Docket:
IMM-11945-12
Citation: 2013 FC 1104
Ottawa, Ontario, October
29, 2013
PRESENT: The Honourable Mr. Justice O'Reilly
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BETWEEN:
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MAHMOUD SHAABAN
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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
I. Overview
[1]
In 2006, Mr Mahmoud Shaaban, a citizen of Iraq, applied for permanent residence as a skilled worker. His application included an
employment offer from a Canadian company. The offer remained valid until
February 2013.
[2]
In 2009, an immigration officer evaluated Mr Shaaban’s
application and rejected it because his score was 63 points, four points short
of the required 67 points. The officer gave Mr Shaaban zero points for his
employment offer. The offer could have been worth up to 15 points and made a
significant difference to the evaluation of Mr Shaaban’s application.
[3]
Mr Shaaban requested that his application be
reconsidered. In 2010, Mr Shaaban was asked for additional documents. The
employer confirmed its interest in hiring Mr Shaaban.
[4]
In 2012, Mr Shaaban’s application remained under
review. The officer contacted the employer again and was informed that the job
offer was no longer valid. The officer again gave Mr Shaaban zero points for
the employment offer and scored Mr Shaaban’s application at 66 points, once
again short of the 67 point minimum.
[5]
Mr Shaaban argues that the information received
from the putative employer was “extrinsic evidence” and that he should have
been given a chance to respond to it. Further, he contends that the officer
should have conducted a substituted evaluation of his application. He asks me
to quash the officer’s decision and order another officer to reconsider his
application.
[6]
I can find no grounds for overturning the
officer’s decision. The officer’s communication with the employer did not
amount to extrinsic evidence. It was entirely foreseeable that the officer
would wish to verify the currency of the offer. Further, the officer had no
duty to carry out a substituted evaluation without a specific request from Mr
Shaaban.
[7]
The issues are:
1. Did the
officer treat Mr Shaaban unfairly?
2. Did the
officer err in failing to carry out a substituted evaluation?
II. Issue
One – Did the officer treat Mr Shaaban unfairly?
[8]
Mr Shaaban argues that it was unfair for the
officer to contact the employer and to refuse to grant him credit for arranged
employment, given the delay in responding to his application and his request
for reconsideration. Further, the officer clearly erred in the first evaluation
of his application. In addition, the communication with the employer yielded
evidence from an outside source to which Mr Shaaban should have been given a
chance to respond. If he had been aware that he would not be credited for the
job offer, he could have tried to revive the offer and supplement his
application with more advantageous language test scores.
[9]
In my view, the officer’s communication with the
potential employer did not yield “extrinsic evidence”. It was entirely proper
and predictable for the officer to check whether the offer was still valid.
With reasonable diligence, Mr Shaaban could have ensured that his offer of
employment remained in force. Moreover, he could have provided further evidence
of his language skills if he felt it would improve his chances of success.
[10]
Obviously, it was unfortunate that an error was
made in the original evaluation of Mr Shaaban’s application. However, it is the
decision on reconsideration that is in issue before me. I cannot find any unfairness
in the process leading to that decision.
III. Issue
Two – Did the officer err by failing to undertake a substituted evaluation?
[11]
Mr Shaaban argues that the officer should have
conducted a substituted evaluation – an assessment of his likelihood of
becoming successfully established in Canada even though the applicant may not
have achieved the required number of points.
[12]
An officer is not required to carry out a
substituted evaluation if the applicant does not request it. Further, a
substituted evaluation is appropriate where the number of points awarded is not
a sufficient indicator of the applicant’s ability to become economically
established in Canada.
[13]
Here, no request for a substituted evaluation
was made. Further, the officer specifically stated that he was “satisfied units
accurately reflect settlement ability”. This suggests that the officer did not
believe that Mr Shaaban’s score was an insufficient indicator of his ability to
become economically established in Canada.
[14]
Therefore, I can see no error on the officer’s
part.
IV. Conclusion
and Disposition
[15]
The officer treated Mr Shaaban fairly. In
contacting Mr Shaaban’s proposed employer, the officer did not consult
extrinsic sources of information and, therefore, had no duty to provide Mr Shaaban
a chance to respond to the information the employer provided. Further, the
officer had no obligation to conduct a substituted evaluation of Mr Shaaban’s
application in the absence of a request to do so.
[16]
I must, therefore, dismiss this application for
judicial review. Neither party proposed a question of general importance for me
to certify, and none is stated.
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