Docket: IMM-3267-14
Citation:
2015 FC 473
Ottawa, Ontario, April 17, 2015
PRESENT: The
Honourable Mr. Justice Zinn
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BETWEEN:
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REHANA PARVEEN
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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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JUDGMENT AND REASONS
[1]
Ms. Parveen challenges a decision by an immigration officer at the
Canadian High Commission in London, United Kingdom, that she does not meet the
requirements for immigration to Canada in the Saskatchewan Immigrant Nominee
Class [SINP].
Background
[2]
Ms. Parveen is a citizen of Pakistan. The Officer did an initial
assessment of her file on February 27, 2013. Her language test scores were at
or slightly above the minimum required levels for the SINP, but the SINP also
requires that nominees have the English language ability to do the job that has
been offered to them by a Saskatchewan employer or to get a job in their field.
[3]
The Officer noted that Ms. Parveen's current and intended occupation is
to work as a nurse and that Human Resources Skills Development Canada [HRSDC]
identifies oral communication, reading text, document use and writing as
essential skills for this occupation. The Officer concluded, based on the
demonstrated language proficiency, that he was not satisfied that she would be
able to perform the tasks of her intended profession or that she would be able
to become employed in Canada or if she did find employment, that it would be of
a sufficient level to become economically established. He noted that the fact
that she would have support from a family member residing in Saskatchewan would
not be considered economic establishment and would not be sufficient to
outweigh his concerns about her language abilities.
[4]
A pre-refusal letter was sent on March 21, 2013, which allowed her to
file additional submissions. Ms. Parveen provided a response to the letter on
April 17, 2013. She indicated that she had originally wanted to apply as a
Nurse Aide (NOC 3413) since she was advised by a SINP immigration officer that
the minimum required level of English (IELTS Band 4.5) would be sufficient for
this occupation, no registration was required, and international qualified
nurses could start working right away. She intended to work towards becoming a
Registered Nurse (NOC 3152), which requires higher English proficiency and
registration, while in Canada. However, the SINP officer had advised her to
write Registered Nurse on her application since that was her long-term intended
profession. After receiving the pre-refusal letter, Ms. Parveen got SINP to
amend her nomination letter to indicate Nurse Aide (NOC 3413) as her intended
occupation.
[5]
She added that based on her review of job websites, there were many
employment opportunities for nurse aides in Saskatchewan and the salary is
sufficient to become economically established. She was continuing to improve
her English language skills. She observed that English had been the medium of
instruction for her studies and for her work in a government hospital in Pakistan. Finally, she provided a job offer from a company in Saskatchewan for a “support administrator”
position.
[6]
The Officer reviewed the application on December 3, 2013. He noted that
the job offer Ms. Parveen has provided was as a support administrator for an IT
Enabled Service company providing website design and development services and
that the letter did not describe the job duties. He assumed that SINP still
supported her nomination since a new nomination letter had been issued.
However, he was not satisfied that the response relieved his concerns.
[7]
He was not satisfied that Ms. Parveen could work as a Nurse Aide with
only the basic English language proficiency. He noted that many of the job
listings that she referred to included a “Continuing Care [Assistant] Certificate” [CCA Certificate].
The Officer found that this could be obtained from the Saskatchewan Institute
of Applied Science and Technology, but that to be eligible one must have an
IELTS overall score of 6.5 and a minimum score of 5.0 for each component. This
is to be contrasted with the minimum IELTS scores for the SINP which are: Listening
4.5, Reading 3.5, Writing 4.0, and Speaking 4.0. Ms. Parveen scored Listening
4.5, Reading 4.0, Writing 4.0, and Speaking 4.5).
[8]
The Officer was also concerned that, despite her statement that she
could easily find employment as a Nurse Aide, she had presented a job offer in
a different field. The Officer found that this position likely fell within NOC
1221 (Administrative Officer), which likely requires more than basic English
language proficiency.
[9]
The Officer concluded that, although she was named in a provincial
certification of nomination, Ms. Parveen did not appear to have the language
skills to enable her to become economically established in Canada. He was not satisfied that she met the definition of a Provincial Nominee under section 87
of the Immigration Protection Regulations, SOR/2002-227 [the
Regulations]. The Officer noted that, having consulted with the province as required
by subsection 87(3) of the Regulations, he was substituting his evaluation of
her likelihood to become economically established for the criteria set out in subsection
87(2) of the Regulations.
[10]
The application was referred to a second officer for review and
concurrence of the decision, as required by subsection 87(4) of the
Regulations. The second officer concurred with the Officer.
Issues
[11]
This application raises the following issues:
1.
Was there a breach of procedural fairness?
2.
Did the Officer err in his determination of the
Applicant’s likelihood of economic establishment?
Analysis
[12]
Issues of natural justice and procedural fairness are reviewable on the
correctness standard: Canada (Minister of Citizenship and
Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para 43.
[13]
An officer’s decision about whether or not an applicant is likely to
become economically established is a question of mixed fact and law within
their experience and expertise. Therefore, this determination is therefore
reviewable on the reasonableness standard: Debnath v Canada (Minister of
Citizenship and Immigration), 2010 FC 904 at para 8; Roohi v Canada
(Minister of Citizenship and Immigration), 2008 FC 1048 at para 26.
[14]
The reasonableness standard also applies to a visa officer’s decision to
substitute his or her own evaluation for a provincial nomination certificate: Ijaz
v Canada (Minister of Citizenship and Immigration), 2014 FC 920 citing Wai
v Canada (Minister of Citizenship and Immigration), 2009 FC 780 at para 18
[Wai], Sran v Canada (Minister of Citizenship and Immigration), 2012
FC 791 at para 9 [Sran], Noreen v Canada (Minister of Citizenship and
Immigration), 2013 FC 1169 at para 11 [Noreen]).
A.
Breach of Procedural Fairness
[15]
Ms. Parveen submits that she was not provided with the opportunity to
respond to the Officer’s concerns after she submitted a new nomination
certificate that updated the intended occupation to Nurse's Aide. She submits
that the Officer was under an obligation to provide her with an opportunity to
respond to his concerns regarding the job offer she had presented, since these
arose after the pre-refusal letter.
[16]
I agree with the respondent that there was no breach of procedural
fairness. Ms. Parveen was provided with an opportunity to respond to the
Officer’s concerns as laid out in the pre-refusal letter and there was no onus
on the Officer to request a further response to those concerns. The job offer
was evidence provided by the applicant herself. She failed to provide a
complete description as to why it was included; and the fault for any
misunderstanding by the Officer rests with her. There was no requirement at
law for the Officer to make further enquiries. The onus is on an applicant to
submit sufficient evidence of economic establishment and there is no duty on
the Officer to inform the applicant of any concerns that arise directly from
the statutory requirements: Uddin v Canada, 2012 FC 1005 at para 38. The
Officer was not concerned with the credibility, accuracy or genuineness of the
job offer letter – he determined that the documentation did not demonstrate
that the applicant would become economically established, which is a
legislative requirement.
B.
Determination of Likelihood of Economic
Establishment
[17]
Ms. Parveen submits there are a number of
reasons why the Officer's assessment of her likelihood to become economically
established is unreasonable.
[18]
First, she submits that she met the minimum language
requirements for the intended occupation of Nurse Aide and this was not properly
considered by the Officer.
[19]
I agree with the respondent that the Officer was not bound by the
established minimum language requirements when determining potential economic
establishment. Meeting the minimum language requirements is not determinative
of economic establishment, therefore the Officer’s evaluation is not unreasonable
because Ms. Parveen's language skills exceed the Saskatchewan Immigrant Nominee
Program minimum: Kousar v Canada (Minister of Citizenship and Immigration),
2014 FC 12 at para 9; Sran above at para 9; Noreen above at para
11.
[20]
Second, Ms. Parveen submits that the Officer refused her application on
the basis of Registered Nurse and did not consider Nurse Aide. This assertion
is based on the fact that, after acknowledging that SINP had issued a new
nomination letter for the Applicant as a Nurse Aide, the Officer made the
following finding:
English lang proficiency wld be insufficient
for her to establish as a nurse in SK. Although PA states she cld work as a
nurse aide w/o registration & that there are many such employment
opportunities in SK, I am not satisfied she cld work in this occ w/ only
the basic English lang proficiency as she has demonstrated having. [emphasis
added.]
[21]
I agree with the respondent that it is clear from the entry quoted, as
well as the full record, that the Officer was well aware that the application
had been changed to Nurse Aide from Registered Nurse. Ms. Parveen hoped to
eventually become a nurse. In any event, it is clear from the passage above,
that the Officer concluded that he was not satisfied that she could become
established as a Nurse Aid given her level of English. As noted above, even
though she met the minimum language level that was a finding that was open to
the Officer.
[22]
Third, Ms. Parveen submits that the Officer erred in claiming that she
needed a CCA Certificate because, as an internationally qualified nurse, she
does not need a CCA Certificate to perform the job responsibilities of a Nurse
Aide. She notes that even if a CCA Certificate were required, one must only
obtain it within 2 years of working as a Nurse Aide.
[23]
I agree with the submission of the respondent that the Officer did not
state that a CCA Certificate was always a requirement, only that many of the
job postings for Nurse Aide indicated that this was a requirement.
[24]
Fourth, Ms. Parveen submits that the Officer erred by rejecting the
application on the basis that she had presented a job offer in a field
unrelated to nursing. She says that she intended to use this job, in addition
to her savings, to meet her financial needs while searching for a job in her
intended occupation. The letter was provided to show that she had a guaranteed
way to become economically established in Canada.
[25]
The Officer’s underlying concern was not that Ms. Parveen must be
economically established upon arrival, but whether she might ever become
economically established. I agree with the respondent that there was nothing
improper in the Officer noting that the job offer was not in the intended
profession; had it been then it may well have provided support for her claim
that she could become economically established in her chosen profession.
[26]
Fifth, Ms. Parveen submits that the Officer erred by not giving weight
to her brother’s support in Canada.
[27]
I agree with the respondent that a careful reading of the decision and
the Officer's notes indicates that, as the Officer explained in the pre-refusal
letter, he did not give weight to her family support in Canada because it would
not constitute economic establishment and would not outweigh his concerns over
her level of English language ability.
[28]
Sixth, Ms. Parveen submits that the Officer made erroneous assumptions
about the duties for the support administrator job that she had been offered. She
submits that the Officer erred in characterizing this position as “Administrative Officer” (NOC
1221). She asserts that the duties of this position will include making
photocopies, faxing, and arranging client files, which comes under “General Officer Clerk” (NOC
1411).
[29]
I agree with the respondent that the onus was on Ms. Parveen to have
included her job duties with the job offer letter and to provide the evidence
for the Officer to make the determination. She cannot now fault him if he
misunderstood the exact nature of the duties when she failed to provide it.
[30]
Lastly, Ms. Parveen submits that the Province is more experienced in
determining the likelihood of economic establishment, and therefore her
nomination certificate should be determinative of that issue. She argues that
the Officer did not provide any evidence to support his belief that she would
not able to become economically established whereas she has provided evidence
to demonstrate that she has sufficient English language proficiency to work as
a Nurse Aide.
[31]
In my view, it has not been shown that the Officer overlooked any
relevant considerations or that the decision was based on irrelevant factors
such that the Officer’s decision is unreasonable. It appears to the court that
the true nature of the applicant's dispute is about the appropriate weight to
be given to her ability or inability to become a Registered Nurse or Nurse Aide,
or complete further training to do so because of her language skills.
[32]
The Officer took a broad approach and, as the respondent submitted, “used his discretion to give significant
weight to the fact that the Applicant’s language skills were insufficient to
obtain her intended occupation.” Determining
the weight to be given to relevant considerations is within the Officer’s
knowledge and expertise and I agree that deference should be afforded to the
Officer in this regard. I do not agree that the Officer failed to explain why
he remained unconvinced that the language skills of Ms. Parveen would enable
her to become economically established in Canada. The burden is always on the
applicant to convince an officer – Ms. Parveen failed to do so.
Conclusion
[33]
There was no breach of natural justice and the
decision was reasonable when the entire record is reviewed. Accordingly, the
application must be dismissed.
[34]
Ms. Parveen submitted the following questions
for certification:
Q.l When it comes to the facts, the Provincial Immigration Officer is expert
to determine the ability of the
applicant to become
economically established as described in Section 7.7 of OP 7-B Provincial Nominees, Is not
it unreasonable for the Federal
Immigration Officer to look behind
the provincial nomination
decision?
Q.2 When the Federal
Immigration Officer has concerns regarding
the Provincial Nomination of the applicant, Should it not be compulsory for the Provincial Immigration Officer
to explain those
concerns under IRPA act and the facts as currently they do not reply to the procedural fairness letters?
Q.3 Is not it a contradiction that the Provincial Immigration Officers and the Federal
Immigration Officers are not on the same page to identify
whether the applicant
would become economically established in that particular province under IRPA act?
Q.4 When
Provincial Government reply
to the Procedural Fairness Letter and change the nomination
certificate to the different skill level, should
not it be compulsory for the Federal Immigration Officer
to inform again, the Provincial Government as well as the applicant about any concerns
if raised according to the monitoring and compliance section
of OP 7-B Provincial nominees?
[35]
In my view, none of these are questions that are
certifiable because they address areas of jurisprudence which is well established
in the Federal Courts.
[36]
It is well established that the federal officer
is not bound by the decision of a provincial program officer and is entitled to
form his or her own opinion as to the likelihood of an immigrant to become
economically established in Canada: See the decisions cited at paragraph 14,
above.
[37]
Those same authorities establish that there is
no obligation on the federal officer to explain his concerns to an applicant or
to the provincial officer before rendering his decision.
[38]
These propositions underlie the proposed
questions and they are thus not certifiable.
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