Docket: IMM-14175-23
Citation: 2024 FC 1829
Ottawa, Ontario, November 18, 2024
PRESENT: The Honourable Mr. Justice Régimbald
BETWEEN: |
WELINGTON DE CARVALHO FIGUEIREDO |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
[1] Mr. Figueiredo [Applicant] seeks judicial review of an immigration officer’s [Officer] decision denying his Temporary to Permanent Resident Pathway [TR-PR Pathway] application. The TR-PR Pathway at issue was a time-limited pathway to permanent residency for certain temporary residents working in Canada and was in effect between May 6, 2021, and November 5, 2021.
[2] The Officer refused Mr. Figueiredo’s application because he was not able to meet the minimum language proficiency level and submit language evaluations pre-dating his application. In his application, Mr. Figueiredo provided a language proficiency evaluation completed on September 13, 2021, which did not meet the minimum requirement for the TR-PR Pathway. After being provided an opportunity to demonstrate his language proficiency a second time, the Applicant filed a satisfactory language test result that was completed on October 14, 2023, which post-dated his application and the closure of the TR-PR Pathway. The Officer refused the application on the basis that upon applying for the TR-PR Pathway, the Applicant did not meet the linguistic requirements as required and that test results obtained after the reception of the application could not be accepted.
[3] Mr. Figueiredo is now seeking judicial review of the decision, challenging the Officer’s exercise of discretion. First, he submits that the Officer had discretion to accept his second language evaluation, even if it post-dated his application and the closure of the program. Second, Mr. Figueiredo argues that the Officer breached his right to procedural fairness by failing to consider that he could not reapply for the program and submit his new linguistic results because the program had ended. In my view, however, the Officer’s treatment of these two issues was reasonable.
[4] With respect to the first issue, Mr. Figueiredo relies on Kaur v Canada (Citizenship and Immigration), 2022 FC 1690 [Kaur] where the applicant mistakenly uploaded another document in place of the required education documentation in support of her application and the Court held that documents submitted subsequently to the original application could be considered. However, that case is distinguishable. In Kaur, the appropriate documents were filed before the consideration of her application and before the end of the TR-PR Pathway in that case. In this case, the Applicant submitted evidence of his linguistic qualification after the date of his application and after the TR-PR Pathway had closed.
[5] Moreover, in Rohani v Canada (Citizenship and Immigration), 2024 FC 1037 at paragraphs 35, 38-39, 43–46, 54 and 56–57, this Court, in a case very similar to this one, held that immigration officers do not have discretion to depart from eligibility requirements in a TR-PR Pathway program and to accept linguistic test results made after the date of application. In this case, because Mr. Figueiredo failed to demonstrate his linguistic qualifications at the time of his application (or before the end of the TR-PR Pathway), the Officer did not have discretion to consider the newly filed linguistic evaluation. Mr. Figueiredo simply did not meet the eligibility requirements upon application, or before the end of the TR-PR Pathway. The Officer therefore acted reasonably in refusing Mr. Figueiredo’s application, because it did not comply with the conditions of the TR-PR Pathway requiring linguistic qualification upon application.
[6] With respect to the second issue, Mr. Figueiredo relies on Okedayo v Canada (Citizenship and Immigration), 2023 FC 60 [Okedayo] and Lakhanpal v Canada (Citizenship and Immigration), 2021 FC 694 [Lakhanpal], arguing that a higher degree of procedural fairness applied because the TR-PR Pathway was time-limited and given the important consequences of a refusal to him. He argues that in the circumstances, the Officer ought to have considered his most recent linguistic evaluation.
[7] The facts in Okedayo are also distinguishable. In that case, there was a breach of fairness because the officer failed to provide notice to the applicant of an eligibility requirement that was not indicated in the TR-PR Pathway Policy. In this case, the linguistic requirements were set out as conditions to be eligible under the TR-PR Pathway Policy at the time of the application. The Officer’s refusal to consider information that was not compliant with the eligibility requirements of the TR-PR Pathway at the time of the application does not represent a breach of procedural fairness in this case.
[8] The decision in Lakhanpal is also not persuasive in this case. In Lakhanpal, judicial review was granted because the officer failed to meaningfully evaluate the materials submitted (in that case an education equivalency requirement) and to explain why the applicant did not meet the eligibility requirements. That is not the case here, where the Officer noted that upon making his application, Mr. Figueiredo did not meet the linguistic requirements (a fact that is not contested), and that he could not consider a linguistic evaluation that was made after the filing of the application. Those conclusions were reasonable on the evidence adduced before the Officer.
[9] For these reasons, Mr. Figueiredo’s application for judicial review will be dismissed.
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