Date: 20081008
Docket: IMM-1210-08
Citation: 2008 FC 1144
Ottawa, Ontario, October 8,
2008
PRESENT: The Honourable Orville Frenette
BETWEEN:
PICKTON
ALFANSO EARL
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of a Visa
officer dated January 21, 2008, wherein the Officer found that the Applicant
did not meet the requirement for residence as a skilled worker and declined to
substitute her own evaluation of the Applicant’s ability to become economically
established in Canada.
BACKGROUND
[2]
The
Applicant, his wife and son are all citizens of Jamaica. They have
been in Canada since 2001
on temporary resident visas. The Applicant is a pastor for a congregation in Scarborough, for which
he does not require a work permit by the operation of paragraph 186(1) of the Immigration
and Refugee Protection Regulations.
[3]
The
Applicant sought permanent resident status as a skilled worker in April 2006.
He requested in submissions that his wife’s education be considered in
assessing the points to be awarded. In February 2008, he further requested
that a substituted evaluation pursuant to subsection 76(3) of the Regulations.
DECISION
[4]
The
Officer noted that the Applicant’s wife had a Diploma of Biblical Studies from
International School of Ministry and an Associate of Biblical studies from Vision
International University. The
Officer explained that neither met the definition of “educational credential”
set out in section 73 of the Regulations and awarded no points for them
in the adaptability factor in section 83.
[5]
The
Officer then addressed the substituted evaluation and noted that the evidence
about this employment as pastor, including the appropriate name of the church
at which he claims to be a preacher, was unclear. The Officer therefore
declined to make a positive substitution of the Applicant’s ability to establish
himself economically.
STANDARD OF REVIEW
[6]
Given
that the Officer’s decision for a substitute consideration of the Applicant’s
likelihood of successful economic establishment is discretionary, considerable
deference is due and the decision will only set aside if it falls outside the
range of reasonably acceptable outcomes (Dunsmuir v. New
Brunswick,
(2008) 1 S.C.R. 190).
Issue A – Applicant’s
Wife’s education
[7]
The
Applicant submits that his wife obtained an associate Degree of Biblical
studies from Vision
International University and a Diploma of Biblical Studies from the
International School of Ministry.
[8]
The
Applicant alleges the Officer committed an error in this respect because he did
not complete a thorough research on that education before concluding that there
was no evidence these institutions were accredited.
[9]
The
Respondent pleads that the officer made an appropriate search to verify these
institutions in official websites which are generally recognized as accurate.
ANALYSIS
[10]
The
evidence shows that the officer used verifiable and credible government sources
which are regularly used to verify whether educational institutions are
accredited by the country where the documents were issued.
[11]
In
particular, the officer performed a search of the above institutions using the
websites “U.S. Department of Education Database of accredited Post secondary
Institutions and Programs” and “Service Ontario Website”, and Vision
International University’s own website (www.vision.edu).
[12]
The
above institutions did not appear on the searches except in the Vision
International University’s website.
[13]
The
last institution is not accredited by an accrediting agency recognized
by the U.S.A. Department of Education or the council for Higher Education
accreditations.
[14]
There
was no evidence adduced by the Applicant to contradict the above search
results. It is possible to argue that “newspapers and materials from sources
as the U.A.A. Department of State Reports” are not necessarily “best evidence”
but they can be considered and there reliability and weight decided by a court
(Beloya v. Canada (MCI) 2005 FC 1092 at para. 16).
[15]
However,
such documentation, even if challenged, cannot simply be ignored unless it has
no reliability or probative value.
[16]
In
the present case, the officer’s verification through official and recognized
websites cannot be ignored. The officer’s assessments is based on this verification
that the above educational institutions are not accredited and therefore cannot
satisfy under Rule 73 of IRP reputations, being uncontradicted are therefore
not challenged.
[17]
The
officer’s decision not to award any points for the education credentials of the
spouse falls within the range of acceptable or reasonable outcomes from the evidence
(Dunsmuir, supra).
Issue B – Substituted
evaluation methodology “section 76(3) of the Regulations”
Legislation
|
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.
|
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).
|
[18]
The
Applicant submits that the officer failed to address the evidence presented in
the permanent resident application and in the request for a substituted evaluation
to complete the number of points lacking. An applicant can invoke a
substitutional education of his or her score less than the required 67 points,
if there is the likelihood of the ability of the skilled whether to become
economically established in Canada, despite the point shortage. The
Applicant argues that the officer failed to consider the evidence on this
matter and therefore made a reviewable error (Lam v. Canada (MCI) (1998),
F.T.R. 316 No. 1239 and Yan v. Canada (MCI) (2003) F.C.J. No. 655 at
para. 24).
[19]
The
Respondent answers that the officer did consider the evidence, particularly the
Applicant’s experience as a pastor in Canada.
[20]
She
concluded that his employment was not an “accurate reflection of his ability to
establish economically and therefore did not recommend a positive substitution
of education” (CAIPS’ notes, Applicant’s Record, pp. 1042).
[21]
The
decision falls well within the exercise of the officer’s discretion and follows
Dunsmuir’s direction, being one of the reasonable outcomes from the
facts; therefore it is not a valid ground for justifying a judicial review.
DISCUSSION
[22]
As
mentioned before, the officer used verifiable and credible government sources
which are regularly used to assess whether institutions are accredited by the
country where the documents are issued.
[23]
In
this technological era, information found on official websites is routinely
invoked by government, commerce, industry and by educational institutions.
Therefore, Visa officers or officials of the Immigration Division are justified
to use these facilities otherwise the processing of claims would be unduly
delayed. Evidently, this information could be challenged however, if
unchallenged, it can be relied upon.
[24]
In
the instant case, the officer’s search was acceptable, remains unchallenged and
the exercise of her discretion in considering the evidence to verify the
validity and authenticity of the establishment diplomas and for the purpose of
assessing whether to substitute the evolution in the points actually awarded,
is justifiable.
CONCLUSION
[25]
In
summary, the officer’s decision falls within the range of possible outcomes emanating
from the evidence and must be respected according to Dunsmuir (supra).
[26]
Therefore
the application must be dismissed.
JUDGMENT
THIS COURT ORDERS that
- The application for
judicial review is dismissed.
- No question was
submitted to be certified.
"Orville
Frenette"
Email this Content