Date: 20041012
Docket: IMM-7787-03
Citation: 2004 FC 1398
Ottawa, Ontario this 12th day of October, 2004
Present: The Honourable Madam Justice Heneghan
BETWEEN:
JAVIER EDUARDO IRRIBARREN HERNANDEZ
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] Mr. Javier Eduardo Irribarren Hernandez (the "Applicant") seeks judicial review of the decision of Visa Officer Craig Dundas (the "Visa Officer"). In his decision, dated September 1, 2003, the Visa Officer rejected the Applicant's application for permanent residence in Canada on the basis that he had failed to accumulate sufficient points.
BACKGROUND
[2] The Applicant, a citizen of Peru, applied for admission into Canada as a member of the Skilled Worker Class on July 3, 2003. His application was received by the Canadian Embassy in Lima, Peru on July 16, 2003. He provided information about his background, including his education and work experience. He sought assessment as an Advertising Manager. He also requested consideration under the "substituted evaluation", a discretionary power granted under the Immigration and Refugee Protection Regulations, SOR/2002-227 (the "Regulations").
[3] On September 2, 2003, the Applicant received a letter dated August 1, 2003 from Citizenship and Immigration Canada, acknowledging receipt of his application and advising that processing of that application would take twenty-four months.
[4] On September 5, 2003, the Applicant forwarded his Right of Landing fee and proof of settlement funds. These materials were recorded as having been received on September 10, 2003 but the date of receipt was later amended to September 9, 2003.
[5] On September 18, 2003, the Respondent changed the number of required qualifying points for members of the Skilled Worker Class to 67 points, from 75 points.
[6] On September 22, 2003, the Applicant received a letter dated September 1, 2003 from CIC, advising that he had been awarded 69 points and that this total was insufficient to allow his admission into Canada as a member of the Skilled Worker Class. On the same day, that is September 22, 2003, the Applicant inquired about the September 18, 2003 amendment concerning the reduction in the number of qualifying points.
[7] On October 9, 2003, the Applicant received a letter from the Canadian Embassy stating that the decision to refuse his application had been made on August 5, 2003 and the refusal letter was mailed on September 1, 2003. That refusal letter sets out the basis for denying his application in the following terms:
You have obtained insufficient points to qualify for immigration to Canada, the minimum requirement being 75 points. You have not obtained sufficient points to satisfy me that you will be able to become economically established in Canada.
Section 76(3) of the regulations permit an officer to substitute their evaluation of the likelihood to become economically established in Canada if the number of points awarded are not a sufficient indicator of whether the skilled worker may become economically established in Canada.
As a result of your request for consideration under subsection 76(3) of the regulations, I have considered whether the number of points awarded is a sufficient indicator of whether you may become economically established in Canada. I have determined that the points that you have been awarded are a sufficient indicator of whether you may become economically established in Canada. The information and the explanations you have given me have not satisfied me that you will be able to become economically established in Canada despite obtaining insufficient points. As a result, I am not substituting my evaluation pursuant to subsection 76(3).
[8] The Applicant now challenges the decision and argues that the Visa Officer breached the rules of procedural fairness by failing to defer making a decision until he had been given the opportunity to provide the evidence concerning settlement funds. The Applicant says that the "Citizenship and Immigration Canada Manual, OP6, Federal Skilled Workers" (the "OP6 Manual") sets out the procedure to effect the implementation of section 10(1) of the Regulations. That document provides, in section 8.2, that an officer must provide an opportunity to an applicant to address any concern about sufficiency of funds if the applicant does not initially demonstrate that he has sufficient available funds.
[9] The Applicant says that since he did not initially demonstrate that he had sufficient funds available, that is at the time he submitted his application in July 2003, he should have been given this opportunity to do so. He alleges that failure to do so amounts to a breach of natural justice and procedural fairness.
[10] He also submits that the processing of his application in only four days also is a breach of procedural fairness.
[11] In reply, the Respondent argues that there are two requirements for admission into Canada as a member of the Skilled Worker Class, that is an award of sufficient points and proof of adequate settlement funds, pursuant to the Regulations. According to the refusal letter, the Visa Officer based his decision of his assessment on the points available to the Applicant and not on the issue of settlement funds.
[12] According to the Respondent, since the negative decision rests on the assessment of points, the Visa Officer was not required to consider settlement funds or to give the Applicant an opportunity to make submissions in that regard. Consequently, there was no obligation for him to follow section 8.2 of the OP6 Manual.
[13] The Respondent also argues that the exercise of discretion, pursuant to section 76(3) of the Regulations, does not require a visa officer to take into account the settlement funds that may be available to an applicant. Rather, the exercise of discretion is engaged when an applicant fails to achieve a sufficient number of points and the assessment of points is independent of consideration of settlement funds.
[14] The Respondent also notes that in the affidavit of the Visa Officer, filed in this proceeding, he specifically stated that he did not take the question of settlement funds into account and further said that he usually assessed the issue of funds at the end of the process.
A review of the refusal letter and CAIPS notes confirms that I did not consider the issue of settlement funds prior to refusing the Applicant's application. As for the RPRF (formerly the Right of Landing Fee), payment of this is also postponed until we have completed the eligibility and admissibility assessments. Along with settlement funds, it is one of the last things requested by a visa officer.
DISCUSSION
[15] The sole issue arising from this application is whether the Visa Officer committed a reviewable error in the manner in which he dealt with the Applicant's application. Section 10(1)(c) and sections 75(1), 76 and 77 of the Regulations are relevant and provide as follows:
| 10. (1) Subject to paragraphs 28(b) to (d), an application under these Regulations shall ... (c) include all information and documents required by these Regulations, as well as any other evidence required by the Act; |
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10. (1) Sous réserve des alinéas 28b) à d), toute demande au titre du présent règlement : ... c) comporte les renseignements et documents exigés par le présent règlement et est accompagnée des autres pièces justificatives exigées par la Loi; |
| 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. |
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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 entendent résider dans une province autre que le Québec.
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| 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). (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. (3) Whether or not the skilled worker has been awarded the minimum number of required points, an officer may substitute for the criteria set out in subsection (1) 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. (4) An evaluation made under subsection (3) requires the concurrence of a second officer. |
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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, pour une période d'un an à compter de son entrée au Canada, 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). (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. (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) - ne reflète pas l'aptitude de ce travailleur qualifié à réussir son établissement économique au Canada, l'agent peut substituer son appréciation aux critères prévus au paragraphe (1). (4) Toute décision de l'agent au titre du paragraphe (3) doit être confirmée par un autre agent.
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| 77. For the purposes of Part 5, the requirements and criteria set out in sections 75 and 76 must be met at the time an application for a permanent resident visa is made as well as at the time the visa is issued. |
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77. Pour l'application de la partie 5, les exigences et critères prévus aux articles 75 et 76 doivent être remplis au moment où la demande de visa de résident permanent est faite et au moment où le visa est délivré. |
[16] Section 8.2 of the OP6 Manual is also relevant as it provides that the requirement to provide "all information and documents" as stipulated by section 10(1)(c), must be carried out before an officer will undertake any substantive consideration of an application. In the event that an application does not meet this requirement, the officer is to advise the applicant that no further processing shall be completed until all supporting documents have been submitted.
[17] The Respondent, relying on section 10(1)(c), suggests that the Applicant should have provided information about his settlement funds when he submitted his application and that he is solely responsible for the consequences of failing to do so.
[18] The problem with this approach, in my opinion, is that it renders the OP6 Manual irrelevant. The Manual purports to assist a visa officer in assessing an application and although without the force of law, it merits some attention. In this regard, the above-cited provision of that Manual requires a visa officer to give an applicant the opportunity to supply missing documentation concerning settlement funds if they do not initially meet that criteria; Mittal (Litigation Guardian of) v. Canada (Minister of Citizenship and Immigration) (1998), 147 F.T.R. 285.
[19] In my view of section 76(3), the exercise of the discretion conferred on the visa officer requires consideration of settlement funds when deciding to make a substituted evaluation of a person's ability to become economically established in Canada.
[20] Section 76(3) contemplates a two-part assessment, the first of points and the second relative to settlement funds or an award of points pursuant to section 82(2) of the Regulations. It authorizes an officer to exercise a discretion "whether or not the skilled worker has been awarded the minimum number of points", pursuant to section 76(1) [emphasis added]. I reject the Respondent's arguments that the exercise of discretion, or in current parlance a "substituted evaluation", is held only relative to the assessment of points.
[21] If an applicant has achieved a minimum number of points, there would be no need for a discretionary decision or substituted evaluation as to the possibility of becoming economically established in Canada. In my opinion, section 76(3) contemplates that an officer would consider and weigh all the factors identified in section 76(1), not only the award of points pursuant to section 76(1)(a).
[22] In the present case, the Visa Officer was cross-examined upon his affidavit that was filed as part of the Respondent's application record. He was later questioned by counsel for the Respondent about his failure to consider settlement funds and said as follows:
Q. And in that paragraph, you talk about how you didn't consider the issue of settlement funds prior to refusing the application. And that along with RPRF and settlement funds, those are some of the last things requested by a visa officer.
Can you tell me why you didn't require any sort of proof of settlement funds in order to make your decision on August 5th?
A. To repeat what I've written, yes, I usually assess proof of funds at the end of the process of assessing an application for immigration to Canada or for permanent residence in Canada.
The reason it takes place at the end of the assessment - - the end of the process than at the beginning is because most people - - most applicants simply do not have sufficient liquid assets - - cash, available to them at the beginning of the process. And quite often, for many of our applicants, they are required to sell property, sell a vehicle, sell a house, even, in order to show that they have sufficient liquid assets.
Now, it would be unfair of me to require that they do so, that they sell their property at the beginning of a process that may or may not result in visa issuance.
And for that reason, I will assess everything else, essentially, ensuring the person, the applicant and their family are admissible to Canada and that they meet the eligibility requirements before asking them whether they can show proof of sufficient settlement funds. And that challenge will take place usually within two months of planned visa issuance.
[23] In my opinion, this evidence has the air of an attempt to justify his decision to ignore that issue and further suggests the importation by the Visa Officer of his personal standards for the exercise of the discretion conferred by section 76(3). In the circumstances, I am satisfied that he improperly fettered his discretion. This application for judicial review will be allowed and the matter being remitted to a different visa officer for reconsideration in accordance with the law.
[24] Counsel for both parties submitted possible questions for certification. The Applicant proposes the following questions:
1. Does section 76 of the Immigration and Refugee Protection Regulations require a visa officer to assess both criteria set out in s.76(1)(a) and s. 76(1)(b) in assessing whether an applicant for permanent residence under the Skilled Workers Class will be able to become economially established in Canada.
2. Does section 76(3) of the Immigration and Refugee Protection Regulations apply to both criteria set out in s. 76(1)(a) and s. 76(1)(b) of the Regulations.
3. Does section 10(1)(c) of the Immigration and Refugee Protection Regulations entitled [sic] a visa officer to make a determination with respect to s.76 of the Regulations without:
(1) receipt of all information and documents as well as any other evidence required by the Act and Regulations relevant to a s.76 assessment from the applicant, and
(2) without giving the applicant an opportunity to submit such evidence.
[25] The Respondent proposes a slightly different question:
Do paragraph 10(1)(c) and sections 75-77 of the Immigration and Refugee Protection Regulations require a visa officer to be in possession of "all information and documents required" by the Regulations, including documents relating to settlement funds, before deciding an application for permanent residence under the skilled workers class?
[26] The test for certifying a question is set out in section 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, that is a serious question of general importance. In my opinion, the present application does not give rise to such a question and no question will be certified.
ORDER
The application for judicial review is allowed and the matter is remitted to different Visa Officer for assessment in accordance with the law. There is no question for certification arising.
"E. Heneghan"
J.F.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-7787-03
STYLE OF CAUSE: JAVIER EDUARDO IRRIBARREN HERNANDEZ
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: September 15, 2004
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR ORDER AND
ORDER BY: Heneghan J.
DATED: October 12, 2004
APPEARANCES BY: Alvaro J. Carol
(416) 322-2882
For the Applicant
Ann Margaret Oberst
(416) 973-7537
For the Respondent
SOLICITORS OF RECORD: Alvaro J. Carol
2040 Yonge St.,
Suite # 200
Toronto, Ontario
M4S-1Z9
For the Applicant
Ann Margaret Oberst
Department of Justice
130 King Street West
Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
For the Respondent