Toronto, Ontario, September 26, 2005
PRESENT: THE HONOURABLE MADAM JUSTICE MACTAVISH
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] Maria Synyshyn is a citizen of Ukraine, who applied for permanent residence in Canada as a skilled worker. Her application was rejected as she failed to receive a sufficient number of points on the assessment carried out by the respondent. Ms. Synyshyn now challenges that decision, asserting that the visa officer failed to properly exercise his discretion in her favour. According to Ms. Synyshyn, the officer should have approved her application on the basis that her score did not accurately reflect her ability to become economically established in Canada.
[2] Ms. Synyshyn has not persuaded me that the visa officer committed a reviewable error in his assessment of her application for permanent residence. Accordingly, her application for judicial review will be dismissed.
Background
[3] Ms. Synyshyn applied for permanent residence in Canada on February 16, 2002 on behalf of herself and her two sons. At the time that she filed her application, Ms. Synyshyn was aware that she would not have enough points to qualify for immigration. However, she was of the view that she would not have any difficulty in becoming economically established in Canada. As a consequence, she asked that the visa officer exercise his discretion in her favour, in accordance with subsection 76(3) of the Immigration and Refugee Protection Regulations, SOR/2002-227, which provides:
76 (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.
[4] In support of her application, Ms. Synyshyn provided the officer with a number of documents, including written confirmation of the fact that she had an offer of employment in Canada at a salary of $2,000 per month. According to Ms. Synyshyn, this is prima facie evidence that she was employable in Canada.
[5] It should be noted that Ms. Synyshyn's job offer had not been approved by Human Resources Development Canada, although she initially claimed that she had an approved offer.
[6] Ms. Synyshyn also provided letters from family members in Canada demonstrating their own financial security in this country, and the fact that the family had put aside some $51,000 to assist Ms. Synyshyn and her sons in becoming established in Canada. Ms. Synyshyn also provided evidence regarding other financial resources available to her.
[7] Additional evidence was provided with respect to the level of community support enjoyed by the members of Ms. Synyshyn's family in this country, and the favourable views of members of the community as to the family's work ethic. Finally, Ms. Synyshyn pointed to the fact that she had visited relatives in Canada, and was thus familiar with this country.
[8] After an exchange of correspondence between Ms. Synyshyn's counsel and the respondent, Ms. Synyshyn provided the visa officer with the results of her English language tests which indicated that her overall English language skills were those of a "limited user". A "limited user" is described on the test result form as being someone whose "[b]asic competence is limited to familiar situations. Has frequent problems in understanding and expression. Is not able to use complex language".
[9] By letter dated June 25, 2004, Ms. Synyshyn was advised that her application for permanent residence was being rejected. The letter observes that Ms. Synyshyn received a score of 43 points, and that a score of at least 67 points was required in order to qualify for immigration to Canada.
[10] The June 25, 2004 letter makes no mention of any consideration of Ms. Synyshyn's request for the exercise of discretion in her favour. However, a review of the Computer Assisted Immigration Processing System (CAIPS) notes discloses that Ms. Synyshyn's request for a substituted evaluation was considered, but was rejected on the basis of the visa officer's view that Ms. Synyshyn's score was a valid indicator as to whether Ms. Synyshyn would be able to become successfully established in Canada. In the officer's view, Ms. Synyshyn lacked the language skills and education to become successfully established in this country. As a consequence, he declined to exercise his discretion in her favour.
[11] Ms. Synyshyn submits that the visa officer erred in his evaluation of her application for permanent residence by failing to attach sufficient weight to the offer of employment that she had received. Moreover, Ms. Synyshyn submits that the visa officer ignored, or failed to attach sufficient weight to other evidence regarding the level of financial, family and community support that was available to her in Canada.
[12] Ms. Synyshyn further submits that the duty of fairness required that the visa officer interview her, or at the very least speak to her, in order to allow her to address any concerns that the officer may have had regarding her application.
Standard of Review
[13] The decision under review involves the exercise of discretion by the visa officer. In reviewing the discretionary decision of a visa officer, regard must be had to the admonition of the Supreme Court of Canada in Maple Lodge Farms v. Canada, [1982] 2 S.C.R. 2, 137 D.L.R. (3d) 558, that:
It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.
[14] In Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1, ¶ 34, the Supreme Court of Canada confirmed that it is not for the reviewing court to re-weigh the factors considered by the decision-maker.
Analysis
[15] It is true that the letter refusing Ms. Synyshyn's application for permanent residence makes no mention of there having been any consideration of her request for a substituted evaluation. However, a review of the CAIPS notes discloses that the officer was aware of her request for such an evaluation, and that her request was duly considered.
[16] The officer was aware of, and considered, Ms. Synyshyn's offer of employment in Canada, as well as the family and other support available to her in this country. Nevertheless, the officer was of the view that these factors did not provide a sufficiently compelling case as to justify the exercise of discretion in Ms. Synyshyn's favour, particularly in light of the fact that she only received 43 points on her assessment - 24 points below what was required.
[17] There is nothing in the record that would suggest that the visa officer ignored any of the evidence provided by Ms. Synyshyn, nor is there any suggestion that the officer relied on any improper considerations. What Ms. Synyshyn really takes issue with is the weight that the officer attributed to the various factors. As was noted above, it is not the task of this Court on judicial review to re-weigh the evidence that was before the visa officer.
[18] I am also not persuaded that the visa officer had any obligation to interview Ms. Synyshyn. There is no statutory entitlement to an interview, and indeed, Ms. Synyshyn concedes that an applicant for permanent residence is not automatically entitled to an interview.
[19] While there is some indication in the CAIPS notes that an interview was initially contemplated, this appears to have changed after the results of Ms. Synyshyn's language tests were received. In this regard, it should be noted that Ms. Synyshyn's original application for permanent residence indicated that she speaks and reads English fluently, and writes well in the English language. She also claimed that she could speak and read French well, and that she was able to write in French with some difficulty.
[20] As was noted earlier, Ms. Synyshyn's language testing revealed that her English language skills were limited. Moreover, at the same time that she provided the results of her English tests, she also changed her claim with respect to the extent of her French-language skills, now asserting that she had no ability whatsoever in the French language.
[21] Given these significant changes to Ms. Synyshyn's qualifications, I see nothing inappropriate or unfair about the visa officer reconsidering the decision to grant her an interview.
Conclusion
[22] For these reasons, the application is dismissed.
Costs
[23] Ms. Synyshyn seeks her costs of this application on the basis that it was not unreasonable to bring the application for judicial review, in light of the failure of the respondent to indicate in the refusal letter that her request for a substituted evaluation had been considered.
[24] In my view, this is not an appropriate case for costs. Ms. Synyshyn would have been aware as soon as she received the tribunal record that her request for a substituted evaluation had in fact been considered. Nevertheless, she carried on with her application for judicial review. Not only did she not abandon her argument regarding the alleged failure of the visa officer to properly consider her request, she also advanced an argument with respect to the failure of the officer to grant an interview to Ms. Synyshyn. This argument is not founded on there having been an apparent failure to consider the request for substituted evaluation.
[25] As a consequence, Ms. Synyshyn has not satisfied me that the application for judicial review would not have been brought had the letter addressed her request, or that she was prejudiced in any way by the omission. In the circumstances, I decline to make any award of costs.
Certification
[26] Ms. Synyshyn proposes the following question for certification:
Is an informal offer of employment prima facie evidence of the ability of an applicant to be economically established in Canada?
[27] In my view, the question is not determinative of this case. While the visa officer did not use the term 'prima facie evidence' in his analysis, it is clear that the officer was aware of Ms. Synyshyn's job offer, and considered it in deciding whether or not to exercise his discretion in her favour, but decided that, in all of the circumstances, it did not overcome the other shortcomings in her application. Therefore, even if the Court of Appeal were to answer the question in the affirmative, it would not change the outcome of this case.
[28] Moreover, the significance of or weight to be attributed to a given piece of evidence is entirely case-specific.
[29] As a consequence, no question will be certified.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is dismissed, without costs.
2. No serious question of general importance is certified.
"A. Mactavish"
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6564-04
STYLE OF CAUSE: MARIYA SYNYSHYN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: September 13, 2005
REASONS FOR ORDER
AND ORDER BY: MACTAVISH J.
DATED: September 26, 2005
APPEARANCES:
Nancy Miles Elliott For the Applicant
Catherine Vasilaros For the Respondent
SOLICITORS OF RECORD:
Nancy Miles Elliot
Barrister and Solicitor
Markham, Ontario For the Applicant
John H. Sims, Q.C.
Deputy Attorney General of
Canada For the Respondent