ALLEGED FRAUDULENT DOCUMENTS LEAD TO RESIDENCY REFUSAL

The visa officer had concerns about the documents presented. He wa not required to conduct a substituted evaluation to determine the applicant's ability to be established in Canada.

Case Name:
Rahman v. Canada (Minister of Citizenship and Immigration)

Between
Mohammad Mahabubur Rahman, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2013] F.C.J. No. 884

2013 FC 835

Docket IMM-8703-12

 Federal Court
Toronto, Ontario

Gagné J.

Heard: May 30, 2013.
Judgment: August 1, 2013.

(29 paras.)

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REASONS FOR JUDGMENT AND JUDGMENT

GAGNÉ J.:--

I. Introduction

1     Mr. Mohammad Mahabubur Rahman's application for permanent residence as a member of the economic class [application] was refused by an Immigration Officer who did not find that he had the ability to become economically established in Canada in application of subsection 12(2) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], as he obtained 62 points out of the 67 required.

2     The Applicant seeks judicial review of that decision, arguing that: (i) the selection criteria for the federal skilled worker [FSW] class under subsections 75(1) and 76(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations] entitled him to a greater number of points with respect to education and work experience; (ii) the Officer did not give him a fair opportunity to contradict the outcome of a fraud investigation that was not properly disclosed to him; and (iii) the Officer should have conducted a substituted evaluation under subsection 76(3) of the Regulations since the number of points awarded to him was not a sufficient indicator of his ability to become economically established in Canada.

II. Background

3     The Applicant is a 36-year-old citizen of Bangladesh. He gave evidence of the following educational credentials: (i) a Secondary School Certificate [SSC] from the Board of Intermediate and Secondary Education of Dhaka, dated July 31, 1993; (ii) a Higher Secondary Certificate [HSC] from the Board of Intermediate and Secondary Education of Dhaka, dated July 1995; (iii) a Bachelor of Science from the National University of Bangladesh; (iv) a Master of Science in Mathematics from the National University of Bangladesh; (v) a Dental Office and Chairside Assistant diploma from CDI College, dated November 3, 2006; and (vi) a Business Administration in International Trading diploma from Evergreen College, dated November 2008.

4     According to the Applicant's transcripts, the duration of his Bachelor of Science and Master of Science degrees was 3 years and 1 year, respectively. His application stated that his Bachelor of Science was a 4-year degree and that the duration of the pre-university SSC and HSC programs was 12 years, for a total of 16 years.

5     The Applicant worked as a mathematics instructor at Polygon English Academy [Polygon], part-time from January 22, 2000 to May 2002, and full-time from May 2, 2002 to May 2004. As proof of employment, he presented documents allegedly issued by the Bangladesh Income Tax Office and by Polygon. Offers of employment from Polygon, dated January 25, 2000 and April 25, 2002, state that the Applicant was required to work 26 hours per week as a part-time instructor and 40 hours per week as a full-time instructor.

6     In August 2004, the Applicant came to Canada on successive study permits and made his application on November 12, 2008.

7     On May 9, 2010, the High Commission of Canada in Dhaka found that the Applicant's tax documents were fraudulent because: (i) they were issued and signed on January 27, 2010, by an employee who left his position at the tax office on February 24, 2009; (ii) he was not a taxpayer in Bangladesh or was not issued a taxpayer number until January 28, 2010; and (iii) the wet seal on the income tax documents did not match the wet seal used by Bangladesh tax authorities.

8     On May 9, 2010, an agent of the High Commission went to Polygon to confirm the Applicant's work experience. He learned that, before 2005, Polygon was a coaching centre, not an educational institution.

9     As a result of that investigation, the Officer notified the Applicant that his tax documents and employer's documents were fraudulent. On May 23, 2012, the Applicant, through his counsel, sought clarification as the "letter [did] not make it clear to [him] exactly what information has been verified, when, by whom and by what means, and what exactly (what part of the information or documents) is deemed to be 'fraudulent' ".

10     The Applicant also provided a letter from Polygon confirming his work experience as a part-time instructor from January 2000 to May 2002 and as a full-time instructor from May 2002 to May 2004.

11     The agent of the High Commission made a second site visit to Polygon, who confirmed that prior to 2005, Polygon was a coaching centre and not a school.

III. Decision under Review

12     The Officer found that the Applicant could not be selected under subsection 12(2) of the IRPA because the selection criteria in subsection 76(1) of the Regulations did not entitle him to the minimum number of points required for FSWs. The Officer assessed the Applicant under NOC 4131: College and Other Vocational Instructors National Occupation Classification [NOC 4131 class], awarding him 62 points under the selection criteria; 10 for age; 22 for education; 8 for official language proficiency; 17 for work experience; and 5 for adaptability.

13     The Officer awarded the Applicant 22 points for the education factor pursuant to paragraph 78(2)(e) of the Regulations. According to certificates provided by the Applicant, the program of study for his Master of Science degree in Bangladesh only consisted of a total of 16 years of study: 12 years of pre-university study; 3 years of study for a bachelor's degree; and 1 year of study for a master's degree. Consequently, he was ineligible for 25 points under paragraph 78(2)(f) of the Regulations, which requires at least 17 years of completed full-time or full-time equivalent studies.

14     The Applicant's two years of work experience at Polygon from May 2002 to May 2004 merited 17 points for work experience under paragraph 80(1)(b) of the Regulations. The Officer did not award the Applicant points for his previous part-time work as he did not provide evidence on the number of hours of work he completed or indicate that he had performed work at the college or vocational level. Nor did the Officer award him points for work since 2004 as he did not provide evidence of other work experience at NOC skill type 0 or skill level A or B.

15     As the Applicant does not contest the way the other selection criteria were assessed by the Officer, there is no need to summarize his findings for the purpose of the present reasons.

IV. Issues

·       1) 

Did the Officer assess the education factor reasonably? 

·       2) 

Did the Officer assess the work experience factor reasonably? 

·       3) 

Did the Officer breach the duty of procedural fairness? 

·       4) 

Does the decision raise a reasonable apprehension of bias? 

V. Analysis

Standard of review

16     A visa officer's assessment of a permanent resident application under the FSW class involves questions of mixed law and fact that are reviewable on the reasonableness standard (Mahouri v Canada (Minister of Citizenship and Immigration), 2013 FC 244, [2013] F.C.J. No. 278 at para 11). The same standard applies to a decision to exercise the discretion to conduct a substituted evaluation under subsection 76(3) (Eslamieh v Canada (Minister of Citizenship and Immigration), 2008 FC 722, [2008] F.C.J. No. 909 [Eslamieh]). However, whether a decision raises a reasonable apprehension of bias is assessed on the correctness standard (Azziz v Canada (Minister of Citizenship and Immigration), 2010 FC 663, [2010] F.C.J. No. 767).

Assessment of the education factor

17     The Applicant argues that he was entitled to additional points for education. In his view, paragraph 78(2)(f) of the Regulations entitled him to 25 points because he had a university educational credential at the master's level and a total of 19 years of completed full-time or full-time equivalent studies. In the alternative, he asserts that subsection 78(4) of the Regulations required the Officer to award the same number of points he would be awarded if he had satisfied both requirements for paragraph 78(2)(f). CitingMcLachlan v Canada, 2009 FC 975, [2009] F.C.J. No. 1183 [McLachlan], he argues that subsection 78(4) required the Officer to award 25 points for his master's degree as if he satisfied the length of study requirement in paragraph 78(2)(f).

18     For the reasons that follow, I am of the opinion that the Officer's finding that the Applicant did not establish that he met the duration of study requirement under paragraph 78(2)(f) is reasonable (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para 47).

19     Subsection 78(4) did not require the Officer to award the Applicant the points he would have been entitled to as if he had he satisfied the duration of study requirement. Paragraph 78(2)(f) awards 25 points to applicants who demonstrate that they have: (i) a university credential at the master's or doctoral level; and (ii) a total of at least 17 years of completed full-time or full-time equivalent studies.

20     While the Applicant has a Master's degree in mathematics, he did not satisfy the duration of study requirement. Based on the record, the Officer could reasonably determine that he had completed only 16 years of full-time or full-time equivalent studies. First, he consistently stated in his application materials that he completed 12 years of pre-university studies. Second, while he stated that his bachelor's and master's degrees were completed in 4 years and 1 year, respectively, the Officer could reasonably rely on his National University of Bangladesh transcripts, which stated that he completed his bachelor's degree in 3 years and his master's in 1 year. Third, his studies at CDI College and Evergreen College cannot be included in assessing the duration of study requirement as the Officer was not permitted to award points for years of full-time or full-time equivalent studies that did not contribute to his Master's degree (Hasan v Canada (Minister of Citizenship and Immigration), 2011 FCA 339, [2011] F.C.J. No. 1729 at para 56 [Hasan]). Since the Applicant could only demonstrate that he had 16 years of study, he did not meet the duration of study requirement under paragraph 78(2)(f) of the Regulations.

21     Subsection 78(4) does not assist the Applicant. It provides, when applied to the Applicant's situation, that since he has a master's educational credential under paragraph 78(2)(f) but not a total of at least 17 years of full-time or full-time equivalent studies, then the Officer shall award the applicant the same number of points as the same number of years of completed full-time or full-time equivalent studies set out in the paragraph or subparagraph.

22     The Applicant cites McLachlan, above, for the proposition that subsection 78(4) required the Officer to award him the same number of points as if he had satisfied paragraph 78(2)(f).

23     In Hasan, above, the Federal Court of Appeal held that a decision-maker could reasonably award 22 points under subparagraph 78(2)(e) (ii) of the Regulations where the applicants had two master's degrees but "were only credited with 16 years of full-time studies with respect to their master's degree[s]" (at paras 2, 16, 21, and 55). Hasan overruled McLachlan, concluding that subsection 78(4) did not entitle applicants with educational credentials who fail to meet the duration of study requirement to the full point allocation for their educational credential. The Federal Court of Appeal clearly instructed this Court not to follow McLachlan as it was "wrongly decided" (at para 50) and "fatally flawed" (at para 52).

Assessment of the work experience factor

24     In terms of assessing the reasonableness of the decision, the issue of the education points awarded to the Applicant is determinative. In the absence of an award of further points under paragraph 78(1)(f), the Applicant could not attain the minimum of 67 points, even if he were entitled to full points under the work experience factor. Even assuming that the assessment of the Applicant's work experience is unreasonable, it could not be determinative of his application. An unreasonable finding must be determinative in order to be sufficient to return a decision for redetermination (Lopez v Canada (Minister of Citizenship and Immigration), 2012 FC 1444, [2012] F.C.J. No. 1567 at para 9).

25     The same can be said with respect to the alleged apprehension of bias on the Officer's part for not having given the Applicant the opportunity to contradict the outcome of the investigation report. As it only concerns the Applicant's work experience, it has no impact on the Officer's finding that the Applicant could only be awarded 22 points for education.

26     Consequently, the Court will not deal with the second and forth issues raised above.

The necessity to conduct a substituted evaluation

27     The Applicant claims the Officer breached the duty of fairness in not conducting a substituted evaluation under subsection 76(3) of the Regulations as the number of points awarded to him was not a sufficient indicator of his ability to become economically established in Canada. He submits that Jogiat v Canada (Minister of Citizenship and Immigration), 2009 FC 815, [2009] F.C.J. No. 1518 required the Officer to explain why a substituted evaluation was not warranted.

28     The Officer was not required to conduct a substituted evaluation under subsection 76(3). Justice Mosley, in Eslamieh, above at para 4, held that a decision-maker need not consider a substituted evaluation "unless specifically requested to do so" (see also Chowdhury v Canada (Minister of Citizenship and Immigration), 2011 FC 1315, [2011] F.C.J. No. 1605 at para 35). Since the Applicant did not request the Officer to exercise his discretion pursuant to subsection 76(3), the decision is not unreasonable on that ground.

VI. Conclusion

29     For all of the foregoing reasons, the Applicant's application for judicial review should be dismissed. The parties did not propose any question of general importance for certification and none arises from this case.

JUDGMENT

THIS COURT'S JUDGMENT is that:

·       1. 

The application for judicial review is dismissed; 

·       2. 

No question of general importance is certified; and 

·       3. 

No costs are granted. 

GAGNÉ J.

APPLICANT REFUSED DESPITE SUFFICIENT POINTS

The case below illustrates the wide discretion that visa officers have when evaluating applications.

Kimball v. Canada (Minister of Citizenship and Immigration)

Between
Grant Peter Kimball, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2013] F.C.J. No. 469

2013 FC 428

Docket IMM-8259-12

Federal Court
Toronto, Ontario

Gleason J.

Heard: April 23, 2013.
Judgment: April 29, 2013.

(28 paras.)

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REASONS FOR JUDGMENT AND JUDGMENT

1     GLEASON J.:-- The applicant is a 68-year old citizen of the United States, who was employed for a number of years as a software engineer in Canada. He lost his job in 2010 due to corporate restructuring and thereafter engaged in a lengthy job search. He applied for a permanent resident visa under the Federal Skilled Worker program, which was rejected by an immigration officer of the Consulate General of Canada, Immigration Section, in New York City on June 20, 2012. The officer (with the requisite concurrence of another officer) determined that despite the applicant's exceeding the minimum number of points (being awarded 74 out of 100 when only 67 are required), a substituted evaluation would be issued under subsection 76(3) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [the Regulations]. The officer noted in this regard that the applicant had been unsuccessful in his 22-month job search and concluded that in light of this fact and the applicant's profile, the applicant was not likely to be successful in becoming economically established in Canada. The applicant's permanent residence application was therefore rejected.

2     In this application for judicial review, the applicant seeks to set aside the rejection decision, arguing that his procedural fairness rights were violated and that the decision is unreasonable.

3     In terms of procedural fairness, the applicant asserts that the officer who interviewed him was under a duty to warn him of the concerns in advance of the interview so as to afford the applicant time to prepare his response and that the failure to warn him amounts to a denial of procedural fairness. The applicant also argues that he implicitly requested the opportunity to provide additional information during the interview but was denied the opportunity to do so, which he likewise claims violated his rights to procedural fairness. In terms of the reasonableness of the decision reached, the applicant argues that the officers erred in their substituted evaluation by ignoring relevant evidence and by failing to conduct the assessment in accordance with the requirements of the Regulations.

4     For the reasons set out below, I have determined that none of these arguments has merit and, accordingly, that this application for judicial review will be dismissed.

Relevant Statutory Provisions

5     Prior to addressing the applicant's arguments, it is useful to reproduce the provisions under which this decision was made to provide context to the applicant's arguments. The relevant provisions are contained in subsection 12(2) of the Immigration and Refugee Protection Act, SC 2001, c 27 [the IRPA] and section 76 of the Regulations.

6     Subsection 12(2) of the IRPA provides:

·       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. 

* * *

·       La sélection des étrangers de la catégorie "immigration économique" se fait en fonction de leur capacité à réussir leur établissement économique au Canada. 

7     The relevant portions of section 76 of the Regulations state:

·       Selection criteria 

·       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). 

[...]

Circumstances for officer's substituted evaluation

·       (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. 

·       Concurrence 

·       (4) 

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

* * *

·       Critères de sélection 

·       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). 

[...]

Substitution de l'appréciation de l'agent à la grille

·       (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). 

·       Confirmation 

·       (4) 

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

Standard of review

8     The first issue which must be determined is the standard of review applicable to the assessment of the errors alleged by the applicant. In terms of the first, no deference is owed to the officer on the question of whether the officer violated the applicant's rights to procedural fairness as the matter is one for determination by the reviewing court (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43, [2009] 1 SCR 339 and Satheesan v Canada (Minister of Public Safety and Emergency Preparedness), 2013 FC 346 at para 35). On the other hand, the reasonableness standard of review applies to the assessment of whether the officers erred in their assessment under section 76 of the Regulations (Philbean v Canada (Minister of Citizenship and Immigration), 2011 FC 487 at para 7 [Philbean] and Uddin v Canada (Minister of Citizenship and Immigration), 2012 FC 1005 at para 30 [Uddin]). The reasonableness standard is a deferential one and requires that the reviewing court not substitute its views for those of the administrative decision-maker if the reasons offered are transparent, intelligible and justified and the result reached falls within the range of possible, acceptable outcomes in light of the facts and applicable law (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47 and Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 [Newfoundland Nurses] at paras 11-13).

Was there a denial of procedural fairness?

9     Turning, then, to consideration of the claimed procedural fairness violation, procedural fairness is premised on the principle that those involved in an adjudicative process should be provided with an opportunity to fairly present their claims. This generally requires that parties be afforded an opportunity to respond to issues they could not reasonably have expected to arise that will impact upon decisions affecting their interests. The determination of how this opportunity must be afforded is context-dependent and will vary from one tribunal to another and from case to case (Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 at para 21).

10     In the context of decisions like the present one, the case law establishes that a visa officer need not give notice of unanticipated concerns (i.e. those that do not directly arise from the application of the Regulations) prior to an interview so long as the concerns are raised during the interview and the applicant is given an opportunity to address them. Where the applicant reasonably requests time to provide additional evidence or submissions after the interview, the applicant must be afforded this opportunity (Haghighi v Canada (Minister of Citizenship and Immigration), [2000] 4 FC 407, [2000] F.C.J. No. 854 at para 43 (CA); Khwaja v Canada (Minister of Citizenship and Immigration), 2006 FC 522 at para 17 and John v Canada (Minister of Citizenship and Immigration), 2003 FCT 257, 26 Imm. LR (3d) 221 (TD)).

11     It follows, therefore, that the first alleged violation of procedural fairness, involving the claim that the interviewing officer erred in not providing advance notice of the concerns to the applicant, is without merit. The case law recognizes that such concerns may indeed be raised for the first time during the interview, itself. Accordingly, there was nothing improper in the officer raising his concerns - and the possibility of a substituted evaluation - for the first time during the interview of the applicant.

12     The second claimed violation of procedural fairness involves the assertion that the applicant requested but was not afforded the opportunity to present additional evidence after the interview. Assessment of this claim requires examination of the evidence regarding what transpired during and subsequent to the interview.

13     Both the applicant and the officer who interviewed him have filed affidavits, which provide differing evidence as to what transpired during the interview. Neither was cross-examined.

14     The officer deposes that, upon being advised of the concerns regarding the difficulty the officer feared the applicant would likely face in achieving economic self-sufficiency, the applicant provided evidence of a job interview he had recently scheduled, discussed his job search and the fact that many companies preferred hiring permanent residents and indicated that he could file evidence of other similar advertisements, where other employers required job applicants to be Canadian citizens or permanent residents. The officer, notably, does not indicate in his affidavit that the applicant stated that he wished to file additional evidence on any other matter or that had he known of the officer's concerns would have filed additional evidence regarding additional job interviews and contacts with recruiters.

15     The applicant, on the other hand, does so depose in his affidavit. He states as follows at paragraph 15 of his affidavit: "I told the officer during the interview that if I had known that my efforts to find employment were going to be an issue with him, and used as a basis to deny my application, that I would have brought evidence of the numerous jobs I had applied for since being laid off, including evidence of interviews I attended and contacts with recruiters".

16     It is unnecessary for me to determine which of these two versions of the events I prefer, because even if the applicant's version is accepted, I do not find there to have been a violation of procedural fairness in the circumstances of this case. In this regard, the applicant did file additional evidence with the interviewing officer, subsequent to the interview, that the officer and his superior both considered prior to finalizing the decision that a substituted evaluation would be made under subsection 76(3) of the Regulations.

17     This additional evidence consisted of a letter dated May 31, 2012, in which the applicant set forth arguments as to why a substituted evaluation should not be made. However, the applicant did not provide any additional evidence of his job search, interviews or contacts with recruiters in his letter. While these matters might well be relevant to the substituted evaluation as the applicant argues, the fact is that the applicant was provided with an opportunity to put this evidence before the officers and failed to do so. He therefore cannot claim that his rights to procedural fairness were denied. He was afforded an opportunity to address the concerns surrounding the likelihood of his becoming economically self-sufficient if granted permanent resident status in Canada.

18     Thus, the first ground of review advanced by the applicant is without merit.

Did the officers ignore relevant evidence?

19     The applicant argues in the second place that the officers ignored relevant evidence, namely, evidence of the job interview he was scheduled to undergo with Abbot, the Honeywell job advertisement he filed and his LinkedIn profile. He asserts that these pieces of evidence were ignored by the officers as they were not specifically mentioned in the letter advising of the rejection of his application and are all relevant to the decision.

20     This argument is without merit for two reasons. First, the interviewing officer did mention these pieces of evidence in the Computer Assisted Immigration Processing System [CAIPS] notes (which form part of the reasons for decision). Thus, on the facts, the evidence was not ignored. Second, and perhaps more importantly, there is simply no need for a tribunal to specifically discuss every piece of evidence in its reasons. As stated by Justice Abella for the Supreme Court of Canada in Newfoundland Nurses at para 16:

·       Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion [...] In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. 

21     Similarly, and more recently, in Construction Labour Relations v Driver Iron Inc, 2012 SCC 65 at para 3, the Supreme Court held:

·       The Board did not have to explicitly address all possible shades of meaning of these provisions. This Court has strongly emphasized that administrative tribunals do not have to consider and comment upon every issue raised by the parties in their reasons. For reviewing courts, the issue remains whether the decision, viewed as a whole in the context of the record, is reasonable. 

·       [Citations omitted.] 

(See also Andrade v Canada (Minister of Citizenship and Immigration), 2012 FC 1490.) Thus, contrary to what the applicant asserts, the decision is not rendered unreasonable through a failure to adequately address portions of the evidence.

Did the officer incorrectly exercise his discretion under subsection 76(3) of the Regulations?

22     The applicant finally argues that the officers premised the exercise of their discretion under subsection 76(3) of the Regulations on an incorrect interpretation of the section 76, which requires that the discretion to issue a substituted evaluation be premised on the factors listed in paragraph 76(1)(a) of the Regulations. The applicant asserts that instead of focussing on the required factors, the officers incorrectly focused exclusively on the fact that the applicant had not obtained employment, which is not required under section 76 of the Regulations. The applicant notes in this regard that there is an entirely separate class is available for those with pre-arranged employment in Canada to obtain permanent resident status (under section 82 of the Regulations).

23     The decision of Justice Mandamin in Roohi v Canada (Minister of Citizenship and Immigration), 2008 FC 1408 does provide that in the exercise of their statutory discretion under subsection 76(3) of the Regulations, visa officers should have regard to the factors listed in paragraph 76(1)(a) of the Regulations in determining whether an applicant is likely to become economically self-sufficient. A somewhat broader test is posited in Philbean and Uddin, where Justices Tremblay-Lamer and Justice O'Keefe noted that in the exercise of their discretion visa officers are considering whether, despite the points awarded under paragraph 76(1)(a) of the Regulations, an applicant is likely to become economically established in Canada.

24     Regardless of how the test is formulated, I believe that the officers in this case did not err by considering irrelevant factors. Contrary to what the applicant asserts, it was not the fact that the applicant had no job that concerned the officers. Rather, they were concerned that the lengthy job search had yielded no result. As the respondent rightly notes, the length of the search logically leads to the conclusion that the applicant would be unlikely to ever find work or was unlikely to become economically self-sufficient.

25     A similar finding was upheld in Philbean, where a substituted decision based on an applicant's having failed to engage in a job search was found to be reasonable. There, Justice Tremblay-Lamer wrote at paragraphs 19 and 20:

·       [19] The officer was concerned not only about the applicant's ability to find employment in Canada, but also her willingness in that regard. These concerns were not based solely on the applicant's age. Instead, the officer considered the applicant's age in combination with a number of other circumstances, including: that the applicant had already effectively retired in the UK, that despite having lived in Canada for two years she had not taken concrete steps towards certification or towards securing future employment in Canada, and that the applicant's husband had been offered work in Canada but that an "LMO for his line of unskilled work [had] not been issued for a second stay". 

·       [20] Ultimately, the role of this Court is not to substitute its own view for that of the immigration officer. I cannot find that the officer's decision to substitute a negative determination under subsection 76(3) of the Regulations lacked justification, transparency or intelligibility or fell outside the range of possible, acceptable outcomes defensible in respect of the facts and law. As such, this application for judicial review is dismissed. 

26     In my view, identical reasoning applies here and, accordingly, the final argument advanced by the applicant is without merit.

27     This application for judicial review will accordingly be dismissed.

28     No question for certification under section 74 of the IRPA was presented and none arises as this decision is tied to the facts of this case.

JUDGMENT

THIS COURT'S JUDGMENT is that:

·       1. 

This application for judicial review is dismissed; 

·       2. 

No question of general importance is certified; and 

·       3. 

There is no order as to costs. 

GLEASON J.

OFFICER REFUSAL TO PERFORM "SUBSTITUTE EVALUATION" NOT REVIEWABLE

Interesting case on a much misunderstood section of the IRPA. The bottom line: an immigration officer does not have to consider further evidence after a decision was communicated on a refusal of an application.

Grigaliunas v. Canada (Minister of Citizenship and Immigration)


Between

Grigaliunas, Sarunas, Applicant, and

The Minister of Citizenship and Immigration, Respondent

[2012] F.C.J. No. 87

[2012] A.C.F. no 87

2012 FC 87
Docket IMM-2862-11
Federal Court

Montréal, Quebec
Shore J.
Heard: January 11, 2012.

Judgment: January 20, 2012.

(30 paras.)
________________________________________
REASONS FOR JUDGMENT AND JUDGMENT

SHORE J.:--
• I. Introduction

1 The matter centres on the following finding by the Federal Court of Appeal in Canada (Minister of Citizenship and Immigration) v Kurukkal, 2010 FCA 230:



• [3] ... However, in our view, a definitive list of the specific circumstances in which a decision-maker has such discretion to reconsider is neither necessary nor advisable.



• ...



• [5] The judge directed the immigration officer to consider the new evidence and to decide what, if any, weight should be attributed to it. In our view, that direction was improper. While the judge correctly concluded that the principle of functus officio does not bar a reconsideration of the negative section 25 determination, the immigration officer's obligation, at this stage, is to consider, taking into account all relevant circumstances, whether to exercise the discretion to reconsider. [Emphasis added.]



• II. Judicial procedure

2 This is an application for judicial review of a decision of an immigration officer dated March 2, 2011, rejecting an application for reconsideration of a decision dated January 7, 2011, refusing the applicant's application for permanent residence in Canada as a skilled worker.



• III. Facts

3 The application for permanent residence in the skilled worker class by Sarunas Grigaliunas, a college professor, was received by the Canadian Embassy in Warsaw on November 23, 2010.

4 On January 7, 2011, the immigration officer refused the application for permanent residence on the ground that the applicant had obtained only 65 of the 67 minimum number of points needed to meet the requirements under the skilled workers class. The officer found that the applicant would be unable to become economically established in Canada.

5 On February 23, 2011, the applicant sent a detailed application for reconsideration of the decision rendered regarding his case, directing the immigration officer to use substituted evaluation in accordance with subsection 76(3) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations).

6 In support of the application for reconsideration, the applicant attached three documents that had previously been submitted and a new document dated February 2, 2011.

7 In an e-mail dated March 2, 2011, the immigration officer rejected the application for reconsideration.



• IV. Decision under review

8 The immigration officer rejected the application for reconsideration in the following termination e-mail dated March 2, 2011:



• [TRANSLATION]



• Your application for permanent residence in Canada was carefully and sympathetically evaluated on the basis of the information available in your file at the time of the decision. I was of the opinion that the points allocated were an accurate reflection of your ability to become economically established in Canada, and therefore found that the application for substituted evaluation was unjustified. The decision is final and will not be reconsidered.



• The detailed reasons for the rejection were provided to you in our letter dated January 7, 2011, which fully concluded your file. The documents received after that decision were not and will not be taken into consideration.

(Tribunal Record (TR) at page 1).



• V. Issue

9 Is the decision rejecting the reconsideration of the application for substituted evaluation by the immigration officer reasonable under the circumstances?



• VI. Relevant statutory provisions

10 The relevant provisions of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA) are as follows:



• Act includes regulations



• 2. (2) Unless otherwise indicated, references in this Act to "this Act" include regulations made under it.



• Application before entering Canada



• 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.



• Economic immigration



• 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.

* * *



• Terminologie



• 2. (2) Sauf disposition contraire de la présente loi, toute mention de celle-ci vaut également mention des règlements pris sous son régime.



• Visa et documents



• 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.



• Immigration économique



• 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.

11 The relevant provisions of the Regulations are as follows:



• Class



• 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.



• Selection criteria



• 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).



• Number of points



• (2)

The Minister shall fix and make available to the public the minimum number of points required of a skilled worker, on the basis of



• (a) the number of applications by skilled workers as members of the federal skilled worker class currently being processed;



• (b) the number of skilled workers projected to become permanent residents according to the report to Parliament referred to in section 94 of the Act; and



• (c) the potential, taking into account economic and other relevant factors, for the establishment of skilled workers in Canada.



• Circumstances for officer's substituted evaluation



• (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.

* * *



• Catégorie



• 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.



• Critères de sélection



• 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).



• Nombre de points



• (2)

Le ministre établit le nombre minimum de points que doit obtenir le travailleur qualifié en se fondant sur les éléments ci-après et en informe le public :



• a) le nombre de demandes, au titre de la catégorie des travailleurs qualifiés (fédéral), déjà en cours de traitement;



• b) le nombre de travailleurs qualifiés qui devraient devenir résidents permanents selon le rapport présenté au Parlement conformément à l'article 94 de la Loi;



• c) les perspectives d'établissement des travailleurs qualifiés au Canada, compte tenu des facteurs économiques et autres facteurs pertinents.



• Substitution de l'appréciation de l'agent à la grille



• (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).



• VII.

Position of the parties

12 The applicant makes a two-part argument that the immigration officer erred by refusing to, first, exercise his discretion pursuant to subsection 76(3) of the Regulations and, second, consider the new evidence submitted to evaluate the application of his discretion.

13 Regarding the immigration officer's exercise of discretion, the applicant argues that the immigration officer should have taken into account his substantial fund as a more accurate ground for his ability to become economically established in Canada.

14 With respect to the second argument, the applicant contends that the immigration officer refused to consider exercising his discretion because he refused to take into account the new document submitted with the application for reconsideration. He was not able to then properly consider the possibility of exercising his discretion. The applicant claims that this was an error of procedural fairness.

15 The respondent submits that the immigration officer was not required to reconsider. In fact, he considered the possibility of exercising his discretion, but decided not to do so. As such, an officer has the power to exercise his discretion, but is not required to do so. The reasons for his refusal were recorded in his notes. Furthermore, he states that the applicant failed to submit relevant documents in his application for reconsideration.

16 The respondent claims that, since the legislative amendment to subsection 76(3) of the Regulations, officers cannot exercise their discretion to consider an applicant's settlement funds. According to a line of authority from the Court, exercising the power of substituted evaluation cannot be limited to the criteria set out in paragraph 76(1)(a), that is, the points awarded for the various factors.



• VIII. Analysis

17 According to Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190, it is important to show deference to discretion.



• [49] ... In short, deference requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system.

18 First, an immigration officer is not obligated to reconsider an application for permanent residence.

19 The Federal Court of Appeal enacted this principle in Kurukkal, above:



• [5] The judge directed the immigration officer to consider the new evidence and to decide what, if any, weight should be attributed to it. In our view, that direction was improper. While the judge correctly concluded that the principle of functus officio does not bar a reconsideration of the negative section 25 determination, the immigration officer's obligation, at this stage, is to consider, taking into account all relevant circumstances, whether to exercise the discretion to reconsider. [Emphasis added.]

20 In this case, the immigration officer's notes, as they appear in the CAIPS, are as follows:



• APPLICANT REQUESTS RECONSIDERATION AND USE OF SUBSTITUTED EVALUATION. NO EVIDENCE THAT FAILED TO CONSIDER DOCS SUBMITTED OR CONSIDERED IRRELEVANT EVIDENCE. AS I WAS SATISFIED THAT POINTS AWARDED ACCURATELY REFLECTED APPLICANT'S ABILITY TO ECONOMICALLY ESTABLISH USE OF SUBSTITUTED EVALUATION WAS NOT WARRANTED. NO GROUNDS FOR RECONSIDERATION. NO RECONSIDERATION LTR SENT BY E-MAIL. COPY ON FILE. [Emphasis added.]

(Applicant's Record (AR) at page 69).

21 The immigration officer therefore clearly considered the possibility of exercising his discretion. The reasons are intelligible and transparent. With respect to the new evidence, after making the reasonable decision to not reconsider the file, it was open to him to not consider it.

22 Second, substituted evaluation is an act that is dependent upon the officer's discretion:



• [12] A number of cases have held that officers are not under a duty to provide reasons for their decision not to exercise their discretion to apply a substituted evaluation under s. 76(3): Yan v Canada (Minister of Citizenship and Immigration), 2003 FCT 510, at para. 18; Poblano v Canada (Minister of Citizenship and Immigration), 2005 FC 1167, at para. 7; and Lackhee v Canada (Minister of Citizenship and Immigration), 2008 FC 1270, at paras. 12-13.

(Marr v Canada (Minister of Citizenship and Immigration), 2011 FC 367).

23 It is important to focus on the legislative amendment made to subsection 76(3) of the Regulations with respect to an immigration officer's exercise of discretion, which specifies the following: "an officer may substitute for the criteria set out in paragraph (1)(a) their evaluation". [Emphasis added.]

24 Paragraph 76(1)(a) refers directly to the awarding of points according to various criteria. Some see, further to this amendment, that immigration officers cannot use substituted evaluation on the basis of an applicant's financial resources as a reflection of their ability to become economically established, a factor set out in paragraph 76(1)(b).

25 The Court's reasoning in Xu v Canada (Minister of Citizenship and Immigration), 2010 FC 418, is as follows:



• [32] In my opinion, for this Court to import the requirement that these funds must be considered by an officer is to overstep the proper role of the Court. I read section 76(3) of the Regulations as not requiring consideration of the settlement funds available to the applicant; however, that is not to say that an officer cannot consider the applicant's settlement funds. [Emphasis in original.]

26 In Xu, above, commenting on Lackhee v Canada (Minister of Citizenship and Immigration), 2008 FC 1270, 337 FTR 299, in which the Court allowed the judicial review because the immigration officer had failed to consider a change in the applicant's funds, the Court pursued its reasoning as follows:



• [36] What Lackhee and Roberts establish is that if an applicant puts forward a case as to why his or her settlement funds render the point calculation not indicative of the likelihood of economic establishment, then the officer should be open to considering it.

27 Furthermore, Manual OP 6: "Federal Skilled Workers", a reference for immigration officers, is consistent with this view:



• 13.3.

Substituted evaluation



• R76(3) makes possible substituted evaluation by an officer. This authority may be used if an officer believes the point total is not a sufficient indicator of whether or not the applicant may become economically established in Canada.



• Substituted evaluation is to be considered on a case-by-case basis. The scope of what an officer might consider as relevant cannot be limited by a prescribed list of factors to be used in support of exercising substituted evaluation. There are any number and combination of considerations that



• an officer might cite as being pertinent to assessing, as per the wording of R76(3): "... the likelihood of the ability of the skilled worker to become economically established in Canada... ." [Emphasis added.]

28 An immigration officer may therefore exercise substituted evaluation in light of an applicant's funds, but at his or her discretion. Available funds are only one of numerous relevant factors. Immigration officers are in the best position to weigh this factor among others according to the particular circumstances of the case.

29 In this case, the immigration officer unequivocally admitted that he had considered the evidence submitted to the file with respect to the applicant's financial situation. It must also be noted that the purpose of the applicant's application for reconsideration was clearly to bring the applicant's funds to the attention of the officer again, even though this information had already been the subject of an initial analysis:



• [TRANSLATION]



• Upon reading the letter of refusal received on January 28, 2011, the lack of reference to the applicant's financial situation is evident. There is reason to believe that the immigration officer placed no weight on any evidence provided by the applicant in support of his settlement funds in the approximate amount of $132,020 CAD ... .

(Application for Reconsideration, AR at page 74).



• IX. Conclusion

30 The immigration officer's decision is reasonable. Therefore, for reasons stated earlier, the application for judicial review is dismissed.

JUDGMENT

THE COURT ORDERS the dismissal of the applicant's application for judicial review. No question of general importance arises for certification.

Certified true translation: Janine Anderson, Translator