Date: 20120626
Docket: IMM-7196-11
Citation: 2012 FC 814
Ottawa, Ontario, June 26, 2012
PRESENT: The Honourable Madam
Justice Snider
BETWEEN:
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GURPINDER SINGH
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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
[1]
The Applicant, Mr. Gurpinder Singh, is a citizen of India who wishes to immigrate to Canada. On July 20, 2009, he applied for a permanent resident visa under the
“federal skilled worker class” as described in the Immigration and Refugee
Protection Regulations, SOR/2002‑227 [Regulations].
[2]
The Applicant is trained as a diesel mechanic and applied
on the basis that he could become economically established in Canada as someone
who meets the criteria of the National Occupational Classification (NOC)
category 7321 (Automotive Service Technicians, Truck and Bus Mechanics and
Mechanical Repairers). The Applicant had a job offer in Canada, which had been confirmed by Service Canada in a positive
Arranged Employment Opinion (AEO).
[3]
The application was assessed by an immigration officer
(Officer) of the Canadian High Commission in New
Delhi, India. The Applicant was awarded the following points:
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POINTS
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MAXIMUM
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AGE
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10
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10
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EDUCATION
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12
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25
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LANGUAGE PROFICIENCY
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05
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24
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EXPERIENCE
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21
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21
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ARRANGED EMPLOYMENT
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00
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10
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ADAPTABILITY
Spouse’s
Education
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04
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10
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TOTAL
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52
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100
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[4]
In a decision dated August 25, 2011, the Officer refused
the Applicant’s application because he had failed to earn the minimum 67 points
needed to qualify for a permanent resident visa as a skilled worker.
[5]
The Applicant seeks judicial review of the Officer’s
decision. During his oral submissions, the Applicant focussed on one issue.
Specifically, did the Officer err in assessing the Applicant’s Offer of
Arranged Employment, thereby under-assessing the points in both the
Adaptability and Arranged Employment categories?
[6]
The Officer’s decision is reviewable on a standard of
reasonableness. As taught by the Supreme Court, in Dunsmuir v New
Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190, “reasonableness is
concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process”, as well as with “whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law”. In this case, I believe that the
decision does not meet this standard and will overturn it.
[7]
The Officer’s decision and reasons, as reflected in the
Computer Assisted Immigration Processing System notes, show a link between the
Applicant’s language skills and the arranged employment. Specifically, the
Officer concluded that “I am not satisfied that the applicant meets the
language requirement that will allow him to perform and carry out the duties as
per the employment offer”. In my view, this conclusion is not supported by the
evidence.
[8]
The initial employment offer does not specify any language
requirement. The job description states as follows:
3. THE EMPLOYEE
agrees to carry out the following tasks as a Diesel Mechanic. Install,
maintain, diagnose faults and repair faults in cars, trucks, caravans,
trailers. Specifically, Adjust, repair or replace parts and components of
commercial transport truck system, including engine and drive train, fuel, air
brakes, steering and hydraulic, electric and electronic systems.
[Emphasis in original]
[9]
The AEO, in spite of this offer, specifies that the
Applicant must meet the language requirements of oral and written English,
although I observe that no particular level of language skill was identified.
In a letter dated February 16, 2011 (the Fairness Letter), the Applicant was
advised as follows:
In support of your
application for permanent residence in Canada, you
submitted a letter of employment offer from . . . . This job requires you to
speak and write English at work. Your IELTS [language test] results show that
you only have a basic command of the English language. Your overall band score
indicates a result of 4.5 and I note your result for speaking is 5.5 and result
for writing is 3.5. I have concerns regarding your ability to fulfill the
responsibilities as required by your job offer.
[10]
The Fairness Letter reflects two important things. First, the
language test results, while low, do acknowledge that the Applicant has
demonstrated “a basic command of the English language”. Secondly, the Fairness
Letter incorrectly states that the job requires the Applicant to speak and
write English at work; the job offer said nothing of the sort. The only
reference to language skills is contained in the AEO; and, this was not
mentioned in the Fairness Letter at all.
[11]
The Applicant addressed the concerns raised in the Fairness
Letter through a letter from his prospective employer who stated that most of
the employees at the work place speak Punjabi and that “our technicians have
little interaction with customers and are required to communicate mainly with
other employees”.
[12]
I cannot see how this evidence supports the Officer’s
conclusion that the Applicant did not meet the language requirements that would
allow him to perform the job duties. The Officer appears to have effectively
ignored this response letter. The Officer’s finding is not, in my view, one
that falls within the range of possible, acceptable outcomes
which are defensible in respect of the facts and law.
[13]
A different outcome for Arranged Employment could have
resulted in an additional 10 points under that assessment category and an
additional 5 points for Adaptability. Accordingly, it appears that the outcome
could have been different if the Officer had carried out a reasonable
assessment of the employment offer and subsequent communications.
[14]
I will, accordingly, allow this application for judicial
review. I point out that I am in no way directing any particular outcome for
the Applicant. A different immigration officer may, in conducting his or her
assessment, reject or accept the application based on the evidence before that
officer.
[15]
Neither party proposes a question for certification. None
will be certified.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1.
the application for judicial review is allowed, the
decision quashed and the matter sent back for re-determination by a different
immigration officer; and
2.
no question of general importance is certified.
“Judith A. Snider”
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