Date:
20130703
Docket:
IMM-8341-12
Citation:
2013 FC 745
Ottawa, Ontario,
July 3, 2013
PRESENT: The
Honourable Madam Justice Kane
BETWEEN:
|
|
MANPREET KAUR GHARIALIA
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant, Ms Manpreet Kaur Gharialia, is a citizen of India who seeks permanent resident status in Canada pursuant to the Federal Skilled Workers [FSW]
program in the category of General Practitioners and Family Physicians (NOC
3112).
[2]
The
applicant now seeks judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act], of the decision
of a Visa Officer [the Officer] at the High Commission of Canada in New Delhi,
India made on June 13, 2012, which determined that she did not meet the
requirements for permanent resident status in Canada as a Federal Skilled
Worker pursuant to subsections 87.3 (2) and (3) of the Act.
[3]
The
Officer assessed the application, including the criteria for age, education,
official languages, experience, arranged employment and adaptability and
attributed a total of 72 points. Although the minimum number of points required
is 67 and the applicant exceeded this minimum threshold, the Officer applied
subsection 76(3) of the Immigration and Refugee Protection Regulations, SOR/2002-227
[the Regulations] to conduct a substituted evaluation of
the likelihood of the ability of the applicant to become economically
established in Canada. Following the substituted evaluation, the Officer
concluded that he was not satisfied that the applicant had that ability. The
Officer noted that the letters regarding the job offers for the applicant and
her husband were not supported by an Arranged Employment Opinion. The Officer
also noted that the settlement funds available would be insufficient to support
the applicant and her family over the long term in the likelihood that she
would not be able to become economically established.
[4]
The
CAIPS notes, which document the Officer’s concerns and the responses of the
applicant to two procedural fairness letters, confirm that the substituted
evaluation was reviewed by a second officer who concurred, which is a
requirement of subsection 76(4).
[5]
The
first procedural fairness letter sent to the applicant sought to clarify
whether the applicant was relying on NOC 3112, general practitioners and family
physicians, or NOC 3123, other professional occupations in health diagnosing
and treating. It was clarified that the applicant was relying on the NOC for
general practitioners and her application was assessed accordingly. The second
procedural fairness letter noted the Officer’s concerns that the applicant’s
qualifications and experience were in Ayurvedic medicine, and that she would
not be able to practise this type of medicine in Canada. The Officer’s notes
indicate that because Ayurvedic doctors are not licensed to practise in Canada he was not satisfied that she would be able to become economically established. In
response, the applicant submitted additional information noting that there was
no requirement for the applicant to work as a doctor in Canada, and provided various references to Ayurvedic courses and existing practitioners in Canada. The response also included two job offer letters, one for the applicant at a clinic
where she could work as a consultant and the other for the applicant’s spouse
at a community newspaper.
[6]
The
CAIPS notes indicate that the Officer considered the additional documents and
the response to the procedural fairness letter. The Officer noted that none of
the documents provided regarding Ayurvedic medicine establish that the
institutions are regulated by provincial authorities or that the applicant’s
current qualifications would meet the requirements to practise in any kind of
medical field in Canada. With respect to the two job offer letters, the Officer
noted that they were not supported by Arranged Employment Opinions [AEO] and
remarked: “I do not find them credible”. After reviewing the other material,
the Officer concluded that none of it assuaged his concerns about the
applicant’s ability to become economically established in Canada.
The
Issues
[7]
The
applicant submits that there was a breach of procedural fairness because the
Officer found the job offer letters to not be credible yet did not provide an
opportunity for the applicant to respond to this finding. The applicant also
submits that the Officer’s decision was not reasonable because: the Officer
unreasonably conducted a substituted evaluation; the Officer unreasonably
discounted the job offers because they were not supported by an AEO; the
Officer unreasonably relied on the lack of licensing of Ayurvedic medicine,
which is not a NOC requirement, in his assessment; and, the Officer unreasonably
concluded that the applicant could not establish herself economically in Canada
despite the settlement funds available along with the proposed income from the
job offers. The applicant also submits that there is no requirement under the
FSW program that an applicant work in the field for which they are eligible
upon arrival in Canada. Therefore, the Officer erred in relying on the fact
that the applicant would not be able to practise as a physician in Canada as this was an irrelevant consideration.
[8]
The
respondent submits that it was reasonable for the Officer to consider whether
the applicant would be able to use her skills as an Ayurvedic doctor in Canada in the context of assessing her ability to become economically established. The
respondent also submits that it was within the Officer’s discretion to conduct
a substituted evaluation, that he had a valid reason for doing so, and that the
evaluation was consistent with the requirements of the Act. Given that
the applicant’s skills and experience were those of a physician, it was logical
for the Officer to assess whether the applicant could work in the medical
field.
[9]
The
respondent submits that although the Officer used the phrase “[n]one of the
documents provided prove beyond doubt that these institutions are
regulated by provincial authorities nor that the applicant’s current
qualifications would meet the requirements for practice in any kind of medical
field in Canada” [my emphasis], the Officer was not importing a higher criminal
standard of proof in his assessment of the capacity of the applicant to work in
Canada.
[10]
The
respondent also submits that the Officer’s notes which indicate, “The offers of
employment from Voice Group and Ojus Healthcare to the applicant’s spouse and
the applicant are not supported by AEOs. Therefore, I do not find them to be
credible”, is not a finding that the documents are not authentic. Rather, the
Officer was simply not satisfied that the offers responded to his concern about
economic establishment. The respondent submits that the mere use of the term
‘credible’ should not trigger a procedural fairness issue.
Standard
of review
[11]
The Officer’s decision with respect to the applicant’s eligibility
for permanent resident status pursuant to the FSW class requires the Officer to
assess the application and exercise his discretion and is, therefore,
reviewable on a reasonableness standard: Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir].
[12]
Both the applicant and respondent referred to Philbean v Canada (Minister of Citizenship and Immigration), 2011 FC 487, [2011]
FCJ No 606 [Philbean] which also dealt with a refusal of a FSW
applicant. In Philbean, Justice Tremblay-Lamer noted the appropriate
standard of review at para 7:
[7] Determining whether or not an applicant has demonstrated
his or her ability to become economically established as per the requirements
of the IRPA and the Regulations is a very fact-driven exercise.
This is an area in which immigration officers have significant experience, if not
expertise. As such, the appropriate standard of review is reasonableness (Debnath
v Canada (Minister of Citizenship and Immigration), 2010 FC 904 at para 8; Roohi
v Canada (Minister of Citizenship and Immigration), 2008 FC 1408 at para 26
[Roohi]). The Supreme Court of Canada in Dunsmuir v New Brunswick,
2008 SCC 9 at para 47, [2008] 1 S.C.R. 190 described the reasonableness standard
as being “concerned mostly with the existence of justification, transparency
and intelligibility within the decision-making process. But it is also
concerned with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law.”
[13]
If an issue of procedural fairness arises, it is reviewable on a
correctness standard: Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12, 2009 CarswellNat 434 at
para 43.
Procedural
Fairness
a) Did
the Officer breach the duty of procedural fairness by not raising his concerns
that the letters of employment were not supported by an AEO and providing an
opportunity for the applicant to respond?
[14]
As
submitted by the applicant, there is no requirement that the job letters be
supported by an AEO.
[15]
The
applicant notes that the job letters were on letterhead, contact information
for the employer and web addresses for the businesses were provided, and the
letters were signed. The applicant submits that the Officer’s finding that the
letters were not “credible” was unreasonable and, moreover, this finding should
have triggered a further opportunity for the applicant to respond.
[16]
In the recent decision, Hamza v Canada (Minister
of Citizenship and Immigration), 2013 FC 264, [2013]
FCJ No 284, Justice Bédard considered the issue of procedural fairness to an applicant
seeking permanent resident status as a FSW. Justice Bédard extensively reviewed
the applicable case law and provided a summary of the relevant principles: the
onus falls on the applicant to establish that they meet the
requirements of the Regulations by providing sufficient evidence in
support of their application; the duty of procedural fairness owed by visa
officers is at the low-end of the spectrum; there is no obligation on a visa
officer to notify the applicant of the deficiencies in the application or the
supporting documents; and, there is no obligation on the visa officer to
provide the applicant with an opportunity to address any concerns of the
officer when the supporting documents are incomplete, unclear or insufficient
to satisfy the officer that the applicant meets the requirements.
[17]
Justice Bédard also noted that, as determined in Hassani v Canada
(Minister of Citizenship and Immigration), 2006 FC 1283 at para 24, [2007] 3
FCR 501 (FC), an officer may have a duty to provide the applicant with an
opportunity to respond to the officer’s concerns when such concerns arise from
the credibility, veracity, or authenticity of the
documents rather than from the sufficiency of the evidence.
[18]
In
Patel v Canada (Minister of Citizenship and Immigration), 2011 FC 571,
[2011] FCJ No 714, Justice O’Keefe considered the circumstances that give rise
to a duty of procedural fairness and noted:
21 The
case law specifies that a visa officer is not under a duty to inform an
applicant about any concerns regarding the application which arise directly
from the requirements of the legislation or regulations (see Hassani v. Canada (Minister of Citizenship and Immigration),
2006 FC 1283 at paragraphs 23 and 24).
22 However,
a visa officer is obligated to inform an applicant of any concerns related
to the veracity of documents and will be required to make further inquires
(see Hassani above, at paragraph 24).
23 The
onus is always on the principal applicant to satisfy the visa officer of all
parts of his application. The officer is under no obligation to ask for
additional information where the principal applicant's material is insufficient
(see Madan v. Canada (Minister of Citizenship and
Immigration) (1999), 172 FTR 262, [1999] F.C.J. No. 1198 (FCTD) (QL) at
paragraph 6).
[19]
The applicant
also relies on Kojouri
v Canada (Minister
of Citizenship and Immigration), 2003 FC 1389, [2003] FCJ No 1779 to argue that the
Officer’s concerns about the employment letters give rise to a breach of
procedural fairness.
[20]
However,
in Kojouri, Justice O’Keefe found that the officer’s concerns were
clearly related to the credibility of the letters, i.e. their authenticity,
because the letters were allegedly copied directly from the NOC description and
were not properly certified. As noted at paras 18-19:
[18] The visa
officer was concerned that two of the letters provided by the applicant quoted
directly from the duties listed in NOC 3214 (clinical perfusionist). As a
result, the visa officer decided that the documents were not credible, nor was
the applicant's training and work experience. While it is true that the visa
officer did raise some concerns about the applicant's training and experience
at the interview, he did not give the applicant an opportunity to respond to
his specific concerns about the veracity of the letters, nor did he make
further inquiries to determine whether or not the letters were valid. The
cross-examination of the visa officer established that he was not certain that
the certification stamp on the letters applied only to the translation. The
issue of the certification on the letters should have been verified.
[19] I am of
the opinion that the visa officer made reviewable errors in failing to make
further inquiries and in failing to apprise the applicant of his belief before
deciding that the documents were not credible. This is consistent with the
jurisprudence in Huyen v. Canada (Minister of Citizenship and
Immigration), [2001] F.C.J. No. 1267 (T.D.), 2001 FCT 904, where Lemieux J.
stated at paragraph 5:
Moreover, the visa officer rejected
documentary evidence proving she had worked as a cook in a restaurant in Vietnam because it was not on letterhead and was handwritten. I find that a rejection of
documentary proof on this basis, without more verification to be unreasonable.
[21]
In the
present case, although the Officer noted that he did not find the job offer
letters credible, I agree with the respondent that the Officer was using that
term loosely and that it was not a finding that the letters were not authentic.
The Officer considered whether the job letters satisfied him regarding the
applicant’s ability to become economically established and concluded that they
did not.
[22]
Although
the Officer referred to the absence of an AEO, the job offer letters had not been
provided with the initial application for the purpose of the points assessment.
The job letters were provided in response to a procedural fairness letter after
the Officer had assessed the application and attributed 72 points, yet still
had concerns about the applicant’s ability to become economically established
in Canada. When the CAIPS notes are considered as a whole, the reference to the
absence of an AEO appears to be related to the Officer’s overall assessment of
whether these job letters respond to his concern about the applicant’s ability
to become economically established.
[23]
The Officer
had provided two earlier procedural fairness letters, the second of which
alerted the applicant of his concerns with her ability to become economically
established. The onus was on the applicant to provide sufficient supporting
documentation to address these concerns. The letters, along with the other
information about Ayurvedic practitioners and courses in Canada, did not, in the words of the Officer, assuage his concerns. In other words, the
letters and other information were insufficient to satisfy the Officer.
[24]
There was no
breach of procedural fairness.
b) Was it reasonable for
the Officer to conduct a substituted evaluation and was that substituted
evaluation reasonable?
[25]
The
applicant raises several grounds to argue that there was no justification for
the Officer to conduct a substituted evaluation or for the Officer’s
determination following the substituted evaluation.
[26]
The
Officer’s authority to consider a substituted evaluation pursuant to subsection
76(3) is an exceptional discretion.
[27]
Subsection
76(3) of the Regulations provides:
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.
[28]
The
wording of the provision is clear that an officer may substitute an assessment
of points for other criteria where the points are insufficient to determine
whether the applicant can integrate economically in Canada.
[29]
The
jurisprudence supports the clear wording of the subsection and highlights that
an officer’s decision to undertake a substituted evaluation is entitled to
deference.
[30]
In Esguerra
v Canada (Minister of Citizenship and Immigration), 2008 FC 413, [2008] FCJ No
549, Justice de
Montigny noted:
16 The
discretion under subsection 76(3) of the IRPR is
clearly exceptional and applies only in cases where the points awarded are not
a sufficient indicator of whether the skilled worker will become economically
established. The fact that the applicant or even this court would have weighed
the factors differently is not a sufficient ground for judicial review.
[31]
In Budhooram
v Canada (Minister of Citizenship and Immigration), 2009 FC 18, [2009] FCJ No 46 [Budhooram], Justice Lagacé made similar comments:
14 The discretion
under subsection 76(3) of the Regulations is clearly exceptional to cases where
the points awarded are not a sufficient indicator of whether the skilled worker
will become economically established. This decision is entitled to deference
and the fact that that the applicant or the Court would have weighed the
factors differently is not a ground for judicial review (Suresh v. Canada (Minister of Citizenship and Immigration),
[2002] 1 S.C.R. 3, 2002 SCC 1, paras. 34-39; Poblano v. Canada (Minister of Citizenship and Immigration),
[2005] F.C.J. No. 1424, 2005 FC 1167, paras. 4-5, 8).
[32]
The
applicant and respondent both relied on Roohi v Canada (Minister of Citizenship and Immigration), 2008
FC 1408, [2008]
FCJ No 1834 [Roohi], but for different propositions. In that
case, Justice Mandamin canvassed the application of subsection 76(3), noting
that:
[17] Section 76(3) engages a two stage process for arriving at
a substituted evaluation: first, the visa officer must decide if the s.
76(1) assessment is not a sufficient indicator of whether the skilled worker
applicant may become economically established in Canada; second, the visa
officer must evaluate the likelihood of the skilled worker becoming
economically established in Canada by conducting an adequate substitute
assessment on proper grounds.
…
[31] It seems to me that when visa officers substitute their
evaluation on the ability of a skilled worker to become economically
established in Canada under s. 76(3), that substituted evaluation must be
comparable to the s. 76(1) evaluation they are displacing. I say this
because s. 76(1) is structured as directed to a systematic objective assessment
process designed to achieve consistency in the processing of skilled worker
applications. The process for substituted evaluations should not displace
the underlying intent to achieve a consistent process for assessing skilled
worker applications.
[32] The opening words of s. 76(3), “Whether or not the
skilled worker has been awarded the minimum number of required points …”
clearly indicates that the substituted evaluation may result in a negative
substituted evaluation as well as in a positive substitute evaluation.
Substituted evaluations are a procedure that introduces an element of
flexibility into the skilled worker application process. It allows for
acceptance of applicants who may not succeed under the initial assessment where
there is good reason and for screening out applicants who pass the initial
assessment but ought not be accepted for valid reasons.
[33] The substituted evaluation is a decision made by a visa
officer in keeping with the officer’s knowledge and expertise and is a decision
under which deference is due. The officer must make a substituted evaluation
decision which is consistent with IRPA, the Regulations and the thrust of the
skilled worker provisions.
[33]
Justice Mandamin also noted at para 35 that the current Regulations
do not require the applicant to work in the designated NOC occupation, just as
the applicant submitted in the present case:
[35] The revisions to the Regulations changed the
approach in skilled worker applications from an occupation-specific approach to
a broader approach which gave more emphasis to adaptability by skilled worker
applicants to become economically established in Canada.
[34]
In Roohi, the applicant had applied under the NOC governing
teachers. Justice Mandamin found that although the officer had referred to Ms
Roohi’s teaching opportunities, he was satisfied that the officer assessed the
application on the broader standard of the likelihood of becoming economically
established in Canada and reasonably concluded that the applicant would not.
[35]
Similarly
in the present case, the Officer referred to the applicant’s ability to practise
as a physician in Canada but his assessment of economic establishment was
broader. It was logical for the Officer to consider the applicant’s ability to
use her skills and experience as a physician as these were the skills she could
be expected to rely on for employment.
[36]
In
Debnath v Canada (Minister of Citizenship and Immigration), 2010 FC 904, [2010]
FCJ No 1110, Justice Phelan considered whether the officer’s decision to
conduct a substituted evaluation was reasonable and whether the decision as a
whole, based on the substituted evaluation, was reasonable. The applicant had
argued that the availability of settlement funds made the reliance on a
substituted evaluation unreasonable. Justice Phelan noted:
[13] This argument must be dismissed on two grounds. Firstly,
the Visa Officer was aware of those funds and secondly, and perhaps more
importantly, the matter of settlement funds was irrelevant to the Visa
Officer’s decision.
[14] The settlement funds were irrelevant
for two reasons. Firstly, the decision did not turn on the Applicant’s ability
to establish himself financially based on funds available but on whether the
medical qualifications to practice would be accepted. Secondly, settlement
funds are no longer relevant to a consideration of whether to exercise a
discretion to make a substitute evaluation.
[15] As held by Justice Zinn in Xu v.
Canada (Minister of Citizenship and Immigration), 2010 FC 418, section 76 of
the Regulations was amended to provide that when an officer makes a substitute
evaluation of a likelihood to become economically established, the officer does
so in lieu of the usual criteria of points earned and available settlement
funds. Therefore, the Applicant’s settlement funds are irrelevant if the
exercise of discretion to substitute is sustainable.
[37]
Although
there is no requirement for an applicant to work in the NOC field for which
they may be eligible to come to Canada, these were the skills that the
applicant would likely rely on to make a living. The Officer was, therefore,
justified in his belief that because the applicant would not be able to
practise in Canada, the points did not adequately reflect the applicant’s
ability to become economically established. The Officer had a valid reason to
turn to a substituted evaluation and he reasonably exercised his discretion to
do so.
[38]
The
Officer’s consideration of the fact that Ayurvedic medicine was not regulated
in Canada was relevant to the ability of the applicant to use her skills and
experience as a physician to make a living.
[39]
The
Officer’s note that none of the documents provided “prove beyond
doubt that these institutions are regulated by provincial authorities nor
that the applicant’s current qualifications would meet the requirements for
practice in any kind of medical field in Canada” [my emphasis], may again have
been a poor choice of words. When the reasons are read as a whole however,
there is nothing to suggest that the Officer was demanding a higher standard of
proof; the Officer assessed all of the information and weighed the
considerations.
[40]
With
respect to the applicant’s submission that the Officer unreasonably discounted
or ignored the settlement funds, I do not agree. The Officer had taken the
settlement funds into account in his assessment of the application pursuant to
subsection 76(1). In the substituted evaluation pursuant to subsection 76(3),
the Officer again noted the settlement funds but found that these funds would be
insufficient to offer long-term support for her family, which included the
applicant’s spouse and two dependent children of university age, if economic
establishment did not occur. As noted in Debnath and Xu v Canada (Minister of Citizenship and Immigration), 2010 FC 418, the fact that there are settlement
funds is not determinative of the issue of economic establishment.
[41]
An
officer is not limited in his consideration of factors pursuant to subsection
76(3), although, as noted by Justice Mandamin in Roohi, it should bear
some link to the criteria in order to aim for consistency. It must be “consistent
with IRPA, the Regulations and the thrust of the skilled worker provisions”.
[42]
In
the present case, the Officer’s substituted evaluation of the applicant’s
ability to become economically established was both linked to the criteria and
broader than the criteria set out in subsection 76(1). The Officer again
considered the applicant’s educational qualifications, experience as an
Ayurvedic doctor, the lack of regulation of Ayurvedic doctors in Canada, prospects of employment in Canada, dependents and the settlement funds.
[43]
In
this case, based on the substituted evaluation, the Officer reasonably
concluded that the applicant would not be economically established in Canada. As noted by Justice Tremblay-Lamer in Philbean, immigration officers have
significant experience in conducting these fact-driven assessments and their
decisions warrant deference. In the present case, the Officer’s decision is
reasonable.
Proposed
Certified Question
[44]
The
applicant proposed the following question for certification in the event that
this Court were to determine that the applicant’s intention and ability to
practise as a doctor is relevant and significant to the assessment of subsection
76(3) of the Regulations:
In
assessing an application for permanent residence within the Federal Skilled
Worker class, pursuant to sections 75 through 81 and 83 of the Immigration and
Refugee Protection Regulations (IRPR) and the Ministerial Instructions issued
under section 87.3 of the Immigration and Refugee Protection Act (IRPA), is it
required that the applicant intend or be able to practice in the profession for
which he or she has been found eligible for processing under section 75 of the
IRPR?
[45]
The
respondent agrees with the applicant that there is no requirement that an
applicant for a FSW visa be employed in the NOC category which they applied or
are eligible. The respondent notes that the officer considered the applicant’s
ability to work as a physician, in addition to other factors, in determining
whether she would be able to become economically established. The proposed
question will not be determinative of the appeal because the assessment of
economic establishment is fact-specific.
[46]
As
I indicated above, and as noted in Roohi, there is no requirement for
the applicant to work in the field in which they are eligible under a NOC. The
intention of the provisions is to permit applicants, once eligible, to work in
a range of occupations to respond to changes in the labour market.
[47]
In
this case, the Officer assessed the applicant’s ability to become economically
established taking into account several factors, including her ability to
practice medicine given her current occupation, education, skills and
experience. The Officer’s decision is not based on a finding that the applicant
must work in the particular NOC field.
[48]
The
proposed question need not be certified.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The application for
judicial review is dismissed;
2. No question is
certified
"Catherine M.
Kane"
Email this Content