IMM-2167-20
2021 FC 721
Ly Thi Chuc Tran (Applicant)
v.
Minister of Citizenship and Immigration (Respondent)
Indexed as: Tran v. Canada (Citizenship and Immigration)
Federal Court, Ahmed J.—By videoconference (between Charlottetown, Halifax and Ottawa), May 13; Ottawa, July 7, 2021.
Citizenship and Immigration — Status in Canada — Permanent Residents — Provincial Nominee Program — Judicial review of visa officer’s decision refusing applicant’s permanent residence application under Provincial Nominee Program (PNP) — Application made under Immigration and Refugee Protection Regulations, s. 87(2)(a) — Applicant claiming intent to start business in New Brunswick — Officer not satisfied applicant intending to reside in New Brunswick — Officer not obtaining concurring opinion pursuant to s. 87(4) before rendering decision — Applicant submitting that individual presumed to have ability to become economically established in Canada when nominated by New Brunswick under PNP — Whether officer erred by not rebutting presumption; by not obtaining concurring opinion; by breaching duty of fairness — Plain reading of Canada–New Brunswick Immigration Agreement, Overseas Processing manual OP 7-B Provincial Nominees (OP 7-B) not giving rise to asserted presumption — Officer’s assessment of applicant’s intent to reside in chosen province taking into account family ties, history of travel, incomplete business plan — No reviewable error identified within officer’s decision — Officer’s interpretation, application of s. 87 internally coherent, justified — Officer not required to obtain second officer’s concurring opinion — One’s ability to become economically established in entire country not determinative of one’s intent to live in particular province, or vice-versa — Visa officer’s authority to substitute evaluation for criteria under s. 87(2) triggered by fact that foreign national being named in provincial nomination certificate not sufficient indicator of whether they may become economically established in Canada — S. 87(3) solely contemplating issuance of certificate under s. 87(2)(a), not one’s intent to reside in nominating province under s. 87(2)(b) — Officer’s decision justified even if OP 7-B may permit different interpretation of s. 87 — Officer not breaching duty of fairness to applicant — Application dismissed.
This was an application for judicial review of a decision by a visa officer refusing the applicant’s permanent residence application under the Provincial Nominee Program (PNP).
The applicant, a Vietnamese national, owns a company in Vietnam that provides security equipment for marine vessels. In support of her application for permanent residency, the applicant attached a certificate from New Brunswick, nominating her for the PNP under the entrepreneurial stream pursuant to paragraph 87(2)(a) of the Immigration and Refugee Protection Regulations. Under subsection 87(2), a foreign national must be nominated by a provincial government and intend to reside in that province to become a permanent resident under the PNP. The applicant claimed she intended to start a business in Saint John, New Brunswick that trades marine security products. The officer raised several concerns regarding the applicant’s credibility. The officer explained they were not satisfied the applicant intended to reside in New Brunswick. A New Brunswick official concurred with the visa officer’s preliminary assessment. In refusing the application, the officer stated, inter alia, that the applicant’s responses did not offset the factors weighing against her. The officer did not consult with a second officer to obtain a concurring opinion pursuant to subsection 87(4) of the IRPR before rendering their decision.
The applicant submitted that when a foreign national is nominated by New Brunswick under the PNP, there is a presumption that individual has the ability to become economically established in Canada. The applicant asserted such a presumption is created under the Canada–New Brunswick Immigration Agreement – Annex A: Provincial Nominees. According to the applicant, the officer’s determination that the applicant does not intend to reside in New Brunswick was unreasonable in light of the contrary presumption.
At issue was whether the officer erred by not rebutting the presumption created by the Canada–New Brunswick Agreement, whether the officer erred by not obtaining a concurring opinion from a second officer, and whether the officer breached their duty of fairness.
Held, the application should be dismissed.
A plain reading of the Canada–New Brunswick Agreement and Immigration, Refugees, and Citizenship Canada’s Overseas Processing manual OP 7-B Provincial Nominees (OP 7-B) does not give rise to the presumption asserted by the applicant. The Officer did not dispute that the applicant could become economically established in Canada, but rather that the applicant did not intend to reside in New Brunswick. These determinations are not mutually inclusive. The intention to reside in a chosen province is a highly subjective criterion, and the assessment of said criterion may take into account all indicia. Here, the officer weighed, inter alia, the applicant’s family ties, her history of travel to Ontario and British Columbia, and her incomplete business plan. The applicant did not identify a reviewable error within the officer’s decision. The officer’s interpretation and application of section 87 of the Regulations was internally coherent and justified in relation to the relevant law. The officer reasonably concluded they were not required to obtain a second officer’s concurring opinion before determining the applicant did not intend to reside in New Brunswick. The case law supports the officer’s conclusion. A foreign national’s intent to reside in a nominating province and their ability to become economically established in Canada are “not equivalent.” It is self-evident that one could have the means and ability to become economically established in Canada but not intend to reside in the province that nominated them. One’s ability to become economically established in the entire country is not determinative of one’s intent to live in a particular province, or vice versa. The officer’s interpretation was justified in light of the wording of subsection 87(3) of the Regulations. Under that provision, a visa officer’s authority to substitute their evaluation for the criteria under subsection 87(2) is triggered by the fact that a foreign national being named in a provincial nomination certificate is not a sufficient indicator of whether they may become economically established in Canada. The language of subsection 87(3) pertains to the “criteria set out in subsection (2)” and thus at first glance captures both criteria under that provision. However, this broad language is limited by the fact that subsection 87(3) solely contemplates the issuing of a provincial nomination certificate under paragraph 87(2)(a), not one’s intent to reside in the nominating province under paragraph 87(2)(b). While the broad language of OP 7-B may permit an interpretation of section 87 that is different than the one reached by the officer, the officer’s decision was nonetheless justified. Finally, the officer did not breach their duty of fairness to the applicant. The officer clearly explained their concerns to the applicant and provided the applicant with opportunities to address them.
STATUTES AND REGULATIONS CITED
Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 74(d).
Immigration and Refugee Protection Regulations, SOR/2002-227, s. 87.
TREATIES AND OTHER INSTRUMENTS CITED
Canada-New Brunswick Immigration Agreement – Overseas Processing Manual OP 7-B: "Provincial Nominees", 2017, ss. 4.18, 4.20.
CASES CITED
APPLIED:
Bano v. Canada (Citizenship and Immigration), 2020 FC 568; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653; Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196, [2021] 1 F.C.R. 271; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, (1999), 174 D.L.R. (4th) 193; Kikeshian v. Canada (Citizenship and Immigration), 2011 FC 658, 391 F.T.R. 52; Ransanz v. Canada (Public Safety and Emergency Preparedness), 2015 FC 1109.
DISTINGUISHED:
Hassan v. Canada (Immigration, Refugees and Citizenship), 2019 FC 1096; Begum v. Canada (Citizenship and Immigration), 2020 FC 162; Gedara v. Canada (Citizenship and Immigration), 2016 FC 209; Bideh v. New Brunswick (Minister of Post-Secondary Education, Training and Labour), 2016 NBQB 192, 47 Imm. L.R. (4th) 287.
CONSIDERED:
Yan v. Canada (Citizenship and Immigration), 2017 FC 146; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, (1998), 36 O.R. (3d) 418; Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22, [2018] 3 F.C.R. 674.
REFERRED TO:
Torres v. Canada (Citizenship and Immigration), 2019 FC 150; Nwachukwu v. Canada (Citizenship and Immigration), 2020 FC 122; Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69, [2019] 1 F.C.R. 121; Rabbani v. Canada (Citizenship and Immigration), 2020 FC 257; Dhesi v. Canada (Attorney General), 2018 FC 283; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Azenabor v. Canada (Citizenship and Immigration), 2020 FC 1160; Sran v. Canada (Citizenship and Immigration), 2012 FC 791, 11 Imm. L.R. (4th) 74; Yasmin v. Canada (Citizenship and Immigration), 2018 FC 38; Ali v. Canada (Citizenship and Immigration), 2011 FC 1247, 398 F.T.R. 303; De Azeem v. Canada (Citizenship and Immigration), 2015 FC 1043; Khwaja v. Canada (Citizenship and Immigration), 2006 FC 522; Mudrak v. Canada (Citizenship and Immigration), 2016 FCA 178, 43 Imm. L.R. (4th) 199.
AUTHORS CITED
Immigration, Refugees, and Citizenship Canada. OP 7-B Provincial Nominees, 2014.
APPLICATION for judicial review of a decision by a visa officer refusing the applicant’s permanent residence application under the Provincial Nominee Program. Application dismissed.
APPEARANCES
Gary Scales and Duncan Sturz for applicant.
Amy Smeltzer for respondent.
SOLICITORS OF RECORD
McInnes Cooper, Charlottetown, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment and judgment rendered in English by
Ahmed J.:
I. Overview
[1] The applicant, Ms. Ly Thi Chuc Tran, seeks judicial review of a decision of a visa officer (the Officer) of Immigration, Refugees, and Citizenship Canada (IRCC), refusing the applicant’s permanent residence application under the Provincial Nominee Program (PNP). The Officer found the applicant did not intend to reside in New Brunswick, the province that nominated her under the PNP, as required under paragraph 87(2)(b) of the Immigration and Refugee Protection Regulations, SOR/2002-227 (IRPR).
[2] The applicant submits the Officer committed two reviewable errors. First, the applicant asserts the Officer failed to rebut the presumption arising from the applicant’s provincial nomination under the PNP that she intended to reside in New Brunswick. Second, the applicant asserts the Officer failed to obtain a concurring opinion from a second officer before refusing her application pursuant to subsections 87(3) and 87(4) of the IRPR.
[3] In addition, the applicant submits the Officer breached their duty of fairness by not providing the applicant with an opportunity to respond to their credibility concerns.
[4] In my view, the Officer’s decision is reasonable. The Officer provided justified, transparent, and intelligible reasons for determining the applicant was unlikely to reside in New Brunswick. The applicant essentially asks the Court to reweigh the evidence before the Officer and reach a different outcome, which this Court must refrain from doing. I further find it was reasonable for the Officer not to obtain a concurring opinion pursuant to subsection 87(4) of the IRPR, as that provision only applies to a determination that a foreign national is unlikely to become economically established in Canada.
[5] Finally, I find the Officer did not breach their duty of fairness, as the Officer provided the applicant with sufficient opportunities to respond to their credibility concerns during the interview. I therefore dismiss this application for judicial review.
II. Facts
A. The Applicant
[6] The applicant is a 43-year-old Vietnamese national. She is the owner of a successful company in Vietnam that provides security equipment for marine vessels.
[7] On June 25, 2018, the applicant, along with her spouse and four children (born 2005, 2009, 2010, and 2017), applied for permanent residency as a member of the provincial nominee class under section 87 of the IRPR. In support of her application, the applicant attached a certificate from New Brunswick, nominating her for the PNP under the entrepreneurial stream pursuant to paragraph 87(2)(a) of the IRPR. The applicant claimed she intended to start a business in Saint John, New Brunswick that trades marine security products.
B. Decision Under Review
[8] On January 17, 2020, the Officer interviewed the applicant to assess her intent to start a business and reside in New Brunswick. The interview and subsequent correspondence are described in the Officer’s Global Case Management System (GCMS) notes, which form part of the reasons for the Officer’s decision (Torres v. Canada (Citizenship and Immigration), 2019 FC 150, at paragraph 19).
[9] Over the course of the January 17, 2020, interview, the Officer raised several concerns regarding the applicant’s credibility, including:
(a) The applicant asserted in her permanent residence application, subsequent forms, and at the interview that no one in her family had been previously refused a Canadian visa, but she later acknowledged that her children had been previously refused visitor visas.
(b) The applicant asserted in her permanent residence application that her youngest child was born in Vietnam, but she later acknowledged her youngest child was born in Canada in 2017.
(c) The applicant asserted she intended to start a business in New Brunswick, but her only business plan was the template form that New Brunswick required her to complete for her PNP application. The applicant’s business plan did not demonstrate market research, marketing strategies, and revenue projections, and the applicant did not complete the section of the form asking about industry regulations, permits, and licences.
[10] In an email dated January 30, 2020, to a New Brunswick official, the Officer explained they were not satisfied the applicant intended to reside in New Brunswick because:
(a) The applicant’s credibility was impugned by her inconsistent statements regarding past visa refusals and her youngest child’s country of birth.
(b) The applicant travelled to Canada when she was 28 weeks pregnant and remained in Canada to give birth. While the applicant asserted she remained in Canada due to complications with her pregnancy, the Officer concluded it was likely for the purposes of obtaining citizenship for her child (i.e., “birth tourism”).
(c) The applicant’s close relatives in Ontario and British Columbia created a “pull” factor to live in those provinces rather than New Brunswick.
(d) The applicant had visited Canada twice but she had only visited New Brunswick once for a week. The applicant acknowledged this visit was insufficient to know if she wanted her family to live in New Brunswick permanently.
(e) The applicant’s focus seemed to be on obtaining status for her children and enabling them to study in Canada.
(f) The applicant’s business plan was lacking in the detail reasonably expected of a new business.
[11] In an email dated January 30, 2020, the New Brunswick official concurred with the Officer’s preliminary assessment that the applicant likely misrepresented herself in her application and may not have a genuine interest to reside in New Brunswick.
[12] In a decision dated January 31, 2020, the Officer refused the applicant’s permanent residence application. In particular, the Officer stated:
Following a full review it has been determined that you are unlikely to reside in the nominating province if and when a permanent resident visa is issued to you. The factors leading to this determination were outlined to you at an interview held in Ho Chi Minh City on January 17, 2020. Your responses to these concerns were considered in full, but the conclusion is that they do not offset the factors weighing against you.
It is therefore determined that you do not meet the requirements of subsection 87(2) of the IRPR and are not considered a member of the provincial nominee class. As a result, your application has been refused.
[13] The Officer did not consult with a second officer to obtain a concurring opinion pursuant to subsection 87(4) of the IRPR before rendering their decision.
III. Issues and Standard of Review
[14] This application for judicial review raises the following issues:
A. Did the Officer err by not rebutting the presumption created by the Canada–New Brunswick Agreement?
B. Did the Officer err by not obtaining a concurring opinion from a second officer?
C. Did the Officer breach their duty of fairness?
[15] It is common ground between the parties that the first and second issues are reviewed upon the reasonableness standard, whereas the third issue is reviewed upon the correctness standard.
[16] I agree. Issues pertaining to a visa officer’s decision on a permanent residence application under the PNP are reviewed upon the reasonableness standard (Bano v. Canada (Citizenship and Immigration), 2020 FC 568 (Bano), at paragraphs 13–14, citing Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 (Vavilov)), whereas issues of procedural fairness are reviewed upon what is best reflected in the correctness standard (Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196, [2021] 1 F.C.R. 271, at paragraph 35).
[17] I note, however, a small disagreement on this matter. The applicant asserts the Officer’s decision not to consult with a second officer pursuant to subsection 87(4) of the IRPR constitutes a breach of procedural fairness and is therefore reviewed on a correctness standard.
[18] I disagree. A decision maker’s interpretation of their home statute attracts a presumption of reasonableness (Vavilov, at paragraph 25). This aspect of the Officer’s decision involves the interpretation and application of the IRPR and no grounds for rebutting the presumption of reasonableness apply (Vavilov, at paragraph 17; see also Nwachukwu v. Canada (Citizenship and Immigration), 2020 FC 122, at paragraph 9). Further, the applicant has not established that consulting with a second officer is a right guaranteed to her under the principles of procedural fairness, rather than under the IRPR.
[19] Reasonableness is a deferential, but robust, standard of review (Vavilov, at paragraphs 12–13). The reviewing court must determine whether the decision under review, including both its rationale and outcome, is transparent, intelligible and justified (Vavilov, at paragraph 15). A reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker (Vavilov, at paragraph 85). Whether a decision is reasonable depends on the relevant administrative setting, the record before the decision maker, and the impact of the decision on those affected by its consequences (Vavilov, at paragraphs 88–90, 94 and 133–135).
[20] For a decision to be unreasonable, the applicant must establish the decision contains flaws that are sufficiently central or significant (Vavilov, at paragraph 100). A reviewing court must refrain from reweighing evidence before the decision maker, and it should not interfere with factual findings absent exceptional circumstances (Vavilov, at paragraph 125).
[21] Correctness, in contrast, is a non-deferential standard of review. The central question for issues of procedural fairness is whether the procedure was fair having regard to all of the circumstances, including the factors enumerated in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, (1999), 174 D.L.R. (4th) 193, at paragraphs 21–28 (Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69, [2019] 1 F.C.R. 121, at paragraph 54).
IV. Analysis
A. Did the Officer err by not rebutting the presumption created by the Canada–New Brunswick Agreement?
[22] The PNP grants a certain degree of autonomy to provinces and territories to select foreign nationals that meet their jurisdiction’s particular needs, provided the chosen candidates can become “economically established” in Canada (Bano, at paragraph 18). This requirement is reflected under subsection 87(1) of the IRPR:
Class
87 (1) For the purposes of subsection 12(2) of the Act, the provincial nominee class is hereby prescribed as a class of persons who may become permanent residents on the basis of their ability to become economically established in Canada.
[23] Under subsection 87(2) of the IRPR, a foreign national must be nominated by a provincial government and intend to reside in that province to become a permanent resident under the PNP:
87 …
Member of the class
(2) A foreign national is a member of the provincial nominee class if
(a) subject to subsection (5), they are named in a nomination certificate issued by the government of a province under a provincial nomination agreement between that province and the Minister; and
(b) they intend to reside in the province that has nominated them.
[24] The applicant submits that when a foreign national is nominated by New Brunswick under the PNP, there is a presumption that individual has the ability to become economically established in Canada. The applicant asserts such a presumption is created under Annex A of the Canada–New Brunswick Immigration Agreement – Annex A: Provincial Nominees, 2017 (the “Canada-New Brunswick Agreement”), which states:
4.0 Assessment and Nomination
4.1 New Brunswick has the sole and non-transferable responsibility to assess and nominate candidates who, in New Brunswick’s determination:
4.1.1 Will be of benefit to the economic development of New Brunswick; and
4.1.2 Have the ability and intention to economically establish and permanently settle in New Brunswick subject to sections 4.2 through 4.8.
…
4.14 Canada shall consider New Brunswick’s nomination as evidence that New Brunswick has carried out its due diligence determining that an applicant will be of economic benefit to New Brunswick and has met the requirements of New Brunswick’s Provincial Nominee Program.
[25] The applicant notes the presumption under the Canada–New Brunswick Agreement is reflected within IRCC’s own policy. In particular, section 5 of IRCC’s OP 7-B Provincial Nominees (OP 7-B) states: “[i]mmigration officers can assume that a candidate nominated by a province does, in the view of the provincial officials, intend to reside in the nominating province and has a strong likelihood of becoming economically established in Canada” (emphasis added).
[26] According to the applicant, the Officer’s determination that the applicant does not intend to reside in New Brunswick is unreasonable in light of the contrary presumption created under the Canada–New Brunswick Agreement and OP 7-B.
[27] In my view, a plain reading of the Canada–New Brunswick Agreement and OP 7-B does not give rise to the presumption asserted by the applicant. While both instruments affirm that a nomination under the PNP is evidence that New Brunswick believes a foreign national intends to reside in the province, I find they do not affirm that such a presumption extends to IRCC.
[28] In arguing to the contrary, the applicant relies upon two cases: Hassan v. Canada (Immigration, Refugees and Citizenship), 2019 FC 1096 (Hassan) and Begum v. Canada (Citizenship and Immigration), 2020 FC 162 (Begum).
[29] I find Hassan and Begum are distinguishable from the case at hand. Those cases stand for the authority that if a foreign national is nominated by a province under the PNP, that foreign national is presumed to be able to become economically established in Canada (Hassan, at paragraphs 20–24; Begum, at paragraphs 26–28; see also Bano, at paragraph 19). In this case, the Officer does not dispute the applicant is able to become economically established in Canada, but rather finds the applicant does not intend to reside in New Brunswick. As discussed in detail below, I am not convinced by the applicant’s argument that these determinations are mutually inclusive.
[30] In addition, I find the Officer’s decision is reasonable in light of the protocol outlined in the Canada–New Brunswick Agreement. Sections 4.18 and 4.20 of the Canada–New Brunswick Agreement required the Officer to consult with New Brunswick prior to refusing the applicant’s permanent residence application, but allowed the Officer to make their decision without notifying New Brunswick:
4.0 Assessment and Nomination
…
4.18 Should Canada determine that an individual nominated by New Brunswick is likely to be refused a Permanent Resident visa based on the applicant’s inability to meet the requirements of the New Brunswick Provincial Nominee Program and the requirements of membership in the Provincial Nominee class as per the IRPR and this Agreement, New Brunswick will be notified as soon as possible, taking into consideration local operating environments, and New Brunswick will be consulted regarding the reasons for possible refusal.
…
4.20 In all cases where Canada determines that an individual nominated by New Brunswick does not meet the admissibility requirements of the IRPA, Canada will refuse without notifying New Brunswick before the final decision.… [Emphasis added.]
[31] The Officer followed the protocol under the Canada–New Brunswick Agreement in rendering their decision. After interviewing the applicant, the Officer consulted with a New Brunswick official and outlined their credibility concerns regarding the applicant’s intent to reside in New Brunswick. The New Brunswick official responded and agreed with the Officer’s concerns, stating the applicant likely misrepresented herself in her application and may not have a genuine interest to reside in New Brunswick.
[32] Finally, the Officer’s determination that the applicant was not credible with respect to her intent to reside in New Brunswick is justified, transparent, and intelligible (Vavilov, at paragraph 99).
[33] Intention to reside in a chosen province is a highly subjective criterion, and the assessment of said criterion may take into account all indicia, including past conduct, present circumstances, and future plans (Rabbani v. Canada (Citizenship and Immigration), 2020 FC 257, at paragraph 43). In finding the applicant was not credible, the Officer weighed the applicant’s family ties and history of travel to Ontario and British Columbia; the applicant’s acknowledgement that she had not spent sufficient time in New Brunswick to know if she wanted to reside there permanently; the incomplete state of the applicant’s business plan; and the applicant’s acknowledgement that her primary motivation for applying for the PNP was to allow her to live with her children while they pursued studies in Canada.
[34] The applicant argues this conclusion is unreasonable because the Officer was preoccupied with the applicant’s desire for her children to successfully integrate in Canada. This argument, however, does not identify a reviewable error within the Officer’s decision. Rather, it merely asks this Court to reweigh the evidence before the Officer and reach a different outcome, which is not the purpose of judicial review (Dhesi v. Canada (Attorney General), 2018 FC 283, at paragraph 24, citing Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at paragraph 61).
[35] As stated by my colleague Justice McHaffie, the Officer’s credibility determination is part of the fact-finding process and therefore provided significant deference upon review (Azenabor v. Canada (Citizenship and Immigration), 2020 FC 1160, at paragraph 6). Credibility determinations lie within “the heartland of the discretion of triers of fact … and cannot be overturned unless they are perverse, capricious or made without regard to the evidence” (Yan v. Canada (Citizenship and Immigration), 2017 FC 146, at paragraph 18). In this case, the applicant has established no such grounds to overturn the Officer’s decision.
B. Did the Officer err by not obtaining a concurring opinion from a second officer?
[36] Subsections 87(3) and 87(4) of the IRPR set out two procedural safeguards that encourage deliberation when a visa officer diverges from a provincial nomination and finds a foreign national is unlikely to become economically established in Canada (Bano, at paragraph 20). Specifically, subsection 87(3) requires a visa officer to consult with the issuing provincial government if the officer seeks to substitute a provincial determination of economic establishment with their own evaluation, and subsection 87(4) requires the concurrence of a second officer for an officer’s substituted determination under subsection 87(3):
87…
Substitution of evaluation
(3) If the fact that the foreign national is named in a certificate referred to in paragraph (2)(a) is not a sufficient indicator of whether they may become economically established in Canada and an officer has consulted the government that issued the certificate, the officer may substitute for the criteria set out in subsection (2) their evaluation of the likelihood of the ability of the foreign national to become economically established in Canada.
Concurrence
(4) An evaluation made under subsection (3) requires the concurrence of a second officer.
[37] The applicant submits it was unreasonable for the Officer to determine that the applicant did not intend to reside in New Brunswick without obtaining the concurrence of a second officer in accordance with subsections 87(3) and 87(4) of the IRPR.
[38] The applicant asserts that both criteria under subsection 87(2) of the IRPR—being nominated by a province, and having the intent to reside in that nominating province—are integral and mutually inclusive to becoming economically established in Canada under subsection 87(1). Therefore, according to the applicant, if an officer determines a foreign national does not intend to reside in the province that nominated them under paragraph 87(2)(b), this determination constitutes a substituted evaluation of the foreign national’s ability to become economically established in Canada under subsection 87(3), thus triggering the requirement to obtain the concurrence of a second officer under subsection 87(4).
[39] The applicant submits the above interpretation is clear when section 87 of the IRPR is read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, (1998), 36 O.R. (3d) 418, at paragraph 21). In particular, the applicant notes that under subsection 87(3), an “officer may substitute for the criteria set out in subsection (2) their evaluation of the likelihood of the ability of the foreign national to become economically established in Canada”. This language, the applicant highlights, is not narrowed to include only the criterion under paragraph 87(2)(a) (i.e., a provincial nomination) and therefore also includes the criterion under paragraph 87(2)(b) (i.e., an intent to reside in the nominating province). If Parliament intended otherwise, the applicant asserts the language used in subsection 87(3) would be restricted solely to a re-evaluation of the criterion under paragraph 87(2)(a).
[40] Despite the applicant’s submissions, I find the Officer’s interpretation and application of section 87 of the IRPR are internally coherent and justified in relation to the relevant law (Vavilov, at paragraph 85). The Officer reasonably concluded they were not required to obtain a second officer’s concurring opinion before determining the applicant did not intend to reside in New Brunswick.
[41] The jurisprudence supports the Officer’s conclusion. In Kikeshian v. Canada (Citizenship and Immigration), 2011 FC 658, 391 F.T.R. 52 (Kikeshian), at paragraph 17, Justice Barnes affirmed that a foreign national’s intent to reside in a nominating province and their ability to become economically established in Canada are “not equivalent.”
[42] Following Kikeshian, Justice Martineau confirmed in Ransanz v. Canada (Public Safety and Emergency Preparedness), 2015 FC 1109 (Ransanz), that the determination of a foreign national’s intention to reside in the province that nominated them does not trigger the requirements of consultation and concurrence under paragraphs 87(3) and 87(4) of the IRPR [at paragraph 25]:
Subsection 87(3) of the Regulations specifically grants federal officials the discretion to substitute their evaluation of an applicant’s ability to become economically established in Canada, provided that they consult with the province that has nominated the individual, and that they have obtained the concurrence of a second officer (subsections 87(3) and 87(4)). Crucially, however, these requirements for consultation and concurrence apply specifically to the first condition under subsection 87(2) only—namely, to considerations relating to the likelihood of the applicant’s ability to become established in Canada, as per the criteria of the provincial nomination certificate at subsection 87(2)(a). An applicant’s intention to reside in the province that has nominated him or her (subsection 87(2)(b)) is a separate requirement—one that is not subject to the requirements for consultation and concurrence, and which is additional to the issuance of a certificate of selection or a provincial nomination. [Emphasis added.]
[43] The Officer’s interpretation is also internally coherent. It is self-evident that one could have the means and ability to become economically established in Canada but not intend to reside in the province that nominated them. One’s ability to become economically established in the entire country is not determinative of one’s intent to live in a particular province, or vice versa.
[44] Further, the Officer’s interpretation is justified in light of the wording of subsection 87(3) of the IRPR. I repeat the provision here for clarity:
87…
Substitution of evaluation
(3) If the fact that the foreign national is named in a certificate referred to in paragraph (2)(a) is not a sufficient indicator of whether they may become economically established in Canada and an officer has consulted the government that issued the certificate, the officer may substitute for the criteria set out in subsection (2) their evaluation of the likelihood of the ability of the foreign national to become economically established in Canada.
[45] Under subsection 87(3), a visa officer’s authority to substitute their evaluation for the criteria under subsection 87(2) is triggered by the fact that a foreign national being named in a provincial nomination certificate is not a sufficient indicator of whether they may become economically established in Canada.
[46] It is true the language of subsection 87(3) pertains to the “criteria set out in subsection (2)” and thus at first glance captures both criteria under that provision. However, I find this broad language is limited by the fact that subsection 87(3) solely contemplates the issuing of a provincial nomination certificate under paragraph 87(2)(a), not one’s intent to reside in the nominating province under paragraph 87(2)(b). I therefore find it was reasonable for the Officer to conclude that their determination under paragraph 87(2)(b) did not constitute a substituted evaluation under subsection 87(3), and thus did not trigger the need for a concurring opinion under subsection 87(4).
[47] In arguing to the contrary, the applicant asserts that section 7.8 of OP 7-B affirms the need for an officer to seek a concurring opinion if they refuse a PNP application based on the determination that a foreign national does not intend to reside in the province that nominated them:
7.8. Refusing the application
There are three bases upon which a provincial nominee who meets all statutory admissibility requirements can be refused a visa:
● The officer has reason to believe that the applicant does not intend to live in the province that has nominated them;
● The officer has reason to believe that the applicant is unlikely to be able to successfully establish economically in Canada; and
…
In each case, the officer must have some evidence to support this belief and overcome the presumptions implied by the provincial nomination. Every provincial nominee agreement obliges the immigration officer to consult with an official of the nominating province regarding the intention to refuse before the refusal is actually made.
If the officer, after consulting with the province, still intends to refuse, R87(4) requires that a second officer concur with the decision to refuse, before it can be made official.
[48] I note that section 7.8 of OP 7-B does not specify which grounds of refusal require a concurring opinion under subsection 87(4) of the IRPR. Even accepting the applicant’s argument that section 7.8 applies to all grounds of refusal, including the determination that a foreign national does not intend to reside in the nominating province, I am not persuaded the Officer’s decision is unreasonable.
[49] While the broad language of section 7.8 of OP 7-B may permit an interpretation of section 87 of the IRPR that is different than the one reached by the Officer, I find the Officer’s decision is nonetheless justified in light of this possibility. Departmental policy documents, including OP 7-B, can assist the Court in determining the reasonableness of the Officer’s decision, but they are not law and the Minister is not bound by them (Sran v. Canada (Citizenship and Immigration), 2012 FC 791, 11 Imm. L.R. (4th) 74, at paragraph 17; Vavilov, at paragraph 94). Given the broad language of section 7.8 of OP 7-B, and that the Officer adopted an internally coherent interpretation of section 87 of the IRPR that is justified in relation to the jurisprudence, I find the Officer’s decision is nonetheless justified, transparent, and intelligible in light of the interpretation of OP 7-B proposed by the applicant (Vavilov, at paragraph 99).
C. Did the Officer breach their duty of fairness?
[50] The applicant submits the Officer breached their duty of fairness by not providing the applicant with written notice of the concerns respecting the applicant’s intention to reside in New Brunswick before refusing the applicant’s permanent residence application.
[51] The duty of fairness requires administrative decision makers to provide an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered (Baker, at paragraph 22). As affirmed in Vavilov, at paragraph 77, the content of the duty of fairness in a particular case depends on the circumstances and is assessed by considering the following factors:
(a) the nature of the decision being made and the process followed in making it;
(b) the nature of the statutory scheme;
(c) the importance of the decision to the individual or individuals affected;
(d) the legitimate expectations of the person challenging the decision; and
(e) the choices of procedure made by the administrative decision maker itself.
[52] Applying the above factors, I find the duty of fairness owed by the Officer to the applicant falls at the lower end of the spectrum (Yasmin v. Canada (Citizenship and Immigration), 2018 FC 383, at paragraph 18).
[53] With that relatively low threshold in mind, I find the Officer did not breach their duty of fairness to the applicant. The Officer’s duty of fairness required the Officer to provide the applicant with opportunities to respond to credibility concerns during the interview; the Officer was not required to provide the applicant with written notice of those concerns prior to rendering their decision (Ali v. Canada (Citizenship and Immigration), 2011 FC 1247, 398 F.T.R. 303, at paragraphs 91–93; De Azeem v. Canada (Citizenship and Immigration), 2015 FC 1043, at paragraph 37; Khwaja v. Canada (Citizenship and Immigration), 2006 FC 522, at paragraphs 17–21). The Officer fulfilled this duty by providing the applicant with meaningful opportunities to respond to their concerns during the interview.
[54] In arguing the Officer did not provide the applicant with a sufficient opportunity to respond, the applicant relies upon Gedara v. Canada (Citizenship and Immigration), 2016 FC 209 (Gedara) and Bideh v. New Brunswick (Minister of Post-Secondary Education, Training and Labour), 2016 NBQB 192, 47 Imm. L.R. (4th) 287 (Bideh).
[55] I find both Gedara and Bideh are distinguishable from the case at hand.
[56] In Gedara, Justice Manson held a visa officer breached their duty of fairness because the GCMS notes did not display whether “the concern regarding the Applicant’s ability to become economically established was specifically put to him, in the interview or otherwise, such that he was given an opportunity to respond” (Gedara, at paragraph 35) (emphasis added). Unlike the foreign national in Gedera, the applicant in this case was provided an opportunity to respond to the Officer’s concerns at the interview.
[57] Similarly, the foreign national in Bideh was not informed of the specific concerns that resulted in the determination that he did not intend to reside in New Brunswick, only that the provincial authority was not convinced of his “commitment to New Brunswick” (Bideh, at paragraphs 36–37). In this case, the Officer clearly explained their concerns to the applicant and provided the applicant with opportunities to address those concerns, as exemplified by the Officer’s statements during the January 17, 2020, interview:
I notice that you seem to have a pre-occupation with your children living and studying in Cda. It seems to be your chief focus, more so than the business you are proposing. All of this reflects on your credibility and makes me think perhaps you are using this PNP program [sic] simply as a means of getting status in Cda and makes me think that perhaps you intend to reside somewhere in Cda other than NB. Would you like to respond to that concern?
…
You failed to disclose the previous visa refusals and you failed to disclose the correct country of birth for your youngest child. I think it’s quite possible that you did these things deliberately in order to try and deceive us… I also notice that you have relatives living in other parts of Cda, so that is a pull factor for you to go those [sic] parts of Cda instead of NB. Would you like to respond?
…
You are proposing to live in another country and invest a lot of money. Why would you not draw up a proper business plan on paper? [Emphasis added.]
[58] I find the applicant knew the Officer’s credibility concerns and had a meaningful opportunity to respond to those concerns. The applicant provided responses to each of the Officer’s questions; she did not request the opportunity to provide further evidence or submissions; and she affirmed it was her responsibility to clarify if she did not understand the interpreter or a question, but requested no such clarifications.
V. Certified Question
[59] The applicant proposes the following question for certification to permit an appeal under paragraph 74(d) of the [Immigration and Refugee Protection Act, S.C. 2001, c. 27] IRPA:
Does a federal immigration official’s decision to deny permanent residency on the basis of paragraph 87(2)(b) of the IRPR trigger the subsection 87(4) concurrence requirement?
[60] The respondent asserts this question does not satisfy the test for certification, as the question is not “a serious question that is dispositive of the appeal, transcends the interests of the parties and raises an issue of broad significance or general importance” (Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22, [2018] 3 F.C.R. 674, at paragraph 46).
[61] A question cannot raise an issue of broad significance or general importance if the law on that question is well settled (Mudrak v. Canada (Citizenship and Immigration), 2016 FCA 178, 43 Imm. L.R. (4th) 199, at paragraph 36). As discussed in paragraphs 41–42 of this judgment, the jurisprudence is clear that the concurrence requirement under subsection 87(4) of the IRPR is not triggered by a determination under paragraph 87(2)(b) that a foreign national does not have an intent to reside in the province that nominated them (Kikeshian, at paragraph 17; Ransanz, at paragraph 25). I find my colleagues’ decisions are highly persuasive, and the applicant has not presented any jurisprudence that casts doubt upon them. As such, I decline to certify the applicant’s proposed question.
VI. Conclusion
[62] I find the Officer’s decision was reasonable and made in accordance with the principles of procedural fairness. I therefore dismiss this application for judicial review.
[63] Lastly, I dismiss the applicant’s request to certify a question for appeal, as the question proposed is not a serious question of general importance within the meaning of paragraph 74(d) of the IRPA.
JUDGMENT in IMM-2167-20
THIS COURT’S JUDGMENT is that:
1. This application for judicial review is dismissed.
2. No question is certified.