Docket: IMM-4895-11
Citation: 2012 FC 359
Ottawa, Ontario, March 28,
2012
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
|
|
MIRASH SELMANAJ
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant seeks judicial review of a decision of a Program Support Officer (the
Officer), dated July 19, 2011, refusing the applicant’s application for
permanent residence as a member of the federal skilled worker class. For the
reasons that follow, the application is dismissed.
Facts
[2]
The
applicant, Mirash Selmanaj, is a citizen of Germany. He submitted an application under the
federal skilled worker class, in the category NOC-7265 (welders) in April 2011.
The applicant had an Arranged Employment Opinion (AEO) for a position at
Bordeaux Welding X-Perts Ltd., a business for which the applicant had
previously worked as a welder.
[3]
In
the submissions in support of the application, the applicant acknowledged that
he did not have the minimum required points, but made representations on why
substituted evaluation was warranted pursuant to subsection 76(3) of the Immigration
and Refugee Protection Regulations (SOR/2002-227) (Regulations), including:
a. The language requirements
were in the process of being adjusted to reflect that tradespersons like the
applicant did not need a high language proficiency to be successful;
b. The applicant had
already worked successfully in Canada for three years and had an offer of employment with the
same company;
c. The applicant was found
eligible to write the Red Seal examination, which is a welding trade
certification allowing the holder to work in all provinces; and
d. Welders are a high
demand occupation according to the 26 June 2010 Ministerial Instructions.
[4]
By
letter dated July 19, 2011, the Officer found that the applicant did not meet
the requirements for permanent residence. The Officer awarded the applicant 1
point out of 24 for official language proficiency based on the language test
results in the file. The Officer awarded 19 points out of 21 for work
experience, because most of his employment documentation:
…did
not provide sufficient evidence that [the applicant] performed the actions
described in the lead statement for the occupation or that [the applicant]
performed a substantial number of the main duties of the occupation as set out
in the occupational description of the NOC-7265, including all the essential
duties.
[5]
The Officer
declined to grant a positive substituted evaluation under subsection 76(3) of
the Regulations. The Officer stated:
I
am satisfied that the points accurately reflect your ability to become
economically established in Canada. I have made this determination because
the factors you indicated for positive substituted evaluation, years of
experience and previous work in Canada, have already been considered and
assigned a point value. As a result, I am not substituting my evaluation
pursuant to subsection 76(3).
Issues
[6]
The
issues raised by this application are whether the Officer’s decision was
reasonable and whether the Officer fettered her discretion by concluding that
any factor for which points are awarded under subsection 76(1)(a) could not be
considered again under subsection 76(3).
Analysis
Issue 1: Was the Officer’s
decision reasonable?
[7]
The
parties were in agreement that the adequacy of the reasons must be assessed within
the reasonableness analysis and that the Court may refer to the record in
determining the reasonableness of the decision, as stated recently by this Court
in Lin v Canada (Minister of Citizenship and Immigration), 2012 FC 39 at para 6:
The
standard of review applicable to the adequacy of reasons is that of
reasonableness. To meet that standard the reasons must communicate, with minimal
cogency, the rationale for the findings and conclusions. The reasons must be
transparent, meaning that the factual and legal analysis which underlies the
conclusion or result must be apparent. This does not require that all
arguments, jurisprudence and evidence be referenced but it does mean that the
reasons, when read as whole and in the context of the record, demonstrate the
reasonableness of the decision: Newfoundland and Labrador Nurses' Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62.
[8]
Applying
this analysis to the decision under review, the decision discloses a reasonable
rationale for the outcome and there is nothing in the record to support a
finding that the outcome was unreasonable.
[9]
As
the applicant acknowledges, this Court has repeatedly held that there is no
duty to give reasons for refusing to exercise discretion under subsection
76(3). Justice Maurice Lagacé stated in Budhooram v Canada (Minister of
Citizenship and Immigration), 2009 FC 18 at para 31: “There is no requirement
under the regulations, guidelines or jurisprudence that visa officers give
reasons for the refusal to exercise discretion. It is clear however from the
CAIPS notes forming part of the file that the Officer was not satisfied that
the points were an inaccurate reflection of the applicant’s ability to become
established.”: See also Xu v Canada (Minister of Citizenship and
Immigration), 2010 FC 418; Mina v Canada (Minister of Citizenship and
Immigration), 2010 FC 1182.
[10]
The
applicant relies on the comments of Justice Judith Snider in Lee v Canada
(Minister of Citizenship and Immigration), 2011 FC 617 at para 59, that if
an applicant made specific submissions on why substituted evaluation was
warranted an officer “may have been obliged to provide further analysis and
reasons.” However, Justice Snider went on to note at paragraph 61 that the
Court has repeatedly held that there is no duty to give reasons in this
particular context.
[11]
The
two other cases upon which the applicant relies; Beryl Abro v Canada
(Minister of Citizenship and Immigration Canada), 2009 FC 1258, and
Choi v Canada (Minister of Citizenship and Immigration Canada), 2008 FC 577, are not
of assistance. In each of those cases the refusal of substituted evaluation
was found unreasonable on the particular facts.
[12]
In Choi,
the applicant had an AEO and settlement funds totaling almost $700,000. The
officer in that case declined to award any points for arranged employment
because the applicant did not meet the language requirements for the position;
however, the Court held that this finding overlooked the employer’s letter
stating they were confident the applicant could perform the job despite her
language skills. In Beryl Abro, the applicant also had an AEO and
considerable settlement funds. The officer refused to substitute his
evaluation, however, because the applicant had run her own business and had not
worked for an employer since 1986. The Court found that this conclusion was
unsubstantiated by the record.
[13]
Thus,
in each of these cases, the Court found the outcome unreasonable based on the
record before the officer. The officer based his or her decision on irrelevant
considerations, or ignored compelling considerations presented by the
applicant.
[14]
In
contrast, I find in this case that the Officer’s conclusion is reasonable in
light of the record. Most of the considerations presented by the applicant for
substituted evaluation were already reflected in his score: his work experience
in Canada, his training and his
arranged employment had all been taken into account in the regular evaluation. The
point of subsection 76(3) is to permit the officer to substitute other
considerations that would also prove the applicant’s likelihood of establishing
himself in Canada.
[15]
In Raquidan
v Canada (Minister of
Citizenship and Immigration), 2009 FC 237, Justice Michael Kelen contrasted
the case before him to the case in Choi, stating at paragraph 31:
In
the case at bar, there is no such clearly unreasonable factor which the visa
officer did not consider and which if the visa officer had considered, would be
compelling in demonstrating that the applicant would likely become economically
established in Canada. I am satisfied that the visa officer’s conclusion was
reasonably open to the visa officer, namely that the points awarded give an
accurate indication of the applicant’s “settlement ability”.
[16]
Similarly
in this case, I find that the factors raised by the applicant are not
compelling circumstances such that the failure to consider them would render
the Officer’s decision unreasonable. The fact that welders are in demand does
not itself warrant substituted evaluation. All the professions in the skilled
worker program are by definition in demand, otherwise Canada would not be seeking
workers for those professions. Furthermore, the applicant had already
established that he had a job offer, which also proved that his skills were “in
demand”. If this alone were sufficient to mandate a positive outcome then
arranged employment would be the only prerequisite to permanent residence under
this class.
[17]
Regarding
the applicant’s submissions about his language skills, the applicant contends
that the points system for language was to be changed, and under the proposed
changes, tradespeople would be held to a lower standard than professionals
because high language proficiency is not necessary for those jobs. However,
the Backgrounder issued by the respondent states:
CIC
will consult on increasing the maximum points awarded for proficiency in the
first official language from 16 to 20, and on establishing minimum language
requirements, depending on the immigrant’s occupational skill level. For
example, managers or professionals would have a different requirement from
tradespeople.
[18]
Thus,
the proposal is actually to raise the standards for language
proficiency, at least for some professions, and imposing a minimum language
requirement for trades. At best this change would have no effect on
applications like the one at issue in this case. Therefore, the failure of the
Officer to explicitly address this submission does not render her decision
unreasonable.
[19]
Finally,
insofar as the fact that the applicant was eligible to take the Red Seal
certification, the facts before the Officer were simply that. There was no
evidence that he had taken it.
[20]
I
also agree with the respondent that the Officer’s assessment of the applicant’s
work experience was reasonable. Letters submitted to prove past work
experience are clearly required to include “full details of your main responsibilities
and duties in each position.” The applicant was aware of the necessary content
for these letters and thus, as the respondent submits, he submitted deficient
letters “at his own peril.” There is therefore no basis for the Court to
intervene.
Issue 2: Did the Officer
fetter her discretion?
[21]
I am
not persuaded by the applicant that the Officer fettered her discretion, as she
did not decide that any factor for which points were awarded under subsection
76(1)(a) could not be considered again under subsection 76(3).
[22]
It
is helpful to reproduce the wording of subsection 76(3):
|
Circumstances for officer's substituted evaluation
76.
(3) Whether or not the skilled worker has been awarded the minimum number of
required points referred to in subsection (2), an officer may substitute for
the criteria set out in paragraph (1)(a) their evaluation of the likelihood
of the ability of the skilled worker to become economically established in
Canada if the number of points awarded is not a sufficient indicator of
whether the skilled worker may become economically established in Canada.
|
Substitution de l’appréciation de
l’agent à la grille
76. (3) Si le nombre de points obtenu par
un travailleur qualifié — que celui-ci obtienne ou non le nombre minimum de points
visé au paragraphe (2) — n’est pas un indicateur suffisant de l’aptitude de
ce travailleur qualifié à réussir son établissement économique au Canada,
l’agent peut substituer son appréciation aux critères prévus à l’alinéa
(1)a).
|
[23]
I
agree with the applicant that the legislation permits the officer to look at
the totality of the circumstances, including those that were previously assessed
under the points system. Thus, substituted evaluation is warranted when the
points an applicant receives under subsection 76(1)(a) do not accurately
reflect whether he or she will become economically established in Canada. However, as the
respondent submits, the Officer did not state that she was prohibited from
considering those factors for which points were awarded, but rather she
reasonably found that there was nothing that was not captured by the
applicant’s point score to show that he would become economically established
in Canada. In essence, the
factual foundation for the argument that the Officer fettered her discretion
does not exist.
[24]
The
cases relied upon by the applicant, which found fettering of discretion, are
not therefore applicable to this case, as the Officer considered all the
factors “whether or not” they had already been awarded points.
[25]
The
application for judicial review is dismissed.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review be and is hereby dismissed. No question for certification has been
proposed and none arises.
"Donald
J. Rennie"
Email this Content