Date: 20240911
Docket: IMM-8904-23
Citation: 2024 FC 1427
Toronto, Ontario, September 11, 2024
PRESENT: The Hon Mr. Justice Henry S. Brown
BETWEEN: |
SARABHDEEP KAUR |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
I. Nature of the Matter
[1] This is an application under s 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] for judicial review of a decision of an Immigration Officer [Officer] of Immigration, Refugees and Citizenship Canada [IRCC] dated June 30, 2023 [Decision]. The Officer refused the Applicant’s application for permanent residence in Canada as a member of the Canadian Experience Class, established under s 87(1) of the Immigration and Refugee Protection Regulations, SOR/ 2002-227 [Regulations], because the Applicant did not meet the work experience requirement. This finding was made because her Canadian work experience was accumulated under the work permit issued to her as a self-employed person or entrepreneur. Self employed work does not qualify under the Canadian Experience Class. For that reason, this application must be dismissed.
II. Facts
[2] The Applicant is a 28-year-old citizen of India. She was invited to and applied for permanent residence in Canada as a member of the Canadian Experience Class in November 2022.
[3] She claimed Canadian Work Experience for working with a numbered company since April 20, 2021 to the date of application and provided a verification letter of employment in support of her application for permanent resident visa. It is not disputed that her work experience was self-employed. Self-employed work is expressly excluded from the Canadian Work Experience Regulations.
III. Issues
[4] The Applicant raises the following issues:
1.Whether the immigration officer committed a reviewable error in their decision to refuse the Applicant’s permanent resident visa application?
2.Did the Officer commit a reviewable error by deciding that the work experience gained as a self-employed person or as an entrepreneur does not qualify for experience under the Canadian Experience Class?
3.Did the Officers reviewable errors render the decision unreasonable?
[5] The Respondent submits the Applicant has failed to demonstrate any reviewable error.
[6] Respectfully, the issue is whether the decision is reasonable.
IV. Decision under Review
A. Procedural Fairness Letter
[7] The Applicant was provided with a Procedural Fairness Letter [PF Letter] on April 4, 2023, outlining the Officer’s “serious concerns”
with the Applicant’s application. The Officer stated:
I note that you have declared NOC 0013 for your Canadian work experience. I also note that the duties included on LOE do not appear to indicate you meet the lead statement of NOC 0013 i.e. that you are planning, organizing, directing, controlling and evaluating, through middle managers, the operations of your organization in relation to established objectives.
I also note that the address provided for your employment location is a residential apartment building.
I also note that you are making a gross salary of around CAD$18,000/year; your salary appears comparatively low for your designated job title. Open source search shows the average salary for an executive director in Ontario is between $48,000 and $132,000 annually- usually at the higher end of the scale. It appears you are making less than minimum wage as an executive director.
Based on the documentation before me, I am not currently satisfied you currently have one year of Canadian work experience under NOC 0013 as an executive director.
[8] The Applicant issued a reply on May 26, submitting that 1) the Applicant performed substantial duties in her position, 2) that employment location does not prelude the applicant from having qualifying work experience under the Canadian Experience Class, 3) there is no minimum wage requirement for qualifying work experience, per the IRCC website, and 4) the Applicant also meets the requirements of the Federal Skilled Worker Class pursuant to s 75(1) and s 75(2) of the Regulations.
B. IRCC Decision
[9] The Decision states:
Your application was assessed based on the occupation(s) which you identified as part of your skilled work experience in Canada:
I am not satisfied that you meet the skilled work experience requirement as your Canadian work experience was accumulated under your previous work permit, issued under exemption code C11; C11 being the administrative LMIA exemption code that covers the work of certain foreign nationals entering Canada to run their own business.
Work experience gained as a self-employed person or as an entrepreneur does not qualify for experience under the Canadian Experience Clas [sic].
[10] Accordingly, per subsection 10.3(1)(e) and 11.2 of the IRPA, the Officer refused the Applicant’s permanent residence application.
V. Relevant Provisions
[11] The Regulations outline membership requirements in the Canadian Experience Class at s 87.1(2), the relevant provision being:
|
|
|
|
|
|
|
|
|
|
|
|
[12] Importantly however, the Regulations state at s 87.1(3) that self-employment shall not be included:
|
|
|
|
|
|
|
|
[13] Further, section 11.2 of the IRPA states:
|
|
|
|
|
|
|
|
|
|
|
|
VI. Standard of Review
[14] The parties submit the standard of review is reasonableness, and I agree. However, the Applicant also suggests the Decision is unfair—procedural unfairness is evaluated on a standard of correctness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 SCR 653 [Vavilov] at para 23).
[15] With regard to reasonableness, in Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67, issued at the same time as the Supreme Court of Canada’s decision in Vavilov, the majority per Justice Rowe explains what is required for a reasonable decision, and what is required of a court reviewing on the reasonableness standard:
[31] A reasonable decision is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (Vavilov, at para. 85). Accordingly, when conducting reasonableness review “[a] reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with ‘respectful attention’ and seeking to understand the reasoning process followed by the decision maker to arrive at [the] conclusion” (Vavilov, at para. 84, quoting Dunsmuir, at para. 48). The reasons should be read holistically and contextually in order to understand “the basis on which a decision was made” (Vavilov, at para. 97, citing Newfoundland Nurses).
[32] A reviewing court should consider whether the decision as a whole is reasonable: “what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review” (Vavilov, at para. 90). The reviewing court must ask “whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov, at para. 99, citing Dunsmuir, at paras. 47 and 74, and Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, at para. 13).
[33] Under reasonableness review, “[t]he burden is on the party challenging the decision to show that it is unreasonable” (Vavilov, at para. 100). The challenging party must satisfy the court “that any shortcomings or flaws relied on ... are sufficiently central or significant to render the decision unreasonable” (Vavilov, at para. 100).
[Emphasis added]
VII. Submissions and Analysis
[16] The Applicant submits the Decision is unreasonable and unfair for not considering the work experience the Applicant gained on a work permit under exception code C11. The Applicant submits she performed “substantially similar duties”
as those outlined under the National Occupation Classification [NOC] 0013 in this role and the Officer overlooked the material evidence and information submitted by the Applicant in their Decision.
[17] The Applicant further submits the concerns raised in the PF Letter are not dealt with in the Decision, and largely replicates the arguments made in the Applicant’s response to the PF Letter.
[18] With respect, these arguments are not persuasive. The core fact in this case is that the work experience relied upon by the Applicant was self-employment. This is nowhere denied and is a critical constraining fact. It is clear on the record that the class in respect of which the Applicant was invited to apply specifically and expressly excluded periods of self-employment: by virtue of s 87.1(3)(b) of the Regulations. Therefore the Decision is not only reasonable, but is the only reasonable conclusion an officer could make in this case. On this basis this application must be dismissed.
[19] The Officer was under no duty to inform the Applicant that s 87.1(3)(b) of the Regulations required them to dismiss her application because self-employed work was excluded. The legislation, in this case the Regulations, is public legislation where this specific exclusion is expressly laid out. That was or should have been known to the Applicant at the outset. In my view there was no need for the Officer to send a PF letter on such a plain and obvious flaw in her application, and with respect, judicial intervention is not warranted in that respect.
[20] I note among other things the Applicant also argues the Officer fettered their decision. While an officer’s fettering of their discretion may result in judicial review of a decision made under a Ministerial policy or program, the doctrine of fettering does not seem available in respect of legislated criteria whether established by Act of Parliament, or as in this case, by Order in Council legislating the Regulations to be applied by the Officer. I note no attack was made on the Regulations.
[21] The Applicant also submits she should have been considered and approved under the Federal Skilled Worker Class. However there is no merit in this assertion for two reasons. First, she was not invited to apply under that Class, she was only invited to apply under the Canadian Experience Class. Secondly she did not apply under Federal Skilled Worker Class. I am unable to see any unreasonableness in the Officer not considering her under a Class in respect of which no application was made, and for which she did not receive an invitation to apply.
VIII. Conclusions
[22] Therefore this application must be dismissed.
IX. Certified question
[23] Neither party proposed a question of general importance for certification and none arises.
JUDGMENT in IMM-8904-23
THIS COURT’S JUDGMENT is that this application for judicial review is dismissed, no question is certified and there in no order as to costs.
"Henry S. Brown"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET:
|
IMM-8904-23 |
STYLE OF CAUSE:
|
SARABHDEEP KAUR v THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
PLACE OF HEARING:
|
HELD BY WAY OF ZOOM VIDEOCONFERENCE |
DATE OF HEARING:
|
SEPTEMBER 10, 2024 |
JUDGMENT AND REASONS:
|
BROWN J.
|
DATED:
|
SEPTEMBER 11, 2024
|
APPEARANCES:
Amit Vinayak |
FOR THE APPLICANT |
Asha Gafar |
FOR THE RESPONDENT |
SOLICITORS OF RECORD:
Amit Vinayak Law Office Barrister & Solicitor Brampton, Ontario |
FOR THE APPLICANT |
Attorney General of Canada Toronto, Ontario |
FOR THE RESPONDENT |