Date: 20080116
Docket: IMM-2530-07
Citation: 2008 FC 58
Toronto, Ontario, January 16,
2008
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
AMARJEET
SINGH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Amarjeet
Singh seeks judicial review of the decision of a visa officer refusing his
application for permanent residency as a skilled worker. Mr. Singh argues that
the visa officer erred in finding that he did not have a work permit allowing
him to work in Canada.
[2]
Mr.
Singh further contends that the officer erred in declining to exercise her
discretion to find that he would be able to become economically established in Canada,
notwithstanding the fact that he did not receive the requisite number of points
when his application was assessed in accordance with the provisions of the Immigration
and Refugee Protection Regulations.
[3]
For
the reasons that follow, Mr. Singh has not persuaded me that the officer erred
as alleged. As a consequence, his application for judicial review will be
dismissed.
Background
[4]
Mr.
Singh is a Sikh priest and an Indian citizen who came to Canada on a
visitor’s visa on December 31, 2002. His visa explicitly prohibited him from
being employed while he was in Canada, but did allow him to perform religious
duties in this country.
[5]
Mr.
Singh’s visitor’s visa was extended twice. However, his third request for an
extension was refused.
[6]
On
October 1, 2004, Mr. Singh submitted an application for a permanent resident
visa as a member of the skilled worker class. In support of his application,
Mr. Singh produced a letter dated February 10, 2004 from the President of the
Siri Guru Nanak Sikh Gurdwara in Edmonton, Alberta, which
indicated that Mr. Singh had been offered a permanent position at the Gurdwara.
[7]
Mr.
Singh’s application for a permanent resident visa was refused on May 26, 2006.
[8]
In
assessing Mr. Singh’s application, the visa officer refused to award him any
points for “arranged employment” or “adaptability”.
[9]
Mr.
Singh sought judicial review of this decision. On January 23, 2007, Justice
Blais granted his application: see Singh v. Canada (Minister of
Citizenship and Immigration), 2007 FC 69.
[10]
Before
Justice Blais, Mr. Singh argued that he should have received 5 points for
“adaptability”, by virtue of his previous employment in Canada. He further
argued that he should have been awarded 10 points for “arranged employment”,
based upon the offer of employment submitted to the visa officer.
[11]
In
this regard, Mr. Singh contended that religious workers do not require a work
permit to be allowed to work in Canada, and that the fact that he did not have
such a permit should not have precluded consideration of his job offer.
[12]
Justice
Blais did not accept these arguments, stating:
[18] On the first issue of adaptability,
subsection 83(4) of the Regulations clearly states that 5 points will be
awarded in cases where the applicant or accompanying spouse / common-law
partner engaged in at least one year of full-time work in Canada "under a work
permit". On the second issue of arranged employment, section 82 of the
Regulations sets out a number of scenarios for what may be considered 'arranged
employment', each requiring that the applicant either hold a valid work permit or,
in the situation where the skilled worker does not intend to work in Canada
prior to obtaining his permanent resident visa, an offer of employment in
Canada that has been validated by HRSDC.
[19] The applicant is correct in
noting that he was exempt from the requirement to obtain a work permit before
coming to Canada to work as a Sikh priest as per subsection 186(l) of the
Regulations. That being said, no further accommodations are made in the
Regulations that would grant special privileges for workers that meet the
requirements of section 186, when applying for a permanent resident visa. Given
the various scenarios considered under section 82 of the Regulations to be
awarded points for arranged employment, had such an exemption been contemplated
by the Canadian Government, it could easily have been included in the
Regulations. The applicant argues that no such accommodations were made because
the occupations listed under section 186 have already been determined to have a
"neutral or positive effect on the labour market in Canada", as
required to issue a work permit under section 203 of the Regulations, and thus
an exemption is implied from a joint reading of sections 186, 203 and 82 of the
Regulations. With no evidence submitted to support such an interpretation of
the Regulations, I find no merit to this argument.
[13]
Justice
Blais did allow Mr. Singh to introduce new evidence on his application for
judicial review, namely an e-mail sent from the Ministerial Enquiries Division
of the respondent to another applicant. This e-mail advised that priests were
exempt from the requirement to have their job offer validated by the Department
of Human Resources and Skills Development Canada (now Human Resources and
Social Development Canada “HRSDC”) for the purposes of obtaining points under
the “adaptability” and “arranged employment” factors in a permanent resident
application.
[14]
Although
Justice Blais acknowledged that this information was incorrect, he was
concerned that it might demonstrate that other individuals in Mr. Singh’s
situation had been treated differentially than he had. Therefore, Justice Blais
granted the judicial review application, and instructed the visa officer
reconsidering Mr. Singh’s application for permanent residency to consider the
e-mail, and whether there had been any unequal treatment of Mr. Singh.
[15]
Mr.
Singh’s application was then re-assessed by a different visa officer, who
awarded Mr. Singh the same score as had the first visa officer.
[16]
Once
again, Mr. Singh received no points for either “arranged employment” or
“adaptability”, as Mr. Singh’s offer of employment had not been validated by
Human Resources and Skills Development Canada.
[17]
The
relevant portion of the CAIPS Notes indicates that in reaching this decision,
the visa officer considered the e-mail referred to above, as directed by
Justice Blais. In this regard the officer held that:
This doc adds no benefit to this appln
though, because information contained is not correct. In any event, PI fails
to obtain sufficient units to qualify for immigration to Cda. I have reviewed
docs/info on file, and with all things considered, I am satisfied that points
awarded are an accurate reflection of PI’s ability to economically establish in
Cda. Application must therefore be refused.
Issues
[18]
As
I understand the submissions of counsel for Mr. Singh, he now argues that in
assessing his application, the visa officer erred in failing to recognize that
Mr. Singh was already working in Canada, and that he had a
“work permit” allowing him to do so.
[19]
Mr.
Singh also argues that the officer erred in failing to exercise her discretion
under subsection 76(3) of the Regulations.
Standard of Review
[20]
As
Justice Blais noted in his decision involving Mr. Singh, decisions of visa
officers are discretionary decisions, based essentially on an assessment for
the facts. As such, to the extent that this assessment “has been done in good
faith, in accordance with the principles of natural justice applicable, and
without relying on irrelevant or extraneous considerations, the decision of the
visa officer should be reviewed on the standard of patent unreasonableness”:
see Singh, previously cited, at paras. 8 and 9.
[21]
That
said, Mr. Singh’s argument that he in fact had a work permit involves the
interpretation of the Regulations, and the application of these Regulations
to the facts of this case. This is a question of mixed fact and law, and I
will review this aspect of the officer’s decision against the standard of
reasonableness.
Analysis
[22]
With
respect to Mr. Singh’s argument that the officer erred in failing to recognize
that he had been working in Canada under a “work permit”, Mr. Singh points to
the fact that his visitor’s visa contained the notation that he was authorized
to perform religious duties for the Siri Guru Nanak Sikh Gurdwara, in Edmonton.
[23]
According
to Mr. Singh, this amounts to a “written authorization to work in Canada”, thus
meeting the definition of a “work permit” contained in section 2 of the Regulations.
[24]
I
cannot agree.
[25]
First
of all, Mr. Singh’s argument ignores the explicit condition contained in his
visitor’s visa that he was “prohibited from engaging in employment in Canada”. In the
face of this language, the visa cannot reasonably be interpreted as amounting
to “a written authorization to work in Canada”.
[26]
In
addition, Divisions 2 and 3 of the Regulations contain extensive
provisions governing the granting of work permits. There is no evidence that
Mr. Singh has complied with the application process required by these
provisions.
[27]
Moreover,
subsection 83(4) of the Regulations clearly states that 5 points will be
awarded where an applicant has engaged in at least one year of full-time
work in Canada under a work
permit [emphasis added]. Mr. Singh’s own visa application acknowledges that he
had not worked full-time while he was in Canada.
[28]
Finally,
there is no suggestion that any offer of employment made to Mr. Singh was ever
validated by Human Resources and Skills Development Canada prior to Mr. Singh
receiving his visitor’s visa.
[29]
As
a consequence, I can see no error in the visa officer’s assessment of Mr.
Singh’s application, as it related to the issues of “adaptability and “arranged
employment”.
[30]
Insofar
as the e-mail considered by Justice Blais was concerned, Mr. Singh now concedes
that the advice contained therein was wrong.
[31]
With
respect to Mr. Singh’s contention that the officer erred in failing to carry
out a “substituted evaluation” in accordance with subsection 76(3) of the Regulations,
a review of the CAIPS notes discloses that even though Mr. Singh never
requested that such consideration be given to his application, the officer
nevertheless turned her mind to the issue of whether his points assessment
properly reflected his ability to become economically established in Canada.
[32]
In
this regard, the officer held that the points awarded did indeed accurately
reflect Mr. Singh’s ability to become economically established in Canada. As a
consequence, she declined to exercise her discretion to make a substituted
evaluation, as contemplated by subsection 76(3) of the Regulations.
[33]
Mr.
Singh has not suggested that the officer acted other than in good faith in
declining to exercise her discretion in his favour. Nor has he demonstrated
that the officer relied on irrelevant or extraneous considerations in coming to
this conclusion. Moreover, the jurisprudence is clear that there is a limited
duty on the officer to explain why favourable consideration was not given in
this regard: see Poblano v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1167 and Yan v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 510.
Conclusion
[34]
For
these reasons, the application for judicial review is dismissed.
Certification
[35]
Mr.
Singh proposes two questions for certification. These are:
1. Whether a notation
on a visitor’s visa is a “work permit”; and
2. Whether
a visa officer must consider subsection 76(3) in the case of a person applying
for a permanent resident visa as a skilled worker where that person alleges
that he has worked in Canada and has a job offer in Canada and that his work has been under section
186 of the Regulations.
[36]
I
am not satisfied that the first question raises a serious issue, given the
explicit prohibition on employment contained in Mr. Singh’s visitor’s visa.
[37]
Insofar
as the second proposed question is concerned, it is clear from a review of the
record that the visa officer did consider subsection 76(3) of the Regulations
in assessing Mr. Singh’s application. As a consequence, the question does not
arise.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. This application for
judicial review is dismissed; and
2. No serious question
of general importance is certified.
“Anne Mactavish”
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