Date: 20081222
Docket: IMM-116-08
Citation: 2008 FC 1408
Ottawa, Ontario, December 22, 2008
PRESENT: The Honourable Mr. Justice Mandamin
BETWEEN:
ARFANA
ROOHI
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Arfana
Roohi (the applicant) applied for judicial review pursuant to s.72 of the Immigration
and Refugee Protection Act, 2001, c. 27 (IRPA) of the decision
of a Visa Officer (the Officer) at the Canadian High Commission at Islamabad,
Pakistan on November 12, 2007. The Officer refused her application for
permanent residence as a member of the federal skilled worker class.
[2]
The
Officer interviewed Ms. Roohi and decided that the points awarded did not
reflect Ms. Roohi’s ability to become economically established in Canada; the Officer
made a negative substituted evaluation, under s. 76(3) of IRPA. A senior visa
officer concurred with the Officer’s evaluation.
BACKGROUND
[3]
Ms.
Roohi is a citizen of Pakistan. She and her husband
applied for permanent resident visas under the federal skilled worker
category. She scored 67 points which is the minimum number of points required
to qualify as a member under the skilled worker class.
[4]
Ms.
Roohi has two university degrees, Bachelor of Arts and Bachelor of Education.
She also has a Masters Degree in Education which was not allotted points by the
Officer in the assessment because she took her studies as a private student.
She teaches at the Syed Public High School in Lahore, Pakistan.
[5]
Ms.
Roohi completed the International English Language Testing System (IELTS) and
received an overall score of 4.5 based on listening, reading, writing and
speaking English. This correlates to a basic proficiency in English.
[6]
Ms.
Roohi and her husband were interviewed by the Officer on November 12, 2006. As
a result of the interview the Officer entered in the Computer Assisted
Immigration Processing System notes (CAIPS):
I believe the points awarded do not
accurately reflect the clients ability to successfully establish in Canada. Due to low language skills
and experience I am not satisfied that she possesses the depth of experience
required by a teacher as described per NOC.
Recommend negative substituted
evaluation,
I am not satisfied that FN will be able
to successfully establish in Canada referred to senior officer
for review.
[7]
The
same day, a second visa officer entered his concurrence in the CAIPS notes:
Reviewed.
Given the applicant’s very limited
English skills, which would render her hardly employable in Canada even in an
low-skilled occupation; given the very limited scope of her duties as a teacher
here in Pakistan which are virtually untransferable to the Canadian labour
market; given her lack of preparation for immigration to Canada; as well as
given her apparent lack of readily available unencumbered funds to assist her
in her initial settlement in Canada, I am satisfied that the points obtained do
not reflect the applicant’s true capacity to establish herself successfully in
Canada.
THE DECISION UNDER
REVIEW
[8]
The
Officer wrote on November 12, 2007:
The minimum points requirement to qualify
for immigration to Canada is 67. However, subsection
76(3) of the regulations permits an officer to substitute their evaluation of
the likelihood to become economically established in Canada if the number of
points awarded are not a sufficient indicator of whether the skilled worker may
become economically established in Canada.
As discussed at your interview, I am not satisfied that the points that you
have been awarded are a sufficient indicator of the likelihood of your ability
to become economically established in Canada.
I have made this determination because of your limited English skills and I am
not satisfied that you possess the depth of experience required to teach in Canada. You were given an
opportunity to address these concerns at your interview. The information and
the explanations you have given me have not satisfied me that you will be able
to become economically established in Canada.
A senior officer concurred with this evaluation.
[9]
The
Officer concluded in her decision letter:
Following an examination of your
application, I am not satisfied that you meet the requirements of the Act and
the regulations for the reasons explained above. I am therefore refusing your
application.
ISSUES
[10]
The
issues in this proceeding are:
i.
Did
the Officer err in her application of the procedure in making a negative
substituted evaluation?
ii.
Did
the Officer err in making her negative substituted evaluation?
STANDARD OF REVIEW
[11]
The
Officer was deciding a matter that is within the ambit of the officer’s skill
and experience. In Tathgur v. Canada (MCI), 2007 FC
1293, I held that the standard of review for a decision of a visa officer
deciding on an application for a permanent residence visa was reasonableness simpliciter.
(also Al-Kassous v. Canada (MCI), 2007 FC 541)
[12]
In
Dunsmuir v. New Brunswick, 2008 SCC 9,
the Supreme Court of Canada held there are only two standards of review,
correctness and reasonableness. Issues of discretion and mixed fact and law
attract the reasonableness standard of review. Dunsmuir at paras. 51 and
53. The Supreme Court of Canada held that the standard of review analysis need not be
conducted in every instance. Rather, where the standard of review applicable to the
particular issue or matter before the court has been determined by past
jurisprudence, the reviewing court may adopt that standard of review.
[13]
Thus,
in light of Dunsmuir and Tathgur, I conclude that the standard of review on applications for permanent
residence under the skilled worker
category is reasonableness and that the decision by the Officer in this case is
entitled to a high degree of deference. The Court should only intervene if the
decision was unreasonable.
LAW
[14]
The
relevant provisions of IRPA are:
|
12. (2) 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.
|
12.(2) La sélection des
étrangers de la catégorie « immigration économique » se fait en
fonction de leur capacité à réussir leur établissement économique au Canada.
|
[15]
The
relevant provisions of Immigration and Refugee Protection Regulations ,S.O.R.
2002 – 227,(the Regulations) are:
|
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.
(underlining added)
Concurrence
(4) An evaluation made under subsection (3)
requires the concurrence of a second officer.
|
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) — ne reflète pas 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).
Confirmation
(4) Toute décision de l’agent au titre du
paragraphe (3) doit être confirmée par un autre agent.
|
ANALYSIS
Issue
1: Did the Officer err in her application of the procedure in making a negative
substituted evaluation?
[16]
Section
76(3) of the Regulations sets out the circumstances for an officer’s
substituted evaluation. In particular it states:
“an officer may substitute for the
criteria set out in (1)(a) their evaluation of the ability of the
ability of the skilled worker to become economically established in Canada…”
[17]
Section 76(3) engages a two stage process for arriving at a substituted
evaluation: first, the visa officer must decide if the s. 76(1) assessment is
not a sufficient indicator of whether the skilled worker applicant may become economically
established in Canada; second, the visa officer must evaluate the likelihood of
the skilled worker becoming economically established in Canada by conducting an
adequate substitute assessment on proper grounds.
[18]
The applicant submits that the substituted evaluation must consider the
totality of the applicant’s situation to become economically established in Canada.
[19]
The applicant submits that the Officer erred as she mixed the
requirements under the former legislation and the new legislation. The
applicant submits that under the former legislation the applicant was required
to have an intended occupation, and needed to demonstrate that they could
fulfill that occupation if they were to be landed in Canada.
[20]
The applicant submits that IRPA does not have this requirement, as the
assessment is based on a human capital approach, and the applicant’s overall
skills and abilities are used to determine chances of economic establishment
and success of the applicant. Under IRPA the applicant is not required to
select an intended occupation.
[21]
The applicant submits that the Officer erred in her assessment under
IRPA as she improperly concluded that the applicant needed to demonstrate that
she could teach in Canada. The applicant submits that the Officer blended the
tests, which is a reviewable error.
[22]
However, my review of the Officer’s CAIPS notes, affidavit and
examination on affidavit satisfies me the Officer had the following information
before her in deciding whether the s. 76(1) assessment was a sufficient
indicator of Ms. Roohi’s likelihood of becoming a skilled worker in Canada:
-
Ms. Roohi had the minimum acceptable score in the s. 76(1)
assessment process,
-
Ms. Roohi had difficulty in communicating in English,
-
Ms. Roohi’s experience in teaching was very limited
[30]
The above suffices to give the Officer grounds to conclude that the s.
76(1) assessment was not a sufficient indication that Ms. Roohi would become
economically established in Canada. I find the Officer did not err in deciding
to proceed with a substituted evaluation of the likelihood that Ms. Roohi would
not become economically established as a skilled worker in Canada.
[31]
It seems to me that when visa officers substitute their evaluation on
the ability of a skilled worker to become economically established in Canada
under s. 76(3), that substituted evaluation must be comparable to the s. 76(1)
evaluation they are displacing. I say this because s. 76(1) is structured as
directed to a systematic objective assessment process designed to achieve consistency
in the processing of skilled worker applications. The process for substituted
evaluations should not displace the underlying intent to achieve a consistent
process for assessing skilled worker applications.
[32]
The opening words of s. 76(3), “Whether or not the skilled worker
has been awarded the minimum number of required points …” clearly indicates
that the substituted evaluation may result in a negative substituted evaluation
as well as in a positive substitute evaluation. Substituted evaluations are a
procedure that introduces an element of flexibility into the skilled worker
application process. It allows for acceptance of applicants who may not
succeed under the initial assessment where there is good reason and for
screening out applicants who pass the initial assessment but ought not be
accepted for valid reasons.
[33]
The substituted evaluation is a decision made by a visa officer in
keeping with the officer’s knowledge and expertise and is a decision under
which deference is due. The officer must make a substituted evaluation decision
which is consistent with IRPA, the Regulations and the thrust of the skilled
worker provisions.
[34]
The Officer had before her those elements of Ms. Roohi’s s. 76(1)
assessment that were not questioned. These elements may be taken to be
accepted and part of the substituted evaluation and would include Ms. Roohi’s
education and age, two factors considered in s. 76(1). Ms. Roohi did not have
pre-arranged employment and this element is therefore the same in the first and
second assessment. The Officer had the interview with Ms. Roohi to consider as
part of her substituted evaluation exercise. The interview touched on
proficiency in language and depth of Ms. Roohi’s experience in teaching. The
Officer also probed the extent of Ms. Roohi’s planning for establishing herself
economically in Canada. I conclude that the Officer’s s. 76(3) substituted
evaluation was comparable with a s. 76(1) assessment since her assessment was
based on education, language proficiency, experience, age, and adaptability.
Issue 2: Did the
Officer err in making her negative substituted evaluation?
[35]
The revisions to the Regulations changed the approach in skilled
worker applications from an occupation-specific approach to a broader approach
which gave more emphasis to adaptability by skilled worker applicants to become
economically established in Canada.
[36]
In this matter, the Officer stated:
-
in CAIPS notes: “Due to low language skills and experience I am
not satisfied that she possesses the depth of experience required by a teacher
as described in NOC. … I am not satisfied that FN will be able to successfully
establish in Canada”
-
in the Decision letter: “the information and the explanations you
have given me have not satisfied me that you will be able to become
economically established in Canada;”
-
in the Officer’s affidavit: “I asked the applicant questions to
determine the nature of her teaching experience. The questions I asked were
short and straightforward questions about her teaching job. It was evident to
me that the applicant had difficulty understanding simple questions about
matters within her knowledge . . . I proceeded to ask questions relating to
personal suitability as reflected in the CAIPS notes, which confirmed my view
that the applicant was not likely to be able to establish herself economically
in Canada.”
-
in the Officer’s examination on affidavit: “After interviewing
her I felt that she was very limited in what she did, language skills, lack of
preparation for going to Canada. Although personal - - I did ask her some
personal suitability questions to determine, to give me an idea of how she
would settle in Canada and I wasn’t satisfied.”
[37]
Although the Officer referred at times to the applicant’s plan to teach
in Canada, I am satisfied the Officer assessed Ms. Roohi’s ability on the
broader and correct standard of the likelihood of an applicant becoming
economically established in Canada.
CONCLUSION
[38]
I find the Officer had grounds upon which she could decide that the s.
76(1) assessment was not a sufficient indicator of Ms. Roohi’s ability to
become sufficiently established in Canada. I find that she properly conducted
the substituted evaluation in a manner comparable to that in s. 76(1) of the Regulations.
Lastly I find the Officer had the sufficient grounds to base her negative
substituted assessment. In summary, I find the Officer’s substituted evaluation
to be not unreasonable.
[39]
The application for judicial review is dismissed.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1.
The
application for judicial review is dismissed.
2.
No
question of general importance is certified.
“Leonard
S. Mandamin”
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