Rezaeiazar v. Canada (Minister of Citizenship and Immigration), (2013) 436 F.T.R. 41 (FC)

• Judge: Russell, J.
• Court: Federal Court (Canada)
• Case Date: June 06, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 436 F.T.R. 41 (FC);2013 FC 761

Rezaeiazar v. Can. (M.C.I.) (2013), 436 F.T.R. 41 (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: [2013] F.T.R. TBEd. JL.011

Neda Rezaeiazar (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-8253-12; 2013 FC 761; 2013 CF 761)

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

Federal Court

Russell, J.

July 8, 2013.

Summary:

The applicant was a citizen of Iran. She applied to immigrate to Canada as a Federal Skilled Worker under National Occupation Code 4121 (University Professor). A visa officer refused the application. The applicant applied for judicial review.

The Federal Court allowed the application, quashed the visa officer's decision and returned the matter for reconsideration by a different officer.

Aliens - Topic 1230.4

Admission - Immigrants - Application for admission - Immigrant visa - Skilled workers - The applicant was a citizen of Iran - She applied to immigrate to Canada as a Federal Skilled Worker under National Occupation Code 4121 (University Professor) - Although the applicant scored 70 points under the scheme set up pursuant to s. 76 of the Immigration and Refugee Protection Regulations, the officer was of the opinion that the applicant's points score did not reflect her actual potential to become established in Canada as a University Professor and the officer denied her application by way of substituted evaluation under s. 76(3) of the Regulations - The applicant applied for judicial review - The applicant said that the officer failed to consider her ongoing language training - The Federal Court stated that "the Officer refers to and considers the Applicant's submissions on her efforts to improve her English by taking further training. The decision is based upon the fact that no new IELTS [International English Language Testing System] scores are submitted. In my view, there is nothing unreasonable in the Officer requiring the usual proof of language efficiency, and the Applicant did not formally ask for further time to take the test and submit new scores" - See paragraph 75.

Aliens - Topic 1230.4

Admission - Immigrants - Application for admission - Immigrant visa - Skilled workers - The applicant was a citizen of Iran - She applied to immigrate to Canada as a Federal Skilled Worker under National Occupation Code 4121 (University Professor) - Although the applicant scored 70 points under the scheme set up pursuant to s. 76 of the Immigration and Refugee Protection Regulations, the officer was of the opinion that the applicant's points score did not reflect her actual potential to become established in Canada as a University Professor and the officer denied her application by way of substituted evaluation under s. 76(3) of the Regulations - The applicant applied for judicial review - The applicant said that the officer placed too much emphasis on a lack of Western experience - The Federal Court stated that "the Officer does not base his Decision upon a lack of 'Western experiences.' There is no assessing of the Canadian relevance of the Applicant's education or the equivalence of the Applicant's overseas qualifications. As Justice Evans points out in Dogra 'immigration policy is placing increasing emphasis on Applicants' adaptability and flexibility' and this is what the Officer is looking at. The Applicant has limited international experience, limited work experience, no demonstrated proficiency in English, and lacks a PhD. She presently lacks the basic prerequisites for an academic posting in Canada. It is the whole picture that was assessed and there was no undue emphasis on the lack of Western or global experience" - The officer's consideration of these factors was not unreasonable - See paragraphs 83 to 84.

Aliens - Topic 1230.4

Admission - Immigrants - Application for admission - Immigrant visa - Skilled workers - The applicant, a citizen of Iran, applied to immigrate to Canada as a Federal Skilled Worker under National Occupation Code 4121 (University Professor) - Although the applicant scored 70 points under the scheme set up pursuant to s. 76 of the Immigration and Refugee Protection Regulations, the officer was of the opinion that the applicant's points score did not reflect her actual potential to become established in Canada as a University Professor and the officer denied her application by way of substituted evaluation under s. 76(3) of the Regulations - The applicant applied for judicial review - The Federal Court allowed the application - The court had interpreted the legislative requirements to mean that an individual only had to demonstrate that they would be able to become economically self-sufficient in Canada - The officer's decision was unreasonable because the officer assumed that the applicant was obliged to demonstrate immediate economic self-sufficiency either as a University Professor, or at least as a skilled worker, and failed to take into account the applicant's brother's offer and guarantee of economic support until the applicant and her husband had achieved their professional goals - See paragraphs 77 to 85.

Aliens - Topic 1233.1

Admission - Immigrants - Application for admission - Immigrant visa - Units of assessment - Language - [See first Aliens - Topic 1230.4 ].

Aliens - Topic 1233.2

Admission - Immigrants - Application for admission - Immigrant visa - Units of assessment - Discretion to refuse visa - [See third Aliens - Topic 1230.4 ].

Aliens - Topic 1239

Admission - Immigrants - Application for admission - Reasons for decision - A visa officer refused the applicant's application for permanent residence in Canada as a member of the Federal Skilled Worker class - The applicant applied for judicial review - The Federal Court held that the Global Case Management System (GCMS) Notes made by the officer formed part of the reasons for the officer's decision - The court stated that "It may be that, in some cases, a decision letter may contain the whole of a decision, but that is not the case with the present application where, in my view, the Decision cannot be fully understood without reference to the GCMS notes" - See paragraph 58 to 60.

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 20].

Kuhathasan v. Canada (Minister of Citizenship and Immigration), 2008 FC 457, refd to. [para. 21].

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539; 304 N.R. 76; 173 O.A.C. 38, refd to. [para. 21].

Kniazeva v. Canada (Minister of Citizenship and Immigration) (2006), 288 F.T.R. 282; 2006 FC 268, refd to. [para. 21].

Ali v. Canada (Minister of Citizenship and Immigration) (2011), 398 F.T.R. 303; 2011 FC 1247, refd to. [para. 22].

Hamza v. Canada (Minister of Citizenship and Immigration) (2013), 429 F.T.R. 93; 2013 FC 264, refd to. [para. 22].

Khosa v. Canada (Minister of Citizenship and Immigration) (2009), 385 N.R. 206; 2009 SCC 12, refd to. [para. 23].

Sadeghi v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 337; 254 N.R. 337 (F.C.A.), refd to. [para. 26].

Vandi v. Canada (Minister of Citizenship and Immigration), [2002] F.T.R. Uned. 367; 2002 FCT 515, refd to. [para. 30].

Talpur et al. v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 13; 2012 FC 25, refd to. [para. 34].

Hameed v. Canada (Minister of Citizenship and Immigration) (2001), 268 N.R. 185 (F.C.A.), refd to. [para. 36].

Margarosyan v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1538 (T.D.), refd to. [para. 40].

Dogra v. Canada (Minister of Citizenship and Immigration) (1999), 166 F.T.R. 264 (T.D.), refd to. [para. 41].

He v. Canada (Minister of Citizenship and Immigration) (2012), 403 F.T.R. 207; 2012 FC 33, refd to. [para. 44].

Heer v. Canada (Minister of Citizenship and Immigration) (2001), 215 F.T.R. 57; 2001 FCT 1357, refd to. [para. 44].

Sivayogaraja v. Canada (Minister of Citizenship and Immigration), [2010] F.T.R. Uned. 780; 2010 FC 1112, refd to. [para. 46].

Silva v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 476; 2007 FC 733, refd to. [para. 47].

Asghar v. Canada (Minister of Citizenship and Immigration), [1997] F.T.R. Uned. 450 (T.D.), refd to. [para. 48].

Gracheva et al. v. Canada (Minister of Citizenship and Immigration) (1998), 147 F.T.R. 301 (T.D.), refd to. [para. 51].

Kainth v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 109; 2007 FC 175, refd to. [para. 52].

Wai v. Canada (Minister of Citizenship and Immigration) (2009), 348 F.T.R. 85; 2009 FC 780, refd to. [para. 52].

Veryamani v. Canada (Minister of Citizenship and Immigration) (2010), 379 F.T.R. 153 (F.C.), refd to. [para. 58].

Ziaei et al. v. Canada (Minister of Citizenship and Immigration), [2007] F.T.R. Uned. 788; 66 Imm. L.R.(3d) 287; 2007 FC 1169, refd to. [para. 59].

Roohi v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. A20; 2008 FC 1408, refd to. [para. 82].

Uddin v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 493; 2012 FC 1005, refd to. [para. 82].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 11(1) [para. 24]; sect. 12(2) [para. 78].

Immigration and Refugee Protection Regulations, SOR/2002-227, sect. 75(1), sect. 76(1), sect. 76(3) [para. 25].

Counsel:

Jacqueline Swaisland, for the applicant;

Stephen Jarvis, for the respondent.

Solicitors of Record:

Waldman & Associates, Toronto, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on June 6, 2013, at Toronto, Ontario, before Russell, J., of the Federal Court, who delivered the following decision on July 8, 2013.