Kimball v. Canada (Minister of Citizenship and
Immigration)
Between
Grant Peter Kimball, Applicant, and
The Minister of Citizenship and Immigration, Respondent
Grant Peter Kimball, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2013] F.C.J. No. 469
2013 FC 428
Docket IMM-8259-12
Federal Court
Toronto, Ontario
Gleason J.
Heard: April 23, 2013.
Judgment: April 29, 2013.
Docket IMM-8259-12
Federal Court
Toronto, Ontario
Gleason J.
Heard: April 23, 2013.
Judgment: April 29, 2013.
(28 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 GLEASON J.:-- The applicant is a 68-year old
citizen of the United States, who was employed for a number of years as a
software engineer in Canada. He lost his job in 2010 due to corporate
restructuring and thereafter engaged in a lengthy job search. He applied for a
permanent resident visa under the Federal Skilled Worker program, which was
rejected by an immigration officer of the Consulate General of Canada,
Immigration Section, in New York City on June 20, 2012. The officer (with the
requisite concurrence of another officer) determined that despite the
applicant's exceeding the minimum number of points (being awarded 74 out of 100
when only 67 are required), a substituted evaluation would be issued under
subsection 76(3) of the Immigration and Refugee
Protection Regulations, SOR/2002-227 [the Regulations].
The officer noted in this regard that the applicant had been unsuccessful in
his 22-month job search and concluded that in light of this fact and the
applicant's profile, the applicant was not likely to be successful in becoming
economically established in Canada. The applicant's permanent residence
application was therefore rejected.
2 In
this application for judicial review, the applicant seeks to set aside the
rejection decision, arguing that his procedural fairness rights were violated
and that the decision is unreasonable.
3 In
terms of procedural fairness, the applicant asserts that the officer who
interviewed him was under a duty to warn him of the concerns in advance of the
interview so as to afford the applicant time to prepare his response and that
the failure to warn him amounts to a denial of procedural fairness. The applicant
also argues that he implicitly requested the opportunity to provide additional
information during the interview but was denied the opportunity to do so, which
he likewise claims violated his rights to procedural fairness. In terms of the
reasonableness of the decision reached, the applicant argues that the officers
erred in their substituted evaluation by ignoring relevant evidence and by
failing to conduct the assessment in accordance with the requirements of the
Regulations.
4 For
the reasons set out below, I have determined that none of these arguments has
merit and, accordingly, that this application for judicial review will be
dismissed.
Relevant Statutory Provisions
5 Prior
to addressing the applicant's arguments, it is useful to reproduce the
provisions under which this decision was made to provide context to the
applicant's arguments. The relevant provisions are contained in subsection
12(2) of the Immigration and Refugee Protection Act, SC 2001, c 27 [the IRPA] and section 76 of the Regulations.
6 Subsection
12(2) of the IRPA provides:
· 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.
* * *
· La sélection des étrangers de la catégorie "immigration
économique" se fait en fonction de leur capacité à réussir leur
établissement économique au Canada.
7 The
relevant portions of section 76 of the Regulations state:
· Selection criteria
(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).
[...]
Circumstances for officer's substituted
evaluation
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.
· Concurrence
An evaluation made
under subsection (3) requires the concurrence of a second officer.
* * *
· Critères de sélection
(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).
[...]
Substitution de l'appréciation de l'agent à la
grille
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).
· Confirmation
Toute décision de
l'agent au titre du paragraphe (3) doit être confirmée par un autre
agent.
Standard of review
8 The
first issue which must be determined is the standard of review applicable to
the assessment of the errors alleged by the applicant. In terms of the first,
no deference is owed to the officer on the question of whether the officer
violated the applicant's rights to procedural fairness as the matter is one for
determination by the reviewing court (Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at
para 43, [2009] 1 SCR 339 and Satheesan v Canada
(Minister of Public Safety and Emergency Preparedness),
2013 FC 346 at para 35). On the other hand, the reasonableness standard of
review applies to the assessment of whether the officers erred in their
assessment under section 76 of the Regulations (Philbean v Canada (Minister of Citizenship and
Immigration), 2011 FC 487 at para 7 [Philbean] and Uddin v Canada (Minister of Citizenship and
Immigration), 2012 FC 1005 at para 30 [Uddin]). The reasonableness standard is a
deferential one and requires that the reviewing court not substitute its views
for those of the administrative decision-maker if the reasons offered are
transparent, intelligible and justified and the result reached falls within the
range of possible, acceptable outcomes in light of the facts and applicable law
(Dunsmuir v New Brunswick, 2008
SCC 9 at para 47 and Newfoundland and Labrador Nurses'
Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 [Newfoundland Nurses]
at paras 11-13).
Was there a denial of procedural fairness?
9 Turning,
then, to consideration of the claimed procedural fairness violation, procedural
fairness is premised on the principle that those involved in an adjudicative
process should be provided with an opportunity to fairly present their claims.
This generally requires that parties be afforded an opportunity to respond to
issues they could not reasonably have expected to arise that will impact upon
decisions affecting their interests. The determination of how this opportunity
must be afforded is context-dependent and will vary from one tribunal to another
and from case to case (Baker v Canada (Minister of
Citizenship and Immigration), [1999] 2 SCR 817 at para
21).
10 In
the context of decisions like the present one, the case law establishes that a
visa officer need not give notice of unanticipated concerns (i.e. those that do
not directly arise from the application of the Regulations) prior to an
interview so long as the concerns are raised during the interview and the
applicant is given an opportunity to address them. Where the applicant
reasonably requests time to provide additional evidence or submissions after
the interview, the applicant must be afforded this opportunity (Haghighi v Canada (Minister of Citizenship and Immigration), [2000] 4 FC 407, [2000] F.C.J. No. 854 at para 43 (CA); Khwaja v Canada (Minister of Citizenship and Immigration), 2006 FC 522 at para 17 and John v Canada
(Minister of Citizenship and Immigration), 2003 FCT
257, 26 Imm. LR (3d) 221 (TD)).
11 It
follows, therefore, that the first alleged violation of procedural fairness,
involving the claim that the interviewing officer erred in not providing
advance notice of the concerns to the applicant, is without merit. The case law
recognizes that such concerns may indeed be raised for the first time during
the interview, itself. Accordingly, there was nothing improper in the officer
raising his concerns - and the possibility of a substituted evaluation - for
the first time during the interview of the applicant.
12 The
second claimed violation of procedural fairness involves the assertion that the
applicant requested but was not afforded the opportunity to present additional
evidence after the interview. Assessment of this claim requires examination of
the evidence regarding what transpired during and subsequent to the interview.
13 Both
the applicant and the officer who interviewed him have filed affidavits, which
provide differing evidence as to what transpired during the interview. Neither
was cross-examined.
14 The
officer deposes that, upon being advised of the concerns regarding the
difficulty the officer feared the applicant would likely face in achieving
economic self-sufficiency, the applicant provided evidence of a job interview
he had recently scheduled, discussed his job search and the fact that many
companies preferred hiring permanent residents and indicated that he could file
evidence of other similar advertisements, where other employers required job
applicants to be Canadian citizens or permanent residents. The officer,
notably, does not indicate in his affidavit that the applicant stated that he
wished to file additional evidence on any other matter or that had he known of
the officer's concerns would have filed additional evidence regarding
additional job interviews and contacts with recruiters.
15 The
applicant, on the other hand, does so depose in his affidavit. He states as
follows at paragraph 15 of his affidavit: "I told the officer during the
interview that if I had known that my efforts to find employment were going to
be an issue with him, and used as a basis to deny my application, that I would
have brought evidence of the numerous jobs I had applied for since being laid
off, including evidence of interviews I attended and contacts with
recruiters".
16 It
is unnecessary for me to determine which of these two versions of the events I
prefer, because even if the applicant's version is accepted, I do not find
there to have been a violation of procedural fairness in the circumstances of
this case. In this regard, the applicant did file additional evidence with the
interviewing officer, subsequent to the interview, that the officer and his
superior both considered prior to finalizing the decision that a substituted
evaluation would be made under subsection 76(3) of the Regulations.
17 This
additional evidence consisted of a letter dated May 31, 2012, in which the
applicant set forth arguments as to why a substituted evaluation should not be
made. However, the applicant did not provide any additional evidence of his job
search, interviews or contacts with recruiters in his letter. While these
matters might well be relevant to the substituted evaluation as the applicant
argues, the fact is that the applicant was provided with an opportunity to put
this evidence before the officers and failed to do so. He therefore cannot
claim that his rights to procedural fairness were denied. He was afforded an
opportunity to address the concerns surrounding the likelihood of his becoming
economically self-sufficient if granted permanent resident status in Canada.
18 Thus,
the first ground of review advanced by the applicant is without merit.
Did the officers ignore relevant evidence?
19 The
applicant argues in the second place that the officers ignored relevant
evidence, namely, evidence of the job interview he was scheduled to undergo
with Abbot, the Honeywell job advertisement he filed and his LinkedIn profile.
He asserts that these pieces of evidence were ignored by the officers as they
were not specifically mentioned in the letter advising of the rejection of his
application and are all relevant to the decision.
20 This
argument is without merit for two reasons. First, the interviewing officer did
mention these pieces of evidence in the Computer Assisted Immigration
Processing System [CAIPS] notes (which form part of the reasons for decision).
Thus, on the facts, the evidence was not ignored. Second, and perhaps more
importantly, there is simply no need for a tribunal to specifically discuss
every piece of evidence in its reasons. As stated by Justice Abella for the
Supreme Court of Canada in Newfoundland Nurses at para 16:
· Reasons may not include all the arguments, statutory provisions,
jurisprudence or other details the reviewing judge would have preferred, but
that does not impugn the validity of either the reasons or the result under a
reasonableness analysis. A decision-maker is not required to make an explicit
finding on each constituent element, however subordinate, leading to its final
conclusion [...] In other words, 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, the Dunsmuir criteria are met.
21 Similarly,
and more recently, in Construction Labour Relations v
Driver Iron Inc, 2012 SCC 65 at para 3, the Supreme
Court held:
· The Board did not have to explicitly address all possible shades of
meaning of these provisions. This Court has strongly emphasized that
administrative tribunals do not have to consider and comment upon every issue
raised by the parties in their reasons. For reviewing courts, the issue remains
whether the decision, viewed as a whole in the context of the record, is
reasonable.
· [Citations omitted.]
(See also Andrade v Canada
(Minister of Citizenship and Immigration), 2012 FC
1490.) Thus, contrary to what the applicant asserts, the decision is not
rendered unreasonable through a failure to adequately address portions of the
evidence.
Did the officer incorrectly exercise his
discretion under subsection 76(3) of the Regulations?
22 The
applicant finally argues that the officers premised the exercise of their
discretion under subsection 76(3) of the Regulations on an incorrect
interpretation of the section 76, which requires that the discretion to issue a
substituted evaluation be premised on the factors listed in paragraph 76(1)(a)
of the Regulations. The applicant asserts that instead of focussing on the
required factors, the officers incorrectly focused exclusively on the fact that
the applicant had not obtained employment, which is not required under section
76 of the Regulations. The applicant notes in this regard that there is an
entirely separate class is available for those with pre-arranged employment in
Canada to obtain permanent resident status (under section 82 of the
Regulations).
23 The
decision of Justice Mandamin in Roohi v Canada (Minister
of Citizenship and Immigration), 2008 FC 1408 does
provide that in the exercise of their statutory discretion under subsection
76(3) of the Regulations, visa officers should have regard to the factors
listed in paragraph 76(1)(a) of the Regulations in determining whether an
applicant is likely to become economically self-sufficient. A somewhat broader
test is posited in Philbean and Uddin, where Justices Tremblay-Lamer and
Justice O'Keefe noted that in the exercise of their discretion visa officers
are considering whether, despite the points awarded under paragraph 76(1)(a) of
the Regulations, an applicant is likely to become economically established in
Canada.
24 Regardless
of how the test is formulated, I believe that the officers in this case did not
err by considering irrelevant factors. Contrary to what the applicant asserts,
it was not the fact that the applicant had no job that concerned the officers.
Rather, they were concerned that the lengthy job search had yielded no result.
As the respondent rightly notes, the length of the search logically leads to
the conclusion that the applicant would be unlikely to ever find work or was
unlikely to become economically self-sufficient.
25 A
similar finding was upheld in Philbean, where a substituted decision based on an applicant's having failed
to engage in a job search was found to be reasonable. There, Justice
Tremblay-Lamer wrote at paragraphs 19 and 20:
· [19] The officer was concerned not only about the applicant's
ability to find employment in Canada, but also her willingness in that regard.
These concerns were not based solely on the applicant's age. Instead, the
officer considered the applicant's age in combination with a number of other
circumstances, including: that the applicant had already effectively retired in
the UK, that despite having lived in Canada for two years she had not taken
concrete steps towards certification or towards securing future employment in
Canada, and that the applicant's husband had been offered work in Canada but
that an "LMO for his line of unskilled work [had] not been issued for a
second stay".
· [20] Ultimately, the role of this Court is not to substitute its own
view for that of the immigration officer. I cannot find that the officer's
decision to substitute a negative determination under subsection 76(3) of the
Regulations lacked justification, transparency or intelligibility or fell
outside the range of possible, acceptable outcomes defensible in respect of the
facts and law. As such, this application for judicial review is
dismissed.
26 In
my view, identical reasoning applies here and, accordingly, the final argument
advanced by the applicant is without merit.
27 This
application for judicial review will accordingly be dismissed.
28 No
question for certification under section 74 of the IRPA was presented and none
arises as this decision is tied to the facts of this case.
JUDGMENT
THIS COURT'S JUDGMENT is that:
This application for
judicial review is dismissed;
No question of general
importance is certified; and
There is no order as to
costs.
GLEASON J.
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