SANDRA BROWN Applicant v. THE MINISTER OF CITIZENSHIP, 2013 FC 661

Federal Court Cour fédérale Date: 20130620 Docket: IMM-7643-12 Citation: 2013 FC 661 Ottawa, Ontario, this 20 th day of June 2013 Present: The Honourable Mr. Justice Pinard BETWEEN: SANDRA BROWN Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS FOR JUDGMENT AND JUDGMENT [ 1 ] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act , SC 2001, c 27, of a decision by a visa officer (the “officer”) with the High Commission of Canada in London, England.

In the decision, dated May 15, 2012, the officer refused the applicant’s application for permanent residence under the Federal Skilled Worker class. [ 2 ] The applicant is a 64-year-old citizen of the United Kingdom.

In her application, the applicant requested that the officer conduct a substituted evaluation pursuant to subsection 76(3) of the Immigration and Refugee Protection Regulations , SOR/2002-227 (the “Regulations”) in the event that she received insufficient points to qualify for permanent residence. [ 3 ] The officer assessed the applicant’s points as follows: Points assessed Maximum possible Age 00 10 Experience 21 21 Arranged employment 00 10 Education 22 25 Official language proficiency 23 24 Adaptability 00 10

TOTAL 66 100 [ 4 ] The officer found the applicant obtained insufficient points to qualify for immigration to Canada, as the minimum requirement was 67 points. [ 5 ] As requested, the officer conducted a substituted evaluation. He determined that the points awarded were an accurate reflection of the likelihood that the applicant would be able to become economically established in Canada. * * * * * * * * [ 6 ] Subsection 76(3) of the Regulations states: 76.

(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. 76.

(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) — n’est pas un indicateur suffisant de 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 ). [ 7 ]

Section 83 of the Regulations provides the following:

(1) A maximum of 10 points foradaptability shall be awarded to a skilledworker on the basis of any combination ofthe following elements: […] (

d) for being related to a person living inCanada who is described in subsection (5),5 points; and […]

(5) For the purposes of paragraph (1)(d), askilled worker shall be awarded 5 points if (

a) the skilled worker or the skilledworker’s accompanying spouse oraccompanying common-law partner isrelated by blood, marriage, common-lawpartnership or adoption to a person who is aCanadian citizen or permanent residentliving in Canada and who is […] (vi) a child of the father or mother of theirfather or mother, other than their father ormother, 83.

(1) Un maximum de 10 pointsd’appréciation sont attribués au travailleurqualifié au

titre de la capacité d’adaptationpour toute combinaison des éléments ci-après, selon le nombre indiqué : […]

d) pour la présence au Canada de l’une oul’autre des personnes visées au paragraphe(5), 5 points; […]

(5) Pour l’application de l’alinéa (1)d), letravailleur qualifié obtient 5 points dans lescas suivants :

a) l’une des personnes ci-après qui est uncitoyen canadien ou un résident permanentet qui vit au Canada lui est unie par lesliens du sang ou de l’adoption ou parmariage ou union de fait ou, dans le cas oùil l’accompagne, est ainsi unie à son épouxou conjoint de fait : […] (vi) un enfant de l’un des parents de l’un deleurs parents, autre que l’un de leursparents, * * * * * * * * [8] The only issue raised by the applicant in this matter is whether the officer erred in his assessment of the substitutedevaluation. [9] The standard of review for a discretionary decision of an immigration officer relating to a permanent residence visa under theFederal Skilled Worker class is one of reasonableness (Requidan v The Minister of Citizenship and Immigration, 2009 FC 237 at para 12;Kisson v The Minister of Citizenship and Immigration, 2010 FC 99 at para 11). [10] In order for a decision to be reasonable, the Court will consider “the existence of justification, transparency and intelligibilitywithin the decision-making process” and “whether the decision falls within a range of possible, acceptable outcomes which aredefensible in respect of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9 , [2008] 1 SCR 190 at para 47[Dunsmuir]). * * * * * * * * [11] The applicant submits that, when doing the assessment of substituted evaluation, the officer erred by not considering the factthat it was highly likely that the applicant would soon have two sons available in Canada to provide financial and social support to her.The applicant alleges that the officer had access to the fact that she had two sons in the final stages of immigrating to Canada. [12] The applicant claims that had this fact been considered in conjunction with the fact that the point assessment left her only onepoint short of the required amount, there would have been compelling information demonstrating that she would likely becomeeconomically established in Canada.

[13] For his part, the respondent submits there is no indication in the applicant’s record that she ever informed the visa officer thatthe reason she requested a substituted evaluation was that the processing of her two sons’ applications for permanent residence wasalmost complete. [14] Moreover, there is no indication in the affidavit sworn by Jialan Pan, case manager with the law firm Goldman Associates,filed in support of this application for judicial review that the documents concerning the applicant’s sons’ applications were ever beforethe officer.

As such, the respondent asserts that the documents relating to the sons’ applications are not properly before the Court andshould be given no weight. [15] In reply, the applicant submits that the main purpose of Ms.

Pan’s affidavit is to show that the status of both of the applicant’ssons’ applications for permanent residence was available to the visa officer at the time of his decision and that this evidence isappropriately before the Court. [16] In Fernandes v The Minister of Citizenship and Immigration, 2008 FC 243 at para 7, Deputy Judge Strayer stated thefollowing regarding the purpose of a substituted evaluation assessment as prescribed in subsection 76(3) of the Regulations: [7] It is clear that the purpose of subsection 76(3) is to allow an exception to be made to the point system where the Applicant’schances of becoming successfully established in Canada is greater than is reflected in the points assessment: see e.g.

Yeung v. Canada(Minister of Citizenship and Immigration), [2000] F.C.J. No. 1174 at para. 15. To obtain such advantage the Applicant must request theexercise of the discretion and must give some good reasons for it: see Lam v. Canada (Minister of Citizenship and Immigration), [1998]F.C.J. No. 1239 at para. 5. However, such reasons need not be elaborate and may consist of a more full description of the Applicant’sbackground, education, and work experience and knowledge of an official language of Canada: see Nayyar v. Canada (Minister ofCitizenship and Immigration), 2007 FC 199 , [2007] F.C.J.

No. 342 at para. 12. [17] I agree with the respondent that there is no evidence in the file that the applicant’s sons’ applications were part of the recordbefore the officer. Contrary to the applicant’s assertions, the Pan affidavit does not attest to this. Ms. Pan’s affidavit simply establishesthat Ms. Pan’s law firm represented the applicant’s sons in their applications for permanent residence and indicates important datesrelated to the applicant’s sons’ applications. [18] Accordingly, I am not persuaded that the officer erred by not considering the status of the applicant’s sons’ applications.

Theonus was on the applicant to provide the necessary information for her application (Tikhonova v The Minister of Citizenship andImmigration, 2008 FC 847 at para 11).

Given that the applicant’s only challenge to the officer’s decision is that the officer did notconsider evidence which I have found was not before the officer, I am of the view that the officer’s decision on the substituted evaluationfell within the range of possible, acceptable outcomes (Dunsmuir, supra). [19] As such, the officer’s decision is reasonable and the Court’s intervention is not warranted. * * * * * * * * [20] For the above-mentioned reasons, the application for judicial review is dismissed. [21] I agree with the parties that this is not a matter for certification. JUDGMENT

The application for judicial review of a decision by a visa officer with the High Commission of Canada in London, England, dated May 15, 2012, is dismissed. “Yvon Pinard” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-7643-12 STYLE OF CAUSE: SANDRA BROWN v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Vancouver , British Columbia DATE OF HEARING: May 8, 2013 REASONS FOR JUDGMENT AND JUDGMENT: Pinard J. DATED: June 20, 2013 APPEARANCES : Me Ian Goldman FOR THE APPLICANT Me Kim Sutcliffe FOR THE RESPONDENT

SOLICITORS OF RECORD : Goldman Associates FOR THE APPLICANT Vancouver , British Columbia William F. Pentney FOR THE RESPONDENT Deputy Attorney General of Canada