Ijaz v. Canada (Minister of Citizenship and Immigration), (2014) 464 F.T.R. 276 (FC)

• Judge: Russell, J.
• Court: Federal Court (Canada)
• Case Date: September 04, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 464 F.T.R. 276 (FC);2014 FC 920

Ijaz v. Can. (M.C.I.) (2014), 464 F.T.R. 276 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] F.T.R. TBEd. SE.034

Uzma Ijaz (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-1482-14; 2014 FC 920; 2014 CF 920)

Indexed As: Ijaz v. Canada (Minister of Citizenship and Immigration)

Federal Court

Russell, J.

September 26, 2014.

Summary:

The applicant applied under s. 72(1) of the Immigration and Refugee Protection Act for judicial review of a visa officer's decision to refuse her application for permanent residence in Canada under the provincial nominee class.

The Federal Court dismissed the application.

Aliens - Topic 1230

Admission - Immigrants - Application for admission - Immigrant visa - Duty of officer - Duty of fairness - The applicant applied under s. 72(1) of the Immigration and Refugee Protection Act for judicial review of a visa officer's decision to refuse her application for permanent residence in Canada under the provincial nominee class - The applicant argued, inter alia, that the visa officer had breached the duty of procedural fairness by failing to fulfill the regulatory duty to consult with the nominating province before rendering a negative substituted evaluation - The Federal Court rejected the argument - The duty to consult was discharged by the officer copying the Procedural Fairness Letter to the province and giving the province time to respond to the concerns raised - There was no breach of procedural fairness provided that the communication with the province actually occurred - There was no evidence to suggest otherwise - See paragraphs 44 to 50.

Aliens - Topic 1230.3

Admission - Immigrants - Application for admission - Immigrant visa - Provincial nominees - The applicant was a 43 year old citizen of Pakistan - She had been employed as a teacher in Pakistan since 1999 - She applied under s. 72(1) of the Immigration and Refugee Protection Act for judicial review of a visa officer's decision to refuse her application for permanent residence in Canada under the provincial nominee class - In his Procedural Fairness Letter, the officer advised the applicant that he was not satisfied that she could become economically established in Canada - He specifically addressed her English language test results in relation to both her intended (teaching) and nominated (cashier) occupations - The officer acknowledged the applicant's submissions regarding her family support in Saskatchewan but said that this support could not overcome his concerns regarding her English language proficiency and her ability to become economically established - The Federal Court dismissed the application - The applicant had no plan to pursue a teaching career, she had not produced the job offer for a cashier position, and she had only modest English language skills - It was not unreasonable for the officer to conclude that, as a cashier, she would need good language skills to communicate with customers - See paragraphs 53 to 64.

Aliens - Topic 1230.3

Admission - Immigrants - Application for admission - Immigrant visa - Provincial nominees - [See Aliens - Topic 1230 and Aliens - Topic 1304 ].

Aliens - Topic 1304

Admission - Immigrants - Judicial review - Scope or standard of - The applicant applied under s. 72(1) of the Immigration and Refugee Protection Act for judicial review of a visa officer's decision to refuse her application for permanent residence in Canada under the provincial nominee class - The applicant raised the following issues: (1) did the officer breach the duty of procedural fairness by failing to fulfill the regulatory duty to consult with the nominating province of Saskatchewan before rendering a negative substituted evaluation; (2) did the officer err in interpreting s. 87 ("Provincial Nominee Class") of the Regulations; and (3) was the officer's decision unreasonable by failing to consider all evidence before rendering the negative substituted evaluation - The Federal Court stated that the first issue was a matter of procedural fairness and there was no dispute that it should be reviewed on a correctness standard - The court's jurisprudence had established that the reasonableness standard applied to a visa officer's decision to substitute their evaluation for a provincial nomination certificate - See paragraphs 14 to 19.

Courts - Topic 82

Stare decisis - Authority of judicial decisions - Prior decisions of same court - Federal Court (incl. judicial comity) - The Federal Court stated that judicial comity required it to follow prior decisions of the court, provided that it was satisfied they were not wrong - See paragraphs 46 and 47.

Cases Noticed:

Dunsmuir v New Brunswick - see New Brunswick (Board of Management) v. Dunsmuir.

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 14].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, refd to. [para. 14].

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour) (2003), 304 N.R. 76; 173 O.A.C. 38; 2003 SCC 29, refd to. [para. 15].

Sketchley v. Canada (Attorney General) (2005), 344 N.R. 257; 2005 FCA 404, refd to. [para. 15].

Hilewitz v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 706; 340 N.R. 102; 2005 SCC 57, refd to. [para. 16].

Tathgur v. Canada (Minister of Citizenship and Immigration) (2007), 321 F.T.R. 102; 2007 FC 1293, refd to. [para. 16].

Debnath v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 586; 2010 FC 904, refd to. [para. 17].

Roohi v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. A20; 2008 FC 1408, refd to. [para. 17].

Wai v. Canada (Minister of Citizenship and Immigration) (2009), 348 F.T.R. 85; 2009 FC 780, refd to. [para. 18].

Sran v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 371; 2012 FC 791, refd to. [para. 18].

Noreen v. Canada (Minister of Citizenship and Immigration) (2013), 443 F.T.R. 19; 2013 FC 1169, refd to. [para. 18].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 19].

Kikeshian v. Canada (Minister of Citizenship and Immigration) (2011), 391 F.T.R. 52; 2011 FC 658, refd to. [para. 23].

Lakeland College Faculty Association and Kaai v. Lakeland College (1998), 223 A.R. 1; 183 W.A.C. 1; 1998 ABCA 221, refd to. [para. 24].

Margarosyan v. Canada (Minister of Citizenship and Immigration) (1996), 123 F.T.R. 196 (T.D.), refd to. [para. 26].

Rezaeiazar v. Canada (Minister of Citizenship and Immigration) (2013), 436 F.T.R. 41; 2013 FC 761, refd to. [para. 26].

Dogra v. Canada (Minister of Citizenship and Immigration) (1999), 166 F.T.R. 264 (T.D.), refd to. [para. 32].

Kousar v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 1; 2014 FC 12, refd to. [para. 38].

Uddin v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 493; 2012 FC 1005, refd to. [para. 40].

Hui v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 669; 2011 FC 1098, refd to. [para. 46].

Bhamra v. Canada (Minister of Citizenship and Immigration), [2014] F.T.R. Uned. 89; 2014 FC 239, refd to. [para. 46].

Allergan Inc. et al. v. Canada (Minister of Health) et al. (2012), 440 N.R. 269; 2012 FCA 308, appld. [para. 47].

Statutes Noticed:

Immigration and Refugee Protection Act Regulations (Can.), Immigration and Refugee Protection Regulations SOR/2002-227, sect. 87 [para. 20].

Counsel:

Haidah Amirzadeh, for the applicant;

Don Klassen, for the respondent.

Solicitors of Record:

Amirzadeh Law Office, Saskatoon, Saskatchewan, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Saskatoon, Saskatchewan, for the respondent.

This application was heard at Saskatoon, Saskatchewan, on September 4, 2014, by Russell, J., of the Federal Court, who delivered the following decision at Ottawa, Ontario, on September 26, 2014.