Docket: IMM-2862-11
Citation: 2012 FC 87
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, January 20, 2012
PRESENT:
The Honourable Mr. Justice Shore
BETWEEN:
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GRIGALIUNAS, SARUNAS
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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
matter centres on the following finding by the Federal Court of Appeal in Canada
(Minister of Citizenship and Immigration) v Kurukkal, 2010 FCA 230:
[3] . . . However, in our view, a
definitive list of the specific circumstances in which a decision-maker has
such discretion to reconsider is neither necessary nor advisable.
. . .
[5] The judge directed the
immigration officer to consider the new evidence and to decide what, if any,
weight should be attributed to it. In our view, that direction was improper.
While the judge correctly concluded that the principle of functus officio
does not bar a reconsideration of the negative section 25 determination, the
immigration officer’s obligation, at this stage, is to consider, taking into
account all relevant circumstances, whether to exercise the discretion to
reconsider. [Emphasis added.]
II. Judicial procedure
[2]
This
is an application for judicial review of a decision of an immigration officer dated
March 2, 2011, rejecting
an application for reconsideration of a decision dated January 7, 2011, refusing
the applicant’s application for permanent residence in Canada as a skilled
worker.
III. Facts
[3]
The application
for permanent residence in the skilled worker class by Sarunas Grigaliunas,
a college professor, was received by the Canadian Embassy in Warsaw on November
23, 2010.
[4]
On January
7, 2011, the immigration officer refused the application for permanent
residence on the ground that the applicant had obtained only 65 of the 67 minimum
number of points needed to meet the requirements under the skilled workers class.
The officer found that the
applicant would be unable to become economically established in Canada.
[5]
On February 23, 2011,
the applicant sent a detailed application for reconsideration of the decision
rendered regarding his case, directing the immigration officer to use substituted
evaluation in accordance with subsection 76(3) of the Immigration and Refugee
Protection Regulations,
SOR/2002-227 (Regulations).
[6]
In support
of the application for reconsideration, the applicant attached three documents
that had previously been submitted and a new document dated February 2, 2011.
[7]
In an e-mail dated
March 2, 2011, the immigration officer rejected the application for
reconsideration.
IV. Decision under review
[8]
The
immigration officer rejected
the application
for reconsideration in the following termination e‑mail dated March 2,
2011:
[translation]
Your
application for permanent residence in Canada was carefully and sympathetically
evaluated on the basis of the information available in your file at the time of
the decision. I was of the opinion that the points allocated were an accurate
reflection of your ability to become economically established in Canada, and therefore
found that the application for substituted evaluation was unjustified. The
decision is final and will not be reconsidered.
The
detailed reasons for the rejection were provided to you in our letter dated
January 7, 2011, which fully concluded your file. The documents
received after that decision were not and will not be taken into consideration.
(Tribunal
Record (TR) at page 1).
V. Issue
[9]
Is the decision rejecting
the reconsideration of the application for substituted evaluation by the
immigration officer reasonable under the circumstances?
VI. Relevant statutory
provisions
[10]
The relevant provisions
of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA) are as
follows:
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Act includes regulations
2. (2) Unless
otherwise indicated, references in this Act to “this Act” include regulations
made under it.
Application before entering Canada
11. (1) A foreign national must, before entering Canada,
apply to an officer for a visa or for any other document required by the
regulations. The visa or document may be issued if, following an examination,
the officer is satisfied that the foreign national is not inadmissible and
meets the requirements of this Act.
Economic immigration
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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Terminologie
2.
(2) Sauf disposition contraire de la présente loi, toute mention de
celle-ci vaut également mention des règlements pris sous son régime.
Visa et documents
11. (1) L’étranger doit, préalablement à son entrée au Canada,
demander à l’agent les visa et autres documents requis par règlement. L’agent
peut les délivrer sur preuve, à la suite d’un contrôle, que l’étranger n’est
pas interdit de territoire et se conforme à la présente loi.
Immigration économique
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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[11]
The relevant provisions
of the Regulations are as follows:
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Class
75. (1) For the purposes of subsection 12(2) of the Act,
the federal skilled worker class is hereby prescribed as a class of persons
who are skilled workers and who may become permanent residents on the basis
of their ability to become economically established in Canada and who intend
to reside in a province other than the Province of Quebec.
Selection criteria
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).
Number of points
(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.
Circumstances for officer's substituted
evaluation
(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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Catégorie
75. (1) Pour l’application du paragraphe 12(2) de la Loi, la
catégorie des travailleurs qualifiés (fédéral) est une catégorie
réglementaire de personnes qui peuvent devenir résidents permanents du fait
de leur capacité à réussir leur établissement économique au Canada, qui sont
des travailleurs qualifiés et qui cherchent à s’établir dans une province
autre que le Québec.
Critères
de sélection
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).
Nombre de points
(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.
Substitution de l’appréciation de
l’agent à la grille
(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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VII. Position of the parties
[12]
The
applicant makes a two-part argument that the immigration officer erred by
refusing to, first, exercise his discretion pursuant to subsection 76(3) of
the Regulations and, second, consider the new evidence submitted to evaluate
the application of his discretion.
[13]
Regarding
the immigration officer’s exercise of discretion, the applicant argues that the
immigration officer should have taken into account his substantial fund as a
more accurate ground for his ability to become economically established in
Canada.
[14]
With respect to the
second argument, the applicant contends that the immigration officer refused to
consider exercising his discretion because he refused to take into account the
new document submitted with the application for reconsideration. He was not able
to then properly consider the possibility of exercising his discretion. The
applicant claims that this was an error of procedural fairness.
[15]
The respondent
submits that the immigration officer was not required to reconsider. In fact,
he considered the possibility of exercising his discretion, but decided not to
do so. As such, an officer has the power to exercise his discretion, but is not
required to do so. The reasons for his refusal were recorded in his notes.
Furthermore, he states that the applicant failed to submit relevant documents in
his application for reconsideration.
[16]
The respondent claims
that, since the legislative amendment to subsection 76(3) of the
Regulations, officers cannot exercise their discretion to consider an
applicant’s settlement funds. According to a line of authority from the Court, exercising
the power of substituted evaluation cannot be limited to the criteria set out
in paragraph 76(1)(a), that is, the points awarded for the various
factors.
VIII. Analysis
[17]
According to
Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, it is important to show
deference to discretion.
[49] . . . In short, deference
requires respect for the legislative choices to leave some matters in the hands
of administrative decision makers, for the processes and determinations that
draw on particular expertise and experiences, and for the different roles of
the courts and administrative bodies within the Canadian constitutional system.
[18]
First, an immigration
officer is not obligated to reconsider an application for permanent residence.
[19]
The Federal Court of
Appeal enacted this principle in Kurukkal, above:
[5] The judge directed the
immigration officer to consider the new evidence and to decide what, if any,
weight should be attributed to it. In our view, that direction was improper.
While the judge correctly concluded that the principle of functus officio
does not bar a reconsideration of the negative section 25 determination, the
immigration officer’s obligation, at this stage, is to consider, taking into
account all relevant circumstances, whether to exercise the discretion to
reconsider. [Emphasis added.]
[20]
In this case, the
immigration officer’s notes, as they appear in the CAIPS, are as follows:
APPLICANT REQUESTS RECONSIDERATION AND
USE OF SUBSTITUTED EVALUATION. NO EVIDENCE THAT FAILED TO CONSIDER DOCS
SUBMITTED OR CONSIDERED IRRELEVANT EVIDENCE. AS I WAS SATISFIED THAT
POINTS AWARDED ACCURATELY REFLECTED APPLICANT’S ABILITY TO ECONOMICALLY
ESTABLISH USE OF SUBSTITUTED EVALUATION WAS NOT WARRANTED. NO GROUNDS FOR
RECONSIDERATION. NO RECONSIDERATION LTR SENT BY E-MAIL. COPY ON FILE. [Emphasis
added.]
(Applicant’s Record (AR) at page 69).
[21]
The
immigration officer therefore clearly considered the possibility of exercising
his discretion. The reasons are intelligible and transparent. With respect to the new evidence, after
making the reasonable decision to not reconsider the file, it was open to him
to not consider it.
[22]
Second, substituted
evaluation is an act that is dependent upon the officer’s discretion:
[12] A number of cases
have held that officers are not under a duty to provide reasons for their
decision not to exercise their discretion to apply a substituted evaluation
under s. 76(3): Yan v Canada (Minister of Citizenship and Immigration),
2003 FCT 510, at para. 18; Poblano v Canada (Minister of Citizenship and
Immigration), 2005 FC 1167, at para. 7; and Lackhee v Canada (Minister
of Citizenship and Immigration), 2008 FC 1270, at paras. 12-13.
(Marr
v Canada (Minister of Citizenship and Immigration), 2011 FC 367).
[23]
It is important to
focus on the legislative amendment made to subsection 76(3) of the Regulations with
respect to an immigration officer’s exercise of discretion, which specifies the
following: “an
officer may substitute for the criteria set out in paragraph (1)(a)
their evaluation”. [Emphasis added.]
[24]
Paragraph 76(1)(a)
refers directly to the awarding of points according to various criteria. Some
see, further to this amendment, that immigration officers cannot use substituted
evaluation on the basis of an applicant’s financial resources as a reflection
of their ability to become economically established, a factor set out in
paragraph 76(1)(b).
[25]
The Court’s reasoning
in Xu v Canada (Minister of Citizenship and Immigration), 2010 FC 418, is
as follows:
[32] In my opinion, for
this Court to import the requirement that these funds must be considered
by an officer is to overstep the proper role of the Court. I read section
76(3) of the Regulations as not requiring consideration of the settlement funds
available to the applicant; however, that is not to say that an officer cannot
consider the applicant’s settlement funds. [Emphasis in original.]
[26]
In Xu,
above, commenting on Lackhee v Canada (Minister of Citizenship and
Immigration), 2008 FC 1270, 337 FTR 299, in which the Court allowed the
judicial review because the immigration officer had failed to consider a change
in the applicant’s funds, the Court pursued its reasoning as follows:
[36] What Lackhee
and Roberts establish is that if an applicant puts forward a case as to
why his or her settlement funds render the point calculation not indicative of
the likelihood of economic establishment, then the officer should be open to
considering it.
[27]
Furthermore,
Manual OP 6: “Federal Skilled Workers”, a reference for immigration officers, is
consistent with this view:
13.3. Substituted evaluation
R76(3) makes possible substituted
evaluation by an officer. This authority may be used if an officer
believes the point total is not a sufficient indicator of whether or not the
applicant may become economically established in Canada.
Substituted evaluation is to be
considered on a case-by-case basis. The scope of what an officer might
consider as relevant cannot be limited by a prescribed list of factors to be
used in support of exercising substituted evaluation. There are any number and
combination of considerations that
an officer might cite as being pertinent
to assessing, as per the wording of R76(3): “. . . the likelihood of the
ability of the skilled worker to become economically established in
Canada. . .
.” [Emphasis added.]
[28]
An immigration
officer may therefore exercise substituted evaluation in light of an
applicant’s funds, but at his or her discretion. Available funds are only one
of numerous relevant factors. Immigration officers are in the best position to
weigh this factor among others according to the particular circumstances of the
case.
[29]
In this
case, the immigration officer unequivocally admitted that he had considered the
evidence submitted to the file with respect to the applicant’s financial
situation. It must also be noted that the purpose of the applicant’s
application for reconsideration was clearly to bring the applicant’s funds to
the attention of the officer again, even though this information had already been
the subject of an initial analysis:
[translation]
Upon
reading the letter of refusal received on January 28, 2011, the lack of
reference to the applicant’s financial situation is evident. There is reason to
believe that the immigration officer placed no weight on any evidence provided
by the applicant in support of his settlement funds in the approximate amount
of $132,020 CAD . . . .
(Application for Reconsideration, AR at page 74).
IX. Conclusion
[30]
The immigration
officer’s decision is reasonable. Therefore, for reasons stated earlier, the
application for judicial review is dismissed.
JUDGMENT
THE COURT
ORDERS the
dismissal of the applicant’s application for judicial review. No question of
general importance arises for certification.
“Michel
M.J. Shore”
Certified
true translation
Janine
Anderson, Translator
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