Date: 20090408
Docket: IMM-3798-08
Citation: 2009 FC 355
Ottawa, Ontario, April 8, 2009
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
PATRICK
LESLIE HEALEY
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
[1]
This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial
review of a decision of a Designated Immigration Officer (Officer) of the
Canadian High Commission in London, United Kingdom, dated June 24, 2008
(Decision), refusing the Applicant's application for permanent residence in
Canada under the federal skilled worker category.
BACKGROUND
[2]
The
Applicant is a citizen of the United Kingdom. At the time of his
application he was 48 years old and married with two children. The Applicant
has no French speaking ability.
[3]
The
Applicant attended six years of elementary school, five years of secondary
school and then attended Thurrock Business College between April 1981 and
March 1982, where he received his CPC Management certificate, and Harlow College between June 1997 and
June 1998, where he obtained a certificate in B TEC Management. Between June
2003 and June 2004, he attended Basildon and Thurrock College, where he received a certificate in Carpentry. Since March
2004, the Applicant has been employed by Trinity Construction Services.
[4]
There
was an error made on the Applicant’s application in that two years of college
were not accurately indicated in the educational history boxes on the
application form. The Applicant accidentally wrote “0” instead of “2” in the
box labelled “University/College.”
[5]
On
June 29, 2008, Applicant’s previous counsel contacted the London CHC and
requested a reconsideration of the negative decision, particularly the award of
only 15 points for education. The Applicant felt that 15 years of full-time
study, in conjunction with his two-year certificate, entitled him to enough
points for a successful application. On June 30, 2008, the Officer replied and
stated that the college certificates had been reviewed, but since the Applicant
had completed only 13 years of education, 15 points were appropriate. On July
2, 2008, counsel again wrote to the London CHC to clarify the mistake in the
form but received no response. He again wrote on August 15, 2008 and again
received no response.
DECISION UNDER REVIEW
[6]
The
Officer concluded that the Applicant did not meet the requirements for
immigration to Canada. He relied upon subsection 12(2) of the Act (which states
that 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) and
subsection 75(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227
(Regulations) (which prescribes that the federal skilled worker class is a
class of persons who may become permanent residents on the basis of their
ability to become economically established in Canada).
[7]
The
Officer assessed the Applicant based on the minimum requirements set out in
subsection 75(2) of the Regulations and the criteria set out in subsection
76(1). The criteria included age, education, knowledge of Canada’s official
languages, experience, arranged employment and adaptability. The pass mark is
67 points.
[8]
The
Officer decided that the Applicant had not obtained sufficient points for a
permanent residence visa as a member of the federal skilled worker class. The
following were the points given to the Applicant:
Points
Assessed Maximum
Possible
Age 10 10
Experience 21 21
Arranged Employment 0 10
Education 15 25
Official Language Proficiency 16 24
Adaptability 3 10
-------------------------------------------------------------------------------------------------------------
Total 65 100
[9]
The
Officer concluded that the Applicant had not obtained sufficient points to
satisfy him that the Applicant could become economically established in Canada.
The Officer highlighted subsection 76(3) of the Regulations which permits an
officer to substitute his/her evaluation of the likelihood of an applicant
becoming economically established in Canada if the number of points awarded is
not a sufficient indicator. Subsection 76(4) of the Regulations requires the
concurrence of a second officer. The Officer considered the Applicant’s case
under these subsections and concluded that the points awarded were an accurate
reflection of the likelihood of the Applicant’s ability to become economically
established in Canada. Therefore, his application was not forwarded
to the program manager for consideration.
ISSUES
[10]
The
Applicant raises the following issues on this application:
1)
Did
the Officer properly consider the evidence?
2)
Was
the Applicant provided with sufficient reasons?
3)
Did
the Officer properly consider the request for substituted evaluation?
STATUTORY PROVISIONS
[11]
The
following section of the Act is applicable:
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.
|
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.
|
[12]
The
following provisions of the Regulations are also applicable to these
proceedings:
73. The following definitions apply in this Division,
other than section 87.1.
"educational credential"
Diplôme
"educational
credential" means any diploma, degree or trade or apprenticeship
credential issued on the completion of a program of study or training at an
educational or training institution recognized by the authorities responsible
for registering, accrediting, supervising and regulating such institutions in
the country of issue.
"former Regulations"
ancien règlement
"former
Regulations" has the same meaning as in subsection 316(1).
"restricted occupation"
profession d’accès limité
"restricted
occupation" means an occupation designated as a restricted occupation
by the Minister, taking into account labour market activity on both an area
and a national basis, following consultation with the Department of Human
Resources Development, provincial governments and any other relevant
organizations or institutions.
…
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.
Skilled
workers
(2) A foreign national is a skilled worker if
(a) within the 10 years preceding the date of their application
for a permanent resident visa, they have at least one year of continuous
full-time employment experience, as described in subsection 80(7), or the
equivalent in continuous part-time employment in one or more occupations,
other than a restricted occupation, that are listed in Skill Type 0
Management Occupations or Skill Level A or B of the National Occupational
Classification matrix;
(b) during that period of employment they performed the actions
described in the lead statement for the occupation as set out in the
occupational descriptions of the National Occupational Classification;
and
(c) during that period of employment they performed a substantial
number of the main duties of the occupation as set out in the occupational
descriptions of the National Occupational Classification, including
all of the essential duties.
Minimal requirements
(3) If the foreign national fails to meet the requirements of subsection
(2), the application for a permanent resident visa shall be refused and no
further assessment is required.
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.
Concurrence
(4) An
evaluation made under subsection (3) requires the concurrence of a second
officer.
…
78. (1) The definitions in this
subsection apply in this section.
"full-time"
temps plein
"full-time"
means,
in relation to a program of study leading to an educational credential, at
least 15 hours of instruction per week during the academic year, including
any period of training in the workplace that forms part of the course of
instruction.
"full-time equivalent"
équivalent temps plein
"full-time
equivalent" means, in respect of part-time or accelerated studies,
the period that would have been required to complete those studies on a
full-time basis.
78. (3) For the purposes of subsection (2), points
(a) shall not be awarded cumulatively on the basis of more than
one single educational credential; and
(b) shall be awarded
(i) for the purposes of paragraphs (2)(a) to (d),
subparagraph (2)(e)(i) and paragraph (2)(f), on the basis of
the single educational credential that results in the highest number of
points, and
(ii) for the purposes of subparagraph (2)(e)(ii), on the basis of
the combined educational credentials referred to in that paragraph.
Special
circumstances
(4) For the purposes of subsection (2), if a skilled worker has an
educational credential referred to in paragraph (2)(b), subparagraph
(2)(c)(i) or (ii), (d)(i) or (ii) or (e)(i) or (ii) or
paragraph (2)(f), but not the total number of years of full-time or
full-time equivalent studies required by that paragraph or subparagraph, the
skilled worker shall be awarded the same number of points as the number of
years of completed full-time or full-time equivalent studies set out in the
paragraph or subparagraph.
|
73. Les définitions
qui suivent s’appliquent à la présente section, à l’exception de l’article
87.1.
«ancien règlement»
former Regulations
«ancien
règlement» S’entend au sens du paragraphe 316(1).
«diplôme»
educational credential
«diplôme» Tout
diplôme, certificat de compétence ou certificat d’apprentissage obtenu conséquemment
à la réussite d’un programme d’études ou d’un cours de formation offert par
un établissement d’enseignement ou de formation reconnu par les autorités
chargées d’enregistrer, d’accréditer, de superviser et de réglementer les
établissements d’enseignement dans le pays de délivrance de ce diplôme ou
certificat.
«profession d’accès limité»
restricted occupation
«profession
d’accès limité» Toute profession désignée comme telle par le ministre en
fonction de l’activité sur le marché du travail aux niveaux national et
régional, après consultation du ministère du Développement des ressources
humaines, des gouvernements provinciaux et de toute autre organisation ou
institution compétente.
…
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.
Qualité
(2) Est un travailleur qualifié l’étranger qui satisfait
aux exigences suivantes :
a) il a accumulé au moins une année continue d’expérience
de travail à temps plein au sens du paragraphe 80(7), ou l’équivalent s’il
travaille à temps partiel de façon continue, au cours des dix années qui ont
précédé la date de présentation de la demande de visa de résident permanent,
dans au moins une des professions appartenant aux genre de compétence 0
Gestion ou niveaux de compétences A ou B de la matrice de la Classification
nationale des professions — exception faite des professions d’accès
limité;
b) pendant cette période d’emploi, il a accompli
l’ensemble des tâches figurant dans l’énoncé principal établi pour la
profession dans les descriptions des professions de cette classification;
c) pendant cette période d’emploi, il a exercé une partie
appréciable des fonctions principales de la profession figurant dans les
descriptions des professions de cette classification, notamment toutes les
fonctions essentielles.
Exigences
(3) Si l’étranger ne satisfait pas aux exigences prévues
au paragraphe (2), l’agent met fin à l’examen de la demande de visa de
résident permanent et la refuse.
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) — 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).
Confirmation
(4)
Toute décision de l’agent au titre du paragraphe (3) doit être confirmée par
un autre agent.
…
78. 1) Les définitions qui suivent s’appliquent au présent article.
«équivalent temps plein»
full-time equivalent
«équivalent
temps plein» Par rapport à tel nombre d’années d’études à temps plein,
le nombre d’années d’études à temps partiel ou d’études accélérées qui
auraient été nécessaires pour compléter des études équivalentes.
«temps plein»
full-time
«temps
plein» À l’égard d’un programme d’études qui conduit à
l’obtention d’un diplôme, correspond à quinze heures de cours par semaine
pendant l’année scolaire, et comprend toute période de formation donnée en
milieu de travail et faisant partie du programme.
78. 3) Pour l’application du paragraphe (2), les points
sont accumulés de la façon suivante :
a) ils ne peuvent être additionnés les uns aux autres du
fait que le travailleur qualifié possède plus d’un diplôme;
b) ils sont attribués :
(i) pour l’application des alinéas (2)a) à d),
du sous-alinéa (2)e)(i) et de l’alinéa (2)f), en fonction du
diplôme qui procure le plus de points selon la grille,
(ii) pour l’application du sous-alinéa (2)e)(ii),
en fonction de l’ensemble des diplômes visés à ce sous-alinéa.
Circonstances spéciales
(4) Pour l’application du paragraphe (2), si le
travailleur qualifié est titulaire d’un diplôme visé à l’un des alinéas (2)b),
des sous-alinéas (2)c)(i) et (ii), (2)d)(i) et (ii) et (2)e)(i)
et (ii) ou à l’alinéa (2)f) mais n’a pas accumulé le nombre d’années
d’études à temps plein ou l’équivalent temps plein exigé par l’un de ces
alinéas ou sous-alinéas, il obtient le nombre de points correspondant au
nombre d’années d’études à temps plein — ou leur équivalent temps plein —
mentionné dans ces dispositions.
|
[13]
The
Applicant submits that the determination of points in the education category
are governed by section 78 (2) of the Regulations:
(2) A maximum of 25 points shall be awarded for a skilled
worker's education as follows:
(a) 5 points for a secondary school educational credential;
(b) 12 points for a one-year post-secondary educational
credential, other than a university educational credential, and a total of at
least 12 years of completed full-time or full-time equivalent studies;
(c) 15 points for
(i) a one-year post-secondary educational credential, other than a
university educational credential, and a total of at least 13 years of
completed full-time or full-time equivalent studies, or
(ii) a one-year university educational credential at the bachelor's
level and a total of at least 13 years of completed full-time or full-time
equivalent studies;
(d) 20 points for
(i) a two-year post-secondary educational credential, other than a
university educational credential, and a total of at least 14 years of
completed full-time or full-time equivalent studies, or
(ii) a two-year university educational credential at the bachelor's
level and a total of at least 14 years of completed full-time or full-time
equivalent studies;
(e) 22 points for
(i) a three-year post-secondary educational credential, other than a
university educational credential, and a total of at least 15 years of
completed full-time or full-time equivalent studies, or
(ii) two or more university educational credentials at the bachelor's
level and a total of at least 15 years of completed full-time or full-time
equivalent studies; and
(f) 25 points for a university educational credential at the
master's or doctoral level and a total of at least 17 years of completed
full-time or full-time equivalent studies.
|
(2) Un maximum de 25 points d’appréciation sont attribués
pour les études du travailleur qualifié selon la grille
suivante :
a) 5 points, s’il a obtenu un diplôme d’études
secondaires;
b) 12 points, s’il a obtenu un diplôme postsecondaire —
autre qu’un diplôme universitaire — nécessitant une année d’études et a
accumulé un total d’au moins douze années d’études à temps plein complètes ou
l’équivalent temps plein;
c) 15 points, si, selon le cas :
(i) il a obtenu un diplôme postsecondaire — autre qu’un
diplôme universitaire — nécessitant une année d’études et a accumulé un total
de treize années d’études à temps plein complètes ou l’équivalent temps
plein,
(ii) il a obtenu un diplôme universitaire de premier
cycle nécessitant une année d’études et a accumulé un total d’au moins treize
années d’études à temps plein complètes ou l’équivalent temps plein;
d) 20 points, si, selon le cas :
(i) il a obtenu un diplôme postsecondaire — autre qu’un
diplôme universitaire — nécessitant deux années d’études et a accumulé un
total de quatorze années d’études à temps plein complètes ou l’équivalent
temps plein,
(ii) il a obtenu un diplôme universitaire de premier
cycle nécessitant deux années d’études et a accumulé un total d’au moins
quatorze années d’études à temps plein complètes ou l’équivalent temps plein;
e) 22 points, si, selon le cas :
(i) il a obtenu un diplôme postsecondaire — autre qu’un
diplôme universitaire — nécessitant trois années d’études à temps plein et a
accumulé un total de quinze années d’études à temps plein complètes ou
l’équivalent temps plein,
(ii) il a obtenu au moins deux diplômes universitaires de
premier cycle et a accumulé un total d’au moins quinze années d’études à
temps plein complètes ou l’équivalent temps plein;
f) 25 points, s’il a obtenu un diplôme universitaire de
deuxième ou de troisième cycle et a accumulé un total d’au moins dix-sept
années d’études à temps plein complètes ou l’équivalent temps plein.
|
STANDARD OF REVIEW
[14]
The evidentiary
issue (issue 1) and the consideration of the substituted evaluation (issue 3), have
attracted significant deference, as outlined in Silva v. Canada (Minister of
Citizenship and Immigration), [2007] F.C.J. No. 981 (F.C.) at paragraph
7:
I
adopt the view that the particular expertise of Visa Officers dictates a
deferential approach when reviewing such a decision. The assessment of an
applicant for permanent residence under the Federal Skilled Worker Class and a “substituted
evaluation” under subsection 76(3) are discretionary decisions involving
factual findings that should be given a high degree of deference. Such
decisions should be reviewed on the standard of patent unreasonableness.
[15]
Adequate
reasons (issue 2) is a procedural fairness issue in which the standard of
review is correctness: Suresh v. Canada (Minister of
Citizenship and Immigration) 2002 SCC 1.
[16]
In Dunsmuir v. New Brunswick, 2008 SCC 9 (Dunsmuir), the Supreme Court of Canada
recognized that, although the reasonableness simpliciter and patent unreasonableness standards
are theoretically different, “the analytical problems that arise in trying to
apply the different standards undercut any conceptual usefulness created by the
inherently greater flexibility of having multiple standards of review”: Dunsmuir
at paragraph 44. Consequently, the Supreme Court of Canada held that the two
reasonableness standards should be collapsed into a single form of “reasonableness”
review.
[17]
The Supreme Court of
Canada in Dunsmuir
also held that the standard of review analysis need not be conducted in every
instance. Instead, where the standard of review applicable to the particular
question before the court is well-settled by past jurisprudence, the reviewing
court may adopt that standard of review. Only where this search proves
fruitless must the reviewing court undertake a consideration of the four
factors comprising the standard of review analysis.
[18]
In light of the
Supreme Court of Canada’s decision in Dunsmuir and the previous jurisprudence of this
Court, I find the standard of review applicable to issues 1 and 3 raised by the
Applicant to be reasonableness. When reviewing a decision on the standard of
reasonableness, the analysis will be concerned with “the existence of
justification, transparency and intelligibility within the decision-making
process [and also with] whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir at paragraph 47. Put another way, the
Court should only intervene if the Decision was unreasonable in the sense that
it falls outside the “range of possible, acceptable outcomes which are
defensible in respect of the facts and law.”
ARGUMENTS
The Applicant
The Officer did not
Consider the Evidence Properly
[19]
The
Applicant submits that he provided evidence for all of his educational
experience. He says that paragraph 78(2)(d)(i) of the Regulations clearly
applies to his education history, so he should be entitled to 20 points. This
means that the Officer erred in awarding him only 15 points.
The Applicant was not
Provided with Sufficient Reasons
[20]
The
Applicant submits that the duty to provide reasons for administrative decisions
has been increasingly enforced. The Applicant relies upon Via Rail Canada v.
National Transportation Agency, [2001] 2 F.C. 25 (F.C.A.) (Via)
at paragraphs 21-22:
…adequate
reasons are those that serve the functions for which the duty to provide them
was imposed. In the words of my learned colleague Evans J.A., “[a]ny attempt to
formulate a standard of adequacy that must be met before a tribunal can be said
to have discharged its duty to give reasons must [page36] ultimately reflect
the purposes served by a duty to give reasons.”
The
obligation to provide adequate reasons is not satisfied by merely reciting the
submissions and evidence of the parties and stating a conclusion. Rather, the
decision maker must set out its findings of fact and the principal evidence
upon which those findings were based. The reasons must address the major points
in issue. The reasoning process followed by the decision maker must be set out
and must reflect consideration of the main relevant factors.
[21]
The
Applicant submits that he has the right not only to be heard, by adducing
evidence in the original application, but also to respond to the concerns of
the decision maker: Lu v. Canada (Minister of Citizenship and Immigration),
[1999] F.C.J. No. 124 (F.C.T.D.) and Mittal (Litigation Guardian of) v.
Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No.
727 (F.C.T.D.).
[22]
He
says that in the case of an application for permanent residence under the
federal skilled worker category, the “purposes served by a duty to give
reasons” includes the ability of an applicant to assess his or her chances of
future success upon a subsequent application: Via at para. 21.
The CHC London made specific reference
to the possibility of future applications in its June 30, 2008 letter. Via goes
on to state at paragraph 19 that “reasons allow the parties to effectuate any
right of appeal or judicial review that they might have. They provide a basis
for an assessment of possible grounds for appeal or review.”
[23]
The
Applicant submits that the reasons in the present case are deficient because
they do not indicate how the Officer reached his conclusion. The Officer’s
evaluation was inadequate and the Decision cannot withstand a probing scrutiny.
The Applicant relies upon Adu v. Canada (Minister of Citizenship and
Immigration), [2005] F.C.J. No. 693 (F.C.) at paragraphs 10 and 11:
In
Baker, the Supreme Court of Canada noted that in certain circumstances,
the duty of procedural fairness requires the provisions of written reasons for
a decision. This is especially so where, as in this case, the decision has
important ramifications for the individual or individuals in question.
According to the Court, “It would be unfair if the person subject to a decision
such as this one which is so critical to their future not be told why the
result was reached”. (at para. 43).
The
importance of providing 'reasoned reasons' was reiterated by the Supreme Court
three years later in R. v. Sheppard, [2002] 1
S.C.R. 869, 2002 SCC
26, where the Court noted that unsuccessful litigants should not be
left in any doubt as to why he or she was not successful. Although Sheppard
was a criminal case, the reasoning in that case has been applied in the
administrative law context generally, and in the immigration context in
particular, in cases such as Harkat (Re), [2005]
F.C.J. No. 481, Mahy v. Canada, [2004]
F.C.J. No. 1677, Jiang v. Canada (Minister of Citizenship and
Immigration), [2005]
F.C.J. No. 597 and Ahmed v. Canada (Minister of Citizenship and
Immigration), [2002]
F.C.J. No. 1415.
[24]
The
Applicant goes on to cite Ogunfowora v. Canada (Minister of
Citizenship and Immigration), [2007] F.C.J. No. 637 (F.C.) (Ogunfowora)
at paragraph 58:
The
standard for sufficiency of reasons was outlined in Mendoza
v. Canada (M.C.I.),
[2004]
F.C.J. No. 846, 2004 FC
687 at paragraph 4, relying on the decision of the Federal Court of
Appeal in Mehterian v. Canada (M.E.I.), [1992]
F.C.J. No. 545 (F.C.A.)(QL). The Court stated that reasons are
required to be sufficiently clear, precise and intelligible so that a claimant
may know why his or her claim has failed and be able to decide whether to seek
leave for judicial review. Furthermore, on the authority of Hussain v. Canada (Minister of Employment and Immigration)
(1994),
174 N.R. 76 at paragraph 3 (F.C.A.), another decision of the Federal
Court of Appeal in the immigration context, if the reasons for decision given
by the Board are so inadequate that they fail to provide a clear basis for the
reasoning behind its decision, the decision will be quashed. Finally, in Chen v. Canada (Minister of Citizenship and Immigration), [2001]
F.C.J. No. 783, 2001 FCT
500, it was held that a panel must clearly express itself on primary
issues arising from a claim and that a failure to do so will result in its
decision being set aside.
[25]
In Ogunfowora,
the Court found that CAIPS notes can constitute sufficient reasons, but only if
they provide sufficient details for the person involved to know the reason why
the application was denied. The Court allowed the judicial review application in
that case because, although the CAIPS notes stated the basis for the decision,
they did not provide in sufficient detail any analysis as to why the officer
held that the applicants would not return to Nigeria at the end of their authorized stay. Likewise,
in the case at bar, the Applicant says that the reasons and CAIPS notes did not
provide in sufficient detail any analysis of why the Officer held that he did
not qualify for an award of 20 points in the education category.
Application to the Facts
[26]
On
the presumption that the Officer had not accepted the Applicant’s educational
credentials, previous counsel attempted to clarify the situation. However, with
no information as to what the Officer had found objectionable or inadequate,
previous counsel was reduced to guesswork. He therefore reiterated the validity
of the Applicant’s City and Guilds certificates.
[27]
The
response of the London CHC provided less information than the original
rejection letter and that letter stated that the City and Guilds certificates
were reviewed, but not whether they were accepted. The Officer disclosed that
the Applicant has been assessed 13 years of education rather than 15, but not
which elements of the Applicant’s education history were considered invalid.
Previous counsel attempted to clarify the situation but no response was
received. In the CAIPS notes, there was nothing other then “13 YEARS OF
EDUCATION/15 POINTS AWARDED.”
[28]
The
Applicant cites Via at para. 22 which states that “the decision maker
must set out its findings of fact and the principal evidence upon which those
findings were based.” The Applicant concludes that there was no explanation of
the evidence upon which the findings for his application were based.
The Officer Failed to
Properly Consider Substituted Evaluation
[29]
The
Applicant further submits that section 78(3) of the Regulations allows an
officer to consider factors other than points, and substitute his or her
evaluation of an applicant whose points may not fully reflect his or her
ability to become established in Canada. Consideration of substituted
evaluation is not only “relative to the assessment of points”: Hernandez v. Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No. 1698 (F.C.) at paragraph 20.
[30]
The
Applicant submits that a consideration of substituted evaluation should include
consideration of all the factors listed in section 76(1). In the Applicant’s
initial application package, previous counsel expressly asked that positive
discretion be exercised and cited the Applicant’s trade and job experience as a
reason to exercise positive discretion. As well, evidence was adduced of
settlement funds. No discussion about this was provided in the rejection
letter.
[31]
The
Applicant further points out that the CAIPS notes do not include any analysis
or comments regarding substitution of evaluation, except the statement that it
had been considered and rejected. The CAIPS notes include an instruction that
the drafter of the rejection letter include “A PASSAGE TO REFLECT THAT I HAVE
CONSIDERED SUBSTITUTION OF EVALUATION.” The Applicant submits that this is evidence
that the consideration of substituted evaluation consisted of no more then a pro
forma insertion of a boilerplate paragraph and that this cannot fulfill the
requirements for the substantive consideration of positive discretion.
The Respondent
The Applicant Cannot be
Awarded More than 15 Points for His Education
[32]
The
Respondent submits that the Applicant’s argument that he should have been
awarded 20 points for his education instead of the 15 points he received is
unfounded. According to the statements made in the Applicant’s affidavit, his
application for permanent residence status in Canada and his counsel’s letter
in support of the application, the Applicant attended six years of elementary
school, five years of secondary school, and then attended Thurrock Business
College between April 1981 and March 1982 where he received his CPC Management
certificate and Harlow College between June 1997 and June 1998, where he
obtained a certificate in B TEC Management. Between June 2003 and June 2004,
the Applicant attended Basildon and Thurrock College, where he received a certificate in
Carpentry.
[33]
The
Respondent submits that the education history given by the Applicant, even
taken at its highest, does not entitle him to 20 points for education due to
the operation of subsections 78(2) and 78(3) of the Regulations. The
Regulations also define “education credential” and, based on section 73 of the
Regulations, educational credential refers to any diploma, degree, trade or
apprenticeship credential issued on the completion of a program of study or
training at an education or training institution recognized by the authorities
responsible for registering, accrediting, supervising and regulating such
institutions in the country at issue. Assuming that the Applicant attended
college on a full-time basis to obtain his college certificates in management
and carpentry, he cannot be awarded 20 points for his education on the basis of
having obtained education credentials in both management and carpentry.
Therefore, the Applicant’s total education, taken at its highest, would be 13
years full-time or full-time equivalent studies. In order to be awarded 20
points for education, the Applicant would need a two-year post-secondary
education credential, other than a university educational credential, and a
total of at least 14 years of completed full-time or full-time equivalent
studies. Therefore, the number of points awarded to the Applicant’s education
cannot exceed 15.
[34]
The Respondent submits that when calculating the total years of
education needed to meet the requirements of Regulation 78, the Officer must
consider whether the years of education completed led to the highest
educational credential: Bhuiya v. Canada (Minister of Citizenship and
Immigration) 2008 FC 878 (Bhuiya) and Hussain.
[35]
The Respondent says that the rationale for
this interpretation is that the conjunctive requirement of a specific number of
years of full-time study ensures that educational credentials reflect a certain
standard level of education, despite the existence of different requirements to
attain these credentials all over the world. The Respondent relies upon the
Regulatory Impact Statement (“RIAS”), SOR/2002-227, C. Gaz. 2002.II.221, which
was published along with the introduction of this Regulation in the Canada
Gazette and has been used by this Court in its interpretation of the provision:
Bhuiya. It reads as follows:
Education: 25 Points
…Another change to the Education
factor is the manner in which points will be allocated for each credential
level. The applicant is allocated points for education on the basis of having
both a credential (such as a diploma, degree, or apprenticeship certificate)
and a minimum number of years of education and formal training. For example,
for a Master’s degree, an applicant must also have completed a total of at
least 17 years of full-time or full-time equivalent studies. Given the range of
educational and formal training systems around the world, this mechanism will
serve to promote consistent standards in the assessment of education and
training while still placing emphasis on the essentials-a credential as well as
relevant minimum levels of education and formal training.
[36]
The Respondent submits that the Applicant’s BTEC certificate did
not lead up to the highest educational credential. The Applicant says the
Officer ignored this certificate, but the evidence shows that the certificate
is a post-secondary credential at the same level as the City & Guilds
diploma that the Applicant completed in 2005. The certificate was neither a
prerequisite for the Applicant’s completion of the City & Guilds Diploma,
nor in a related field. Therefore, that year of education does not count as one
year of full-time education leading to the Applicant’s highest educational credential,
which is the Intermediate Construction Award issued by City & Guilds. The
year was not ignored; it simply did not qualify.
[37]
The Respondent also points out that the one year at Thurrock Business
College was not at full-time study and therefore did not meet Regulation 78(1).
Therefore, the Applicant did not have the required 14 years of full-time study
to be awarded 20 points.
No Reviewable Error with
Respect to Substituted Evaluation
[38]
The
Respondent says the Officer considered the Applicant’s request for a
substituted evaluation and responded to it in his reasons by stating that the
number of points already awarded in this case were an accurate reflection of
the likelihood of the Applicant’s ability to become economically established in
Canada.
[39]
The
Respondent says that the reasons were adequate and there is a limited duty on
visa officers to explain why favourable consideration is not given under
substituted evaluation: Singh v. Canada (Minister of Citizenship and
Immigration), [2008] F.C.J. No. 65 (F.C.) at para. 33 and Poblado
v. Canada (Minister of
Citizenship and Immigration), [2005] F.C.J. No. 1424 (F.C.) at paragraph
7. Therefore, there is no reviewable error in this regard.
Sufficient Reasons
[40]
The Respondent submits that the Officer’s notes and refusal letter were
sufficient to meet the reasons requirement in the Decision. The Officer has a
limited duty to explain or justify why favourable consideration was not given
in a substituted evaluation: Singh at paragraph 33; Pablado at
paragraph 7 and Yan v. Canada (Minister of Citizenship and Immigration)
2003 FCT 510 at paragraph 18.
[41]
The Respondent also says that the Officer had no duty to explain
the operation of the Act and the Regulations to the Applicant. The Officer’s
CAIPS notes were sufficient to inform the Applicant that all of the evidence
submitted was in fact considered and the points he was awarded in each
category.
[42]
The Officer’s clarification letter also indicated that all of the
evidence was considered and the Applicant only possessed 13 years of education
for the purposes of Regulation 78(3). The Respondent notes that the Applicant does
not seem to have been aware that all of his years of study have to be both
full-time and at his highest education credential. The Respondent concludes that
the reasons were sufficiently clear and allowed the Applicant to understand why
his application was denied.
ANALYSIS
[43]
First
of all, I agree with the Applicant that the Officer’s affidavit of January 13,
2009 can be given no weight by the Court. It goes well beyond an elaboration of
the reasons and provides an after-the-fact rationale for the central issue in
this application concerning the way that the points were calculated. See bin
Abdullah v. Canada (Minister of
Citizenship and Immigration), [2006] F.C.J. No. 1482 paragraphs 12-15.
[44]
The
Applicant’s principal complaint is that the Officer failed to provide adequate
reasons for her Decision on the number of points awarded to the Applicant. The
Applicant relies upon Justice MacTavish’s decision in Adu v. Canada
(Minister of Citizenship and Immigration), [2005] F.C.J. No. 693 at
paragraph 14:
In my view, these ‘reasons’ are not really reasons at all,
essentially consisting of a review of the facts and the statement of a
conclusion, without any analysis to back it up. That is, the officer simply
reviewed the positive factors militating in favour of granting the application,
concluding that, in her view, these factors were not sufficient to justify the
granting of an exemption, without any explanation as to why that is. This is
not sufficient, as it leaves the applicants in the unenviable position of not
knowing why their application was rejected.
[45]
Justice
Lagacé’s decision in Ogunfowora at paragraph 60 is also instructive on
this issue:
Clearly the CAIPS notes can constitute sufficient reasons, but
only if they provide sufficient details for the person to know the reason for
which the application was denied. On the basis of the tests outlined above, it
would appear that the officer’s CAIPS notes in this case do not meet the
necessary requirements. Although the notes state the basis for the decision,
they do not provide in sufficient detail an analysis of why the officer held
that the applicants would not return to Nigeria at the end of their authorized stay. This is further emphasized
by the fact the officer thought it necessary to explain in more detail in his
Affidavit to the Court why he decided the way he did. This reasoning should
have been provided at the outset.
[46]
The
Respondent says that the rationale for the Decision is readily apparent from
the record and from the Regulations which outline the basis upon which points
are calculated, and that the Officer has no obligation to explain how the
Regulations work. The facts were provided by the Applicant; the Officer simply
applied them to the points grid which, in effect, is a structured way of
examining the Applicant’s suitability for coming to Canada. The Applicant says
that the Officer explained what he did with each aspect of the evidence
provided by the Applicant, and this is sufficient.
[47]
The
letter of June 24, 2008 refers to the applicable Regulations, sets out the
points awarded under the relevant headings and then informs the Applicant that
“You have not obtained sufficient points to satisfy me that you will be able to
become economically established in Canada.” No explanation is provided, for
example, as to why the Applicant was awarded 15 points for “EDUCATION” out of a
possible 25.
[48]
Under
“EDUCATION,” the CAIPS notes provide as follows:
One
year BTEC and two separate city and guilds certificates. Copies provided 13
years of education
15
points awarded.
[49]
The
Applicant believes that he has 15 years of education and should have been
awarded 20 points, which would give him a qualifying score.
[50]
It
is obviously not possible to tell from the record why the Officer felt the
Applicant only had 13 years of education, and the fact that the Officer has
recently provided a detailed affidavit justifying his calculations is a clear
confirmation that the letter and CAIPS notes do not explain that issue.
[51]
So
the issue for the Court is whether the Officer’s indication that he awarded 15
points for what he regarded as 13 years of education is sufficient reasons in
this case.
[52]
A
question as to the sufficiency of reasons supporting a decision is a procedural
fairness issue. As Justice MacTavish pointed out in bin Abdullah at
paragraph 11 “the task of the Court is to determine whether the reasons
provided by the decision-maker satisfy the level of fairness required in all
the circumstances: Sketchley v. Canada (Attorney General), [2005] F.C.J.
No. 2056, 2005 FCA 404, at paragraphs 52-53.”
[53]
It
is also apparent that, in this case, the Officer was asked by the Applicant
through his counsel why his 15 years of full-time study, in conjunction with
his two-year certificate, did not warrant 20 points for education. The Officer
replied on June 30, 2008:
Your
application was carefully considered according to the applicable section of the
Immigration and Refugee Protection Act. You were provided with the
decision containing the full reasons for refusing the application by letter
addressed to you dated 24 June 2008, thereby fully concluding the application.
The file was closed on that date.
The
City and Guilds certificates were reviewed at the time of file assessment, but
as stated on the application form, you completed 13 years of education and so
15 points are applicable.
[54]
This
does not answer the point raised by the Applicant and does not go beyond the
Decision.
[55]
As
the Officer’s recent affidavit of January 13, 2009 reveals, it would have
required very little effort to explain to the Applicant that the Thurrock
Business College and BTEC Professional Development Certificate could not be
credited because the Thurrock certificate was not a post-secondary credential
as defined by Regulation 73 and was not evidence of one year of full-time or
full-time equivalent study pursuant to Regulation 78(1), and the BTEC
certificate was not a prerequisite for the Applicant’s completion of the City
and Guilds diploma, so that it could not count as one year of full-time
education leading to his highest educational credential.
[56]
I do
not think this was a matter of interpreting the Regulations to which the
Applicant and his lawyer have ready access. It was a matter of the Officer’s
view of what the two discounted certificates represented. Obviously, as the
Officer’s recent affidavit makes clear, it was not possible to tell from the
Decision why they were discounted. Further explanation was required.
[57]
Of
course, it would be entirely undesirable if the Officer had to provide the kind
of detailed reasons that are evident in the recent affidavit, or if applicants were
encouraged to engage in protracted post-decision debates. But the best way to
avoid this is to provide a brief explanation on the key point at issue. In this
case, the key point was obviously that the Thurrock and BTEC certificates could not be used to
count the Applicant’s years of full-time education leading to the City and
Guilds credential for the reasons referred to in paragraph 51 above. That is
all he needed to know.
[58]
In
my view then, in all the circumstances of this case, the reasons were
inadequate. This was a decision of importance for the Applicant’s future. He
could not surmise from the Decision why the Thurrock and BTEC certificates had
been awarded 0 points. The Officer’s position was simply that he had no
obligation to explain to the Applicant why he had taken a position on the facts
that the two certificates in question would not be credited. This prevented any
understanding or questioning of the Officer’s position on the facts. It was a
denial of the Applicant’s right to comprehend why he had been refused and an
attempt to thwart any action he might take to question the Officer’s Decision. It
left him to choose between incomprehension and legal action.
[59]
Having
come to this conclusion, it is unnecessary for me to consider the other issues
raised by the Applicant. However, the Respondent says there is no point in
sending this matter back for reconsideration because the Officer was correct
and the Applicant suffered no prejudice. The Respondent says the result will be
entirely the same if the application is reconsidered.
[60]
Because
there is nothing before me but the Officer’s recent affidavit (which I have
left out of account except in so far as it illustrates why the reasons were
inadequate) I cannot say that the critical education calculation was correct or
what another officer might make of the situation. And I think, in fairness to
the Applicant, that he should have the matter reviewed by someone else who will
explain to him what his certificates represent and how they merit, or do not
merit, points under the Regulations. It is also clear that a simple explanation
by the Officer could have prevented what has become a significant waste of time
and resources on both sides.
[61]
Counsel
are requested to serve and file any submissions with respect to certification
of a question of general importance within seven days of receipt of these
Reasons for Judgment. Each party will have a further period of three days to
serve and file any reply to the submission of the opposite party Following
that, a Judgment will be issued.
“James Russell”