Federal Court Decisions

 

Date: 20090304

Docket: IMM-3889-08

Citation: 2009 FC 237

Ottawa, Ontario, March 4, 2009

PRESENT:     The Honourable Mr. Justice Kelen

 

 

BETWEEN:

REY ERWIN REQUIDAN

Applicant

and

 

THE MINISTER OF

CITIZENSHIP AND IMMIGRATION

Respondent

 

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               This is an application for judicial review of a decision by a visa officer, dated July 10, 2008, refusing the applicant’s application for permanent residence in Canada as a member of the Skilled Worker Class.

 

FACTS

[2]               The applicant is a citizen of the Philippines.  He was residing with his family in Dubai, United Arab Emirates, prior to his arrival in Canada. The applicant arrived in Canada on a temporary resident visa in May 2006 and was joined temporarily by his wife in October 2006.  The applicant states that they visited with family friends and high school friends.  The applicant’s sister is a permanent resident in Canada.

 

[3]               The applicant made an application to extend his authorization to stay in Canada, and his visitor status was subsequently extended until December 31, 2007.  The applicant states that during the visit, he and his wife began thinking about remaining in Canada on a permanent basis.  The applicant became acquainted with Ms. Fern Chan, the owner of Dave Young Fruit Market, and obtained a job offer as a retail supervisor at this establishment.   He submitted an application for permanent residence as a member of the Federal Skilled Worker Category to the Canadian Embassy in Makati City, Philippines, on April 18, 2007. 

 

[4]               The applicant’s application was refused on the basis that he did not have the requisite points to qualify for admission to Canada in the skilled worker category.

 

Decision under review

[5]               Based on his application, the applicant was assessed as having 64 points in total.  The decision, at page 9 of the Application Record, states:

You have obtained insufficient points to qualify for immigration to Canada, the minimum requirement being 67 points…Following an examination of your application, I am not satisfied that you meet the requirements of the Act and the regulations for the reasons explained above.  I am therefore refusing your application.

 

 

[6]               The applicant does not dispute the assessment of points.  The applicant then requested substituted evaluation under Regulation 76(3) of the Immigration and Refugee Protection Regulations (IRPR).   Regulation 76(3) allows a visa officer to substitute their evaluation of the likelihood of the skilled worker to become economically established in Canada for the criteria if they determine that the number of points awarded is not a sufficient indicator of the skilled worker’s abilities. 

 

[7]               At p. 13 of the Application Record, the visa officer states in the CAIPS notes:

I have reviewed counsels request to consider substituted evaluation in this case.  The submission restates facts already known to the officer such as the Arranged Employment Officer that was addressed with the applicant in an interview.  It was considered at that time that the job offer and the skills and experience of Mr. Requidan were not matched, (sic) the fact that Mr. Requidan has a close family member in Canada.  It should be noted that Mr. Requidan was assessed the maximum points for both these criteria.  The point system is to determine, in this officers understanding, the settlement ability of any applicant.  The fact that Mr. Requidan missed the selection by 3 points on initial assessment is not considered positive or negative.  It does however give an indication of his settlement ability.  The only factor that has not been awarded any points is the fact that Mr. Requidan spent nearly 1 year in Canada on a visitor record.

 

I am satisfied that the points awarded are reflective of Mr. Requidan’s settlement ability.  He does not pass selection. 

 

[8]               The applicant submits that the officer gave inadequate consideration to the factors supporting his request for substituted evaluation and seeks judicial review on this basis.

RELEVANT LEGISLATION

[9]               Regulation 76(3) and 76(4) of the IRPR provide:

 

[10]           Regulations 82 and 83 set out the criteria a visa officer must consider in awarding points under the “arranged employment” and “adaptability” categories:

 

ISSUES

[11]           The applicant  raises three issues in his application:

1.         Did the officer err in law by failing to seek the concurring evaluation of a second officer when assessing the applicant’s case on the basis of substituted evaluation?

 

2.         Did the officer err in law by weighing the relevance of the Accompanying Spouse’s Offer of Employment under the Arranged Employment and Adaptability Factors of the points assessment for Federal Skilled Workers?

 

3.         Did the Officer err in his assessment of substituted evaluation by failing to take into account relevant facts and the totality of the applicant’s circumstances?

STANDARD OF REVIEW

[12]           The standard of review for a discretionary decision of an immigration officer relating to a permanent residence visa under the federal skilled worker class is one of reasonableness: Wang v. MCI, 2008 FC 798, 168 A.C.W.S. (3d) 381, per Justice Beaudry at paragraphs 10-12. 

 

[13]           In order for a decision to be reasonable, the Court will consider "the existence of justification, transparency and intelligibility within the decision-making process” and “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” Dunsmuir v. New Brunswick [2008] S.C.J. No. 9, 2008 SCC 9 at paragraph 47.

 

[14]           To the extent that the applicant has raised questions of law, they will be reviewed on a standard of correctness.

 

ANALYSIS

Issue No. 1: Did the officer err in law by failing to seek the concurring evaluation of a second officer when assessing the applicant’s case on the basis of substituted evaluation?

 

[15]           The applicant submits that the officer erred in law in failing to seek a concurring evaluation by a second officer for the substituted evaluation as provided in Regulation 76(4).  According to the applicant, the officer must seek a concurring evaluation before rendering a decision, and the concurring evaluation must be sought whether or not the officer’s own decision is a positive one.

 

[16]           The respondents submit that the law is already established in regard to this issue.  In Hou v. MCI, 2005 FC 1586, 144 A.C.W.S. (3d) 329, Justice O’Keefe held at paragraph 24:

The applicant submitted that the officer erred by failing to exercise the jurisdiction of her office by not obtaining the concurrence of a second officer. Subsection 76(3) of the Regulations provides that an officer may substitute for the criteria set out in paragraph 76(1)(a) "the officer's 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." It is only when the officer selects this alternative that the concurrence of a second officer is required by subsection 76(4) of the Regulations. In the present case, the officer specifically stated, "I am of the opinion that the point total is a sufficient indicator of your ability to become economically established in Canada." The officer made no error in this respect.

 

[17]           The applicant submits that Hou can be distinguished from the current case for a number of reasons. 

 

[18]           With respect, although there are differences between the Hou case and the case at bar, the paragraph cited above in relation to Regulation 76(4) is precisely on point.  The Regulations are quite clear that the concurring opinion must be sought only if the officer decides to substitute his own evaluation in lieu of the points assessment.  By definition, this means a concurring opinion is only necessary when the decision is positive, because the officer would only substitute his own evaluation where he or she feels that the points awarded to the applicant do not sufficiently reflect the applicant’s abilities. 

 

Issue No. 2:  Did the officer err in law by weighing the relevance of the Accompanying Spouse’s Offer of Employment under the Arranged Employment and Adaptability Factors of the points assessment for Federal Skilled Workers?

 

[19]           The applicant’s spouse was offered employment as a cashier at the same establishment where the applicant was offered his position.  In the visa officer’s affidavit, the officer states at paragraph 5:

I awarded the applicant full points both in the adaptability and in the arranged employment categories.  The job offers of the applicant and his spouse go directly to these categories for which the applicant was given full credit. 

 

  

[20]           The officer’s affidavit evidence that he considered the accompanying spouse’s employment under the adaptability and arranged employment factors is clearly wrong. The applicant states that the accompanying spouse’s offer of employment was not known to the officer until after he had conducted his points assessment and invited the applicant to make a request for substituted evaluation.  Thus, the officer could not have taken it into account in awarding the maximum points in these categories, and the officer’s statement in this regard is clearly wrong.

 

[21]           However, the Court finds that this mis-statement in the affidavit is not a material error. The visa officer awarded the applicant maximum points in the adaptability and arranged employment categories anyway. The officer obviously considered that the spouse’s employment offer was not a sufficient basis for a substituted evaluation.

 

 

Issue No. 3: Did the Officer err in his assessment of substituted evaluation by failing to take into account relevant facts and the totality of the applicant’s circumstances?

 

[22]           The applicant submits that the visa officer failed to adequately consider a number of factors in failing to substitute his evaluation for the points assessed.  The applicant submits that these factors include:

1.    the employment offers secured by the applicant and his spouse;

 

2.    the relocation and successful integration of the applicant and his spouse in Dubai;

 

3.    the applicant’s stay in Canada from July 2006 to December 2007, during which time he explored opportunities for his family and secured employment offers for himself and his spouse;

 

4.    the support of the applicant’s sister, a permanent resident in Canada; and

 

5.    the applicant’s completion of fourteen years of full-time study, including five years towards his diploma.  The applicant states that he was deprived of 15 points on the basis of a technicality which resulted in him not obtaining his diploma.

 

[23]           The respondent states that there is no requirement for written reasons in refusing a request for substituted evaluation.  In Poblano v. Canada (MCI), 2005 FC 1167, 142 A.C.W.S. (3d) 146, Justice von Finckenstein held at paragraph 7:

7          As for written reasons, while they are always desirable, there is no requirement for them. See Behnam v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 798 at paragraph 6: The officer merely has to inform the applicant that she considered the request for substitution of evaluation. That was done in this case.

 

See also: Singh v. Canada (MCI), 2008 FC 58, 164 A.C.W.S. (3d) 681, per Justice Mactavish at paragraph 33.

 

 

[24]           Thus, the respondent submits that the reasons given in the CAIPS notes are clear, reasonable and sufficient given the lack of a requirement for reasons.  The visa officer addressed the applicant’s employment offer, his sister in Canada, and his stay in Canada in the CAIPS notes. I agree that these reasons are adequate for demonstrating the rationale for the discretionary decision of the visa officer.

 

[25]           With respect to the applicant’s education, the visa officer states in his affidavit:

The applicant was awarded five points in the education category, which reflects the fact that he completed high school.  He did not complete his diploma at the Philippine Merchant Marine School.  It is significant to the education requirement that the Applicant did not complete his diploma. To receive points for education at the Bachelor’s degree level, an Applicant must have completed the required fourteen years of education and received his degree.  I do not consider the fact that the Applicant did not complete his diploma to be a technicality.

 

[26]           The applicant did not receive his diploma because he did not complete the Reserves Officers Training Corps at the Philippine Merchant Marine School.  This was a requirement to receive his diploma, and it was open to the visa officer to find that this was not a situation in which substituted evaluation was appropriate because of this incomplete post-secondary education.

 

[27]           The respondent submits that substituted evaluation under Regulation 76(3) is an exceptional discretion that requires that the officer is convinced that the point system does not adequately reflect the applicant’s ability to settle in Canada.  The respondent cites Esguerra v. Canada (MCI) 2008 FC 413, 166 A.C.W.S. (3d) 358, wherein Mr. Justice de Montigny held at paragraphs 16-19:

16     The discretion under subsection 76(3) of the IRPR is clearly exceptional and applies only in cases where the points awarded are not a sufficient indicator of whether the skilled worker will become economically established. The fact that the applicant or even this court would have weighed the factors differently is not a sufficient ground for judicial review….

 

18     It was not unreasonable for the visa officer to conclude that the points reflected the applicant's ability to establish himself economically in Canada… his credentials, financial establishment and professional experience have all been taken into account, and I may add that he appears to have been quite favorably evaluated especially with respect to his professional experience. As to the fact that he has family in Canada, I do not think that it is sufficient to displace the score he received on the point system.

 

19     In summary, I believe the visa officer could reasonably come to the conclusion that this was not an exceptional situation that warranted a substituted evaluation. There was simply not enough evidence tending to demonstrate that the points obtained were not a fair reflection of the applicant's ability to become economically established…

 

[28]            Similarly, in this case, the officer clearly stated that he believed the points assessed were reflective of the applicant’s ability.  The officer indicated that he had read the applicant’s submissions for substituted evaluation but had determined that it was not warranted in this case.  The officer was not required to address each factor separately.

 

[29]           I agree that the discretion under subsection 76 (3) of the IRPR is “clearly exceptional”. It is to be applied by the visa officer whenever a skilled worker is awarded a number of points which approximate the 67 points required to qualify as a skilled worker immigrant and the visa officer is of the view that the number of points awarded is not a sufficient indicator of whether the skilled worker will become economically established in Canada. Canada needs skilled workers and the visa officers in the field are in the best position to identify these skilled workers, particularly in trades where Canada is in short supply.

 

[30]           Notwithstanding the able argument of the applicant, the visa officer’s decision was reasonably open to him even if the visa officer did not consider, at least according to the CAIPS notes, the following factors:

(i)                  that the applicant’s spouse has a job offer as a cashier at the Dave Young Food Market;

(ii)                that the applicant and his wife have already shown that they can relocate and successfully integrate into a different country, namely United Arab Emirates; and

(iii)               the applicant has four or five years of post-secondary education before dropping out of his degree program.

 

The visa officer had already considered that the applicant’s sister was a permanent resident in Canada, that the Applicant had an offer of employment, and that the applicant had spent time in Canada as a visitor.

 

[31]      The applicant’s counsel referred me to Choi v. Canada (MCI), 2008 [F.C.J. No. 734] where I found in paragraph 18:

…In the Court’s view, it was unreasonable for the visa officer not to give this letter some weight as a sufficient indicator of the applicant’s ability to perform his job to the satisfaction of the principal of the school. This was a factor that the visa officer did not consider in deciding whether to substitute his evaluation for the likelihood of the applicant becoming economically established in Canada…

 

 

In the case at bar, there is no such clearly unreasonable factor which the visa officer did not consider and which if the visa officer had considered, would be compelling in demonstrating that the applicant would likely become economically established in Canada. I am satisfied that the visa officer’s conclusion was reasonably open to the visa officer, namely that the points awarded give an accurate indication of the applicant’s “settlement ability”.

 

[31]           For these reasons, this application for judicial review is dismissed.

 

[32]           Neither party proposed a question for certification. The Court agrees that this application does not raise a serious important issue which ought to be certified on appeal.

 

 

 

JUDGMENT

 

THIS COURT ORDERS AND ADJUDGES that:

This application for judicial review is dismissed.

 

 

 

“Michael A. Kelen”

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          IMM-3889-08

 

STYLE OF CAUSE:                          REY ERWIN REQUIDAN v. MCI

 

 

 

 

PLACE OF HEARING:                    Toronto, Ontario

 

DATE OF HEARING:                      February 17, 2009

 

REASONS FOR JUDGMENT

AND JUDGMENT:                          KELEN J.

 

DATED:                                             March 4, 2009

 

 

 

APPEARANCES:

 

Stephen W. Green	FOR THE APPLICANT
Alison Engel-Yan	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Stephen W. Green Green and Spiegel, LLP	FOR THE APPLICANT
John H. Sims, Q.C. Deputy Attorney General of Canada	FOR THE RESPONDENT