Date:
20070710
Docket:
IMM-2817-06
Citation:
2007 FC 733
Ottawa, Ontario, July 10,
2007
PRESENT: The Honourable Mr.
Justice Blanchard
BETWEEN:
LEONILDO
ALBERTO PACHECO SILVA
Applicant
and
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS
FOR ORDER AND ORDER
1. Introduction
[1]
Mr. Alberto Pacheco Silva (the Applicant) seeks
judicial review of a decision of a Visa Officer (the Officer) dated April 24,
2006, wherein the Officer determined that the Applicant did not meet the
requirements for immigration to Canada as a permanent resident under the
skilled worker class.
[2]
The Applicant, who entered Canada as a visitor in or about December of
2000 was, at the date of his application, in possession of a work permit valid
until October 26, 2005. He applied for permanent resident status December 10,
2004. The Applicant claimed to have had work experience in the occupations of
Baker and Retail Trade Supervisor. In his submissions, he acknowledged that
even if he were awarded 55 points, the number of units he believed he merited, this
would still fall short of the 67 units required for the issuance of a permanent
resident visa. In fact, the Officer awarded the Applicant 57 points. In his
application letter, the Applicant consequently requested a “substituted
evaluation” under subsection 76(3) of the Immigration and Refugee Protection
Regulations, S.O.R./2002-227 (the Regulations).
2. The Decision
[3]
The Officer in her decision letter indicated
that she was not satisfied from the information on file that the Applicant had
met the following requirements of subsection 75(2) of the Regulations:
(a) within ten years preceding the date of their application
for a permanent resident visa, they have at least one year of continuous
full-time employment (37.5 hours/week) experience, or the equivalent in
continuous part-time employment in one or more occupations, other than a
restricted occupation, that are listed in Skill Type O Management Occupations
or Skill Levels 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.
[4]
The Officer further found that even if the
Applicant had achieved the experience required pursuant to subsection 75(2), he
still would not have satisfied the selection criteria. The Officer then
considered the request for the substituted evaluation pursuant to subsection 76(3)
of the Regulations and determined that the application did not merit such a
recommendation. The Officer found that the units of assessment are an accurate
indication of the Applicant’s prospects for becoming successfully established
in Canada.
3. Issues
[5]
There is no dispute as to the number of units of
assessment awarded by the Officer. The Applicant takes issue with the Officer’s
finding that the units assessed were an accurate indication of his prospects for
becoming established in Canada.
The Applicant argues that the Officer exercised her discretion in a capricious
manner without due regard to the evidence in determining that the units of
assessment assigned were an accurate indication of the Applicant’s prospects of
becoming established in Canada. The Applicant further contends that the Officer
breached the requirements of procedural fairness in exercising her discretion.
4. Standard
of review
[6]
The standard of review applicable to a Visa Officer’s
decision was considered by my colleague Justice Richard Mosley in Hassani v.
Canada (Minister of Citizenship and Immigration) 2006 FC 1283, [2006] F.C.J.
No. 1597 (QL). I am in agreement with the learned judge’s review of the case
authorities including the views expressed by Mr. Justice Yves de Montigny in Svetlana
Vladimirovna Kniazeva v. Canada (Minister of Citizenship and Immigration)
2006 FC 268. At paragraph 15 of his reasons for decision, the learned judge
dealt with the applicable standard of review of a visa officer’s decision in an
application for permanent residence under the Federal Skilled Worker Class:
…This Court has
consistently held that the particular expertise of visa officers dictates a
deferential approach when reviewing their decisions. There is no doubt in my
mind that the assessment of an Applicant for permanent residence under the
Federal Skilled Worker Class is an exercise of discretion that should be given
a high degree of deference. To the extent that this assessment has been done in
good faith, in accordance with the principles of natural justice applicable, and
without relying on irrelevant or extraneous considerations, the decision of the
visa officer should be reviewed on the standard of patent unreasonableness: Postolati
v. Canada (M.C.I.), 2003 FCT 251; Singh v. Canada (M.C.I.), 2003 FCT
312; Nehme v. Canada (M.C.I.), 2004 FC 64; Bellido v. Canada
(M.C.I.),2005 FC 452, [2005] F.C.J. No. 572 (QL).
[7]
In determining the applicable standard of
review, it is important to consider the nature of the question under review.
Here the first question before the Court deals with the exercise of the Officer’s
discretion in considering a “substituted evaluation” under subsection 76(3) of
the Regulations. 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.
[8]
The second question involves procedural
fairness. It is well accepted that questions of procedural fairness require no
assessment of the standard of review. Decisions involving a breach of
procedural fairness are not entitled to any deference on judicial review.
5. Analysis
[9]
The Applicant concedes that the number of units
of assessment claimed (55) and awarded (57) falls short of the number required
(67) for the issuance of a permanent resident visa. He nevertheless maintains
that the units of assessment awarded are not an accurate reflection of his
prospects of becoming successfully established in Canada. The Applicant contends that the Officer erred in assessing the
Applicant’s work experience and adaptability and argues that the Officer
breached the rules of procedural fairness by failing to give him an opportunity
to respond to concerns raised. The Applicant argues that the Officer’s decision
is contrary to the evidence before him and based on the record, a patently
unreasonable decision. As a consequence, the Applicant argues that the decision
should be quashed. I will now consider, in turn, the two issues raised by the
Applicant.
A. Did the Officer err in the exercise of his discretion?
[10]
A review of the Officer’s CAIPS notes indicates
that she assigned the Applicant zero units for education, six units for
language skills based on an International English Language Test System (IELTS)
test and zero units for French. In total, for these categories, the Officer
assigned two more units than the number of units suggested by counsel for the
Applicant. The Applicant takes issue with the Officer’s treatment of the
evidence in respect to the Applicant’s work experience, arranged employment and
adaptability under the spouse’s education or study.
[11]
With respect to work experience, the Applicant listed
several occupations with different employers in Ponta
Delgada, Portugal, for the period September 1988 to December 2000. These included
“Pastry Baker”, “Pastry Cook” and “Supervisor”. In Canada, he indicated that he
had been unemployed from December 2000 to October 2001 and that he worked as a baker
at Silva’s Portuguese Bakery in Cambridge, Ontario, from October, 2001 to the
“present”, the date of his application, May 25, 2004.
[12]
The Applicant contends that the Officer erred in
finding insufficient the two letters from the Applicant’s employer, one from
the employer in Portugal, the other from the employer in Canada. The Applicant argues that the Officer
failed to explain why the letters were insufficient. On their face, the
Applicant states that the letters establish that he has in excess of four years
experience.
[13]
The Respondent argues that the letters at issue
contained very little information about the Applicant’s work experience. The
letter from Portugal did not
contain a job description or even a job title, contrary to the instructions he
had received with his application for permanent residence. The letter from the
employer from Canada dated
March 29, 2004, provided the following information:
Mr. Leanildo
Silva of 36 Northview Heights Cambridge Ontario sin no. 915 579 856, has been an employee of Silva’s Portuguese
Bakery Since Oct 2001. Mr. Silva occupies the position of assistant Pastry
Chef. His responsibilities include the mixing and formation of our Portuguese
Pastries. He oversees this process and helps with the cooking of the Pastries.
Mr. Silva also assists the Bread Bakers and is responsible for working the
ovens in order to cook the bread. Mr. Silva’s current monthly wages are
3,212.00 gross. If any further information is required please call at the above
number.
[14]
The Officer noted that the Applicant presented
no other evidence of his work experience. The Officer further noted that the
Applicant’s Canadian employer had the same surname as the Applicant and noted
that the employer could be a relative. This raised concerns about whether the
Applicant had achieved the experience he claimed. As a result, the Officer
determined that Mr. Silva had not produced credible evidence of employment in Canada and assigned him zero units of
assessment for experience.
[15]
With respect to arranged employment, the Officer’s
CAIPS notes simply show that no units of assessment were awarded.
[16]
The Officer concluded that even if the Applicant
had been able to provide information to satisfy her that he had achieved four
years of experience and that he should be credited with units of assessment for
arranged employment, for French skills and for adaptability, the assessment
would still be significantly less than the minimum required to meet the
selection criteria. The Officer therefore concluded that no purpose would be
served in having the Applicant address the categories for which she expressed
concerns.
[17]
The Officer’s discretion under subsection 76(3)
of the Regulations is “residual in nature, and should be decisive only in cases
that present unusual facts, or where the Applicant has come close to obtaining
[the required] units of assessment.” See Chen v. Canada (Minister of Citizenship and
Immigration), (1999) F.T.R. 78 at page 83. Here,
there is nothing unusual about the facts of the case and the Applicant did not
come close to obtaining the required number of units. Even if I were to find
that the Officer’s assessment of the Applicant’s work experience was
unreasonable, crediting the Applicant with the maximum number units for work experience,
arranged employment and adaptability would still not bring him close to the
number of units required. Accordingly, any such error committed by the Officer
in assessing the application would not be material to the outcome. See Patel
v. Canada
(M.C.I.), 2002 FCA 55.
[18]
Upon considering the totality of the evidence, I
find the Officer’s exercise of discretion in conducting the “substituted
evaluation” cannot be characterized as arbitrary or capricious. In the
circumstances, the Officer’s decision is not unreasonable.
B. Did the Immigration Officer breach the requirements of
procedural fairness?
[19]
The Applicant contends that the Officer breached the principles
of procedural fairness by failing to provide reasons for rejecting evidence of
the Applicant’s work experience, by rejecting evidence of adaptability on the basis that there was no attestation from a translator for the
relationship, by failing to offer the Applicant the opportunity to respond to a
positive labour market opinion, and by failing to
either investigate by requesting information in writing or interviewing the
Applicant to ascertain the degree of establishment at the time that she was
rendering her decision.
[20]
I am of the view that the principles of
procedural fairness have not been breached in the circumstances of this case.
The onus is on the Applicant to provide all relevant supporting documentation
and sufficient credible evidence in support of his application. In her decision
letter, the Officer clearly stated that the Applicant had not discharged this
onus. It is for the Applicant to put his best case forward. See Lam v. Canada (M.C.I.) (1998) 152 F.T.R. 316 (T.D.). The onus does not shift to the Officer
and there is no entitlement to a personal interview if the application is
ambiguous or supporting material is not included. Here, there was no obligation
on the Officer to gather or seek additional evidence or make further inquiries.
6. Conclusion
[21]
This is a case where the Applicant fell far short of the minimum
required for admission to Canada as a permanent resident under
the Skilled Worker Class. The Officer considered the Applicant’s request
for the exercise of subsection 76(3) discretion. In the circumstances, the Officer’s
decision not to exercise her discretion was not unreasonable. In deciding as
she did, the Officer did not breach the principles of procedural fairness.
[22]
For the above reasons, the application for judicial review will be
dismissed.
[23]
The parties have had the opportunity to raise a
serious question of general importance as contemplated by paragraph 74(d)
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27,
and have not done so. I am satisfied that no serious question of general
importance arises on this record. I do not propose to certify a question
ORDER
THIS
COURT ORDERS that:
1. The
judicial review of a decision of a visa Officer dated April 24, 2006, is dismissed.
2. No
question of general interest is certified.
“Edmond P.
Blanchard”
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