BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER
Introduction
[1] These reasons follow the hearing on the 13th of February, 2007 of an application for judicial review of a decision of an officer (the “Officer”) of the respondent at the High Commission for Canada in New Delhi, India. The decision is dated the 19th of January, 2006. In the decision, the Officer, notwithstanding that the applicant received sufficient points of assessment to justify issuance of a permanent resident visa in his favour, denied the applicant’s application based upon an exercise of negative discretion or substituted evaluation to determine that she was:
“… not satisfied that you [the applicant] would be able to become economically established in Canada. You were given an opportunity to address these concerns at your interview, but the information and the explanations that you gave did not satisfy me. A senior officer concurred with this evaluation.”
Background
[2] The applicant is a citizen of India. He applied for a permanent resident visa to come to Canada on the 12th of January, 2000. He proposed to come to Canada with a dependant daughter. His spouse and two other children were not included in his application. His first language is Punjabi but he established some capacity to speak, understand, read and write English. He proposed that his application be evaluated as a member of the economic class on the basis of the occupation “paralegal”.
[3] In the transition period between the application of the Immigration Act and related regulations and the Immigration and Refugee Protection Act and related regulations, his application was evaluated under both regimes. In the assessment under the Immigration Act and regulations, he received 65 units of assessment when 70 units of assessment was required to qualify. Under the Immigration and Refugee Protection Act and regulations, he received 68 units of assessment, thus qualifying for immigration, since only 67 units of assessment were required to qualify. Notwithstanding, his qualification under the Immigration and Refugee Protection Act and regulations, his application was rejected through the exercise of a substituted evaluation made under the authority of sub-section 76 (3) of the Immigration and Refugee Protection Regulations.[1]
The Issues
[4] Two issues were raised on this application for judicial review on behalf of the applicant: first, the appropriate standard of review; and second, whether or not the Officer erred against the
appropriate standard of review in the exercise of substituted evaluation, more particularly, by “double-counting” the applicant’s limited English language ability.
Analysis
Standard of Review
[5] While counsel for the applicant acknowledged that factual findings of a decision maker such as the Officer on applications for permanent residents in Canada are reviewable on a standard of review of patent unreasonableness, she urged that determinations based upon the exercise of negative discretion or negative substituted evaluation are reviewable on a higher standard. In this regard, counsel relied on Alam v. Canada (Minister of Citizenship and Immigration)[2] Where my colleague, Justice Mactavish, wrote at paragraph [22] of her reasons:
There is a heavier onus on a visa officer to justify the exercise of negative discretion under paragraph 11 [3][b] of the Regulations than there is with respect to the exercise of, or refusal to exercise a positive discretion under paragraph 11 [3] [a];
Justice Mactavish’s references to subsection 11 [3] of the Regulations is to that subsection of the Regulations under the former Immigration Act. Nothing turns on the distinction between that sub-section and subsection 76 [3] of the Regulations under the Immigration and Refugee and Protection Act.
[6] As authority for the brief quoted paragraph, Justice Mactavish relies on Hameed v. Minister of Citizenship and Immigration[3] where Justice Evans, for the majority of a panel of the Court of Appeal, reached the same conclusion at paragraph [22] of his reasons.
[7] Counsel before the Court on this matter reached consensus that the appropriate “higher” standard of review is reasonableness simplicitier. I am satisfied that on the particular facts of this matter, that a pragmatic and functional analysis supports the consensus between counsel.
Reviewable Error in the use of Negative Discretion or Negative Substituted Evaluation
[8] Counsel for the applicant urged that the Officer, having awarded points of assessment for the applicant’s ability in the use of the English language under both the points assessment under the Immigration Act and the Immigration and Refugee Protection Act erred by “double-counting” or “double-consideration” of the applicant’s English language ability in determining to exercise negative discretion or negative substituted evaluation. I disagree.
[9] In the CAIPS notes supporting the Officer’s decision, the Officer wrote:
“…I am not satisfied that the points that he [the applicant] has been awarded are a sufficient indicator of the likelihood of his ability to become “economically established” in Canada. I have made this determination because [the applicant] is at a stage of his career where it would be difficult to change direction and he has stated he does not intend to pursue being a paralegal in Canada but rather that he would do “any job in Toronto”. In addition, because of his limited English abilities [the applicant] stated he would interact only with other Punjabi speakers. This indicates he does not intend to integrate into Canadian society as a whole but rather to remain within his own community. [The applicant’s] spouse has a Master’s Degree, however, she does not speak English and her experience would not likely be relevant in Canada. I do not feel that the number of points awarded (68) are a sufficient indicator of the [applicant’s] ability to become economically established in Canada.”
[10] The Officer did not “double-count” the applicant’s limited ability in English but rather relied on the applicant’s performance at interview where he was remarkably vague as to how he intended to support himself in Canada, indicated that he intended to restrict his integration into Canadian
society to a very limited element of that society and the reality that the applicant’s spouse, though highly educated, did not have experience that would likely be relevant in Canada.
[11] Against the standard of review of reasonableness simplicitier, I am satisfied that the Officer’s determination to rely on negative discretion or negative substituted evaluation to reject the applicant’s application for permanent residence in Canada by reason of her concern that the points of assessment awarded to him were not a sufficient indicator of the applicant’s ability to become economically established in Canada, was open to her.
Conclusion
[12] Based on the foregoing brief analysis, I have concluded that this application for judicial review should be dismissed.
Certification of a Question
[13] Counsel for the applicant and respondent were advised of the Court’s determination at the conclusion of the hearing of this matter. Neither recommended certification of a question. The Court itself is satisfied that no serious question of general importance that would be determinative on an appeal of the Court’s determination herein arises. No question will be certified.
“Frederick E. Gibson”
Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1545-06
STYLE OF CAUSE: HARBANS SINGH KAINTH v. MCI
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 13, 2007
APPEARANCES:
ALEXIS SINGER FOR THE RESPONDENT
SOLICITORS OF RECORD:
WENNIE LEE
Lee & Company FOR THE APPLICANT
Toronto, Ontario
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT
Department of Justice
Ontario Regional Office
Toronto, Ontario