Wai v. Canada (Minister of Citizenship and Immigration), (2009) 348 F.T.R. 85 (FC)

• Judge: Russell, J.
• Court: Federal Court (Canada)
• Case Date: July 15, 2009
• Jurisdiction: Canada (Federal)
• Citations: (2009), 348 F.T.R. 85 (FC);2009 FC 780

Wai v. Can. (M.C.I.) (2009), 348 F.T.R. 85 (FC)

MLB headnote and full text

Temp. Cite: [2009] F.T.R. TBEd. AU.026

Suleiman Sheku Wai (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-5606-08; 2009 FC 780)

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

Federal Court

Russell, J.

July 29, 2009.

Summary:

An officer of Citizenship and Immigration Canada refused the applicant's application for permanent residence in Canada under the provincial nominee class. The officer was not satisfied that the applicant, who was named in a nomination certificate issued by the province of Manitoba, was likely to become economically established in Canada. A second officer concurred with that evaluation. The applicant applied for judicial review. The applicant argued that the refusal of his application was unreasonable and that the officer and the concurring officer failed to provide adequate reasons.

The Federal Court dismissed the application.

Aliens - Topic 1230.3

Admission - Immigrants - Application for admission - Immigrant visa - Provincial nominees - [See Aliens - Topic 1239 ].

Aliens - Topic 1230.3

Admission - Immigrants - Application for admission - Immigrant visa - Provincial nominees - An officer of Citizenship and Immigration Canada refused the applicant's application for permanent residence in Canada under the provincial nominee class - The officer was not satisfied that the applicant, who was named in a nomination certificate issued by the province of Manitoba, was likely to become economically established in Canada - The applicant applied for judicial review - The applicant submitted that a certain degree of deference was owed to the Manitoba Provincial Nominee Program in determining whether the applicant was likely to become economically established in Canada - The Federal Court dismissed the application - Under the relevant legislation, as well as the agreement between Manitoba and Canada, the province would, in the normal course, be afforded deference once it had issued a nomination certificate - However, s. 87(3) of the Immigration and Refugee Protection Regulations provided that an officer could substitute their own evaluation on the likelihood of economic establishment - The criteria used were clear from the CAIPS notes and the officer provided clear reasons on what she took into account and why she was not convinced that the applicant had the initiative to become economically established in Canada - The court did not see that any relevant criteria were overlooked and it could not say that the issues which caused the officer to render a negative decision were not relevant - Although the applicant convinced the court that a positive decision would have been reasonable, that did not mean that the officer's negative decision was unreasonable - The court could not say that the officer's decision was unreasonable - There was justification, transparency and intelligibility throughout the decision making process and the decision fell within the required range - See paragraphs 39 to 50.

Aliens - Topic 1239

Admission - Immigrants - Application for admission - Reasons for decision - Section 87(3) of the Immigration and Refugee Protection Regulations provided that if the fact that a foreign national was named in a nomination certificate issued by a provincial government was not a sufficient indicator of whether they may become economically established in Canada, and an officer had consulted with the government that issued the certificate, the officer could substitute for the criteria set out in s. 87(2) their own evaluation of the likelihood of the ability of the foreign national to become economically established in Canada - Section 87(4) of the Regulations stipulated that a substitute evaluation under s. 87(3) required "the concurrence of a second officer" - The applicant argued that a concurring decision required some kind of minimal analysis with reasons that referred to the facts in the case - The Federal Court stated that "Concurrence requires that the second officer must read the evaluation and indicate that he or she agrees with it" - The decision of the second officer in this case read "I concur with this assessment. [The applicant] has made no effort to establish himself economically in Canada over the past two years and is not likely to do so in the future" - The court stated that "In this context, I do not think that anything further is required to satisfy s. 87(4) of the Regulations or to provide adequate reasons. It is clear that the second officer agrees with the whole assessment and the reasons it contains. His decision stands or falls with that of the first officer" - See paragraphs 51 to 55.

Aliens - Topic 1304

Admission - Immigrants - Judicial review - Scope or standard of - An officer of Citizenship and Immigration Canada refused the applicant's application for permanent residence in Canada under the provincial nominee class - The officer was not satisfied that the applicant, who was named in a nomination certificate issued by the province of Manitoba, was likely to become economically established in Canada - A second officer concurred with that evaluation - The applicant applied for judicial review, raising the issue of whether the officer and the concurring officer committed a reviewable error in refusing his application for permanent residence - The Federal Court held that, in light of the Supreme Court of Canada's decision in Dunsmuir and the previous jurisprudence of the court, the standard of review applicable to the general issues raised in the application was reasonableness - With respect to a procedural fairness issue raised (adequacy of the reasons), the standard of review was correctness - See paragraphs 14 to 19.

Cases Noticed:

Mbala v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 609; 2006 FC 1057, refd to. [para. 14].

Roohi v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. A20; 2008 FC 1408, refd to. [para. 15].

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. 15].

Suresh v. Canada (Minister of Citizenship and Immigration) (2002), 281 N.R. 1; 2002 SCC 1, refd to. [para. 19].

Fakharian v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 278; 2009 FC 440, refd to. [para. 30].

Belkacem v. Canada (Minister of Citizenship and Immigration), [2008] F.T.R. Uned. 287; 2008 FC 375, refd to. [para. 30].

Huang et al. v. Canada (Minister of Citizenship and Immigration), [2009] F.T.R. Uned. 79; 2009 FC 135, refd to. [para. 30].

Hassani v. Canada (Minister of Citizenship and Immigration) (2006), 302 F.T.R. 39; 2006 FC 1283, refd to. [para. 43].

Obeng v. Canada (Minister of Citizenship and Immigration) (2008), 330 F.T.R. 196; 2008 FC 754, refd to. [para. 57].

Statutes Noticed:

Immigration and Refugee Protection Act Regulations (Can.), Immigration and Refugee Protection Regulations, SOR/2002-227, sect. 87(1), sect. 87(2), sect. 87(3) [para. 11]; sect. 87(4) [para. 51].

Immigration and Refugee Protection Regulations - see Immigration and Refugee Protection Act Regulations (Can.).

Counsel:

Hafeez Khan, for the applicant;

Nalini Reddy, for the respondent.

Solicitors of Record:

Hafeez Khan, Winnipeg, Manitoba, for the applicant;

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on July 15, 2009, at Winnipeg, Manitoba, before Russell, J., of the Federal Court, who delivered the following decision on July 29, 2009.