Date: 20080624
Docket: IMM-5236-07
Citation: 2008 FC 798
Ottawa, Ontario, June 24,
2008
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
LIMIN WANG
HE HUANG
YUANXIN HUANG
Applicants
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
Immigration Officer J. Carlile, (the Officer) refusing the applicant’s application for
permanent residence in Canada under the skilled worker category, on the ground
that the applicant did not obtain the minimum points required under the Immigration
and Refugee Protection Regulations, SOR/2002-227 (Regulations).
ISSUES
[2]
Two
issues are raised in the present application:
a) Did the
Officer breach a principle of natural justice by relying on extrinsic evidence
and not allowing the applicant an opportunity to reply?
b) Was the
Officer’s decision unreasonable?
[3]
For
the following reasons, the application for judicial review shall be dismissed.
FACTUAL BACKGROUND
[4]
The
applicants made an application for permanent residence under the skilled worker
category to the Visa Section of the Canadian Embassy in Beijing, China, on December
10, 2003. The applicants are citizens of China, and the principal applicant, Mrs. Limin Wang,
was born on November 24, 1966. Her husband, He Huang (the male applicant), and
son, Yuanxin Wang, were included in the application as dependents.
[5]
The
principal applicant’s occupation was listed as a Telecommunications Manager. She
required a score of 67 points to immigrate to Canada. On October
17, 2006, the application was screened by the Officer, and she was awarded a
score of 68 points, including five points for adaptability based on the fact
that the male applicant had a brother, Huang Hai, living in Canada. Additional
documents were requested including updated proof of the brother’s residency in Canada. Documents
were received on January 17, 2007.
[6]
The
processing of the file was delayed due to a concern about the genuine nature of
the principal applicant’s employment. This concern was resolved, and on June
26, 2007, the Officer made a second request for updated information that the
male applicant’s brother was residing in Canada. The
applicants provided the following documents on July 26, 2007:
a) A copy of the
brother’s permanent resident card;
b) A copy of the
brother’s wife’s permanent resident card and passport;
c) A copy of the
brother’s 2007 Notice of Assessment;
d) A copy of the
brother’s wife’s 2007 Notice of Assessment;
e) A copy of the
brother’s marriage certificate;
f)
A
copy of land transfer registration (in the brother’s wife’s name).
DECISION UNDER REVIEW
[7]
In
his decision, the Officer assessed the applicant at 63 points. The applicant
was awarded 10 points for age, 20 points for education, 8 points for official
language proficiency, 21 points for experience, 0 points for arranged
employment and 4 points for adaptability.
[8]
The
Officer concluded that the applicant had insufficient points to qualify for
immigration to Canada. She noted that no points were awarded for the
male applicant’s brother, Huang Hai, living in Canada. She
determined that the evidence provided by the applicants in support of this
allegation was insufficient to establish that the brother resided in Canada at the time
of the decision, based on the fact that the majority of the documentation
provided related to the brother’s wife and not him. Huang Hai’s 2007 Notice of
Assessment was the only document which related specifically to him. It
indicated that he earned a total of $2,000 in 2006.
[9]
The
Officer noted that her records indicated that Huang Hai had prolonged absences
from Canada in the past.
The Notice of Assessment was therefore insufficient evidence to convince her
that he was a resident of Canada at the time the decision was made.
ANALYSIS
Standard of Review
[10]
The
jurisprudence of this Court has recognized that the decision of an immigration
officer in the assessment of an application for permanent residence under the
federal skilled worked class involves an exercise of discretion and should
therefore be afforded considerable deference. In Choksi v. Canada (Minister
of Citizenship and Immigration), 2007 FC 555, at paragraph 14, [2007] F.C.J.
No. 770, Justice Mactavish determined that “to the extent that such an
assessment is carried out in good faith, in accordance with the principles of
natural justice, and without relying on irrelevant or extraneous
considerations, the decision is reviewable on the standard of patent
unreasonableness.” (See also Singh v. Canada (Minister of
Citizenship and Immigration), 2008 FC 58, [2008] F.C.J. No. 65).
[11]
Following
the Supreme Court of Canada’s decision in Dunsmuir v. New Brunswick,
2008 SCC 9, the review of an Officer’s assessment of an application for
permanent residence should continue to be subject to deference by the Court,
and is reviewable on the standard of reasonableness (Dunsmuir, at
paragraphs 55, 57, 62, and 64).
[12]
For
a decision to be reasonable there must be justification, transparency and
intelligibility within the decision making process. The decision must fall
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and the law (Dunsmuir, at paragraph 47).
[13]
It
is trite law that a breach of procedural fairness is reviewable on the standard
of correctness.
Did
the Officer breach a principle of natural justice by relying on extrinsic
evidence and not allowing the applicant an opportunity to reply?
[14]
The
applicants submit that the Officer relied on extrinsic evidence in the
assessment of their claim and breached a principle of natural justice.
[15]
The
respondent submits that the overriding concern with respect to disclosure is
whether the applicants were aware of the information in question. The duty of
fairness requires disclosure of information if it is necessary for the person
concerned to have a meaningful opportunity to present their case. The
respondent cites Zambrano v. Canada (Minister of
Citizenship and Immigration), 2008 FC 481, at paragraph 47, [2008]
F.C.J. No. 601:
[47] I believe that it is settled
law that the duty of fairness requires disclosure of documents if their
disclosure is necessary in order for the person concerned to have a meaningful
opportunity to present his or her case fully and fairly to the decision-maker.
The overriding concern with respect to disclosure is whether the document is
one that the individual is aware or deemed to be aware. See, for example, Chen
v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 193
(T.D.), and Asmelash v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 2145 (QL).
[16]
The
Officer's concerns of whether the male applicant’s brother resided in Canada should not
have come as a surprise to the applicants. The Officer requested twice (January
17, 2007 and June 26, 2007) proof of this fact, this in itself is
sufficient to put them on notice that the issue was a live one. Further, the
Officer relied mainly on one document submitted by the applicant (2006 Notice
of Assessment) to refuse the application. Even if the officer wrote in his decision
“… since all documentation except one relates to your brother's wife, not Huang
Hai …”, the notes on file demonstrate that the Officer considered the other
documents provided by the applicants.
[17]
For
the foregoing reasons, I find that no breach occurred of the rules of natural
justice.
Was
the Officer’s decision unreasonable because the officer failed to consider
whether the brother was in Canada at the relevant time?
[18]
The
applicants submit that the Officer was required to make a concrete finding that
the male applicant’s brother was not living in Canada at the time
the decision was made. The applicants cite Kim v. Canada (Minister of
Citizenship and Immigration), 2007 FC 812, [2007] F.C.J. No. 1068, in
support of their position.
[19]
It
is my opinion that the applicant has failed to demonstrate that the Officer’s
decision is unreasonable. The Officer’s decision is based on the insufficiency
of evidence establishing the brother’s residence in Canada. The burden
of adducing sufficient evidence to support the application falls to the
applicant.
[20]
In
the case at bar, the Officer found that the majority of the evidence
submitted related to the brother’s wife, and not to his presence in Canada. It was open
to the Officer to weigh the evidence as she did and determine that the
applicants had not satisfied this burden. It is not the role of the Court to
reweigh the evidence and I decline to do so.
[21]
The
Officer’s decision is intelligible, justified and transparent and falls within
the range possible, acceptable outcomes which are defensible in respect of the
facts and the law.
[22]
The
parties did not submit questions for certification and none arise.
JUDGMENT
THIS COURT
ORDERS that the application for
judicial review be dismissed. No question is certified.
“Michel
Beaudry”
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