Docket: IMM-4941-13
Citation:
2015 FC 674
Ottawa, Ontario, May 25, 2015
PRESENT: The
Honourable Mr. Justice O'Keefe
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BETWEEN:
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AMRITPAL KAUR
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP & IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicant’s application for permanent
residence under the federal skilled worker class was refused and her request
for reconsideration was also refused. The applicant now seeks judicial review
of the decision for reconsideration pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the Act].
[2]
The applicant seeks an order setting aside the
negative decision, returning the matter to a different officer for
redetermination and compelling the respondent to grant her application for
permanent residence.
I.
Background
[3]
On March 24, 2011, the applicant submitted an
application for permanent residence in the federal skilled worker class, under
the National Occupation Classification Code 4142, elementary school and
kindergarten teachers.
[4]
She submitted an arranged employment opinion
confirming her offer of employment from Royal Crest Academy. For this position,
a provincial teaching certificate is required.
[5]
On January 27, 2011, the applicant scored an
overall 5.5 on her International English Language Testing System [IELTS] test.
She submitted this result to the officer.
[6]
On May 4, 2011, the application was accepted for
processing by the Central Intake Office in Sydney, Nova Scotia.
[7]
In a letter dated November 15, 2011, the officer
informed the applicant that she needed a provincial teaching certificate for
her position with the arranged employment and gave the applicant thirty days to
respond. On December 13, 2011, the applicant responded that the Ontario College
of Teachers would not issue a provincial teaching certificate until she lands
in Canada and produces a social insurance number. In support, she attached the
Ontario College of Teachers Registration Guide.
[8]
In a letter dated December 6, 2012, the officer
informed the applicant of concerns about her IELTS score and her ability to
become economically established in Canada as a teacher and gave her thirty days
to respond. On December 18, 2012, the applicant responded by a request for an
extension of time to retake the IELTS test, which was granted on February 19,
2013.
[9]
On February 14, 2013, the applicant took a
second IELTS test with the result of an overall score of 6.0, composed of: 6.0
in listening, 5.0 in reading, 6.5 in writing and 6.5 in speaking.
II.
Original Decision
[10]
On May 7, 2013, the officer refused the
application pursuant to subsection 76(3) of the Immigration and Refugee
Protection Regulations, SOR/2002-227 [the Regulations], because the officer
was not satisfied that the applicant could economically establish herself despite
meeting the minimum requirement of points. The officer stated the number of
points awarded is not a sufficient indicator of whether the applicant may
become economically established in Canada.
[11]
The officer provided the following reasons: i)
the applicant does not have a provincial teaching certificate as required by
the arranged employment opinion; ii) the applicant lacks proficiency level in
English as demonstrated on her IELTS scores; and iii) the information provided
by the applicant to address these concerns was not satisfactory.
III.
Decision on Reconsideration
[12]
On June 7, 2013, the applicant made submissions
requesting the officer to reconsider the refusal, asserting that i) she could
not obtain an Ontario College of Teaching certificate until she arrives in
Canada; and ii) her last IELT test results satisfy the requirement of the
Labour Market Opinion [LMO].
[13]
On July 5, 2013, an officer reviewed the request
for reconsideration. The officer decided there was no error in the refusal and
declined to reconsider the application for permanent residence.
Request for reconsideration received at the
IPM’s office. File reviewed. There is no error in the decision.
IV.
Issues
[14]
The applicant raises two issues for my
consideration:
1.
The officer erred in law in not considering the
submissions.
2.
The officer erred in failing to provide reasons.
[15]
The respondent raises one issue in response: the
applicant has failed to demonstrate an arguable issue of law upon which the
proposed application for judicial review might succeed.
[16]
In my view, there are two issues:
A.
What is the standard of review?
B.
Did the officer err in refusing to reconsider?
V.
Applicant’s Written Submissions
[17]
First, the applicant submits the doctrine of functus
officio does not apply to informal, non-adjudicative processes; therefore,
the officer erred in refusing to consider the submissions. (see Kurukkal v
Canada (Minister of Citizenship and Immigration), 2010 FCA 230, [2010] FCJ
No 1159 [Kurukkal]). She then quotes paragraphs 15 to 22 of Choi v
Canada (Citizenship and Immigration), 2008 FC 577, [2008] FCJ No 734.
[18]
The applicant argues the officer erred in giving
insufficient weight to the applicant’s net worth and the employment letter. She
further submits the officer made an unreasonable finding in not being satisfied
by the explanations offered by the applicant.
VI.
Respondent’s Written Submissions
[19]
The respondent submits a decision by a visa
officer to exercise the discretion to conduct a substituted evaluation is
reviewable on the standard of reasonableness (see Rahman v Canada (Minister
of Citizenship and Immigration), 2013 FC 835 at paragraph 16, [2013] FCJ No
884 [Rahman]; and Gharialia v Canada (Minister of Citizenship and
Immigration), 2013 FC 745 at paragraph 12, [2013] FCJ No 781 [Gharialia]).
It further submits a decision by an officer on reconsidering an application for
permanent residence is also reviewable on the standard of reasonableness (see Rashed
v Canada (Minister of Citizenship and Immigration), 2013 FC 175 at
paragraph 44, [2013] FCJ No 177 [Rashed]; and Dong v Canada (Minister
of Citizenship and Immigration), 2011 FC 1108 at paragraph 14, [2011] FCJ
No 1370).
[20]
As a preliminary issue, the respondent submits
in order to provide a thorough analysis, both the decision to refuse the
application for permanent residence and the decision to refuse the request for
reconsideration need to be examined. It argues both decisions are reasonable
and defensible.
[21]
First, the respondent submits the use of
substituted evaluation for refusal of the applicant’s permanent residence was reasonable.
It submits according to the Ontario College of Teachers 2011 Registration
Guide, an overall score of at least 7, with scores of at least 6.5 in reading
and listening and 7 in writing and speaking are required. Here, neither test
submitted by the applicant satisfies this requirement. In the officer’s
affidavit, it is noted that both the officer and concurring senior officer
referred to the requirement of the Ontario College of Teachers when comparing
IELTS scores and that the score indicated the applicant would not qualify for a
teaching certificate. The respondent argues this conclusion is reasonable.
[22]
Subsection 76(3) of the Regulations allows an
officer to substitute his own evaluation of an applicant’s likelihood to become
economically established in Canada in appropriate circumstances. These
assessments deserve deference to the officer’s knowledge and expertise (see Roohi
v Canada (Minister of Citizenship and Immigration), 2008 FC 1408 at
paragraph 13, [2008] FCJ No 1834). Here, the officer was reasonable to
determine that the points awarded did not accurately reflect the applicant’s
ability to become economically established in Canada. The respondent also
argues, as evidenced in the officer’s affidavit, that the officer considered
the proof of the applicant’s funds and concluded that the negative substituted
evaluation was recommended.
[23]
The respondent submits IELTS results are
conclusive evidence of an applicant’s proficiency in English (see Esguerra v
Canada (Minister of Citizenship and Immigration), 2008 FC 413 at paragraph
14, [2008] FCJ No 549). It is the officer’s responsibility to assess if the
applicant’s language proficiency would allow her to carry out the duties of the
job (see Bilgütay v Canada (Minister of Citizenship and Immigration),
2013 FC 625 at paragraphs 14 to 16, [2013] FCJ No 696). The respondent argues
the present case is similar to Debnath v Canada (Minister of Citizenship and
Immigration), 2010 FC 904, [2010] FCJ No 1110, where this Court found a
refusal was reasonable based on insufficient evidence to establish that the
applicant would upgrade and qualify as a doctor despite his own subjective
evaluation.
[24]
Second, the respondent submits the officer’s
refusal to reopen the application was reasonable. It argues the officer’s reasons
disclose a rational basis for declining to exercise the discretion to reopen.
In Kurukkal, the Court of Appeal determined that the officer’s
obligation is to consider, taking into account all relevant circumstances,
whether to exercise the discretion to reconsider (Kurukkal at paragraph
5). However, the officer is not obligated to reconsider an application for
permanent residence. Here, the applicant in her request for reconsideration
submitted no new information or evidence as to trigger “fairness
and common sense” for an officer to reconsider (see Begum v Canada
(Minister of Citizenship and Immigration), 2013 FC 265 at paragraph 34,
[2013] FCJ No 285). It is reasonable to deny an applicant’s request for
reconsideration where the underlying decision was reasonable and there was no
breach of procedural fairness (Rashed at paragraph 50).
[25]
The respondent cites the following cases in
further support of its position: Veryamani v Canada (Minister of Citizenship
and Immigration), 2010 FC 1268, [2010] FCJ No 1668; Ndegwa v Canada
(Minister of Citizenship and Immigration), 2013 FC 249, [2013] FCJ No 256; Sithamparanathan
v Canada (Minister of Citizenship and Immigration), 2013 FC 679, [2013] FCJ
No 712; and Malik v Canada (Minister of Citizenship and Immigration),
2009 FC 1283, [2009] FCJ No 1643.
[26]
Here, the applicant had an opportunity to make
her case for her request for reconsideration, but she failed to submit any new
evidence that could have altered the officer’s initial decision. Therefore, her
request was reasonably denied and the officer’s decision is reasonable.
VII.
Applicant’s Further Submissions
[27]
The applicant submits that she only challenges
the decision of reconsideration, not the original decision. The notes now
provided and offered as “reasons” are not in regard to the second decision, but
rather for the first decision.
[28]
Also, the applicant submits that the situation
in this case is unique and distinguishable from the cases relied on by the
respondent. In the present case, she in fact did receive more than enough
points to qualify for immigration to Canada, but the officer used negative
discretion to refuse her. She argues a higher duty ought to be held because the
applicant was qualified in law.
[29]
In the applicant’s further memorandum, she
brings up a second issue, arguing the officer did not give reasons for the
decision not to reconsider. She argues the reasons dated May 7, 2013 pertain to
the original decision, not the decision for reconsideration; and they are
procedurally improper. The original decision and the decision for
reconsideration are related, but they are distinct decisions (see Villanueva
v Canada (Minister of Citizenship and Immigration), 2014 FC 585, 242 ACWS
(3d) 922). Here, the officer only made a statement of conclusion and this is
not sufficient for any decision (see Velazquez Sanchez v Canada (Minister of
Citizenship and Immigration), 2012 FC 1009, [2012] FCJ No 1097; and Komolafe
v Canada (Minister of Citizenship and Immigration), 2013 FC 431, [2013] FCJ
No 449).
VIII.
Respondent’s Further Submissions
[30]
In the respondent’s further memorandum, it
argues it was reasonable for the officer to review the initial refusal and the
reconsideration submissions and determine there was insufficient reason to
reconsider the decision. In response to the applicant’s argument that there is
no reason provided for the decision not to reconsider, it submits the Global
Case Management System [GCMS] notes indicate that after the reconsideration
request was received, the officer reviewed the applicant’s file and concluded “[t]here is no error in the decision.”
[31]
Since the applicant did not provide new
evidence, there was little for the officer to comment on in rendering the
reconsideration decision. There was no need for the officer to reiterate the
reasons already provided for the initial refusal.
IX.
Analysis and Decision
A.
Issue 1 - What is the standard of review?
[32]
Where previous jurisprudence has determined the
standard of review applicable to a particular issue before the court, the
reviewing court may adopt that standard (see Dunsmuir v New Brunswick,
2008 SCC 9 at paragraphs 57, [2008] 1 S.C.R. 190 [Dunsmuir]). Here, I agree
with Mr. Justice Michel Shore’s determination in Rashed that the
standard of reasonableness should be adopted when reviewing a decision for
reconsideration:
44 Whether denying the Applicant’s
request for reconsideration constitutes a decision is a question of law
determinable on the standard of correctness (Dong v Canada (Minister of
Citizenship and Immigration), 2011 FC 1108). Responding to a request for
reconsideration of an application for permanent residence involves an exercise
of discretion that is reviewable on a standard of reasonableness (Trivedi
v Canada (Minister of Citizenship and Immigration), 2010 FC 422).
45 As for the underlying decision,
the parties agree that decisions on eligibility for permanent residence as a
member of the federal skilled worker class are exercises of discretion that
attract the standard of reasonableness (Ismaili v Canada (Minister of
Citizenship and Immigration), 2012 FC 351) and questions of procedural
fairness are reviewable on the standard of correctness (Talpur v Canada
(Minister of Citizenship and Immigration), 2012 FC 25).
[Emphasis added]
[33]
As for a decision by a visa officer to exercise
the discretion to conduct a substituted evaluation, previous jurisprudence has
determined it is reviewable on the standard of reasonableness (Rahman at
paragraph 16; and Gharialia at paragraph 12).
[34]
The standard of reasonableness means that I
should not intervene if the officer’s decision is transparent, justifiable,
intelligible and within the range of acceptable outcomes (Dunsmuir).
Here, I will set aside the officer’s decision only if I cannot understand why
it reached its conclusions or how the facts and applicable law support the outcome
(see Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62 at paragraph 16, [2011] 3 S.C.R. 708). As the
Supreme Court held in Canada (Citizenship and Immigration) v Khosa, 2009
SCC 12 at paragraphs 59 and 61, [2009] 1 S.C.R. 339, a court reviewing for
reasonableness cannot substitute its own view of a preferable outcome, nor can
it reweigh the evidence.
B.
Issue 2 - Did the officer err in refusing to
reconsider?
[35]
The applicant argues only the decision of
reconsideration is in front of this Court for judicial review and I should not
consider the reasons provided by the respondent with respect to the original
decision. I disagree.
[36]
Here, I agree with the respondent that a
judicial review for a decision of reconsideration cannot be thoroughly
conducted without looking at the original decision.
(1)
Original Decision
[37]
Under subsection 76(3) of the Regulations, an
officer may substitute his or her evaluation for the criteria set out for
meeting the federal skilled worker category:
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76.(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.
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76.(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).
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[38]
Here, I am satisfied that it was reasonable for
the officer to issue a refusal in the original decision. The respondent
correctly points out that the applicant failed to meet the English proficiency
requirement in obtaining a teacher’s certificate. According to the Ontario College
of Teachers 2011 Registration Guide, “an overall score
of at least 7 on the IELTS (academic test only), with scores of at least 6.5 in
reading and listening and 7 in writing and speaking” are required. Here,
neither test submitted by the applicant satisfies this requirement. Although
the applicant performed better on her second test, her overall score was 6.0,
composed of: 6.0 in listening, 5.0 in reading, 6.5 in writing and 6.5 in
speaking. This did not meet the criteria under the Ontario College of Teachers
2011 Registration Guide.
[39]
Although the applicant’s IELTS score satisfies
the LMO, her score did not meet the requirement to obtain an Ontario College of
Teaching Certificate as under the Ontario College of Teachers 2011 Registration
Guide. Since she seeks assessment for her permanent residence application under
the National Occupation Classification Code 4142, elementary school and kindergarten
teachers, her IELTS score effectively undermines her from meeting the requirement
on her permanent residence application. This would therefore prevent the applicant
from getting a teaching job and in turn, creating difficulty in her
establishment in Canada. Therefore, I find the officer was reasonable to decide
that the applicant may not become economically established despite meeting the
minimum requirement of points.
[40]
Further, I do not agree with the applicant’s
argument that an officer owes a higher duty to her because she was qualified in
law by satisfying the points. Also, I do not agree with the applicant’s
distinction of positive and negative discretion. The Regulations authorize an
officer to exercise discretion under subsection 76(3), but it does not make a
distinction between the exercise of positive discretion and the exercise of negative
discretion. Although the officer used negative discretion to refuse her in this
case, I can understand the reasons of the officer’s refusal and find them
reasonable.
[41]
Therefore, I am satisfied the underlying decision
on which the decision for reconsideration is based is reasonable.
(2)
Decision to Not Reconsider
[42]
In Trivedi v Canada (Minister of Citizenship
and Immigration), 2010 FC 422, [2010] FCJ No 486, Chief Justice Paul Crampton
held that “[t]here is no general duty to reconsider an
application for permanent residence upon the receipt of new information and
there is no general duty to provide detailed reasons for deciding not to do so”
(at paragraph 30).
[43]
Nevertheless, the Federal Court of Appeal in Kurukkal
has held that “the principle of functus officio
does not strictly apply in non-adjudicative administrative proceedings and
that, in appropriate circumstances, discretion does exist to enable an
administrative decision-maker to reconsider his or her decision” (Kurukkal
at paragraph 3). According to Kurukkal, a decision-maker’s obligation at
the reconsideration stage is “to consider, taking into
account all relevant circumstances, whether to exercise the discretion to
reconsider” (Kurukkal at paragraph 5).
[44]
In the case at bar, I find it was reasonable to
refuse the applicant’s request for reconsideration. Here, the underlying
decision was reasonable and there was no allegation of breach of procedural
fairness. Further, I agree with the respondent that the applicant did not
submit new evidence at the stage of reconsideration. The applicant’s
submissions for reconsideration are similar in content to the explanation
provided in her corresponding letter to the officer’s requests for information
on November 15, 2011 and December 6, 2012. Further, in Rashed, this
Court found if an underlying decision was reasonable and there was no breach of
procedural fairness, it is dispositive of an application under a decision for
reconsideration (Rashed at paragraph 50).
[45]
Insofar as the sufficiency of the reasons is
concerned, I agree with the respondent that the reason provided by the officer
at the reconsideration stage is sufficient. Although the officer only provided
one line that “[t]here is no error in the decision”,
there was little for the officer to comment on in rendering the reconsideration
decision since the applicant did not provide new evidence. I see no need for
the officer to reiterate the reasons already provided for the initial refusal.
[46]
Therefore, I find the officer’s decision for
reconsideration reasonable.
[47]
For the reasons above, I would deny this
application.
[48]
Neither party wished to submit a proposed
serious question of general importance for my consideration for certification.
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