Yasmin v. Canada (Minister of Citizenship and
Immigration)
Between
Tahira Yasmin, Munayar Hussain Rana, Applicants, and
The Minister of Citizenship and Immigration, Respondent
Tahira Yasmin, Munayar Hussain Rana, Applicants, and
The Minister of Citizenship and Immigration, Respondent
[2015] F.C.J. No. 1416
2015 FC 1346
Docket: IMM-8464-14
Federal Court
Toronto, Ontario
Annis J.
Heard: November 24, 2015.
Judgment: December 4, 2015.
Docket: IMM-8464-14
Federal Court
Toronto, Ontario
Annis J.
Heard: November 24, 2015.
Judgment: December 4, 2015.
(29 paras.)
JUDGMENT AND REASONS
1 ANNIS
J.:-- This is an application for judicial review pursuant to section 72(1) of
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA or the Act] of a decision made by an
immigration officer of the High Commission of Canada [the Officer] refusing the
Applicants' permanent residence as members of the Provincial Nominee Class. The
Applicants are seeking to have the decision set aside and referred back to a
different officer for redetermination.
2 For
the reasons that follow, the application is dismissed.
I. Background
3 The
Principal Applicant, Tahira Yasmin, a citizen of Pakistan, was named in a
certificate issued by the province of Saskatchewan for a permanent resident
visa application as a member of the Provincial Nominee Class as someone who may
become a permanent resident on the basis of their ability to become
economically established in Canada pursuant to section 87 of the Immigration and Refugee Protection Regulations,
SOR/2002-227 [the IRPR or Regulations].
4 The
Saskatchewan Immigration Nominee Program [SINP] concluded that the Principal
Applicant demonstrated an ability to economically establish herself in
Saskatchewan based upon the Province's low unemployment rate and availability
of more than 14,000 jobs, many of which were related to the Applicant's
education and experience.
5 It
also relied upon the fact that the Principal Applicant had an offer of
permanent full-time employment from an employer who verified that she had the
skills required to perform the job, being that of a cashier working in a gas station.
6 After
exchanges with the SINP and a fairness letter being sent to the Applicants, the
Officer acting pursuant to section 87(3) substituted his criteria for those of
the SINP. It concluded that in order for the Applicants to become economically
established, it is expected that they will be able to obtain employment in
Canada and already have the abilities, education and work experience which will
enable them to procure employment.
7 Based
on the foregoing criteria, the Officer concluded that the Applicant did not
have the English language skills to be able to perform the duties required for
the position of a cashier.
8 This
refusal is the decision currently under judicial review.
II. Impugned Decision
9 The
Officer noted the Applicants' sufficient settlement funds, but concluded that
this in itself was an insufficient indicator of the Applicants' ability to
become economically established.
10 The
Officer considered the prospective employer's letter indicating, amongst other
considerations, that the Principal Applicant's language abilities were similar
to those of other employees of his who successfully carried out their duties.
The Officer nonetheless concluded that it was reasonable to expect a cashier to
require at least moderate English language abilities to work in Saskatoon.
Based upon the Applicant's most recent International English Language Testing
System [IELTS] results placing her English language abilities below basic for
listening, and at the basic level for reading, writing and speaking, she did
not have the required level of English proficiency.
11 The
Officer indicated to the Principal Applicant that with the level of English
language ability she had demonstrated, he was not satisfied that she would be
able to perform the tasks of a cashier.
III. Statutory Provisions
12 The
relevant subsections of section 87 of the IRPR, SOR/2002-227 in force at the
time are as follows:
· 87. (1) For the purposes of subsection 12(2)
of the Act, the provincial nominee class is hereby prescribed as a class of
persons who may become permanent residents on the basis of their ability to
become economically established in Canada.
A foreign national is a
member of the provincial nominee class if
subject to subsection
(5), they are named in a nomination certificate issued by the government of a
province under a provincial nomination agreement between that province and the
Minister; and
they intend to reside in
the province that has nominated them.
If the fact that the
foreign national is named in a certificate referred to in paragraph (2)(a) is
not a sufficient indicator of whether they may become economically established
in Canada and an officer has consulted the government that issued the
certificate, the officer may substitute for the criteria set out in subsection
(2) their evaluation of the likelihood of the ability of the foreign national
to become economically established in Canada.
An evaluation made under
subsection (3) requires the concurrence of a second officer.
* * *
· 87. (1) Pour l'application du paragraphe 12(2)
de la Loi, la catégorie des candidats des provinces est une catégorie
réglementaire de personnes qui peuvent devenir résidents permanents du fait de
leur capacité à réussir leur établissement économique au Canada.
Fait partie de la
catégorie des candidats des provinces l'étranger qui satisfait aux critères
suivants :
· a) sous réserve du paragraphe (5), il est visé
par un certificat de désignation délivré par le gouvernement provincial
concerné conformément à l'accord concernant les candidats des provinces que la
province en cause a conclu avec le ministre;
· b) il cherche à s'établir dans la province qui
a délivré le certificat de désignation.
Si le fait que
l'étranger est visé par le certificat de désignation mentionné à l'alinéa (2)a)
n'est pas un indicateur suffisant de l'aptitude à réussir son établissement
économique au Canada, l'agent peut, après consultation auprès du gouvernement
qui a délivré le certificat, substituer son appréciation aux critères prévus au
paragraphe (2).
Toute décision de
l'agent au titre du paragraphe (3) doit être confirmée par un autre
agent.
IV. Issue
13 This
application raises the issue as to whether the Officer's assessment of the
Principal Applicant's permanent resident under the Provincial Nominee Program
was reasonable.
V. Standard of Review
14 The
applicable standard of review in this application is one of reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9).
VI. Analysis
15 There
was some discussion during the hearing concerning the appropriate
interpretation of the requirements of demonstrating an ability to become
economically established in Canada. The Applicant referred to the decision of Rezaeiazar v Canada (Minister of Citizenship and Immigration), 2013 FC 761 [Rezaeiazar] where at paragraph 77 Justice Russell considered the meaning of
becoming economically established in Canada pursuant to paragraph 85 (3) (b) as
follows:
· [77] This brings up the issue of the relationship between the point
system and economic self-sufficiency. The Applicant says that, in order to meet
the requirements necessary to come to Canada pursuant to the skilled worker
class, she must meet the points requirements set out in paragraph 85(3)(b) of
the Regulations and demonstrate that she can become
economically established in Canada. That is, that she can become economically self-sufficient within a
reasonable amount of time upon her arrival in Canada. Given
that the Applicant has already surpassed the points requirement by three points
in this case, she says that the only issue is whether or not there is an
additional requirement that she be able to establish herself economically in
the occupation in which she qualified.
· [Emphasis added]
16 Based
on the criterion in Rezaeiazar of
the Applicant becoming "economically self-sufficient within a reasonable
amount of time upon her arrival in Canada" and the employer's letter
indicating other employees with similar language deficits were successfully
employed, I think it fair to conclude that the Applicant would have the ability
to become economically established within a reasonable time after arrival in
Canada.
17 The
Officer did not apply a test based on reasonably acquiring the abilities in a
reasonable time period after
arriving in Canada. Instead, the Officer required that the Applicants
demonstrate that "they will be able to obtain employment in Canada and
already have the abilities, education and work experience which will enable
them to procure employment." [Emphasis added]
18 I
am satisfied that the Officer applied an appropriate definition of the
"the ability to become economically established" for the purpose of
section 87 (3) of the Regulations. I find that the circumstances before Justice
Russell are distinguishable from those in this matter. In Rezaeiazar, the applicant had "already
surpassed the points requirement" and therefore, her abilities, education
and work experience were not in issue.
19 It
is understandable that the Regulations would require that persons arriving in
Canada to occupy positions already possess the necessary abilities, education
and work experience to discharge their duties. Otherwise the granting of
permanent residency would be based upon a contingent outcome in the future.
Once accepted as a permanent resident under the program, the foreign national
maintains that status, even if it proves that she is unable to perform in the
position, or leaves the Province to live somewhere else in Canada.
20 It
is therefore a reasonable policy that an employer's representation of the
future successful outcome of someone in the position offered should not
outweigh an objective reasonable conclusion that an Applicant who cannot
perform the tasks of the position offered is not able to participate
sufficiently in the Canadian labour market to economically support herself.
21 Accordingly,
I accept the Officer's implicit interpretation of the requirement of becoming
economically established in Canada that applicants must demonstrate upon
arrival in Canada that they already have the abilities, education and work
experience which will enable them to procure employment.
22 On
this basis, I also reject the Applicant's argument that in engaging
considerations beyond those relied upon by the SINP, the Officer was basing his
decision on irrelevant considerations. The Officer acknowledged that deference
was owed to the factors underpinning the Province's nomination of persons for
the Provincial Nominee Class. Nevertheless, by section 87(3) of the IRPR, it
remains the mandate of the Minister to determine whether the Principal
Applicant can support herself economically. Accordingly, it is reasonable that
the Principal Applicant must be able to demonstrate that she is capable of
performing the job offered which includes the communication and related
language skills to perform in the position.
23 With
respect to the substance of the Officer's decision, I furthermore find it
reasonable to conclude that for a position that has tasks of complexity that
range from basic to moderate, the Principal Applicant should have at least,
moderate English language proficiency. The Principal Applicant possessed only
"Extremely limited user" for listening skills, and only basic
abilities in reading, writing and speaking in English. These abilities improved
slightly on the second test.
24 Additionally,
while the employer's statement that he may be prepared to keep persons in a
position even though the person does not possess the skills to perform the
position because of a shortage of available workers to otherwise perform the
tasks, the employer nevertheless did not explain how someone could be a cashier
who cannot understand customers, or provide services or maintain or prepare
reports with only basic reading, writing and speaking skills.
25 I
similarly agree with the Officer's conclusion that the employer's response that
the language ability required for the position is "not high" does not
explain how the Principal Applicant would be able to perform her duties with
only basic and below basic English language abilities except by the employee
learning on the job.
26 An
employer's representation of the future successful outcome of someone in the
position offered does not outweigh an objective reasonable conclusion that an
applicant who cannot perform the tasks of the position offered is not able to
participate sufficiently in the Canadian labour market to economically support
herself.
27 I
also conclude that the decision of Sran v Canada
(Minister of Citizenship and Immigration), 2012 FC 791
cited by the Applicants where it was found that the officer was applying the
criteria from the skilled worker class is distinguishable inasmuch as there is
no suggestion here that a language skill is not relevant to being able to
perform the job, whether or not it is also a factor for a skilled worker NOC
evaluation.
28 Given
the deference owed to the decision-maker, including applying his own statute if
this could be considered an interpretation issue, I find the evidence
sufficient to support the Officer's conclusion that the Applicant does not have
the English language skills to be a cashier. As such, the decision falls within
a range of possible, acceptable outcomes which are defensible in respect of the
facts and law.
VII. Conclusion
29 The
application is dismissed and no question will be certified for appeal.
JUDGMENT
THIS COURT'S JUDGMENT is that the application is dismissed and no
question is certified for appeal.
ANNIS J.
