Date: 20070215
Docket: IMM-1545-06
Citation: 2007 FC 175
BETWEEN:
HARBANS
SINGH KAINTH
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR
ORDER
GIBSON J.
Introduction
[1]
These
reasons follow the hearing on the 13th of February, 2007 of an
application for judicial review of a decision of an officer (the “Officer”) of
the respondent at the High Commission for Canada in New Delhi, India. The
decision is dated the 19th of January, 2006. In the decision, the Officer,
notwithstanding that the applicant received sufficient points of assessment to
justify issuance of a permanent resident visa in his favour, denied the
applicant’s application based upon an exercise of negative discretion or
substituted evaluation to determine that she was:
“… not satisfied that you [the
applicant] would be able to become economically established in Canada. You were given
an opportunity to address these concerns at your interview, but the information
and the explanations that you gave did not satisfy me. A senior officer
concurred with this evaluation.”
Background
[2]
The
applicant is a citizen of India. He applied for a permanent resident visa
to come to Canada on the 12th
of January, 2000. He proposed to come to Canada with a
dependant daughter. His spouse and two other children were not included in his
application. His first language is Punjabi but he established some capacity to
speak, understand, read and write English. He proposed that his application be
evaluated as a member of the economic class on the basis of the occupation “paralegal”.
[3]
In
the transition period between the application of the Immigration Act and
related regulations and the Immigration and Refugee Protection Act and
related regulations, his application was evaluated under both regimes. In the
assessment under the Immigration Act and regulations, he received 65
units of assessment when 70 units of assessment was required to qualify. Under
the Immigration and Refugee Protection Act and regulations, he received
68 units of assessment, thus qualifying for immigration, since only 67 units of
assessment were required to qualify. Notwithstanding, his qualification under
the Immigration and Refugee Protection Act and regulations, his
application was rejected through the exercise of a substituted evaluation made
under the authority of sub-section 76 (3) of the Immigration and Refugee
Protection Regulations.
The Issues
[4]
Two
issues were raised on this application for judicial review on behalf of the
applicant: first, the appropriate standard of review; and second, whether or
not the Officer erred against the
appropriate standard of review in the
exercise of substituted evaluation, more particularly, by “double-counting” the
applicant’s limited English language ability.
Analysis
Standard of Review
[5]
While
counsel for the applicant acknowledged that factual findings of a decision
maker such as the Officer on applications for permanent residents in Canada are
reviewable on a standard of review of patent unreasonableness, she urged that
determinations based upon the exercise of negative discretion or negative
substituted evaluation are reviewable on a higher standard. In this regard,
counsel relied on Alam v. Canada (Minister of
Citizenship and Immigration) Where my colleague,
Justice Mactavish, wrote at paragraph [22] of her reasons:
There is a heavier onus on a visa officer
to justify the exercise of negative discretion under paragraph 11 [3][b] of the
Regulations than there is with respect to the exercise of, or refusal to
exercise a positive discretion under paragraph 11 [3] [a];
Justice Mactavish’s references to
subsection 11 [3] of the Regulations is to that subsection of the Regulations
under the former Immigration Act. Nothing turns on the distinction
between that sub-section and subsection 76 [3] of the Regulations under the Immigration
and Refugee and Protection Act.
[6]
As
authority for the brief quoted paragraph, Justice Mactavish relies on Hameed
v. Minister of Citizenship and Immigration where Justice Evans, for the
majority of a panel of the Court of Appeal, reached the same conclusion at
paragraph [22] of his reasons.
[7]
Counsel
before the Court on this matter reached consensus that the appropriate “higher”
standard of review is reasonableness simplicitier. I am satisfied that on the
particular facts of this matter, that a pragmatic and functional analysis
supports the consensus between counsel.
Reviewable Error in the
use of Negative Discretion or Negative Substituted Evaluation
[8]
Counsel
for the applicant urged that the Officer, having awarded points of assessment
for the applicant’s ability in the use of the English language under both the
points assessment under the Immigration Act and the Immigration and
Refugee Protection Act erred by “double-counting” or “double-consideration”
of the applicant’s English language ability in determining to exercise negative
discretion or negative substituted evaluation. I disagree.
[9]
In
the CAIPS notes supporting the Officer’s decision, the Officer wrote:
“…I am not satisfied that the points that
he [the applicant] has been awarded are a sufficient indicator of the
likelihood of his ability to become “economically established” in Canada. I have made this
determination because [the applicant] is at a stage of his career where it would
be difficult to change direction and he has stated he does not intend to pursue
being a paralegal in Canada but rather that he would do “any job in Toronto”. In addition, because of
his limited English abilities [the applicant] stated he would interact only
with other Punjabi speakers. This indicates he does not intend to integrate
into Canadian society as a whole but rather to remain within his own
community. [The applicant’s] spouse has a Master’s Degree, however, she does
not speak English and her experience would not likely be relevant in Canada. I do not feel that the
number of points awarded (68) are a sufficient indicator of the [applicant’s]
ability to become economically established in Canada.”
[10]
The
Officer did not “double-count” the applicant’s limited ability in English but
rather relied on the applicant’s performance at interview where he was
remarkably vague as to how he intended to support himself in Canada, indicated
that he intended to restrict his integration into Canadian
society to a very limited element of that
society and the reality that the applicant’s spouse, though highly educated,
did not have experience that would likely be relevant in Canada.
[11]
Against
the standard of review of reasonableness simplicitier, I am satisfied that the
Officer’s determination to rely on negative discretion or negative substituted
evaluation to reject the applicant’s application for permanent residence in
Canada by reason of her concern that the points of assessment awarded to him
were not a sufficient indicator of the applicant’s ability to become
economically established in Canada, was open to her.
Conclusion
[12]
Based
on the foregoing brief analysis, I have concluded that this application for
judicial review should be dismissed.
Certification of a Question
[13]
Counsel
for the applicant and respondent were advised of the Court’s determination at
the conclusion of the hearing of this matter. Neither recommended
certification of a question. The Court itself is satisfied that no serious
question of general importance that would be determinative on an appeal of the
Court’s determination herein arises. No question will be certified.
“Frederick
E. Gibson”
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1545-06
STYLE OF CAUSE: HARBANS
SINGH KAINTH v. MCI
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 13, 2007
REASONS FOR ORDER: GIBSON, J.
DATED: FEBRUARY 15, 2007
APPEARANCES:
WENNIE
LEE FOR
THE APPLICANT
ALEXIS
SINGER FOR THE
RESPONDENT
SOLICITORS
OF RECORD:
WENNIE LEE
Lee &
Company FOR
THE APPLICANT
Toronto,
Ontario
John H. Sims,
Q.C.
Deputy Attorney
General of Canada FOR
THE RESPONDENT
Department of
Justice
Ontario Regional Office
Toronto, Ontario
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