Justice Zinn that, while the better practice is to include important
details in the correspondence to the applicant, “it does not follow that there
were no reasons simply because they were not repeated in the decision letter”
(at para 15).
[11]
Admittedly,
the officer’s reasons regarding substituted evaluation are brief. However, it
is important to note that an officer is not required to give reasons at all.
The officer simply has a duty to inform the applicant that the request for
substituted evaluation was considered (Poblano v Canada (Minister of
Citizenship and Immigration), 2005 FC 1167, at para 7).
[12]
Here,
the officer stated that she had considered Mr. Dev’s request, and found no
grounds on which to exercise her discretion in his favour. Since Mr. Dev had
not put forward any evidence to support his request, it was sufficient for the
officer to state that she was satisfied that his point score properly reflected
his ability to become economically established in Canada (Marr v Canada
(Minister of Citizenship and Immigration), 2011 FC 367, at para 13).
[13]
In
my view, the officer’s reasons were adequate in the circumstances.
V. Conclusion and Disposition
[14]
The
officer considered Mr. Dev’s request for substituted evaluation and explained
why she found no basis to depart from his point score. I must, therefore,
dismiss this application for judicial review. No question of general
importance arises.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application for judicial review is dismissed.
2.
No
question of general importance is stated.
“James
W. O’Reilly”
Annex
|
Immigration
and Refugee Protection Regulations, SOR/2002-227
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).
…
Circumstances
for officer's substituted evaluation
(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.
|
Règlement
sur l’immigration et la protection des réfugiés, DORS/2002-227
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).
[…]
Substitution
de l’appréciation de l’agent à la grille
(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).
|
Email this Content