Date:
20121206
Docket:
IMM-3551-12
Citation:
2012 FC 1432
Vancouver, British Columbia,
December 6, 2012
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
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SWINDER KAUR LOHAT
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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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REASONS FOR
JUDGMENT AND JUDGMENT
I. Introduction
[1]
The
Applicant seeks judicial review of the decision of an immigration officer
[Officer] rejecting her application to be selected as a member of the economic
class on the basis of her ability to become economically established in Canada
under subsection 12(2) of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA]. The Applicant argues that she should have received an
additional five points under paragraph 83(1)(d) and subparagraph 83(5)(a)(v)
of the Immigration and Refugee Protection Regulations,
SOR/2002-227, as am SC 2002, c 8, s 182(3)(a) [Regulations] for
being related to a person living in Canada.
II. Judicial Procedure
[2]
This
is an application under subsection 72(1) of the IRPA for judicial review
of the decision of the Officer, dated February 7, 2012.
III. Background
[3]
The
Applicant, Ms. Swinder Kaur Lohat, is a citizen of India. She was born in 1975
and has been married to Mr. Parminder Singh since March 8, 2004.
[4]
The
Applicant has completed 18 years of full-time educational training, including a
three-year diploma in General Nursing and Midwifery from the Government School
of Nursing SGTB Hospital and a Bachelor of Arts.
[5]
The
Applicant has several years of work experience in an occupation classified
under National Occupation Classification Code 3152, “Registered Nurses” [NOC
3152].
[6]
On
February 25, 2010, the Applicant applied for permanent residence in Canada
under the skilled worker category [PR Application] on the basis of her work
experience.
[7]
On
Schedule 3 of the PR Application, the Applicant indicated that her accompanying
spouse had a sister or brother who was living in Canada or was a permanent
resident in Canada.
[8]
On
April 30, 2010, the Federal Skilled Worker Centralized Intake Office advised
the Applicant that her PR Application would be recommended to the visa office
on the basis of her NOC 3152 work experience and requested her to submit a
completed application to the New Delhi visa office [CIO Approval Letter].
[9]
On
August 24, 2010, the Applicant made submissions in response to the CIO Approval
Letter, stating that her accompanying spouse’s biological half-sister was Jaspreet Kaur Duggal [Jaspreet Duggal], a Canadian citizen living in Canada [Response to CIO Letter].
[10]
In
the Response to the CIO Letter, the Applicant included the following documents
to support her claim that Jaspreet Duggal is the half-sister of her spouse: (i)
the Indian passports of the Applicant, Parminder Singh, and Jaspreet
Kaur; (ii) the marriage certificate of the Applicant and Parminder Singh;
(iii) the employment records of the Applicant; (iv) the education records of Parminder
Singh; (v) an affidavit of Parminder Singh; (vi) the Canadian citizenship card
of Jaspreet Duggal; and (vii) the British Columbia Driver’s License of Jaspreet
Duggal.
IV. Decision under Review
[11]
The
Officer rejected the Applicant’s PR Application because the Applicant had
insufficient points to qualify for a permanent resident visa under subsection
12(2) of the IRPA. The Officer applied the selection criteria in
subsection 76(2) of the Regulations to determine if the Applicant met
the minimum requirements set out in subsection 75(2) of the Regulations.
[12]
The
Applicant received ten points for age, twenty-two for education, six for
language proficiency, twenty-one for experience, zero for arranged employment,
and four for adaptability. This came to a total of sixty-three points; three
points short of the required sixty-seven points fixed by the Minister under
subsection 76(3) of the Regulations as the minimum number of points
required for skilled workers.
[13]
Under
paragraph 83(1)(d) and subparagraph 83(5)(a)(v) of the Regulations,
an applicant under the skilled worker category shall be awarded five points if
that applicant or an accompanying spouse has a sibling living in Canada. The Officer did not award the Applicant these points because the Applicant had not
presented sufficient evidence to establish that her accompanying spouse was the
half-brother of Jaspreet Duggal, a Canadian citizen currently living in Canada.
In particular, the documents and affidavit provided by the Applicant were
insufficient to prove a family relationship.
V. Issues
[14]
(1)
Was the Officer reasonable in finding that the Applicant could not be awarded
five points under paragraph 83(1)(d) of the Regulations because
her accompanying spouse was the half-brother of Jaspreet Duggal?
(2)
Did procedural fairness require the Officer to provide the Applicant with an
opportunity to respond?
VI. Relevant Legislative
Provisions
[15]
Please
see Annex “A” for the relevant legislative provisions of the IRPA and
the Regulations.
VII. Position of the Parties
[16]
The
Applicant
submits that the Officer was unreasonable in refusing to award her five points
for adaptability under paragraph 83(1)(d) and subparagraph 83(5)(a)(v)
of the Regulations because her accompanying spouse is related by blood
to a person who is a Canadian citizen living in Canada and who is also a child
of the mother of her accompanying spouse.
[17]
The
Applicant argues that she submitted sufficient documentation to establish that
her accompanying spouse, Parminder Singh, is the son of Ujjagar Singh and Jaswant Kaur, including copies of his Indian passport and a letter from a former principal.
[18]
The
Applicant also argues that she submitted sufficient documentation to establish
that her accompanying spouse, Parminder Singh, is the half-brother of Jaspreet Duggal by Jaswant Kaur’s second marriage to another man. The documentation includes
the Indian passport of Jaspreet Duggal, the citizenship card of Jaspreet Duggal, and an affidavit by Parminder Singh.
[19]
According
to the Applicant, it is difficult to document the names of mothers in India
because most Indian record-keeping focused on paternity to the exclusion of
maternity. She also claims that maintaining records such as birth, marriage,
and death certificates [vital records] was unusual, that the legislative
requirement to maintain vital records did not come into effect until the 1970s,
and that this legislation was not always complied with. Consequently, the
Applicant’s birth record and the marriage records of Jaswant Kaur were
unavailable.
[20]
Citing
Wang v Canada (Minister of Citizenship and Immigration), 2002 FCT 58,
217 FTR 193, the Applicant argues that the applicable standard of proof in
assessing her PR Application is the balance of probabilities standard. The
Applicant, relying on R v Layton, 2009 SCC 36, [2009] 2 S.C.R. 540, argues
that this standard required her to establish that it was more probable than not
that Jaspreet Duggal was the half-sister of her accompanying spouse, Parminder
Singh.
[21]
The
Applicant submits that, given the documents described above, it was more
probable than not that Parminder Singh and Jaspreet Duggal were both the
children of Jaswant Kaur and that the requirements of paragraph 83(1)(d)
and subparagraph 83(5)(a)(v) of the Regulations were met. She
contends that she should not be limited to vital records to establish family
relationships and that she provided the best available evidence in their
absence.
[22]
In
the Applicant’s view, the Officer breached procedural fairness by failing to
provide adequate reasons and an opportunity to respond. She received no notice
that the submitted documentation was insufficient to establish that her
accompanying spouse, Parminder Singh, and Jaspreet Duggal were both
children of Jaswant Kaur.
[23]
The
Applicant submits that her inability to obtain the birth certificate of
Parminder Singh or the marriage certificates of Jaswant Kaur placed her in
a distinct situation. The evidence that she submitted in substitution of these
records required the Officer to raise concerns with the evidence with the
Applicant. The Applicant argues that she had a legitimate expectation that the
Officer would address any concerns with her with regard to her PR Application as
she received a letter on September 7, 2010 advising her that she would receive
a month’s notice of any interview that might be required.
[24]
Moreover,
the Applicant claims that the Officer’s rejection of the statutory declaration
of Parminder Singh is tantamount to an adverse credibility finding to which she
should have had an opportunity of responding.
[25]
The
Respondent submits that the Officer was reasonable in finding that the
Applicant had failed to establish that her accompanying spouse, Parminder
Singh, and Jaspreet Duggal were half-siblings and that, consequently, the
Applicant could not satisfy the requirements of paragraph 83(1)(d) and
subparagraph 83(5)(a)(v) of the Regulations. Citing Kniazeva v
Canada (Minister of Citizenship and Immigration), 2006 FC 268, 288 FTR 282,
the Respondent argues that assessing an application under subsection 12(2)
of the IRPA is an exercise of discretion warranting deference and that
this Court should not intervene if the decision was made in good faith,
complied with procedural fairness, and was not made on irrelevant or extraneous
considerations.
[26]
In
particular, the Respondent argues that the Officer’s finding was reasonable
because the Applicant had not produced sufficient documentation establishing
that her accompanying spouse and Jaspreet Duggal were half-siblings. The
Respondent argues that the Applicant had clear notice of the types of documents
she was required to submit since she had been directed to a website that set
out the documents required to establish a family relationship. Further, the
Respondent argues that the affidavit of Parminder Singh did not attract weight as
it was the affidavit of an interested party and, consequently, self-serving and
unreliable.
[27]
The
Respondent argues that the Applicant’s application for judicial review
effectively asks this Court to reweigh the evidence.
[28]
Citing
Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, the Respondent submits
that adequacy of reasons is not a stand-alone ground for judicial review.
[29]
Finally,
the Respondent argues that the Officer was not required to give the Applicant
an opportunity to respond as the Applicant had the onus of providing sufficient
documentation to establish that paragraph 83(1)(d) and subparagraph
83(5)(a)(v) of the Regulations applied. Citing Hussain v Canada (Minister of Citizenship and Immigration), 2002 FCT 468, the Respondent argues
that procedural fairness did not oblige the Officer to inform the Applicant of
any concerns on the sufficiency of the evidence. The Respondent further
argues, relying on Hassani v Canada (Minister of Citizenship and
Immigration), 2006 FC 1283, [2007] 3 FCR 501, that an applicant under
subsection 12(2) of the IRPA has the onus of establishing that he or she
meets legislative requirements and 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” (at para 24).
VIII. Analysis
Standard of Review
[30]
A
decision to award points for adaptability for being related to a person living
in Canada is a question of mixed fact and law reviewable on the
standard of reasonableness (Lee v Canada (Minister of Citizenship and
Immigration), 2011 FC 617, 390 FTR 166). The standard of correctness
applies to questions of procedural fairness (Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para 129). The content of the duty of
procedural fairness will, however, vary according to the circumstances and the
legislative and administrative context of a decision (Mavi v Canada
(Attorney General), 2011 SCC 30, [2011] 2 S.C.R. 504).
[31]
Where
the standard of reasonableness applies, the Court may only intervene if the
Board’s reasons are not “justified, transparent or intelligible”. To satisfy
this standard, the decision must also fall in the “range of possible,
acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir,
above, at para 47).
[32]
Although
the Applicant has challenged the adequacy of the Officer’s reasons, the Supreme
Court of Canada has held that if reasons are given, a challenge to the
reasoning or result is addressed in the reasonability analysis. According to Newfoundland
and Labrador Nurses Union, above, “reasons must be read together with the
outcome and serve the purpose of showing whether the result falls within a
range of possible outcomes” (at para 14). A reviewing court may not “substitute
[its] own reasons” but may “look to the record for the purpose of assessing the
reasonableness of the outcome” (at para 15).
(1) Was the Officer
reasonable in finding that the Applicant could not be awarded five points under
paragraph 83(1)(d) of the Regulations because her accompanying
spouse was the half-brother of Jaspreet Duggal?
[33]
The
Officer was reasonable in finding that, on a balance of probabilities,
the Applicant could not be awarded five points under paragraph 83(1)(d)
of the Regulations because her accompanying spouse was the half-brother
of Jaspreet Duggal.
[34]
A
decision-maker assesses if a person is related to a person living in Canada on a balance of probabilities (Dhillon v Canada (Minister of Citizenship and
Immigration), 2010 FC 1049). Pursuant to Layton, above, this
required the Officer to ask if it was more probable than not that Jaspreet
Duggal was the half-sister of the Applicant’s accompanying spouse and that
paragraph 83(1)(d) and subparagraph 83(5)(a)(v) of the Regulations
should apply.
[35]
According
to the Certified Tribunal Record [CTR] released pursuant to Rules 15 and 17 of
the Federal Courts Immigration as Refugee Protection Rules, SOR/93-22,
as am SOR/98-235, ss 1-6,7 (Fr), the Applicant presented the following
documents to support her claim that she was married to Parminder Singh, that
Parminder Singh was the son of Jaswant Kaur, and that Jaspreet Duggal was the
daughter of the same Jaswant Kaur:
• A copy of the Applicant’s Indian passport,
issued August 29, 2010, identifying her spouse as Parminder Singh Lohat (CTR at
p 47);
• A copy of the Indian passport of Parminder Singh
Lohat, issued October 10, 2002, identifying his father as Ujjager Singh and his
mother as Jaswant Kaur (CTR at p 66);
• A translated copy of the marriage certificate of
the Applicant and Parminder Singh, dated March 8, 2004, identifying the father
of Parminder Singh as Ujjager Singh (CTR at p 86);
• A translated copy of the birth certificate of
the Applicant’s son identifying his mother as the Applicant and his father as
Parminder Kaur and his paternal grandfather as Ujjagar Singh Lohat, dated April
18, 2006 (CTR at p 91);
• Copy of a letters of confirmation of employment
for the Applicant identifying her spouse as Parminder Singh Lohat, dated August
17, 2010 and August 19, 2010 (CTR at pp 92, 94, and 98);
• A copy of Parminder Singh’s sanitary inspector
training records identifying his father as Ujjager Singh (CTR at pp 128-130);
• A copy of Parminder Singh’s Bachelor of Arts
degree identifying his father as Ujjagar Singh, dated October 18, 1988 (CTR at
p 118);
• Copies of the Parminder Singh’s academic record
at Guru Nanak Dev University identifying his father as Ujjagar Singh, dated
April 1986, April 1987, and October 18, 1988 (CTR at pp 119, 120, and
121);
• A copy of the Parminder Singh’s secondary school
records identifying his father as Ujjager Singh, dated March 1985 (CTR at p
122);
• A copy of a letter from the Principal of Khalsa
College Senior Secondary School certifying that Parminder Singh attended that
school and was the son of Ujjager Singh and Jaswant Kaur, dated August 25, 2010
(CTR at p 124);
• An affidavit of Parminder Singh identifying
himself as the son of Ujjager Singh and Jaswant Kaur, alleging that
Jaswant Kaur remarried Surjit Singh on the death of Ujjager Singh, and
further alleging that Jaspreet Duggal was the daughter of Jaswant Kaur by this
second marriage, dated August 26, 2010 (CTR at p 137);
• A copy of the Indian passport of Jaspreet Kaur,
issued April 6, 1999 stating that Jaspreet Kaur was born on May 23, 1975 and
identifying her as the daughter of Surjit Singh and Jaswant Kaur (CTR at p
140); and,
• A copy of a Canadian citizenship card for
Jaspreet Duggal, stating that she was born May 23, 1975 (CTR at p 142);
• A copy of a British Columbia Driver’s License
for Jaspreet Duggal, stating that she was born May 23, 1975 (CTR at p 142).
[36]
The
CTR also contains a translated copy of a statement from the Registrar of Births
and Deaths in Ludhiane that a birth record for Parminder Singh was requested by
Jaswant Kaur but was not available (CTR at p 90).
[37]
Before
disposing of this question, this Court wishes to outline two principles.
[38]
First,
an applicant is not necessarily limited to a prescribed list of documents
(vital records) in establishing a family relationship for the purposes of
paragraph 83(1)(d) and subparagraph 83(5)(a)(v) of the Regulations.
In Singh v Canada (Minister of Citizenship and Immigration), 2012 FC
855, Justice John O’Keefe did not accept Canadian passports and permanent
residence cards because these documents did not actually provide a means of
explaining how the applicant was related to individuals alleged to be family
members. Singh was concerned with documents that did not contain
sufficient genealogical information. It does not stand for the proposition that
only vital records (and not other documents containing genealogical
information) can establish a family relationship for the purposes of the IRPA
and the Regulations. Certain records that give genealogical information
may be probative of a family relationship in certain circumstances, even if
they are not vital records.
[39]
Second,
an affidavit unsupported by corroborating evidence has limited probative value
in assessing whether an applicant meets the requirements of paragraph 83(1)(d)
and subparagraph 83(5)(a)(vi) of the Regulations. In Singh,
Justice O’Keefe held that affidavits from self-interested parties may not be
sufficient to show that an applicant is related to a person living in Canada if
the affidavits lack corroborating evidence (at para 30).
[40]
Applying
these principles to this PR Application leads to the conclusion that it would
be reasonable to find that Jaspreet Duggal was not, on a balance of
probabilities, the daughter of the same Jaswant Kaur who was also the mother of
Parminder Singh.
[41]
The
Applicant’s Indian passport, marriage certificate, birth certificate of her
son, and employment records identified her spouse as Parminder Singh.
[42]
The
birth certificate of the Applicant’s son, the Applicant’s marriage certificate,
the Indian passport of Parminder Singh, and Parminder Singh’s educational and
sanitary inspector training records are sufficient to establish, on a balance
of probabilities, that the Applicant’s spouse, Parminder Singh, is the son of Ujjager Singh and Jaswant Kaur.
[43]
It
would be reasonable to conclude that the documentary evidence does not,
however, establish, on a balance of probabilities, that Jaswant Kaur who was
the spouse of Ujjager Singh and the mother of Parminder Singh was also
the spouse of Surjit Singh and the mother of Jaspreet Duggal. The Indian
passport of Jaspreet Duggal identifies her parents as Surjit Singh and Jaswant Kaur and the documentary evidence does not establish that Jaswant Kaur was also married
to Ujjager Singh. On the basis of the documentary evidence before the Officer,
it would be reasonable to conclude that Jaswant Kaur who was the mother of Parminder Singh was not the same person as the mother of Jaspreet Duggal. By introducing the
name of Surjit Singh into the equation, the documentary evidence made it
reasonable to find that it was more probable than not that there were two
Jaswant Kaur; one who married Ujjager Singh and had a son named Parminder Singh
and another who married Surjit Singh and had a daughter named Jaspreet Duggal.
It was possible that the two Jaswant Kaur were the same person, but not
probable.
[44]
In
these circumstances, something more was needed to establish that it would not
be reasonable to find, on a balance of probabilities, that the Jaswant Kaur who was the mother of Parminder Singh was the same person as the Jaswant Kaur who was the mother of Jaspreet Duggal. The need for further information to tip the
balance in the Applicant’s favour is perhaps inevitable in the case of
half-siblings. Given the privileging of paternal ancestry that emerges from the
Indian vital records before this Court and the unavailability of many Indian
vital records in general, it would not be reasonable to insist on vital records
to establish this. Documentary evidence showing, for example, that the Jaswant Kaur who was the mother of Jaspreet Duggal lived at the same address as Parminder Singh might have been sufficient to establish, on a balance of probabilities, that
there was one Jaswant Kaur and that she was the mother of both Parminder Singh and Jaspreet Duggal.
[45]
The
affidavit of Parminder Singh, however, was not sufficient to establish that the
Jaswant Kaur described in the documentary evidence was a single person. The
affiant was an interested person and had not provided corroborating evidence on
the question of whether the Jaswant Kaur who married Surjit Singh had been
previously married to Ujjager Singh.
(2) Did procedural
fairness require the Officer to provide the Applicant an opportunity to respond?
[46]
The
jurisprudence of this Court is consistent on the point that decision-makers are
not required to notify an applicant for a skilled worker visa under subsection
12(2) of the IRPA that he or she has produced insufficient documentation
(Malik v Canada (Minister of Citizenship and Immigration), 2009 FC 1283
at para 26).
[47]
In
Chowdhury v Canada (Minister of Citizenship and Immigration), 2011 FC
1315, Justice James Russell held that procedural fairness did not require
an immigration officer give an applicant an opportunity to address concerns
about an alleged family relationship if the concerns “arose directly from the
documentation, or lack thereof, submitted by the [a]pplicant” (at para 45).
Citing Oladipo v Canada (Minister of Citizenship and Immigration), 2008
FC 366, Justice Russell reasoned that the applicant had the onus of preparing
and filing an application with relevant, sufficient, and credible supporting
documentation.
[48]
The
Applicant’s argument that the Officer’s rejection of Parminder Singh’s
affidavit amounts to an adverse credibility assessment also fails. Under Singh,
above, the Officer was entitled to give the affidavit little weight as it was
not supported by corroborating evidence establishing that the Jaswant Kaur who
was the wife of Ujjagar Singh and the mother of Parminder Singh was the same
individual as the Jaswant Kaur who was the wife of Surjit Singh and the mother
of Jaspreet Duggal. Since such corroborating evidence was not before the
Officer, there was no negative credibility finding. In short, the Officer was
unconvinced by (but not in disbelief of) the evidence.
X. Conclusion
[49]
For
all of the above reasons, the Applicant’s application for judicial review is
dismissed.
JUDGMENT
THIS
COURT ORDERS that the Applicant’s application for
judicial review be dismissed. No question of general importance for certification.
“Michel M.J. Shore”
ANNEX “A”
Relevant legislative provision of
the Immigration and Refugee Protection Act, SC 2001, c 27:
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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.
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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.
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Relevant legislative provisions of
the Immigration and Refugee Protection Regulations, SOR/2002-227, as am
SC 2002, c 8, s 182(3)(a):
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75. …
(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 0 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.
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.
83. (1) A maximum
of 10 points for adaptability shall be awarded to a skilled worker on the
basis of any combination of the following elements:
(a) for the educational
credentials of the skilled worker's accompanying spouse or accompanying
common-law partner, 3, 4 or 5 points determined in accordance with subsection
(2);
(b) for any previous
period of study in Canada by the skilled worker or the skilled worker's
spouse or common-law partner, 5 points;
(c) for any previous period
of work in Canada by the skilled worker or the skilled worker's spouse or
common-law partner, 5 points;
(d) for being related to
a person living in Canada who is described in subsection (5), 5 points; and
(e) for being awarded
points for arranged employment in Canada under subsection 82(2), 5 po1ints.
…
(5) For the purposes of
paragraph (1)(d), a skilled worker shall be awarded 5 points if
(a) the skilled worker
or the skilled worker's accompanying spouse or accompanying common-law
partner is related by blood, marriage, common-law partnership or adoption to
a person who is a Canadian citizen or permanent resident living in Canada and
who is
(i) their father or mother,
(ii) the father or mother of
their father or mother,
(iii) their child,
(iv) a child of their child,
(v) a child of their father or
mother,
(vi) a child of the father or
mother of their father or mother, other than their father or mother, or
(vii) a child of the child of
their father or mother; or
(b) the skilled worker
has a spouse or common-law partner who is not accompanying the skilled worker
and is a Canadian citizen or permanent resident living in Canada.
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75. [...]
(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 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) pendant cetde 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 de la
profession figurant dans les descriptions des professions de cette
classification, notamment toutes les fonctions essentielles.
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) 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.
83. (1) Un maximum
de 10 points d’appréciation sont attribués au travailleur qualifié au titre
de la capacité d’adaptation pour toute combinaison des éléments ci-après,
selon le nombre indiqué :
a) pour les diplômes de l’époux
ou du conjoint de fait, 3, 4 ou 5 points conformément au paragraphe (2);
b) pour des études antérieures
faites par le travailleur qualifié ou son époux ou conjoint de fait au
Canada, 5 points;
c) pour du travail antérieur
effectué par le travailleur qualifié ou son époux ou conjoint de fait au
Canada, 5 points;
d) pour la présence au Canada de
l’une ou l’autre des personnes visées au paragraphe (5), 5 points;
e) pour avoir obtenu des points
pour un emploi réservé au Canada en vertu du paragraphe 82(2), 5 points.
[...]
(5) Pour l’application de
l’alinéa (1)d), le travailleur qualifié obtient 5 points dans les cas
suivants :
a) l’une des personnes ci-après
qui est un citoyen canadien ou un résident permanent et qui vit au Canada lui
est unie par les liens du sang ou de l’adoption ou par mariage ou union de
fait ou, dans le cas où il l’accompagne, est ainsi unie à son époux ou
conjoint de fait :
(i) l’un de leurs parents,
(ii) l’un des parents de leurs
parents,
(iii) leur enfant,
(iv) un enfant de leur enfant,
(v) un enfant de l’un de leurs
parents,
(vi) un enfant de l’un des
parents de l’un de leurs parents, autre que l’un de leurs parents,
(vii) un enfant de l’enfant de
l’un de leurs parents;
b) son époux ou conjoint de fait
ne l’accompagne pas et est citoyen canadien ou un résident permanent qui vit
au Canada.
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