Date: 20170213

Docket: IMM-3172-16

Citation: 2017 FC 180

Vancouver, British Columbia, February 13, 2017

PRESENT:    The Honourable Mr. Justice Shore

JUDGMENT AND REASONS

I.                   Nature of the Matter

[1]               This is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. The Applicant seeks judicial review of a decision of an Immigration Officer of Immigration, Refugees and Citizenship Canada [Officer] refusing her application for a permanent resident visa as a member of the Canadian Experience Class [CEC] pursuant to subsection 87.1(2) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations].

II.                Facts

[2]               The Applicant, aged 24, is a citizen of India.

[3]               In April 2011, the Applicant was issued a study permit and entered Canada to attend Columbia College in Vancouver, where she completed a diploma in psychology in December 2013. She was then issued a Post-Graduation Work Permit for three years.

[4]               The Applicant worked at Burger King as a front counter attendant from February 2013 until December 2013, and as a shift supervisor from December 2013 until April 2015. Since June 2015, she has been working for Milestones Grill and Bar as a food service supervisor.

[5]               On March 21, 2015, the Applicant applied for permanent resident status as part of the Provincial Nominee Program [PNP] of British Columbia as a food service supervisor with Milestones Grill and Bar.

III.             Decision

[6]               On July 13, 2016, an Immigration Officer determined that the Applicant did not meet the minimum requirements for a permanent resident visa through the Canadian Experience Class and thus did not qualify as a provincial nominee. The Officer was not satisfied that the Applicant met the requirements of paragraphs 87.1(2)(b) and (c) of the Regulations as the Applicant did not submit enough evidence to show what duties and actions she had performed during her employment.

[7]               On July 14, 2016, the Applicant made a request for reconsideration of the decision and provided additional information on her employment. The Officer decided not to use his discretionary power to reconsider the Applicant’s application.

[8]               On July 26, 2016, the Applicant filed an application for leave and for judicial review of the Officer’s decision.

IV.             Issues

[9]               This matter raises the following issues:

1)      Did the Officer base his decision on an erroneous finding of fact made in a perverse or capricious manner without regard to the material before him?

2)      Did the Officer fail to observe the principle of natural justice?

[10]           The applicable standard of review with regard to the Officer’s decision is reasonableness whereas the issue of procedural fairness is subject to the standard of correctness (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47; Mehfooz v Canada (Citizenship and Immigration), 2016 FC 165 at paras 9-11 [Mehfooz]; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43).

V.                Relevant Provisions

[11]           Subsection 87.1(2) of the Regulations specifies the requirements for members of the CEC to become permanent residents of Canada:

VI.             Submissions of the Parties

A.                Submissions of the Applicant

[12]           The Applicant’s main argument is that the Officer erred in law by ignoring the evaluation made by the province of British Columbia and by which she was issued a Provincial Nominee Certificate [PNC]. If the Officer wanted to reassess her ability to become economically established in Canada, he ought to follow subsections 87(1) and (3) of the Regulations. Furthermore, if the Officer had any issue with the Applicant’s PNC, he should have consulted with the provincial authorities that issued the certificate and only then substituted his evaluation of the likelihood of the Applicant to become economically established in Canada (Wai v Canada (Citizenship and Immigration), 2009 FC 780).

[13]           The Applicant submits that the Officer erred in law by not following subsections 87(1) to (4) of the Regulations to assess her application under the PNP class for which she met all the requirements. The Officer erred in law by assessing her application under the CEC.

[14]           The Officer states his reasons that the Applicant’s employment letter from Burger King does not indicate the duties and responsibilities demonstrating her work experience. The Applicant submits that before refusing her application, the Officer should have given her the opportunity to complete her application and re-submit it. By failing to give the Applicant an opportunity to complete her application, the Officer breached procedural fairness (Hassani v Canada (Citizenship and Immigration), 2006 FC 1283).

B.                 Submissions of the Respondent

[15]           As a preliminary issue, the Respondent submits that exhibit B of the Applicant’s affidavit should be struck from the record since this document was not before the Officer when he issued his decision (Abbott Laboratories Limited v Canada (Attorney General), 2008 FCA 354 at paras 35-38; Puida v Canada (Citizenship and Immigration), 2014 FC 781 at para 81).

[16]           The Respondent submits that there was no evidence before the Officer that the Applicant performed the actions described as the main duties of a food service supervisor. Nothing in the evidence established that she had the requisite one year of skilled work experience for CEC approval.

[17]           The Respondent also submits that the Applicant was assessed under the CEC requirements set out in section 87.1 of the Regulations, which governs the determination, as it is the class under which she applied.

[18]           The Respondent does not believe there was a breach of procedural fairness because the Officer was under no duty to give the Applicant an opportunity to complete her application. The Applicant ought to have been aware of the requirements she had to fulfill, but still submitted a deficient application (Obeta v Canada (Citizenship and Immigration), 2012 FC 1542 at pars 15, 25-26; Singh v Canada (Citizenship and Immigration), 2012 FC 526 at para 52).

C.                 Reply of the Applicant

[19]           The Applicant submits in reply that she submitted her application for permanent residence under the PNP class, not under the CEC as stated by the Respondent.

[20]           She also submits that the Officer failed to properly consider her request to reconsider her application, which is a breach of the principle of natural justice since the doctrine of functus officio does not apply in this case.

VII.          Analysis

[21]           For the following reasons, the application for judicial review is denied.

A.                Preliminary Issue

[22]           Regarding the preliminary issued, exhibit B of the Applicant’s affidavit should be struck since it was not before the Officer when he issued his decision. It is trite law that a judicial review hearing is to proceed on the basis of the record that was before the decision-maker when the decision was made (Ghirmatsion v Canada (Citizenship and Immigration), 2011 FC 519 at para 11).

B.                 Assessing the Applicant as part of the CEC

[23]           The Applicant claims that the Officer ought to assess her application on the basis of her PNC and not as part of the CEC. However, it is very clear from the letter she received from CIC on February 5, 2016, that:

When nominated under the Provincial Nominee Program through Express Entry, [she] must also meet the program requirements for at least one of the federal immigration programs (Federal Skilled Worker Program, Federal Skilled Trades Program, and/or Canadian Experience Class).

[24]           The Officer did not err by assessing the Applicant as part of the CEC.

C.                 Procedural Fairness

[25]           The Officer did not have a duty to inform the Applicant that her application was incomplete, nor to give her the opportunity to file all the required documents which had been missing with the application she had submitted. The onus was on the Applicant to establish that she met the requirements of the law. She had the duty to send a complete application, which she did not (Mehfooz, above, at paras 12-13).

VIII.       Conclusion

[26]           The application for judicial review is dismissed.

JUDGMENT

THIS COURT’S JUDGMENT is that the application for judicial review be dismissed. There is no serious question of general importance to be certified.

"Michel M.J. Shore"

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: