Vancouver, British Columbia, February 13, 2007
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1] Xungong Tong (the applicant), a citizen of China, challenges in this judicial review application the March 10, 2006, decision of Designated Immigration Officer Barnes (the DIO) at the Consulate General of Canada in Seattle, Washington, refusing his application for permanent residence in Canada in the skilled worker category in the intended occupation of a religious worker - a Buddhist monk.
[2] Subsection 12(2) of the Immigration and Refugee Protection Act (the Act) provides 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.
[3] Furthermore, pursuant to the Immigration and Refugee Protection Regulations (the Regulations), skilled worker applicants are assessed on the basis of the requirements set out in subsection 75(2) and the criteria set out in subsection 76(1) of those Regulations. The assessment of these requirements determines whether a skilled worker will be able to become economically established in Canada. The criteria are age, education, knowledge of Canada’s official languages, experience, arranged employment and adaptability.
II. Background Facts
[4] The following background facts assist in understanding the DIO's decision.
[5] The applicant was born in China on January 11, 1970. He has never married and has no dependents. He first came to Canada in November 2001 on a visitor visa issued by the Canadian Embassy in Beijing to attend a seven-day Buddhist retreat.
[6] The applicant's record shows that from 09/82 to 06/86 he attended San Ho Middle School after five years of primary school, from 01/87 to 06/89 he attended the Shao Guan Yan Men Buddhist Institute and, finally, from 06/89 to 06/91 he attended the Fu Jian Buddhist Institute.
[7] Since November 2001, Mr. Tong has renewed his temporary resident visa several times and worked continuously as a Buddhist monk, but not under the authority of a work permit; rather, being a religious worker, his previous work in Canada was under an exemption from the work permit requirement.
[8] From November 2001 to September 2004, he was employed by the International Buddhist Association, and under contract with the Pu Ji International Buddhist Association from September 2004 to August 30, 2006, earning an annual income of $12,000 CAD before applicable taxes "plus free meals and accommodation allowance".
III. The DIO's Decision
[9] The applicant was assessed as a Buddhist monk, NOC code 4217, and awarded a total of 48 points which was insufficient to qualify him for the minimum point requirement of 67 points. The point break-down was:
• Age - 10 points which is the maximum;
• Education - 15 out of a maximum of 25;
• Experience - 21 points which is the maximum;
• Arranged Employment - 0 out of a maximum of 10;
• Official Language Proficiency - 2 points out of a maximum of 24; and
• Adaptability – 0 out of 10.
[10] The DIO filed an affidavit dated December 1, 2006, explaining how he reached his assessment. He was cross-examined on his affidavit. That affidavit substantially reflects what is in his CAIPS notes.
[11] In terms of occupational experience and language proficiency, he accepted the applicant’s submissions regarding those two factors.
[12] For the Education factor, he wrote:
I was not satisfied that the evidence Mr. Tong provided justified an award of 20 points for education. First, there was no credible evidence – such as a diploma or transcript – that Mr. Tong had obtained a two-year educational credential from an accredited post-secondary institution. Instead, Mr. Tong had provided only a letter from the Fu Jian Buddhist Institute stating that he had studied there for two years. Second, Mr. Tong’s own statements were unclear about whether he had 13.5 or 14 years of full-time studies.
Notwithstanding these concerns with the evidence Mr. Tong had provided regarding the education factor, I decided to give him the benefit of the doubt and gave him credit for a two year post-secondary educational credential from Fu Jian Buddhist Institute and at least 13 years of full-time studies. I therefore awarded Mr. Tong 15 points for the education factor. Even if I had awarded Mr. Tong 20 points for this factor, that would have made no significant difference to his overall score and my overall assessment of his application.” [Emphasis mine]
[13] For arranged employment, the DIO wrote in his affidavit Mr. Tong, in his application, had stated “that he expected to be able to obtain a permanent employment offer from his employer, Pu Ji International Buddhist Association, and asked what documents were required to assess arranged employment. In particular, Mr. Tong asked whether a letter from his employer was sufficient or whether the job offer needed to be reviewed by Human Resources and Skills Development Canada (HRSDC).”
[14] The DIO went on to explain in his affidavit that in order to be awarded points for arranged employment, an applicant had to meet the requirements of subsection 82(2) of the Regulations. To earn points under each of subsections 82(2) (a), (b) and (d), the applicant had to be in Canada on a valid work permit. The DIO noted being in Canada on a valid work permit was not one of the requirements of subsection 82(2)(c), but to obtain points under this paragraph an applicant must provide a labour market opinion (LMO) from HRSDC approving a permanent offer of employment. He concluded the following at paragraphs 11 and 12 of his affidavit:
I was of the view that ss. 82(2) of the IRP Regulations clearly sets out what is required to award points for arranged employment. The IRP Regulations are publicly available and contain no ambiguity. The IRP Regulations do not provide any exception for religious workers. Similarly, the publicly available CIC Policy Manual “OP6: Federal Skilled Workers” also does not provide any exceptions for religious workers. I noted that Mr. Tong was represented by an experienced immigration law firm. In these circumstances, I did not consider Mr. Tong’s request for information as to what was required for him to obtain points for arranged employment to warrant a response.
Since Mr. Tong was not in Canada on a valid work permit, did not submit an offer of employment from his employer, did not submit an LMO from HSRDC and did not provide any other evidence to show that he otherwise met the requirements of ss. 82(2) of the IRP Regulations, I awarded 0 points for arranged employment.
[15] For adaptability, the applicant was given no points for his previous work in Canada because, in the DIO's view, to be awarded points in this category his work was required to have been performed under a work permit which it was not.
[16] The DIO performed a substituted evaluation in respect of the applicant pursuant to subsection 76(3) of the Regulations and concluded “based on my assessment of the evidence Mr. Tong had provided with his application, my opinion was that the number of points he had been awarded were a sufficient indicator of his likely ability to become economically established in Canada” and stated the following in reaching his opinion:
… I noted that Mr. Tong’s English language proficiency remains basic even after several years of residence in Canada. I also considered the single letter of reference dated 31 July 2004 and the bank statement submitted as evidence of settlement funds. I also noted that although Mr. Tong had provided documentary evidence regarding his activities in China, he had provided very little documentary evidence regarding his activities in Canada since 2001. After weighing all of this evidence, I was not persuaded that Mr. Tong’s application should be approved based on a substituted evaluation.
IV. The Applicant's Challenge
[17] In summary form, the applicant argues as follows.
[18] For adaptability the DIO erred in not awarding him 5 points on the basis of Singh v. Canada (Minister of Citizenship and Immigration), 2006 FC 1479, having regard to proper principles of statutory interpretation of section 83 of the Immigration and Refugee Protection Regulations (the Regulations) focusing on the purpose of the provision and the object of the Act.
[19] For arranged employment the applicant argues he should have been awarded 10 points. The DIO breached his duty of fairness by not responding to the following request contained in his application:
I expect to be able to obtain an offer of employment from my current employer --- Please confirm what documents you require in order for me to receive 10 points for Arranged Employment. I am currently in Canada with a Visitor Record and not a Work Permit. Since I am a religious worker is a letter from the employer sufficient or do you still require the offer to be reviewed by Human Resources and Skills Development Canada? [Emphasis mine]
[20] Counsel for the applicant submits it was perfectly proper for the applicant to seek that advice from the DIO because, under the Guidelines applicable under the previous regulatory scheme, section 1.36 headed "Religious Personnel" stated "the validation of a confirmed offer of employment was not a requirement in the case of religious persons who will be performing only religious duties; all that is needed to be demonstrated to a visa officer was that the foreign religious worker meet the basic "decent living" criterion.
[21] For education, it is argued the applicant should have been awarded an extra 5 points because the DIO failed to pursue his assessment in respect of an issue which had been identified by the applicant in an attachment to his application in respect to this factor. He stated he attended two Buddhist Institutes for a full period of four to five years without vacation, which would be equivalent to at least five normal academic years (with summer vacations) of full-time study. He stated he had the equivalent of at least 14 years of full-time study which entitled him to 20 points.
[22] Finally, counsel argues the DIO committed a number of errors in the exercise of his discretion under subsection 76(3) of the Regulations.
[23] First, he ignored the evidence Mr. Tong had already demonstrated his ability to become economically established in Canada: he has been continuously employed, paid a salary, expected to obtain a permanent job offer; had accumulated savings of $50,000 and he is making several efforts to enhance his English language skills.
[24] Second, he exercised his discretion from an erroneous and incorrect point calculation of 48 points, meaning that if the proper start point had been chosen he would have been very much closer to 67 points.
[25] Third, he exercised his discretion by gauging the facts on a wrong standard of proof, namely beyond a reasonable doubt.
V. Analysis
A. The Standard of Review
[26] I agree with counsel for the respondent's views on the appropriate standard of review:
(i) the arranged employment issue, since it is based on a breach of the duty of fairness, there is no engagement of the pragmatic and functional approach and this issue must be gauged on a review of the arguments and a determination by the Court on whether fairness has been breached.
(ii) the adaptability issue turns on a question of interpretation of the relevant provision of the regulation, the proper standard being correctness.
(iii) on substituted evaluation, the applicant's allegation the DIO ignored the evidence is assessed against section 18.1(4)(d) of the Federal Courts Act that the DIO based his decision "without regard to the material before it; the applicant's allegation of a wrong standard of proof raises a question of law to be gauged on the standard of correctness; and his allegation the DIO started his substituted evaluation from the wrong gate falls to be determined on this Court's conclusion on whether the applicant's other arguments on points has been made out.
(iv) on the education factor, the applicant's submission raises a mixed question of fact and law to be determined on the standard of reasonableness.
B. Conclusion
[27] In my view, this judicial review application must be dismissed. I see no error in the DIO's determinations.
[28] On the adaptability factor, section 186(l) of the Regulations stipulates a foreign national may work in Canada without a work permit as a religious worker. The applicant qualifies for this exemption.
[29] The language of s. 83(1)(c) of the Regulations is also clear that 5 points are to be awarded "for any previous period of work in Canada by the skilled worker" with the notion of "previous work in Canada" defined in subsection 83(4) providing for the purposes of paragraph 83(1)(c) that a skilled worker "shall be awarded 5 points if [a skilled worker] engaged in at least one year of full time work in Canada under a work permit.
[30] Legislative provisions must be interpreted in harmony. I agree with Justice Blais in Singh v. Canada (Minister of Citizenship and Immigration), 2007 FC 69, to accept the applicant's argument would be to re-write the Regulation in a manner not consistent with the purpose of the exemption – enabling persons to work in Canada who are here temporarily such as artists, foreign representatives and business people. The DIO was correct in not awarding 5 points to the applicant under this factor.
[31] The applicant's argument on arranged employment also fails for two reasons. First, "arranged employment" in subsection 82(1) means "an offer of indeterminate employment in Canada". The record before the DIO did not include any such offer; the best that can be said is that the applicant had expectations he would be offered a permanent job rather than being on two-year contracts.
[32] Second, I agree with counsel for the Minister, in the circumstances of this case, fairness did not give rise to a duty to reply to the applicant's query of whether he needed to comply with section 82(2)(c) of the Regulations and obtain a LMO.
[33] First, generally, the onus is on applicants to provide all relevant information in support of their application. Second, visa officers are not in the business of giving legal advice. The applicant had a legal advisor. Third, the Regulations and Operations Manual 6 (OP-6) is clear on the point. There is no mention of the previous guideline under the former Act. The DIO did not create any legitimate expectations which would create a legal duty to respond. There was no evidence of confusion on the point (see, Singh, above, 2007 FC 69, at para. 22).
[34] In the circumstances, I conclude the DIO was justified in not awarding a further 10 points to the applicant on account of arranged employment.
[35] Having regard to the conclusion reached on the arranged employment and adaptability factors, it was not unreasonable in the circumstances for the DIO not to pursue the issue of a further 5 points to the applicant on account of the educational factor.
[36] Finally, on the issue of the alleged errors in the exercise of discretion, in my opinion, the applicant fails. In this connection, I have reviewed several times the DIO's cross-examination which must be reviewed as a whole and not microscopically.
[37] Subsection 76(3) of the Regulations provides for the circumstances of the DIO's substituted evaluation. The standard of proof is on the balance of probabilities and not a demonstration beyond a reasonable doubt the applicant may become economically established in Canada.
[38] I am satisfied, in my reading of the transcript, the DIO appropriately gauged the applicant's ability to become economically established in Canada on the balance of probabilities.
[39] The DIO stated several times the proper test is the applicant's likelihood of becoming economically established in Canada (see Transcript, Questions and Answers 31, 38, 40, 42 and 68. It is true the DIO in some answers used the expression doubts, dispel any reasonable doubt (see, Questions 39 and 43) but it is clear in answers before and after that he gauged his doubts or reasonable doubts on the lack of evidence provided by the applicant he would likely be economically established in Canada.
[40] The DIO's cross-examination demonstrates he did not ignore the fact the applicant had continuously worked in Canada for several years; had accumulated money; had a job offer, was making extra efforts to learn English (see Question and Answer 25). The DIO's main concern was lack of evidence he would likely become established: his income was weak, there was no evidence of his income from tax returns and there was only one letter of support (see Question and Answer 30).
[41] Finally, I have concluded the DIO's award of points to the applicant was appropriate. It cannot be sustained the applicant was close to the 67 points minimum requirement.
JUDGMENT
This judicial review application is dismissed. No certified question was proposed.
"François Lemieux"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2471-06
STYLE OF CAUSE: Xungong TONG v. MCI
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: February 7, 2007
REASONS FOR JUDGMENTAND JUDGMENT: LEMIEUX J.
APPEARANCES:
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Mr. Peter A. Chapman
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Mr. Scott Nesbitt
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SOLICITORS OF RECORD:
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Chen & Leung Vancouver, BC
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John H. Sims, Q.C. Deputy Attorney General of Canada
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