Date:
20130429
Docket: IMM-8259-12
Citation: 2013 FC 428
Ottawa, Ontario, April 29, 2013
PRESENT: The Honourable Madam Justice
Gleason
BETWEEN:
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GRANT PETER
KIMBALL
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicant is a 68-year old citizen of the United States, who was employed for a number of years as a software engineer in Canada. He lost his job in 2010 due to corporate restructuring and thereafter engaged in a
lengthy job search. He applied for a permanent resident visa under the Federal
Skilled Worker program, which was rejected by an immigration officer of the
Consulate General of Canada, Immigration Section, in New York City on June 20,
2012. The officer (with the requisite
concurrence of another officer) determined that despite the applicant’s
exceeding the minimum number of points (being awarded 74 out of 100 when only
67 are required), a substituted evaluation would be issued under subsection
76(3) of the Immigration and Refugee Protection Regulations, SOR/2002-227
[the Regulations]. The officer noted in this regard that the applicant
had been unsuccessful in his 22-month job search and concluded that in light of
this fact and the applicant’s profile, the applicant was not likely to be
successful in becoming economically established in Canada. The applicant’s
permanent residence application was therefore rejected.
[2]
In this application for judicial review, the
applicant seeks to set aside the rejection decision, arguing that his procedural
fairness rights were violated and that the decision is unreasonable.
[3]
In terms of procedural fairness, the applicant asserts that the
officer who interviewed him was under a duty to warn him of the concerns in
advance of the interview so as to afford the applicant time to prepare his
response and that the failure to warn him amounts to a denial of procedural
fairness. The applicant also argues that he implicitly requested the
opportunity to provide additional information during the interview but was
denied the opportunity to do so, which he likewise claims violated his rights
to procedural fairness. In terms of the reasonableness of the decision reached,
the applicant argues that the officers erred in their substituted evaluation by
ignoring relevant evidence and by failing to conduct the assessment in
accordance with the requirements of the Regulations.
[4]
For the reasons set out below, I have determined
that none of these arguments has merit and, accordingly, that this application
for judicial review will be dismissed.
Relevant
Statutory Provisions
[5]
Prior to addressing the applicant’s arguments, it is
useful to reproduce the provisions under which this decision was made to
provide context to the applicant’s arguments. The relevant provisions are
contained in subsection 12(2) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [the IRPA] and section 76 of the Regulations.
[6]
Subsection 12(2) of the IRPA provides:
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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.
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La sélection des
étrangers de la catégorie « immigration économique » se fait en
fonction de leur capacité à réussir leur établissement économique au Canada.
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[7]
The relevant portions of section 76 of the Regulations state:
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Selection criteria
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.
Concurrence
(4) An evaluation made under subsection
(3) requires the concurrence of a second officer.
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Critères de
sélection
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) — n’est
pas un indicateur suffisant de 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.
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Standard of
review
[8]
The first issue which must be determined is the
standard of review applicable to the assessment of the errors alleged by the
applicant. In terms of the first, no deference is owed to the officer on the
question of whether the officer violated the applicant’s rights to procedural
fairness as the matter is one for determination by the reviewing court (Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43, [2009] 1 SCR
339 and Satheesan v Canada (Minister of Public Safety and Emergency
Preparedness), 2013 FC 346 at para 35). On the other hand, the
reasonableness standard of review applies to the assessment of whether the
officers erred in their assessment under section 76 of the Regulations (Philbean
v Canada (Minister of Citizenship and Immigration), 2011 FC 487 at para
7 [Philbean] and Uddin v Canada (Minister of Citizenship and
Immigration), 2012 FC 1005 at para 30 [Uddin]). The reasonableness
standard is a deferential one and requires that the reviewing court not
substitute its views for those of the administrative decision-maker if the
reasons offered are transparent, intelligible and justified and the result
reached falls within the range of possible, acceptable outcomes in light of the
facts and applicable law (Dunsmuir v New Brunswick, 2008 SCC 9 at para
47 and Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62 [Newfoundland Nurses] at paras 11-13).
Was there a
denial of procedural fairness?
[9]
Turning, then, to consideration of the claimed
procedural fairness violation, procedural fairness is premised on the
principle that those involved in an adjudicative process should be provided
with an opportunity to fairly present their claims. This generally requires
that parties be afforded an opportunity to respond to issues they could not reasonably
have expected to arise that will impact upon decisions affecting their
interests. The determination of how this opportunity must be afforded is
context-dependent and will vary from one tribunal to another and from case to
case (Baker v Canada (Minister of Citizenship and Immigration), [1999] 2
SCR 817 at para 21).
[10]
In the context of decisions like the present one, the case law
establishes that a visa officer need not give notice of unanticipated concerns
(i.e. those that do not directly arise from the application of the Regulations)
prior to an interview so long as the concerns are raised during the interview
and the applicant is given an opportunity to address them. Where the applicant
reasonably requests time to provide additional evidence or submissions after
the interview, the applicant must be afforded this opportunity (Haghighi v
Canada (Minister of Citizenship and Immigration), [2000] 4 FC 407, [2000]
FCJ No 854 at para 43 (CA); Khwaja v Canada (Minister of Citizenship and
Immigration), 2006 FC 522 at para 17 and John v Canada (Minister of
Citizenship and Immigration), 2003 FCT 257, 26 Imm. LR (3d) 221 (TD)).
[11]
It follows, therefore, that the first alleged violation of
procedural fairness, involving the claim that the interviewing officer erred in
not providing advance notice of the concerns to the applicant, is without
merit. The case law recognizes that such concerns may indeed be raised for the
first time during the interview, itself. Accordingly, there was nothing
improper in the officer raising his concerns – and the possibility of a
substituted evaluation – for the first time during the interview of the
applicant.
[12]
The second claimed violation of procedural
fairness involves the assertion that the applicant requested but was not
afforded the opportunity to present additional evidence after the interview.
Assessment of this claim requires examination of the evidence regarding what
transpired during and subsequent to the interview.
[13]
Both the applicant and the officer who
interviewed him have filed affidavits, which provide differing evidence as to
what transpired during the interview. Neither was cross-examined.
[14]
The officer deposes that, upon being advised of
the concerns regarding the difficulty the officer feared the applicant would
likely face in achieving economic self-sufficiency, the applicant provided
evidence of a job interview he had recently scheduled, discussed his job search
and the fact that many companies preferred hiring permanent residents and
indicated that he could file evidence of other similar advertisements, where
other employers required job applicants to be Canadian citizens or permanent
residents. The officer, notably, does not indicate in his affidavit that the
applicant stated that he wished to file additional evidence on any other matter
or that had he known of the officer’s concerns would have filed additional
evidence regarding additional job interviews and contacts with recruiters.
[15]
The applicant, on the other hand, does so depose
in his affidavit. He states as follows at paragraph 15 of his affidavit: “I
told the officer during the interview that if I had known that my efforts to
find employment were going to be an issue with him, and used as a basis to deny
my application, that I would have brought evidence of the numerous jobs I had
applied for since being laid off, including evidence of interviews I attended
and contacts with recruiters”.
[16]
It is unnecessary for me to determine which of
these two versions of the events I prefer, because even if the applicant's version
is accepted, I do not find there to have been a violation of procedural
fairness in the circumstances of this case. In this regard, the applicant did
file additional evidence with the interviewing officer, subsequent to the
interview, that the officer and his superior both considered prior to
finalizing the decision that a substituted evaluation would be made under
subsection 76(3) of the Regulations.
[17]
This additional evidence consisted of a letter
dated May 31, 2012, in which the applicant set forth arguments as to why a
substituted evaluation should not be made. However, the applicant did not
provide any additional evidence of his job search, interviews or contacts with
recruiters in his letter. While these matters might well be relevant to the substituted
evaluation as the applicant argues, the fact is that the applicant was provided
with an opportunity to put this evidence before the officers and failed to do
so. He therefore cannot claim that his rights to procedural fairness were
denied. He was afforded an opportunity to address the concerns surrounding the
likelihood of his becoming economically self-sufficient if granted permanent
resident status in Canada.
[18]
Thus, the first ground of review advanced by the
applicant is without merit.
Did the officers
ignore relevant evidence?
[19]
The applicant argues in the second place that
the officers ignored relevant evidence, namely, evidence of the job interview
he was scheduled to undergo with Abbot, the Honeywell job advertisement he
filed and his LinkedIn profile. He asserts that these pieces of evidence were
ignored by the officers as they were not specifically mentioned in the letter
advising of the rejection of his application and are all relevant to the
decision.
[20]
This argument is without merit for two reasons.
First, the interviewing officer did mention these pieces of evidence in the
Computer Assisted Immigration Processing System [CAIPS] notes (which form part
of the reasons for decision). Thus, on the facts, the evidence was not ignored.
Second, and perhaps more importantly, there is simply no need for a tribunal to
specifically discuss every piece of evidence in its reasons. As stated by
Justice Abella for the Supreme Court of Canada in Newfoundland Nurses at
para 16:
Reasons may not
include all the arguments, statutory provisions, jurisprudence or other details
the reviewing judge would have preferred, but that does not impugn the validity
of either the reasons or the result under a reasonableness analysis. A
decision-maker is not required to make an explicit finding on each constituent
element, however subordinate, leading to its final conclusion […] In other
words, if the reasons allow the reviewing court to understand why the tribunal
made its decision and permit it to determine whether the conclusion is within
the range of acceptable outcomes, the Dunsmuir criteria are met.
[21]
Similarly, and more recently, in Construction
Labour Relations v Driver Iron Inc, 2012 SCC 65 at para 3, the Supreme
Court held:
The Board did not
have to explicitly address all possible shades of meaning of these provisions.
This Court has strongly emphasized that administrative tribunals do not have to
consider and comment upon every issue raised by the parties in their reasons.
For reviewing courts, the issue remains whether the decision, viewed as a whole
in the context of the record, is reasonable.
[Citations omitted.]
(See also Andrade
v Canada (Minister of Citizenship and Immigration), 2012 FC 1490.) Thus,
contrary to what the applicant asserts, the decision is not rendered
unreasonable through a failure to adequately address portions of the evidence.
Did the officer incorrectly exercise
his discretion under subsection 76(3) of the Regulations?
[22]
The applicant finally argues that the officers
premised the exercise of their discretion under subsection 76(3) of the Regulations
on an incorrect interpretation of the section 76, which requires that the
discretion to issue a substituted evaluation be premised on the factors listed
in paragraph 76(1)(a) of the Regulations. The applicant asserts that instead of
focussing on the required factors, the officers incorrectly focused exclusively
on the fact that the applicant had not obtained employment, which is not
required under section 76 of the Regulations. The applicant notes in this
regard that there is an entirely separate class is available for those with
pre-arranged employment in Canada to obtain permanent resident status (under
section 82 of the Regulations).
[23]
The decision of Justice Mandamin in Roohi v
Canada (Minister of Citizenship and Immigration), 2008 FC 1408 does provide
that in the exercise of their statutory discretion under subsection 76(3) of
the Regulations, visa officers should have regard to the factors listed in
paragraph 76(1)(a) of the Regulations in determining whether an applicant is
likely to become economically self-sufficient. A somewhat broader test is
posited in Philbean and Uddin, where Justices Tremblay-Lamer and Justice
O’Keefe noted that in the exercise of their discretion visa officers are
considering whether, despite the points awarded under paragraph 76(1)(a) of the
Regulations, an applicant is likely to become economically established in
Canada.
[24]
Regardless of how the test is formulated, I
believe that the officers in this case did not err by considering irrelevant
factors. Contrary to what the applicant asserts, it was not the fact that the
applicant had no job that concerned the officers. Rather, they were concerned
that the lengthy job search had yielded no result. As the respondent rightly notes,
the length of the search logically leads to the conclusion that the applicant
would be unlikely to ever find work or was unlikely to become economically
self-sufficient.
[25]
A similar finding was upheld in Philbean,
where a substituted decision based on an applicant’s having failed to engage in
a job search was found to be reasonable. There, Justice Tremblay-Lamer wrote at
paragraphs 19 and 20:
[19] The officer was concerned not
only about the applicant's ability to find employment in Canada, but also her willingness in that regard. These concerns were not based solely on
the applicant's age. Instead, the officer considered the applicant's age in
combination with a number of other circumstances, including: that the applicant
had already effectively retired in the UK, that despite having lived in Canada
for two years she had not taken concrete steps towards certification or towards
securing future employment in Canada, and that the applicant's husband had been
offered work in Canada but that an "LMO for his line of unskilled work
[had] not been issued for a second stay".
[20] Ultimately, the role of this
Court is not to substitute its own view for that of the immigration officer. I
cannot find that the officer's decision to substitute a negative determination
under subsection 76(3) of the Regulations lacked justification, transparency or
intelligibility or fell outside the range of possible, acceptable outcomes
defensible in respect of the facts and law. As such, this application for
judicial review is dismissed.
[26]
In my view, identical reasoning applies here
and, accordingly, the final argument advanced by the applicant is without
merit.
[27]
This application for judicial review will
accordingly be dismissed.
[28]
No question for certification under section 74
of the IRPA was presented and none arises as this decision is tied to the facts
of this case.
JUDGMENT
THIS COURT’S JUDGMENT is that:
1.
This application for judicial review is
dismissed;
2.
No question of general importance is certified;
and
3.
There is no order as to costs.
"Mary J.L. Gleason"
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