ARRANGED EMPLOYMENT OPINION NOT DETERMINATIVE OF WORK PERMIT ISSUE

Many people are under the misconception that a Labour market Opinion or an Arranged Employment Opinion ( now suspended) are a "guarantee" that a Work permit or Permanent residency visas will be issued. That is incorrect, as the case below explains.

Ghazeleh v. Canada (Minister of Citizenship and Immigration)

Between Ghanai Ghazeleh, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2012] F.C.J. No. 1604

2012 FC 1521

Docket IMM-2293-12

Federal Court
Toronto, Ontario

Rennie J.

Heard: November 21, 2012.
Judgment: December 20, 2012.

(26 paras.)

 

---

REASONS FOR JUDGMENT AND JUDGMENT

1     RENNIE J.:-- The applicant is a citizen of Iran who applied to immigrate to Canada under the federal skilled worker class. She seeks judicial review of a decision of an immigration visa officer (the Officer) denying this application. The Officer was not satisfied that the applicant had a genuine offer of employment in Canada and therefore determined that she did not meet the minimum requirements for permanent residence under this category.

2     The Officer also rejected a request for a substituted evaluation based on her application and $600,000 in funds said to be available to her to support her transition to Canada.

3     In Gill v. Canada (Citizenship and Immigration), 2010 FC 466, Justice Sean Harrington observed that whether a visa officer is entitled to override an opinion by the Department of Human Resources and Skills Development that an arranged offer of employment was genuine was a question "best left for another day". That day has arrived.

4     For the reasons that follow the application is dismissed.

Applicable Regulations

5     Section 75 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations) describes federal skilled workers as those who may become permanent residents on the basis of their ability to become economically established in Canada.

6     Immigration officers award applicants points on the basis of factors listed in paragraph 76(1)(a) of the Regulations: education, proficiency in English and French, experience, age, arranged employment and adaptability. Applicants must be awarded at least 67 points to be eligible for a federal skilled worker visa.

7     Under paragraph 82(2)(c), applicants from outside of Canada are entitled to ten points for arranged employment, provided that:

 

·       (i) 

The employer has made an offer to employ the skilled worker on an indeterminate basis once the permanent resident visa is issued to the skilled worker; and 

·       (ii) 

An officer has approved that offer of employment based on an opinion provided to the officer by the Department of Human Resources and Skills Development at the request of the employer or an officer that: 

 

·       (a) 

the offer of employment is genuine; 

·       (b) 

the employment is not part-time or seasonal employment; and 

·       (c) 

the wages offered to the skilled worker are consistent with the prevailing wage rate for the occupation and the working conditions meet generally accepted Canadian standards; 

8     Under subsection 76(3), the immigration officer has the discretion to undertake a substituted evaluation if the officer determines that the number of points awarded is not a sufficient indicator of the applicant's ability to become economically established in Canada.

Decision Under Review

9     The applicant obtained an offer of employment as a technical sales specialist from a company in North Vancouver, British Columbia. Human Resources and Skills Development / Service Canada (HRSDC) considered this offer and provided her with a positive determination of eligibility for processing, also known as a positive Arranged Employment Opinion (AEO).

10     The applicant provided evidence in support of her application, including:

 

·       * 

International English Language Testing System results with an overall score of 5.5 out of 9; 

·       * 

The positive AEO and offer of employment; 

·       * 

Evidence of her current employment as a production manager; 

·       * 

A letter indicating that she had studied French for one year; 

·       * 

University transcripts and her bachelor's degree; 

·       * 

Evidence that her brother lived in Canada; 

·       * 

Banking information. 

11     The Officer considered this evidence and awarded the applicant 65 points, two less than the minimum requirement. The applicant received high scores for age, education and experience. She received five points out of a maximum ten for adaptability because she has family in Canada. The Officer credited her English language ability but did not award any points for French because she had not submitted test results.

12     However, the applicant received no points for arranged employment. The Officer was not satisfied by HRSDC's positive assessment of the employment offer, had concerns about the company's ability to employ the applicant and requested the company's tax information which revealed substantial losses in 2010.

13     The Visa Officer wrote to the applicant's representative who conceded that they could not alleviate the Officer's concerns. No further information came to light in response to a subsequent fairness letter. The applicant did, however, request a substituted evaluation of her ability to be economically established in Canada under subsection 76(3) of the Regulations. Therefore, the representative requested an opportunity to provide French test results. In the alternative, the representative requested substituted evaluation in light of the applicant's net worth and immediate family living in Canada.

14     The Officer did not invite the applicant to submit further evidence. The Officer also declined to conduct a substituted evaluation having concluded that the points awarded accurately reflected her ability to become established in Canada.

Issues

15     The applicant raises three issues:

 

·       (i) 

Whether the Officer was entitled to consider the genuineness of the employment offer; 

·       (ii) 

Whether the Officer reasonably assessed the evidence; and 

·       (iii) 

Whether the Officer breached the duty of procedural fairness. 

16     Questions of jurisdiction and procedural fairness are reviewed on the standard of correctness, whereas the Officer's overall assessment attracts substantial deference and is reviewed based on reasonableness: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.

Analysis

Jurisdiction

17     The applicant submits that the Officer must accept HRSDC's assessment as to whether the employment offer is genuine. The applicant refers to the Regulations, which state that an immigration officer shall award points for arranged employment if the officer "has approved that offer of employment based on an opinion provided to the officer by the Department of Human Resources and Skills Development". The applicant argues that the Regulations did not permit the Officer to look beyond the AEO.

18     HRSDC's opinion is the first step in the validation of an employment offer; it does not end the inquiry. Under section 82 of the Regulations, an immigration officer must approve of employment offers and consider whether applicants are "able to perform and are likely to accept and carry out the employment".

19     As Justice Judith Snider explained in Bellido v. Canada (Minister of Citizenship and Immigration), 2005 FC 452 at paragraph 21:

 

·       HRDC validation is not, as the Applicant submits, sufficient evidence of arranged employment. Such validation does not remove the obligation of the Visa Officer to assess whether the Applicant is able to perform the job described in the validation. 

20     An applicant cannot, in the language of section 82 of the Regulations, accept, perform and carry out an employment offer that does not exist, or, as in this case, could not be implemented because of the employer's financial circumstances. A visa officer must be satisfied that the criteria specified in section 82 of the Regulations are met. Furthermore, in my view, HRSDC's opinion is just that, an opinion, it is not determinative of whether a visa should issue. The immigration officer is the ultimate decision maker.

21     It is true that HRSDC has a different mandate than that of a visa officer. Its specialization lies in the identification of deficiencies in the labour market and providing an opinion that the position is genuine. However, an immigration officer has the overriding discretion to refuse a visa, in appropriate circumstances. Indeed, it would be incumbent on a visa officer to do so if they became aware of facts or circumstances which questioned the legitimacy of the offer.

22     The authority to grant access to Canadian territory is vested in the Minister of Citizenship and Immigration, and specifically, to the visa officer. Subsection 11(1) of the IRPA provides:

 

·       11. 

(1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act. 

* * *

 

·       11. 

(1) L'étranger doit, préalablement à son entrée au Canada, demander à l'agent les visa et autres documents requis par règlement. L'agent peut les délivrer sur preuve, à la suite d'un contrôle, que l'étranger n'est pas interdit de territoire et se conforme à la présente loi. 

23     It is the Minister of Citizenship and Immigration who is accountable, legally, for the decision to grant a visa. To conclude that he was bound by the HRSDC opinion would be either an impermissible delegation of the Minister's statutory obligations under the IRPA or a fettering of the Minister's discretion. To conclude, it is the Minister of Citizenship and Immigration who makes the decision, not the Minister of HRSDC. HRSDC rather, offers an opinion.

Procedural Fairness

24     The applicant submits that the Officer's refusal to conduct a substituted evaluation violated her right to procedural fairness. The applicant argues that she should have been given the opportunity to prove her ability to become established in Canada based on her age, relatives in Canada and her and her husband's combined net worth.

25     The applicant was already awarded points for her age and relatives in Canada. With regard to her claimed net worth of $600,000, the Officer gave brief reasons for deciding that a substituted evaluation was not warranted.

26     The applicant is obligated to provide the best evidence demonstrating her ability to become economically established in Canada. There was no unfairness in the Officer's assessment of the evidence as presented, without inviting further submissions, the decision, regardless of its conclusionary nature, was reasonable. The adequacy of the reasons needs to be assessed in light of the information in front of the Officer, which in this case was simply a bold statement that she had a net worth of $600,000. The reasoning was commensurate with the scant and superficial nature of the evidence before her in support of the request for a substituted evaluation.

JUDGMENT

THIS COURT'S JUDGMENT is that the application for judicial review is dismissed. There is no question for certification.

RENNIE J.

SKILLED WORKER WORK EXPERIENCE REQUIREMENT IN FOCUS

In the case below, the Federal Court confirmed that it is incumbent upon the applicant to prove that he has at least one year of full time experience in an occupation, despite having obtained an Arranged Employment Offer confirmation.

Senadheera v. Canada (Minister of Citizenship and Immigration)

Between Nihal Tissa Senadheera, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2012] F.C.J. No. 893

2012 FC 704

Docket IMM-6340-11

 Federal Court
Vancouver, British Columbia

Pinard J.

Heard: May 8, 2012.
Judgment: June 12, 2012.

(15 paras.)

---

REASONS FOR JUDGMENT AND JUDGMENT

1     PINARD J.:-- This is an application for judicial review by Nihal Tissa Senadheera (the "applicant") of the decision, dated June 24, 2011, of Designated Immigration Officer U. Atukorala (the "officer"), pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act"). The officer refused the applicant's application for a permanent resident visa as a skilled worker pursuant to subsection 12(2) of the Act and section 76 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the "Regulations").

2     The applicant is a citizen of Sri Lanka. He holds a Bachelor of Science and a Masters of Business Administration, and has owned and operated his own company, Fidelity International (Private) Ltd. since 1996.

3     In 2008, the applicant obtained a positive Arranged Employment Opinion ("AEO") for the position of Business Development Manager with North American Tea & Coffee Inc., in Delta, British Columbia. He submitted an application for permanent residence in Canada under the Federal Skilled Worker Program in December 2009. In the application, the applicant requested that the decision-maker consider substituted evaluation under subsection 76(3) of the Regulations if he did not obtain the minimum required points.

4     After submitting all other required documentation in support of his application, the applicant received a letter dated May 23, 2011 advising him that he did not meet the requirements for a skilled worker visa pursuant to subsection 75(2) of the Regulations, specifically because he had not provided sufficient evidence of his employment experience. Counsel for the applicant contacted Citizenship and Immigration Canada Program Manager B. Hudson, requesting reconsideration on the basis that further documentation should have been requested if there was a concern about a lack of work experience. The officer decided that his first decision-letter dated May 23, 2011 was sent in error and that the applicant was entitled to a point assessment under section 76 of the Regulations because he had a positive AEO.

5     The applicant raises the following issues:

·       i. 

Did the officer err in failing to recognize the applicant's work experience? 

·       ii. 

Did the officer err by failing to exercise his or her discretion pursuant to subsection 76(3) of the Regulations? 

·       iii. 

Did the officer err by failing to recognize the applicant's accompanying spouse's post-secondary education documents, or the applicant's AEO? 

·       iv. 

Did the officer fail to observe principles of procedural fairness by providing inadequate reasons? 

6     Decisions regarding applicants' eligibility for permanent residence as skilled workers are based on discretionary findings of fact and are therefore to be reviewed by this Court based on a standard of reasonableness, only to be disturbed if the officer's reasoning was flawed and the resulting decision falls outside the "range of possible, acceptable outcomes which are defensible in respect of the facts and law" (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47). Although there may be more than one possible outcome, as long as the officer's decision making process was justified, transparent and intelligible, a reviewing court cannot substitute its own view of a preferable outcome (Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para 59).

7     The officer's obligation to consider whether to exercise his or her discretion under subsection 76(3) of the Regulations is not discretionary, however, and is reviewable on a correctness standard (Miranda v. Minister of Citizenship and Immigration, 2010 FC 424). Questions of procedural fairness are also reviewed on a standard of correctness (Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3).

·       i. 

Did the officer err in failing to recognize the applicant's work experience?

8     The applicant argues that if the officer had concerns about the applicant's work experience, he had a duty to notify the applicant of his concerns and give the applicant an opportunity to respond (Torres v. Minister of Citizenship and Immigration, 2011 FC 818 at paras 37-40).

9     The respondent notes that the Documents Checklist specifies the required documentation to prove work experience, and indicates that: "If you cannot provide a reference from your current employer, provide a written explanation."

10     The respondent is right that the Documents Checklist clearly sets out the required documents to prove work experience, specifically, letters of reference from past and current employers. The Checklist advises those who cannot provide references to provide an explanation. The applicant did not submit the required documents, and he did not provide an explanation for why he could not obtain them. I do not accept the applicant's contention that he had no way of proving his work experience except through his own statements. As the respondent submits, he could, for example, have obtained letters of support from his clients detailing his duties (Bandoo v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 603 (T.D.) (QL)).

11     I also agree with the respondent that the officer was under no obligation to notify the applicant of the deficiencies in his application -- the onus was on the applicant to submit a complete application that established that he met the requirements for a skilled worker visa. Since the applicant failed to submit sufficient evidence of his work experience, it was reasonable for the officer to award no points under this category.

12     I note that, since the applicant did not establish that he had at least one year of continuous full-time employment experience within the preceding ten years, he did not satisfy the minimum requirements of a skilled worker under subsection 75(2) of the Regulations. Therefore, the application should have been refused under subsection 75(3) and no further analysis should have been conducted. The officer appears to have believed that the applicant was entitled to a point assessment under section 76 of the Regulations because he had a positive AEO. However, a positive AEO does not exempt an applicant from the requirements of subsection 75(2) of the Regulations.

13     I can find nothing in the Act, the Regulations or the Ministerial Instructions to suggest that an applicant is exempted from the requirements of subsection 75(2) if he or she has a positive AEO. The Ministerial Instructions state that applications will be immediately processed if an applicant has a positive AEO, but the application must still meet the requirements of the Act and Regulations. Therefore, I cannot understand why the officer determined that this application was entitled to a point assessment, since the officer found that the applicant had not established his work experience, meaning he had not shown he met the requirements of subsection 75(2) of the Regulations. It appears to me that the application was properly refused pursuant to subsection 75(3) the first time, an outcome which remains unaffected.

14     For this reason, the present application for judicial review will be dismissed, since all of the other alleged errors occurred in the point assessment under section 76 of the Regulations. Since the application was not properly considered under section 76, these alleged errors would not alter the outcome.

15     I agree with counsel for the parties that this is not a matter for certification.

JUDGMENT

The application for judicial review of the decision of Designated Immigration Officer U. Atukorala, refusing the applicant's application for a permanent resident visa as a skilled worker pursuant to subsection 12(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and section 76 of the Immigration and Refugee Protection Regulations, SOR/2002-227, is dismissed.

PINARD J.