Date: 20100419
Docket: IMM-3647-09
Citation: 2010 FC 424
Ottawa, Ontario, April 19, 2010
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
RAUL
ARANGO MIRANDA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for the judicial review of the decision (the decision), dated
March 27, 2009, of a Visa Officer (the Officer) to refuse the
Applicant’s application for immigrant visas to Canada under the Federal Skilled Worker class of
migrants.
[2]
For
the reasons set out below the application is dismissed.
I. Background
[3]
The
Applicant is a 42 year old citizen of Mexico. The Applicant has a wife and daughter who are
Mexican citizens and were included in the visa application as dependents.
[4]
In
October 2006, the Applicant applied for permanent residence under the Federal
Skilled Worker class at the Canadian Embassy in Mexico. On October 14, 2008, the Applicant was
provided with a list of required documents to be submitted by him within four months
to facilitate processing. A package with regard to the Applicant’s application
was received by the Canadian Embassy on February 12, 2009. The Computer
Assisted Immigration Processing System (CAIPS) notes states “Application forms
and supporting documents received on 12FEB2009”.
[5]
On
March 27, 2009, the Officer assessed the Applicant 64 out of the required 67
points and refused his application. The Officer awarded the Applicant 00 out of
a possible 10 points for adaptability. The Officer stated:
Following an examination of your
application, I am satisfied that the points accurately reflect your ability to
get established in Canada. By letter addressed to you on 14
October 2008, you were requested to submit all the documents requested together
in one package. You were also advised that if the requested information was not
provided, I might not be satisfied and your application might be refused. You
indicated that your spouse had a non-university certificate or diploma, however,
the diploma as bilingual executive secretary is not sufficient to determine
that the course completed was of at least one year on a full time basis. Points
for other factors were assigned according to the documents presented.
I
am satisfied that the points accurately reflect your ability to become
economically established in Canada.
II.
Legislative
Framework
[6]
The
Federal Skilled Worker class is governed by sections 75 to 85 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (Regulations). The
primary method for determining whether an applicant qualifies to be a member of
this category is set out in section 76 of the Regulations. Subsection
76(3) provides immigration officers with the discretion to substitute criteria
in the evaluation if the number of points awarded is not a sufficient indicator
of whether the skilled worker may become economically established in Canada. Section 83 allows a
visa officer to award an applicant points for adaptability based on the
education credentials of their spouse and sets out how the points are to be
awarded.
[7]
It
should be noted that the discretion under subsection 76(3) is clearly
exceptional and applies only in cases where the points awarded are not a
sufficient indicator of whether the skilled worker will become economically
established in Canada (see Esguerra v.
Canada (Minister of Citizenship and Immigration), 2008 FC 413; [2008]
F.C.J. No. 549).
III. Issues and
Standard of Review
[8]
The
Applicant raises the following issues:
(a) Did
the Officer err in failing to consider the Applicant’s request for the excise
of positive discretion or positive substituted evaluation pursuant to subsection
76(3) of the Regulations?
(b) Did
the Officer err in not affording the Applicant an opportunity to provide more evidence
regarding the educational qualifications of his wife?
[9]
The
issue of whether the Officer considered the Applicant’s request for a
substituted evaluation is to be reviewed on a standard of correctness (see Fernandes
v. Canada (Minister of Citizenship
and Immigration),
2008 FC 243; 71 Imm. L.R. (3d) 134).
[10]
The
standard of review of a discretionary decision of a visa officer is
reasonableness (see Khan v. Canada (Minister of
Citizenship and Immigration), 2009 FC 302; [2009] F.C.J. No. 676). Issues
related to the duty of fairness are evaluated on a correctness standard.
IV. Analysis
[11]
The
first issue raised by the Applicant is if the Officer erred in failing to
consider the Applicant’s request for the excise of positive discretion or positive
substituted evaluation. However, there is a question as to whether the issue of
substitute evaluation was raised by the Applicant to the Officer.
[12]
In
his Affidavit dated August 14, 2009, the Applicant states at paragraphs 7 to 9
that his counsel sent a submission letter (the submission letter), together
with supporting documents to the Canadian Embassy on February 10, 2009, and
that the submission letter included a request for substituted evaluation. As
set out above, the CAIPS notes indicate that application forms and supporting
documents were received on February 12, 2009, but there is no mention of a
letter. The Application Record included the submission letter at pages 41 to
43.
[13]
While
the application forms and supporting documents are included in the Tribunal
Record, the submission letter is not. In a further affidavit, dated February 2,
2010, the Applicant states:
I am advised that my counsel received a
copy of the Tribunal Record on or about January 12, 2010. My counsel advised me
that the submissions dated February 10, 2009 requesting a substituted
evaluation and the exercise of positive discretion are missing from the
Tribunal Record. I have serious concerns that although the Embassy received all
of the supporting documents to my application, the submissions requesting
substituted evaluation were not considered by the Officer.
[14]
At
the hearing it became clear that Counsel for the Applicant did not actually send
the package to the Embassy. Counsel prepared the submission letter and some of
the application package and then sent this material to the Applicant for him to
include further documentation. The Applicant then sent the package to the
Embassy. The submission letter was not included in the package.
[15]
The
onus is on the Applicant to satisfy the Officer with all of the relevant
information and documentation to satisfy the Officer that the application meets
the statutory requirements (Tran v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1377; 59 Imm. L.R. (3d) 217). I also
note that Justice Richard Mosley stated in Eslamieh v. Canada (Minister of
Citizenship and Immigration), 2008 FC 722; [2008] F.C.J. No. 909, that visa
officers have the authority to consider an alternative evaluation under
subsection 76(3) by their own motion, but that it is clear from the
jurisprudence that they are under no obligation to exercise that discretion
unless specifically requested to do so.
[16]
Based
on these facts, the Officer did not have the submission letter nor a request to
consider substituted evaluation before him or her. Therefore, it was not an
error for the Officer not to consider a substituted evaluation.
[17]
Secondly,
the Applicant argues that the Officer erred in not affording him an opportunity
to provide more evidence regarding the educational qualifications of his wife. The
Applicant argues that his wife has three years of full-time studies and had the
Officer provided the Applicant with an opportunity to address concerns about
the duration of the studies, the Applicant would have been able to clarify and
confirm this.
[18]
I
agree with the Applicant that the Officer had a duty to act fairly (see also Muliadi
v. Canada (Minister of Employment and Immigration), [1986] 2 F.C. 205; 66
N.R. 8 (C.A.)). In Khan,
above, Deputy Judge Maurice E. Lagacé described the values underlying the duty
of procedural fairness when considering an application for immigration on a
skilled worker visa. Deputy Judge Lagacé stated that a person should have the
opportunity to present their case fully and fairly, and have decisions
affecting their rights made using a fair, impartial, and open process,
appropriate to the context of the decision (see paragraph 21).
[19]
However,
the Officer was under no obligation to inform the Applicant of the
insufficiency of his documents and there is no absolute entitlement to an
interview in this context (Ramos-Frances v. Canada (Minister of
Citizenship and Immigration), [2007] F.C.J. No. 192; 2007 FC 142). In this
case, the Officer’s concerns arose directly from the requirements as set out in
the legislation and therefore there is no duty to provide the Applicant with
the opportunity to address those concerns (see, for example, Hassani v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 1597, 2006 FC 1283).
[20]
The
October 14, 2008 letter from Citizenship and Immigration to the Applicant
specifically addressed the issue of what he needed to establish to obtain
points for education. The Applicant did not provide any transcripts or other
evidence to establish that his wife’s studies were full time, as set out in the
October 14 letter. Given that there is no absolute entitlement to an interview,
and the fact that the onus is on an applicant for permanent residence to ensure
that his or her file is complete, I find that the Officer did not breach
the duty of fairness by not informing the Applicant of any concerns with regard
to his wife’s education. The Officer’s conclusion that the diploma as bilingual
executive secretary is not sufficient to determine that the course completed
was of at least one year on a full time basis was reasonable.
[21]
The
fact that the Officer did not mention another diploma in the reasons is not
fatal to the decision. Administrative agencies are not required to refer to
every piece of evidence and explain how they dealt with it (Cepeda-Gutierrez
v. Canada (Minister of Citizenship and Immigration), 157 F.T.R. 35;
1998 CanLII 8667).
[22]
The
parties have submitted no question for certification and none arose.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. this application is dismissed; and
2. there is no award for costs.
“ D. G. Near ”
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