Docket: IMM-6002-11
Citation: 2012 FC 466
BETWEEN:
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OMER EL-SOURI
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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
PHELAN J.
I. INTRODUCTION
[1]
The
Applicant, a senior consular officer at the Canadian Embassy in Riyadh, was
denied a skilled worker visa to Canada. He seeks judicial
review of a decision of a second visa officer (2nd Officer) who
did not concur with a first visa officer’s (1st Officer) decision to
grant the visa application.
II. BACKGROUND
[2]
In
2007 the Applicant applied to immigrate to Canada under the
“Skilled Worker” category. He did not secure sufficient points to automatically
qualify for admission but after an interview by the 1st Officer,
that Officer made a positive recommendation for substituted evaluation in
accordance with s. 76(3) of the Immigration and Refugee Protection
Regulations (Regulations).
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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.
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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).
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[3]
In
accordance with the substituted evaluation method, s. 76(4) of the Regulations
required that the 1st Officer’s evaluation be concurred with by
another officer – the 2nd Officer.
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76. (4) An evaluation made
under subsection (3) requires the concurrence of a second officer.
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76. (4) Toute décision de
l’agent au titre du paragraphe (3) doit être confirmée par un autre agent.
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[4]
The
major area of concern was the Applicant’s business plan and the amount of
capital he was prepared or able to invest. The Applicant’s plan was to establish
a business that would assist students coming from Saudi Arabia and other
Gulf countries by arranging for their accommodation and transportation as well
as by meeting them at the Halifax airport. The Applicant
had $50,000 to invest.
[5]
The
1st Officer, while concluding that the business plan was reasonable,
observed that the funds available were “a bit low”. Nevertheless he concluded
that the Applicant could economically establish himself.
[6]
The
2nd Officer, who did not interview the Applicant but reviewed the
file notes and documents and spoke with the 1st Officer, reached a
different conclusion. The 2nd Officer was not convinced that the
Applicant could establish himself in Canada. He was concerned that
the Applicant had no experience as an entrepreneur or in running a business,
that the funds were not sufficient and that if the business failed, at age 62,
the Applicant would be able to establish himself. The 2nd Officer
was aware that the Applicant’s wife was trained as a teacher and that his
daughter was established in Canada.
[7]
As
a result of the 2nd Officer’s refusal to concur, the Applicant’s
visa request was denied.
III. ANALYSIS
[8]
The
Applicant raises (although differently phrased) two issues:
·
Was
there a denial of natural justice in that there was a breach of the principle
of “he who hears must decide” or that the Applicant was denied an opportunity
to address the 2nd Officer’s concerns?
·
Was
the 2nd Officer’s decision reasonable given his failure to consider
the relevant evidence?
[9]
It
is well established that the first issue attracts a standard of review of
correctness (see Canada ( Citizenship and Immigration) v Khosa, 2009 SCC
12, [2009] 1 S.C.R. 339, paras 43 and 50). It is also well established that on the
second issue the standard is reasonableness (see Malik v Canada (Minister of
Citizenship and Immigration), 2009 FC 1283, para 22).
A. Natural
Justice
[10]
While
the Respondent tries to tie a link between s. 87(4), which addresses the issue
of concurrence in the context of the provincial nominee class, and the s. 76(4)
concurrence provision, those two provisions serve very different purposes and
do not assist in the analysis of this first issue.
[11]
Fairness
must be assessed in the context of the specific case. Section 76(4) neither
precludes nor requires the 2nd Officer to conduct an interview or to
otherwise follow all the steps of the 1st Officer.
[12]
As
Mainville J. (as he then was) concluded in Malik, above, at paragraph
26, the procedural safeguards in a skilled worker case, where no established
rights are diminished, are not extensive. This is particularly so where the
Applicant knew that he had not met the required point threshold and was seeking
an alternate and discretionary assessment.
26 In this case, the Applicant holds no
unqualified right to enter and to remain in Canada: Chiarelli, ibid, at pages
733-34. He applied for permanent residence under the federal skilled worker
class and the process under the Immigration and Refugee Protection Act
and the Regulations provides for an assessment of clear and specific criteria
under a points system leaving little discretion to visa officers and which does
not normally require an interview or other hearing with applicants. The nature
of the regulatory scheme, the role of the decision of the visa officer in the
overall scheme, and the choice of procedure made do not therefore suggest the
need for strong procedural safeguards beyond what is already provided for in
the legislation, save the procedural safeguard concerning proper information to
applicants as to the criteria used and the documentation required to properly
assess their applications. Though the decision to grant or not an application
for permanent residence under the federal skilled worker class is obviously
important to the individual affected, it is not such as to affect the
fundamental freedoms or other fundamental rights of an applicant, such as a
criminal proceeding or, in the immigration context, a deportation proceeding
might have. In addition, no undertakings are made to applicants as to an
interview or as to additional notification if documentation is missing or
insufficient, thus considerably limiting expectations of applicants in such
matters.
[13]
As
held in Silion v Canada (Minister of
Citizenship and Immigration) (1999), 173 FTR 302 at para 11, there is
no entitlement to a personal interview. In this case, the 2nd
Officer had the benefit of the notes of the interview conducted by the 1st
Officer.
[14]
With
respect to the principle of “he who hears must decide”, in fact the final
decision maker, the 2nd Officer, did hear the matter through his
review of the file, the documents and the notes. The process and procedures
followed are consistent with the role a “concurring” officer is to play in this
process.
[15]
This
was not a case involving concerns about credibility or an instance of
conflicting evidence which might require a different process; this was a case
regarding the sufficiency of the Applicant’s business plan, the adequacy of
capital and an assessment of the Applicant’s ability to establish himself. As
such, there was no “fairness” requirement for an interview. This conclusion is
consistent with the reasoning of Justice Mosley in Hassani v Canada (Minister of
Citizenship and Immigration), 2006 FC 1283, at para 24:
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.
B. Reasonableness
[16]
The
Applicant’s challenge to the merits of the 2nd Officer’s decision is
that the Officer failed to consider all the relevant evidence. In particular,
the allegation is that the 2nd Officer did not consider the
similarity between the Applicant’s consular duties and the proposed business,
the establishment of the Applicant’s daughter in Canada and the Applicant’s
ability to live with her or the Applicant’s wife’s experience as a teacher.
[17]
There
is no evidence that the 2nd Officer ignored evidence; he had the
complete file at his disposal. Moreover, the file raised the very concerns
which influenced the 2nd Officer including an unstructured business
plan devoid of the usual financial analysis for a start-up business. The
Applicant failed to file any form of budget, cash flow analysis or market plan.
This was open to him to do so. The 2nd Officer is not required to
demand such information.
[18]
As
with the first issue, the real problem was with the sufficiency of the business
plan. On these facts it was open to the 2nd Officer to reach the
conclusion he did.
[19]
This
case perhaps illustrates the problem with a “reasonableness” standard where it
is reasonable to reach opposite conclusions, as occurred between the 1st
Officer and the 2nd Officer. However, that result is clearly
contemplated by the s. 76(4) requirement for concurrence.
IV. CONCLUSION
[20]
This
judicial review will be dismissed. The parties requested that the Court defer
making a final order for ten (10) days after the release of these Reasons in
order for them to make submissions on a certified question. Each party shall
file their submissions, if any, no later than Monday, April 30, 2012.
“Michael
L. Phelan”
Ottawa, Ontario
April 20, 2012
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