Date: 20090108
Docket: IMM-734-08
Citation: 2009 FC 18
Montréal, Quebec, January 8, 2009
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
NIGEL
BUDHOORAM
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of a visa
officer (the Officer) dated December 20, 2007, wherein the Officer found that
the applicant did not meet the requirements for permanent residence in a
skilled worker category and declined to substitute her own evaluation of the applicant's
ability to become economically established in Canada.
II. The facts
[2]
All
citizens of Trinidad, the applicant, his wife and his two children have lived
in Canada from March
2003 until April 2007.
[3]
The
applicant originally came to Canada in March 2003 and filed a refugee claim,
which was refused on February 9, 2004. He subsequently remained in Canada on
work permits until he and his family returned to Trinidad in April
2007 before receiving an evaluation on a pre-removal risk assessment.
[4]
From
November 2004 to April 2007, the applicant was employed by Siltech Corporation and
received on February 21, 2006 from this employer an Offer of Employment as a chemical
plant operator.
[5]
On
March 22, 2006, the applicant submitted an application to Service Canada to have
this job offer approved as arranged employment pursuant to the Immigration
and Refugee Protection Regulations, SOR/2002-227 (Regulations), paragraph
82(2)(c). On April 27, 2006 the Foreign Worker Program granted a positive
Arranged Employment Opinion.
[6]
The
applicant then applied for permanent residence in Canada as a skilled
worker with arranged employment. He also requested consideration under
subsection 76(3) of the Regulations, the “substituted evaluation”, a
discretionary power granted under the Regulations.
[7]
Following
the applicant’s personal interview conducted in Trinidad, on April 8, 2007,
further submissions were sent to the Canadian High Commission in Port of Spain
(Canadian High Commission) reiterating the request that subsection 76(3) of the
Regulations be applied.
[8]
The
Canadian High Commission advised the applicant that he did not meet the
requirements for immigration to Canada. The file was, however,
reopened and reviewed allowing the applicant to submit an updated letter of
employment.
[9]
The
applicant had a subsequent interview at the Canadian High Commission, whereby
the Officer allegedly focused on the applicant’s finances and more particularly
the money he would have received from his mother.
[10]
On
December 20, 2007, the applicant’s application for permanent residence was
refused as it was determined that he did not meet the requirements for
immigration to Canada.
III. Issues
[11]
Did
the Officer err in a reviewable manner in failing to consider the applicant's
request for the exercise of positive discretion or positive substituted evaluation, or to record her consideration of
same?
IV. Analysis
Standard
of Review
[12]
The
jurisprudence of this Court has recognized that the decision of an immigration
officer in the assessment of an application for permanent residence under the
skilled worker class involves an exercise of discretion and should therefore be
afforded considerable deference. And to the extent that such an assessment is
carried out in good faith, in accordance with the principle of natural justice,
and without relying on irrelevant or extraneous considerations, the decision is
reviewable on the standard of unreasonableness (Dunsmuir v. New
Brunswick,
2008 SCC 9, para. 62).
Substituted Evaluation – Pertinent
Legislation
[13]
Subsection
76(3) of the Regulations makes possible “substitution of evaluation” by an
officer. This power permits the officer to override the selection system when he
or she believes that the total number of points awarded is not a sufficient
indicator of whether or not the applicant may become established in Canada.
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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).
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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).
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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.
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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.
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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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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) — ne reflète pas 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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[14]
The
discretion under subsection 76(3) of the Regulations is clearly exceptional to
cases where the points awarded are not a sufficient indicator of whether the
skilled worker will become economically established. This decision is entitled
to deference and the fact that that the applicant or the Court would have
weighed the factors differently is not a ground for judicial review (Suresh
v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, paras.
34-39; Poblano v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1167, paras. 4-5, 8).
[15]
The
applicant failed to obtain the points for selection as a skilled worker. He
requested a substituted evaluation, arguing that the points received were not a
sufficient indicator of whether he might become economically established in Canada. A
substituted evaluation is a discretionary decision that should be accorded a
high degree of deference. Does the applicant’s disagreement with the Officer’s
substituted evaluation indicate any reviewable error?
[16]
In this case, the applicant
contends that the rational provided to the Officer constituted good reasons for
the latter to exercise her discretion in the applicant’s favor. The Officer,
however, summarily dismissed the applicant’s request for substituted
evaluation, without providing a reasonable assessment.
[17]
At
the applicant’s interview with the Officer on November 22, 2007, the latter explained
to the applicant that he had been awarded insufficient points for immigration
to Canada. Although he was then
given an opportunity to refute the points awarded, he stated that he agreed
with the points awarded.
[18]
The Officer
informed the applicant about certain concerns he had, such as the fact that the
applicant’s mother continued to support him financially. The information and
explanations provided by the applicant did not satisfy the Officer that he had
or would be able to become economically established in Canada. As a result, the Officer
did not substitute his evaluation pursuant to subsection 76(3) of the
Regulations.
Accuracy of Points Calculated for
Experience
[19]
The
applicant had previously, in two visa applications, stated that he was a
driver/salesman for his father’s bakery business. On the subsequent applicant’s
application for a permanent visa skilled worker, he requested however to be
assessed as a chemical plant operator and did not identify any other
occupations under which he wished to be assessed.
[20]
In
2007, the applicant informed another officer that he had worked as a manager
for his father’s bakery business, and presented a letter from his father to
that effect. This officer found that the new information conflicted with the
previous information given by the applicant on two occasions (1999 and 2001) on
his visa applications in which he had stated he was a driver/salesman for his
father’s business.
[21]
This
other officer refused the applicant’s skilled worker application on June 7,
2007, but the application was subsequently reopened for reconsideration by an Officer
regarding substituted evaluation pursuant to subsection 76(3) of the Regulations.
In the request for reopening the applicant’s application, there was no mention
about the points awarded for experience and no request was made for a
re-examination of the points for experience.
[22]
At
the applicant’s interview with the Officer on November 22, 2007, the selection
grid was reviewed with the applicant based on the letter of refusal of the
other officer. The applicant did not at any time contradict the points awarded,
including the points for experience and stated that he accepted the points
awarded.
[23]
The
applicant was unable to establish that he ever worked as a retail manager.
Further, the applicant did not identify that occupation on his application form
as required under subsections 80(5) and 80(6) of the Regulations reading as
follows:
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A
skilled worker must specify in their application for a permanent resident
visa the four-digit code of the National Occupational Classification
that corresponds to each of the occupations engaged in by the applicant and
that constitutes the skilled worker's work experience.
An officer is not required to consider occupations that have not been
specified in the application.
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Le travailleur qualifié indique dans sa demande de visa de
résident permanent, à l’aide du code à quatre chiffres de la Classification
nationale des professions, toutes les professions qu’il a exercées et qui
correspondent à son expérience de travail.
L’agent n’a pas à tenir compte des professions qui ne sont
pas mentionnées dans la demande.
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[24]
Given
that the applicant had previously stated in two visa applications that he was a
driver/salesman in his father’s bakery business from 1991/1992 to 2001, it was
open to the Officer to give no weight to the applicant’s statement and
self-serving letter that he was a manager in his father’s business since 1992.
[25]
Further,
the applicant did not state in his skilled worker application that he had been
a manager, nor did he request assessment in this occupation. In addition, at
his interview the applicant stated that he had not provided an updated IMM8
application form as his counsel had told him it was not necessary since the
only thing that had changed was his address.
[26]
Moreover,
when the applicant’s counsel requested to reopen the first officer’s refusal,
she did not mention anything regarding the points that had been awarded for
experiences nor did she request any reconsideration of these points.
[27]
Given
theses facts, which indicated that the applicant had not worked as a manager,
it was open to the Officer to award the applicant no additional points for
experience as a manager.
Applicant’s Difficulty to Become
Financially Independent
[28]
It
was also open to the Officer to find that the applicant might have
substantial difficulty becoming financially independent - considering the
magnitude of his financial responsibilities, the significant support he has
received from his mother and the limitations he and his wife will more than
likely face allowing for the fact that they do not have post-secondary
education.
[29]
The
applicant must establish his entitlement to a visa. He must meet the selection
criteria as a member of the skilled worker class at the time of his application
is made and at the time the visa is issued. He was unable to meet his onus and
as a result he obtained only 63 points; the Officer was not satisfied that
points allotted were an inaccurate reflection of the applicant’s ability to
become established.
Positive Substituted
Evaluation Not Appropriate
[30]
Subsection
76(3) of the Regulations makes possible “substitution of evaluation” by an
officer, and permits him to override the selection system where he or she
believes the point total is not a sufficient indicator of whether or not the
applicant may become economically established in Canada. In the
present case, the Officer did consider the applicant’s request and reasons for
a substituted evaluation, but felt that the points reflect the applicant’s
capacity to establish himself in Canada.
[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.
V. Conclusion
[32]
For
all these reasons, the Court concludes that the visa officer did not commit a
reviewable error in the exercise of his discretion and in the initial
assessment of the applicant’s application. His assessment
appears to have been carried out in good faith, in accordance with the
principle of natural justice, and without relying on irrelevant or extraneous
considerations. It therefore
deserves the deference of the Court.
[33]
Considering
the circumstances of this case, the Court finds that the impugned decision
falls within a range of possible and acceptable outcomes which are defensible in
respect of the facts and the law and is therefore reasonable. As a consequence,
the judicial review application will be dismissed.
[34]
The
Court
agrees with the parties that there is no serious question of general importance to certify.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application is dismissed.
“Maurice E. Lagacé”
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