Toronto, Ontario, this 23rd day of November, 2005
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by an immigration officer of the Canadian Consulate General in Detroit, Michigan (the "officer"), dated November 24, 2004, which refused to grant the applicant a permanent resident visa in the skilled worker category.
[2] The applicant seeks:
1. an order quashing the decision of the officer;
2. an order directing the immigration section of the Canadian Consulate General in Detroit, Michigan to grant the applicant a permanent resident visa on the basis that the applicant has obtained sufficient points for immigration to Canada as a skilled worker; and
3. in the alternative to 2 above, an order remitting the matter back for redetermination by a different immigration officer.
Background
[3] Juan Hou (the "applicant") is a citizen of China. In October 2000, the applicant obtained, from the Canadian Embassy in China, a student permit issued under the former Immigration Act, R.S.C. 1985, c. I-2 (the "student permit"). In her application for the student permit (the "student permit application"), the applicant submitted evidence that she had completed a degree from Kaifeng University, which she attended from 1996 to 1999. Also, she presented no evidence of employment in China.
[4] On November 30, 2000, the applicant entered Canada on the student permit. She enrolled in and completed a two-year accounting program at Centennial College in Toronto. Following her graduation from the program in September 2001, the applicant obtained a work permit to remain in Canada.
[5] In 2002, the applicant hired an immigration consultant to file an application for permanent residence under the federal skilled worker class. On the application for permanent residence (the "permanent residence application"), the applicant stated that she had a three-year diploma from Xi'an Translator Training College in Xian, China, for her studies in international trade from 1996 to 1999. She also stated that she was employed as an export business clerk in Xixiang, China from July 1999 to November 2000.
[6] On November 24, 2004, the applicant was interviewed by the officer at the Canadian Consulate General in Detroit, Michigan. The officer refused to grant the permanent residence application, and in a letter dated November 24, 2004, the officer explained her reasons for doing so. This is the judicial review of the officer's decision.
Reasons of the Officer
[7] Subsection 12(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act"), provides that a foreign national may be selected as a member of an economic class on the basis of their ability to become economically established in Canada. Subsection 75(1) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (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. To qualify for a permanent resident visa under the federal skilled worker class, the applicant must satisfy the employment-related requirements set out in subsection 75(2) of the Regulationsas well as the selection criteria set out in subsection 76(1) of the Regulationsrelating to education, proficiency in the official languages of Canada, work experience, age, arranged employment and adaptability.
[8] The officer determined that the applicant was not credible because there were significant discrepancies between the evidence that the applicant had submitted for the student permit application and the evidence that she had submitted for the permanent residence application. In the student permit application, the applicant presented evidence that she had graduated from Kaifeng University and presented no evidence that she had been employed in China. However, for the permanent residence application, the applicant denied ever attending Kaifeng University and presented evidence that she had graduated from Xi'an Translator Training College. She also claimed that she had been employed as an export business clerk in China.
[9] As a result of the adverse credibility finding, the officer was not convinced that the applicant had any work experience. The officer was therefore not satisfied that the applicant met the requirement under paragraph 75(2)(a) of the Regulations which provides that a skilled worker must have at least one year of continuous full-time work experience, or the equivalent in part-time work experience, within the ten years preceding the date of the application. On that basis alone, the officer determined that she must refuse the permanent residence application under subsection 75(3).
[10] The officer also considered whether the applicant met the selection criteria in subsection 76(1). The officer decided that she was unable to award the applicant any points for work experience. The officer awarded 20 points for education for the applicant's completion of a two-year diploma program at Centennial College, but gave no credit for the applicant's alleged diploma from Xi'an Translator Training College. Overall, the officer found that the applicant had obtained an insufficient number of points to qualify for immigration to Canada under the criteria set out in subsection 76(1). The applicant was awarded 51 points, whereas the minimum number of points for a skilled worker is 67 units.
[11] Accordingly, the officer concluded that the applicant did not meet the requirements for immigration to Canada.
Issues
[12] The applicant raised the following issues in her memorandum of argument:
1. Did the officer fail to observe a principle of natural justice?
2. Did the officer fail to exercise the jurisdiction of her office?
3. Did the officer err in law in making the decision?
4. Did the officer base her decision on an erroneous finding of fact that she made in a capricious manner?
[13] I will reword the issue as follows:
Did the officer err in refusing the permanent residence application?
Applicant's Submissions
[14] The applicant submitted that the officer did not properly exercise the jurisdiction of her office under subsections 76(3) and (4) of the Regulations because the officer had rendered a decision detrimental to the applicant's interest without the concurrence of a second officer.
[15] The applicant submitted that the officer based her decision on an erroneous finding of fact that the applicant had only two years of post-secondary education and no work experience. The applicant submitted that she had legitimate and reasonable explanations for the inconsistencies on her two applications, and the officer did not provide the applicant a fair opportunity to be heard. The applicant explained that she had hired Kaifeng University (the "agent") to file the student permit application on her behalf. The applicant alleged that at the interview of November 24, 2004, she was surprised to learn that the officer had a record of her transcript from Kaifeng University. The applicant alleged that she had no idea what kind of documents were filed by the agent, and that the agent included some false documents in the student permit application without informing her.
Respondent's Submissions
[16] The respondent submitted that an immigration officer, as a primary finder of fact, is in the best position to evaluate an applicant's demeanour, reactions and responses to questions. Therefore, an immigration officer's findings are to be accorded considerable deference (see Hamid v. Canada(Minister of Citizenship and Immigration), [1997] F.C.J. No. 1427 (T.D.) (QL) at paragraph 6). In the present case, the officer had the benefit of observing the applicant's demeanour and considering her responses first hand. The officer, upon weighing the evidence, did not consider the applicant to be credible or her documents from China to be reliable. The respondent submitted that this was a sufficient basis for the officer to decide that she could not credit the applicant's alleged education and work experience in China.
[17] The respondent submitted that the officer did not breach any duty of fairness as she had given the applicant an opportunity to respond to the blatant contradiction in the evidence concerning the applicant's education and work experience.
[18] The respondent submitted that the applicant misread subsections 76(3) and (4) of the Regulations when she alleged that the officer did not properly exercise the jurisdiction of her office. The respondent submitted that subsections 76(3) and (4) have no application to this case because the officer did not choose to substitute for the selection criteria under subsection 76(3) but explicitly concluded in her decision that, "I am of the opinion that the point total is a sufficient indicator of your ability to become economically established in Canada".
Relevant Statutory Provisions
[19] Sections 75 and 76 of the Regulations provide:
| 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.
(2) A foreign national is a skilled worker if
(a) within the 10 years preceding the date of their application for a permanent resident visa, they have at least one year of continuous full-time employment experience, as described in subsection 80(7), or the equivalent in continuous part-time employment in one or more occupations, other than a restricted occupation, that are listed in Skill Type 0 Management Occupations or Skill Level A or B of the National Occupational Classification matrix;
(b) during that period of employment they performed the actions described in the lead statement for the occupation as set out in the occupational descriptions of the National Occupational Classification; and (c) during that period of employment they performed a substantial number of the main duties of the occupation as set out in the occupational descriptions of the National Occupational Classification, including all of the essential duties.
(3) If the foreign national fails to meet the requirements of subsection (2), the application for a permanent resident visa shall be refused and no further assessment is required.
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 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) An evaluation made under subsection (3) requires the concurrence of a second officer. |
|
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 cherchent à s'établir dans une province autre que le Québec.
(2) Est un travailleur qualifié l'étranger qui satisfait aux exigences suivantes:
a) il a accumulé au moins une année continue d'expérience de travail à temps plein au sens du paragraphe 80(7), ou l'équivalent s'il travaille à temps partiel de façon continue, au cours des dix années qui ont précédé la date de présentation de la demande de visa de résident permanent, dans au moins une des professions appartenant aux genre de compétence 0 Gestion ou niveaux de compétences A ou B de la matrice de la Classification nationale des professions - exception faite des professions d'accès limité;
b) pendant cette période d'emploi, il a accompli l'ensemble des tâches figurant dans l'énoncé principal établi pour la profession dans les descriptions des professions de cette classification;
c) pendant cette période d'emploi, il a exercé une partie appréciable des fonctions principales de la profession figurant dans les descriptions des professions de cette classification, notamment toutes les fonctions essentielles.
(3) Si l'étranger ne satisfait pas aux exigences prévues au paragraphe (2), l'agent met fin à l'examen de la demande de visa de résident permanent et la refuse.
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 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 à l'alinéa (1)a).
(4) Toute décision de l'agent au titre du paragraphe (3) doit être confirmée par un autre agent. |
Analysis and Decision
[20] The applicant's permit application contained different education and work experience from her permanent residence application. The student permit application stated that she had completed a degree from Kaifeng University, for her studies from 1996 to 1999, whereas the permanent residence application stated that she completed a diploma from Xian Translator Training College during the same time period. The applicant also stated in her permanent residence application that she had worked for one year as an export business clerk in China.
[21] The officer accepted that the applicant had six months of employment as an account assistant in Canada following her graduation from Centennial College. However, as this was less than the minimum requirement of one year of experience contained in the definition of "skilled worker" in paragraph 75(2)(a) of the Regulations, the officer decided that the applicant was not entitled to a permanent residence visa.
[22] The officer, in essence, did not believe that the applicant had received the two year diploma and the work experience in China because the officer did not find the applicant to be credible. The officer did not utilize subsection 40(1) of the Act as suggested by the applicant.
[23] The standard of review to be applied to decisions on credibility is patent unreasonableness. I am of the view that the officer's decision on the issue of the applicant's credibility was not patently unreasonable. The officer reached this decision based on the discrepancies in the evidence. She also noted, but did not accept, the applicant's explanation that the misinformation was due to the activity of her consultant or her agent. Therefore, based on the finding of a lack of credibility, and the finding that the applicant did not meet the requirement of paragraph 75(2)(a) of the Regulations, the officer did not make a reviewable error in refusing to grant the permanent residence visa.
[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.
[25] The applicant also submitted that the officer was biased as she told the applicant that she was "stupid" for signing a blank application form. This allegation was first brought forward in the applicant's supplementary affidavit. The officer claimed she did not make this statement to the applicant. Since this allegation was not in the first affidavit filed by the applicant, I am not prepared to find bias on the part of the officer.
[26] The applicant tendered receipts at the hearing to show that a consultant was retained, but these receipts were not part of the record before the officer. I am not prepared to admit those receipts because they are not necessary, since it is not in dispute that the applicant retained a consultant, and because the receipts were not before the officer when she made her decision.
[27] The application for judicial review is therefore dismissed.
[28] Neither party wished to submit a proposed serious question of general importance for my consideration for certification.
ORDER
IT IS ORDERED that the application for judicial review is dismissed.
"John A. O'Keefe"
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-251-05
STYLE OF CAUSE: JUAN HOU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 26, 2005
APPEARANCES:
Jason Huang For the Applicant
Kristina Dragaitis For the Respondent
SOLICITORS OF RECORD:
Wen Wu Law Firm
Toronto, Ontario For the Applicant
John H. Sims, Q.C. For the Respondent
Deputy Attorney General of
Canada