Jalil v. Canada (Minister of Citizenship and
Immigration)
Between
Najma Jalil, Applicant, and
The Minister of Citizenship and Immigration, Respondent
Najma Jalil, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2015] F.C.J. No. 90
2015 FC 113
Docket: IMM-1261-14
Federal Court
Saskatoon, Saskatchewan
Locke J.
Heard: December 4, 2014.
Judgment: January 29, 2015.
Docket: IMM-1261-14
Federal Court
Saskatoon, Saskatchewan
Locke J.
Heard: December 4, 2014.
Judgment: January 29, 2015.
(22 paras.)
JUDGMENT AND REASONS
·
LOCKE J.:--
I. Nature of the Matter
1 The
Applicant (Najma Jalil) seeks judicial review of a decision (the Decision) of a
Visa Officer (the Officer) denying an application for a permanent resident visa
as a member of the provincial nominee class pursuant to section 87 and
following of the Immigration and Refugee Protection
Regulations (IRPR). Though the Applicant was nominated (by the province of
Saskatchewan), the Officer was not satisfied that the Applicant was likely to
become economically established in Canada as contemplated by section 87 of the IRPR. In particular, the Officer was
concerned that the Applicant lacked the necessary language skills. In
accordance with subsection 87(3), the Officer substituted her evaluation of the
likelihood of the Applicant's ability to become economically established in
Canada.
2 For
the reasons set out below, I have concluded that the Decision should stand and
the application should be dismissed.
II. Issues
3 The
Applicant raises three issues:
Did the Officer comply
with the duty to consult the province before denying the visa, as required by
subsection 87(3) of the IRPR?
Did the Officer
misinterpret the requirement to become economically established in Canada by
requiring that the Applicant show that she was likely to become economically
established immediately, rather than within a reasonable time?
Was the Officer's
Decision unreasonable having regard to all of the evidence?
III. Analysis
4 In
considering this matter, I am fortunate to have the benefit of a recent
decision of Justice Russell in which similar issues were disputed in a case
having similar facts: Ijaz v Canada (Citizenship and
Immigration), 2014 FC 920 (Ijaz). To the extent that the facts in the present case are the same as
in Ijaz, I agree with Justice
Russell's conclusions.
Standard of review
5 With
regard to the first issue, the duty to consult the province is a matter of
procedural fairness which is reviewed on a standard of correctness (Ijaz at para 15).
6 The
other two issues are fact-driven and are therefore reviewed on a standard of
reasonableness (Ijaz at para
18).
Issue 1: Duty to Consult
the Province
7 The
Respondent submits that it complied with its duty to consult the province by
sending it a courtesy copy of the Officer's "pre-refusal" letter
(which advised the Applicant of the Officer's concerns). In the absence of a
response from the province, the Officer concluded that the province had no
comments.
8 The
Applicant notes that there is no evidence that the letter was actually received
by the province. Certainly, no response was received. The Applicant also notes
that there is no evidence that the courtesy copy was even sent except for the
indication at the end of the letter itself and notes found in the Respondent's
electronic database. The Applicant suggests that, because the Respondent
provided no evidence on the issue, I should infer that the courtesy copy was
not sent. As did Justice Russell in Ijaz (para 49), I decline to draw such an inference. There is no
evidence that the province did not receive the letter, and the evidence
suggests that it was, in fact, sent. The decision in Ijaz also refers to earlier decisions in which the duty to consult the
nominating province was satisfied by simply sending it a courtesy copy of the
pre-refusal (or fairness) letter: Hui v Canada
(Citizenship and Immigration), 2011 FC 1098, and Bhamra v Canada (Citizenship and Immigration),
2014 FC 239.
9 Accordingly,
I conclude that the Respondent complied with its duty to consult the province
before denying the Applicant's application for a permanent resident visa.
Issue 2: Requirement to
Become Economically Established in Canada
10 The
Applicant argues that, by focusing on her limited language skills at the time
of the Decision and the language requirements of her intended occupation
(school teacher), the Officer erroneously required the Applicant to become
economically established in Canada immediately. The Applicant argues that it is
sufficient that she show that she is likely to become economically established
in Canada within a reasonable time. The Applicant argues that she clearly
indicated to the Officer that she did not expect to become a teacher right away
and that she intended to work at other jobs and improve her language skills
while becoming qualified to teach in Saskatchewan.
11 The
Respondent notes that the Applicant did not provide any evidence as to how long
it would take her to become economically established in Canada; nor did she
indicate that she had received, or even sought, any job offers in Canada. The
Officer was therefore unable to assess whether the time required for the
Applicant to become economically established in Canada would be reasonable. The
Respondent also argues that determining whether or not an applicant is likely
to become economically established is an area in which immigration officers
have significant experience and expertise. This justifies deference to the
Officer's Decision.
12 I
side with the Respondent on this issue. The following words of Justice Russell
in Ijaz at para 52 apply equally
in the present case:
·
The Officer does not insist
upon immediate economic establishment but attempts to find out how the
Applicant might ever "become economically established" over time; not
whether she will be economically established upon arrival. [...] The word
"become" obviously indicates that economic establishment need not
occur immediately but can take place over time.
13 Accordingly,
I am satisfied that the Officer understood and reasonably applied the
requirements to become economically established in Canada.
Issue 3: Reasonableness
of the Decision
14 The
Applicant has several arguments in support of her submission that the Decision
was unreasonable. Though there is some repetition and overlap in her arguments,
I summarize them here as follows:
The Officer failed to
consider the factors set out in Wai v Canada
(Citizenship and Immigration), 2009 FC 780 at para 44 (Wai), for determining the likelihood of
economic establishment: "age, education, qualification, past employment
experience, the province's views, as well as motivation and
initiative."
The Officer relied
unreasonably on her own assessment of the Applicant's language skills.
The Officer
unreasonably focused on the Applicant's intended occupation when assessing her
ability to become economically established in Canada.
The Officer was not in
a position to conclude that the Applicant was not employable in Canada as a
teacher.
The Officer acted
unreasonably in concluding that the Applicant's language skills were
insufficient despite the fact that the Applicant had demonstrated language
skills above the minimum recommended by the province of Saskatchewan in order
to do most jobs well.
15 With
regard to the factors set out in Wai, I am not satisfied that the Officer failed to take them into
account such that the Decision might have been different if they had been
thoroughly considered. The Officer was principally concerned with the
Applicant's limited language skills and the absence of details concerning her
plans to find a job and become qualified in Canada in her intended occupation.
I see no reason to conclude that the Officer failed to consider whether these
important concerns were outweighed by other factors. The absence of discussion
of those other factors in the Decision does not mean that they were not considered.
The onus of establishing that the other factors should outweigh the Applicant's
cited shortcomings was on the Applicant. In addition, the Applicant bears the
onus of establishing that those other factors were not properly considered by
the Officer. I am not satisfied on either point.
16 With
regard to the second point above, I am satisfied that the Officer had the
necessary experience and expertise to make a determination of whether the test
results provided by the Applicant indicated that she had sufficient language
skills to permit her to become economically established in Canada. It was
reasonable for the Officer to conclude that work in her intended occupation,
and even becoming qualified in that occupation, requires greater language
skills than the Applicant could demonstrate.
17 The
Officer's electronic notes concerning the Applicant indicate that the
Applicant's proposal to take the language test again in the hope of improving
her results was not requested and suggests "that she may not have
understood the contents of the [pre-refusal] letter -- which reinforces concern
about her English lang[uage] proficiency." This reasoning seems flawed and
unreasonable. However, it was not mentioned in the Decision and I do not
believe it formed a relevant part of the reasons for the Decision.
18 The
third argument raised by the Applicant in an effort to show that the Decision
was unreasonable is that the Officer focused too much on the Applicant's
intended occupation. In my view, the Decision was reasonable in this aspect
since it was in this intended occupation that the Applicant indicated she
planned to become economically established. Other jobs she referred to (e.g. at
Tim Hortons or McDonalds) were intended simply to fund the Applicant's efforts
to become qualified in Canada. It does not appear that the Applicant's plan was
to become economically established by virtue of these other jobs.
19 The
Applicant's fourth argument in support of the unreasonableness of the Decision
is that the Officer was not in a position to conclude that the Applicant was
not employable in Canada, as a teacher. Again, the real concern is the
Applicant's language skills to work or become qualified as a teacher. It
appears that the parties do not disagree on the fact that the Applicant's
foreign experience is such that she must become qualified if she is to work as
a teacher in Canada. Accordingly, I cannot agree with the Applicant on this
argument.
20 Finally,
the Applicant argues that the Officer was unreasonable in concluding that her
language skills were insufficient. The Applicant observes that she demonstrated
language skills above the minimum recommended by the province of Saskatchewan
in order to do most jobs well. For its part, the Respondent argues that it was
open to the Officer to conclude that the Applicant needed more than the minimum
recommended language skills in order to become economically established in
Canada. The Respondent notes that meeting the minimum requirement simply
avoided the Applicant being screened out from the outset. As stated above, the
Officer has experience and expertise to consider requirements for becoming
economically established in Canada.
21 In
my view, the following passage from Ijaz at para 63 applies (in essence) here:
·
All in all, this meant that the
Applicant had no plan to pursue a teaching career, she had not produced the job
offer for a cashier position, and she had only modest language skills in
English. It is not difficult to see why the Officer was concerned that the
Applicant had not demonstrated how she would become economically established if
she came to Canada.
IV. Conclusion
22 In
light of the foregoing, I have concluded that this application should be
dismissed.
JUDGMENT
·
THIS COURT'S JUDGMENT is that:
The present application
for judicial review is dismissed; and
There is no serious
question of general importance to be certified.
LOCKE J.
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