Date: 20081117
Docket: IMM-1206-08
Citation: 2008 FC 1270
Ottawa, Ontario, this 17th
day of November 2008
Present: The
Honourable Mr. Justice Pinard
BETWEEN:
Suresh
Terrence LACKHEE
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
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, S.C. 2001, c. 27 (the “Act”), of the decision
of an immigration officer refusing to issue the applicant, a citizen of
Trinidad, a permanent resident visa under the Economic – Skilled Worker class.
[2]
Ms.
S. Tang Fong, the designated immigration officer who rendered the impugned
decision, rejected Mr. Lackhee’s application for permanent residence because he
“obtained insufficient points to qualify for immigration to Canada, the minimum
requirement being 67 points”.
[3]
Her
reasons for declining the applicant’s request for substituted evaluation are
enunciated in the following paragraphs of the refusal letter, dated November
30, 2007:
Your
request for substitution [sic] evaluation was also considered.
Subsection 75(3) [sic] of the regulations permit [sic] 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.
I am
satisfied that the points that you have been awarded are an accurate reflection
of the likelihood of your ability to become economically established in Canada. The information you have
provided and your explanations have not satisfied me that you will be able to
become economically established in Canada.
[4]
Additionally,
the officer’s notes include the following remarks about the applicant’s request
for substituted evaluation:
Lawyer requested substitution of evaluation.
Subject has insufficient points to meet minimum requirements. Subject was given
full points for his experience and relatives in Canada. Points for language was [sic]
based on the results from an approved language testing facility. Points awarded
accurately reflect ability to be economically successful in Canada and positive substituted
evaluation not appropriate in this case.
[5]
In
the context of the present review, the applicant does not contest the points
awarded to him by the officer. Nor does the applicant argue that the officer
did not turn her mind to his request for a substituted evaluation. Instead, the
applicant argues that the officer exercised her discretion in a capricious
manner without due regard to the evidence in determining that the units of
assessment assigned were an accurate indication of his prospects of becoming
established in Canada.
* * * * * * *
*
[6]
Paragraphs
76(1)(a) and (b) and subsections 76(2) and (3) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the “Regulations”) are
relevant to the present proceeding:
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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).
(2)
The Minister shall fix and make available to the public the
minimum number of points required of a skilled worker, on the basis of
(a) the
number of applications by skilled workers as members of the federal skilled
worker class currently being processed;
(b) the
number of skilled workers projected to become permanent residents according
to the report to Parliament referred to in section 94 of the Act; and
(c) the potential, taking into account
economic and other relevant factors, for the establishment of skilled workers
in Canada.
(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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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).
(2) Le ministre établit le
nombre minimum de points que doit obtenir le travailleur qualifié en se
fondant sur les éléments ci-après et en informe le public :
a) le
nombre de demandes, au titre de la catégorie des travailleurs qualifiés
(fédéral), déjà en cours de traitement;
b) le nombre de travailleurs qualifiés qui devraient
devenir résidents permanents selon le rapport présenté au Parlement
conformément à l’article 94 de la Loi;
c) les perspectives
d’établissement des travailleurs qualifiés au Canada, compte tenu des
facteurs économiques et autres facteurs pertinents.
(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).
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* * * * * * *
*
[7]
Paragraph
76(1)(a) of the Regulations establishes the criteria for assessing
whether a claimant “will be able to become economically established in Canada”, namely,
education, proficiency in the official languages of the country, experience,
age, arranged employment, and adaptability. Additionally, under paragraph (b),
the claimant applying as a skilled worker must demonstrate sufficient available
funds, unencumbered by debts or otherwise, to settle in Canada.
[8]
These
criteria are evaluated relative to the minimum point requirement fixed by the
Minister, according to subsection 76(2) of the Regulations. However, failure to
meet the point minimum is not an absolute bar to obtaining a visa; subsection
76(3) makes provision for an exercise of discretion by an officer.
[9]
The
parties submit that the standard of review to be applied in this case is that
of reasonableness. Following Dunsmuir v. New Brunswick, [2008] 1 S.C.R.
190, wherein the majority of the Supreme Court held that “questions of fact,
discretion and policy as well as questions where the legal issues cannot be
easily separated from the factual issues generally attract a standard of
reasonableness”, I agree that this is the appropriate standard in this case.
[10]
The
applicant argues that the officer’s reasons amount to a summary dismissal of a
case that presents the unusual facts that, according to Justice Blanchard in Silva
v. Minister of Citizenship and Immigration, 2007 FC 733, call for the
exercise of residual discretion under subsection 76(3). Specifically, the Court
in Silva writes that an officer’s “discretion under subsection 76(3) of
the Regulations is residual in nature, and should be decisive only in cases
that present unusual facts, or where the applicant has come close to obtaining
[the required] units of assessment” (see also Esguerra v. Minister of
Citizenship and Immigration, 2008 FC 413, where Justice de Montigny at
paragraph 16 describes the discretion under this provision as “clearly
exceptional”). Indeed, the applicant argues at paragraph 20 of his memorandum:
. . . The Applicant’s credentials,
professional experience, financial establishment and Canadian family members
all rank very high. Viewing the facts in their totality reveals this is
precisely the kind of case for which the officer’s authority by way of
substituted evaluation has been created. . . .
[11]
The
respondent responds that there is nothing about the facts of the present case
that is unusual, nor is the applicant “close” to obtaining the required points
(see the
officer’s decision regarding the request for substituted evaluation found in
her letter of refusal at paragraph 3 above).
[12]
In
view of the arguable strength of Mr. Lackhee’s application, the applicant views
the officer’s reasons as dismissive, and the decision not to exercise her discretion
as arbitrary and capricious. The respondent, on the other hand, relies on Poblado
v. Minister of Citizenship and Immigration, 2005 FC 1167, where Justice von
Finckenstein finds at paragraph 7 that it is enough for a visa officer “to
inform the applicant that she considered the request for substitution of
evaluation”. Written reasons explaining why the request was denied are not
required (see also Yan v. Minister of Citizenship and Immigration, 233
F.T.R. 161, 2003 FCT 510 at paragraph 18). Accordingly, the respondent argues
that the officer’s reasons “far exceed” those required for a decision of this
kind.
[13]
Although
I must agree with the respondent on this point, I am sympathetic to the
applicant’s position: Mr. Lackhee is a skilled tradesman with expertise in
a field that is in high demand in Canada, and his profile is
compelling. It is unclear to me why his relative lack of formal education and
modest score on his language assessment have any bearing on the question of his
ability to become economically settled in this country. It is not, however, the
role of this Court to substitute its own view for that of the decision-maker,
whom the legislation has imbued with broad discretion over this matter.
[14]
The
applicant’s second argument is, in my view, more persuasive. Here, he argues
that the officer failed to take into account the updated information submitted
in June 2007 regarding the applicant’s available settlement funds, which rose
from $25,000, the amount cited in his initial application filed in 2004, to
approximately $90,000. Additional documentation about annuity and insurance
premiums owned by the applicant and his wife were likewise submitted. None of
this new information was referred to by the officer, either in her refusal
letter or her notes.
[15]
According
to the respondent, the applicant “merely challenges the officer’s weighing of
the evidence, a matter on which this Court will not intervene”.
[16]
I
agree that it is not open to this Court to re-weigh the evidence as it sees fit.
There is no question however that the Court has a duty to evaluate whether the
officer took adequate account in her notes or reasons, if any, of relevant
evidence in the record. My colleague Justice Heneghan, in Hernandez v. Minister
of Citizenship and Immigration, 2004 FC 1398, writes at paragraph 21 of her
decision:
. . . In my opinion, section 76(3)
contemplates that an officer would consider and weight all the factors
identified in section 76(1), not only the award of points pursuant to section
76(1)(a).
(My emphasis.)
[17]
Justice
Heneghan was referring, in this passage, to the criterion of settlement income
established in paragraph 76(1)(b) as a factor that is appropriately
weighed by the officer in determining whether to exercise her discretion under
subsection 76(3). Justice Kelen, in Choi v. Minister of Citizenship and
Immigration, 2008 FC 577 goes further, finding in that case that a visa
officer’s failure to give any weight to evidence supporting an offer for
employment was unreasonable:
[22] . . . The
Court concludes that the decision under subsection 76(3) of the Regulations was
not reasonable since that decision gave no weight to the strong
letter from the school or to the $699,000 that the applicant would bring
to establish herself in Canada. . . .
(My emphasis.)
[18]
Here,
although the immigration officer makes reference in her notes to the sum of
$25,000 initially noted in the applicant’s application, the updated information
indicating the availability of dramatically more assets for establishment is
nowhere mentioned in either her notes or her refusal letter. I note that in her
affidavit dated August 21, 2008, she claims that, at the time she reviewed Mr. Lackhee’s
application, she “was aware that the Applicant had settlement funds valued at
approximately $549,424 TT and $4,296 US, equivalent to $91,987 CDN”. In my
view, it is not enough that she was aware of this information; she had a duty
to reflect this awareness in her notes and/or reasons, in the interests of
“justification, transparency and intelligibility” (Dunsmuir, supra,
at paragraph 47, page 221).
[19]
According
to section 11.3 of Citizenship and Immigration Canada’s operational manual for
the processing of applications under the skilled worker category (“OP 6”):
Substituted
evaluation is to be considered on a case-by-case basis. The scope of what an
officer might consider as relevant cannot be limited by a prescribed list of
factors to be used in support of exercising substituted evaluation. There are
any number and combination of considerations that an officer might cite as
being pertinent to assessing, as per the wording of R76(3): “. . . the
likelihood of the ability of the skilled worker to become economically
established in Canada. . . .”
[20]
The
jurisprudence of this Court leaves no doubt that among the considerations
pertinent to assessing “the likelihood of the ability of the skilled worker to
become economically established in Canada” is settlement income. The officer’s failure to
make any reference to the considerable assets available to the applicant in
either her decision or her notes constitutes a reviewable error warranting this
Court’s intervention.
* * * * * * * *
[21]
For
all the above reasons, the application for judicial review is granted, the
decision of the immigration officer, dated November 30, 2007, is set aside and
the matter is sent back for reconsideration by a different immigration officer.
JUDGMENT
The application for judicial review is granted.
The decision of the immigration officer, dated November 30, 2007, refusing to
issue the applicant a permanent resident visa under the Economic – Skilled
Worker class is set aside and the matter is sent back for reconsideration by a
different immigration officer.
“Yvon Pinard”
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