Ottawa, Ontario, September 1, 2006
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
OVERVIEW
[1] 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…
(Maple Lodge Farms v. Canada, [1982] 2 S.C.R. 2, [1982] S.C.J. No. 57 (QL).)
JUDICIAL PROCEDURE
[2] This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), for judicial review of the decision of an Immigration Officer dated November 3, 2005, wherein the Applicant’s application for a permanent resident visa as a skilled worker was refused.
BACKGROUND
[3] The Applicant, Mr. Miguel Mbala, is a citizen of Angola. In 1999, he applied for refugee protection in Canada which was refused. He was then removed from Canada to the United States.
[4] While he was in Canada, he was employed in construction work. His application for a permanent resident visa as a skilled worker is based on that employment.
[5] Mr. Mbala prepared the application without legal assistance and was self-represented throughout the process. In his application, he indicated that he had a job offer approved by HRDC. From the evidence which was before the Immigration Officer, this does not appear to be correct.
[6] Mr. Mbala was interviewed by an Immigration Officer on November 3, 2005. At this time, the Immigration Officer asked to see the letter from HRDC. Mr. Mbala did not have it with him, he asked for an opportunity to obtain the letter. The Immigration Officer refused this request.
DECISION UNDER REVIEW
[7] The Immigration Officer denied Mr. Mbala’s application for a permanent resident visa as a skilled worker because she felt that it did not meet the requirements of the IRPA and the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations).
[8] More specifically, the Immigration Officer was not satisfied that Mr. Mbala had at least one year full-time experience in an occupation listed in Skill Type O Management Occupations or Skill Level A or B of the National Occupational Classification, according to the requirements set out in section 75 of the Regulations.
ISSUES
[9] There are two issues in the present case:
1. Whether the Immigration Officer erred in refusing Mr. Mbala’s application for a permanent resident visa as a skilled worker?
2. Whether the Immigration Officer committed a breach of procedural fairness in refusing to grant Mr. Mbala’s request for an opportunity to obtain a letter from HRDC approving his job offer?
ANALYSIS
Statutory scheme
[10] Subsection 12(2) of the IRPA states that the factor to be considered in the selection of members of the economic class is their ability to become economically established in Canada:
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12. (2) 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. |
12. (2) La sélection des étrangers de la catégorie « immigration économique » se fait en fonction de leur capacité à réussir leur établissement économique au Canada. |
[11] Section 75 of the Regulations discusses the criteria which an applicant must satisfy in order to be deemed a federal skilled worker
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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 O 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. |
75. (1) Pour l’application du paragraphe 12(2) de la Loi, la catégorie des travailleurs qualifies (fédéral) est une catégorie règlementaire 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 O 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 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. |
[12] Section 76 of the Regulations enumerates the factors to be considered in order to determine if a federal skilled worker applicant will be able to become economically established in Canada:
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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 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. |
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 qualifies (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.
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Standard of review
[13] The issue of determining whether Mr. Mbala meets the requirements of a skilled worker is a question of fact and law; it involves examining Mr. Mbala’s work experience in order to determine if it corresponds to the criteria and description set out in the Regulations. The appropriate standard of review is therefore that of reasonableness simpliciter (Nehme v. Canada (Minister of Citizenship and Immigration), 2004 FC 64, [2004] F.C.J. No. 49 (QL), at paragraphs 12-14 and 17):
… 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. …
(Maple Lodge, above.)
[14] As for the issue of whether there was a breach of procedural fairness, this Court must examine the particular circumstances of the case in order to determine if the decision-maker respected the principles of procedural fairness. If this Court determines that there was indeed a breach, it must return the decision to the decision-maker for re-determination. (Thamotharem v. Canada (Minister of Citizenship and Immigration), 2006 FC 16, [2006] F.C.J. No. 8 (QL), at paragraph 15; Demirovic v. Canada (Minister of Citizenship and Immigration), 2005 FC 1284, [2005] F.C.J. No. 1560 (QL), at paragraph 5; Trujillo v. Canada (Minister of Citizenship and Immigration), 2006 FC 414, [2006] F.C.J. No. 595 (QL), at paragraph 11; Bankole v. Canada (Minister of Citizenship and Immigration), 2005 FC 1581, [2005] F.C.J. No. 1942 (QL), at paragraph 7.)
Whether the Immigration Officer erred in refusing Mr. Mbala’s application for a permanent resident visa as a skilled worker?
[15] The Immigration Officer’s decision to refuse Mr. Mbala’s application was based on the fact that Mr. Mbala’s occupation did not fall under any of the categories listed in Skill Type O Management Occupations or Skill Level A or B of the National Occupational Classification matrix. This was fatal to Mr. Mbala’s application. He did not challenge this conclusion.
[16] According to subsection 75(2) of the Regulations, an applicant must have at least one year of continuous full-time experience, or the equivalent, in an A, B or O category (as listed in the National Occupational Classification) within the ten years preceding the application date. If an applicant does not meet the minimum requirements, subsection 75(3) of the Regulations stipulates that “the application for a permanent resident visa shall be refused and no further assessment is required.” An applicant who does not have the minimum experience in an A, B or O category cannot overcome this requirement with a letter from the HRDC.
[17] Thus, once the Immigration Officer determined that Mr. Mbala did not have experience in one of the listed categories – which he does not dispute – the HRDC letter was not relevant or material to the decision, and the Immigration Officer was under no obligation to grant Mr. Mbala’s request for an extension of time to obtain the letter.
[18] Mr. Mbala had the onus to satisfy the Immigration Officer that he did, in fact, meet the requirements set out in the Regulations. The evidence submitted, however, did not convince the Immigration Officer that Mr. Mbala’s work experience did meet these requirements. This decision was therefore not unreasonable.
Whether the Immigration Officer committed a breach of procedural fairness in refusing to grant Mr. Mbala’s request for an opportunity to obtain a letter from HRDC approving his job offer?
[19] There was no breach of procedural fairness in refusing to give him an opportunity to obtain an HRDC letter, which Mr. Mbala had claimed to have already when he completed his application. In effect, Mr. Mbala made a material misrepresentation in his application for permanent residence by indicating that he already had such a letter from HRDC, when he, in fact, did not possess.
[20] The Immigration Officer was not obligated to give Mr. Mbala an opportunity to obtain a letter from the HRDC. Contrary to Mr. Mbala’s contention, the Immigration Officer did not breach the principles of procedural fairness. It is Mr. Mbala who made a false declaration in his application, even though he attested that the information provided was complete and truthful.
[21] The onus is on the applicant to satisfy the Immigration Officer that he meets the requirements of the application. If the applicant makes false statements on his application, the Immigration Officer does not have an obligation to offer the applicant a second opportunity to satisfy the requirements. As this Court has held in Prasad v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 453 (QL), at paragraph 7:
The onus is on the applicant to satisfy the visa officer fully of all the positive ingredients in the applicant’s application. It is not for the visa officer to wait and to offer the applicant a second, or several opportunities to satisfy the visa officer on necessary points which the applicant may have overlooked. The visa officer exhibited no error of law, egregious error of fact, nor yet any unfairness on this record. One must remind oneself that even if the Court might have come to a different conclusion, the purpose of these proceedings is to determine whether the visa officer went off the rails according to the classical criteria for successful judicial review. …
[22] As was held in Madan v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1198 (QL), at paragraph 6, since the onus is on the applicant, the Immigration Officer does not have to ask for additional material. It is up to the applicant to provide all the necessary material in order to satisfy the Immigration Officer that he or she does meet the relevant requirements:
It is well established that it is the responsibility of a visa applicant to put before the officer all the material necessary for a favourable decision to be made. Hence, visa officers are under no general legal duty to ask for clarification or for additional information before rejecting a visa application on the ground that the material submitted was insufficient to satisfy the officer that the applicant had met the relevant selection criteria.
[23] Further, since it does not seem that Mr. Mbala had made any efforts to obtain the HRDC letter, it is speculative whether he would have, in fact, ultimately obtained such a letter. Moreover, even if he had obtained such a letter, it is speculative whether this letter would have made a difference to the Immigration Officer’s decision.
[24] Indeed, Justice Judith Snider stated, in Bellido v. Canada (Minister of Citizenship and Immigration), 2005 FC 452, [2005] F.C.J. No. 572 (QL), at paragraph 21:
HRDC validation is not, as the Applicant submits, sufficient evidence of arranged employment. Such validation does not remove the obligation of the Visa Officer to assess whether the Applicant is able to perform the job described in the validation.
CONCLUSION
[25] As the decision reached by the Immigration Officer was not unreasonable and there was no breach of procedural fairness, this Court will not interfere with the decision. This application for judicial review is therefore dismissed.
Obiter
In any subsequent application, submissions call for due attention in recognition that a technical misunderstanding may have occurred on the part of the Applicant, acknowledging full well that the decision of the Immigration officer, in this case, was fully within the framework of the legislation and jurisprudence.
JUDGMENT
THIS COURT ORDERS that
1. The application for judicial review be dismissed;
2. No serious question of general importance be certified.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-7287-05
STYLE OF CAUSE: MIGUEL MBALA v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: August 29, 2006
APPEARANCES:
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Mr. Micheal Crane
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Ms. Angela Marinos
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SOLICITORS OF RECORD:
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MICHEAL CRANE BARRISTER AND SOLICITOR Toronto, Ontario |
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JOHN H. SIMS, Q.C. Deputy Attorney General of Canada
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