Date: 20110318
Docket: IMM-2658-10
Citation: 2011 FC 337
Ottawa, Ontario, March 18, 2011
PRESENT: The Honourable Mr. Justice Boivin
BETWEEN:
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NIRMAL KUMAR SHARMA
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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]
This is an application for judicial review pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, SC 2001, c
27 (the Act), of a decision of a Visa Officer of the Consulate General of
Canada in Sydney, Australia, dated March 9, 2010. The Officer refused the
applicant’s application for permanent residence under the Federal Skilled
Worker class.
Background
[2]
The
applicant, Mr. Nirmal Kumar Sharma, born on May 9, 1963, is a citizen of New Zealand and India. Mr. Sharma
submitted an application for permanent residence in Canada as a Federal
Skilled Worker in December 2006. He was the principal applicant and his wife
and two sons were included as dependents.
[3]
Mr.
Sharma, who was 43 years old at the time he submitted his application,
indicated that he worked in the banking field for sixteen years and as of 2004
he was a lawyer and a financial consultant in India. He speaks
fluent English and holds two masters degrees and a law degree.
[4]
Mr.
Sharma immigrated to New Zealand in October 2005. Since
that time, he had been engaged in completing the necessary studies to allow
himself to be licensed as a lawyer and as an accountant in New Zealand. During that
time, Mr. Sharma worked in temporary or unpaid positions.
[5]
In
the Visa Officer’s CAIPS notes, the Officer indicates his concerns about Mr.
Sharma’s work experience since he did not appear to have worked in a relevant
occupation since emigrating from India to New Zealand in October
2005. The Officer therefore decided to call Mr. Sharma for an interview.
Impugned Decision
[6]
In
his decision rendered on March 9, 2010, the Officer concluded that although Mr.
Sharma had obtained 70 points in the assessment of his application for a
permanent resident visa as a skilled worker - thus meeting the passing mark set
at 67 points - the points awarded did not reflect his ability to become
economically established in Canada. The Officer made a negative substituted evaluation under s.
76(3) of the Regulations. A Senior Visa Officer concurred with the Officer’s
evaluation.
[7]
The
Officer based his decision on the fact that he was not convinced that since
residing in New Zealand in August 2005, Mr. Sharma had demonstrated that he
could integrate the labour market. The Officer noted that during the 4.5 years
Mr. Sharma was in New Zealand, he had only filled temporary jobs and although
he was successful in having some of his credentials as a lawyer or an
accountant recognized and accredited, he had not secured from the respective
corporative bodies the authorization to work in these occupations.
[8]
In
assessing the points for experience, the Officer gave Mr. Sharma a one year
experience as a consultant (NOC 1122); no experience as a banker because the
Officer determined that the applicant held a clerk’s position (NOC 1212); and
no experience as a lawyer (NOC 4112).
[9]
The
Officer concluded that Mr. Sharma’s weak economic integration to the labour
market in New
Zealand
was an indication of his potential integration to the labour market in Canada.
[10]
The
Officer reiterated that Mr. Sharma had the opportunity to address these
concerns during his interview but the explanations provided by the applicant
did not satisfy the Officer that the applicant could become economically
established in Canada.
Relevant Provisions
[11]
Subsection
76(1) of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (the Regulations) read as follows:
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Federal Skilled
Workers
Federal
Skilled Worker Class
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.
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Travailleurs
qualifiés (fédéral)
Travailleurs
qualifiés (fédéral)
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).
Confirmation
(4)
Toute décision de l’agent au titre du paragraphe (3) doit être confirmée par
un autre agent.
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Issues
[12]
The are several issues that arise in this proceeding and
they can be summarized as follows:
a) What is the standard
of review?
b) Did the Officer err by
making findings of fact without regard to the evidence before him?
c) Was the decision
unfair because the Officer never advised the applicant he was considering
exercising a negative substituted evaluation?
d) Should the applicant
be awarded costs?
Analysis
a) What is the standard
of review?
[13]
The parties both agree that the standard to be applied to a
decision of a Visa Officer deciding on an application for a permanent residence
visa is reasonableness. In the previous jurisprudence of this Court, it was
held that the standard of review was reasonableness simpliciter (see Tathgur
v Canada (Minister of Citizenship and Immigration), 2007 FC 1293, [2007]
FCJ No 1662, at para 9; and Al-Kassous v Canada
(Minister of Citizenship and Immigration), 2007 FC 541, [2007]
FCJ No 731, at para 22).
[14]
Since
the recent decision of the Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the
previous standards of review were collapsed into two, correctness and
reasonableness. It was held in Dunsmuir, supra, that questions of fact or
discretion as well as questions where the legal issues cannot be easily
separated from the factual issues generally attract the standard of
reasonableness. Decisions of immigration officers about whether to grant a
permanent resident visa are discretionary decisions based essentially on the
facts of each particular application. Thus, the immigration officers are entitled to a high degree of deference (see Roohi v Canada (Minister of
Citizenship and Immigration), 2008 FC 1408, [2008] FCJ No
1834, at para 13). Therefore, the reasonableness standard applies.
[15]
However,
when it comes to issues of procedural fairness, legal error and legal
jurisdiction, the decision is reviewable on the standard of correctness (see Suresh
v Canada (Minister of Citizenship
and Immigration)
2002 SCC 1, [2002] 1 SCJ No 3). In this case, the
applicant alleges that the Officer failed to advise him that he was considering
exercising negative discretion and to give him an opportunity to address the
concerns. This is a matter of fairness and no deference is owed to the Officer
when considering the issue.
b) Did the Officer err by
making findings of fact without regard to the evidence before him?
[16]
The
applicant submits that the Officer’s findings were unreasonable because the
Officer unjustifiably concluded that by failing to hold a full-time position in
New Zealand the applicant would not
be able to become employed in Canada. The applicant further submits that this conclusion
disregarded the evidence that the applicant had been studying to obtain
accreditation as a lawyer and as an accountant.
[17]
Moreover,
the applicant alleges that the Officer erred by disregarding the various
credentials the applicant obtained in New Zealand, his volunteer activities and
other activities, all of which demonstrated that in the medium to long-term,
the applicant would be able to work in his chosen fields of law and accounting
in New Zealand. The applicant further alleges that by completely ignoring or
misconstruing the applicant’s accomplishments, the Officer rendered an
unreasonable decision and thereby erred in law.
[18]
The
applicant claims that there was no factual or evidentiary basis for the Visa
Officer’s findings that the economy and labour market of New Zealand was
similar to Canada’s in many
ways, and therefore the applicant would not be able to find employment in Canada. Thus, the
applicant submits that the Officer based his decision on opinion and conjecture
rather than the facts before him.
[19]
On
the other hand, the respondent submits that the Officer conducted a thorough
interview during which he asked the applicant to provide details regarding his
work experience. The Officer found that the applicant had overstated many of
his duties and responsibilities. As an example, the respondent points out that
the applicant claimed to have 16 years of experience as a banker but that his
position was as a "coin note examiner grade II- clerk gr II". Thus,
it was reasonable for the Officer to observe that this was a clerical position
and not award points for experience.
[20]
The
respondent also submits that the Officer was reasonable in determining that the
applicant had not established that he had a year of paid experience as a lawyer
as he had only been voluntarily assisting his uncle’s law practice in India.
[21]
The
Officer was very thorough in his determination of the applicant’s previous work
experience. The Officer’s reasons for refusing to recognize the applicant’s
previous work experience are clearly reasonable. More particularly, he
explained why he only awarded the applicant the equivalent of one year
experience as a consultant (NOC 1122). In the end, the Officer gave the applicant
15 out of 21 points. Thus, in the case at bar, the applicant had the necessary
amount of points.
[22]
In
the CAIPS notes, the Officer determined the following:
WITH 1 YR EXPERIENCE, HE STILL GETS 70
POINTS. I AM RECOMMENDING NEGATIVE SUBSTITUTION OF EVALUATION FOR THE FOLLOWING
REASONS:
MIR: PLEASE CONSIDER THIS RECOMMENDATION
AS ACTING MANAGER:
EVEN THOUGH HE GETS 70 POINTS, I AM NOT
SATISFIED HE WILL SETTLE SUCCESSFULLY IN CANADA AND THIS IS NOT REPRESENTATIAVE
[sic] OF HIS CHANCES TO MAKE IT. TAKING AS A REFERENCE THE ALMOST 5 YRS HE HAS
BEEN RESIDING IN NZ AS PERM RESIDENT AND NOT BEING ABLE TO SECURE JOBS IS
REVEALING OF HIS CABABILITY [sic] OF DOING IT ONCE IN CANADA WHERE HE WOULD
HAVE TO START THE RECOGNITION OF HIS CREDENTIALS ALL OVER AGAIN. CONSIDERING
THAT HE IS NOT GETTING YOUNGER, RUNNING ON HIS 47 NEXT MAY, HE WOLD [sic] HAVE
A HARD TIME MAKING IT IN CANADA FOR THE OCCUPATIONS HE LISTED IN APPENDIX 3
EITHER AS A BANKER, OR A FINANCE CONSULTANT OR A LAWYER OR A BANKER.
[23]
The
Court is of the view that these reasons are reasonable. While the Officer did
not mention that the applicant was studying most of the time and could
therefore not afford to work full-time, the Court is of the opinion that it
does not impact on the outcome of this case. It could also be mentioned that
when considering the applicant’s
situation to become economically established in Canada, it is not unreasonable
to conclude that he will have to obtain Canadian accreditation related to some
of his occupations e.g. lawyer and accountant.
[24]
The
Court therefore concludes that the evidence on file provided grounds to the Officer
to conclude that the assessment pursuant to s. 76(1) of the Regulations was not
a sufficient indication that the applicant would become economically established
in Canada. The Court believes
that the Officer did not err in deciding to proceed with a substituted
evaluation of the likelihood of the applicant’s ability to adapt and to become
economically established as a skilled worker in Canada.
c) Was the decision
unfair because the Officer never advised the applicant he was considering
exercising a negative substituted evaluation?
[25]
The
applicant argues that the decision is unfair because the applicant was never
told that the Officer was considering exercising negative discretion.
[26]
The
respondent submits that there is no obligation by the Visa Officer to inform an
applicant that he is developing a negative impression of an applicant as the
Officer’s concerns arise. The respondent also submits that the CAIPS notes
demonstrate that the Officer had put forth his concerns and sought further
clarification.
[27]
This Court recalls that
the duty to demonstrate that an applicant has met the criteria of the
occupation under which an assessment was requested, lies with the applicant (Hassani
v Canada (Minister of
Citizenship and Immigration), 2006 FC
1283, [2006] FCJ No 1597, at para 24).
[28]
In the case at bar, the Visa Officer
unilaterally decided to exercise his discretion, in a negative way pursuant to
s. 76(3) of the Regulations. The Court agrees with the respondents that an
officer has no obligation to provide the applicant with a running score at each
step of the interview (Rukmangathan v Canada (Minister of
Citizenship and Immigration), 2004 FC 284, [2004] FCJ No 317). However, in this case, failing to
inform the applicant that a negative discretion was going to be exercised
notwithstanding the fact that the applicant had obtained a sufficient amount of
points - i. e. three (3) points above the minimum required - resulted
in a breach of the duty of procedural fairness.
[29]
Based on the evidence of this case, the Officer
sent a letter dated March 9, 2010 to the applicant. In his letter, the Officer
mentions that he is not satisfied that the points that the applicant has been
awarded are an accurate reflection of the likelihood of his ability to become
economically established in Canada.
He further mentions that this issue was discussed during the interview with the
applicant (Application record at p 7).
[30]
In his affidavit, signed June 24, 2010, the
applicant alleges that he did not know that the Officer was intending to
exercise his negative decision and that he was not provided an opportunity to
respond to the Officer’s concern:
The officer asked various other questions
and I answered them directly and in detail. At no point during the interview
did the officer divulge that he intended to exercise negative discretion in my
case, nor did the officer provide me with an opportunity to address the
concerns he later stated in his refusal letter, i.e. that I had not integrated
into the labour market in New Zealand, that New Zealand is similar to Canada in
its labour market and economy, and that my weak integration into the labour
market in New Zealand was indicative of my ability to establish in Canada.
(Application Record at p
15, para 11).
[31]
The Officer’s affidavit dated December 31, 2010
does not address or attempt to address the applicant’s allegations. A review of
the Officer’s CAIPS notes does not indicate that the Officer discussed his
concerns with the applicant in the course of the interview. The CAIPS notes
dated February 23, 2010 do not reflect the content of his letter dated March 9,
2010. Accordingly, in view of the conflicted evidence and absent clear indication
that the Officer’s concerns were indeed discussed with the applicant, the
Court finds that the applicant was not afforded the opportunity to address the
Officer’s concern with respect to his settlement plans in Canada. For these reasons, the
Court finds that there has been a breach of procedural fairness in the process.
The judicial review is allowed and the matter is referred
to a different officer for redetermination.
d) Should the applicant
be awarded costs?
[32]
At the hearing before this Court, the applicant
withdrew his request for costs. There will be no order as to costs. There is no
serious question of general importance that would warrant certification of a
question.
JUDGMENT
THIS COURT’S
JUDGMENT is that
1. The application for
judicial review is
allowed;
2. The matter is
remitted for reconsideration by another Visa Officer;
3. No costs awarded;
4. No question of
general importance is certified.
“Richard
Boivin”
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