Date:
20061025
Docket:
IMM-7550-05
Citation:
2006 FC 1283
Ottawa, Ontario,
October 25, 2006
PRESENT: The
Honourable Mr. Justice Mosley
BETWEEN:
ALIREZA
HASSANI
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
Mr.
Alireza Hassani (the
applicant) seeks
judicial
review of a decision of a visa officer (the "officer"), dated
November 8, 2005, wherein the officer determined that the applicant did not
meet the requirements for immigration to Canada as a permanent resident under
the skilled worker class.
[2]
The
applicant is a citizen of Iran who applied for permanent residence as a
Maintenance/Operations and Account Manager (0722). After a review of the
proposed job description, the officer also considered the applicant under the
following categories: Personal Officer (1223), Retail Store Supervisor (6211),
Retail Store Manager (0621), Automobile Mechanic (7321), Electrical Mechanic
(7321), and Denture Technician (3221). The officer assessed the application on
the basis of the criteria set out in the Immigration Regulations, 1978,
SOR/78-172 (Immigration Regulations, 1978) and the Immigration and
Refugee Protection Regulations, 2002, SOR/2002-227 (IRPR) pertaining to
federal skilled workers, as required by subsections 85.1 and 85.3, or 361(4) of
the IRPR. In both cases the applicant was assessed to have not met the required
criteria.
[3]
The
decision of the officer was communicated to the applicant on November 28, 2005.
DECISION
[4]
The
assessment that was conducted by the officer pursuant to the Immigration
Regulations, 1978, utilized the following factors: education,
education & training, experience, the occupational factor, arranged
employment or designated occupation, the demographic factor, age, knowledge of
the English language, knowledge of the French language, and personal
suitability. With respect to the assessment conducted pursuant to the IRPR, the
application was assessed against the requirements set out in sections 75 and 76
of the IRPR.
[5]
In
regards to the assessment made under the Immigration Regulations, 1978,
the officer allocated zero points for the education, knowledge of English,
knowledge of French, and personal suitability factors in all of the occupation
categories under which the applicant was assessed. The applicant received no
higher than 43 units of assessment (units) for any one of the occupation
assessments in total. The officer noted that as an assisted relative, 65 units
are required for an immigrant visa to Canada. As this minimum number had not
been reached, the officer concluded that he was not satisfied that the
applicant would be able to become economically established in Canada.
[6]
With
respect to the IRPR assessment, the officer concluded on the basis of section
75 that the applicant did not meet the requirements for admission in the
skilled worker class. In particular, the officer found that he was not
satisfied that the applicant had met the requirement set out in subsection 75(2)
(a) of the IRPR.
[7]
On
the basis of the above, the officer concluded that the applicant did not meet
the requirements of the Immigration and Refugee Protection Act,
S.C. 2001 C. 27 (IRPA) and
its regulations. As a result, the officer refused the application.
ISSUES
[8]
The
issues raised by the parties can be summarized as follows:
1.
Did the
officer err in awarding the applicant 0 units of assessment pursuant to the
personal suitability factor, in the context of the officer’s assessment made
under the Immigration Regulations, 1978?
2.
Did the
officer err in failing to provide the applicant an opportunity to disabuse her
concerns?
3.
Did the
officer err by failing to assess the applicant’s ability in reading, writing
and speaking in English, pursuant to Schedule 1 of the Immigration
Regulations, 1978?
4.
Did the officer
err in failing to consider the exercise of his discretion pursuant to Section
76 (3) of the IRPR?
5.
If the
officer erred with respect to any of the above, is the error material?
STATUTORY FRAMEWORK:
[9]
Subsections
75, 76 (1), (3) and (4) of the Immigration and Refugee Protection
Regulations,
2002, SOR/2002-227 (IRPR) state as follows:
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.
|
75. (1) Pour
l’application du paragraphe 12(2) de la Loi, la catégorie des travailleurs
qualifiés (fédéral) est une catégorie réglementaire 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) A foreign
national is a skilled worker if
|
(2)
Est un travailleur qualifié l’étranger qui satisfait aux exigences
suivantes :
|
(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 0 Management Occupations or Skill
Level A or B of the National Occupational Classification matrix;
|
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 0 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) 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
|
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)
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.
|
c) pendant cette période
d’emploi, il a exercé une partie appréciable des fonctions principales de la
profession figurant dans les descriptions des professions de cette
classification, notamment toutes les fonctions essentielles.
|
(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.
|
(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.
|
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:
|
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
qualifiés (fédéral) :
|
(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,
|
a) le travailleur qualifié
accumule le nombre minimum de points visé au paragraphe (2), au titre des
facteurs suivants :
|
(i)
education, in accordance with section 78,
|
(i)
les études, aux termes de l’article 78,
|
(ii)
proficiency in the official languages of Canada, in accordance with section
79,
|
(ii) la compétence dans les
langues officielles du Canada, aux termes de l’article 79,
|
(iii)
experience, in accordance with section 80,
|
(iii) l’expérience, aux termes
de l’article 80,
|
(iv)
age, in accordance with section 81,
|
(iv)
l’âge, aux termes de l’article 81,
|
(v)
arranged employment, in accordance with section 82, and
|
(v) l’exercice d’un emploi
réservé, aux termes de l’article 82,
|
(vi)
adaptability, in accordance with section 83; and
|
(vi) la capacité d’adaptation,
aux termes de l’article 83;
|
(b)
the skilled worker must
|
b) le travailleur
qualifié :
|
(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
|
(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)
be awarded the number of points referred to in subsection 82(2) for arranged
employment in Canada within the meaning of subsection 82(1).
|
(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).
|
…
(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.
|
…
(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) An
evaluation made under subsection (3) requires the concurrence of a second
officer.
|
(4)
Toute décision de l’agent au titre du paragraphe (3) doit être confirmée par
un autre agent.
|
ANALYSIS
Standard
of Review
[10]
In
Yaghoubian v. Canada (Minister of Citizenship and Immigration), 2003 FCT 615, [2003] F.C.J. No.
806 at paras. 24- 29 (QL) [Yaghoubian], the Court highlighted that there
were two lines of case law indicating what the appropriate standard of review
was to apply to a visa officer’s decision, one pointing to reasonableness and
the other to patent unreasonableness. The Court in Yaghoubian further noted
that it is important to consider the nature of the issue in question, before
determining the appropriate standard of review. As the question before the Court
in that case was whether the visa officer had applied the NOC job description
properly, which it characterized as a mixed question of fact and law, the Court
settled on a standard of review of reasonableness: Yaghoubian,
at para. 32.
[11]
This
split in the case law was similarly recognized by the Court in Hua v. Canada (Minister of Citizenship and Immigration), 2004 FC 1647, [2004] F.C.J. No. 2106
(QL). The Court concluded in Hua that the appropriate standard of review
to apply in the context of a visa officer’s general decision was patent
unreasonableness, at para. 28. This approach was followed in Bellido v. Canada (Minister of Citizenship and Immigration), 2005 FC 452, [2005] F.C.J. No. 572 at
para. 5 (QL) [Bellido], wherein the Court determined that the visa
officer’s assessment is an exercise of discretion that should be given a high
degree of deference. The Court also discussed this issue in Kniazeva v. Canada (Minister of Citizenship and Immigration),
2006 FC 268, [2006] F.C.J. No. 336 (QL) [Kniazeva], noting as follows:
¶ 15
… This Court has consistently held that the particular expertise of visa
officers dictates a deferential approach when reviewing their decisions. There
is no doubt in my mind that the assessment of an Applicant for permanent
residence under the Federal Skilled Worker Class is an exercise of discretion
that should be given a high degree of deference. To the extent that this
assessment has been done in good faith, in accordance with the principles of
natural justice applicable, and without relying on irrelevant or extraneous
considerations, the decision of the visa officer should be reviewed on the standard
of patent unreasonableness [citations removed].
[12]
As
further noted by the Court in Kniazeva, the same cannot be said however when
the issue is one of procedural fairness:
¶ 16
… It is trite law that questions of
procedural fairness are not entitled to any deference on judicial review. The
Supreme Court of Canada has made it clear that the duty of procedural fairness
requires no assessment of the standard of review: a breach of procedural
fairness will usually void, in and of itself, the decision under review.
[13]
Questions
of procedural fairness should be assessed on a correctness standard: Ellis-Don
Ltd. v. Ontario (Labour Relations Board), [2001] 1 S.C.R. 221, 2001 SCC 4
at para. 65. Where a breach of the duty of fairness is found, the decision should
generally be set aside: Benitez v. Canada (Minister of Citizenship and
Immigration),
2006
FC 461, [2006] F.C.J. No. 631 at para. 44 (QL); Sketchley v. Canada (Attorney General),
2005 FCA 404, [2005] F.C.J. No. 2056
at para. 54 (QL) [Sketchley].
[14]
Taking
the above framework into account, in the present case, the first issue will be
decided on the standard of review of patent unreasonableness. The remaining
issues will be decided on the standard of review of correctness.
1.
Assessment
of the personal suitability factor
[15]
As
noted by the Court in Yaghoubian:
¶ 48 … The assessment
of an applicant's personal suitability is highly discretionary. While
a visa officer cannot take into account irrelevant factors in this assessment,
the precise point score awarded in this area is highly fact specific and should
not be interfered with except in the most egregious of circumstances [emphasis
added].
[16]
As
similarly noted by the Court in Ataullah v. Canada (Minister of Citizenship
and Immigration), 2003 FC 936, [2003] F.C.J. No. 1193 (QL):
¶ 8
The decision of a visa officer in
relation to personal suitability is about whether the applicant will be able to
successfully establish themself in Canada. This determination involves the
exercise of discretion by the visa officer, and the Court should be reluctant
to intervene unless there is evidence that the visa officer exercised his
discretion in bad faith or in reliance upon extraneous or irrelevant
considerations or in a manner inconsistent with either the legislation or the
principles of fundamental justice [footnotes excluded, emphasis added].
[17]
For
example, where the personal suitability factor is found to have not been
assessed in accordance with a proper understanding of the criteria on which
this factor is based, including a person's adaptability, motivation,
initiative, resourcefulness and other similar qualities, the Court may
intervene: Ting v. Canada (Minister
of Citizenship and Immigration), [1996] F.C.J. No. 1530 at para. 7
(QL).
[18]
In
the present case, the
applicant argues that his personal suitability was incorrectly assessed because
the employment and assistance offered to him by his brother was not duly
considered.
[19]
It
is clear from the officer’s notes recorded on the Computer Assisted Immigration
Processing System (CAIPS), that the officer was aware of the job that had been
offered to the applicant by his brother, as she asked questions in this regard.
There is nothing to indicate that the officer did not adequately assess the
evidence before her regarding the personal suitability of the applicant with
respect to this factor. It is not enough to suggest that a different number of
units should have been allocated; the decision of the officer is fact based and
is due a high amount of deference.
[20]
In
ordinary circumstances, the conclusions of the officer in the present case
would not be disturbed. However, as discussed below, the officer erred in her
assessment of the applicant’s English language capabilities. In light of the
fact that language abilities are often a factor considered in the context of assessing
personal suitability, for example in the context of determining the adaptability
of the applicant, the failure of the officer to uphold the legislative
requirements with respect to her assessment of the applicant’s English language
abilities has rendered her conclusions with respect to the personal suitability
of the applicant patently unreasonable.
2.
Opportunity to disabuse her concerns
[21]
The
case law is not clear regarding when a visa officer’s concerns must be put to
the applicant where those concerns are based on the information submitted by
the applicant to the visa officer. For example, in Hussain v. Canada (Minister of Citizenship and Immigration), 2002 FCT 468, [2002] F.C.J. No. 596
at paras. 35-37 (QL) [Hussain], the Court addressed whether the visa officer
had breached his duty of fairness by
failing to raise his alleged concerns with the applicant about the applicant’s
personal suitability and/or his English language fluency, and by failing to
provide the applicant with an opportunity to address any such concerns. The Court found that the officer was not
required to put before the applicant any tentative conclusions he might be
drawing from the material. The Court noted that the visa officer was merely assessing the information provided to him by the applicant
as he must do in order to reach a decision. The Court highlighted that the
burden is on the applicant to prove that he has a right to come to Canada. This approach was also taken by the Court in Bellido, above, at para.
35.
[22]
In
Liao v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J.
No. 1926 (QL) [Liao], however, the Court took a different approach,
noting:
¶ 15 Visa
officers have the duty to give an immigrant the opportunity to answer the
specific case against him. This duty of fairness may require visa
officers to inform an applicant of their concerns or negative impressions
regarding the case and give the applicant the opportunity to disabuse them.
…
¶ 17
However, this duty to inform the applicant will be fulfilled if the visa
officer adopts an appropriate line of questioning or makes reasonable inquiries
which give the applicant the opportunity to respond to the visa officer's
concerns…
In reaching the
above conclusion, the Court in Liao did not lose sight of the fact that
the ultimate burden of proof rests on the applicant. The Court looked to the
questions asked by the officer and the information provided to her, before
finding that her conclusion was reasonably open to her.
[23]
In
Rukmangathan v. Canada (Minister of Citizenship and Immigration), 2004
FC 284, [2004] F.C.J. No. 317 (QL) [Rukmangathan], the Court
offered the following guidance in determining what is required of a visa officer
when different types of concerns arise:
¶ 22 …the duty
of fairness may require immigration officials to inform applicants of their
concerns with applications so that an applicant may have a chance to
"disabuse" an officer of such concerns, even where such concerns
arise from evidence tendered by the applicant. Other decisions of this court support
this interpretation of Muliadi, supra [Muliadi v. Canada (Minister of Employment and Immigration), [1986] 2 F.C. 205 (C.A.)].
See, for example, Fong v. Canada (Minister of Employment and Immigration),
[1990] 3 F.C. 705 (T.D.), John v. Canada (Minister of Citizenship and
Immigration), [2003] F.C.J. No. 350 (T.D.)(QL) and Cornea v. Canada (Minister of Citizenship and Immigration) (2003), 30 Imm. L.R. (3d) 38 (F.C.T.D.), where it
had been held that a visa officer should apprise an applicant at an interview
of her negative impressions of evidence tendered by the applicant.
¶ 23 However,
this principle of procedural fairness does not stretch to the point of
requiring that a visa officer has an obligation to provide an applicant with a
"running score" of the weaknesses in their application: Asghar v.
Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1091(T.D.)(QL)
at para. 21 and Liao v. Canada (Minister of Citizenship and Immigration),
[2000] F.C.J. No. 1926. And there is no obligation on the part of a visa
officer to apprise an applicant of her concerns that arise directly from the
requirements of the former Act or Regulations: Yu v. Canada (Minister of
Employment and Immigration) (1990), 36 F.T.R. 296, Ali v. Canada (Minister of
Citizenship and Immigration) (1998), 151 F.T.R. 1 and Bakhtiania v. Canada
(Minister of Citizenship and Immigration), [1999] F.C.J. No. 1023 (T.D.)(QL).
In Rukmangathan, the Court
concluded that the visa officer's problems with the applicant's application,
namely, why he had taken further courses in Canada, the consideration that his
marks were "low" (although they were in the mid-70s range) and the
"poor quality" of two of his educational documents, should have been
placed before the applicant for a response. The Court made this finding on the basis that most of the
officer's concerns could not be said to have emanated directly from the requirements
of the legislation.
[24]
Having
reviewed the factual context of the cases cited above, it is clear that where a
concern arises directly from the requirements of the legislation or related
regulations, a visa officer will not be under a duty to provide an opportunity
for the applicant to address his or her concerns. Where however the issue is
not one that arises in this context, such a duty may arise. This is often the
case where the credibility, accuracy or genuine nature of information submitted
by the applicant in support of their application is the basis of the visa
officer’s concern, as was the case in Rukmangathan, and in John and
Cornea cited by the Court in Rukmangathan, above.
[25]
In
the present case, the applicant argues that the officer erred in failing to put
her concerns to the applicant, particularly with respect to her concern that he
had no experience in “operation/admin/accounting/mgmt”, and that he had no
English language ability.
[26]
The
finding of the officer that the applicant had failed to show that he had
experience in “operation/admin/accounting/mgmt” and therefore did not meet the
qualification of Maintenance/Operations and Account Manager, is a finding based
directly on the requirements of the legislation and regulations. The duty was
on the applicant to demonstrate that he met the criteria of the occupation
under which he had requested his assessment. The applicant was not required to
be apprised of the officer’s concerns in this regard with respect to the
evidence submitted.
[27]
With
respect to the question of English language ability, as discussed below, the officer
was required under the Immigration Regulations, 1978 to conduct a
language assessment of the applicant. In the present case the officer concluded
that the applicant had no English language ability without conducting an
assessment, despite the fact that the applicant had assessed himself as being
able to speak English with difficulty and being able to read and write well. Other
than referencing the fact that the interview had to be conducted with an
interpreter, the CAIPS notes of the officer do not reveal how or why her
conclusion that the applicant had “no English language ability” was reached.
Furthermore, the notes of the officer make it clear that she did not apprise
the applicant of her concerns in this regard.
[28]
To
reach the conclusion she did, the officer must have considered the applicant’s
assessment of his own language abilities as not credible. It would be hard to
find this conclusion reasonable in light of the fact that there is no evidence
that the officer tested the applicant or questioned him in this regard. Before
reaching this conclusion, the officer should have put her concerns to the
applicant, and should have given the applicant the opportunity to respond in
light of the fact that her concern regarding the credibility of the applicant’s
English language abilities is not a concern that arises directly from the
legislation or regulations. The officer’s failure to do so is a breach of
procedural fairness.
3.
Assessment
of language ability
[29]
As
submitted by the applicant, the mechanisms of language assessment required under
the old and new immigration regulations are different. As noted by the Court in
Kniazeva at
para. 35, under the new regulations “visa officers can no longer make
subjective assessments of language proficiency” as was the case under the
former system, visa applicants must now provide a formal language assessment or
in the alternative, documentary evidence demonstrating their language ability.
[30]
Under
the Immigration Regulations, 1978, the assessment of an applicant’s
language ability regularly took place during the interview. Pursuant to these
regulations, an applicant is required to be evaluated in each of their three
abilities including reading, writing and speaking where the applicant has
asserted some knowledge of an official language: Joarder v. Canada (Minister of Citizenship and
Immigration), 2003
FC 1510, [2003] F.C.J. No. 1926
at para. 34 (QL) [Joarder]. For example, in Quines v. Canada (Minister of Employment and
Immigration) (1990),
37 F.T.R. 224, [1990] F.C.J. No. 847 (QL), the Court
found that the applicant should have been assessed for his French language
abilities because the applicant had indicated in his application form that he
spoke, read and wrote the language with difficulty.
[31]
That
being said, the Court has not always been strict in applying the requirement
that reading, writing and speaking tests be provided in every case. For
example, in Seo v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1546 at para. 9 (QL),
the Court found that the officer’s conclusion that the applicant spoke, read
and wrote English “with difficulty” was not unreasonable despite the fact that
the officer did not get the applicant to write anything in English. The Court
found that it was understandable that the officer did not administer a written
test in light of the officer’s observation that usually she would assess “the writing ability of an applicant by dictating a text
but felt that in the instant case it would have been pointless as the applicant
did not understand her questions and they had to communicate through an
interpreter”.
[32]
It
is clear that in the present case the officer did not test the applicant’s
English language ability in any of the three categories of reading, writing or
speaking. This is an error in light of the fact that the applicant asserted
that he had skills in this regard. The officer should have tested all three
categories of skill, in light of the fact that the applicant asserted that his
reading and writing abilities were better than his speaking abilities. It was
therefore not reasonable for the officer in the circumstances of the case to
rely on the fact that the interview had to be conducted via an interpreter, to reach
the conclusion that the applicant had “no English language ability”.
4.
Exercise
of discretion
[33]
Subsection
75(3) of the IRPR clearly states that the failure to meet the requirements of a
skilled worker as outlined in section 75(2) of the IRPR will result in an
application being rejected and that no further assessment is required. In the
present case the applicant was found to have not provided sufficient evidence
of any work experience as a Maintenance/Operations and Account Manager (0722),
Personnel Officer (1233), and Retail Store Supervisor (0621), and he was found not
to have the education required to be assessed as a Denture Technician (3321).
As a result, the applicant was found to have not met the requirements of subsection
75(2) of the IRPR. The officer was therefore not required to consider her
discretion under section 76(3) of the IRPR as the assessment of the application
failed before the factors listed in section 76 were triggered.
5.
Materiality
[34]
In
the present case, the three errors highlighted above all relate to the failure
of the officer to adequately assess the English language abilities of the
applicant. This failure rendered the officer’s assessment of the applicant’s
personal suitability patently unreasonable. It also resulted in a finding that
the officer had failed to put her concerns to the applicant in this regard,
because she reached her conclusion without testing the applicant or apprising
the applicant in any way of her concerns. Finally, the officer’s failure to
assess the applicant’s skills was in and of itself a breach of procedural
fairness. It is not however enough to find a breach of procedural fairness in
the context of this case.
[35]
In
determining whether an application for judicial review should be allowed on the
basis that the visa officer erred in their determination of units for a
category such as language ability or personal suitability, the Court has held
that the question of whether the change would effect the outcome of the overall
case is determinative: Sharma v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1153, [2001] F.C.J. No. 1586
at para.8 (QL), Hussain above, at para. 35. The question being whether
or not the error made is material: Saleem v. Canada (Minister of
Citizenship and Immigration), 2003 FCT 70, [2003] F.C.J. No. 88 at para. 24
(QL).
[36]
In
Joarder, above at para. 35, I concluded that though an assessment of the applicant's ability to read in English should
have been made, since this error would not have affected the final outcome of
the applicant's application and, in fact, would not have changed the number of
units awarded for language, the application for judicial review would not be
allowed on this basis.
[37]
Similarly,
the Court of Appeal found in Patel v. Canada (Minister of Citizenship and Immigration), 2002 FCA 55, [2002] F.C.J. No. 178 (QL):
¶ 12 Counsel also submitted that the officer denied Dr. Patel the
right to procedural fairness by assessing his English reading ability at a
level lower than that at which he had assessed it himself, without giving him
an opportunity to demonstrate his true English reading ability. It is a
reasonable inference from the record that the officer awarded Dr. Patel 2
points each for his ability to speak, write and read English. Thus, even if he
were awarded the maximum of 3 points for his reading ability, he would still
have only a total of 69 units of assessment. In other words, even if the
officer had committed a breach of procedural fairness in making her assessment
of Dr. Patel's ability to read English, it was immaterial.
[38]
As
further noted by the Court of Appeal in Patel at para. 5, the
Supreme Court of Canada (SCC) reflected in Mobil Oil Canada Ltd. v.
Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202 (S.C.C.)
[Mobil Oil], on the proposition that the Court has the discretion in
judicial review proceedings, where a person’s right to procedural fairness has
been breached and the reviewing court is satisfied that the breach could not
have changed the result, to not overturn the decision. In Mobile Oil,
the SCC noted the following in this regard:
¶ 52 The bottom line
in this case is thus exceptional, since ordinarily the apparent futility of a
remedy will not bar its recognition: Cardinal,
supra. On occasion, however, this Court has discussed circumstances
in which no relief will be offered in the face of breached administrative law
principles: e.g., Harelkin v. University of Regina, [1979] 2 S.C.R.
561. As I described in the context of the issue in the cross-appeal, the
circumstances of this case involve a particular kind of legal question,
viz., one which has an inevitable answer.
¶ 53 In Administrative
Law (6th ed. 1988), at p. 535, Professor Wade discusses the notion that fair
procedure should come first, and that the demerits of bad cases should not
ordinarily lead courts to ignore breaches of natural justice or fairness. But
then he also states:
|
A distinction might
perhaps be made according to the nature of the decision. In the
case of a tribunal which must decide according to law, it may be justifiable
to disregard a breach of natural justice where the demerits of the claim are
such that it would in any case be hopeless.
|
|
In this appeal, the distinction suggested by Professor Wade is apt.
[Emphasis added].
[39]
As
further highlighted by the Court in Gal v. Canada
(Minister of Citizenship and Immigration), 2004 FC 1771,
[2004] F.C.J. No. 2167 (QL), it is the inevitability of the answer that
is in fact determinative in assessing whether or not a violation of procedural
fairness is material.
¶ 13 Given these
circumstances, I can conclude that if the matter is referred back to another
officer it is inevitable that, by reason of subsection 42(a) of the Act,
he or she would come to the same conclusion of inadmissibility [Emphasis added].
[40]
Where
an answer is not inevitable, a breach of procedural fairness requires that the
decision be quashed and sent back for redetermination. As noted by the Court of
Appeal in Sketchley, above at para. 54: “If the duty of fairness is breached in the process of
decision-making, the decision in question must be set aside”. The range of
cases in which a breach of procedural fairness will be allowed to stand is
therefore quite narrow, as the general rule is that the decision will be
quashed. This interpretation of the exception is in keeping with the reasoning
of the SCC as expressed in Mobile Oil. Only where an outcome is
characterized as inevitable, will a breach of procedural fairness be considered
immaterial. For example, in the case of a judicial review of a visa officer’s
decision, this would include breaches of procedural fairness that would not
affect the total amount of units awarded in the case.
[41]
The
question in the present case is therefore whether the errors highlighted above
would definitively result in the same outcome should the case be sent for
redetermination.
[42]
The
failure of the officer to assess the English language ability of the applicant
obviously affects the number of units awarded in this category of assessment.
This error may have also affected the officer’s determination under other
categories of assessment, such as personal suitability. As noted above, the
decision of the visa officer is very fact specific and highly discretionary.
This is reflected in subsection 11(3) of the Immigration Regulations, 1978
which allocates a broad residual discretion to the visa officer to issue or
refuse to issue an immigrant visa, where “there are good reasons why the number of units of
assessment awarded do not reflect the chances of the particular immigrant and
his dependants of becoming successfully established in Canada”. Though not at
issue in this case, this provision supports the argument that the Court owes a
high degree of deference to the decision of a visa officer, as parliament
clearly intended the visa officer to be the one to make immigration visa
determinations.
[43]
It is therefore
not enough for the Court in the present case to assess the materiality of the
errors described above by focusing only on the number of units that might be
awarded to the applicant for his knowledge of English, if his application was
returned for reassessment. The full room provided for the exercise of
discretion by a visa officer reconsidering the case must be taken into account,
including the fact that the number of units awarded in other categories of
assessment might also vary. In assessing the applicability of the exception to
the present case, the Court should keep in mind the standard of review owed to decisions
rendered by visa officers in general.
[44]
In the present case, it cannot be said that the
outcome would be inevitable if the application was sent back for
re-determination.
Though
success appears to be highly unlikely, this is not enough for the Court to find
that the breaches of procedural fairness present in this case are immaterial.
[45]
In
the result, the application is allowed. The decision of the officer is quashed,
and the matter will be sent back for redetermination by another officer in
accordance with these reasons.
[46]
No
serious questions of general importance were proposed and none will be
certified.
JUDGMENT
IT IS THE
JUDGMENT OF THIS COURT that the application is allowed and the
matter remitted for reconsideration by another visa officer in accordance with
the reasons provided. No questions are certified.
“Richard G. Mosley”