El-Souri v. Canada (Minister of Citizenship and
Immigration)
Between
Omer El-Souri, Applicant, and
The Minister of Citizenship and Immigration, Respondent
The Minister of Citizenship and Immigration, Respondent
[2012] F.C.J. No. 728
2012 FC 466
Docket IMM-6002-11
Federal Court
Toronto, Ontario
Phelan J.
Heard: April 16, 2012.
Judgment: April 20, 2012.
Docket IMM-6002-11
Federal Court
Toronto, Ontario
Phelan J.
Heard: April 16, 2012.
Judgment: April 20, 2012.
(20 paras.)
REASONS FOR JUDGMENT
PHELAN J.:--
1 The
Applicant, a senior consular officer at the Canadian Embassy in Riyadh, was
denied a skilled worker visa to Canada. He seeks judicial review of a decision
of a second visa officer (2nd Officer) who did not concur with a first visa
officer's (1st Officer) decision to grant the visa application.
2 In
2007 the Applicant applied to immigrate to Canada under the "Skilled
Worker" category. He did not secure sufficient points to automatically
qualify for admission but after an interview by the 1st Officer, that Officer
made a positive recommendation for substituted evaluation in accordance with s.
76(3) of the Immigration and Refugee Protection
Regulations (Regulations).
· 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).
3 In
accordance with the substituted evaluation method, s. 76(4) of the Regulations
required that the 1st Officer's evaluation be concurred with by another officer
- the 2nd Officer.
· 76. (4) An evaluation made under subsection
(3) requires the concurrence of a second officer.
* * *
· 76. (4) Toute décision de l'agent au titre du
paragraphe (3) doit être confirmée par un autre agent.
4 The
major area of concern was the Applicant's business plan and the amount of
capital he was prepared or able to invest. The Applicant's plan was to
establish a business that would assist students coming from Saudi Arabia and
other Gulf countries by arranging for their accommodation and transportation as
well as by meeting them at the Halifax airport. The Applicant had $50,000 to
invest.
5 The
1st Officer, while concluding that the business plan was reasonable, observed
that the funds available were "a bit low". Nevertheless he concluded
that the Applicant could economically establish himself.
6 The
2nd Officer, who did not interview the Applicant but reviewed the file notes
and documents and spoke with the 1st Officer, reached a different conclusion.
The 2nd Officer was not convinced that the Applicant could establish himself in
Canada. He was concerned that the Applicant had no experience as an
entrepreneur or in running a business, that the funds were not sufficient and
that if the business failed, at age 62, the Applicant would be able to
establish himself. The 2nd Officer was aware that the Applicant's wife was
trained as a teacher and that his daughter was established in Canada.
7 As
a result of the 2nd Officer's refusal to concur, the Applicant's visa request
was denied.
8 The
Applicant raises (although differently phrased) two issues:
Was there a denial of
natural justice in that there was a breach of the principle of "he who
hears must decide" or that the Applicant was denied an opportunity to
address the 2nd Officer's concerns?
Was the 2nd Officer's
decision reasonable given his failure to consider the relevant evidence?
9 It
is well established that the first issue attracts a standard of review of
correctness (see Canada (Citizenship and Immigration) v
Khosa, 2009 SCC 12, [2009] 1 SCR 339, paras 43 and 50).
It is also well established that on the second issue the standard is
reasonableness (see Malik v Canada (Minister of
Citizenship and Immigration), 2009 FC 1283, para 22).
A. Natural Justice
10 While
the Respondent tries to tie a link between s. 87(4), which addresses the issue
of concurrence in the context of the provincial nominee class, and the s. 76(4)
concurrence provision, those two provisions serve very different purposes and
do not assist in the analysis of this first issue.
11 Fairness
must be assessed in the context of the specific case. Section 76(4) neither
precludes nor requires the 2nd Officer to conduct an interview or to otherwise
follow all the steps of the 1st Officer.
12 As
Mainville J. (as he then was) concluded in Malik, above, at paragraph 26, the procedural safeguards in a skilled
worker case, where no established rights are diminished, are not extensive.
This is particularly so where the Applicant knew that he had not met the
required point threshold and was seeking an alternate and discretionary
assessment.
· 26 In this case, the Applicant holds no
unqualified right to enter and to remain in Canada: Chiarelli, ibid, at pages
733-34. He applied for permanent residence under the federal skilled worker
class and the process under the Immigration and Refugee
Protection Act and the Regulations provides for an
assessment of clear and specific criteria under a points system leaving little
discretion to visa officers and which does not normally require an interview or
other hearing with applicants. The nature of the regulatory scheme, the role of
the decision of the visa officer in the overall scheme, and the choice of
procedure made do not therefore suggest the need for strong procedural
safeguards beyond what is already provided for in the legislation, save the
procedural safeguard concerning proper information to applicants as to the
criteria used and the documentation required to properly assess their
applications. Though the decision to grant or not an application for permanent
residence under the federal skilled worker class is obviously important to the
individual affected, it is not such as to affect the fundamental freedoms or
other fundamental rights of an applicant, such as a criminal proceeding or, in
the immigration context, a deportation proceeding might have. In addition, no
undertakings are made to applicants as to an interview or as to additional
notification if documentation is missing or insufficient, thus considerably
limiting expectations of applicants in such matters.
13 As
held in Silion v Canada (Minister of Citizenship and
Immigration) (1999), 173 FTR 302 at para 11, there is no
entitlement to a personal interview. In this case, the 2nd Officer had the
benefit of the notes of the interview conducted by the 1st Officer.
14 With
respect to the principle of "he who hears must decide", in fact the
final decision maker, the 2nd Officer, did hear the matter through his review
of the file, the documents and the notes. The process and procedures followed
are consistent with the role a "concurring" officer is to play in
this process.
15 This
was not a case involving concerns about credibility or an instance of
conflicting evidence which might require a different process; this was a case
regarding the sufficiency of the Applicant's business plan, the adequacy of
capital and an assessment of the Applicant's ability to establish himself. As
such, there was no "fairness" requirement for an interview. This
conclusion is consistent with the reasoning of Justice Mosley in Hassani v Canada (Minister of Citizenship and Immigration), 2006 FC 1283, at para 24:
· 24 Having reviewed the factual context of the
cases cited above, it is clear that where a concern arises directly from the
requirements of the legislation or related regulations, a visa officer will not
be under a duty to provide an opportunity for the applicant to address his or
her concerns. Where however the issue is not one that arises in this context,
such a duty may arise. This is often the case where the credibility, accuracy
or genuine nature of information submitted by the applicant in support of their
application is the basis of the visa officer's concern, as was the case in Rukmangathan, and in John and Cornea cited by
the Court in Rukmangathan,
above.
B. Reasonableness
16 The
Applicant's challenge to the merits of the 2nd Officer's decision is that the
Officer failed to consider all the relevant evidence. In particular, the
allegation is that the 2nd Officer did not consider the similarity between the
Applicant's consular duties and the proposed business, the establishment of the
Applicant's daughter in Canada and the Applicant's ability to live with her or
the Applicant's wife's experience as a teacher.
17 There
is no evidence that the 2nd Officer ignored evidence; he had the complete file
at his disposal. Moreover, the file raised the very concerns which influenced
the 2nd Officer including an unstructured business plan devoid of the usual
financial analysis for a start-up business. The Applicant failed to file any
form of budget, cash flow analysis or market plan. This was open to him to do
so. The 2nd Officer is not required to demand such information.
18 As
with the first issue, the real problem was with the sufficiency of the business
plan. On these facts it was open to the 2nd Officer to reach the conclusion he
did.
19 This
case perhaps illustrates the problem with a "reasonableness" standard
where it is reasonable to reach opposite conclusions, as occurred between the
1st Officer and the 2nd Officer. However, that result is clearly contemplated
by the s. 76(4) requirement for concurrence.
20 This
judicial review will be dismissed. The parties requested that the Court defer
making a final order for ten (10) days after the release of these Reasons in
order for them to make submissions on a certified question. Each party shall
file their submissions, if any, no later than Monday, April 30, 2012.
PHELAN J.
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