Jiang v. Manitoba (Minister of Labour and Date:, 2014 MBCA 27

Citation: Jiang v. Manitoba (Minister of Labour and Date: 20140307 Immigration) et al., 2014 MBCA 27 Docket: AI 13-30-08014 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice Alan D. MacInnes Madam Justice Holly C. Beard BETWEEN : XUQIN JIANG ) D. Matas ) for the Appellant (Applicant) Appellant ) ) D. G. Guénette and - and - ) D. A.

Johnston ) for the Respondents MINISTER OF LABOUR AND ) IMMIGRATION and ) Appeal heard: MINISTER OF ENTREPRENEURSHIP ) January 17, 2014 TRAINING AND TRADE ) ) Judgment delivered: (Respondents) Respondents ) March 7, 2014 STEEL J.A. [ 1 ] This is an appeal from the order of an application judge refusing to quash a decision of the Manitoba Provincial Nominee Program for Business (the Program). [ 2 ] The application judge held that the procedure followed by the Program was fair and the decision was reasonable.

On appeal, the appellant argues that the application judge erred in her analysis of the requirements of procedural fairness and erred in her conclusion that the decision of the Program was reasonable. [ 3 ] I would dismiss the appeal. In her reasons, the application judge reviewed the law with respect to procedural fairness correctly and applied it appropriately to the facts. She selected the correct standard of review, that of reasonableness, and applied it without error. I find no ground for appellate intervention. FACTS [ 4 ] The appellant is a foreign national who wishes to immigrate to Manitoba.

Immigration falls under the Federal Immigration and Refugee Protection Act (IRPA). To become a permanent resident, a foreign national must apply under one of three sections in the IRPA – family class, economic class or refugee class. In this case, the appellant applied under the economic class. [ 5 ] Pursuant to the Immigration and Refugee Protection Regulations, SOR/2002-227 (IRPA regulations), there are a number of avenues that a foreign national may pursue to try to achieve permanent status as a member of the economic class. One such avenue is by way of the provincial nominee class.

Section 87(1) of the IRPA regulations provides: Class

87(1) For the purposes of subsection 12(2) of the Act, the provincial nominee class is hereby prescribed as a class of persons who may become permanent residents on the basis of their ability to become economically established in Canada. [ 6 ] To follow the provincial nominee route, a foreign national must be nominated by the province, which then issues a certification of nomination. The parameters for nomination are governed by the Canada-Manitoba Immigration Agreement, but the province may devise its own procedure and criteria for the issuance of the certificate of nomination.

A provincial decision to nominate a foreign national is not a guarantee that permanent residency will be granted. The final decision rests with the federal government, but nominees are largely successful in obtaining such permits. Manitoba operates two distinct streams as part of its Program: a skilled worker stream and a business stream.

While there have been many changes to the Program since 2009, at the time of this application, the two streams were administered by two different departments, staffed by different personnel and governed by different procedures and guidelines. [ 7 ] In this case, the appellant applied pursuant to the business stream and was interviewed accordingly. Her application was denied on the basis that there was a lack of consistency in her documentation and that she did not meet the retention expectations.

The reasons for rejection were spelled out in a letter sent by a senior manager with the Business Immigration and Investment Branch.

Briefly they are: - that she disclosed in one form that her spouse’s sister resided in Toronto, but in another form, signed on the same day, by both her and her husband, all of her spouse’s sisters’ addresses were listed as being in China and she did not disclose this information in her interview; - during her interview, she stated that she would be leaving Canada on October 20, 2009, but her flight itinerary indicated that she and her spouse departed on December 15, 2009; and - that the Program was not convinced that she intended to remain in Manitoba based on the facts that her brother was living in Toronto, her daughter was attending school in Edmonton and, in addition, that when she was in Canada, she only spent eight days in Manitoba, but spent a much longer time in other provinces in Canada. [ 8 ] The Provincial Nominee Program (business stream) does not allow for an appeal from a refusal.

Rather, the Program allows for the applicant to re-apply and go through the same procedure all over again. However, the appellant retained a representative who asked that her refusal be reconsidered.

Although there is no formal provision for reconsideration, the Program agreed to reconsider her application. [ 9 ] For the reconsideration process, the appellant’s representative provided updated information including the fact that the appellant’s daughter was now a student at the University of Manitoba, a boarding pass to prove she left Canada in October not December, and an explanation of why she did not disclose her sister-in-law’s residency in Ontario. A second interview was conducted.

Despite these clarifications, the Program denied her application on the basis that she still did not satisfy the concerns about retention in Manitoba. This second decision was the basis for her certiorari application to the court. DECISION OF THE APPLICATION JUDGE [ 10 ] In her reasons, the application judge held that the Program decision is a discretionary one made after consideration of a number of factors. Looked at as a whole, the appellant was treated fairly. The reconsideration process was not only fair, but it conformed to what the appellant’s agent had requested.

Moreover, “at any point she could have, and still could, submit a new application” (at para. 20). [ 11 ] Next, the application judge held that the lack of an appeal in the procedure did not breach the duty of fairness. This was so even though the two streams, being the skilled worker program, and the business program, contained different processes for application and the skilled worker program made provisions for an appeal from a refusal and the business program did not. She held that there was no requirement that the process must be identical for the two streams. [ 12 ] Nor did she find the reasons inadequate.

The reasons in relation to the reconsideration must be considered in connection with the original reasons that were given for the refusal, and not in isolation. When considered in context, it is clear that, while some of the concerns were explained, the concerns regarding retention were still present. [ 13 ] Applying the standard of reasonableness, the application judge reviewed the factors which formed the decision-making matrix and concluded that the “decision to deny the nomination was within the realm of reasonable, possible outcomes” (at para. 41). [ 14 ] The appellant appeals, raising a number of grounds.

However, counsel for the appellant indicated that the disclosure issue raised before the application judge was not being pursued on this appeal. STANDARD OF REVIEW [ 15 ] This is an appeal from the decision of the application judge. In Dr. Q v. College of Physicians and Surgeons of British Columbia , 2003 SCC 19 , [2003] 1 S.C.R. 226 , McLachlin C.J.C. noted the distinction between the standard to be applied by a superior court reviewing an administrative decision and the standard to be applied by an appellate court on appeal from the superior court’s

decision. [16] The standard this court must apply on this appeal is stated in that case (at para. 43): .… At this stage in the analysis, the Court of Appeal is dealing with appellate review of a subordinate court, not judicial review of anadministrative decision. As such, the normal rules of appellate review of lower courts as articulated in Housen, [2002 SCC 33, [2002] 2S.C.R. 235], apply.

The question of the right standard to select and apply is one of law and, therefore, must be answered correctly by areviewing judge. …. [17] The parties agree, as do I, that the application judge was correct when she held that she must review the substantivedecision of the Program and the adequacy of the reasons given on a standard of reasonableness. When dealing with issues of proceduralfairness, the question is really whether there is an error of law. See 2127423 Manitoba Ltd. v. Unicity Taxi Ltd. et al., 2012 MBCA 75 atpara. 11, 280 Man.R. (2d) 292.

DID THE APPLICATION JUDGE ERR IN FINDING THAT THE PROGRAM’S DECISION WAS PROCEDURALLY FAIR? [18] The appellant raises three issues respecting procedural fairness. The appellant argues that the reconsideration processshould have followed the same steps as required for the application process, that there was no appeal and that the reasons for refusalwere inadequate. - Adequacy of Reconsideration [19] The assessment of an application under the business program involves three steps. There is the initial consideration, theassessment by an officer, and then a review by the assessment review team.

While a second interview was conducted as part of thereconsideration, there is no documentary record of the three steps being formally followed. The appellant argues that the applicationjudge erred when she held that the failure of the reconsideration process to follow the same process as the initial consideration was not abreach of the duty of fairness. [20] The specific requirements of the duty of procedural fairness depend on a variety of contextual factors.

In Baker v.Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817 at paras. 23-27, the Supreme Court ofCanada identified six such factors, including the nature of the decision being made, the process followed in making it, the nature of thestatutory scheme and the terms of the statute pursuant to which the body operates, the importance of the decision to the individualaffected, the legitimate expectations of the person challenging the decision, and respect for the decision makers’ own choice ofprocedures. [21] I agree with the appellant that, once reconsideration has been promised, that reconsideration had to respect the duty offairness.

The reconsideration, even if voluntary, must be conducted fairly. I also agree that past practice may establish legitimateexpectations as to the nature of that reconsideration so long as that practice was clear, unambiguous and unqualified.

See Agraira v.Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras. 94-96. [22] The appellant relies on the answer to a question in material distributed by the Program to applicants which describes thethree-step procedure as being sufficiently precise to give rise to the doctrine of legitimate expectations. [23] The question and answer refer explicitly to the initial application process. There was no evidence adduced as to anypast reconsiderations and the process adopted therein. There was no provision in the Program for reconsideration.

If an applicant wasrefused, they could re-apply and the three-step process would be applied to that new application. I do not agree that this would raise anexpectation that the reconsideration would be the same as the initial process. [24] Indeed, exactly the opposite occurred in terms of expectations. This reconsideration was provided as a result of aspecific request by the appellant’s representative. In a letter to the senior manager, the appellant’s representative outlined some of theclarifications that he wished the Program to reconsider. He stated in that letter: Ms.

Jiang would very much like these facts to be considered, and to have the opportunity to explain her situation to you and or theimmigration officer in charge of the file. …. We hope that these facts and explanations are enough for you and or the officer to meet with Ms. Jiang and reconsider her case. …. He did not ask for a different officer or anything other than an opportunity to present additional information and have the Programreconsider its decision. [25] The senior manager of the Program agreed to the request and wrote to the appellant’s representative: ….

You have already submitted new information in support of that request [for reconsideration]. If you have any further information to

supply in support, please do so by sending the materials to Esther Li. [ 26 ] Not only did the appellant’s representative agree to this procedure and take no objection, he thanked the senior manager for his consideration. In addition to the submission of new information, the Program also provided the appellant with a second in-person interview. During that interview, she attempted to explain and address some of the issues raised in the first letter of rejection.

The Program then re-evaluated its earlier decision with the benefit of the newly submitted information. [ 27 ] While I agree that, when a decision maker affords a procedural step that is not ordinarily available, it must act fairly in regard to that additional step, the reconsideration process did not require the very same process as the initial application. It is reasonable that reconsideration would involve further consideration of the newly-submitted information, together with the information she had previously submitted.

By providing the appellant with an open-ended opportunity to submit any additional documentation she wanted to submit, as well as providing an opportunity for a second interview, the Program conducted the reconsideration in a manner that was fair in the circumstances. - Lack of Right of Appeal [ 28 ] Nor did the Program breach the requirements of procedural fairness because it did not provide for an appeal. The appellant argues that the absence of an appeal from a refusal is unfair given that an appeal is available in the skilled worker stream of the Program.

The appeal process is set out in the Manitoba Nominee Program for Skilled Workers Policy and Procedural Guidelines 2008, and provides, it is submitted, a number of advantages not provided for in a reconsideration.

It is argued that the provision of an appeal for skilled worker applicants, in addition to the right to re-apply, in contrast to the procedure for business immigration applicants, is arbitrary. [ 29 ] The Program has the discretion to determine its own procedures in the Program and in exercising this discretion, it has split the economic program into two categories; that being business and skilled workers.

Until very recently, they were administratively housed within separate departments of the government, the skilled workers program was administered by the Department of Labour and Immigration and the business nominees program was administered by the Department of Entrepreneurship, Training and Trade. [ 30 ] It is true that the procedures for both initial consideration and review seemed more well developed and systematic for the skilled workers program.

For example, the skilled workers program sets out, in writing, specific procedures including a review by a least two program officers prior to a final decision being made and a random integrity review of applications not forwarded for nomination. This may be a reflection of the fact that the skilled workers program is by far the much larger program, with a much larger staff. [ 31 ] Nonetheless, the fact that the skilled workers program provides apparently more extensive procedures does not mean that the business program has breached procedural fairness.

So long as the business program fulfilled the minimum requirements for natural justice, it does not have to provide exactly the same procedures as those provided for the skilled workers. [ 32 ] In any case, if one compares the two procedures, it would appear that the appellant fundamentally received as fair a review, or even fairer, than may have been available to her under the skilled workers program. A request for a formal review (or what we understand to be similar to an appeal) under the skilled workers program may be rejected where it is based on the submission of new documents or on the issue of retention.

Those are exactly the two grounds on which the appellant’s request for reconsideration under the business stream was based. - Adequacy of Reasons [ 33 ] Finally, the reasons were adequate in the circumstances. The appellant maintains that the reasons given for the decision under review are inadequate and amount to a breach of the duty of procedural fairness because all of the original reasons for refusal were completely addressed during the follow-up interview for reconsideration and, therefore, there was no reason left for a refusal to be upheld.

Consequently the reasons were inadequate or, as will be dealt with later, unreasonable. [ 34 ] The issue of whether a decision maker has to give reasons at all is a question of procedural fairness and was discussed in the Supreme Court of Canada decision of Baker . However, any challenge to the adequacy of those reasons is analyzed within the reasonableness analysis. See Newfoundland and Labrador Nurses’ Union v.

Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 , [2011] 3 S.C.R. 708 . [ 35 ] In this case, the reasons for the decision under review are contained in the letter sent to the appellant after the reconsideration stating that the original decision remains unchanged and “ [ t]he Program does not feel that the additional information provided clarifies the concerns in regards to retention.” Thus, the reasons given for the decision on reconsideration must be read in conjunction with the reasons for the initial refusal. [ 36 ] The initial refusal sets out concerns relating to credibility as well as retention.

While some of these concerns were addressed by the new information provided by the appellant, not all of them were. So, for example, the new information confirmed that the appellant did indeed leave Canada when she indicated, and her daughter was now attending university in Manitoba instead of Edmonton. However, her brother lives in Toronto, during her exploratory visit to Canada she spent more time outside of Manitoba than inside Manitoba, and the forms signed on the same day differ as to the residence of her sister-in-law.

The reasons for the decision and the evidentiary record provided an adequate basis for the application judge to engage in a meaningful judicial review of the decision and, thus, were adequate in the circumstances. ONUS OF PROOF [ 37 ] Whether the applicant intends to reside permanently in Manitoba is an essential component of the decision to grant an

applicant a certificate of nomination. The appellant argues that the Program misapplied the onus of proof as it relates to the issue of retention. Specifically, the appellant signed a declaration of intent that she intended to reside in Manitoba and, therefore, it is submitted this raises a rebuttable presumption which must be rebutted by the Program. [ 38 ] The appellant’s declaration of intent in this case is a mandatory, pro forma component of every application to the Program. It is provided by the Program to each applicant and must be signed as part of every application package.

Any application that does not include the signed declaration of intent is immediately refused for incompleteness. [ 39 ] If the declaration of intent provided with every application to the Program established a rebuttable presumption, it would effectively remove the issue of retention from any consideration by the Program in most cases.

This cannot be the case, particularly in the context of a non-adversarial process in which there is no opposing party to rebut the applicant’s evidence. [ 40 ] Moreover, in the material distributed to the applicants in answer to question 28, “If I have dependants, relatives or friends living somewhere else in Canada will that cause my application to be automatically refused?” The answer specifically places the onus on the applicant and states: .… It is up to the applicant to convince the [P]rogram of their sincerity to relocate to Manitoba.

DID THE APPLICATION JUDGE CORRECTLY DETERMINE THAT THE PROGRAM’S DECISION WAS REASONABLE? [ 41 ] The appellant argues that she addressed each of the issues identified in the initial refusal and, as a result, it was unreasonable to refuse the application on reconsideration.

In other words, the Program’s conclusion regarding retention did not fall within the range of possible reasonable outcomes which were defensible in light of the facts and the law and consequently, submits the appellant, the application judge should have so held. [ 42 ] It is not simply a matter of providing an explanation regarding each of the issues identified in the initial refusal and thereby becoming entitled to be nominated by Manitoba. The Program chooses the applicants that it is persuaded, on a discretionary basis, are most meritorious from within the pool of applicants.

Therefore, the fact that she may have addressed the identified concerns does not mean that she was then automatically entitled to be nominated. The applicant must do more than fulfill the minimum requirements.

It should be remembered that the question to be decided here is not whether this particular applicant can satisfy the Program that she will remain in Manitoba, but rather, given the pool of applicants, which of them will be most likely to remain in Manitoba and contribute to the economic development. [ 43 ] As well, the fact that Manitoba was not satisfied from the totality of the evidence that the appellant was likely to continue to reside in Manitoba was one of the possible reasonable outcomes that Manitoba could have come to based on the facts.

Whether someone else might have come to another decision is irrelevant so long as there is some basis for the decision and it is not capricious or arbitrary. [ 44 ] The application judge reviewed the factors considered and held that the decision of the Program was reasonable based on the fact that the appellant had a brother living in another province, she possibly had a sister-in-law living in another province, and failed to disclose this fact on one of her forms, and that she spent more time in other provinces during her exploratory visit than in Manitoba and did not provide any documentary evidence that the purpose of those visits was for business reasons. [ 45 ] In her initial application, the appellant failed to disclose that she had a sister-in-law living in Toronto.

Later, during the reconsideration, she explained she was not close to her sister-in-law and had not been aware that her sister-in-law was living in Toronto at the time of her initial application. Yet, in another form filled out on the same day and signed by both her and her husband, the appellant did disclose the existence of a sister-in-law living in Toronto. So, her explanation given at the time of her second interview lacked credibility. Given that inconsistency and the other concerns about retention, the concerns of the Program were within the ambit of possible outcomes.

It cannot be said that the decision was unreasonable and, consequently, the application judge was correct in her decision. [ 46 ] I would dismiss the appeal with costs. J.A. I agree: J.A. I agree: J.A.