[4]
In
a decision dated September 1, 2010, the Officer refused the Applicant’s
application because he had failed to earn the minimum 67 points needed to
qualify for a permanent resident visa as a skilled worker. In addition, the
Officer concluded that she would not use her discretion to substitute a
positive evaluation for the Applicant, as permitted under s. 76(3) of the
Regulations.
[5]
The
Applicant seeks judicial review of that decision.
II. Issues
[6]
In
addition to the preliminary matter discussed below, this application raises the
following issues:
1.
What
is the appropriate standard of review?
2.
Did
the Officer err in assessing the Applicant’s education, by failing to give
enough points for the Applicant’s pre-university education and for his
post-secondary education?
3.
Did
the Officer err in assessing the Applicant’s language capabilities?
4.
Did
the Officer err by failing to award the Applicant points for a qualifying
relative in Canada?
5.
Did
the Officer err in declining to conclude that the number of points awarded was
not a sufficient indicator of the whether the Applicant would become
economically established in Canada?
6.
Should
costs be awarded in this case?
7.
Should
any of the questions posed by the Applicant be certified?
III. Preliminary
Matter
[7]
At
the commencement of the hearing, counsel for the Applicant, Mr. Timothy E.
Leahy, asked that I recuse myself from hearing this application for judicial
review on the grounds of a reasonable apprehension of bias. Following
submissions on this request, I advised Mr. Leahy that I would reserve my
decision on this preliminary motion. The following sets out my reasons for
denying this motion.
[8]
Mr.
Leahy’s request relates to a motion to strike an application for leave and
judicial review and four applications for leave and judicial review filed in
our Court. In all cases, Mr. Leahy was counsel of record and, in all cases, he
was not successful. With respect to the motion to strike and a subsequent
motion for re‑consideration brought by Mr. Leahy that was dismissed, Mr.
Leahy submits that:
[Y]ou
rendered a decision that you knew was not consistent with the facts and went
beyond even what the department of justice was requesting and that the reason
you did so was because I was counsel.
[9]
In
summary, Mr. Leahy stated as follows:
I
can only conclude that when I'm counsel, you render decisions based on the fact
that I'm counsel, not on the basis of the facts or the law. And therefore, I'm
requesting you to recuse yourself.
[10]
The
test for disqualification of a judge is set out in the decision of the Supreme
Court of Canada in Wewaykum Indian Band v Canada, [2003] 2 S.C.R. 259 at
paragraph 60:
In
Canadian law, one standard has now emerged as the criterion for
disqualification. The criterion, as expressed by de Grandpré J. in Committee
for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369,
supra, at p. 394, is the reasonable apprehension of bias:
...
the apprehension of bias must be
a reasonable one, held by reasonable and right minded persons, applying
themselves to the question and obtaining thereon the required information. In
the words of the Court of Appeal, that test is "what would an informed
person, viewing the matter realistically and practically – and having thought
the matter through – conclude. Would he think that it is more likely than not
that [the decision-maker], whether consciously or unconsciously, would not
decide fairly."
[11]
Mr.
Leahy’s arguments appear to rest on an allegation that, because I have ruled
against him on a motion to strike and on four leave applications, I am
generally predisposed to decide against his clients.
[12]
In
dealing with this motion that I recuse myself from hearing the present
application, I must ask myself whether an informed person, “viewing the matter
realistically and practically – and having thought the matter through” would
conclude that there is sufficient justification for disqualification in this
case.
[13]
A
judge is often called upon to decide matters where she is presented arguments
by a counsel who has previously appeared before the judge. It is not uncommon
for a counsel to have “lost” or “won” a number of cases before the same judge.
It would not be realistic or practical to believe that a judge would not fairly
decide the next case argued by the same counsel.
[14]
The
allegation of apprehension of bias
is being made against a judge who is bound by an oath of office and who bears a
strong responsibility to be impartial. As stated by the Supreme Court of Canada
in Arsenault-Cameron v PEI, [1999] 3 S.C.R. 851 at paragraph 2, “The test for
apprehension of bias takes into
account the presumption of impartiality. A real likelihood of bias must be demonstrated.” Finally, I observe the
reminder given by my colleague, Justice Teitelbaum, in Samson Indian Nation
and Band v Canada, [1998] 3 FC 3 (TD), at paragraphs 73 to 75, as to the
solemnity of the judicial oath and the impartiality that it brings with it.
[15]
In
conclusion, the apprehension of bias
alleged by Mr. Leahy is not well-founded. In my view, the fact that I have
dismissed previous applications brought by Mr. Leahy, as counsel, does not give
rise to a reasonable apprehension of bias. Stated differently, an informed
person, viewing the matter realistically and practically – and having thought
the matter through – would not think that it is more likely than not that I,
whether consciously or unconsciously, would not decide fairly. The motion for
recusal is dismissed.
IV. Background
[16]
The
Applicant applied, in 2004, to come to Canada in the
federal skilled worker class. At that time, he described his occupation as
“Executive Vice President (Banker)”and his educational level as “MBA
Candidate”. The Applicant included his wife and three teen-aged daughters in
his application. The Applicant listed an uncle of his wife as a relative in Canada.
[17]
As
set out in the Computer Assisted Immigration Processing System (CAIPS) notes of
the Officer (which notes form part of the reasons for decision), the
Applicant’s file was reviewed in June 2010. In a letter dated June 23, 2010, the
Officer informed the Applicant of the shortcomings in his application and
invited further submissions. The identified deficiencies included: no evidence
of the completion of his masters degree; no results of formal language testing;
and no proof that the wife’s uncle still resided in Canada.
[18]
The
Applicant, through a consultant, responded on August 20, 2010. In that
correspondence, the consultant addressed the deficiencies as follows:
·
the
original diploma and transcript of records for his Master’s degree were
provided, in respect of which the consultant suggested that the Applicant be
awarded 25 points;
·
the
International English Language Testing System (IELTS) results were included and
the consultant “suggested” that the Applicant should be awarded 14 points for
his language skills in English; and
·
the
consultant advised that the uncle no longer resided in Canada.
[19]
On
the basis of this information, the Officer assessed the Applicant against the
regulatory criteria and awarded the Applicant only 65 points. The Officer
agreed with every assessment proposed by the consultant with the exception of
education where the Officer’s CAIPS notes reflect the following reasoning:
PA [the Applicant] submitted TOR showing
completion of MBA in 2006. In the Phils, a Bachelors and Masters degrees are
completed in 4 & 2 yrs respectively. Therefore points for education is 22
only.
[20]
Finally,
the Officer stated that she considered a substitute evaluation, but was
satisfied that the points awarded were sufficient indicators of the capacity of
the Applicant to become successfully established in Canada. As a
result, she refused the application.
[21]
In
a letter dated October 8, 2010, counsel for the Applicant made a request for
reconsideration. The main areas of concern related to an “under-assessment” of
the Applicant’s education and to the failure of the Officer to exercise
“positive discretion” to approve the Applicant in spite of his failure to meet
the points threshold. The matter was reconsidered and, in a letter dated
October 20, 2010, the earlier decision was affirmed.
V. Legislative
Scheme
[22]
The
Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA) provides
the “framework” for immigration to Canada. Section 12(2) of IRPA
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”. Section 14
of IRPA provides very broad powers to the Governor-in-Council to establish the
detailed regulations that govern the selection of immigrants to Canada.
Specifically of relevance to the Applicant, s. 14(2) provides that the
Regulations may prescribe and govern matters relating to “classes”, including
the establishment of provisions respecting:
|
(a) selection criteria, the weight, if any, to be
given to all or some of those criteria, the procedures to be followed in
evaluating all or some of those criteria and the circumstances in which an
officer may substitute for those criteria their evaluation of the likelihood
of a foreign national's ability to become economically established in Canada;
|
a) les critères applicables aux
diverses catégories, et les méthodes ou, le cas échéant, les grilles
d’appréciation et de pondération de tout ou partie de ces critères, ainsi que
les cas où l’agent peut substituer aux critères son appréciation de la
capacité de l’étranger à réussir son établissement économique au Canada;
|
[23]
Pursuant
to s. 14 of IRPA, the detailed regulations regarding the assessment of persons
coming to Canada have been
enacted. The scheme of the Regulations is clear; the assessment of individuals
within a class is to be carried out on an objective basis. The intention of the
legislators is that the measurement of points, through an objective set of
criteria across a variety of factors, will result in a transparent, consistent
and reliable indicator of an applicant’s ability to become established in Canada. All of the
factors assessed – age, job offers, language skills, relatives in Canada, education –
are indicators of the ability to become established in Canada.
[24]
Given
the rationale of the Regulations, it appears to me that only in exceptional
circumstances would this points assessment not be a fair evaluation of an
applicant’s ability to become established in Canada. However,
there is a discretionary ability of a reviewing officer to “override” a
negative (or positive) evaluation. Pursuant to s. 76(3) of the Regulations:
.
. . 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.
VI. Analysis
A. Issue
#1: Standard of Review
[25]
Other
than the issue of procedural fairness connected with Issue #5, the issues
raised by the Applicant all involve questions of fact or mixed fact and law.
The standard of reasonableness applies. This Court can only intervene in the Board’s
decision if it is not reasonable. That is, the decision will stand unless it
does not fall “within
the range of possible, acceptable outcomes which are defensible in respect of
the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
[26]
Any
issue of procedural fairness, including adequacy of reasons, will be reviewed
on a standard of correctness.
B. Issue
#2: Education
[27]
Education
is one of the factors to be assessed in determining whether an applicant should
be granted permanent resident status in Canada.
[28]
The
Regulations provide specific direction to immigration officers in the
evaluation of education. Very detailed guidance is contained in s. 78(2) of the
Regulations. Of relevance to this application, s. 78(2) of the Regulations
provides that a maximum of 25 points may be awarded for education, as follows:
|
(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 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.
|
[29]
It
is important to note that points are not awarded cumulatively for more than one
educational credential (Regulations, s. 78(3)(a)) and that points are awarded
on the basis of the single educational credential that results in the highest
number of points (Regulations, s. 78(3)(b)(i)).
[30]
In
this case, the Officer granted the Applicant 22 points for his education. Even
though he held a master’s level degree, the Officer concluded that he had only
16 years of studies – 10 years of elementary/secondary education, followed by
four years of bachelor studies, followed by two years for his master’s level.
[31]
The
Applicant contends that he falls within s. 78(2)(f) and should have been
awarded 25 points for education for having a degree at the masters level and at
least 17 years of educational study. The Applicant submits that the Officer
made two significant errors when assessing his education:
·
she
improperly treated his three-year MBA as a two-year MBA; and
·
she
substituted the public school 10-year norm for the actual 11-year requirement
of the Applicant’s private school in determining the number of years of
pre-tertiary education.
[32]
As
advised by the Applicant, the term “tertiary” is commonly used to refer to
education that Canadians would more usually refer to as “post-secondary”.
[33]
The
first alleged error arises with respect to the Applicant’s master’s degree.
There is no question that the Applicant holds a Masters Degree in Business
Administration (MBA). The question is whether the studies leading to that
degree should have been assessed as a two or a three-year program of studies.
[34]
The
record shows that the Applicant began an MBA program of studies in 1980. As
reflected in the transcript from the relevant period, the Applicant was
enrolled and completed a number of courses between 1980 and 1984 in the “Master
in Business Administration Program” at Ateneo de Manila University (AMU). In a
letter, the Registrar of AMU described the MBA program as follows:
The regular MBA program which he was
initially enrolled in 1981 required the completion of 48 units of academic
studies and 6 units of Thesis writing for a total of 54 units. The program was
structured to be completed by a student in three (3) years or six (6) semesters
if he is enrolled on a full load basis.
[35]
Had
the Applicant completed the degree in the 1980s, it appears that he would have
completed a three-year degree. The problem for the Applicant is that he did not
complete the MBA degree until 2006. While the Applicant may have subsequently
received some credit for the earlier courses, he did not complete the program.
A similar situation was considered in de Guzman v Canada (Minister of
Citizenship and Immigration), 2010 FC 1113, where Justice Pinard, at
paragraph 14, concluded that, where a program of studies is not completed, the
“years do not count towards his total years of education and are not relevant
to this application”.
[36]
Beginning
in the 2004-2005 academic year, the Applicant returned to his studies and
completed three semesters and a “strategic management paper” in a program
entitled “MBA-Ateneo-Regis Program”. In 2006 he graduated with an MBA.
[37]
The
Officer assessed the academic credential against the AMU requirements that
existed at the time the Applicant completed his degree. In 2006 – when the
Applicant graduated – the standard MBA program at AMU could be completed in two
years of full-time study. As noted:
When awarding points, we do so based on
the amount of time it should take to complete a program of study if it were
undertaken on a full-time basis. For this reason, the current Ateneo MBA
program is assessed as a two year masters program, regardless of how long it
takes an individual to complete their studies. PA began his studies 30 years
ago in 1980, but didn’t complete them. The degree he was granted in 2006
incorporated his transfer credits from the 1980s and is considered in the
school that granted it to be a two-year program. For this reason, and in spite
of the fact that it took PA longer to compete, we are unable to award more
points than the 22 at which he was assessed. (16 years of study – ie. 10 yrs of
elementary/secondary followed by 4 yrs of bachelor studies followed by 2 yrs of
masters level)
[38]
In
my view, this is a reasonable interpretation of the Regulations and application
of the Regulations to the assessment of the Applicant’s MBA program. Moreover,
it is consistent with the decision of my colleague, Justice Pinard in de
Guzman, above.
[39]
I
also reject the Applicant’s argument that he should have received credit for 11
years of primary/secondary school education. The Applicant attended a private
school for 11 years. The usual course of study leading to graduation from
secondary school in the Philippines is 10 years. I
appreciate the Applicant’s submissions that the quality of education at the
private school was higher and that private education is almost an essential for
someone in the Applicant’s situation. However, the Applicant was awarded credit
for 10 years of study because he could have obtained a secondary level of
education in the Philippines after 10 years. The mode or manner of how the
Applicant completed the studies – or whether the private school may have led to
a better quality of education – is not relevant to the question of determining
the points to be awarded (see Shahid v Canada (Minister of Citizenship and
Immigration), 2011 FCA 40 at para 31).
C. Issue #3:
Language
[40]
Language
skills are assessed pursuant to s. 79 of the Regulations. A maximum of 24
points, “based on the benchmarks referred to in Canadian Language Benchmarks”,
may be awarded (Regulations, s. 79(2)). Of particular importance to this
application, the Minister may designate organizations or institutions to assess
language proficiency and “shall, for the purposes of correlating the results of
such assessment by a particular designated organization or institution …,
establish the minimum test result required for each ability and each level of
proficiency” (Regulations, s. 79(3)). The Minister has so designated, with such
designations and correlations set out in OP6, the relevant Operating Manual of
the Department of Citizenship and Immigration Canada (CIC). In that regard,
section 12.9 of OP6 sets out the tests score equivalency chart for IELTS test
results. Finally, s. 79(4) of the Regulations provides that:
|
(4) The results of an assessment of the language proficiency of
a skilled worker by a designated organization or institution and the
correlation of those results with the benchmarks in accordance with
subsection (3) are conclusive evidence of the skilled worker's proficiency in
the official languages of Canada
for the purposes of subsections (1) and 76(1).
|
(4) Les résultats de l’examen de langue administré par une
institution ou organisation désignée et les équivalences établies en vertu du
paragraphe (3) constituent une preuve concluante de la compétence du
travailleur qualifié dans les langues officielles du Canada pour
l’application des paragraphes (1) et 76(1).
|
[41]
The
language skills assessment for the Applicant was based on the IELTS results
dated August 5, 2010. The Applicant was awarded 14 points for his language
skills and disputes only one aspect of the language skills assessment. His test
result for “Listening” was 7.0. According to the IELTS equivalency table in
OP6, s. 12.9, a score of 5.5 to 7.0 under the listening component is
equivalent to a “moderate” ability or two points under s. 79(2)(b) of the
Regulations. In this one category, the Applicant asserts that he should have
been awarded four points, instead of two.
[42]
The
Applicant is critical of the use of the IELTS scores to satisfy the
requirements of the Regulations. However, he points to no error in how the
Officer applied the Regulations. The Officer acted in complete accord with the
Regulations. Under the current Regulations, there is no way to assess more than
14 points to the Applicant for his language ability. The Officer had no
discretion to award a higher number of points than set out in the Regulations
and s. 12.9 of OP6.
[43]
While
the Applicant may disagree with the policy underlying the regulatory language
requirements, he has presented no reviewable error in the language assessment.
D. Issue
#4: Relative in Canada
[44]
An
applicant may receive a maximum of 10 points for “adaptability” (Regulations,
s. 83). The Applicant received four points for “adaptability” in respect of his
wife’s education. He believes he should have received an additional five points
for a relative in Canada.
[45]
One
of the recognized elements of adaptability is the existence of family
relationships in Canada. The Regulations (see ss. 83(1)(d) and 83(5))
provide that a skilled worker applicant “shall be awarded 5 points” if the
skilled person (or his partner) is related to a person living in Canada who
falls within the specific list of acceptable relatives described in s. 83(5).
One of the listed relationships is “a child of the father or mother of their
father or mother” (s. 83(5)(a)(vi)). Stated differently, the maternal uncle of
a skilled worker or his spouse – provided that he is a citizen or permanent
resident living in Canada – would qualify for the five points.
[46]
At
the time that the application of permanent residence was submitted, the
Applicant’s wife had an uncle in Canada. When the application
was processed, the Officer noted that the uncle no longer lived in Canada; this is not
disputed by the Applicant. The application listed no other relatives in Canada.
Accordingly, the Officer did not award the Applicant five points for a relative
in Canada.
[47]
The
Applicant submits that the Officer erred since the residence of his wife’s
uncle should have been “locked in” as of the date of his application. The
Applicant relies on the case of Hamid v Canada (Minister of
Citizenship and Immigration), 2005 FC 1632 [Hamid (FC)]. In the
alternative, the Applicant appears to argue that the Officer was under a duty
to ask the Applicant if he had any other relatives in Canada.
[48]
These
arguments must fail.
[49]
The
first point to be made is that s. 77 of the Regulations provides that “the
requirements and criteria set out in sections 75 and 76 must be met at the time
an application for a permanent resident visa is made as well as at the time
the visa is issued”. If we turn to s. 76(1)(a)(vi), we can see that
“adaptability, in accordance with section 83” is included. It follows that the
points to be awarded in respect of any of the elements set out in s. 83 –
including family relationships in Canada – must be met at the
time the visa is granted. Thus, on a simple reading of the applicable
Regulations, the Applicant’s wife’s uncle who no longer resides in Canada did not meet
the requirement of the Regulations at the time the application was processed.
[50]
The
second problem with the Applicant’s submissions on this issue is his reliance
on Hamid (FC). That case was reversed by the Court of Appeal in 2006 (Hamid
v Canada (Minister of
Citizenship and Immigration), 2006 FCA 217 [Hamid (FCA)]). In Hamid
(FCA), the Court of Appeal was required to consider whether an officer erred by
excluding children that were dependants at the time that the application was
submitted, but no longer met the definition of a dependant at the time the
application was processed. This Court held that the status of the dependants
was “locked in” as of the date of application. In overturning the decision of
the lower court, the Federal Court of Appeal (at paragraph 8) concluded that:
[T]he
visa officer was right to exclude Mr Hamid's two oldest sons from his visa
application. In my opinion, the Regulations require that a person of 22 years
of age or over who applies for a visa as a "dependent child" must
meet the selection criteria of being financially dependent and a student at the
time when the visa officer assesses the application. Since they had ceased to
be full-time students by that time, they were not eligible for permanent
resident visas as family members.
[51]
The
reasoning in Hamid (FCA) is directly applicable to the case before me.
There is no “lock in” of the uncle’s status in Canada.
[52]
Finally,
there is also no merit to the Applicant’s argument that he ought to have been
asked whether he had other relatives in Canada. It is trite
law that the Applicant bears the burden of providing all relevant information
and submissions to the Officer. As evidenced by a letter, dated August 20,
2010, sent to the Officer by the Applicant’s consultant, the Applicant knew
that the uncle no longer lived in Canada. He could have provided
more information at that time of other relatives in Canada. He failed
to do so. In the circumstances there was no obligation on the Officer to do
anything further.
[53]
The
Officer’s decision not to award five points for a family relationship was not
unreasonable.
E. Issue
#5 Substituted Evaluation
[54]
As
noted above, an immigration officer has discretion to override a negative
points assessment (Regulations, s. 76(3)). In this case, the Applicant made no
specific request for a substituted evaluation, even though he had been advised
(in a letter dated June 23, 2010) that there were problems with the assessment of
his application in the federal skilled worker class.
[55]
In
spite of the failure of the Applicant to seek a substituted evaluation, the
Officer addressed this issue. In her CAIPS notes, she states:
I have considered substitution
of evaluation but I am satisfied that the pts awarded are sufficient indicators
to reflect the capacity of subj to become successfully established in Cda.
[56]
The
Applicant submits that a reasonable analysis of the facts before the Officer
and the purpose of Canada’s immigration program would result in a finding that
the Applicant and his family would be self-supporting in Canada. The
Applicant notes that the following evidence was before the Officer:
·
the
Applicant was an executive vice president of the Philippine branch of one of
the world’s 200 largest banks;
·
he
had a net worth in excess of $1 million;
·
he
had a leadership role in the Rotary Club;
·
he
had transferable skills;
·
he
had an MBA from the Philippines’ premier business school; and
·
he
had years of experience working in an English-speaking environment and stronger
English skills than CIC requires.
[57]
The
Applicant asserts that all this evidence would lead a reasonable person to
conclude that Canadian banks would compete for him. The Applicant further notes
that the Officer was aware that the Applicant’s children were adults and could
thus help support the family immediately or after graduation, on a long-term
basis in a higher-paying professional position. The Applicant submits that, had
the Officer considered the facts, she would have realized that the Applicant
only had to support his wife and himself. The Applicant claims that, had the
Officer not rendered her decision on outdated forms, she would have been aware
of how well his daughters were doing in school and that one of them was in
medical school, which would have assuaged any basis for fearing that the family
is likely to become wards of the Crown if permitted to immigrate.
[58]
As
I understand the argument of the Applicant, he asserts that: (a) the Officer,
in reaching a conclusion not to substitute a positive evaluation, failed to
have regard to the evidence before her; or (b) the reasons for the refusal on
this issue were inadequate. In my view, neither of these arguments can succeed.
[59]
The
first problem that I have with the Applicant’s submissions on this issue is
that he now provides submissions to the Court that were not made to the
Officer. If the Applicant had made those comments in the context of a request
for a substituted evaluation, the Officer may have been obliged to provide
further analysis and reasons. That was not done. In Eslamieh v Canada (Minister of
Citizenship and Immigration), 2008 FC 722, Justice Mosley stated:
Visa Officers have the authority to consider
an alternative evaluation under subsection 76(3) by their own motion, as held
by my colleague Justice Carolyn Layden-Stevenson in Zheng v. Canada (Minister of Citizenship and
immigration),
2002 FTR 1115, 26 Imm. L.R. (3d) 72. That said, it is clear from the
jurisprudence that they are under no obligation to exercise that discretion
unless specifically requested to do so. The applicant concedes that she did not
make such a request and I cannot therefore find that the Visa Officer was
unreasonable in her decision.
[60]
Moreover,
it must be remembered that the Applicant was applying to come to Canada as a member
of the federal skilled worker class. The question before the Officer was not
whether this Applicant or his family would end up as “wards of the Crown”.
Rather the question is whether this person had an ability to become
economically established as a skilled worker. The Applicant did not
apply to come to Canada as a member of the investor class or the
entrepreneur class or the self-employed persons class. The legislative
framework requires an applicant to apply in a particular class. It is not up to
the Officer to choose a different class if an applicant does not qualify in the
class for which he applied. In this case, the Applicant chose to apply as a
federal skilled worker. In assessing whether she should exercise her discretion
for a substituted positive evaluation, the Officer was not required to look
beyond that evidence which related to the federal skilled worker class. In the
entirety of the Applicant’s application record, there was simply nothing beyond
what had already been assessed. His age, his work experience, his education,
his wife’s education, his language skills had all been evaluated in accordance
with the Regulations. Everything that the Applicant has identified as positive
factors for a substituted evaluation were either already included in the
Officer’s assessment or were not relevant to the federal skilled worker class.
[61]
Regarding
the failure of the Officer to provide adequate reasons, I do not deny that Baker
v Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 suggests that, in the
immigration context, generally speaking, written reasons will be required.
However, this Court has repeatedly held that on a substituted evaluation, an
officer does not have to provide written reasons for declining to exercise
their discretion; evidence that the officer has turned his or her mind to such
an evaluation is sufficient (see, for example, Fernandes v Canada (Minister
of Citizenship and Immigration), 2008 FC 243; Poblano v Canada (Minister
of Citizenship and Immigration), 2005 FC 1167; Channa v Canada (Minister
of Citizenship and Immigration) (1996), 124 FTR 290; Feng v Canada
(Minister of Citizenship and Immigration) (1998), 153 FTR 59).
[62]
In
sum, the Officer did not err in failing to exercise her discretion positively
for the substituted evaluation under s. 76(3) of the Regulations.
VII. Conclusion
[63]
For
the reasons above, the Applicant has not persuaded me that the decision should
be overturned.
[64]
The
Applicant seeks costs. Since the Applicant has not been successful, I would not
exercise my discretion to award costs.
[65]
The
Applicant submits the following questions for certification:
1.
Does
the conjunctive requirement of “and a total of at least [X] years of completed
full-time or full-time equivalent studies” in section 78 of the Regulations
include all years of study or may officers exclude years at will: e.g.,
where a private school requires more years than public schools, from an
unfinished program or post‑graduation studies?
2.
Does
the number of years of pre-tertiary schooling have a bearing on the likelihood
of a university-educated immigrant becoming successfully established in Canada?
3.
In
considering an academic program’s length, is it the length of the program into
which an applicant matriculated or the length of the current program?
4.
May
CIC equate CLB 8 to any IELTS result it fancies or must the correlation rest on
a credible study and be consistent with international standards?
5.
If
subsection 79(3) of the Regulations requires a principled correlation of IELTS
to CLB, does IELTS 6.0, on the basis of the evidence before the Court, equate
to CLB 8?
6.
Does
the Choi “lock-in” principle apply to points for relatives?
7.
At
what point do forms and supporting documentation become “so dated that [they]
cannot be used for a comprehensive and legally valid decision?”
[66]
In
my view, the one question that warrants consideration is the question related
to educational qualifications. In Kabir v Canada (Minister of
Citizenship and Immigration), 2010 FC 995, Justice Heneghan certified
the following question:
In
assessing points for education under section 78 of the Immigration and
Refugee Protection Regulations, does the visa officer award points for
years of full-time or full-time equivalent studies that did not contribute to
obtaining the educational credential being assessed?
[67]
The
answer to this question could be determinative in the application before me.
The Applicant was given credit for: (a) 10 years of education up to his
graduation from secondary school, rather than for the 11 years that he spent in
private school achieving the same result; and (b) two years for his MBA,
notwithstanding that he spent the equivalent of more than three years to obtain
this master’s degree. Had the Applicant been awarded credit for even one
additional year of education, he would have received 25 points for education
and, thus, reached the qualifying threshold. In the circumstances, I am
prepared to certify the same question as was certified by Justice Heneghan.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
the application for judicial review is dismissed; and
2.
the following question is certified as a question of general
importance:
In assessing
points for education under s. 78 of the Immigration and Refugee Protection
Regulations, does the visa officer award points for years of full-time or
full-time equivalent studies that did not contribute to obtaining the
educational credential being assessed?
“Judith
A. Snider”
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