Category: Skilled worker

Zare v. Canada (Citizenship and Immigration), 2010 FC 1024, This case as it deals with fairness and receipt of emails the court sets out the proper test for determining whether or not an email sent in the processing of applications for permanet residence [37] In the above cases, the issue turns on a finding of fault by one of the parties. Where the visa officer could not prove that he had sent notice, the Respondent is to bear the risk for missed communications. Ilahi Where the visa officer had proved that he had sent the notice, but the communication was missed due to an error on the part of the applicant (such as discontinuance of an email address or blocking by spam filter), the applicant is to bear the risk. Kaur

The Court found that a spouse who had studied at two different institutions for two years ought to result in points for adaptability as a skilled worker applicant.

The Court set aside a decision refusing to exercise positive discretion holding that the officer had failed to consider all relevant information and took into account irrelevant factors: 14 I am of the view that the applicant's submissions provided good reasons for the exercise of the discretion under subsection 76(3) of the Regulations. The evidence in this case, does not satisfy me that the visa officer and immigration program manager gave sufficient consideration to the appli-cant's (1) extensive work experience in Canada, (2) significant involvement in community organiza-tions in Canada. (3) arranged employment, (4) knowledge of Canadian culture and customs, (5) that the applicant had lived in Canada for eight years without relying on government assistance and (6) the fact that the Vice-President of St. Regis Crystal Inc., had declared that English language profi-ciency was not a significant consideration. 15 I agree with the applicant that in considering the substituted evaluation, the visa officer did not demonstrate that he looked beyond the selection criteria listed at subsection 76(1) of the Regula-tions (i.e. education, language, experience, age, arranged employment, adaptability). I am unable to find in the evidence any indication that the visa officer's substituted evaluation broadly assessed the likelihood of the ability of the applicant to become economically established in Canada according to his set of circumstances. "The clear intent of subsection 76(3) is to allow the visa officer to substi-tute their evaluation taking into account a number of factors, and not just the factors listed in para-graph 76(1)(a) as contended by the respondent:" Choi v. Canada (Minister of Citizenship and Im-migration), 2008 FC 577, [2008] F.C.J. No. 734, at para. 20.

Jogiat v MCI 2009 FC 815 the Court set aside a decision holding that the officer had failed to provide adequate reasons for his conclusions that discretion was not warranted. the court held that if a request is made the officer must provide clear reasons for the refusal taking into account all relevant information.

in Hussain v MCI 2009 FC 209 the Court set aside a decision where an officer exercise positive discretion to refuse an application where the applicant had received sufficient points. The officer had concluded that the applicant did not intend to settle in Canada and had ignored the large settlement funds. The Court set aside the decision holding that the officer had considered irrelevant facts and ignored relevant ones.

In Espinosa v MCI 2009 FC 609 the Court set aside a refusal of a skilled worker application due to the failure of the officer to consider relevant information in the exercise of his discretion under 76 (3). The Court noted: I would note that the officer appears to have failed to consider the settlement funds that Mr. Espinosa has accumulated ($270,670.00), his family connections in Canada and his language skills, in concluding that it would be inappropriate to grant his application. These factors are relevant to Mr. Espinosa's capacity to become economically established in Canada and should inform the exercise of discretion under s. 76(3).

Esguerra v MCI 2008 FC 413 clearly states that the exercise of discretion is exceptional the Court upheld the refusal to exercise discretion where the applicant had limited English and where the applicant was seven points short of the required total: 15 With respect to the applicant's contention that the visa officer should have used her discretion and substituted her own evaluation for the criteria set out in paragraph 76(1)(a) of the IRPR, I would make the following comments. The jurisprudence under previous similar legislation held that the visa officer's residual discretion should be decisive only in cases that present unusual facts, or where the applicant has come close to obtaining the required units of assessment: Chen v. Canada (Minister of Citizenship and Immigration) (1999), 166 F.T.R. 78 at para. 23 (F.C.); Kim v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1136, 2002 FCT 857. I see no reason to depart from that case law in the present instance. 16 The discretion under subsection 76(3) of the IRPR is clearly exceptional and applies only in cases where the points awarded are not a sufficient indicator of whether the skilled worker will become economically established. The fact that the applicant or even this court would have weighed the factors differently is not a sufficient ground for judicial review. 17 The applicant obtained only 60 points, and was therefore 7 points short of the required 67 points. It cannot be said that he came close to the minimum units established by the IRPR. Moreover, there is no evidence on the record that the language test is not a fair reflection of his ability in English. The applicant was given an opportunity to update his file, but didn't provide any evidence that his scores could be displaced. It is true that he successfully completed a five-year physiotherapy program in English; but that was in 1999, some seven years before he took the IELTS test.18 It was not unreasonable for the visa officer to conclude that the points reflected the applicant's ability to establish himself economically in Canada. Not only is there no evidence that the language test is not a reliable indicator of his proficiency in English, but there is nothing in the record tending to demonstrate that other factors were not sufficiently taken into account. As already mentioned, his credentials, financial establishment and professional experience have all been taken into account, and I may add that he appears to have been quite favorably evaluated especially with respect to his professional experience. As to the fact that he has family in Canada, I do not think that it is sufficient to displace the score he received on the point system.

In the case of Debnath v MCI 2010 FCJ 1110. The Applicant a doctor had sufficient points but the officer used substituted evaluation to reject the application because the applicant had no clear concrete plans to show how he would be able to get licensed as a doctor in Canada. The Court upheld the decision noting: 16 In that regard, the Visa Officer's decision to perform a substituted evaluation was reasonable. The Applicant's points were on the cusp of acceptability and the Applicant's plans to become economically established were "cloudy" at best. 17 The Visa Officer's ultimate decision to deny the visa was likewise reasonable. The Applicant had failed to establish on an objective basis how he would upgrade and qualify as a doctor in Canada; his only evidence on this point was an indication that such an upgrade of the qualification was possible, and his own subjective evaluation that he was likely to succeed. In essence, this case turned on the sufficiency of the evidence, and the Applicant failed to put forward sufficient evidence to convince the Visa Officer that he was likely to become economically established.

In the recent decision of Xu v MCI 2010 FCJ 483 the Court considered the relevance of an amendment to the regulations to the exercise of positive discretion. The regulations were changed so that the substituted evaluation was only with respect to whether or not the points assessed which are proper indication of whether or not the person would be successfully established: 28 Section 76(1), as it then read, (prior to the amendment) made it clear that there were two parts to the assessment as to whether a candidate would become economically established in Canada: (a) points awarded for the six factors set out, and (b) the minimum settlement funds held or employment that the candidate had arranged. Under that version of the legislation, when the candidate did not have the necessary point score, it provided that the "officer may substitute for the criteria set out in subsection (1), their evaluation of the likelihood of the ability to become economically established in Canada." In short, the officer was substituting his or her evaluation for all of the criteria set out above under both (a) and (b). Given that one such factor was settlement funds, Justice Heneghan, correctly in my view, held that the officer must consider the candidate's settlement funds when determining whether or not to substitute his opinion….. 30 What is evident in the current section 76(3) is that the officer may only substitute his or her opinion "for the criteria set out in subsection 1(a)" which are the point factors, he or she cannot substitute his or her opinion for the factors set out in subsection 1(b), the settlement funds or arranged employment. 31 Parliament chose not only to make settlement funds or arranged employment a minimum requirement but also removed those considerations from the list of criteria for which an officer may substitute his or her opinion. It might reasonably be suggested that it did so because it was of the view that settlement funds, beyond a minimum level, are not indicative of the likelihood of economic establishment. Section 76(1)(b) of the Regulations points to Parliament being concerned with how skilled workers will meet their immediate economic needs upon arriving in Canada. If they have arranged employment they will have an income flow; but if they do not, then they need a minimum amount of resources to act as a buffer until they find employment. Presumably, these buffer resources are not included in the point calculation because eventually they will run out without employment, and they say nothing of whether a foreign national will find employment. In contrast, an arranged offer of employment is strong evidence that a foreign national is sufficiently skilled to compete in the Canadian job market for their specific skill, which is why points are awarded for pre-arranged employment. 32 In my opinion, for this Court to import the requirement that these funds must be considered by an officer is to overstep the proper role of the Court. I read section 76(3) of the Regulations as not requiring consideration of the settlement funds available to the applicant; however, that is not to say that an officer cannot consider the applicant's settlement funds. Thus in Xu the Court held that as a result of the change in regulations the officer was no longer required to consider settlement funds when exercising positive discretion. However, if a request was made that they be considered as a factor in the exercise of discretion the officer was still required to do so. In Xu the Court found that the very generic and general nature of the request was insufficient to require the officer to specifically consider settlement funds and dismissed the application.

In Choi v MCI 2008 FCJ 734 the Court set aside a refusal to exercise positive discretion. The request was based on three factors—the job offer that the applicant had received in Canada, th opinion of the principal at the school where the job had been offered that the applicant would be able to fulfill the job despite her language limitations and the large settlement funds. The Court found error in the failure of the officer to consider these factors: 21 I agree with Madam Justice Heneghan's conclusion that any consideration under subsection 76(3) should not be limited to the assessment of points, but rather should be open to all factors identified in subsection 76(1), including the settlement funds possessed by the applicant. In this case, there is no evidence that the visa officer considered those funds in refusing to exercise his discretion to substitute his evaluation. 22 The visa officer had received a strong letter from the school principal that the school wants to hire the applicant and is confident that her language skills will be satisfactory in short order. I note that the principal of the school has personally met with the applicant to make this assessment. The applicant has $699,000 to bring to Canada to become established, to which no reference was made by the visa officer. The Court concludes that the decision under subsection 76(3) of the Regulations was not reasonable since that decision gave no weight to the strong letter from the school or to the $699,000 that the applicant would bring to establish herself in Canada.