COURT RULES NEW BRUNSWICK PNP SELECTION PROCESS FAIR

This is a  rare case of litigation in the PNP program.  the court ruled that the selection process was fair as it involved a policy decision.

Rihawi v. New Brunswick (Minister of Post
Secondary Education, Training, and
Labour)

Between
Mazen Rihawi, Applicant, and
The Province of New Brunswick, as represented
by the Minister of Post
Secondary Education, Training, and Labour, Defendant

[2014] N.B.J. No. 223

2014 NBQB 199

Court File No. F/M/20/14

 New Brunswick Court of Queen's Bench
Trial Division - Judicial District of Fredericton

P.C. Garnett J.

Heard: June 26, 2014.
Judgment: August 26, 2014.

(30 paras.)

---

1     P.C. GARNETT J.:-- This is an application for Judicial Review under Rule 69 of the Rules of Court. The applicant, Mazen Rihawi, (Rihawi) asks the Court to quash a decision of the Province of New Brunswick (the Province) to refuse his application for a Provincial Nominee Certificate and to order the Province to "reinstate the processing" of his application. The Respondent, The Province of New Brunswick, as represented by the Minister of Post Secondary Education and Labour, (the Province) opposes the application.

Background

2     The Immigration and Refugee Protection Act, S.C. 2001, c.27, permits the Government of Canada to enter agreements with the Provinces with respect to the selection of immigrants. The Province has entered such an agreement regarding economic immigrants. Under the agreement the Province is permitted to "nominate" 625 applicants per year. The Province invites applications from people across the world and the successful applicants are given a Provincial Nominee Certificate. The Province does not have authority to grant immigrant status to the applicant. In effect, the Provincial Nominee Certificate is only a recommendation to the Government of Canada.

3     In October 2012, Mr. Rihawi requested an exploratory business trip to New Brunswick, which is the first step in the process. A visa was issued and Mr. Rihawi visited New Brunswick between August 19, 2013 and August 24, 2013. He was interviewed by officials with the Province on August 26, 2013. Following the interview, it was recommended that Mr. Rihawi's application be refused. On October 2, 2013, a letter was sent informing him that his application had been refused. At the request of his lawyer, Mr. Rihawai's application was re-examined in January 2014 and the decision to refuse the application was confirmed. Mr. Rihawi asks the Court to quash the decision.

Evidence

4     In his affidavit, Mr. Rihawi says that he is a citizen of Syria but lives and works in Kuwait. He wishes to relocate to Canada and by using the website of the New Brunswick Provincial Nominee Program; he completed the Request for Business Trip. His request was granted and he came to New Brunswick as outlined above. He says that during the interview "the officer indicated to me that if they needed more supporting documents in management experience, they would ask me later. Nobody from NBPNP has inquired of me since the interview date." He says also that he did not receive the October 2, 2013 letter refusing his application. In December 2013, he engaged a New Brunswick lawyer who provided him with a copy of the October 2 letter.

5     He says he is an experienced architect who has held senior management positions for over 20 years. He says he "would have explained in detail my various duties' if had been asked. He says he has spent over $15,000 to pursue the application and expected that it would be processed fairly. He says he is "dumfounded and bewildered" by the decision.

6     Ashraf Ghanem (Ghanem) is a Director in the Department of Post Secondary Education, Training and Labour in the Immigration Branch. He swore an affidavit on behalf of the Province. In it, he explained the Provincial Nominee Program. He explains that under the Canada -- New Brunswick Agreement, the role of his department is "to facilitate the immigration process by providing Certificates of Nomination to prospective immigrants known as Business Applicants." He states that the Province does not have the authority to issue a permanent residence visa but must submit the application to the government of Canada which makes the final decision. In 2010, the N.B. program was capped by the federal government at 625 nominations per year. In 2013, there were so many applications to the program the Province stopped accepting applications on September 3, 2013.

7     He says Mr. Rihawi was one of the Business Applicants to the program. He provides a copy of the Guide for Business Applicants which outlines the procedure to be followed by people who wish to apply to the program. Since Business Applicants "must establish a business in New Brunswick", the applicant is required to make a business trip to New Brunswick for a minimum of 5 days and take part in an interview with an official of the Department at the end of the business trip. In the first paragraph of the Guide (Exhibit C to Ghanem affidavit) the following:

·       As an economic program, the NBPNP selects, and nominates, qualified business people from around the world who will own and actively manage a business that contributes to the New Brunswick economy and may create jobs. 

In paragraph two:

·       You should also be aware that meeting the eligibility requirements does not guarantee nomination. Priority will be given to applicants who have the greatest potential to become economically established in New Brunswick. 

8     He states, Mr. Rihawi did request and complete a business trip to New Brunswick and was interviewed. He outlines all the steps taken by the Province to facilitate the trip. (Paragraphs 19-24)

9     The interview, which occurred on August 26, 2013, was conducted by Angela Willis and Fatima Vayani was present as a "scribing officer". Attached as Exhibit H is the Interview Evaluation form.

10     Mr. Ghanem states that the interviewing and scribing officers "review the interview notes, allocate points for language and knowledge of the business environment...and determine whether or not the applicant will be invited to submit a complete application..." (Paragraph 29.) At page 2 of Exhibit E, Ms. Willis recommended that Mr. Rihawi "Be refused" and at Exhibit I she provided reasons. She stated:

·       I am not convinced of Mr. Rihawi's business experience. The only proof of management experience...is a letter from the Acting General Manager...claiming Mr. Rihawi is a Technical Manager. The letter also says 'This certificate has been issued to him upon his request with no responsibility on our part'...I asked him to explain his role in the company. He said he hires people...when I asked him for more information about his management duties he only talked about hiring people for construction projects. I...explained that he would need more than that to prove his management experience. He replied by asking what we wanted to see... 

11     Mr. Ghamen then explained that the recommendations are "placed in the file in the queue to be reviewed by Management for the final decision" (paragraph 34). On October 2, 2013, a letter of refusal was sent to Mr. Rihawi at the address provided by him. (Exhibit J)

12     In December 2013, a New Brunswick lawyer contacted the Province on Mr. Rihawi's behalf and on January 14, 2014, the lawyer provided the Province with "supporting documentation." The documents were copies of those already provided. (Paragraph 43) On January 22, 2014, Ms. Willis wrote to the lawyer and informed him that Mr. Rihawi's preliminary application had been re-examined and "our decision to refuse still stands" (Exhibit P)

Standard of Review

13     In the Notice of Application, Mr. Rihawi states:

·       The Applicant shall argue that the Respondent breached the common law duty of fairness, and/or in the alternatively its decision was unreasonable in that: 

·       (a) 

The Respondent did not allow the Applicant to respond to its concerns that "the Applicant's work experience/responsibilities did not include financial decisions, sales and marketing decisions or operational decisions"; 

·       (b) 

The Respondent unreasonably decided the Applicant's managerial work experience, which included among other tasks, managing 80 employees, supervising the construction of a 25 floor hotel project, would not include financial decisions, sales and marketing decisions or operational decisions. 

14     He submits that the Province "breached the common law duty of fairness" and that it was unreasonable. As I have stated before, the role of a Court in assessing whether a decision is reasonable is different from the role when assessing whether the process has been fair. In the former, the Judge examines the record or the reasons given by the tribunal or Government official and asks whether they are justified, transparent and intelligible (Dunsmuir v. New Brunswick, [2008] 1 S.C.R.) In the second, the Court examines the process followed by the Government body and asks whether it was fair. In this case, Rihawi has submitted that the Province has been both unfair and unreasonable.

The Duty to be Fair

15     Where the issue before the Court relates to procedural fairness, it is unnecessary to determine a standard of review. See Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249 at paragraph 74 and C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539.

16     When the question relates to procedural fairness, the issues are; did the particular Respondent have a duty to be fair and, if so, did it fulfill the duty?

17     In Principles of Administrative Law by Jones and de Villars, (fifth edition) the authors state at page 255:

·       Thus, the duty to be fair has evolved so that it now applies to every public authority making an administrative decision which affects the rights, privileges or interests of an individual... 

18     In this case, the decision did affect the interests of Mr. Rihawi. I therefore find that the Province did have a duty to be fair. I will examine the issue of whether the Province fulfilled that duty below.

Was the decision reasonable?

19     The Parties and I agree that the standard of review with respect to the decision is reasonableness.

Analysis

20     The concept of fairness is flexible and variable. In Baker v. Canada (Ministry of Citizenship and Immigration), [1999] 2 S.C.R. 817, Madame Justice L'Heureux-Dubé enunciated some of the relevant factors to be considered in determining the content of the duty of fairness. These factors were summarized in Jones and de Villars, at pages 256 and 257, as follows:

·       1. 

The nature of the decision being made and the process followed in making it. The closer the administrative process is to judicial decision-making, the more likely it is that procedural protections closer to the trial model will be required. 

·       2. 

The nature of the statutory scheme and the terms of the statute pursuant to which the body operates. The role of the decision in the statutory scheme helps determine the content of the duty of fairness. Greater procedural protections are required when there is no appeal procedure or the decision determines the issue and further requests cannot be submitted. 

·       3. 

The importance of the decision to the individual or individuals affected. The more important or the great impact the decision has, the more stringent are the procedural protections. This is a significant factor. The court commented: 

·       The more important the decision is to the lives of those affected and the greater its impact on that person or those persons, the more stringent the procedural protections will be mandated. 

·       4. 

The legitimate expectations of the person challenging the decision. The doctrine of legitimate expectations is part of the doctrine of procedural fairness. If a claimant has a legitimate expectation that a certain procedure will be followed, the duty of fairness requires this procedure to be followed. If a claimant has a legitimate expectation that a certain result will be reached, fairness may require more extensive procedural rights than might otherwise be accorded. The doctrine of legitimate expectations does not create substantive rights outside the procedural domain. The "circumstances" affecting procedural fairness take into account the promises or regular practices of the administrative decision-makers to act contrary to their representations as to procedure or to go back on substantive promises without giving the person affected significant procedural rights. 

·       5. 

The choices of procedure made by the agency itself, particularly if procedure is a matter of discretion or if the agency possesses expertise in determining appropriate procedures. Important weight must be given to the choice of procedures made by the agency and its institutional restraints. 

21     In this case, the Province was deciding whether to make a recommendation to the Government of Canada that Mr. Rihawi be granted immigrant status.

22     It is important to note that the Government of Canada is not obliged to accept the recommendation. Having said that, the recommendation was important to Mr. Rihawi.

Was the process fair?

23     As stated above, the process is the result of an agreement between the Government of Canada and the Province. Under the agreement, the Province is permitted to issue up to 625 Provincial Nominee Certificates a year. Also, as stated above, the Province has no authority to determine status. The Province does have the authority and responsibility "to establish their own criteria for nomination" (OP 7-B-Exhibit B Ghanem affidavit, Section 7.2.) The criteria established by the Province are outlined in the Guide for Business Applicants (Ghanem affidavit, Exhibit C.). These guidelines are available to potential applicants on its website and were used by Mr. Rihawi to request a trip to New Brunswick. After at least a five day visit, the applicant is interviewed and the interviewers make a recommendation which is then reviewed by "management" and a decision is made. All of these steps were followed in this case. The interviewer determined that there was insufficient proof of management experience. Mr. Rihawi says he could have provided more, however, when his lawyer forwarded documents in January 2013, no new documents were provided.

24     The overriding objective of the program is to benefit the economy of New Brunswick. (Section 5.1 of the Canada New Brunswick Agreement on Provincial Nominees, Ghanem affidavit Exhibit A) Applicants are informed that "meeting the eligibility requirement does not guarantee nomination" (see paragraph seven above.) In addition, it is clear that the Province receives many applications. In short, there is competition for the 625 certificates.

25     In Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 71, the Supreme Court of Canada stated; "The most fundamental principles of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country." In this case, Mr. Rihawi decided to apply to the program and he was given the opportunity to visit and be interviewed. The people who interviewed him made a recommendation and gave reasons for it. Mr. Rihawi knew in advance that the Province was looking for candidates with relevant business experience.

26     The interviewer was performing a policy-making discretionary function. She followed the procedure and made a recommendation which was accepted by her supervisors. There is no evidence (or allegation) of bias or bad faith.

27     I find that the process was fair. More particularly:

·          Mr. Rihawi had all the relevant information well in advance of his visit to New Brunswick; 

·       * 

Mr. Rihawi knew that even if he did qualify, he would not necessarily be recommended; 

·       * 

If, as he submits, he could have provided more relevant information, it could have and should have been done at the beginning of the process; 

·       * 

Mr. Rihawi was given an opportunity to provide more information in January 2013 and he failed to do so; 

·       * 

The Province followed the procedure which was mandated. 

Standard of Review

28     As stated above, the standard of review is reasonableness. Before Dunsmuir supra a Minister's discretionary decision was reviewed against the standard of patent unreasonableness (Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3.) Since Dunsmuir, the standard is reasonableness. A Court reviewing a decision of this kind must exercise a high degree of deference. The decision makers are applying Government policy in making their selections. In addition, in this particular situation, they are aware of the qualifications of the competing applicants.

29     The Court has a copy of the application and the reasons given for its rejection. As stated by the Province, there is very little evidence (as opposed to assertions) of management experience. The application was rejected on that basis.

30     I find that the record and the decision meet the test of reasonableness. The application for Judicial Review is therefore dismissed with costs of $1,000.00.

P.C. GARNETT J.