[2014] 1 F.C.R. D-7
Citizenship and Immigration
Status in Canada
Permanent Residents
Judicial review of visa officer’s decision determining that applicant not meeting requirements for permanent resident status in Canada as federal skilled worker pursuant to Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 87.3(2),(3)—Applicant applying overseas in category of General Practitioners and Family Physicians (NOC 3112) but qualifications, experience in Ayurvedic medicine—Although applicant exceeding minimum point threshold in application, officer applying Immigration and Refugee Protection Regulations, SOR/2002-227, s. 76(3) to conduct substituted evaluation of likelihood of applicant’s ability to become economically established in Canada—Officer concluding not satisfied that applicant having ability to do so since applicant practicing Ayurvedic medicine, Ayurvedic doctors not licensed to practice in Canada—Officer also noting that letters regarding job offers for applicant, applicant’s spouse, not supported by arranged employment offers (AEO); that settlement funds would be insufficient to support applicant, family over long term—Two procedural fairness letters sent out to applicant seeking clarification, noting officer’s concerns—Applicant responding to letters, providing information—Whether officer breaching procedural fairness by not raising concerns that letters of employment not supported by AEO, by not providing applicant opportunity to respond; whether reasonable for officer to conduct substituted evaluation; whether substituted evaluation reasonable—Officer not satisfied job letters establishing applicant’s ability to become economically established—Even though officer referring to absence of AEO, job offer letters not provided with initial application for purpose of points assessment but rather in response to procedural fairness letter after application assessed—Onus on applicant to provide sufficient supporting documentation to address officer’s concerns but letters, information applicant sending insufficient to satisfy officer—Therefore, procedural fairness not breached herein—As for substituted evaluation, officer’s authority pursuant to Regulations, s. 76(3) constituting exceptional discretion—Provision clearly showing that officer may substitute assessment of points for other criteria where points insufficient to determine whether applicant can integrate economically in Canada—Case law supporting clear wording of subsection, highlighting that officer’s decision to undertake substituted evaluation entitled to deference—In present case, officer referring to applicant’s ability to practice as physician in Canada but assessment of economic establishment broader—While applicant not required to work in NOC field for which may be eligible to come to Canada, applicant would likely rely on skills at issue to make living—Officer, therefore, justified in belief that because applicant would not be able to practice in Canada, points not adequately reflecting applicant’s ability to become economically established—Officer having valid reason to turn to substituted evaluation; reasonably exercising discretion to do so—Officer’s consideration of fact Ayurvedic medicine not regulated in Canada relevant to applicant’s ability to use skills, experience as physician to make living—In present case, substituted evaluation of applicant’s ability to become economically established linked to criteria in Regulations, s. 76(1) as required, broader than criteria set out therein—Based on substituted evaluation herein, officer reasonably concluding that applicant would not be economically established in Canada—Therefore, officer’s decision reasonable—Application dismissed.
Gharialia v. Canada (Citizenship and Immigration) (IMM-8341-12, 2013 FC 745, Kane J., judgment dated July 3, 2013, 17 pp.)