There is no positive duty on an immigration officer to reconsider an application for permanent residence of a skilled worker applicant pursuant to 76(3) of the Immigration and Refugee Protection Regulations . Judicial review is not justified.

This is an application by Mr. Grigaliunas for a judicial review of the refusal of an immigration officer to revisit his application for permanent residence as a member of the skilled workers class after the new evidence was provided.

Facts: The applicant, Grigaliunas, submitted an application for permanent residence in the skilled worker class in November 2010. His application was refused on January 7, 2011 on the grounds that he had obtained only 65 of 67 minimum points required under the skilled workers class and thus failed to prove his ability to become economically established in Canada.

In February 2011 the Plaintiff sent a detailed application for reconsideration of the decision referring the immigration officer to the subsection 76(3) of the Immigration and Refugee Protection Regulations that reads:

Circumstances for officer’s substituted evaluation

(3) Whether or not the skilled worker has been awarded the minimum number of required points referred to in subsection (2), an officer may substitute for the criteria set out in paragraph (1)(a) their evaluation of the likelihood of the ability of the skilled worker to become economically established in Canada if the number of points awarded is not a sufficient indicator of whether the skilled worker may become economically established in Canada.

The applicant also attached a new document dated February 2011 in support of his application. The immigration officer rejected the application for reconsideration on March 2, 2011 satisfied with the evaluation of the first application. The documents received after January 2011 were not taken into consideration.

The applicant claimed that the immigration officer erred 1) by refusing to exercise his discretion pursuant to s 76(3) and take into account his financial standing as a more accurate reflection of his ability to become economically established in Canada and 2) by refusing to consider the new evidence.

The respondent, the Minister of Citizenship and Immigration, claimed that the immigration officer is not required to reconsider applications and that officers cannot exercise their discretion to consider applicants’ settlement funds.

Issue: Is the decision rejecting the application for reconsideration using the substituted evaluation method reasonable under the circumstances.

Rules:

The Immigration and Refugee Protection Act, SC 2001, c 27, ss 2(2), 11(1), and 12(2). http://laws-lois.justice.gc.ca/eng/acts/I-2.5/index.html

The Immigration and Refugee Protection Regulations, SOR/2002-227, ss 75(1), 76. http://laws-lois.justice.gc.ca/eng/regulations/SOR-2002-227/

Held:

The Court held that an immigration officer is not obliged to reconsider an application for permanent residence and a decision to use a substituted evaluation method is dependent upon the officer’s discretion. The court also concluded that it is open to the immigration officer not to consider new evidence and that an immigration officer has the discretion to exercise substituted evaluation in light of an applicant’s financial standing.

First, the Court made sure to emphasize the importance of showing deference to the discretion of an administrative decision maker (para 17 per Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para 49).

The subsection 76(3) of the Regulations states that the officer may use the substituted criteria for his/her evaluation. According to the Manual OP 6: “Federal Skilled Worker” the substituted evaluation by an immigration officer should be done on a case-by-case basis. An officer should believe that an applicant’s point total is not indicative of an applicant’s ability to become economically established in Canada. Furthermore, in applying the substitute evaluation an immigration officer cannot be limited by the list of factors contained in the Regulations in support of exercising substituted evaluation.

Second, The Court concluded that the immigration officer is not obliged to consider new evidence in application for reconsideration of a previous decision. The facts of the case demonstrate that the immigration officer did consider the possibility of exercising his discretion and it was up to the officer not to consider the new evidence.

Third, in regards to the evaluation of the financial standing of an applicant by the immigration officer, the Court decided that it was open to an immigration officer to make evaluations in light of an applicant’s funds.

The Court cited a decision in Xu v Canada (Citizenship and Immigration), 2010 FC 418, where it is stated that there is no requirement under s 76(3) upon an immigration officer to consider an applicant’s settlement funds, but this does not preclude an officer from considering the funds.

Furthermore, the Court referred to Lackhee v Canada (Minister of Citizenship and Immigration), 2008 FC 1270, 337 FTR 299 where it is stated that an immigration officer should be open to consider an applicant’s settlement funds if the applicant can put forward a case showing that the point calculation is not indicative of an economic establishment in Canada.

Finally, according to the available case law on the matter, an immigration officer is under no obligation to give reasons for his/her decisions not to exercise his/her discretion pursuant to s 76(3) of the Immigration and Refugee Protection Regulations (at para 22).

Decision: Judicial review is not justified. The immigration officer acted reasonably.