Date: 20100128
Docket: IMM-918-09
Citation: 2010 FC 99
Toronto, Ontario, January 28, 2010
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
RAJESH
KISSON
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of the decision made on
January 9, 2009 at the High Commission of Canada in Port-of-Spain, Trinidad and
Tobago, by visa officer A. Corbett, rejecting the applicant’s application for a
permanent resident visa in Canada made pursuant to the Federal Skilled Worker
category. These are my reasons for determining that the application must be
granted and the matter reconsidered by a different visa officer.
Background
[2]
Mr.
Rajesh Kisson, the applicant, is a citizen of Trinidad and Tobago. He and his
wife, Ms. Cheryl Persaud, first came to Canada in May 1996
with visas obtained under their birth names. They were issued exclusion orders and
left in November 1996. The couple subsequently changed their names by deed poll
and entered Canada in 1998 on Temporary
Resident Visas obtained without disclosing the prior visa history.
[3]
From
June 2000 until August 2006, without an employment authorization, the applicant
held a position as a glass carver with St. Regis Crystal Inc., obtained through
the employment agency A&A Logistics. The applicant’s primary duties were
to use hand tools and glass working machines to produce glass figurines. He
was successful in that work and registered a Canadian Intellectual Property certificate
for a Frosted Glass Tree that he created. In 2005, his employer, St. Regis
Crystal Inc., obtained an Arranged Employment Opinion (AEO) from Human
Resources and Skills Development Canada (HRSDC) in connection with a permanent
and indefinite offer of employment to Mr. Kisson in the position of a glass
carver.
[4]
An
application for an exemption from the visa requirements on humanitarian and
compassionate grounds was denied in November 2005. The couple left Canada in August
2006. An application for permanent residence in the Federal Skilled Worker
category was denied in November 2006 for insufficient points. The applicant was
assessed a total of 58 points, including 12 for language proficiency, nine
short of the total required. He was credited with no points for education as he
went no further than primary school.
[5]
In
April 2007 with the assistance of counsel, the applicant reapplied under the
Federal Skilled Worker category and requested a substituted evaluation and an
exemption from the requirements of the IRPA pursuant to humanitarian and
compassionate considerations.
[6]
In
October 2007, after an interview at the High Commission in Trinidad and
Tobago,
the visa officer determined that applicant would need to complete an
International English Language Testing System (IELTS) test. The IELTS test was
written by the applicant in December 2008. He believes that due to the poor quality
of the tape recording, echoing in the exam room and nervousness associated with
exam writing, the results do not accurately reflect his level of proficiency in
English. He was awarded only 6 points for language proficiency.
[7]
In
January 2009, The High Commission in Trinidad and Tobago refused the
applicant’s second application for permanent resident status.
Decision Under Review
[8]
The
visa officer’s letter, dated January 9, 2009, constitutes his reasons for
decision:
Immigration Section
P.O. Box 565,
Port-of-Spain,
Trinidad and Tobago
9 January 2009
Rajesh Kissoon
c/o Law Firm of Green & Spiegel
390 Bay Street, Suite 2800
Toronto, Ontario
M5H 2Y2
Canada
File No. : B048814732
Dear Mr Kissoon,
I have now completed the assessment of
your application for a permanent resident visa as a skilled worker. I have
determined that you do not meet the requirements for immigration to Canada.
Subsection 12(2) of the Immigration
and Refugee Protection Act states that 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. Subsection 75(1) of the
regulations prescribes the federal skilled worker class 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.
Pursuant to the Immigration and
Refugee Protection Regulations, 2002, skilled worker applicants are
assessed on the basis of the requirements set out in subsection 75(2) and the
criteria set out in subsection 76(1). The assessment of these requirements
determines whether a skilled worker will be able to become economically
established in Canada. The criteria are age,
education, knowledge of Canada’s official languages,
experience, arranged employment and adaptability.
Your application was assessed based on
the occupation(s) in which you requested assessment (Glass Carver, NOC 5244).
The table below sets out the points assessed for each of the selection
criteria:
POINTS ASSESSED MAXIMUM POSSIBLE
AGE 10
10
EDUCATION 0
25
OFFICIAL LANGUAGE PROFICIENCY 6 24
EXPERIENCE 21
21
ARRANGED EMPLOYMENT 10
10
ADAPTABILITY 10
10
TOTAL 57
100
You have obtained insufficient points to
qualify for immigration to Canada, the minimum requirement
being 67 points. As you have not completed secondary education you have been
awarded zero points for education. Following review of your IELTS test results
and given that you state no proficiency in French, you have been awarded 6
points for language. You have not obtained sufficient points to satisfy me that
you will be able to become economically established in Canada.
Subsection 11(1) of the Act states that 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 shall be
issued if, following an examination, the officer is satisfied that the foreign
national is not inadmissible and meets the requirements of this Act.
Subsection 2(1) specifies that unless otherwise indicated, references in the
Act to “this Act include regulations made under it.
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.
You have submitted that humanitarian and
compassionate grounds should be considered in view of your inability to meet
the language requirement for skilled workers. The Immigration Program Manager
has completed the assessment of your request for humanitarian and compassionate
consideration pursuant to subsection 25(1) of the Immigration and Refugee
Protection Act and is of the opinion that humanitarian and compassionate
considerations do not justify granting you permanent residence or an exemption
from any applicable criteria or obligation of the Act. The Immigration Program
Manager has formed this opinion following a review of the documentation and
written explanation submitted by you or on your behalf as well as the interview
notes, and does not consider that these elements constitute ground for H&C
considerations.
As a result, I am refusing your request
for consideration under this provision of the Act.
Thank you for the interest you have shown
in Canada.
Yours sincerely,
A. Corbett
First Secretary (Immigration)
Issues
[9]
The
sole issue is whether the visa officer’s decision refusing the applicant’s
application for a permanent resident visa made pursuant to the Federal Skilled
Worker category was reasonable.
Analysis
[10]
In
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9, the Supreme
Court of Canada abandoned
the patent unreasonableness standard leaving only two standards of review,
correctness and reasonableness. The Supreme Court also held that a standard of
review analysis need not be conducted in every instance. Where the standard of
review applicable to the particular question before the court is well-settled
by past jurisprudence, the reviewing court may adopt that standard of review.
[11]
Accordingly,
the standard of review for the decision of a visa officer who has made a
discretionary decision on a permanent residence visa application is the
deferential standard of reasonableness as discussed in Wang v. Canada
(Minister of Citizenship and Immigration), 2008 FC 798, [2008] F.C.J. No.
995. I adopt for the purposes of the case at bar, the following comments of
Justice Beaudry, at paragraphs 10-11 of that decision:
10 The jurisprudence of this Court
has recognized that the decision of an immigration officer in the assessment of
an application for permanent residence under the federal skilled worked class
involves an exercise of discretion and should therefore be afforded
considerable deference. In Choksi v. Canada (Minister of Citizenship and
Immigration), 2007 FC 555, at paragraph 14, [2007] F.C.J. No. 770, Justice
Mactavish determined that "to the extent that such an assessment is
carried out in good faith, in accordance with the principles of natural
justice, and without relying on irrelevant or extraneous considerations, the
decision is reviewable on the standard of patent unreasonableness." (See
also Singh v. Canada (Minister of Citizenship and
Immigration),
2008 FC 58, [2008] F.C.J. No. 65).
11 Following the Supreme Court of
Canada's decision in Dunsmuir v. New Brunswick, [2008] S.C.J. No. 9,
2008 SCC 9, the review of an Officer's assessment of an application for
permanent residence should continue to be subject to deference by the Court,
and is reviewable on the standard of reasonableness (Dunsmuir, at
paragraphs 55, 57, 62, and 64).
[12]
No
deference is due if the Court determines that an administrative decision-maker
has failed to adhere to the principles of procedural fairness: Canadian
Union of Public Employees v. Ontario (Minister of Labour), [2003] 1
S.C.R. 539, [2003] S.C.J. No. 28, at paragraph 100. Such matters continue to
fall within the supervising function of the Court on judicial review: Dunsmuir,
supra, at paragraphs 129 and 151.
The Substituted Evaluation
Assessment
[13]
In
Fernandes v. Canada (Minister of
Citizenship and Immigration), 2008 FC 243, [2008] F.C.J. No. 302, at
paragraph 7, Deputy Judge Strayer, as he then was, comments on the purpose of a
substituted evaluation assessment as prescribed in subsection 76(3) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the Regulations).
7 It is
clear that the purpose of subsection 76(3) is to allow an exception to be
made to the point system where the Applicant's chances of becoming successfully
established in Canada is greater than is reflected in the points assessment:
see e.g. Yeung v. Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No. 1174
at para. 15. To obtain such advantage the Applicant must request the exercise
of the discretion and must give some good reasons for it: see Lam v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1239
at para. 5. However, such reasons need not be elaborate and may consist of a
more full description of the Applicant's background, education, and work
experience and knowledge of an official language of Canada: see Nayyar v. Canada (Minister of Citizenship and Immigration),
[2007] F.C.J. No. 342
at para. 12. [My Emphasis]
[14]
I
am of the view that the applicant’s submissions provided good reasons for the
exercise of the discretion under subsection 76(3) of the Regulations. The
evidence in this case, does not satisfy me that the visa officer and immigration
program manager gave sufficient consideration to the applicant’s (1) extensive
work experience in Canada, (2) significant involvement in community
organizations in Canada. (3) arranged employment, (4) knowledge of Canadian
culture and customs, (5) that the applicant had lived in Canada for eight
years without relying on government assistance and (6) the fact that the
Vice-President of St. Regis Crystal Inc., had declared that English language
proficiency was not a significant consideration.
[15]
I
agree with the applicant that in considering the substituted evaluation, the
visa officer did not demonstrate that he looked beyond the selection criteria
listed at subsection 76(1) of the Regulations (i.e. education, language,
experience, age, arranged employment, adaptability). I am unable to find in
the evidence any indication that the visa officer’s substituted evaluation
broadly assessed the likelihood of the ability of the applicant to become
economically established in Canada according to his set of circumstances. “The
clear intent of subsection 76(3) is to allow the visa officer to substitute
their evaluation taking into account a number of factors, and not just the
factors listed in paragraph 76(1)(a) as contended by the respondent:” Choi
v. Canada (Minister of Citizenship and Immigration), 2008 FC 577, [2008]
F.C.J. No. 734, at para. 20.
[16]
Realizing
that such a discretionary decision by the visa officer under subsection 76(3)
of the Regulations is reserved for “exceptional cases” and is entitled to
deference, as argued by the respondent relying on Requidan v. Canada
(Minister of Citizenship and Immigration), 2009 FC 237, [2009] F.C.J. No.
280, at para. 29, I am not convinced that the decision in this case was made entirely
in good faith and with regard to the relevant matters, as submitted by the
applicant when he requested a substituted evaluation in April 2007. The record
suggests that the visa officer may have been influenced by the applicant’s
prior immigration history.
The Consideration of Humanitarian
and Compassionate Grounds
[17]
In
considering whether there were humanitarian and compassionate grounds for an
exception, the officer’s analysis focussed exclusively on the fact that the
applicant had indicated that one reason for consideration was the presence in Canada of his
mother-in-law. It was noted that this had not been disclosed until her status
in Canada was
regularized through re-marriage in 2007. In any event, her presence in Canada was only one
factor that the officer was to consider for an assessment under section 25 of
the IRPA.
[18]
I
am not satisfied that the officer considered the totality of the circumstances
in this case. I agree with the applicant that the existing employment offer
and the applicant’s previous establishment in Canada are indicative of the
possibility that the applicant will once again be able to establish himself
successfully in Canada. I find it unreasonable that these key factors
do not appear to have been considered by the officer when he assessed the humanitarian
and compassionate considerations under section 25 of the IRPA.
[19]
I
don’t accept the respondent’s submission that in this case, the applicant is
attempting to use humanitarian and compassionate considerations as “a back door
when the front door has, after all legal remedies have been exhausted, been
denied in accordance with Canadian law:” Rizvi v. Canada (Minister of
Citizenship and Immigration), 2009 FC 463, [2009] F.C.J. No. 582, at para.
17.
[20]
I
note that in the same paragraph Justice Shore stated that
“… The purpose of humanitarian and compassionate discretion is to allow
flexibility to approve deserving cases not anticipated in the legislation.” The
applicant was entitled to have a proper assessment of whether his application
was deserving of such flexibility through consideration of the relevant
factors. The record does not support the conclusion that this was done.
Conclusion
[21]
In
my view, the reasoning process in this case was flawed and the resulting
decision falls outside the range of possible, acceptable outcomes: Dunsmuir,
supra, at para. 47.
[22]
The
process adopted by the officers and its outcome did not resonate with the principles
of justification, transparency and intelligibility. Consequently, it is open
to this Court to intervene: Canada (Citizenship and
Immigration) v. Khosa, 2009 SCC 12, [2009] S.C.J. No. 12, para. 59.
[23]
No
serious questions of general application were proposed for certification.
JUDGMENT
IT IS THE
JUDGMENT OF THIS COURT that the application is allowed, the decision of
the visa officer dated January 9, 2009 rejecting the applicant’s application
for permanent resident visa is set aside, and the application for a permanent
resident visa made pursuant to the Federal Skilled Worker category is referred
to another visa officer for re-determination. No questions are certified.
“Richard G. Mosley”
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