Uddin v. Canada (Minister of Citizenship and
Immigration)
Between
Muhammad Zulhaz Uddin, Applicant, and
The Minister of Citizenship and Immigration, Respondent
Muhammad Zulhaz Uddin, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2012] F.C.J. No.
1095
2012 FC 1005
Docket IMM-5733-11
Federal Court
Toronto, Ontario
O'Keefe J.
Heard: February 23, 2012.
Judgment: August 20, 2012.
Docket IMM-5733-11
Federal Court
Toronto, Ontario
O'Keefe J.
Heard: February 23, 2012.
Judgment: August 20, 2012.
(47 paras.)
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REASONS FOR JUDGMENT AND JUDGMENT
1 O'KEEFE J.:-- This is an application pursuant
to subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c. 27 (the Act) for judicial
review of a decision of an immigration officer at the High Commission of Canada
in Singapore (the officer), dated May 24, 2011, wherein the applicant was
denied permanent residence under the federal skilled worker class pursuant to
subsection 12(2) of the Act and subsection 76(3) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the
Regulations). This decision was based on the officer's finding that the
applicant's English language proficiency was insufficient for him to become
economically established in Canada.
2 The
applicant requests that the officer's decision be quashed and the matter be remitted
for redetermination by a different officer, at a different visa office, or
both.
Background
3 The
applicant, Muhammad Zulhaz Uddin, is a citizen of Bangladesh. He is married
with one dependent child.
4 On
November 10, 2009, the applicant filed an application for permanent residence
under the federal skilled worker class. His listed occupations were financial
manager (NOC 0111) and/or accountant (NOC 1111).
5 In
a letter dated March 3, 2011, the officer informed the applicant that he had assessed
the applicant's application and the applicant had received 72 points.
Nevertheless, the officer stated that he was considering making a negative
substituted evaluation finding pursuant to subsection 76(3) of the Regulations.
The officer explained that he considered the applicant's English language
abilities were such that the points awarded to him were not a sufficient
indicator of his likelihood of becoming economically established in Canada. The
officer stated:
·
I am not satisfied that this
level of English competency would facilitate your economic establishment in
Canada, as a Financial Manager, or similar, nor am I satisfied that you have
otherwise acceptable experience in another field of expertise, found on the NOC
list, in which you might reasonably be expected to secure employment. You have
not demonstrated that you are sufficiently proficient in English to communicate
as effectively as would be required in your field of expertise.
6 The
applicant was given sixty days to respond to the officer's concerns.
7 On
April 25, 2011, the applicant sent the Canadian High Commission in Singapore
supplementary submissions to address the officer's concerns. These submissions
included: a statement from the applicant regarding his English language abilities;
an updated personal worth statement with supporting evidence; and proof of
relationship to cousin in Canada and evidence of cousin's residence in Canada.
Officer's Decision
8 In
a letter dated May 24, 2011, the officer denied the applicant's application for
permanent residence as a skilled worker. The Computer Assisted Immigration
Processing System (CAIPS) notes that form part of the officer's decision also
explain the reasons for the denial.
9 The
officer stated that the applicant's application was assessed based on the
occupation requests: NOC Code: 1111, financial administrator or similar. The
officer assessed the following points for the applicant:
Age:
|
10 points
|
||
Education:
|
25 points
|
||
Official language
proficiency:
|
6 points
|
||
Experience:
|
21 points
|
||
Arrangement
employment:
|
0 points
|
||
Adaptability:
|
10 points
|
10 The
points for adaptability were calculated based on the sum of five points for the
applicant's spouse's education and five points for having a relative in Canada.
11 The
points for official language proficiency were based on the applicant's
International English Language Testing System (IELTS) test on April 10, 2010.
These test results indicated that the applicant was a modest user of English as
per the IELTS band scale descriptions.
12 The
officer noted that in a letter dated March 3, 2011, the applicant was informed
that his application was being considered for refusal on the basis of his
limited ability to communicate in English. Recognizing the subsequent
submissions that the applicant made in response to this letter, the officer
stated:
·
[...] I am unsatisfied that the
points awarded to you accurately reflect the likelihood that you will be able
to successfully economically establish in Canada; your submission did not
present any new evidence or information that has changed my assessment of your
file. I have made this evaluation because, as a Financial Administrator, or
similar, fields for which communication is critical, prospective employers
would reasonably expect you to be able to communicate at a high level in
English, or French. [...]
13 In
the CAIPS notes, the officer expanded on his reasons. Referring to the new
evidence submitted on the applicant's cousin, the officer noted:
·
Note that rep now states that
PA [applicant] has maternal cousin in Canada; not included on original applcication
[sic]. Nonetheless, this information per relative in Canada does not present
new information that would positively impact my concerns re PA's [applicant's]
ability to establish. Cousin states she will assist PA [applicant] if required;
note that PA's [applicant's] letter of employment shows her salary at
$11.00/hour. Combined with concerns over PA's [applicant's] capacity in
English, hsi [sic] family make-up (spouse and child), conncers [sic] remain
that PA [applicant] will not establish economically under NOC code applied
for.
14 The
officer also stated that a senior officer concurred in his evaluation of the
applicant's application and subsequent submissions.
15 The
Court notes that although the officer referred to 67 points being awarded to
the applicant, in fact the total number of points awarded was 72.
Issues
16 The
applicant submits the following points at issue:
What is the appropriate
standard of review?
Did the officer err in
substituting a negative determination pursuant to subsection 76(3) of the
Regulations?
Applicant's Written Submissions
17 The
applicant submits that this judicial review concerns a question of fact and
law. It therefore attracts a standard of review of reasonableness.
18 The
applicant does not dispute the points awarded for his application. Rather, the
applicant submits that the officer erred in substituting a negative
determination pursuant to subsection 76(3) of the Regulations. This error arose
from the officer's failure to consider all the evidence before him.
19 The
applicant also submits that the officer failed to assess the applicant's
ability on the broader and correct standard of the likelihood of becoming
economically established. Rather than concluding that the applicant needed to
demonstrate that he could pursue a career as a "financial administrator or
similar", the officer should have considered whether the applicant would
become economically established as a skilled worker and not just in the limited
professions noted in the decision. This need is reflected in the changes to the
Act and Regulations, which altered the approach to skilled worker applications
from an occupation-specific one to one that emphasizes the adaptability of
skilled worker applicants to become economically established.
20 In
support of his position that the officer did not consider all the evidence
before him, the applicant highlights specific grounds that he included in his
response to the officer's request for more information, namely:
His ability to work
constructively in the English language on a daily basis at his workplace in
Bangladesh;
The availability of
settlement funds to cover his short and mid-term financial obligations in
Canada (an amount double that which he initially indicated); and
The presence of his
cousin, Sharminaz Sultana in Canada who has offered to provide financial and
emotional support to the applicant and his family.
21 The
applicant submits that the officer was required to reflect his assessment of
this information in his decision. The officer also erred in not referring to
the settlement funds in his decision.
22 With
regards to his cousin in Canada, the applicant submits that the officer erred
by dismissing this evidence on the basis of the cousin's hourly salary. This
approach failed to take into account the cousin's spouse and led to the
suggestion that the applicant would be financially reliant on his cousin. The
officer thus misconstrued the purpose of the cousin's evidence. As the
applicant did have access to settlement funds, his cousin's evidence was merely
provided to show that there was a home available to the applicant and his
family in Canada until they became settled.
23 In
summary, the applicant submits that any reasonable analysis of the evidence
would indicate that the applicant would not have any difficulty in becoming
successfully economically established in Canada.
Respondent's Written Submissions
24 The
respondent agrees with the applicant that the standard of review of the
officer's decision is reasonableness.
25 In
response to the applicant's allegation that the officer limited his assessment
to the applicant's potential to become economically established as a
"financial administrator or similar", as opposed to as a skilled
worker in general, the respondent submits that the CAIPS notes clearly indicate
that the officer did consider the applicant's potential for establishment in
other fields of expertise on the NOC list.
26 The
respondent submits that the applicant's English skills were properly assessed.
The respondent highlights the fact that the officer gave the applicant sixty
days to provide additional information after making his preliminary finding.
However, aside from a personal statement, the applicant did not provide any
documentation to support his submissions that:
The language of choice
at his workplace in Bangladesh was English;
He intended to work in
Canada in the same capacity as he does in Bangladesh; and
Notwithstanding his
English language deficiencies, he had demonstrated professional success in
Bangladesh.
27 The
respondent submits that an applicant's settlement fund is not a relevant
consideration in a substituted evaluation. Further, the applicant did not
explain how his settlement fund would alleviate the officer's concerns about
his limited English capabilities. The officer therefore did not err in not
considering the settlement funds in his decision.
28 Finally,
the respondent submits that there is no merit to the applicant's allegation
that the officer did not consider his cousin in Canada. The CAIPS notes clearly
indicate that this evidence was considered. The respondent acknowledges the
applicant's submissions that his cousin was prepared to assist him in the
transition to Canada, both her and her husband were employed on a full-time
basis and that they owned a home in Brampton where the applicant and his family
could stay until they adjusted to life in Canada. However, none of these
submissions explained why the presence of the applicant's cousin should
alleviate the officer's concerns about his limited English. The applicant's
submissions are thus limited to the officer's weighing of the evidence, which
does not amount to a reviewable error.
Analysis and Decision
Issue 1
What is the appropriate standard of review?
29 Where
previous jurisprudence has determined the standard of review applicable to a particular
issue before the court, the reviewing court may adopt that standard (see Dunsmuir v. New Brunswick, 2008 SCC 9, [2008]
1 SCR 190 at paragraph 57).
30 A
determination under subsection 76(3) of the Regulations is a fact-driven
exercise in an area where officers have significant experience. It is therefore
reviewable on a standard of reasonableness (see Debnath
v. Canada (Minister of Citizenship and Immigration),
2010 FC 904, [2010] F.C.J. No. 1110 at paragraph 8; Philbean
v. Canada (Minister of Citizenship and Immigration),
2011 FC 487, [2011] F.C.J. No. 606 at paragraph 8; and Roohi
v. Canada (Minister of Citizenship and Immigration),
2008 FC 1408, [2008] F.C.J. No. 1834 at paragraph 13).
31 In
reviewing the officer's decision on the standard of reasonableness, the Court
should not intervene unless the officer came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir above, at paragraph 47; Canada (Citizenship
and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 SCR
339 at paragraph 59). As the Supreme Court held in Khosa above, it is not up to a reviewing court to substitute its own view
of a preferable outcome, nor is it the function of the reviewing court to
reweigh the evidence (at paragraphs 59 and 61).
Issue 2
·
Did the officer err in
substituting a negative determination pursuant to subsection 76(3) of the
Regulations?
32 Philbean above, at paragraph
9:
·
Subsection 12(2) of the IRPA
indicates that, for the purposes of permanent residence, a person may be
selected as a member of the economic class on the basis of their ability to
become economically established in Canada. Subsection 76(1) of the Regulations
indicates that, for the purposes of determining whether a skilled worker will
be able to become economically established in Canada, two requirements must be
met: a) the applicant must be awarded at least a minimum number of points based
on education, language, experience, age, arranged employment, and adaptability,
and b) the applicant must either (i) have a certain amount of money available
to use for settlement in Canada, or (ii) have been awarded a certain number of
points for having already arranged employment in Canada. [...]
33 In
this case, the officer first assessed the applicant's application under
subsection 76(1) of the Regulations and thereby awarded the applicant 72
points. The officer then exercised his discretion under subsection 76(3) of the
Regulations to evaluate the likelihood of the applicant becoming economically
established in Canada despite the fact that the points awarded to him met the
statutory requirement.
34 Madam
Justice Tremblay-Lamer also described this provision in Philbean above, at paragraph 11:
·
Subsection 76(3) of the
Regulations [...] allows for an immigration officer to substitute his or her
own evaluation as to whether or not an applicant will be able to become
economically established in Canada for the points-based assessment set out in
paragraph 76(1)(a) in circumstances where the officer finds that the number of
points awarded is not a sufficient indicator as to the applicant's actual
ability to become established. Justice Leonard Mandamin, in Roohi, above, described subsection 76(3) as
allowing, inter alia, "for screening out applicants who pass the initial
assessment but ought not be accepted for valid reasons".
35 As
noted by the applicant, subsection 76(3) requires a two-stage analysis. This
analysis was described by Mr. Justice Leonard Mandamin in Roohi above, at paragraph 17:
·
Section 76(3) engages a two
stage process for arriving at a substituted evaluation: first, the visa officer
must decide if the s. 76(1) assessment is not a sufficient indicator of whether
the skilled worker applicant may become economically established in Canada;
second, the visa officer must evaluate the likelihood of the skilled worker
becoming economically established in Canada by conducting an adequate
substitute assessment on proper grounds.
36 These
substituted evaluations under subsection 76(3) of the Regulations introduce an
element of flexibility into the skilled worker application process (see Roohi above, at paragraph 25). Deference is
owed to the officer in making the decision; however, it must nonetheless be
consistent with the Act, the Regulations and the thrust of the skilled worker
provisions (see Roohi above, at
paragraph 26).
37 In
this case, the officer found that the applicant's English language proficiency
rendered the subsection 76(1) assessment insufficient as an indicator of the
applicant's potential to become economically established in Canada. The officer
therefore notified the applicant of his concerns and allowed the applicant to
file additional submissions to alleviate them.
38 It
is notable that an officer is under no duty to inform the applicant about any
concerns regarding the application that arise directly from the requirements of
the legislation or regulations and do not pertain to the veracity of the
documents (see Hassani v. Canada (Minister of
Citizenship and Immigration), 2006 FC 1283, [2006]
F.C.J. No. 1597 at paragraphs 23 and 24). The onus is always on the applicant
to satisfy the officer of all parts of his application. The officer is under no
obligation to ask for additional information where the applicant's material is
insufficient (see Sharma v. Canada (Minister of
Citizenship and Immigration), 2009 FC 786, [2009]
F.C.J. No. 910 at paragraph 8; and Veryamani v. Canada
(Minister of Citizenship and Immigration), 2010 FC
1268, [2010] F.C.J. No. 1668 at paragraph 36). Nevertheless, in this case the
officer did provide the applicant with an opportunity to disabuse his concerns.
39 In
response to the officer's concerns, the applicant filed a personal statement on
his English language abilities, accounts showing increased settlement funds and
proof of his cousin's establishment in Canada. However, the officer found that
the additional submissions did not present any new information or evidence that
changed his assessment of the file.
40 The
decision clearly indicates that the officer's main concern was the applicant's
English language proficiency. Although the applicant stated in his personal
statement that all of his regular work was conducted in English, the officer
had the applicant's IELTS scores before him that contradicted this submission.
I therefore do not find that the officer erred in not affording much weight to
this submission.
41 With
regards to the settlement funds, recent jurisprudence has established that
officers are not required to consider these in subsection 76(3) analyses (see Xu v. Canada (Minister of Citizenship and Immigration), 2010 FC 418, [2010] F.C.J. No. 483 at paragraph 32; Philbean above, at paragraph 19; and Debnath above, at paragraph 15). Similarly to
Debnath above, the question of
settlement funds was irrelevant to the officer's main concerns; namely, the
applicant's English language proficiency in this case (see Debnath above, at paragraphs 13 and 14). I
therefore find no error in the officer's assessment of the applicant's
settlement funds.
42 Turning
to the applicant's cousin in Canada, the applicant submits that the officer
erred by dismissing it on the basis of her salary. The applicant submits that
the officer misconstrued the evidence as indicative of the applicant's
financial reliance on his cousin rather than as evidence of a home for the
applicant and his family to reside in until they became settled in Canada.
43 I
first note that although the applicant criticizes the fact that the officer
mentioned the cousin's salary without delving into her husband's employment,
the husband's salary was not included in the applicant's submissions. Further
and more importantly, the officer's main concern with the applicant's
application was his English language proficiency. Therefore, I do not find that
the officer erred in finding that the submissions on his cousin did not qualify
as new information that would positively impact his concerns. There was nothing
to suggest that his cousin would help him with the English language which, as
stated above, was the officer's main concern with the applicant's ability to
successfully economically establish in Canada.
44 Finally,
as noted by the applicant, revisions to the Regulations have changed the
approach in skilled worker applications from one focused on a specific
occupation to one in which greater emphasis is placed on the adaptability of
the applicant to becoming economically established in Canada (see Roohi above, at paragraph 28). However,
contrary to the applicant's submissions, I find that the officer in this case
did adopt the broader approach. As mentioned above, the officer explicitly
stated in his letter dated March 3, 2011 that:
·
I am not satisfied that this
level of English competency would facilitate your economic establishment in
Canada, as a Financial Manager, or similar, nor am I
satisfied that you have otherwise acceptable experience in another field of
expertise, found on the NOC list, in which you might
reasonably be expected to secure employment. [emphasis added]
45 This
clearly indicates that the officer did not limit his assessment to the
applicant's competency in a specific occupation, but rather also considered his
adaptability into other fields.
46 In
summary, I find that the officer considered all the evidence before him in
exercising his discretion under subsection 76(3) of the Regulations. This
evidence included both the applicant's initial application and his subsequent
submissions. I find that the officer's decision was transparent, justifiable
and intelligible and within the range of acceptable outcomes based on the
evidence before it. I would therefore dismiss this application.
47 Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
THIS COURT'S JUDGMENT is that the application for judicial review is dismissed.
O'KEEFE J.
* * * * *
ANNEX
Relevant Statutory Provisions
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.
The regulations may
prescribe, and govern any matter relating to, classes of permanent residents or
foreign nationals, including the classes referred to in section 12, and may
include provisions respecting
selection criteria, the
weight, if any, to be given to all or some of those criteria, the procedures to
be followed in evaluating all or some of those criteria and the circumstances
in which an officer may substitute for those criteria their evaluation of the
likelihood of a foreign national's ability to become economically established
in Canada;
(1) Judicial review by
the Federal Court with respect to any matter -- a decision, determination or
order made, a measure taken or a question raised -- under this Act is commenced
by making an application for leave to the Court.
* * *
·
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.
Ils établissent et
régissent les catégories de résidents permanents ou d'étrangers, dont celles
visées à l'article 12, et portent notamment sur :
les critères
applicables aux diverses catégories, et les méthodes ou, le cas échéant, les
grilles d'appréciation et de pondération de tout ou partie de ces critères,
ainsi que les cas où l'agent peut substituer aux critères son appréciation de
la capacité de l'étranger à réussir son établissement économique au
Canada;
(1) Le contrôle
judiciaire par la Cour fédérale de toute mesure -- décision, ordonnance,
question ou affaire -- prise dans le cadre de la présente loi est subordonné au
dépôt d'une demande d'autorisation.
Immigration and Refugee Protection Regulations, SOR/2002-227
(1) For the purposes of
subsection 12(2) of the Act, the federal skilled worker class is hereby
prescribed as a class of persons who are skilled workers and who may become
permanent residents on the basis of their ability to become economically
established in Canada and who intend to reside in a province other than the
Province of Quebec.
(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:
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
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).
·
...
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.
An evaluation made
under subsection (3) requires the concurrence of a second officer.
* * *
(1) Pour l'application
du paragraphe 12(2) de la Loi, la catégorie des travailleurs qualifiés
(fédéral) est une catégorie réglementaire de personnes qui peuvent devenir
résidents permanents du fait de leur capacité à réussir leur établissement
économique au Canada, qui sont des travailleurs qualifiés et qui cherchent à
s'établir dans une province autre que le Québec.
(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) :
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).
·
...
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).
Toute décision de
l'agent au titre du paragraphe (3) doit être confirmée par un autre
agent.
