FRAUDULENT LANGUAGE TESTS BY IRANIAN APPLICANTS IN FEDERAL COURT DECISIONS

A recent decision by the Federal Court follows on a series of prior rulings regarding fraudulent IELTS scores presented by the same "consultant" on behalf o his clients in Iran,

Khorasgani v. Canada (Minister of Citizenship and Immigration)

Between Mohammadreza Fatemi Khorasgani, Maryam Tajmir Riahi, Ali
Fatemi Khorasgani and Mehdi Fatemi Khorasgani, Applicants, and
The Minister of Citizenship and Immigration, Respondent

[2012] F.C.J. No. 1260

2012 FC 1177

Docket IMM-2090-12

 Federal Court
Montréal, Quebec

Martineau J.

Heard: October 2, 2012.
Judgment: October 9, 2012.

(22 paras.)

---

REASONS FOR JUDGMENT AND JUDGMENT

1     MARTINEAU J.:-- The issue in this judicial review application is whether the visa officer made a reviewable error in dismissing the applicants' application for permanent residence [the application] on the basis of misrepresentation under paragraph 40(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27, as amended [Act].

2     The applicants are citizens of Iran. The principal applicant, Dr. Khorasgani, is a pediatrician who wants to be admitted in the Federal Skilled Worker Class. In 2005, the principal applicant hired an immigration consultant to help prepare and submit the application. According to the Computer Assisted Immigration Processing System [CAIPS], the application was received on or before January 3, 2006 at the Canadian Embassy in Damascus.

3     Section 79 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations] sets out the language test requirements for a permanent residency application made by a skilled worker:

 

·       79. 

(1) A skilled worker must specify in their application for a permanent resident visa which language -- English or French -- is to be considered their first official language in Canada and which is to be considered their second official language in Canada and must have their proficiency in those languages assessed by an organization or institution designated under subsection (3). 

 

·       ... 

 

·       (3) 

The Minister may designate organizations or institutions to assess language proficiency for the purposes of this section and shall, for the purpose of correlating the results of such an assessment by a particular designated organization or institution with the benchmarks referred to in subsection (2), establish the minimum test result required to be awarded for each ability and each level of proficiency in the course of an assessment of language proficiency by that organization or institution in order to meet those benchmarks. 

·       (4) 

The results of an assessment of the language proficiency of a skilled worker by a designated organization or institution and the correlation of those results with the benchmarks in accordance with subsection (3) are conclusive evidence of the skilled worker's proficiency in the official languages of Canada for the purposes of subsections (1) and 76(1). 

* * *

 

·       79. 

(1) Le travailleur qualifié indique dans sa demande de visa de résident permanent la langue -- français ou anglais -- qui doit être considérée comme sa première langue officielle au Canada et celle qui doit être considérée comme sa deuxième langue officielle au Canada et fait évaluer ses compétences dans ces langues par une institution ou organisation désignée aux termes du paragraphe (3). 

 

·       ... 

 

·       (3) 

Le ministre peut désigner les institutions ou organisations chargées d'évaluer la compétence linguistique pour l'application du présent article et, en vue d'établir des équivalences entre les résultats de l'évaluation fournis par une institution ou organisation désignée et les standards mentionnés au paragraphe (2), il fixe le résultat de test minimal qui doit être attribué pour chaque aptitude et chaque niveau de compétence lors de l'évaluation de la compétence linguistique par cette institution ou organisation pour satisfaire à ces standards. 

·       (4) 

Les résultats de l'examen de langue administré par une institution ou organisation désignée et les équivalences établies en vertu du paragraphe (3) constituent une preuve concluante de la compétence du travailleur qualifié dans les langues officielles du Canada pour l'application des paragraphes (1) et 76(1). 

4     The application included the results of the principal applicant's English language proficiency test: listening 6.5, reading 6.5, writing 6.0, speaking 5.5, and overall band score 6.0. These results, on their face, appeared to have been issued by the International English Language Testing System [IELTS], an organization approved by the Canadian government. Indeed, the Test Report Form dated December 1, 2005 and bearing the number 021R1234745QL6790L (the 2005 test report), which is certified as a true copy by the Justice Administrator, features logos of the British Council, the IELTS Australia and the University of Cambridge.

5     The principal applicant was apparently examined on October 5, 2005. However, when reviewing the applicants' file, the visa officer had concerns about the authenticity of the 2005 test report. On June 27, 2011, a procedural fairness email was sent to the principal applicant expressing the concerns of the visa officer. The principal applicant confirmed that he had never taken an English test before 2006. Be that as it may, the principal applicant had since then passed IELTS tests (see reports of July 22, 2006, July 4, 2009, and December 5, 2009).

6     The visa officer found that the applicants had submitted fraudulent English test results, which could have induced an error in the administration of the Act, and found the applicants inadmissible for misrepresentation for a period of two years:

 

·       The misrepresentation or withholding of these material facts induced or could have induced errors in the administration of the Act. You have submitted IELTS test results indicating that you were a "very good user" of the English language. 

 

·       Without establishing your abilities in the English language, your application would not receive sufficient points at selection to meet the points total required by the Immigration and Refugee Protection Regulations and your application would not have met immigration requirements. 

7     The applicants now challenge the visa officer's finding that the fraudulent test scores constitute a material misrepresentation. In the impugned decision, reference is made to a test report form dated December 5, 2009, but it appears this is a clerical error. Indeed, in the fairness letter (emailed by the visa officer on June 27, 2011) reference is made to the 2005 test report. In this respect, the applicants submit that the visa officer should not have considered the forged 2005 test document, but only the most recent language tests (December 2009), and which conclusively establish the English language proficiency of the principal applicant. Accordingly, the determination made by the visa officer that the application would not receive sufficient points at selection is unreasonable.

8     According to the case law, the finding of misrepresentation and its qualification by the visa officer as material misrepresentation, are reviewable under the standard of reasonableness, while alleged breaches to procedural fairness are reviewable under the standard of correctness.

9     The present application for judicial review must fail.

10     At the hearing before the Court, applicants' counsel did not pursue procedural fairness issues originally raised, if any, in the pleadings. Indeed, the fairness letter sent to the principal applicant on June 27, 2011 clearly outlines the officer's concerns with respect to the authenticity of the 2005 test report. Moreover, the applicants' counsel also readily admitted that in view of the case law and wording of paragraph 40(1)(a) of the Act, the principal applicant cannot blame the immigration consultant for his forgery. In passing, I note that on November 22, 2006 the visa officer attempted to notify the principal applicant that he had hired an unauthorized representative. However, the email address provided by the immigration consultant was incorrect and the principal applicant did not receive the message. A letter with the same information was resent on January 15, 2009.

11     As per subsection 11(1) of the Act, the visa officer must be satisfied that the applicants are not inadmissible. In order to find inadmissibility pursuant to paragraph 40(1)(a) of the Act, two elements must coexist: (1) a misrepresentation (direct or indirect); and (2) same must be material (in that it induces or could induce an error in the administration of the Act). Paragraph 40(1)(a) is broadly worded to encompass misrepresentations even if made by another party, without the knowledge of the applicant. This provision reads as follows:

 

·       40. 

(1) A permanent resident or a foreign national is inadmissible for misrepresentation 

 

·       (a) 

for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act; 

* * *

 

·       40. 

(1) Emportent interdiction de territoire pour fausses déclarations les faits suivants : 

 

·       a) 

directement ou indirectement, faire une présentation erronée sur un fait important quant à un objet pertinent, ou une réticence sur ce fait, ce qui entraîne ou risque d'entraîner une erreur dans l'application de la présente loi; 

12     It is not challenged that the 2005 test report is a forged document misrepresenting the fact that the principal applicant had been positively tested on October 3, 2005. The finding of misrepresentation made by the visa officer that the fraudulent test scores induced or could have induced an error in the administration of the Act, constitutes an acceptable outcome which is defensible in respect of the facts and the law since the scores obtained on the language test can influence the total points required for a permanent residency application to be granted.

13     Once it is understood that a misrepresentation is material, a person seeking entry as a permanent resident should not be able to benefit from subsequent delays in the processing of their application. As generally observed by Justice Shore in Omgba v Canada (Public Safety and Emergency Preparedness), 2011 FC 748 at para 1, "[t]he reward of the truth, once understood, is an openness to the interpretation of immigration laws that provide access to the improvements regarding the precarious human condition intended by Parliament; on the other hand, lies bar access to undeserved settlement opportunities to preserve the integrity of the immigration system." [Emphasis added]

14     At the time of the application, there was clearly a misrepresentation made by the applicants on a relevant fact. The wording of paragraph 40(1)(a) of the Act does not support the restrictive interpretation advanced by the applicants. It is not that the fraudulent test results necessarily induced an error in the administration of the Act, but instead as the Act clearly states, it is that the results could have induced an error. The intent of these provisions being to deter misrepresentation and maintain the integrity of the immigration process - to accomplish this objective the onus is placed on the applicant to ensure the completeness and accuracy of his or her application. The fact that the applicants subsequently filed bona fide reports did not create any legitimate expectation that their application would receive sufficient points at selection.

15     In April 2012, my colleague, Madam Justice Danielle Tremblay-Lamer rendered nine nearly identical decisions based on cases that are all substantially the same as the present case. All applicants were citizens of Iran who had hired the same immigration consultant as the principal applicant in this case. All their applications for permanent resident were refused after the visa officer concluded that their IELTS results were false. The respective applicants in each of the nine cases presented arguments that were also substantially similar to those presented by the applicant in the case at bar, and all were additionally represented by the same counsel as the present applicants. The learned judge arrived at the same conclusion in each of the cases and dismissed all nine applications for judicial review. See Goudarzi v Canada (Minister of Citizenship and Immigration), 2012 FC 425, [2012] FCJ No 474 [Goudarzi]; Afzal v Canada (Minister of Citizenship and Immigration), 2012 FC 426, [2012] FCJ No 475; Khoei v Canada (Minister of Citizenship and Immigration), 2012 FC 421; [2012] FCJ No 470; Masoud v Canada (Minister of Citizenship and Immigration), 2012 FC 422, [2012] FCJ No 471; Oloumi v Canada (Minister of Citizenship and Immigration), 2012 FC 428, [2012] FCJ No 477; Sayedi v Canada (Minister of Citizenship and Immigration), 2012 FC 420, [2012] FCJ No 469; Sedeh v Canada (Minister of Citizenship and Immigration), 2012 FC 424, [2012] FCJ No 473; Shahin v Canada (Minister of Citizenship and Immigration), 2012 FC 423, [2012] FCJ No 472; Tofangchi v Canada (Minister of Citizenship and Immigration), 2012 FC 427, [2012] FCJ No 476.

16     I agree with the respondent that this is an instance where the doctrine of judicial comity applies (see Cina v Canada (Minister of Citizenship and Immigration), 2011 FC 635 at paras 34-35, [2011] FCJ No 817). The applicants have simply failed to convince me that this case comes within a recognized exception mentioned in Almrei v Canada (Minister of Citizenship and Immigration), 2007 FC 1025 at paras 61-62, [2007] FCJ No 1292, that is: the two cases have a different factual or evidentiary basis; the issues at bar are different in each case; there is legislation or binding authorities that the prior decision did not consider that would lead to a different result; and where injustice would result from following the other decision.

17     The applicants notably argue that the 2005 test report was not presented as an original document, which would mean that there was no "material misrepresentation" since the document should not have been accepted in the first place. This contradictory position was also advanced by applicants' counsel before Justice Tremblay-Lamer and I am unable to find any reason not to follow the approach taken by my colleague. Let us just say that, if the test results were not intended to represent valid test results, then the application would have been deemed incomplete and returned since it was missing a requisite element. This means that submission of the fraudulent test results did affect the process and was material. The submitting of the 2005 test report conferred a relative advantage to the applicants who were falsely claiming that the principal applicant had been positively tested in October 2005.

18     The fact that the immigration consultant hired by the applicants was not an "authorized representative" within the meaning of the Regulations was also considered by Justice Tremblay-Lamer. This did not prevent the principal applicant from verifying the veracity of their application and the authenticity of supporting documentation submitted with the application (including the forged 2005 test report). Indeed, the application, containing the fraudulent test scores as well as the incorrect email address, was apparently signed by the applicant.

19     The visa officer owed no duty of care to the applicants and the applicants were subject to a duty of candour, which they did not satisfy in this case. Subsection 16(1) of the Act provides:

 

·       16. 

(1) A person who makes an application must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires. 16. (1) L'auteur d'une demande au titre de la présente loi doit répondre véridiquement aux questions qui lui sont posées lors du contrôle, donner les renseignements et tous éléments de preuve pertinents et présenter les visa et documents requis. 

Accordingly, the purpose of the misrepresented document or statement should be considered when assessing whether the misrepresentation meets the materiality threshold.

20     Again, in addressing the other nine cases mentioned above, Justice Tremblay-Lamer writes in Goudarzi at paras 17, 27, 40, 49 and 50:

 

·       The Court agrees with the respondent that the False Document constitutes a misrepresentation: an examination of its physical appearance reveals that it is clearly designed to imitate the appearance of an IELTS Test Report. There is no other plausible purpose behind the submission of the False Document other than to mislead the immigration authorities into thinking that the file was complete and that the principal applicant had satisfied the language requirements. An official doing an initial completeness review of the file would not necessarily notice that it was fraudulent. I do not accept that any reasonable person would say that the purpose of this document was anything other than to mislead. It was thus wholly reasonable for the counsellor to conclude that it was intended to mislead the authorities to believe it to be an authentic test result. 

 

·       ... 

 

·       The fact that the misrepresentation was caught before the final assessment of the application does not assist the applicants. The materiality analysis is not limited to a particular point in time in the processing of the application -- the fact that the principal applicant had submitted more recent language test results does not render the earlier misrepresentation immaterial. Such a result would reflect a narrow understanding of materiality that is contrary to the wording and purpose of section 40(1)(a) of the Act. The False Document was submitted and it was material. 

 

·       ... 

 

·       In keeping with this duty of candour, there is, in my opinion, a duty for the applicant to make sure that when making an application, the documents are complete and accurate. It is too easy to later claim innocence and blame a third party when, as in the present case, the application form clearly stated that language results were to be attached, and the form was signed by the applicants. It is only in exceptional cases where an applicant can demonstrate that they honestly and reasonably believed that they were not withholding material information, where "the knowledge of which was beyond their control", that an applicant may be able to take advantage of an exception to the application of section 40(1)(a). 

 

·       ... 

 

·       The concept of a duty of care does not apply in this context -- the applicants were subject to a duty of candour, which they did not satisfy. The initial screening officer was simply tasked with undertaking a "completeness" check of the application file. He owed no "duty of care" to the applicants. 

 

·       The requirements of procedural fairness -- which did exist -- were in fact satisfied. When the visa officer later examined the False Document, he noted several problems with it (likely including the fact that it was evidently a copy), which led him to conclude it was fraudulent. The visa officer's obligation at that point was to advise the applicants that they were potentially inadmissible for misrepresentation. He discharged this obligation by sending the Fairness Letter and thus satisfied the requirements of procedural fairness. 

21     In the case at bar, the misrepresentation made by the applicants did not arise as a result of a bona fide error or excusable misunderstanding of what was required by the Regulations. That said, nothing will prevent the applicants from making a fresh application for permanent residence at the expiry of the inadmissibility period provided for in paragraph 49(2)(a) of the Act.

22     For these reasons, the impugned decision must stand. Accordingly, the present application for judicial review shall be dismissed. Neither party proposed a question for certification and in my view there is none.

JUDGMENT

THIS COURT'S JUDGMENT is that the present application for judicial review is dismissed. No question of general importance is certified.

MARTINEAU J

NEGATIVE DISCRETION EXERCISED BY VISA OFFICER OVER LANGUAGE SKILLS

In the case below, a visa officer exercised negative discretion to deny a Skilled Worker application, over concerns that teh applicant's language skills wee insufficient to become successful established in Canada. Note the visa officer's comments regarding what employers are looking for in applicants.

Uddin v. Canada (Minister of Citizenship and Immigration)

Between
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.

(47 paras.)

---------------------------------------------------------------------------

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:

·        1. 

What is the appropriate standard of review? 

·        2. 

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:

·        1. 

His ability to work constructively in the English language on a daily basis at his workplace in Bangladesh; 

·        2. 

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 

·        3. 

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:

·        1. 

The language of choice at his workplace in Bangladesh was English; 

·        2. 

He intended to work in Canada in the same capacity as he does in Bangladesh; and 

·        3. 

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. 

·        (2) 

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 

·        (a) 

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; 

·        72. 

(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. 

·        (2) 

Ils établissent et régissent les catégories de résidents permanents ou d'étrangers, dont celles visées à l'article 12, et portent notamment sur : 

·        a) 

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; 

·        72. 

(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

·        75. 

(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. 

·        76. 

(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, 

·        (i) 

education, in accordance with section 78, 

·        (ii) 

proficiency in the official languages of Canada, in accordance with section 79, 

·        (iii) 

experience, in accordance with section 80, 

·        (iv) 

age, in accordance with section 81, 

·        (v) 

arranged employment, in accordance with section 82, and 

·        (vi) 

adaptability, in accordance with section 83; and 

·        (b) 

the skilled worker must 

·        (i) 

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 

·        (ii) 

be awarded the number of points referred to in subsection 82(2) for arranged employment in Canada within the meaning of subsection 82(1). 

·        ... 

·        (3) 

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. 

·        (4) 

An evaluation made under subsection (3) requires the concurrence of a second officer. 

* * *

·        75. 

(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. 

·        76. 

(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 : 

·        (i) 

les études, aux termes de l'article 78, 

·        (ii) 

la compétence dans les langues officielles du Canada, aux termes de l'article 79, 

·        (iii) 

l'expérience, aux termes de l'article 80, 

·        (iv) 

l'âge, aux termes de l'article 81, 

·        (v) 

l'exercice d'un emploi réservé, aux termes de l'article 82, 

·        (vi) 

la capacité d'adaptation, aux termes de l'article 83; 

·        b) 

le travailleur qualifié : 

·        (i) 

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, 

·        (ii) 

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). 

·        ... 

·        (3) 

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). 

·        (4) 

Toute décision de l'agent au titre du paragraphe (3) doit être confirmée par un autre agent.