Docket: IMM-3573-16
Citation:
2017 FC 377
Ottawa, Ontario, April 19, 2017
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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BHUPENDRA KUMAR
JAIN
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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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JUDGMENT AND REASONS
[1]
The Applicant, Bhupendra Kumar Jain, is a 53
year old citizen of India who, in 2014, applied for a permanent resident visa
as a federal skilled worker; his spouse and two children were included in the
visa application as accompanying family members. A Program Support Officer
[PSO] at Citizenship and Immigration Canada informed the Applicant in a letter
dated November 20, 2014, that his application had received a positive
determination of “eligibility to be processed,”
but that a final decision on his “eligibility to be
selected” as a federal skilled worker would be made by a visa office.
[2]
In a letter dated June 29, 2016, an Immigration
Officer [the Officer] at the High Commission of Canada in London, United
Kingdom, refused the Applicant’s application for a permanent residence visa
because the Officer was not satisfied that the Applicant would be able to
become economically established in Canada. The Applicant has now applied under
subsection 72(1) of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA], for judicial review of the Officer’s decision.
I.
Background
[3]
Division 1 of Part 6 of the Immigration and
Refugee Protection Regulations, SOR/2002‑227, as amended [Regulations],
outlines the process for a foreign national to apply for permanent residence
under the federal skilled worker class. An applicant must establish, among
other things, that they have experience in a particular occupation outlined in
the National Occupational Classification [NOC]. An applicant must
also establish that they will be able to become economically established in
Canada; this is assessed by awarding points based on the selection criteria
stated in paragraph 76(1) (a) of the Regulations. These criteria include
an applicant’s education, proficiency in English or French, experience, age,
arranged employment in Canada, and adaptability. An applicant must obtain a
minimum number of 67 points in order to be issued a permanent resident visa.
However, under subsection 76(3), an immigration officer may substitute the
criteria set out in paragraph 76(1) (a) with their evaluation of the likelihood
of a skilled worker’s ability 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.
[4]
Based on his extensive experience in the banking
industry, the Applicant applied to be assessed under NOC code 0013:
Senior managers - financial, communications and other business services. The
Applicant acknowledged in his application materials that he did not have the
requisite points based on the selection criteria from paragraph 76(1) (a) of
the Regulations since he self-assessed his point score at 66, one point
short of the minimum amount. The Applicant reached this score by calculating 22
points for his education, 24 points for his proficiency in English, 15 points
for his experience, and five points for adaptability; he did not assign himself
any points for his age or any arranged employment in Canada.
[5]
Since the Applicant’s self-assessed score was
below the minimum amount of required points, he requested a substituted
evaluation under subsection 76(3) of the Regulations. The applicable
operational manual states that this subsection “may be
used if an officer believes the point total is not a sufficient indicator of
whether or not the applicant may become economically established in Canada.”
The Applicant submitted to the Officer that it was highly likely he and his
family could successfully establish themselves in Canada because of various
factors: his employability based on his senior management experience in the
international banking industry; his English skills; his wife’s education and
work experience; the fact he was only 50 years of age; his previous permanent
resident status in Canada; his son’s enrollment at the University of British
Columbia; and, his financial assets. The Applicant further submitted in his
application that his financial resources would assist with his family’s ability
to economically establish in Canada because he had nearly CAD $3,000,000 in
assets and would transfer at least CAD $1,000,000 when they immigrated.
II.
The Officer’s Decision
[6]
In a letter dated June 29, 2016, the Officer
refused the Applicant’s request for a permanent resident visa. The Officer
noted subsection 12(2) of the IRPA and subsection 75(1) of the Regulations,
pursuant to which a foreign national may be selected as a member of the
economic class as a skilled worker on the basis of their ability to become
economically established in Canada. The Officer reviewed the selection criteria
stated in subsection 76(1) of the Regulations and assessed 66 points for
the Applicant. The Officer’s assessment of each of the selection criteria was
identical to the self-assessment submitted by the Applicant. The Officer noted
that the Applicant did not obtain the minimum number of points required for a
permanent resident visa.
[7]
The Officer then proceeded to address the
Applicant’s request for consideration under subsection 76(3) of the Regulations,
pursuant to which an officer may substitute their evaluation of the likelihood
of a 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. After reviewing the Applicant’s
submissions in this regard, the Officer expressed concerns over the Applicant’s
ability to economically establish in Canada:
The statement provided that you will find
work in financial services due to your previous work experience does not
satisfy me that you will economically establish despite obtaining insufficient
points. Your evidence of funds means that you may not be considered
inadmissible for financial reasons, however, this does not demonstrate an ability
to economically establish. I have reviewed all of the information before me,
however the information and the explanations you have given me have not
satisfied me that you will be able to become economically established in Canada
despite obtaining insufficient points. As a result, I am not substituting my
evaluation pursuant to subsection 76(3).
[8]
The Officer noted in the Global Case Management
System [GCMS] notes that the Applicant had “not
provided a specific plan as to what he intends to do to find work and
economically establish in Canada” and that he had not provided evidence
of “making contact with prospective employers in Canada
or …of any potential job offers in Canada.” The Officer acknowledged
that the Applicant had significant financial assets which would assist with his
family’s settlement, but found that “this does not
equate to economic establishment.” The Officer also noted that the
Applicant had failed to meet the residency requirements, relinquishing his
previous permanent resident status in 2014, and had not provided an explanation
as to why he had not met those requirements; it was, the Officer noted in the
GCMS notes: “of concern that he failed to economically
establish in Canada previously.” The Officer concluded his substituted
evaluation by stating that the points awarded adequately reflected the
Applicant’s ability to economically establish in Canada.
III.
Issues
[9]
The Applicant’s submissions raise the following
issues:
1.
What is the appropriate standard of review?
2.
Did the Officer err in stating that significant
financial assets do not equate to economic establishment?
3.
Was the Officer’s decision reasonable?
4.
Did the Officer improperly reconsider the
decision made by the PSO?
IV.
Analysis
A.
Standard of Review
[10]
The standard of review in respect of a visa
officer’s assessment of a permanent resident application under the federal
skilled worker class is reasonableness; the same standard applies to a visa
officer’s decision to exercise the discretion to conduct a substituted
evaluation under subsection 76(3) of the Regulations (see: Rahman v
Canada (Citizenship and Immigration), 2013 FC 835 at para 16, [2013] FCJ No
884; Ghajarieh v Canada (Citizenship and Immigration), 2013 FC 722 at
para 12, 435 FTR 211 [Ghajarieh]; Brown v Canada (Citizenship and
Immigration), 2013 FC 661 at para 9, [2013] FCJ No 726). As noted in Ghajarieh,
a visa officer making a determination under subsection 76(3) is “a specialized decision-maker whose factual findings relating
to an applicant’s eligibility for permanent residence in Canada attract
significant deference” (para 12).
[11]
Accordingly, the Court should not intervene if
the Officer’s decision is justifiable, transparent, and intelligible, and it
must determine “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 SCC 9 at para 47,
[2008] 1 S.C.R. 190. Those criteria are met if “the
reasons allow the reviewing court to understand why the tribunal made its
decision and permit it to determine whether the conclusion is within the range
of acceptable outcomes”: Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 16, [2011]
3 SCR 708. Additionally, “as long as the process and
the outcome fit comfortably with the principles of justification, transparency
and intelligibility, it is not open to a reviewing court to substitute its own
view of a preferable outcome”; and it is also not “the function of the reviewing court to reweigh the evidence”:
Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at paras 59,
61, [2009] 1 S.C.R. 339.
B.
Did the Officer err in stating that significant
financial assets do not equate to economic establishment?
[12]
The Applicant relies heavily upon Choi v Canada
(Citizenship and Immigration), 2008 FC 577 at para 21, 167 ACWS (3d) 979 [Choi],
where this Court stated that: “any consideration under
subsection 76(3) should not be limited to the assessment of points, but rather
should be open to all factors identified in subsection 76(1), including the
settlement funds possessed by the applicant.” According to the
Applicant, settlement funds are an important factor to be considered, and the
Officer in this case clearly erred in finding that the availability of such funds
is not an indicator of “economic establishment.”
[13]
The Respondent argues that the Officer did not
make any errors in his assessment and treatment of the Applicant’s settlement
funds. The Respondent distinguishes Choi, not only because it was
decided under a different legislative scheme, but also because the visa officer
in Choi completely failed to consider the existence of settlement funds.
In this case, unlike Choi, the Respondent maintains that the Officer did
consider the Applicant’s settlement funds. The Respondent cites Xu v Canada
(Citizenship and Immigration), 2010 FC 418 at para 31, 366 FTR 230 [Xu],
where Justice Zinn noted that: “Parliament chose not
only to make settlement funds or arranged employment a minimum requirement but
also removed those considerations from the list of criteria for which an
officer may substitute his or her opinion.” In addition, the Respondent
refers to Zulhaz Uddin v Canada (Citizenship and Immigration), 2012 FC
1005 at para 41, [2012] FCJ No 1095, where Justice O’Keefe stated that: “officers are not required to consider these [settlement
funds] in subsection 76(3) analyses.” According to the Respondent, the
Officer recognized the Applicant’s settlement funds but reasonably found that
this factor did not equate to becoming economically established in Canada.
[14]
Despite the parties’ arguments to the contrary,
the cases they cite with respect to this issue are not contradictory. In Xu,
the Court did not state that a visa officer could never consider settlement
funds when conducting a substituted evaluation under subsection 76(3); on the
contrary, Justice Zinn merely refused to import a requirement that an officer
must consider such funds:
[32] In my opinion, for this Court to
import the requirement that these funds must be considered by an officer
is to overstep the proper role of the Court. I read section 76(3) of the
Regulations as not requiring consideration of the settlement funds available to
the applicant; however, that is not to say that an officer cannot consider the applicant’s
settlement funds.
[33] Justice Kelen in Choi did
not hold that the officer was required to consider settlement funds; rather he
held that “any consideration under subsection 76(3) should not be limited to
the assessment of points, but rather should be open to all factors identified
in subsection 76(1).” …
[15]
The Officer in this case explicitly considered
the Applicant’s settlement funds, noting in the GCMS notes that the Applicant “does have significant financial assets which would assist
with the family’s settlement, however this does not equate to economic
establishment.” This statement by the Officer was made immediately after
the Officer cited the lack of evidence concerning the Applicant’s efforts to
seek employment in Canada. It does not run afoul of the jurisprudence because
the Officer did not state that settlement funds are not “an indicator” of economic establishment; the Officer,
instead, found that these funds, without more, do not “equate”
to economic establishment.
[16]
The Court in Xu observed that the
existence of settlement funds, alone, is not indicative of the likelihood of
economic establishment:
[31] Parliament chose not only to make
settlement funds or arranged employment a minimum requirement but also removed
those considerations from the list of criteria for which an officer may
substitute his or her opinion. It might reasonably be suggested that it did so
because it was of the view that settlement funds, beyond a minimum level, are
not indicative of the likelihood of economic establishment. Section 76(1) (b)
of the Regulations points to Parliament being concerned with how skilled
workers will meet their immediate economic needs upon arriving in Canada...
Presumably, these buffer resources are not included in the point calculation because
eventually they will run out without employment, and they say nothing of
whether a foreign national will find employment.…. In contrast, an arranged
offer of employment is strong evidence that a foreign national is sufficiently
skilled to compete in the Canadian job market for their specific skill, which
is why points are awarded for pre-arranged employment.
[17]
In this case, it was reasonable for the Officer
to state and find that settlement funds do not equate to economic establishment
for the purpose of obtaining a permanent resident visa in the federal skilled
worker class. If this were not so, individuals with significant amounts of
money and assets would qualify under this class even if they failed to be
assessed any points under the selection criteria in paragraph 76(1) (a). While
settlement funds may be a relevant consideration when a visa officer makes a
substituted evaluation under subsection 76(3), they do not, in and of
themselves, equate to economic establishment or the likelihood of a skilled
worker to become economically established in Canada. An officer may consider
the existence of settlement funds as a factor, along with all other relevant
factors, to determine whether the skilled worker may become economically
established in Canada.
C.
Was the Officer’s decision reasonable?
[18]
According to the Applicant, the Officer’s
decision is unreasonable in light of the Applicant’s substantial settlement
funds, experience, ties to Canada, age, and the stated need for workers in NOC
code 0013. The Applicant notes that he fell just one point short of the
required 67 points to be eligible for a permanent resident visa, and that his
circumstances should have led the Officer to make a different determination for
several reasons. First, his settlement funds were approximately 40 times more
than what was required for a family of four. Second, he has experience in an
occupation with a demand in the labour market according to the updated
Ministerial Instructions. Lastly, he received no points for his age, although he
was only 50 years old at the time of application.
[19]
The Respondent argues that the Officer’s
decision under subsection 76(3) of the Regulations was consistent with
the jurisprudence and reasonable. Subsection 76(3) only applies to exceptional
circumstances where the points awarded are not a sufficient indicator of
whether a skilled worker will become established in Canada. According to the
Respondent, a visa officer is owed considerable deference in making such a
determination and the “fact that the applicant or even
this court would have weighed the factors differently is not a sufficient
ground for judicial review” (Esguerra v Canada (Citizenship and
Immigration), 2008 FC 413 at para 16, 166 ACWS (3d) 358). The Respondent
says in view of Roohi v Canada (Citizenship and Immigration), 2008 FC
1408 at para 32, [2008] FCJ No 1834, that a substituted evaluation “may result in a negative substituted evaluation as well as
in a positive substitute evaluation.” In the Respondent’s view, the
Applicant failed to establish that his circumstances warranted the Officer to
exercise his exceptional discretion under subsection 76(3).
[20]
The Applicant does not claim that the Officer’s
decision lacks transparency, intelligibility, or justifiability in the
decision-making process. The Applicant does contend though, that the Officer’s
decision is an unreasonable or unacceptable outcome. In my view, the Applicant’s
arguments amount to little more than disagreement with the conclusion the
Officer reached. It is neither the Applicant’s nor this Court’s role to
re-evaluate the likelihood of the ability of the Applicant to become
economically established in Canada under subsection 76(3) of the Regulations.
[21]
The Officer’s determination in this case was
reasonable. Under subsection 76(3) of the Regulations, a visa officer is
tasked with determining “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.” In conducting the
substituted evaluation, the Officer reviewed the points assessed for each of
the selection criteria, the Applicant’s settlement funds, and the Applicant’s
attempts to find employment in Canada, and determined that the points awarded
were indeed a sufficient indicator of whether the Applicant may become
economically established in Canada. Although the Applicant had significant
settlement funds, he provided no evidence as to his efforts to seek employment
in Canada. The Officer weighed these considerations in reaching the final
decision. The Applicant’s significant settlement funds did not necessitate a
positive determination. The Officer was entitled to review all factors to
determine whether the points awarded properly reflected the Applicant’s ability
to economically establish in Canada. The Officer’s decision should not be
disturbed because it falls within the range of acceptable and possible outcomes
defensible in respect of the facts and the law.
D.
Did the Officer improperly reconsider the
decision made by the PSO?
[22]
The Applicant claims that the Officer improperly
reconsidered the PSO’s determination under subsection 76(3) of the Regulations,
pointing to the PSO’s letter dated November 20, 2014, which stated that the
Applicant’s application had received a positive determination of “eligibility to be processed” but that a final
decision on his “eligibility to be selected” as
a federal skilled worker would be made by a visa office. The Applicant suggests
that the PSO made a positive determination under subsection 76(3), thereby
restricting the Officer’s analysis to only whether the Applicant was
inadmissible on grounds of misrepresentation, health, security, or criminality.
[23]
The Respondent says the Applicant’s argument is
without merit because it fails to appreciate the distinct roles of a program
support officer and a visa officer. In accordance with the Ministerial
Instructions, a program support officer only determines whether an applicant
meets the requirements as to be eligible for processing. Once this is
determined, the program support officer refers the file to the visa office for
a final selection decision. In the present case, the GCMS notes reveal that
this occurred. The PSO noted that the Applicant was eligible to be processed
and indicated the file would be sent to the “visa
office for further assessment/decision” and “…for possible substituted
evaluation.”
[24]
On this issue, I agree with the Respondent. The
Applicant’s argument is without merit. The PSO did not make any determination
as to whether the Applicant should receive a permanent resident visa under the
federal skilled worker class. The PSO’s letter clearly stated that the
Applicant’s application was eligible to be processed, and explicitly stated the
final decision regarding “eligibility to be selected as
a federal skilled worker” would be made by a visa office. The PSO did
not purport to make any decision regarding the merits of the Applicant’s
application for permanent residence, let alone conduct any substituted
evaluation under subsection 76(3) of the Regulations. This is confirmed
by the notes in the GCMS dated November 12, 2014, which indicated: “Applicant does not appear to have required 67 points on the
selection grid. To officer for review”; and then eight days later on
November 20, 2014, stating that the file was “forwarded
to visa office for possible substituted evaluation.” Thus, the PSO never
made any determination as to the merits of the Applicant’s application for a
permanent resident visa; all the PSO did was conduct an initial review of the
application to ascertain its “eligibility to be
processed” since the final decision as to the Applicant’s “eligibility to be selected as a federal skilled worker”
rested with a visa office.
V.
Conclusion
[25]
For the reasons stated above, this application
for judicial review is dismissed. The Officer’s decision in this case is
justifiable, transparent, and intelligible, and is an acceptable outcome
defensible in respect of the facts and law.
[26]
Neither party proposed a question for
certification, so no such question is certified.
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