Date: 20110420
Docket: IMM-4178-10
Citation: 2011 FC 483
Ottawa, Ontario, April 20, 2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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MANABU TOKUDA
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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 pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, 2001, c. 27 (IRPA), for
judicial review of a decision of an Immigration Officer (the Officer), dated
May 24, 2010, wherein the Officer denied a request to seek a second evaluation
of the applicant’s application for permanent residence as a member of the
Federal Skilled Worker (FSW) Class.
[2]
The
applicant is a citizen of Japan
who applied for permanent residence in Canada in June 2005 as a member of the FSW Class under
section 75 of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (the Regulations). The applicant received a total point
score of 66 out of a possible 100, below the required 67 points for permanent
residence under the FSW Class. The applicant requested that the Officer
consider a substituted evaluation under subsection 76(3) of the Regulations.
The applicant contended that his point total was not a sufficient indicator of
whether he would become economically established in Canada because:
i)
He has a brother in Canada who is a Canadian citizen;
ii)
He has spent
considerable time in Canada on a Working Holiday Visa;
iii)
He has a degree in
English and teaches English in Japan; and
iv)
He has approximately
3 times the minimum amount of settlement funds required.
[3]
The
record of decision indicates that in reviewing the file for a possible
substituted evaluation, the Officer considered the fact that the applicant had
a relative in Canada and his
English language skills as positive factors. The Officer found that the applicant’s
education level of high school and a two year diploma along with his work
experience as a language instructor were neutral factors since the selected area
of work may have required higher education. The Officer noted that the applicant’s
work experience in Canada was for a fish processing plant and was for
less than one year. The Officer concluded that the 66 points awarded were an
accurate reflection of the applicant’s economic prospects in Canada.
[4]
The
Officer rejected the application finding that the applicant obtained 66 points
based on his language ability, experience, age, education and adaptability.
The Officer did not consider a substituted evaluation appropriate in the
circumstances.
[5]
It
is this decision that is the subject of this application.
Issues
[6]
There
are two issues in this application. The first is whether the Officer erred in
declining to seek a substituted evaluation determination under subsection 76(4)
of the Regulations. The second is whether the reasons provided for this
decision are adequate.
Analysis
Exercise of
Discretion
[7]
A
principled reading of the Regulations, together with their legislative
history make clear that the officer may only substitute his or her opinion for
the criteria set out in subsection 1(a), namely the point factors. Settlement
funds are a consideration under subsection 1(b) and have been expressly removed
from the ambit of considerations open to the Officer in considering whether to
seek a second opinion. Given the plain and obvious reading of the Regulations,
it would be an error for the Officer, in the exercise of his discretion under
subsection 76(3) of the Regulations, to consider the settlement funds
available to the applicant. In this regard I agree with the analysis of the Regulations
and their effect as expressed by Justice Zinn in Xu v Canada (Citizenship
and Immigration), 2010 FC 418.
[8]
As
the Officer was not required to consider the settlement funds under subsection
76(3) of the Regulations, I do not see an error warranting judicial
intervention.
Adequacy of
Reasons
[9]
It
is important to note that the applicant put forth no rationale, no argument,
budget or plan or other considerations that might have prompted the Officer to
exercise his or her discretion and direct a second evaluation. The applicant
simply reiterated the same factors already advanced, and found insufficient,
under the points system.
[10]
Decisions
of Immigration officers not to seek a second evaluation are entitled to a high
degree of deference. In this case, the record of decision indicates that the
question whether to seek a substituted evaluation was considered by the Officer.
While always desirable, there is no requirement for reasons, other than to
confirm that the officer has directed his or her mind to the request; Poblano v Canada
(Minister of Citizenship and Immigration), 2005 FC 1167;
Wickramasekera
v Canada (Citizenship and Immigration), 2010 FC 225.
If provided, the brevity of the reasons, as in this case, does not vitiate
their integrity.
[11]
As
noted, the applicant did not advance considerations, arguments or facts which
would require analysis. The applicant simply reasserted the same
considerations offered, and already rejected. The Officer’s reasons cannot be
faulted for failing to respond to arguments that were not advanced. There was,
in effect, nothing in the scales for the Officer to weigh.
[12]
The
application for judicial review is dismissed.
[13]
No
question for certification has been proposed and none arises.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review be and is hereby
dismissed. No question for certification has been proposed and none arises.
"Donald
J. Rennie"
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