Date: 20070213
Docket: IMM-2471-06
Citation: 2007 FC 165
Vancouver, British Columbia, February 13,
2007
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
Xungong
TONG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
Xungong
Tong (the applicant), a citizen of China, challenges in this judicial review
application the March 10, 2006, decision of Designated Immigration Officer
Barnes (the DIO) at the Consulate General of Canada in Seattle, Washington, refusing
his application for permanent residence in Canada in the skilled worker
category in the intended occupation of a religious worker - a Buddhist monk.
[2]
Subsection
12(2) of the Immigration and Refugee Protection Act (the Act) provides a
foreign national may be selected as a member of the economic class on the basis
of their ability to become economically established in Canada.
[3]
Furthermore,
pursuant to the Immigration and Refugee Protection Regulations (the
Regulations), skilled worker applicants are assessed on the basis of the
requirements set out in subsection 75(2) and the criteria set out in subsection
76(1) of those Regulations. The assessment of these requirements determines
whether a skilled worker will be able to become economically established in Canada. The
criteria are age, education, knowledge of Canada’s official
languages, experience, arranged employment and adaptability.
II. Background Facts
[4]
The
following background facts assist in understanding the DIO's decision.
[5]
The
applicant was born in China on January 11, 1970. He has never married
and has no dependents. He first came to Canada in November
2001 on a visitor visa issued by the Canadian Embassy in Beijing to attend a
seven-day Buddhist retreat.
[6]
The
applicant's record shows that from 09/82 to 06/86 he attended San Ho Middle
School after five years of primary school, from 01/87 to 06/89 he attended the
Shao Guan Yan Men Buddhist Institute and, finally, from 06/89 to 06/91 he
attended the Fu Jian Buddhist Institute.
[7]
Since
November 2001, Mr. Tong has renewed his temporary resident visa several times
and worked continuously as a Buddhist monk, but not under the authority of a
work permit; rather, being a religious worker, his previous work in Canada was under an
exemption from the work permit requirement.
[8]
From
November 2001 to September 2004, he was employed by the International Buddhist
Association, and under contract with the Pu Ji International Buddhist
Association from September 2004 to August 30, 2006, earning an annual income of
$12,000 CAD before applicable taxes "plus free meals and accommodation
allowance".
III. The DIO's Decision
[9]
The
applicant was assessed as a Buddhist monk, NOC code 4217, and awarded a total
of 48 points which was insufficient to qualify him for the minimum point
requirement of 67 points. The point break-down was:
• Age - 10 points which is
the maximum;
• Education - 15 out of a
maximum of 25;
• Experience - 21 points
which is the maximum;
• Arranged Employment - 0
out of a maximum of 10;
• Official Language
Proficiency - 2 points out of a maximum of 24; and
• Adaptability – 0 out of
10.
[10]
The
DIO filed an affidavit dated December 1, 2006, explaining how he reached his
assessment. He was cross-examined on his affidavit. That affidavit
substantially reflects what is in his CAIPS notes.
[11]
In
terms of occupational experience and language proficiency, he accepted the
applicant’s submissions regarding those two factors.
[12]
For
the Education factor, he wrote:
I was not satisfied that the evidence Mr.
Tong provided justified an award of 20 points for education. First, there was no credible
evidence – such as a diploma or transcript – that Mr. Tong had obtained a
two-year educational credential from an accredited post-secondary institution.
Instead, Mr. Tong had provided only a letter from the Fu Jian Buddhist
Institute stating that he had studied there for two years. Second, Mr. Tong’s
own statements were unclear about whether he had 13.5 or 14 years of full-time
studies.
Notwithstanding these concerns with the
evidence Mr. Tong had provided regarding the education factor, I decided to
give him the benefit of the doubt and gave him credit for a two year
post-secondary educational credential from Fu Jian Buddhist Institute and at
least 13 years of full-time studies. I therefore awarded Mr. Tong 15 points
for the education factor. Even if I had awarded Mr. Tong 20 points for this
factor, that would have made no significant difference to his overall score and
my overall assessment of his application.” [Emphasis mine]
[13]
For
arranged employment, the DIO wrote in his affidavit Mr. Tong, in
his application, had stated “that he expected to be able to obtain a permanent
employment offer from his employer, Pu Ji International Buddhist Association,
and asked what documents were required to assess arranged employment. In
particular, Mr. Tong asked whether a letter from his employer was sufficient or
whether the job offer needed to be reviewed by Human Resources and Skills Development
Canada (HRSDC).”
[14]
The
DIO went on to explain in his affidavit that in order to be awarded points for
arranged employment, an applicant had to meet the requirements of subsection
82(2) of the Regulations. To earn points under each of subsections 82(2)
(a), (b) and (d), the applicant had to be in Canada on a valid
work permit. The DIO noted being in Canada on a valid work permit was not one
of the requirements of subsection 82(2)(c), but to obtain points under this
paragraph an applicant must provide a labour market opinion (LMO) from HRSDC
approving a permanent offer of employment. He concluded the following at
paragraphs 11 and 12 of his affidavit:
I was of the view that ss. 82(2) of the
IRP Regulations clearly sets out what is required to award points for arranged
employment. The IRP Regulations are publicly available and contain no
ambiguity. The IRP Regulations do not provide any exception for religious
workers. Similarly, the publicly available CIC Policy Manual “OP6: Federal
Skilled Workers” also does not provide any exceptions for religious workers. I
noted that Mr. Tong was represented by an experienced immigration law firm. In
these circumstances, I did not consider Mr. Tong’s request for information as
to what was required for him to obtain points for arranged employment to warrant
a response.
Since
Mr. Tong was not in Canada on a valid work permit, did not submit
an offer of employment from his employer, did not submit an LMO from HSRDC and
did not provide any other evidence to show that he otherwise met the
requirements of ss. 82(2) of the IRP Regulations, I awarded 0 points for
arranged employment.
[15]
For
adaptability, the applicant was given no points for his previous work in
Canada because, in
the DIO's view, to be awarded points in this category his work was required to
have been performed under a work permit which it was not.
[16]
The
DIO
performed a substituted evaluation in respect of the applicant pursuant
to subsection 76(3) of the Regulations and concluded “based on my
assessment of the evidence Mr. Tong had provided with his application, my
opinion was that the number of points he had been awarded were a sufficient
indicator of his likely ability to become economically established in Canada”
and stated the following in reaching his opinion:
…
I noted that Mr. Tong’s English language proficiency remains basic even after
several years of residence in Canada. I also considered the single letter of
reference dated 31 July 2004 and the bank statement submitted as evidence of
settlement funds. I also noted that although Mr. Tong had provided documentary
evidence regarding his activities in China, he had provided very little
documentary evidence regarding his activities in Canada
since 2001. After weighing all of this evidence, I was not persuaded that Mr.
Tong’s application should be approved based on a substituted evaluation.
IV. The Applicant's Challenge
[17]
In
summary form, the applicant argues as follows.
[18]
For
adaptability the DIO erred in not awarding him 5 points on the
basis of Singh v. Canada (Minister of Citizenship and Immigration), 2006
FC 1479, having regard to proper principles of statutory interpretation of
section 83 of the Immigration and Refugee Protection Regulations (the
Regulations) focusing on the purpose of the provision and the object of the
Act.
[19]
For
arranged employment the applicant argues he should have been
awarded 10 points. The DIO breached his duty of fairness by not responding
to the following request contained in his application:
I expect to be able to obtain an offer of
employment from my current employer --- Please confirm what documents you
require in order for me to receive 10 points for Arranged Employment. I am
currently in Canada with a Visitor Record and not
a Work Permit. Since I am a religious worker is a letter from the employer
sufficient or do you still require the offer to be reviewed by Human Resources
and Skills Development Canada? [Emphasis mine]
[20]
Counsel
for the applicant submits it was perfectly proper for the applicant to seek
that advice from the DIO because, under the Guidelines applicable under the
previous regulatory scheme, section 1.36 headed "Religious Personnel"
stated "the validation of a confirmed offer of employment was not a
requirement in the case of religious persons who will be performing only
religious duties; all that is needed to be demonstrated to a visa officer was
that the foreign religious worker meet the basic "decent living"
criterion.
[21]
For
education,
it is argued the applicant should have been awarded an extra 5 points
because the DIO failed to pursue his assessment in respect of an issue which
had been identified by the applicant in an attachment to his application in
respect to this factor. He stated he attended two Buddhist Institutes for a
full period of four to five years without vacation, which would be equivalent
to at least five normal academic years (with summer vacations) of full-time
study. He stated he had the equivalent of at least 14 years of full-time study
which entitled him to 20 points.
[22]
Finally,
counsel argues the DIO committed a number of errors in the exercise of his
discretion under subsection 76(3) of the Regulations.
[23]
First,
he ignored the evidence Mr. Tong had already demonstrated his ability to become
economically established in Canada: he has been continuously employed, paid a
salary, expected to obtain a permanent job offer; had accumulated savings of
$50,000 and he is making several efforts to enhance his English language
skills.
[24]
Second,
he exercised his discretion from an erroneous and incorrect point calculation
of 48 points, meaning that if the proper start point had been chosen he would
have been very much closer to 67 points.
[25]
Third,
he exercised his discretion by gauging the facts on a wrong standard of proof,
namely beyond a reasonable doubt.
V. Analysis
A. The Standard of Review
[26]
I
agree with counsel for the respondent's views on the appropriate standard of
review:
(i) the
arranged employment issue, since it is based on a breach of the duty of
fairness, there is no engagement of the pragmatic and functional approach and this
issue must be gauged on a review of the arguments and a determination by the
Court on whether fairness has been breached.
(ii) the
adaptability issue turns on a question of interpretation of the relevant
provision of the regulation, the proper standard being correctness.
(iii) on
substituted evaluation, the applicant's allegation the DIO ignored the
evidence is assessed against section 18.1(4)(d) of the Federal Courts Act
that the DIO based his decision "without regard to the material before it;
the applicant's allegation of a wrong standard of proof raises a question of
law to be gauged on the standard of correctness; and his allegation the DIO
started his substituted evaluation from the wrong gate falls to be determined
on this Court's conclusion on whether the applicant's other arguments on points
has been made out.
(iv) on
the education factor, the applicant's submission raises a mixed question of
fact and law to be determined on the standard of reasonableness.
B. Conclusion
[27]
In
my view, this judicial review application must be dismissed. I see no error in
the DIO's determinations.
[28]
On
the adaptability factor, section 186(l) of the Regulations stipulates a
foreign national may work in Canada without a work permit as a religious
worker. The applicant qualifies for this exemption.
[29]
The
language of s. 83(1)(c) of the Regulations is also clear that 5 points are to
be awarded "for any previous period of work in Canada by the skilled
worker" with the notion of "previous work in Canada" defined in
subsection 83(4) providing for the purposes of paragraph 83(1)(c) that a
skilled worker "shall be awarded 5 points if [a skilled worker] engaged in
at least one year of full time work in Canada under a work permit.
[30]
Legislative
provisions must be interpreted in harmony. I agree with Justice Blais in Singh
v. Canada (Minister of Citizenship and Immigration), 2007 FC 69, to accept
the applicant's argument would be to re-write the Regulation in a manner not
consistent with the purpose of the exemption – enabling persons to work in
Canada who are here temporarily such as artists, foreign representatives and
business people. The DIO was correct in not awarding 5 points to the applicant
under this factor.
[31]
The
applicant's argument on arranged employment also fails for two reasons.
First, "arranged employment" in subsection 82(1) means "an offer
of indeterminate employment in Canada". The record before the DIO did not
include any such offer; the best that can be said is that the applicant had
expectations he would be offered a permanent job rather than being on two-year
contracts.
[32]
Second,
I agree with counsel for the Minister, in the circumstances of this case,
fairness did not give rise to a duty to reply to the applicant's query of
whether he needed to comply with section 82(2)(c) of the Regulations and obtain
a LMO.
[33]
First,
generally, the onus is on applicants to provide all relevant information in
support of their application. Second, visa officers are not in the business of
giving legal advice. The applicant had a legal advisor. Third, the Regulations
and Operations Manual 6 (OP-6) is clear on the point. There is no mention of
the previous guideline under the former Act. The DIO did not create any
legitimate expectations which would create a legal duty to respond. There was
no evidence of confusion on the point (see, Singh, above, 2007 FC 69, at
para. 22).
[34]
In
the circumstances, I conclude the DIO was justified in not awarding a further
10 points to the applicant on account of arranged employment.
[35]
Having
regard to the conclusion reached on the arranged employment and adaptability
factors, it was not unreasonable in the circumstances for the DIO not to pursue
the issue of a further 5 points to the applicant on account of the educational
factor.
[36]
Finally,
on the issue of the alleged errors in the exercise of discretion, in my
opinion, the applicant fails. In this connection, I have reviewed several times
the DIO's cross-examination which must be reviewed as a whole and not
microscopically.
[37]
Subsection
76(3) of the Regulations provides for the circumstances of the DIO's
substituted evaluation. The standard of proof is on the balance of
probabilities and not a demonstration beyond a reasonable doubt the applicant
may become economically established in Canada.
[38]
I
am satisfied, in my reading of the transcript, the DIO appropriately gauged the
applicant's ability to become economically established in Canada on the
balance of probabilities.
[39]
The
DIO stated several times the proper test is the applicant's likelihood of
becoming economically established in Canada (see Transcript, Questions and
Answers 31, 38, 40, 42 and 68. It is true the DIO in some answers used the
expression doubts, dispel any reasonable doubt (see, Questions 39 and 43) but
it is clear in answers before and after that he gauged his doubts or reasonable
doubts on the lack of evidence provided by the applicant he would likely be
economically established in Canada.
[40]
The
DIO's cross-examination demonstrates he did not ignore the fact the applicant
had continuously worked in Canada for several years; had accumulated money;
had a job offer, was making extra efforts to learn English (see Question and
Answer 25). The DIO's main concern was lack of evidence he would likely become
established: his income was weak, there was no evidence of his income from tax
returns and there was only one letter of support (see Question and Answer 30).
[41]
Finally,
I have concluded the DIO's award of points to the applicant was appropriate. It
cannot be sustained the applicant was close to the 67 points minimum
requirement.
JUDGMENT
This judicial review application is
dismissed. No certified question was proposed.
"François Lemieux"
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