Lohat v. Canada (Minister of Citizenship and
Immigration)
Between
Swinder Kaur Lohat, Applicant, and
The Minister of Citizenship and Immigration, Respondent
The Minister of Citizenship and Immigration, Respondent
[2012] F.C.J. No.
1542
2012 FC 1432
Docket IMM-3551-12
Federal Court
Vancouver, British Columbia
Shore J.
Heard: December 5, 2012.
Judgment: December 6, 2012.
Docket IMM-3551-12
Federal Court
Vancouver, British Columbia
Shore J.
Heard: December 5, 2012.
Judgment: December 6, 2012.
(49 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
SHORE J.:--
Introduction
1 The
Applicant seeks judicial review of the decision of an immigration officer
[Officer] rejecting her application to be selected as a member of the economic
class on the basis of her ability to become economically established in Canada
under subsection 12(2) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA]. The Applicant argues that she should have received an additional
five points under paragraph 83(1)(d) and subparagraph 83(5)(a)(v) of the Immigration and Refugee
Protection Regulations, SOR/2002-227, as am SC 2002, c
8, s 182(3)(a) [Regulations] for being related to a person
living in Canada.
Judicial Procedure
2 This
is an application under subsection 72(1) of the IRPA for judicial review of the decision of the Officer, dated February
7, 2012.
Background
3 The
Applicant, Ms. Swinder Kaur Lohat, is a citizen of India. She was born in 1975
and has been married to Mr. Parminder Singh since March 8, 2004.
4 The
Applicant has completed 18 years of full-time educational training, including a
three-year diploma in General Nursing and Midwifery from the Government School
of Nursing SGTB Hospital and a Bachelor of Arts.
5 The
Applicant has several years of work experience in an occupation classified
under National Occupation Classification Code 3152, "Registered
Nurses" [NOC 3152].
6 On
February 25, 2010, the Applicant applied for permanent residence in Canada
under the skilled worker category [PR Application] on the basis of her work
experience.
7 On
Schedule 3 of the PR Application, the Applicant indicated that her accompanying
spouse had a sister or brother who was living in Canada or was a permanent
resident in Canada.
8 On
April 30, 2010, the Federal Skilled Worker Centralized Intake Office advised the
Applicant that her PR Application would be recommended to the visa office on
the basis of her NOC 3152 work experience and requested her to submit a
completed application to the New Delhi visa office [CIO Approval Letter].
9 On
August 24, 2010, the Applicant made submissions in response to the CIO Approval
Letter, stating that her accompanying spouse's biological half-sister was
Jaspreet Kaur Duggal [Jaspreet Duggal], a Canadian citizen living in Canada
[Response to CIO Letter].
10 In
the Response to the CIO Letter, the Applicant included the following documents
to support her claim that Jaspreet Duggal is the half-sister of her spouse: (i)
the Indian passports of the Applicant, Parminder Singh, and Jaspreet Kaur; (ii)
the marriage certificate of the Applicant and Parminder Singh; (iii) the
employment records of the Applicant; (iv) the education records of Parminder
Singh; (v) an affidavit of Parminder Singh; (vi) the Canadian citizenship card
of Jaspreet Duggal; and (vii) the British Columbia Driver's License of Jaspreet
Duggal.
Decision under Review
11 The
Officer rejected the Applicant's PR Application because the Applicant had
insufficient points to qualify for a permanent resident visa under subsection
12(2) of the IRPA. The Officer
applied the selection criteria in subsection 76(2) of the Regulations to determine if the Applicant met
the minimum requirements set out in subsection 75(2) of the Regulations.
12 The
Applicant received ten points for age, twenty-two for education, six for
language proficiency, twenty-one for experience, zero for arranged employment,
and four for adaptability. This came to a total of sixty-three points; three
points short of the required sixty-seven points fixed by the Minister under subsection
76(3) of the Regulations as the
minimum number of points required for skilled workers.
13 Under
paragraph 83(1)(d) and
subparagraph 83(5)(a)(v) of the Regulations, an applicant under the skilled
worker category shall be awarded five points if that applicant or an
accompanying spouse has a sibling living in Canada. The Officer did not award
the Applicant these points because the Applicant had not presented sufficient
evidence to establish that her accompanying spouse was the half-brother of
Jaspreet Duggal, a Canadian citizen currently living in Canada. In particular,
the documents and affidavit provided by the Applicant were insufficient to
prove a family relationship.
Issues
14
Was the Officer
reasonable in finding that the Applicant could not be awarded five points under
paragraph 83(1)(d) of the Regulations because her accompanying spouse
was the half-brother of Jaspreet Duggal?
Did procedural fairness
require the Officer to provide the Applicant with an opportunity to
respond?
Relevant Legislative
Provisions
15 Please
see Annex "A" for the relevant legislative provisions of the IRPA and the Regulations.
Position of the Parties
16 The
Applicant submits that the Officer was unreasonable in refusing to award her
five points for adaptability under paragraph 83(1)(d) and subparagraph 83(5)(a)(v) of the Regulations because her accompanying spouse is related by blood to a person who
is a Canadian citizen living in Canada and who is also a child of the mother of
her accompanying spouse.
17 The
Applicant argues that she submitted sufficient documentation to establish that
her accompanying spouse, Parminder Singh, is the son of Ujjagar Singh and
Jaswant Kaur, including copies of his Indian passport and a letter from a
former principal.
18 The
Applicant also argues that she submitted sufficient documentation to establish
that her accompanying spouse, Parminder Singh, is the half-brother of Jaspreet
Duggal by Jaswant Kaur's second marriage to another man. The documentation
includes the Indian passport of Jaspreet Duggal, the citizenship card of
Jaspreet Duggal, and an affidavit by Parminder Singh.
19 According
to the Applicant, it is difficult to document the names of mothers in India
because most Indian record-keeping focused on paternity to the exclusion of
maternity. She also claims that maintaining records such as birth, marriage,
and death certificates [vital records] was unusual, that the legislative
requirement to maintain vital records did not come into effect until the 1970s,
and that this legislation was not always complied with. Consequently, the
Applicant's birth record and the marriage records of Jaswant Kaur were
unavailable.
20 Citing
Wang v Canada (Minister of Citizenship and Immigration), 2002 FCT 58, 217 FTR 193, the Applicant argues that the applicable
standard of proof in assessing her PR Application is the balance of
probabilities standard. The Applicant, relying on R v
Layton, 2009 SCC 36, [2009] 2 S.C.R. 540, argues that
this standard required her to establish that it was more probable than not that
Jaspreet Duggal was the half-sister of her accompanying spouse, Parminder
Singh.
21 The
Applicant submits that, given the documents described above, it was more
probable than not that Parminder Singh and Jaspreet Duggal were both the
children of Jaswant Kaur and that the requirements of paragraph 83(1)(d) and subparagraph 83(5)(a)(v) of the Regulations were met. She contends that she should not be limited to vital
records to establish family relationships and that she provided the best
available evidence in their absence.
22 In
the Applicant's view, the Officer breached procedural fairness by failing to
provide adequate reasons and an opportunity to respond. She received no notice
that the submitted documentation was insufficient to establish that her
accompanying spouse, Parminder Singh, and Jaspreet Duggal were both children of
Jaswant Kaur.
23 The
Applicant submits that her inability to obtain the birth certificate of
Parminder Singh or the marriage certificates of Jaswant Kaur placed her in a
distinct situation. The evidence that she submitted in substitution of these
records required the Officer to raise concerns with the evidence with the
Applicant. The Applicant argues that she had a legitimate expectation that the
Officer would address any concerns with her with regard to her PR Application
as she received a letter on September 7, 2010 advising her that she would
receive a month's notice of any interview that might be required.
24 Moreover,
the Applicant claims that the Officer's rejection of the statutory declaration
of Parminder Singh is tantamount to an adverse credibility finding to which she
should have had an opportunity of responding.
25 The
Respondent submits that the Officer was reasonable in finding that the
Applicant had failed to establish that her accompanying spouse, Parminder
Singh, and Jaspreet Duggal were half-siblings and that, consequently, the
Applicant could not satisfy the requirements of paragraph 83(1)(d) and subparagraph 83(5)(a)(v) of the Regulations. Citing Kniazeva v Canada (Minister of
Citizenship and Immigration), 2006 FC 268, 288 FTR 282,
the Respondent argues that assessing an application under subsection 12(2) of
the IRPA is an exercise of
discretion warranting deference and that this Court should not intervene if the
decision was made in good faith, complied with procedural fairness, and was not
made on irrelevant or extraneous considerations.
26 In
particular, the Respondent argues that the Officer's finding was reasonable
because the Applicant had not produced sufficient documentation establishing
that her accompanying spouse and Jaspreet Duggal were half-siblings. The
Respondent argues that the Applicant had clear notice of the types of documents
she was required to submit since she had been directed to a website that set
out the documents required to establish a family relationship. Further, the
Respondent argues that the affidavit of Parminder Singh did not attract weight
as it was the affidavit of an interested party and, consequently, self-serving
and unreliable.
27 The
Respondent argues that the Applicant's application for judicial review
effectively asks this Court to reweigh the evidence.
28 Citing
Newfoundland and Labrador Nurses' Union v Newfoundland
and Labrador (Treasury Board), 2011 SCC 62, [2011] 3
S.C.R. 708, the Respondent submits that adequacy of reasons is not a
stand-alone ground for judicial review.
29 Finally,
the Respondent argues that the Officer was not required to give the Applicant
an opportunity to respond as the Applicant had the onus of providing sufficient
documentation to establish that paragraph 83(1)(d) and subparagraph 83(5)(a)(v) of the Regulations applied. Citing Hussain v Canada (Minister
of Citizenship and Immigration), 2002 FCT 468, the
Respondent argues that procedural fairness did not oblige the Officer to inform
the Applicant of any concerns on the sufficiency of the evidence. The
Respondent further argues, relying on Hassani v Canada
(Minister of Citizenship and Immigration), 2006 FC
1283, [2007] 3 F.C.R. 501, that an applicant under subsection 12(2) of the IRPA has the onus of establishing that he or
she meets legislative requirements and 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" (at para 24).
Analysis
Standard of Review
30 A
decision to award points for adaptability for being related to a person living
in Canada is a question of mixed fact and law reviewable on the standard of
reasonableness (Lee v Canada (Minister of Citizenship
and Immigration), 2011 FC 617, 390 FTR 166). The
standard of correctness applies to questions of procedural fairness (Dunsmuir v New Brunswick, 2008 SCC 9, [2008]
1 S.C.R. 190 at para 129). The content of the duty of procedural fairness will,
however, vary according to the circumstances and the legislative and
administrative context of a decision (Mavi v Canada
(Attorney General), 2011 SCC 30, [2011] 2 S.C.R. 504).
31 Where
the standard of reasonableness applies, the Court may only intervene if the
Board's reasons are not "justified, transparent or intelligible". To
satisfy this standard, the decision must also fall in the "range of
possible, acceptable outcomes which are defensible in respect of the facts and
law" (Dunsmuir, above, at
para 47).
32 Although
the Applicant has challenged the adequacy of the Officer's reasons, the Supreme
Court of Canada has held that if reasons are given, a challenge to the
reasoning or result is addressed in the reasonability analysis. According to Newfoundland and Labrador Nurses Union,
above, "reasons must be read together with the outcome and serve the
purpose of showing whether the result falls within a range of possible
outcomes" (at para 14). A reviewing court may not "substitute [its]
own reasons" but may "look to the record for the purpose of assessing
the reasonableness of the outcome" (at para 15).
Was the Officer
reasonable in finding that the Applicant could not be awarded five points under
paragraph 83(1)(d) of the Regulations because her accompanying spouse
was the half-brother of Jaspreet Duggal?
33 The
Officer was reasonable in finding that, on a balance of
probabilities, the Applicant could not be awarded five
points under paragraph 83(1)(d)
of the Regulations because her
accompanying spouse was the half-brother of Jaspreet Duggal.
34 A
decision-maker assesses if a person is related to a person living in Canada on
a balance of probabilities (Dhillon v Canada (Minister
of Citizenship and Immigration), 2010 FC 1049).
Pursuant to Layton, above, this
required the Officer to ask if it was more probable than not that Jaspreet
Duggal was the half-sister of the Applicant's accompanying spouse and that
paragraph 83(1)(d) and
subparagraph 83(5)(a)(v) of the Regulations should apply.
35 According
to the Certified Tribunal Record [CTR] released pursuant to Rules 15 and 17 of
the Federal Courts Immigration as Refugee Protection
Rules, SOR/93-22, as am SOR/98-235, ss 1-6,7 (Fr), the
Applicant presented the following documents to support her claim that she was
married to Parminder Singh, that Parminder Singh was the son of Jaswant Kaur,
and that Jaspreet Duggal was the daughter of the same Jaswant Kaur:
A copy of the
Applicant's Indian passport, issued August 29, 2010, identifying her spouse as
Parminder Singh Lohat (CTR at p 47);
A copy of the Indian
passport of Parminder Singh Lohat, issued October 10, 2002, identifying his
father as Ujjager Singh and his mother as Jaswant Kaur (CTR at p 66);
A translated copy of
the marriage certificate of the Applicant and Parminder Singh, dated March 8,
2004, identifying the father of Parminder Singh as Ujjager Singh (CTR at p
86);
A translated copy of
the birth certificate of the Applicant's son identifying his mother as the
Applicant and his father as Parminder Kaur and his paternal grandfather as
Ujjagar Singh Lohat, dated April 18, 2006 (CTR at p 91);
Copy of a letters of
confirmation of employment for the Applicant identifying her spouse as Parminder
Singh Lohat, dated August 17, 2010 and August 19, 2010 (CTR at pp 92, 94, and
98);
A copy of Parminder
Singh's sanitary inspector training records identifying his father as Ujjager
Singh (CTR at pp 128-130);
A copy of Parminder
Singh's Bachelor of Arts degree identifying his father as Ujjagar Singh, dated
October 18, 1988 (CTR at p 118);
Copies of the Parminder
Singh's academic record at Guru Nanak Dev University identifying his father as
Ujjagar Singh, dated April 1986, April 1987, and October 18, 1988 (CTR at pp
119, 120, and 121);
A copy of the Parminder
Singh's secondary school records identifying his father as Ujjager Singh, dated
March 1985 (CTR at p 122);
A copy of a letter from
the Principal of Khalsa College Senior Secondary School certifying that
Parminder Singh attended that school and was the son of Ujjager Singh and
Jaswant Kaur, dated August 25, 2010 (CTR at p 124);
An affidavit of
Parminder Singh identifying himself as the son of Ujjager Singh and Jaswant
Kaur, alleging that Jaswant Kaur remarried Surjit Singh on the death of Ujjager
Singh, and further alleging that Jaspreet Duggal was the daughter of Jaswant
Kaur by this second marriage, dated August 26, 2010 (CTR at p 137);
A copy of the Indian
passport of Jaspreet Kaur, issued April 6, 1999 stating that Jaspreet Kaur was
born on May 23, 1975 and identifying her as the daughter of Surjit Singh and
Jaswant Kaur (CTR at p 140); and,
A copy of a Canadian
citizenship card for Jaspreet Duggal, stating that she was born May 23, 1975
(CTR at p 142);
A copy of a British
Columbia Driver's License for Jaspreet Duggal, stating that she was born May
23, 1975 (CTR at p 142).
36 The
CTR also contains a translated copy of a statement from the Registrar of Births
and Deaths in Ludhiane that a birth record for Parminder Singh was requested by
Jaswant Kaur but was not available (CTR at p 90).
37 Before
disposing of this question, this Court wishes to outline two principles.
38 First,
an applicant is not necessarily limited to a prescribed list of documents
(vital records) in establishing a family relationship for the purposes of
paragraph 83(1)(d) and
subparagraph 83(5)(a)(v) of the Regulations. In Singh
v Canada (Minister of Citizenship and Immigration),
2012 FC 855, Justice John O'Keefe did not accept Canadian passports and
permanent residence cards because these documents did not actually provide a
means of explaining how the applicant was related to individuals alleged to be
family members. Singh was
concerned with documents that did not contain sufficient genealogical
information. It does not stand for the proposition that only vital records (and
not other documents containing genealogical information) can establish a family
relationship for the purposes of the IRPA and the Regulations.
Certain records that give genealogical information may be probative of a family
relationship in certain circumstances, even if they are not vital records.
39 Second,
an affidavit unsupported by corroborating evidence has limited probative value
in assessing whether an applicant meets the requirements of paragraph 83(1)(d) and subparagraph 83(5)(a)(vi) of the Regulations. In Singh, Justice
O'Keefe held that affidavits from self-interested parties may not be sufficient
to show that an applicant is related to a person living in Canada if the
affidavits lack corroborating evidence (at para 30).
40 Applying
these principles to this PR Application leads to the conclusion that it would
be reasonable to find that Jaspreet Duggal was not, on a balance of
probabilities, the daughter of the same Jaswant Kaur who was also the mother of
Parminder Singh.
41 The
Applicant's Indian passport, marriage certificate, birth certificate of her
son, and employment records identified her spouse as Parminder Singh.
42 The
birth certificate of the Applicant's son, the Applicant's marriage certificate,
the Indian passport of Parminder Singh, and Parminder Singh's educational and
sanitary inspector training records are sufficient to establish, on a balance
of probabilities, that the Applicant's spouse, Parminder Singh, is the son of
Ujjager Singh and Jaswant Kaur.
43 It
would be reasonable to conclude that the documentary evidence does not,
however, establish, on a balance of probabilities, that Jaswant Kaur who was
the spouse of Ujjager Singh and the mother of Parminder Singh was also the spouse of Surjit Singh and the
mother of Jaspreet Duggal. The Indian passport of Jaspreet Duggal identifies
her parents as Surjit Singh and Jaswant Kaur and the documentary evidence does
not establish that Jaswant Kaur was also married to Ujjager Singh. On the basis
of the documentary evidence before the Officer, it would be reasonable to conclude
that Jaswant Kaur who was the mother of Parminder Singh was not the same person
as the mother of Jaspreet Duggal. By introducing the name of Surjit Singh into
the equation, the documentary evidence made it reasonable to find that it was
more probable than not that there were two Jaswant Kaur; one who married
Ujjager Singh and had a son named Parminder Singh and another who married
Surjit Singh and had a daughter named Jaspreet Duggal. It was possible that the
two Jaswant Kaur were the same person, but not probable.
44 In
these circumstances, something more was needed to establish that it would not
be reasonable to find, on a balance of probabilities, that the Jaswant Kaur who
was the mother of Parminder Singh was the same person as the Jaswant Kaur who
was the mother of Jaspreet Duggal. The need for further information to tip the
balance in the Applicant's favour is perhaps inevitable in the case of
half-siblings. Given the privileging of paternal ancestry that emerges from the
Indian vital records before this Court and the unavailability of many Indian
vital records in general, it would not be reasonable to insist on vital records
to establish this. Documentary evidence showing, for example, that the Jaswant
Kaur who was the mother of Jaspreet Duggal lived at the same address as
Parminder Singh might have been sufficient to establish, on a balance of
probabilities, that there was one Jaswant Kaur and that she was the mother of
both Parminder Singh and Jaspreet Duggal.
45 The
affidavit of Parminder Singh, however, was not sufficient to establish that the
Jaswant Kaur described in the documentary evidence was a single person. The
affiant was an interested person and had not provided corroborating evidence on
the question of whether the Jaswant Kaur who married Surjit Singh had been
previously married to Ujjager Singh.
Did procedural fairness
require the Officer to provide the Applicant an opportunity to respond?
46 The
jurisprudence of this Court is consistent on the point that decision-makers are
not required to notify an applicant for a skilled worker visa under subsection
12(2) of the IRPA that he or she
has produced insufficient documentation (Malik v Canada
(Minister of Citizenship and Immigration), 2009 FC 1283
at para 26).
47 In
Chowdhury v Canada (Minister of Citizenship and
Immigration), 2011 FC 1315, Justice James Russell held
that procedural fairness did not require an immigration officer give an
applicant an opportunity to address concerns about an alleged family
relationship if the concerns "arose directly from the documentation, or
lack thereof, submitted by the [a]pplicant" (at para 45). Citing Oladipo v Canada (Minister of Citizenship and Immigration), 2008 FC 366, Justice Russell reasoned that the applicant had the
onus of preparing and filing an application with relevant, sufficient, and
credible supporting documentation.
48 The
Applicant's argument that the Officer's rejection of Parminder Singh's
affidavit amounts to an adverse credibility assessment also fails. Under Singh, above, the Officer was entitled to
give the affidavit little weight as it was not supported by corroborating
evidence establishing that the Jaswant Kaur who was the wife of Ujjagar Singh
and the mother of Parminder Singh was the same individual as the Jaswant Kaur
who was the wife of Surjit Singh and the mother of Jaspreet Duggal. Since such
corroborating evidence was not before the Officer, there was no negative
credibility finding. In short, the Officer was unconvinced by (but not in
disbelief of) the evidence.
Conclusion
49 For
all of the above reasons, the Applicant's application for judicial review is
dismissed.
JUDGMENT
THIS COURT ORDERS that the
Applicant's application for judicial review be dismissed. No question of
general importance for certification.
SHORE J.
* * * * *
ANNEX "A"
Relevant legislative provision of the Immigration and Refugee Protection Act, SC
2001, c 27:
· 12. (2) A foreign national may be selected as
a member of the economic class on the basis of their ability to become
economically established in Canada.
* * *
· 12. (2) La sélection des étrangers de la
catégorie "immigration économique" se fait en fonction de leur
capacité à réussir leur établissement économique au Canada.
Relevant legislative provisions of the Immigration and Refugee Protection Regulations, SOR/2002-227, as am SC 2002, c 8, s 182(3)(a):
75. ...
A foreign national is a
skilled worker if
· (a) within the 10
years preceding the date of their application for a permanent resident visa,
they have at least one year of continuous full-time employment experience, as
described in subsection 80(7), or the equivalent in continuous part-time
employment in one or more occupations, other than a restricted occupation, that
are listed in Skill Type 0 Management Occupations or Skill Level A or B of the
National Occupational Classification matrix;
· (b) during that
period of employment they performed the actions described in the lead statement
for the occupation as set out in the occupational descriptions of the National
Occupational Classification; and
· (c) during that
period of employment they performed a substantial number of the main duties of
the occupation as set out in the occupational descriptions of the National
Occupational Classification, including all of the essential duties.
· 76. (1) For the purpose of determining
whether a skilled worker, as a member of the federal skilled worker class, will
be able to become economically established in Canada, they must be assessed on
the basis of the following criteria:
· (a) the skilled
worker must be awarded not less than the minimum number of required points
referred to in subsection (2) on the basis of the following factors,
namely,
education, in
accordance with section 78,
proficiency in the
official languages of Canada, in accordance with section 79,
experience, in
accordance with section 80,
age, in accordance
with section 81,
arranged employment,
in accordance with section 82, and
adaptability, in
accordance with section 83; and
· (b) the skilled
worker must
have in the form of
transferable and available funds, unencumbered by debts or other obligations,
an amount equal to half the minimum necessary income applicable in respect of
the group of persons consisting of the skilled worker and their family members,
or
be awarded the number
of points referred to in subsection 82(2) for arranged employment in Canada
within the meaning of subsection 82(1).
The Minister shall fix
and make available to the public the minimum number of points required of a
skilled worker, on the basis of
· (a) the number of
applications by skilled workers as members of the federal skilled worker class
currently being processed;
· (b) the number of
skilled workers projected to become permanent residents according to the report
to Parliament referred to in section 94 of the Act; and
the potential, taking
into account economic and other relevant factors, for the establishment of
skilled workers in Canada.
· 83. (1) A maximum of 10 points for
adaptability shall be awarded to a skilled worker on the basis of any
combination of the following elements:
· (a) for the
educational credentials of the skilled worker's accompanying spouse or
accompanying common-law partner, 3, 4 or 5 points determined in accordance with
subsection (2);
· (b) for any previous
period of study in Canada by the skilled worker or the skilled worker's spouse
or common-law partner, 5 points;
· (c) for any previous
period of work in Canada by the skilled worker or the skilled worker's spouse
or common-law partner, 5 points;
· (d) for being related
to a person living in Canada who is described in subsection (5), 5 points;
and
· (e) for being awarded
points for arranged employment in Canada under subsection 82(2), 5
po1ints.
· ...
For the purposes of
paragraph (1)(d), a skilled worker shall be awarded 5 points if
· (a) the skilled
worker or the skilled worker's accompanying spouse or accompanying common-law
partner is related by blood, marriage, common-law partnership or adoption to a
person who is a Canadian citizen or permanent resident living in Canada and who
is
their father or
mother,
the father or mother
of their father or mother,
their child,
a child of their
child,
a child of their
father or mother,
a child of the father
or mother of their father or mother, other than their father or mother,
or
a child of the child
of their father or mother; or
· (b) the skilled
worker has a spouse or common-law partner who is not accompanying the skilled
worker and is a Canadian citizen or permanent resident living in Canada.
* * *
· 75. [...]
Est un travailleur
qualifié l'étranger qui satisfait aux exigences suivantes :
· a) il a accumulé au moins une année continue
d'expérience de travail à temps plein au sens du paragraphe 80(7), ou
l'équivalent s'il travaille à temps partiel de façon continue, au cours des dix
années qui ont précédé la date de présentation de la demande de visa de
résident permanent, dans au moins une des professions appartenant aux genre de
compétence 0 Gestion ou niveaux de compétences A ou B de la matrice de la
Classification nationale des professions -- exception faite des professions
d'accès limité;
· b) pendant cetde période d'emploi, il a
accompli l'ensemble des tâches figurant dans l'énoncé principal établi pour la
profession dans les descriptions des professions de cette classification;
· c) pendant cette période d'emploi, il a
exercé une partie appréciable des fonctions principales de la profession
figurant dans les descriptions des professions de cette classification,
notamment toutes les fonctions essentielles.
· 76. (1) Les critères ci-après indiquent que
le travailleur qualifié peut réussir son établissement économique au Canada à
titre de membre de la catégorie des travailleurs qualifiés (fédéral) :
· a) le travailleur qualifié accumule le nombre
minimum de points visé au paragraphe (2), au titre des facteurs suivants
:
les études, aux termes
de l'article 78,
la compétence dans les
langues officielles du Canada, aux termes de l'article 79,
l'expérience, aux
termes de l'article 80,
l'âge, aux termes de
l'article 81,
l'exercice d'un emploi
réservé, aux termes de l'article 82,
la capacité
d'adaptation, aux termes de l'article 83;
le travailleur
qualifié :
soit dispose de fonds
transférables -- non grevés de dettes ou d'autres obligations financières --
d'un montant égal à la moitié du revenu vital minimum qui lui permettrait de
subvenir à ses propres besoins et à ceux des membres de sa famille,
soit s'est vu
attribuer le nombre de points prévu au paragraphe 82(2) pour un emploi réservé
au Canada au sens du paragraphe 82(1).
Le ministre établit le
nombre minimum de points que doit obtenir le travailleur qualifié en se fondant
sur les éléments ci-après et en informe le public :
· a) le nombre de demandes, au titre de la
catégorie des travailleurs qualifiés (fédéral), déjà en cours de
traitement;
· b) le nombre de travailleurs qualifiés qui
devraient devenir résidents permanents selon le rapport présenté au Parlement
conformément à l'article 94 de la Loi;
· c) les perspectives d'établissement des
travailleurs qualifiés au Canada, compte tenu des facteurs économiques et
autres facteurs pertinents.
· 83. (1) Un maximum de 10 points
d'appréciation sont attribués au travailleur qualifié au titre de la capacité
d'adaptation pour toute combinaison des éléments ci-après, selon le nombre
indiqué :
· a) pour les diplômes de l'époux ou du
conjoint de fait, 3, 4 ou 5 points conformément au paragraphe (2);
· b) pour des études antérieures faites par le
travailleur qualifié ou son époux ou conjoint de fait au Canada, 5
points;
· c) pour du travail antérieur effectué par le
travailleur qualifié ou son époux ou conjoint de fait au Canada, 5
points;
· d) pour la présence au Canada de l'une ou
l'autre des personnes visées au paragraphe (5), 5 points;
· e) pour avoir obtenu des points pour un
emploi réservé au Canada en vertu du paragraphe 82(2), 5 points.
· [...]
Pour l'application de
l'alinéa (1)d), le travailleur qualifié obtient 5 points dans les cas suivants
:
· a) l'une des personnes ci-après qui est un
citoyen canadien ou un résident permanent et qui vit au Canada lui est unie par
les liens du sang ou de l'adoption ou par mariage ou union de fait ou, dans le
cas où il l'accompagne, est ainsi unie à son époux ou conjoint de fait :
l'un de leurs
parents,
l'un des parents de
leurs parents,
leur enfant,
un enfant de leur
enfant,
un enfant de l'un de
leurs parents,
un enfant de l'un des
parents de l'un de leurs parents, autre que l'un de leurs parents,
un enfant de l'enfant
de l'un de leurs parents;
· b) son époux ou conjoint de fait ne
l'accompagne pas et est citoyen canadien ou un résident permanent qui vit au
Canada.
cp/e/qlaim/qllmr
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