Date: 20070802
Docket: IMM-4494-06
Citation: 2007 FC 812
Ottawa, Ontario, August 2,
2007
PRESENT: The Honourable Mr. Justice Kelen
BETWEEN:
YOUNG
HWAN KIM
Applicant
and
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a
decision of an immigration officer of the Canadian Embassy in Seoul, Korea dated June 23, 2006, which denied the applicant’s application for a
permanent resident visa under the skilled worker class.
Background
[2]
The applicant was assessed under subsection
75(2) of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (the Regulations). Based on the selection criteria set out in the
Regulations, he was assessed 64 points, or 3 points short of the 67 point
minimum requirement. Accordingly, the immigration officer was not satisfied
that the applicant would be able to become economically established in Canada.
[3]
The applicant was assessed 5 points out of a
possible 10 points under the “adaptability” criterion established under
subsection 83(1) of the Regulations. The immigration officer stated in the
decision letter under review that no points were assessed in respect of the
applicant’s claim under paragraph 83(1)(d) “for being related to a person
living in Canada who is
described in subsection (5)”:
Please note that no points were award for
relatives in Canada since you have failed to show that your daughters are residing
in Canada.
[Emphasis added]
[4]
The applicant argues that the immigration officer
erred in not assessing 5 points for adaptability on the basis of his daughters’
presence in Canada. According
to the applicant, the immigration officer fettered her discretion by requiring
that the applicant’s daughters “reside” in Canada rather than “live” in Canada as required under the Regulations.
Issue
[5]
At issue in this application for judicial review
is whether the immigration officer erred in denying the applicant’s application
for a permanent resident visa under the skilled worker class.
Relevant legislation
[6]
The legislation relevant to this application is
the Immigration and Refugee Protection Act, S.C. 2001, c. 27 and the Immigration
and Refugee Protection Regulations, SOR/2002-227. In particular, the
following provisions of the Regulations govern the assessment of the
applicant’s application for a permanent resident visa:
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Class
75. (1) For the purposes of
subsection 12(2) of the Act, the federal skilled worker class is hereby
prescribed as a class of persons who are skilled workers and who may become
permanent residents on the basis of their ability to become economically
established in Canada and who intend to reside in a province other than the
Province of Quebec. […]
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). […]
Adaptability (10 points)
83. (1) A maximum of 10
points for adaptability shall be awarded to a skilled worker on the basis of
any combination of the following elements:
(a) for the educational credentials
of the skilled worker's accompanying spouse or accompanying common-law
partner, 3, 4 or 5 points determined in accordance with subsection (2);
(b) for any previous period of
study in Canada by the skilled worker or the skilled worker's spouse or
common-law partner, 5 points;
(c) for any previous period of work
in Canada by the skilled worker or the skilled worker's spouse or common-law
partner, 5 points;
(d) for being related to a
person living in Canada who is described in subsection (5), 5
points; and
(e) for being awarded points for
arranged employment in Canada under subsection 82(2), 5 points.
[…]
Family relationships in Canada
83. (5) For the purposes of
paragraph (1)(d), a skilled worker shall be awarded 5 points if
(a) the skilled worker or the
skilled worker's accompanying spouse or accompanying common-law partner is
related by blood, marriage, common-law partnership or adoption to a person
who is a Canadian citizen or permanent resident living in Canada and who is
(i) their father or mother,
(ii) the father or mother of their
father or mother,
(iii) their child,
(iv) a child of their child,
(v) a child of their father or
mother,
(vi) a child of the father or
mother of their father or mother, other than their father or mother, or
(vii) a child of the child of their
father or mother; or
(b) the skilled worker has a spouse
or common-law partner who is not accompanying the skilled worker and is a
Canadian citizen or permanent resident living in Canada.
[Emphasis added]
|
Catégorie
75. (1) Pour l’application du paragraphe 12(2) de la Loi, la
catégorie des travailleurs qualifiés (fédéral) est une catégorie
réglementaire de personnes qui peuvent devenir résidents permanents du fait
de leur capacité à réussir leur établissement économique au Canada, qui sont
des travailleurs qualifiés et qui cherchent à s’établir dans une province
autre que le Québec. […]
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). […]
Capacité
d’adaptation (10 points)
83. (1) Un maximum de 10 points d’appréciation sont attribués au
travailleur qualifié au titre de la capacité d’adaptation pour toute
combinaison des éléments ci-après, selon le nombre indiqué :
a) pour les diplômes
de l’époux ou du conjoint de fait, 3, 4 ou 5 points conformément au
paragraphe (2);
b) pour des études
antérieures faites par le travailleur qualifié ou son époux ou conjoint de
fait au Canada, 5 points;
c) pour du travail
antérieur effectué par le travailleur qualifié ou son époux ou conjoint de
fait au Canada, 5 points;
d) pour la
présence au Canada de l’une ou l’autre des personnes visées au paragraphe
(5), 5 points;
e) pour avoir
obtenu des points pour un emploi réservé au Canada en vertu du paragraphe
82(2), 5 points.
[…]
Parenté au
Canada
83. (5) Pour l’application de l’alinéa (1)d), le travailleur qualifié
obtient 5 points dans les cas suivants :
a) l’une des
personnes ci-après qui est un citoyen canadien ou un résident permanent et
qui vit au Canada lui est unie par les liens du sang ou de l’adoption ou par
mariage ou union de fait ou, dans le cas où il l’accompagne, est ainsi unie à
son époux ou conjoint de fait :
(i) l’un de leurs
parents,
(ii) l’un des
parents de leurs parents,
(iii) leur enfant,
(iv) un enfant de
leur enfant,
(v) un enfant de
l’un de leurs parents,
(vi) un enfant de
l’un des parents de l’un de leurs parents, autre que l’un de leurs parents,
(vii) un enfant de
l’enfant de l’un de leurs parents;
b) son époux ou
conjoint de fait ne l’accompagne pas et est citoyen canadien ou un résident
permanent qui vit au Canada.
|
Standard of review
[7]
The applicant’s challenge to the immigration
officer’s decision stands or falls depending on the proper interpretation of
paragraph 83(1)(d) of the Regulations and, in particular, whether the
immigration officer erred in determining that the applicant’s daughters did not
“reside” in Canada. With
respect to this issue of statutory interpretation, the Court will review the
immigration officer’s application of the law on a correctness standard. With
respect to the immigration officer’s application of the law to the facts of
this case, the Court will apply a standard of reasonableness.
Analysis
[8]
The applicant applied for a permanent resident
visa in May 2004. His first daughter was born in Canada on May 9, 1994. His second daughter was born in Canada on June 20, 1995. According to the
applicant, his first daughter’s residence record is as follows:
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Canada
|
May 1994 – January 1996
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Korea:
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January 1996 – October 2001
|
|
Canada
|
October 2001 – December 2004
|
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Korea:
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January 2005 – May 15, 2006
|
|
Canada
|
May 16, 2006 – date of decision
|
|
|
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[9]
At the time of his application, the applicant’s
first daughter lived in Canada.
However, she returned to Korea
for 17 months beginning in 2005. When the respondent’s assessment of the
applicant’s application was started on May 31, 2006 and made on June 23, 2006,
the applicant’s daughter was in Canada.
[10]
On February 28, 2006, the Canadian Embassy
requested that the applicant provide copies of his daughters’ passports and
certificates of exit and entry issued by Korean immigration authorities. The
respondent states that this information was requested to determine the
whereabouts of the applicant’s children. The respondent noted that the
applicant and his wife had returned to Korea in December 2004 and speculated
that his children no longer lived in Canada.
[11]
The Embassy repeated its request for
documentation on May 8, 2006. By letter dated May 7, 2006 and received by the
Embassy on May 12, 2006, the applicant requested an extension until June 2006
to submit the requested documents. The immigration officer suspected that the
applicant was attempting to delay the processing of his application and refused
the applicant’s request for an extension on May 15, 2006.
[12]
On May 26, 2006, the Embassy contacted the
applicant to inform him that he had ten days to provide the requested
documents. The applicant’s wife received the telephone call and informed the
Embassy that the applicant was in Canada. The Embassy confirmed the applicant’s presence in Canada by referring to Citizenship and
Immigration Canada’s electronic database. According to the port of entry notes,
the applicant was visiting Canada with one of his Canadian daughters to look for schools.
[13]
On June 9, 2006, the immigration officer refused
the applicant’s application for a permanent resident visa based on
non-compliance and insufficient points. The immigration officer was later
advised that the Embassy received from the applicant the requested documents on
June 7, 2006. Because the documents were submitted before the immigration
officer’s decision dated June 9, 2006, the immigration officer re-opened the
applicant’s file and reviewed the additional documents submitted.
[14]
According to the certificate of entry and exit
from the Korean immigration authorities, the applicant’s daughters returned to Korea on December 30, 2004. One of the two
daughters travelled with the applicant to Canada on May 16, 2006 to look for schools.
[15]
The respondent argues that the immigration
officer did not award additional points for relatives living in Canada under subsection 83(5) of the
Regulations because he was not satisfied that they were living in Canada. In its written submissions, the
respondent argued that the immigration officer took into account the fact that
the applicant’s daughters returned to Korea in December 2004 and had been
living in Korea, they were not attending school in Canada, and that the
applicant delayed submission of the documents until he went to Canada with one
of his daughters to look for schools.
[16]
The applicant referred to the respondent’s
Operating Procedures concerning federal skilled workers, which, although not
binding on this Court, are useful as an interpretive aid in applying paragraph
83(1)(d) of the Regulations. The manual states in part:
Points
for […] relatives in Canada are
awarded only once – either to the principal applicant or the spouse or
common-law partner, but not to both. Pursuant to R77, these requirements and
criteria must be met at the time the application is made, as well as at the
time the visa is issued. Therefore […] if the applicant or their spouse or
common-law partner completes further study, works in Canada, arranges
employment in Canada, or gains
relatives in Canada between application and assessment, and submits the necessary
documentation, points must be awarded accordingly.
[Emphasis added]
[17]
There is no dispute that the applicant’s
daughters lived in Canada when
he applied for a permanent resident visa. The only issue is whether the
applicant had relatives living in Canada when his application was assessed.
[18]
In the affidavit of the applicant before the
Court sworn August 25, 2006, the applicant deposes in paragraphs 26, and 27:
26.
My first daughter (Miriam M. Kim who is a Canadian citizen) came back to Canada
on May 16th, 2006, and was living in Canada in June 2006 at the time
when the officer made the decision, and would have been residing in Canada at
the time the visa is issued (now shown to me and attached to this affidavit as
Exhibit “M”).
27.
My daughter is still living in Canada as of August 25th, 2006.
[19]
In my view, the immigration officer may have erred
in concluding that the applicant’s daughter did not live in Canada when the applicant’s application was
assessed. As a citizen of Canada, the applicant’s daughter has the right to
enter and remain in Canada. The
applicant states that his daughter returned to live in Canada on May 16, 2006. Based on the evidence before the immigration
officer at the time of assessment the immigration officer believed the daughter
was only in Canada until June
30, 2006. On these facts it was not unreasonable to conclude that the
applicant’s daughter was not living in Canada. It is clear that the applicant, who was accompanying his daughter
to look for schools in Canada,
was visiting Canada as a
foreign national. However, the fact that the applicant’s daughter was in Korea
from December 2004 to May 16, 2006 and did not attend school in Canada during
that period does not reasonably lead to the conclusion that she was not living
in Canada when the applicant’s application was assessed on June 23, 2006,
especially in view of the evidence before the Court that the daughter did not
leave Canada on June 30, 2006 as the visa officer assumed she would.
[20]
The Court is of the view that the proper course is
to have this application reassessed with the correct evidence about the
daughter’s time in Canada
during this period. The Court is satisfied that a skilled worker applicant is
entitled under paragraph 83(1)(d) to 5 points for being related to a person
living in Canada which includes a minor daughter. The meaning of “living in
Canada” obviously means more than a person who is visiting Canada for a temporary purpose. In this
case the daughter has lived in Canada, has gone to school in Canada, and the
visa officer needs to understand all of the facts with respect to her being in
Canada at the time the application was assessed in order to determine whether
she qualifies as a “Canadian citizen living in Canada” for the purposes of
subparagraph 85(5)(a)(iii).
[21]
For the reasons above, this application for
judicial review is allowed. The applicant’s application for a permanent
resident visa is returned for reconsideration by a different immigration
officer.
[22]
Neither party proposes a question for
certification. No question will be certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. The
application for judicial review is allowed.
2. The applicant’s application for a permanent resident visa is
returned for reconsideration by a different immigration officer.
“Michael
A. Kelen”
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