Date:
20130527
Docket:
IMM-12568-12
Citation:
2013 FC 554
Ottawa, Ontario,
May 27, 2013
PRESENT: The
Honourable Mr. Justice Boivin
BETWEEN:
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DMITRI ALEXANDROVICH SMIRNOV
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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]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (the Act) of a decision of a
Citizenship and Immigration Canada case officer (the officer), dated November
29, 2012, wherein the applicant’s application for a permanent resident visa as
a member of the Canadian experience class was refused. The officer was not
satisfied that the applicant met the official language proficiency requirements
prescribed in the Immigration and Refugee Protection Regulations,
SOR/2002-227 (the Regulations). For the following reasons, the application for
judicial review will be dismissed.
Facts
[2]
Mr.
Dmitri Smirnov (the applicant) is a citizen of Russia and is deaf since birth.
He primarily uses sign language to communicate (Application Record, Affidavit
of the Applicant, p 8). According to the applicant, primary and secondary
education for the deaf in Russia was not adequately adapted to deaf students’
needs, and the applicant left high school at what he deems to be the equivalent
of grade ten (10) in Canada, but perceives that the materials learned are
equivalent to that of grade eight (8) in Canada (Application Record, Affidavit
of the Applicant, pp 9-10). The applicant is now fluent in American Sign
Language (ASL), which he learned upon his arrival in the United States (Application Record, Affidavit of the Applicant, p 10). The applicant lived
in the United States as a permanent resident prior to moving to Canada in February 2006 (Respondent’s Record, Affidavit of Jennifer Carlile, Tab 2, para 6;
Tribunal Record, p 95). The applicant has worked in Canada as a painter since
his arrival in 2006 (Tribunal Record, pp 81-83). His current work permit in Canada is valid until June 2014 (Respondent’s Record, Affidavit of Jennifer Carlile, Tab 2,
para 5).
[3]
The
applicant submitted a Generic Application Form (IMM 0008) for permanent
residence on December 3, 2011 (Tribunal Record, pp 81-92). The applicant indicated
he was applying as a “skilled worker” (Tribunal Record, p 81), a Division in
the Regulations that encompasses both the federal skilled workers and Canadian
experience classes, amongst others. The applicant submitted a Schedule 8 form
for the Canadian experience class, where he indicated having more than two (2)
years of experience working full-time in Canada under the National Occupational
Classification (NOC) code 7294, “Painter”, since February 2006 (Tribunal
Record, pp 99-101). He did not submit a Schedule 3 form for the federal skilled
worker class. He was assessed under the Canadian experience class.
[4]
Along
with his application, the applicant submitted a report from the International
English Language Testing System (IELTS), indicating test results of 3.5 on both
reading and writing abilities (Tribunal Record, p 107). A test result of 3.5 in
reading converts to a Canadian Language Benchmark (CLB) score of less than 4,
while a test result of 3.5 in writing converts to a CLB score of 4 (Respondent’s
Book of Authorities, Tab 4, p 14, Operational Manual 25: Canadian Experience
Class). The IELTS report included comments to the effect that due to the
applicant’s extreme speaking and hearing difficulties, he was exempt from the
speaking and listening tests. The applicant was nonetheless given scores of 3.5
on both speaking and listening abilities, scores which were “notionalized on
the basis of the average of the other two bandscores” (Tribunal Record, p 107).
[5]
The
applicant also included test results from the Canadian Hearing Society for his
abilities in American Sign Language (ASL), for which the applicant scored 9.2
out of 10 for Expressive skills (analogous to “speaking”) and 9 out of 10 for
Receptive skills (analogous to “listening”) (Tribunal Record, pp 116-17). The
applicant also submitted a letter from his representative explaining that he
was deaf since birth and commenting on his ability to communicate in a very
detailed manner using ASL (Tribunal Record, pp 109-10).
Impugned
decision
[6]
In
a decision dated November 29, 2012, the officer refused the applicant’s
application for a permanent resident visa as a member of the Canadian
experience class. The officer explained that applicants in the Canadian
experience class are assessed on a pass/fail basis as set out in paragraph
87.1(2) of the Regulations. The officer assessed the applicant’s application
based on his work experience as a painter (NOC 7294).
[7]
The
officer’s notes indicate that the supporting documents submitted by the
applicant were sufficient to demonstrate his experience under his declared NOC
7294 Painter category. The notes also reveal that the officer was aware that
the applicant is deaf, and obtained scores of 9.2 and 9.0 on ASL proficiency
assessments for Expressive and Receptive tests, respectively (Tribunal Record,
p 2).
[8]
However,
the officer was not satisfied that the applicant met the official language
proficiency requirement, having received IELTS scores of 3.5 on both reading
and writing, equivalent to Canadian Language Benchmarks (CLB) of 4 or less. The
officer explained that, based on his occupation and his application in the
Canadian experience class, the applicant was required to obtain either CLBs of
5 in each ability (reading, writing, speaking and listening), or the following
combination: a CLB of 4 in one (1) ability, 5 or more in two (2) abilities, and
6 or more in the remaining ability. Since the applicant has two (2) CLBs of 4
or less, he did not meet the official language requirement and his application
was refused.
Issues
[9]
The
Court is of the view that the issues raised in this application for judicial
review are as follows :
a. Did the officer err by
not taking into account the applicant’s ASL scores?
b. Did the officer err by
not assessing the applicant’s application under the federal skilled workers
class, but only under the Canadian experience class?
c. Did the officer’s
decision refusing the applicant’s application for permanent residence and the
Regulations violate the right to equality guaranteed by subsection 15(1) of the
Charter?
Relevant
legislation
[10]
The
relevant dispositions from the Act and its Regulations are set out in the Annex
to this judgment. The Regulations have been modified since the officer’s
November 29, 2012 decision. The Regulations in force at the time specifically
provided that a foreign national who acquired work experience in an occupation
listed in Skill Level B of the National Occupational Classification matrix, as
is the applicant’s case, had to have their abilities to speak, listen, read and
write assessed by a designated organization or institution and meet the
following benchmarks: i) either a CLB score of 5 or higher on each of the four
(4) abilities, or ii) a CLB score of 4 for any one (1) ability, a CLB score of
5 or higher for any other two (2) abilities, and a CLB score of 6 or higher for
the remaining ability. These are the benchmarks the officer used to evaluate
the applicant.
[11]
The
Regulations now provide, through section 74 which was not in force at the time
the impugned decision was rendered, that the Minister shall fix, by class or by
occupation, minimum language proficiency thresholds on the basis of the number
of applications processed in all classes, the number of immigrants who are
projected to become permanent residents, and the potential for the
establishment in Canada of applicants in the federal skilled worker class, the
Canadian experience class, and the federal skilled trades class, taking into
account their linguistic profiles, economic factors and other relevant factors.
Standard of
review
[12]
The
applicant contends that the applicable standard of review in the present case
is correctness. The respondent, on the other hand, submits that an officer’s
determination under the Canadian experience class involves findings of fact and
law, and is therefore reviewable on a standard of reasonableness (Anabtawi v
Canada (Minister of Citizenship and Immigration), 2012 FC 856 at para 28,
11 Imm LR (4th) 302; Arachchige v Canada (Minister of Citizenship and
Immigration), 2012 FC 1068 at para 8, [2012] FCJ No 1150 (QL)).
[13]
The
Court agrees with the respondent that the issues pertaining to the officer’s
determination of the applicant’s application for permanent residency are
subject to the deferential standard of reasonableness. The Court should
therefore not intervene unless the officer’s decision in that regard is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence (Dunsmuir v New Brunswick, 2008 SCC 9 at
para 47, [2008] 1 S.C.R. 190 [Dunsmuir]).
[14]
Issues
of procedural fairness, on the other hand, do not require deference from this
Court with regards to the approach adopted by the officer (Dunsmuir,
above at para 50; Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12 at para 43, [2009] 1 S.C.R. 339).
[15]
The
Court notes that the approach put forth by the Supreme Court of Canada in Doré
v Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395 [Doré], states
that questions involving the Canadian Charter of Rights and Freedoms, Part I of the Constitution
Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11
[Charter], do not necessarily automatically mandate for the
application of the correctness standard. Such an approach would result in
applying the correctness standard to, and in effect retrying, every case that
involves Charter values. The Supreme Court of Canada indicated the
following in Doré, above at paras 36, 43:
[36] As
explained by Chief Justice McLachlin in Alberta v. Hutterian Brethren of
Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, the approach used when
reviewing the constitutionality of a law should be distinguished from the
approach used for reviewing an administrative decision that is said to violate
the rights of a particular individual (see also Bernatchez). When Charter
values are applied to an individual administrative decision, they are being
applied in relation to a particular set of facts. Dunsmuir tells us this
should attract deference (para. 53; see also Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at para.
39). When a particular “law” is being assessed for Charter
compliance, on the other hand, we are dealing with principles of general
application.
…
[43] What
is the impact of this approach on the standard of review that applies when
assessing the compliance of an administrative decision with Charter
values? There is no doubt that when a tribunal is determining the
constitutionality of a law, the standard of review is correctness (Dunsmuir,
at para. 58). It is not at all clear to me, however, based on this Court’s
jurisprudence, that correctness should be used to determine whether an
administrative decision-maker has taken sufficient account of Charter
values in making a discretionary decision.
[Emphasis
added]
[16]
The
issue of whether or not the Regulations violate the applicant’s rights to
equality pursuant to subsection 15(1) of the Charter was not before the
officer, and is therefore not being “reviewed” by this Court. It also concerns
a general application of the law, an analysis the Court can undertake without
deference.
Arguments
Applicant’s
arguments
[17]
The
applicant submits that the officer erred by ignoring significant evidence;
namely, his ASL scores, which he submitted along with his application. According
to the applicant, the officer failed to consider this important evidence, and
failed to explain how she dealt with the speaking and listening abilities in
her decision. According to the applicant, this is problematic in the
application of subparagraph 87.1(2)(b)(ii) of the Regulations in force
at the time, which requires a score of 5 on all four (4) abilities, or a score
of 4 for any one (1) ability, a score of 5 or higher for any other two (2)
abilities, and a score of 6 or higher for the remaining ability.
[18]
The
applicant also argues that the officer erred by not considering him under the
federal skilled workers class. Although he acknowledges having submitted only a
Schedule 8 form for the Canadian experience class, he contends that the officer
should have followed up with him and clarified under which class he wanted to
be assessed. The applicant contends that this is particularly the case because
of the ambiguity on his Generic Application Form IMM 0008, where he simply
indicated “skilled worker” (a Division in the Regulations which encompasses
both the federal skilled workers class and the Canadian experience class, amongst
others). The applicant submits that he could have benefited from the more
nuanced evaluation provided in the legislative framework for federal skilled
workers, along with subsection 76(3) of the Regulations which provides for a
substituted evaluation when the points are an insufficient indicator of the
likelihood of economic establishment. The applicant claims this constitutes a breach
in procedural fairness.
[19]
With
regards to the Charter issue, the applicant contends that both the
officer’s decision applying the Regulations, as well as the Regulations
themselves as they are drafted, violate his subsection 15(1) Charter
rights to equality:
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Equality
Rights
Equality
before and under law and equal protection and benefit of law
15. (1) Every individual is equal
before and under the law and has the right to the equal protection and equal
benefit of the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour, religion,
sex, age or mental or physical disability.
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Droits
à l’égalité
Égalité
devant la loi, égalité de bénéfice et protection égale de la loi
15. (1) La loi ne fait
acception de personne et s’applique également à tous, et tous ont droit à la
même protection et au même bénéfice de la loi, indépendamment de toute
discrimination, notamment des discriminations fondées sur la race, l’origine
nationale ou ethnique, la couleur, la religion, le sexe, l’âge ou les
déficiences mentales ou physiques.
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[20]
The
applicant argues that the officer violated his section 15 rights by not
subsuming his ASL results into the official language proficiency required by
the Regulations and that the requirements to read, listen, speak and write
contained in paragraph section 87.1(2)(b) of the Regulations in force at
the time of the decision violate his subsection 15(1) Charter rights.
[21]
The
applicant argues that deaf persons have been repeatedly recognized by the
courts as a disadvantaged minority in Canada (citing Eldridge v British Columbia (Attorney General), [1997] 3 S.C.R. 624, 151 DLR (4th) 577). He claims
that the law creates a distinction based on disability due to the requirement
to speak and listen in former paragraph 87.1(2)(b) of the Regulations,
and that no deaf person could ever succeed in obtaining permanent residency
under the Canadian experience class as the Regulations are drafted. The
applicant claims that the other two (2) assessed abilities, “read” and “write”,
are also necessarily impaired by the inability to speak and listen in a society
predominantly disposed towards hearing persons, particularly when learning a
second language. The applicant also indicates that the respondent has failed to
designate any institution or organization such as the Canadian Hearing Society,
which could assess a deaf person’s expressive and receptive ASL abilities.
According to the applicant, the respondent has infringed his Charter
rights by failing to draft or interpret legislation that treats his fluency in
ASL as equivalent to fluency in English.
[22]
The
applicant finally raises Charter issues with regards to sections of the
Act relating to the federal skilled workers class, under which he was not
assessed because he did not apply under that class (sections 75 to 83 of the
Regulations).
Respondent’s
arguments
[23]
According
to the respondent, the sole issue in this case is whether the officer’s
decision was reasonable. The respondent argues that the applicant’s application
contained a clear indication of which class he wished to be considered for
since it included a Schedule 8, mandatory for the Canadian experience class,
and not a Schedule 3, which is mandatory for the federal skilled workers class.
According to the respondent, it is CIC’s policy to accept applications for
processing despite minor errors, and the officer was therefore required to
accept the application as a complete Canadian experience class application.
[24]
The
respondent argues that the officer did not consider the applicant’s ASL results
because they were irrelevant since he had already failed the language
requirements on the basis of the reading and writing tests. Since the
Regulations do not provide a points scheme whereby two (2) scores below a CLB
of 5 can result in a successful application, it was not necessary to consider
the ASL results. Because the applicant’s failure to meet the reading and
writing standards were fatal to his claim, the respondent contends that it was
reasonable for the officer to reject the claim on that basis.
[25]
Relying
on the observations of this Court in Worthington v Canada (Minister of
Citizenship and Immigration), 2004 FC 1546, 258 FTR 102, aff’d 2006 FCA 30,
346 NR 312 [Worthington]), the respondent submits that this application
does not raise a Charter issue because there was no evidence before the
officer that the applicant’s abilities to read and write were negatively
impacted by his deafness. Indeed, the respondent argues that the applicant’s
argument is predicated on the notion that he was treated adversely as a result
of being deaf, but that the evidentiary basis for this argument was not
established. Since no evidence was placed before the officer that his inability
to meet the standards in reading and writing was due to his deafness, the
respondent submits that there was no need for the officer to consider how to
accommodate the applicant, and no need for this Court to evaluate whether the
officer failed in doing so.
[26]
The
respondent contends that the officer had no discretion to ignore the
requirements imposed by the Regulations, and that the applicant did not request
consideration on humanitarian and compassionate (H&C) grounds before the
officer. Because the applicant did not provide information regarding Russian
schooling to the officer, but only in his affidavit before this Court, the
officer was not required to consider H&C grounds and was without evidence
that the applicant would suffer unusual, undeserved or disproportionate
hardship if required to return to Russia. According to the respondent, it is
not open to the applicant to raise this argument now in his application for
judicial review.
Analysis
Administrative
law issues
[27]
The
Court will first examine the administrative law issues raised by the applicant.
The applicant’s argument according to which the officer did not take into
consideration an important element of evidence – namely, his ASL scores – must
fail. Indeed, the officer’s notes clearly show that she was aware of the
applicant’s deafness and of his high ASL scores (Tribunal Record, p 2). The
officer’s notes are part of her reasons for decision (Baker v Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 DLR (4th)
193). The officer considered the ASL scores, as well as the reading and writing
scores, which were equal to and lower than the prescribed CLB of 4,
respectively. It was reasonable for the officer to come to the conclusion that
the applicant did not meet the language requirements based on these two (2) results
alone. Indeed, given the points system prescribed by the regulatory framework
at the time, and the absence of discretion under the Canadian experience class,
it was impossible for the officer to accept the applicant’s application with
the scores he obtained on the reading and writing tests, regardless of his
score on speaking/expressive and listening/receptive abilities. The record also
shows that the applicant’s representative’s letter enclosed with the
application acknowledges that the ASL results are equivalent to spoken and
comprehended English (Tribunal Record, p 109).
[28]
The
Court notes that the applicant only submitted a Schedule 8 form for an
application under the Canadian experience class, and no Schedule 3 form for the
federal skilled workers class. The Court can therefore find no error in the
officer’s decision to assess the applicant under the Canadian experience class
– the only class for which the applicant provided a complete application. It
would be imposing a heavy administrative burden on immigration officers to
require them to assess applicants not only under the class for which they
applied, but also under possible other classes to determine if the outcome
there would be more successful. Contrary to the applicant’s assertion, the
officer did not engage in “cherry picking” of a class under which to evaluate
the applicant, but evaluated the applicant in the only class for which his
application was complete.
[29]
The
Court finds that the officer did not err by assessing the applicant under the
Canadian experience class, and only under the Canadian experience class, since
this was the only form submitted by the applicant (Tribunal Record, Schedule 8,
pp 99-101). The presence of this form, and the absence of the mandatory
Schedule 3 for the federal skilled workers class, dispelled any ambiguity that
might have arisen from the applicant’s use of imprecise wording on his general
application form. The applicant has not convinced this Court that the officer
had a duty to contact him to perfect his application. There is no breach in
procedural fairness.
Subsection 15(1)
Charter violation
[30]
A
subsection 15(1) claim involves a two-part test established by jurisprudence as
follows: i) Does the law create a distinction based on an enumerated or
analogous ground? and ii) Does the distinction create a disadvantage by
perpetuating prejudice or stereotyping? (Withler v Canada (Attorney General), 2011 SCC 12 at para 30, [2011] 1 S.C.R. 396 [Withler]; R
v Kapp, 2008 SCC 41 at para 17, [2008] 2 S.C.R. 483). The Supreme Court of Canada in Withler, above at para 2, also stated that “[a]t the end of the day there
is only one question: Does the challenged law violate the norm of substantive
equality in s. 15(1) of the Charter?”
[31]
The
Court first recalls the importance of a strong factual background for
allegations of Charter violations, as illustrated by the following
comment set forth by Justice Layden-Stevenson in Worthington, above at
paras 24-25 :
[24] The
mere existence of a constitutional question does not mean that the court is
obliged to determine it. It is an established practice in Canadian law that, if
a judge can decide a case without dealing with a constitutional issue, he or
she should do so: R.J. Sharpe, K.E. Swinton and K. Roach, The Charter of
Rights and Freedoms, 2nd ed. (Toronto: Irwin Law, 2002) at p. 97. It is
incumbent on the court to ensure that a proper factual foundation exists before
measuring legislation against the provisions of the Charter, particularly
where the effects of impugned legislation are the subject of the attack: Danson
v. Ontario (Attorney General), [1990] 2 S.C.R. 1086 at 1099. Adjudicative
facts are those that concern the immediate parties. They are specific and must
be proved by admissible evidence: ibid. Charter decisions should not and
must not be made in a factual vacuum. To do so would trivialize the Charter and
inevitably result in ill-considered opinions. The absence of a factual base is
not just a technicality that can be overlooked, it is a flaw that is fatal: MacKay
v. Manitoba, [1989] 2 S.C.R. 357 at 361.
[25] This application is
fraught with difficulties, the nature of judicial review being one of them.
Judicial review proceedings are narrow in scope. Their essential purpose is the
review of decisions for the purpose of assessing their legality. The reviewing
court [absent exceptional circumstances not applicable here] is bound by the
record that was before the judge or the board. Fairness to the parties and the
court or tribunal under review dictates such a limitation: Bekker v. Canada
(2004), 323 N.R. 195 (F.C.A.) (Bekker). The reviewing court must proceed
on the record as it exists, confining itself to the criteria for judicial
review: McKenna, supra, at paragraph 6.
[Emphasis
added.]
[32]
In
MacKay v Manitoba, [1989] 2 S.C.R. 357, [1989] SCJ No 88 (QL) at para 9,
referred to in the excerpt above, the Supreme Court of Canada had indicated the
following:
[9] Charter decisions should not and must not
be made in a factual vacuum. To attempt to do so would trivialize the Charter
and inevitably result in ill-considered opinions. The presentation of facts is
not, as stated by the respondent, a mere technicality; rather, it is essential
to a proper consideration of Charter issues. A respondent cannot, by simply
consenting to dispense with the factual background, require or expect a court
to deal with an issue such as this in a factual void. Charter decisions cannot
be based upon the unsupported hypotheses of enthusiastic counsel.
[33]
In
the present case, the Court is of the view that the evidence in support of the
applicant’s Charter argument is insufficient.
[34]
For
instance, the applicant presented this Court with no evidence as to why the ASL
scores should replace, or have more weight than the reading and writing
abilities. Also, the applicant argues that the Regulations do not “take into
account the impairment on written language skills suffered by some Deaf persons
due to an education system that disadvantages them due to attitudinal barriers”
(Application Record, Applicant’s Memorandum of Fact and Law, p 25, para 23).
However, there is no evidence that deaf persons would have greater difficulty
reading and writing than non-deaf persons, other than the applicant’s personal
experience with the primary school system in Russia.
[35]
Accordingly,
the Court will not examine the applicant’s arguments in that regard since the
officer did not apply these provisions to him. Arguments of Charter
violations will not be examined in a legal and factual vacuum (Worthington, above).
[36]
Given
the factual pattern of this case and the lack of evidence adduced by the
applicant with regard to the alleged violation of his section 15 Charter
right to equality, the Court must decline to address the Charter question
raised by the applicant.
[37]
The
parties did not propose any question of general importance to be certified.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed. No question of general importance is certified.
“Richard Boivin”
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