December 20, 2013

Recent Case Law on Provincial Nominee Programs

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Deol v. Canada (Minister of Citizenship and Immigration), 2013 FC 1147 (Judgment: November 12, 2013), Zinn J.

Mr. Deol’s application for permanent residence under the Manitoba Provincial Nominee Program as a skilled worker was denied on the basis that he had misrepresented or withheld material facts relating to his employment that could induce an error in the administration of the Immigration and Refugee Protection Act (“Act”), contrary to subsection 40(1)(a) of the Act.

After speaking with Mr. Deol’s employer and subsequently with Mr. Deol, the officer noted several discrepancies in what they told her. More than eight months later, a fairness letter was sent to Mr. Deol which raised four questions, including two that related to discrepancies between what the officer was told by Mr. Deol and his employer.  Mr. Deol was given 30 days to respond to the fairness letter.

Mr. Deol retained Canadian legal counsel to respond on his behalf.  Counsel, within the initial 30 day response period, wrote seeking a 90 day extension of time to respond. Mr. Deol’s counsel wrote, “We have sent out an Access to Information request to access Mr. Deol’s file and computer notes thereto … As you may know, it can take a minimum 45-60 days to receive these materials.”  In response to Mr. Deol’s request for an extension of time, the officer stated, “I do not feel that an extension to submit documents is warranted in this case.”

The problem with this response of the officer is that the fairness letter did not ask Mr. Deol to merely submit documents, but rather “to comment on the above concern or provide any observation or explanation in writing.”  The Court held, “Given that the officer's concerns as recited in the fairness letter related to what was said by Mr. Deol and his employer some eight months earlier, and given that counsel had just been retained, it is hardly surprising that counsel wished to see what exactly had been said to the officer … The failure of the officer to consent to any extension of time was procedurally unfair in the circumstances and the decision must be set aside.”  The Court ordered that a different officer must review Mr. Deol’s application and in that process Mr. Deol and his counsel must be provided with an opportunity to address the concerns previously raised and any new concerns that arise from the new assessment.

Noreen v. Canada (Minister of Citizenship and Immigration), 2013 FC 1169 (Judgment: November 18, 2013), Zinn J.

A visa officer denied Ms. Noreen’s application for permanent residence under the Saskatchewan Immigrant Nominee Program (“SINP”) despite the fact that she had obtained provincial nomination. The officer exercised his discretion pursuant to subsection 87(3) of the Immigration and Refugee Protection Regulations and rejected the application because he was not convinced that Ms. Noreen would become economically established in Canada.

The officer’s determination was based on the fact that Ms. Noreen did not have adequate International English Language Testing System (“IELTS”) scores to work as a teacher, although her IELTS scores were above the minimum required by Citizenship and Immigration Canada (“CIC”) and the SINP.  In his Computer-Assisted Immigration Processing System (“CAIPS”) notes the officer wrote: 

“With the level of English language ability you have demonstrated, I am not satisfied that you would be able to perform the tasks of your intended occupation [elementary and kindergarten teacher] or that you would be able to become employed in Canada or, if you did find employment, that it would be of a sufficient level for you to become economically established in Canada.”  

In response to the officer’s concerns, Ms. Noreen provided updated and slightly improved IELTS scores and a plan for how she would successfully become economically established.  In this plan Ms. Noreen said she was prepared to “start any odd or basic job” and she foresaw no problem with communication given her overall score of 5 on the IELTS.  Upon review of this further information, the officer wrote in the CAIPS notes:

“Although [Ms. Noreen] has obtained a higher overall score on her more recent IELTS test, the English language proficiency it shows her to have still appears to be below the level of fluency which would be required in order for her to become qualified as a teacher in Saskatchewan … [Ms. Noreen] appears to acknowledge that she could not establish until some undefined point in the future after her English has improved. [Ms. Noreen] states that her current level of English would not be a problem in ‘basic odd jobs’ but she does not indicate having a job offer of any kind.” 

The Court held, “in assessing whether an applicant will be able to become economically established in Canada, it is not inappropriate for an officer to initially focus on that applicant's training and occupation … However, I agree … that ‘the Court has not found the legislation to contain a requirement that the person become economically self-sufficient in their qualifying occupation, or that a person has to join and participate in the labour market in a particular occupation when they arrive in Canada’ … Accordingly, if economic establishment is not found when the person’s qualifying occupation is examined, the officer must look elsewhere. I am satisfied … that the officer here did just that; he or she looked at what the Applicant said she would do – ‘basic odd jobs’ -- and determined that the Applicant would nevertheless be unable to become economically established.”

The Court also held that it was reasonable for the officer to conclude that “engaging in basic odd jobs, likely on a part time or casual basis since Ms. Noreen intended to attend University, is not proof of the ability to become economically established”, and that “Ms. Noreen would not be able to fully support herself and her three daughters, even with the assistance of her husband [who planned to work as a security guard], if she is only working on a part-time or casual basis.” Furthermore, although Ms. Noreen recognized the challenges she faced in obtaining certification to teach in Saskatchewan, she offered “no suggestion as to how long this process will take her. She offers light at the end of the tunnel but does not tell the officer how long the tunnel is and perhaps it is never ending!” As a result, the Court dismissed Ms. Noreen’s application for judicial review.

Applicants to New Brunswick’s Provincial Nominee Program can learn the following from the above two judgments:

  1. Being nominated by New Brunswick for permanent residence does not guarantee a nominee that CIC will grant his/her application for permanent residence.  CIC officers have discretion under the Act to deny such an application;

  2. If a nominee receives a fairness letter that stipulates a deadline by which to respond, retaining competent legal counsel can help the nominee to properly respond in a timely manner and to ensure that the nominee’s rights to procedural fairness are respected;

  3. Scoring in excess of the “minimum” IELTS requirement only shows why a nominee was not immediately screened out. It does not, in itself, establish that the nominee will, or how s/he will, become economically established in Canada; and

  4. In submitting a plan to become economically established in Canada, an applicant should include concrete steps and timelines as to how and when s/he will become established. 

Recent Case Law on Provincial Nominee Programs (PDF Version)

Please direct questions or comments to:

Christopher M. Ryan
506.633.2753
coxandpalmer.com


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