Date:
20130620
Docket:
IMM-7643-12
Citation:
2013 FC 661
Ottawa, Ontario,
this 20th day of June 2013
Present: The
Honourable Mr. Justice Pinard
BETWEEN:
SANDRA BROWN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
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, of a decision by a visa
officer (the “officer”) with the High Commission of Canada in London, England. In the decision, dated May 15, 2012, the officer refused the applicant’s application
for permanent residence under the Federal Skilled Worker class.
[2]
The
applicant is a 64-year-old citizen of the United Kingdom. In her application,
the applicant requested that the officer conduct a substituted evaluation
pursuant to subsection 76(3) of the Immigration and Refugee Protection
Regulations, SOR/2002-227 (the “Regulations”) in the event that she
received insufficient points to qualify for permanent residence.
[3]
The
officer assessed the applicant’s points as follows:
Points
assessed Maximum possible
Age 00 10
Experience 21 21
Arranged employment 00 10
Education 22 25
Official language proficiency 23 24
Adaptability 00 10
TOTAL 66 100
[4]
The
officer found the applicant obtained insufficient points to qualify for
immigration to Canada, as the minimum requirement was 67 points.
[5]
As
requested, the officer conducted a substituted evaluation. He determined that
the points awarded were an accurate reflection of the likelihood that the
applicant would be able to become economically established in Canada.
* * *
* * * * *
[6]
Subsection
76(3) of the Regulations states:
|
76.
(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.
|
76.
(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).
|
[7]
Section
83 of the Regulations provides the following:
|
83.
(1) A maximum of 10 points for adaptability shall be awarded to a skilled
worker on the basis of any combination of the following elements:
[…]
(d)
for being related to a person living in Canada who is described in subsection
(5), 5 points; and
[…]
(5)
For the purposes of paragraph (1)(d), a skilled worker shall be
awarded 5 points if
(a)
the skilled worker or the skilled worker’s accompanying spouse or
accompanying common-law partner is related by blood, marriage, common-law
partnership or adoption to a person who is a Canadian citizen or permanent
resident living in Canada and who is
[…]
(vi)
a child of the father or mother of their father or mother, other than their
father or mother,
|
83.
(1) Un maximum de 10 points d’appréciation sont attribués au travailleur
qualifié au titre de la capacité d’adaptation pour toute combinaison des
éléments ci-après, selon le nombre indiqué :
[…]
d) pour la présence au
Canada de l’une ou l’autre des personnes visées au paragraphe (5), 5 points;
[…]
(5)
Pour l’application de l’alinéa (1)d), le travailleur qualifié obtient
5 points dans les cas suivants :
a) l’une des personnes
ci-après qui est un citoyen canadien ou un résident permanent et qui vit au
Canada lui est unie par les liens du sang ou de l’adoption ou par mariage ou
union de fait ou, dans le cas où il l’accompagne, est ainsi unie à son époux
ou conjoint de fait :
[…]
(vi)
un enfant de l’un des parents de l’un de leurs parents, autre que l’un de
leurs parents,
|
* * *
* * * * *
[8]
The
only issue raised by the applicant in this matter is whether the officer erred
in his assessment of the substituted evaluation.
[9]
The
standard of review for a discretionary decision of an immigration officer
relating to a permanent residence visa under the Federal Skilled Worker class
is one of reasonableness (Requidan v The Minister of Citizenship and
Immigration, 2009 FC 237 at para 12; Kisson v The Minister of Citizenship
and Immigration, 2010 FC 99 at para 11).
[10]
In
order for a decision to be reasonable, the Court will consider “the existence
of justification, transparency and intelligibility within the decision-making
process” and “whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir v
New Brunswick, [2008] 1 S.C.R. 190 at para 47 [Dunsmuir]).
* * *
* * * * *
[11]
The
applicant submits that, when doing the assessment of substituted evaluation,
the officer erred by not considering the fact that it was highly likely that
the applicant would soon have two sons available in Canada to provide financial
and social support to her. The applicant alleges that the officer had access to
the fact that she had two sons in the final stages of immigrating to Canada.
[12]
The
applicant claims that had this fact been considered in conjunction with the
fact that the point assessment left her only one point short of the required
amount, there would have been compelling information demonstrating that she
would likely become economically established in Canada.
[13]
For
his part, the respondent submits there is no indication in the applicant’s
record that she ever informed the visa officer that the reason she requested a substituted
evaluation was that the processing of her two sons’ applications for permanent
residence was almost complete.
[14]
Moreover,
there is no indication in the affidavit sworn by Jialan Pan, case manager with
the law firm Goldman Associates, filed in support of this application for judicial
review that the documents concerning the applicant’s sons’ applications were
ever before the officer. As such, the respondent asserts that the documents
relating to the sons’ applications are not properly before the Court and should
be given no weight.
[15]
In
reply, the applicant submits that the main purpose of Ms. Pan’s affidavit is to
show that the status of both of the applicant’s sons’ applications for
permanent residence was available to the visa officer at the time of his
decision and that this evidence is appropriately before the Court.
[16]
In
Fernandes v The Minister of Citizenship and Immigration, 2008 FC 243 at
para 7, Deputy Judge Strayer stated the following regarding the purpose of a
substituted evaluation assessment as prescribed in subsection 76(3) of the
Regulations:
[7] It is clear that
the purpose of subsection 76(3) is to allow an exception to be made to the
point system where the Applicant’s chances of becoming successfully established
in Canada is greater than is reflected in the points assessment: see e.g. Yeung
v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1174
at para. 15. To obtain such advantage the Applicant must request the exercise
of the discretion and must give some good reasons for it: see Lam v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1239 at para. 5.
However, such reasons need not be elaborate and may consist of a more full
description of the Applicant’s background, education, and work experience and
knowledge of an official language of Canada: see Nayyar v. Canada (Minister
of Citizenship and Immigration), [2007] F.C.J. No. 342 at para. 12.
[17]
I
agree with the respondent that there is no evidence in the file that the
applicant’s sons’ applications were part of the record before the officer.
Contrary to the applicant’s assertions, the Pan affidavit does not attest to
this. Ms. Pan’s affidavit simply establishes that Ms. Pan’s law firm
represented the applicant’s sons in their applications for permanent residence
and indicates important dates related to the applicant’s sons’ applications.
[18]
Accordingly,
I am not persuaded that the officer erred by not considering the status of the
applicant’s sons’ applications. The onus was on the applicant to provide the
necessary information for her application (Tikhonova v The Minister of
Citizenship and Immigration, 2008 FC 847 at para 11). Given that the
applicant’s only challenge to the officer’s decision is that the officer did
not consider evidence which I have found was not before the officer, I am of
the view that the officer’s decision on the substituted evaluation fell within
the range of possible, acceptable outcomes (Dunsmuir, supra).
[19]
As
such, the officer’s decision is reasonable and the Court’s intervention is not
warranted.
* * *
* * * * *
[20]
For
the above-mentioned reasons, the application for judicial review is dismissed.
[21]
I
agree with the parties that this is not a matter for certification.
JUDGMENT
The application for
judicial review of a decision by a visa officer with the High Commission of
Canada in London, England, dated May 15, 2012, is dismissed.
“Yvon Pinard”
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