Ghazeleh v. Canada (Minister of Citizenship and
Immigration)
Between
Ghanai Ghazeleh, Applicant, and
The Minister of Citizenship and Immigration, Respondent
The Minister of Citizenship and Immigration, Respondent
[2012] F.C.J. No.
1604
2012 FC 1521
Docket IMM-2293-12
Federal Court
Toronto, Ontario
Rennie J.
Heard: November 21, 2012.
Judgment: December 20, 2012.
Docket IMM-2293-12
Federal Court
Toronto, Ontario
Rennie J.
Heard: November 21, 2012.
Judgment: December 20, 2012.
(26 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 RENNIE J.:-- The applicant is a citizen of
Iran who applied to immigrate to Canada under the federal skilled worker class.
She seeks judicial review of a decision of an immigration visa officer (the
Officer) denying this application. The Officer was not satisfied that the
applicant had a genuine offer of employment in Canada and therefore determined
that she did not meet the minimum requirements for permanent residence under
this category.
2 The
Officer also rejected a request for a substituted evaluation based on her
application and $600,000 in funds said to be available to her to support her
transition to Canada.
3 In
Gill v. Canada (Citizenship and Immigration), 2010 FC 466, Justice Sean Harrington observed that whether a visa
officer is entitled to override an opinion by the Department of Human Resources
and Skills Development that an arranged offer of employment was genuine was a
question "best left for another day". That day has arrived.
4 For
the reasons that follow the application is dismissed.
Applicable Regulations
5 Section
75 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations) describes federal skilled workers as those who may become
permanent residents on the basis of their ability to become economically
established in Canada.
6 Immigration
officers award applicants points on the basis of factors listed in paragraph
76(1)(a) of the Regulations:
education, proficiency in English and French, experience, age, arranged
employment and adaptability. Applicants must be awarded at least 67 points to
be eligible for a federal skilled worker visa.
7 Under
paragraph 82(2)(c), applicants from outside of Canada are entitled to ten
points for arranged employment, provided that:
The employer has made
an offer to employ the skilled worker on an indeterminate basis once the
permanent resident visa is issued to the skilled worker; and
An officer has approved
that offer of employment based on an opinion provided to the officer by the
Department of Human Resources and Skills Development at the request of the
employer or an officer that:
the offer of employment
is genuine;
the employment is not
part-time or seasonal employment; and
the wages offered to
the skilled worker are consistent with the prevailing wage rate for the
occupation and the working conditions meet generally accepted Canadian
standards;
8 Under
subsection 76(3), the immigration officer has the discretion to undertake a
substituted evaluation if the officer determines that the number of points
awarded is not a sufficient indicator of the applicant's ability to become
economically established in Canada.
Decision Under Review
9 The
applicant obtained an offer of employment as a technical sales specialist from
a company in North Vancouver, British Columbia. Human Resources and Skills
Development / Service Canada (HRSDC) considered this offer and provided her
with a positive determination of eligibility for processing, also known as a
positive Arranged Employment Opinion (AEO).
10 The
applicant provided evidence in support of her application, including:
International English
Language Testing System results with an overall score of 5.5 out of 9;
The positive AEO and
offer of employment;
Evidence of her current
employment as a production manager;
A letter indicating
that she had studied French for one year;
University transcripts
and her bachelor's degree;
Evidence that her
brother lived in Canada;
Banking
information.
11 The
Officer considered this evidence and awarded the applicant 65 points, two less
than the minimum requirement. The applicant received high scores for age,
education and experience. She received five points out of a maximum ten for
adaptability because she has family in Canada. The Officer credited her English
language ability but did not award any points for French because she had not
submitted test results.
12 However,
the applicant received no points for arranged employment. The Officer was not
satisfied by HRSDC's positive assessment of the employment offer, had concerns
about the company's ability to employ the applicant and requested the company's
tax information which revealed substantial losses in 2010.
13 The
Visa Officer wrote to the applicant's representative who conceded that they
could not alleviate the Officer's concerns. No further information came to
light in response to a subsequent fairness letter. The applicant did, however,
request a substituted evaluation of her ability to be economically established
in Canada under subsection 76(3) of the Regulations. Therefore, the representative requested an opportunity to provide
French test results. In the alternative, the representative requested
substituted evaluation in light of the applicant's net worth and immediate
family living in Canada.
14 The
Officer did not invite the applicant to submit further evidence. The Officer
also declined to conduct a substituted evaluation having concluded that the
points awarded accurately reflected her ability to become established in
Canada.
Issues
15 The
applicant raises three issues:
Whether the Officer was
entitled to consider the genuineness of the employment offer;
Whether the Officer
reasonably assessed the evidence; and
Whether the Officer
breached the duty of procedural fairness.
16 Questions
of jurisdiction and procedural fairness are reviewed on the standard of
correctness, whereas the Officer's overall assessment attracts substantial
deference and is reviewed based on reasonableness: Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.
Analysis
Jurisdiction
17 The
applicant submits that the Officer must accept HRSDC's assessment as to whether
the employment offer is genuine. The applicant refers to the Regulations, which state that an immigration
officer shall award points for arranged employment if the officer "has
approved that offer of employment based on an opinion provided to the officer
by the Department of Human Resources and Skills Development". The
applicant argues that the Regulations did not permit the Officer to look beyond the AEO.
18 HRSDC's
opinion is the first step in the validation of an employment offer; it does not
end the inquiry. Under section 82 of the Regulations, an immigration officer must approve of employment offers and
consider whether applicants are "able to perform and are likely to accept
and carry out the employment".
19 As
Justice Judith Snider explained in Bellido v. Canada
(Minister of Citizenship and Immigration), 2005 FC 452
at paragraph 21:
· HRDC validation is not, as the Applicant submits, sufficient
evidence of arranged employment. Such validation does not remove the obligation
of the Visa Officer to assess whether the Applicant is able to perform the job
described in the validation.
20 An
applicant cannot, in the language of section 82 of the Regulations, accept, perform and carry out an employment offer that does not
exist, or, as in this case, could not be implemented because of the employer's
financial circumstances. A visa officer must be satisfied that the criteria
specified in section 82 of the Regulations are met. Furthermore, in my view, HRSDC's opinion is just that, an
opinion, it is not determinative of whether a visa should issue. The immigration
officer is the ultimate decision maker.
21 It
is true that HRSDC has a different mandate than that of a visa officer. Its
specialization lies in the identification of deficiencies in the labour market
and providing an opinion that the position is genuine. However, an immigration
officer has the overriding discretion to refuse a visa, in appropriate
circumstances. Indeed, it would be incumbent on a visa officer to do so if they
became aware of facts or circumstances which questioned the legitimacy of the
offer.
22 The
authority to grant access to Canadian territory is vested in the Minister of
Citizenship and Immigration, and specifically, to the visa officer. Subsection
11(1) of the IRPA provides:
(1) A foreign national
must, before entering Canada, apply to an officer for a visa or for any other
document required by the regulations. The visa or document may be issued if,
following an examination, the officer is satisfied that the foreign national is
not inadmissible and meets the requirements of this Act.
* * *
(1) L'étranger doit,
préalablement à son entrée au Canada, demander à l'agent les visa et autres
documents requis par règlement. L'agent peut les délivrer sur preuve, à la
suite d'un contrôle, que l'étranger n'est pas interdit de territoire et se
conforme à la présente loi.
23 It
is the Minister of Citizenship and Immigration who is accountable, legally, for
the decision to grant a visa. To conclude that he was bound by the HRSDC opinion
would be either an impermissible delegation of the Minister's statutory
obligations under the IRPA or a
fettering of the Minister's discretion. To conclude, it is the Minister of
Citizenship and Immigration who makes the decision, not the Minister of HRSDC.
HRSDC rather, offers an opinion.
Procedural Fairness
24 The
applicant submits that the Officer's refusal to conduct a substituted
evaluation violated her right to procedural fairness. The applicant argues that
she should have been given the opportunity to prove her ability to become
established in Canada based on her age, relatives in Canada and her and her
husband's combined net worth.
25 The
applicant was already awarded points for her age and relatives in Canada. With
regard to her claimed net worth of $600,000, the Officer gave brief reasons for
deciding that a substituted evaluation was not warranted.
26 The
applicant is obligated to provide the best evidence demonstrating her ability
to become economically established in Canada. There was no unfairness in the
Officer's assessment of the evidence as presented, without inviting further
submissions, the decision, regardless of its conclusionary nature, was
reasonable. The adequacy of the reasons needs to be assessed in light of the information
in front of the Officer, which in this case was simply a bold statement that
she had a net worth of $600,000. The reasoning was commensurate with the scant
and superficial nature of the evidence before her in support of the request for
a substituted evaluation.
JUDGMENT
THIS COURT'S JUDGMENT is that the application for judicial review is dismissed. There is no
question for certification.
RENNIE J.
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