Date: 20060901
Docket: IMM-7287-05
Citation: 2006 FC 1057
Ottawa, Ontario, September 1, 2006
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
MIGUEL
MBALA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
OVERVIEW
[1]
Where the statutory discretion has been exercised in good faith
and, where required, in accordance with the principles of natural justice, and
where reliance has not been placed upon considerations irrelevant or extraneous
to the statutory purpose, the courts should not interfere…
(Maple Lodge Farms v. Canada, [1982] 2 S.C.R. 2, [1982]
S.C.J. No. 57 (QL).)
JUDICIAL PROCEDURE
[2]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA), for judicial review of the
decision of an Immigration Officer dated November 3, 2005, wherein the
Applicant’s application for a permanent resident visa as a skilled worker was
refused.
BACKGROUND
[3]
The
Applicant, Mr. Miguel Mbala, is a citizen of Angola. In 1999, he
applied for refugee protection in Canada which was refused. He
was then removed from Canada to the United States.
[4]
While
he was in Canada, he was
employed in construction work. His application for a permanent resident visa as
a skilled worker is based on that employment.
[5]
Mr.
Mbala prepared the application without legal assistance and was
self-represented throughout the process. In his application, he indicated that
he had a job offer approved by HRDC. From the evidence which was before the
Immigration Officer, this does not appear to be correct.
[6]
Mr.
Mbala was interviewed by an Immigration Officer on November 3, 2005. At this
time, the Immigration Officer asked to see the letter from HRDC. Mr. Mbala did
not have it with him, he asked for an opportunity to obtain the letter. The
Immigration Officer refused this request.
DECISION UNDER REVIEW
[7]
The
Immigration Officer denied Mr. Mbala’s application for a permanent resident
visa as a skilled worker because she felt that it did not meet the requirements
of the IRPA and the Immigration and Refugee Protection Regulations, SOR/2002-227
(Regulations).
[8]
More
specifically, the Immigration Officer was not satisfied that Mr. Mbala had at
least one year full-time experience in an occupation listed in Skill Type O
Management Occupations or Skill Level A or B of the National Occupational
Classification, according to the requirements set out in section 75 of the
Regulations.
ISSUES
[9]
There
are two issues in the present case:
1.
Whether the Immigration Officer erred in refusing Mr. Mbala’s
application for a permanent resident visa as a skilled worker?
2.
Whether the Immigration Officer committed a breach of procedural
fairness in refusing to grant Mr. Mbala’s request for an opportunity to obtain
a letter from HRDC approving his job offer?
ANALYSIS
Statutory
scheme
[10]
Subsection
12(2) of the IRPA states that the factor to be considered in the selection of
members of the economic class is their ability to become economically established
in Canada:
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12. (2) A foreign national
may be selected as a member of the economic class on the basis of their
ability to become economically established in Canada.
|
12. (2) La sélection des
étrangers de la catégorie « immigration économique » se fait en fonction
de leur capacité à réussir leur établissement économique au Canada.
|
[11]
Section
75 of the Regulations discusses the criteria which an applicant must satisfy in
order to be deemed a federal skilled worker
|
75. (1) For the purposes
of subsection 12(2) of the Act, the federal skilled worker class is hereby
prescribed as a class of persons who are skilled workers and who may become
permanent residents on the basis of their ability to become economically
established in Canada and who intend to reside in a province other than the
Province of Quebec.
(2) A foreign national is a skilled
worker if
(a) within the 10 years
preceding the date of their application for a permanent resident visa, they
have at least one year of continuous full-time employment experience, as
described in subsection 80(7), or the equivalent in continuous part-time
employment in one or more occupations, other than a restricted occupation,
that are listed in Skill Type O Management Occupations or Skill Level A or B
of the National Occupational Classification matrix;
(b) during that period of
employment they performed the actions described in the lead statement for the
occupation as set out in the occupational descriptions of the National
Occupational Classification, and
(c) during that period of
employment they performed a substantial number of the main duties of the
occupation as set out in the occupational descriptions of the National
Occupational Classification, including all of the essential duties.
(3) If the foreign national fails to
meet the requirements of subsection (2), the application for a permanent
resident visa shall be refused and no further assessment is required.
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75. (1) Pour
l’application du paragraphe 12(2) de la Loi, la catégorie des travailleurs
qualifies (fédéral) est une catégorie règlementaire de personnes qui peuvent
devenir résidents permanents du fait de leur capacité à réussir leur
établissement économique au Canada, qui sont des travailleurs qualifiés et
qui cherchent à s’établir dans une province autre que le Québec.
(2) Est un travailleur qualifié
l’étranger qui satisfait aux exigences suivantes :
a) il a accumulé au moins une année
continue d’expérience de travail à temps plein au sens du paragraphe 80(7),
ou l’équivalent s’il travaille à temps partiel de façon continue, au cours
des dix années qui ont précédé la date de présentation de la demande de visa
de résident permanent, dans au moins une des professions appartenant aux
genre de compétence O Gestion ou niveaux de compétences A ou B de la matrice
de la Classification nationale des professions – exception faite des
professions d’accès limité;
b) pendant cette période d’emploi, il a
accompli l’ensemble des tâches figurant dans l’énoncé principal établi pour
la profession dans les descriptions des professions de cette classification;
c) pendant cette période d’emploi, il a
exercé une partie appréciable des fonctions principales des fonctions
principales de la profession figurant dans les descriptions des professions
de cette classification, notamment toutes les fonctions essentielles.
(3) Si l’étranger ne satisfait pas aux
exigences prévues au paragraphe (2), l’agent met fin à l’examen de la demande
de visa de résident permanent et la refuse.
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[12]
Section
76 of the Regulations enumerates the factors to be considered in order to
determine if a federal skilled worker applicant will be able to become
economically established in Canada:
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76. (1) For the purpose of
determining whether a skilled worker, as a member of the federal skilled
worker class, will be able to become economically established in Canada, they must be assessed on
the basis of the following criteria:
(a)
the skilled worker must be awarded not less than the minimum number of
required points referred to in subsection (2) on the basis of the following
factors, namely,
(i)
education,
in accordance with section 78,
(ii)
proficiency
in the official languages of Canada, in accordance with section
79,
(iii)
experience,
in accordance with section 80,
(iv)
age, in
accordance with section 81,
(v)
arranged
employment, in accordance with section 82, and
(vi)
adaptability,
in accordance with section 83; and
(b) the skilled worker must
(i)
have in
the form of transferable and available funds, unencumbered by debts or other
obligations, an amount equal to half the minimum necessary income applicable
in respect of the group of persons consisting of the skilled worker and their
family members, or
(ii)
be
awarded the number of points referred to in subsection 82(2) for arranged
employment in Canada within the meaning of
subsection 82(1).
(2) The Minister shall fix and make
available to the public the minimum number of points required of a skilled
worker, on the basis of
(a) the number of applications
by skilled workers as members of the federal skilled worker class currently
being processed;
(b) the number of skilled
workers projected to become permanent residents according to the report to
Parliament referred to in section 94 of the Act; and
(c) the potential, taking into
account economic and other relevant factors, for the establishment of skilled
workers in Canada.
(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.
(4) An evaluation made under subsection
(3) requires the concurrence of a second officer.
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76. (1) Les critères
ci-après indiquent que le travailleur qualifié peut réussir son établissement
économique au Canada à titre de membre de la catégorie des travailleurs
qualifies (fédéral) :
a) le travailleur qualifié
accumule le nombre minimum de points visé au paragraphe (2), au titre des
facteurs suivants :
(i)
les
études, aux termes de l’article 78,
(ii)
la
compétence dans les langues officielles du Canada, aux termes de l’article
79,
(iii)
l’expérience,
aux termes de l’article 80,
(iv)
l’âge,
aux termes de l’article 81,
(v)
l’exercice
d’un emploi réservé, aux termes de l’article 82,
(vi)
la
capacité d’adaptation, aux termes de l’article 83;
b) le travailleur qualifié :
(i)
soit
dispose de fonds transférables – non grevés de dettes ou d’autres obligations
financières – d’un montant égal à la moitié du revenu vital minimum qui lui
permettrait de subvenir à ses propres besoins et à ceux des membres de sa
famille,
(ii)
soit
s’est vu attribuer le nombre de points prévu au paragraphe 82(2) pour un
emploi réservé au Canada au sens du paragraphe 82(1).
(2) Le ministre établit le nombre
minimum de points que doit obtenir le travailleur qualifié en se fondant sur
les éléments ci-après et en informe le public :
a) le nombre de demandes, au titre de la
catégorie des travailleurs qualifiés (fédéral), déjà en cours de traitement;
b) le nombre de travailleurs qualifiés
qui devraient devenir résidents permanents selon le rapport présenté au
Parlement conformément à l’article 94 de la Loi;
c) les perspectives d’établissement des
travailleurs qualifiés au Canada, compte tenu des facteurs économiques et
autres facteurs pertinents.
(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) – ne reflète pas 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).
(4) Toute décision de l’agent au titre
du paragraphe (3) doit être confirmée par un autre agent.
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Standard of
review
[13]
The
issue of determining whether Mr. Mbala meets the requirements of a skilled
worker is a question of fact and law; it involves examining Mr. Mbala’s work
experience in order to determine if it corresponds to the criteria and
description set out in the Regulations. The appropriate standard of review is
therefore that of reasonableness simpliciter (Nehme v. Canada (Minister of
Citizenship and Immigration), 2004 FC 64, [2004] F.C.J. No. 49 (QL), at
paragraphs 12-14 and 17):
… It is, as well, a clearly-established
rule that the courts should not interfere with the exercise of a discretion by
a statutory authority merely because the court might have exercised the
discretion in a different manner had it been charged with that responsibility.
Where the statutory discretion has been exercised in good faith and, where
required, in accordance with the principles of natural justice, and where
reliance has not been placed upon considerations irrelevant or extraneous to
the statutory purpose, the courts should not interfere. …
(Maple Lodge, above.)
[14]
As
for the issue of whether there was a breach of procedural fairness, this Court
must examine the particular circumstances of the case in order to determine if
the decision-maker respected the principles of procedural fairness. If this
Court determines that there was indeed a breach, it must return the decision to
the decision-maker for re-determination. (Thamotharem v. Canada (Minister of
Citizenship and Immigration), 2006 FC 16, [2006] F.C.J. No. 8 (QL), at
paragraph 15; Demirovic v. Canada (Minister of Citizenship and Immigration),
2005 FC 1284, [2005] F.C.J. No. 1560 (QL), at paragraph 5; Trujillo v. Canada (Minister of
Citizenship and Immigration), 2006 FC 414, [2006] F.C.J. No. 595 (QL),
at paragraph 11; Bankole v. Canada (Minister of Citizenship and Immigration),
2005 FC 1581, [2005] F.C.J. No. 1942 (QL), at paragraph 7.)
Whether the
Immigration Officer erred in refusing Mr. Mbala’s application for a permanent
resident visa as a skilled worker?
[15]
The
Immigration Officer’s decision to refuse Mr. Mbala’s application was based on
the fact that Mr. Mbala’s occupation did not fall under any of the categories
listed in Skill Type O Management Occupations or Skill Level A or B of the National
Occupational Classification matrix. This was fatal to Mr. Mbala’s
application. He did not challenge this conclusion.
[16]
According
to subsection 75(2) of the Regulations, an applicant must have at least one
year of continuous full-time experience, or the equivalent, in an A, B or O
category (as listed in the National Occupational Classification) within
the ten years preceding the application date. If an applicant does not meet the
minimum requirements, subsection 75(3) of the Regulations stipulates that “the
application for a permanent resident visa shall be refused and no further
assessment is required.” An applicant who does not have the minimum experience
in an A, B or O category cannot overcome this requirement with a letter from
the HRDC.
[17]
Thus,
once the Immigration Officer determined that Mr. Mbala did not have experience
in one of the listed categories – which he does not dispute – the HRDC letter
was not relevant or material to the decision, and the Immigration Officer was
under no obligation to grant Mr. Mbala’s request for an extension of time to
obtain the letter.
[18]
Mr.
Mbala had the onus to satisfy the Immigration Officer that he did, in fact,
meet the requirements set out in the Regulations. The evidence submitted,
however, did not convince the Immigration Officer that Mr. Mbala’s work
experience did meet these requirements. This decision was therefore not
unreasonable.
Whether the
Immigration Officer committed a breach of procedural fairness in refusing to
grant Mr. Mbala’s request for an opportunity to obtain a letter from HRDC
approving his job offer?
[19]
There
was no breach of procedural fairness in refusing to give him an opportunity to
obtain an HRDC letter, which Mr. Mbala had claimed to have already when he
completed his application. In effect, Mr. Mbala made a material
misrepresentation in his application for permanent residence by indicating that
he already had such a letter from HRDC, when he, in fact, did not possess.
[20]
The
Immigration Officer was not obligated to give Mr. Mbala an opportunity to
obtain a letter from the HRDC. Contrary to Mr. Mbala’s contention, the
Immigration Officer did not breach the principles of procedural fairness. It is
Mr. Mbala who made a false declaration in his application, even though he
attested that the information provided was complete and truthful.
[21]
The
onus is on the applicant to satisfy the Immigration Officer that he meets the
requirements of the application. If the applicant makes false statements on his
application, the Immigration Officer does not have an obligation to offer the
applicant a second opportunity to satisfy the requirements. As this Court has
held in Prasad v. Canada (Minister of
Citizenship and Immigration), [1996] F.C.J. No. 453 (QL), at paragraph
7:
The onus is on the applicant to satisfy
the visa officer fully of all the positive ingredients in the applicant’s
application. It is not for the visa officer to wait and to offer the applicant
a second, or several opportunities to satisfy the visa officer on necessary
points which the applicant may have overlooked. The visa officer exhibited no
error of law, egregious error of fact, nor yet any unfairness on this record.
One must remind oneself that even if the Court might have come to a different
conclusion, the purpose of these proceedings is to determine whether the visa
officer went off the rails according to the classical criteria for successful
judicial review. …
[22]
As
was held in Madan v. Canada (Minister of
Citizenship and Immigration), [1999] F.C.J. No. 1198 (QL), at paragraph
6, since the onus is on the applicant, the Immigration Officer does not have to
ask for additional material. It is up to the applicant to provide all the
necessary material in order to satisfy the Immigration Officer that he or she
does meet the relevant requirements:
It is well established that it is the
responsibility of a visa applicant to put before the officer all the material
necessary for a favourable decision to be made. Hence, visa officers are under
no general legal duty to ask for clarification or for additional information
before rejecting a visa application on the ground that the material submitted
was insufficient to satisfy the officer that the applicant had met the relevant
selection criteria.
[23]
Further,
since it does not seem that Mr. Mbala had made any efforts to obtain the HRDC
letter, it is speculative whether he would have, in fact, ultimately obtained
such a letter. Moreover, even if he had obtained such a letter, it is
speculative whether this letter would have made a difference to the Immigration
Officer’s decision.
[24]
Indeed,
Justice Judith Snider stated, in Bellido v. Canada (Minister of
Citizenship and Immigration), 2005 FC 452, [2005] F.C.J. No. 572 (QL),
at paragraph 21:
HRDC validation is not, as the Applicant
submits, sufficient evidence of arranged employment. Such validation does not
remove the obligation of the Visa Officer to assess whether the Applicant is
able to perform the job described in the validation.
CONCLUSION
[25]
As
the decision reached by the Immigration Officer was not unreasonable and there
was no breach of procedural fairness, this Court will not interfere with the
decision. This application for judicial review is therefore dismissed.
Obiter
In any subsequent application,
submissions call for due attention in recognition that a technical misunderstanding
may have occurred on the part of the Applicant, acknowledging full well
that the decision of the Immigration officer, in this case, was fully within
the framework of the legislation and jurisprudence.
JUDGMENT
THIS
COURT ORDERS that
1.
The application for judicial
review be dismissed;
2. No
serious question of general importance be certified.
“Michel M.J. Shore”
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