Nisreen v. Canada (Citizenship and Immigration)

Nisreen v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2018-05-01
Neutral citation
2018 FC 469
File numbers
IMM-4095-17
Decision Content
Date: 20180501
Docket: IMM-4095-17
Citation: 2018 FC 469
Ottawa, Ontario, May 1, 2018
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
ABIDA NISREEN
IFTIKHAR AHMAD BHATTI
MUHAMMAD SAFFI ULLAH NAWAZ
NIRMAL ZAHRA
FOUZ ROOMAN ZAHRA
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
I. INTRODUCTION
[1] This is an application under s 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [Act], for judicial review of the decision of a visa officer [Officer] in the High Commission of Canada, dated August 17, 2017 [Decision], which refused Ms. Abida Nisreen’s [Principal Applicant] application for permanent residence as a member of the provincial nominee class.
II. BACKGROUND
[2] The Principal Applicant is a citizen of Pakistan who was nominated for permanent residence as a member of the provincial nominee class by the Province of Saskatchewan [Saskatchewan]. The other Applicants are her husband and three children.
[3] Based on Saskatchewan’s nomination, the Principal Applicant applied to Immigration, Refugees and Citizenship Canada [IRCC] for permanent residence. In the nomination letter from Saskatchewan, the Principal Applicant was nominated under occupational code 4142 (Elementary School and Kindergarten Teachers) in the National Occupation Classification [NOC]. In her application, the Principal Applicant listed her intended occupation as “Any entry level job (Teaching/Sewing/Beautician)” but only listed experience as a school assistant administrative officer and teacher. Also included in the application were the Principal Applicant’s International English Language Testing System [IELTS] results. Her overall score was 4.5 and her lowest score was 3.5 in reading.
[4] To address concerns that the Principal Applicant’s English language ability would not allow her to perform the occupation she was nominated for, the Officer sent the Principal Applicant a fairness letter by email. The letter explained that while her IELTS scores “were at or a little above the minimum recommended level” they could still be described as basic. The Officer reasoned that, based on the information on Employment and Social Development Canada’s Job Bank, it would be reasonable to expect that a high level of English language proficiency would be required as a teacher. He also noted that the Principal Applicant did not appear to have the language proficiency necessary to obtain teaching certification in Saskatchewan or to successfully complete additional training. The Officer also thought that it would be reasonable to expect that work as an administrative assistant, beauty treatment operator or sewing machine operator would require a moderate level of English proficiency.
[5] In addition to language concerns, the Officer’s letter also informed the Principal Applicant that she had not provided evidence of a job offer in Saskatchewan or specified the occupation she intended to pursue in Canada. Since the Principal Applicant only listed experience as an assistant administrative officer and a teacher, the Officer was not satisfied that the Principal Applicant had the standard of skill in either sewing or beauty treatments that Canadian employers would require. The Officer also expressed a concern that, even if the Principal Applicant were to find employment, it would not be sufficient to allow her to become economically established.
[6] The Principal Applicant responded to the Officer’s letter in three sets of submissions over the course of approximately nine and a half months. Her final submission provided a copy of a letter offering her employment as a cleaner in Saskatoon along with a letter from the proposed employer confirming that he had spoken with the Principal Applicant and was satisfied with her English skills. The Principal Applicant had previously indicated that she could establish herself as a self-employed sewing machine operator, a beautician or an early childhood educator [ECE] assistant, but her final submission to the Officer suggested that the job offer provided further evidence of her ability to find work in Saskatchewan. Her responses to the fairness letter also included letters from family she had in Saskatchewan explaining how they would support the Principal Applicant’s family in becoming established, as well as evidence of assets the family would be bringing to Canada.
III. DECISION UNDER REVIEW
[7] The Officer reviewed the Principal Applicant’s responses to the fairness letter but determined that she did not meet the requirements of the provincial nominee class.
[8] The letter informing the Principal Applicant of the Decision states that Saskatchewan’s nomination is not a sufficient indicator that she is likely to become economically established in Canada because the Officer was not satisfied that the Principal Applicant has satisfactory language skills. In addition to noting that he consulted with the government of Saskatchewan, the letter also states that the Principal Applicant’s responses to the fairness letter did not satisfy him that she was likely to become economically established.
[9] Notes from the Global Case Management System [GCMS] provide further insight into the Officer’s reasoning. After reviewing the Principal Applicant’s submissions on how her IELTS scores correspond with Canadian Language Benchmarks [CLB] scores, the Officer accepts that the Principal Applicant’s English language proficiency “may appear sufficient for performing some of the tasks of some lower-skilled [occupations] (relative to that in which she was nominated), including sewing-machine operator, early childhood educator assistant, & esthetician.” But the Officer remains concerned that performing these tasks in English in Canada will require a higher level of proficiency than the Principal Applicant demonstrated because they could no longer “be described as ‘familiar’ or ‘non-demanding’ or ‘common and predictable contexts.’” The Officer also notes that while the Principal Applicant’s language skills may be satisfactory to perform the duties of a sewing machine operator, ECE assistant or esthetician, her proposed employment at that point was as a self-employed tailor or seamstress. The Officer finds that it would be reasonable to expect that operating a small business in Canada requires higher language proficiency than the Principal Applicant demonstrated.
[10] The Officer also rejects the Principal Applicant’s arguments that it is reasonable to expect that she will quickly improve her listening ability and that she already comes close to meeting the language requirements for the federal skilled trades class. The Officer notes that provincial nominees are expected to become established quickly upon arriving in Canada and should already have the skills that will enable them to do so. Likewise, being close to meeting the requirements of another class does not address the Principal Applicant’s failure to meet the requirements of the provincial nominee class.
[11] The Officer accepts that, under the Canada-Saskatchewan Immigration Agreement, 2005, the Principal Applicant’s nomination is an initial indicator of her ability to become economically established but notes that Canada is still responsible for final selection. Since the Officer is not satisfied that Saskatchewan’s nomination is sufficient, he rejects the Principal Applicant’s argument that he should place significant weight on the view of provincial officials. Saskatchewan did continue to support the application and highlighted the province’s low unemployment rate and large number of available jobs. Saskatchewan reiterated that the Principal Applicant met the minimum language requirements and that her language ability and work experience would allow her to perform the duties of an ECE assistant. The Officer finds, however, that the availability of jobs in Saskatchewan does not speak to the Principal Applicant’s own ability to become economically established. The Officer also notes that ECE assistant positions in Saskatchewan require certification and that “enrollment to [the] ECE certification program at Sask Polytechnic requires minimum overall IELTS Academic score of 6.5 [with] no individual scores below 5.0.” The Officer accepts that ECE assistants do not require certification but reasons that the language requirement for certification likely reflects the language ability expected in Saskatchewan’s childcare sector.
[12] The Officer also notes the extensive support that the Principal Applicant will receive from family to help with settlement. But the Officer points out that settlement cannot be equated with economic establishment. The provincial nominee class is an economic class and settlement assistance from family members does not indicate that the Principal Applicant has the ability to become economically established. Similarly, the Principal Applicant’s assets would be relevant to meeting financial admissibility criteria but do not show an ability to become economically established. The Officer is also unconvinced that the promises of business from potential clients of the Principal Applicant’s proposed seamstress business would provide sufficient gross income to support the Principal Applicant and her family, even while relying on their financial resources during a transitional phase.
[13] Reviewing the Principal Applicant’s submissions about the job offer she received, the Officer finds that the job “would pay an annual pre-deduction salary of $24,960, which does not appear sufficient for the economic establishment of [the Principal Applicant] & her four dependents, particularly considering that the LICO [Low Income Cut-off] for a family of five in 2017 is $51,846.” This validates the Officer’s concern that any job the Principal Applicant will be able to find will not be sufficient for her to become economically established.
[14] The Officer was therefore not satisfied that the Principal Applicant meets the requirements of the provincial nominee class and referred the application to a second officer for review and concurrence. The second officer found that, based on the available information and the Officer’s review, it appears reasonable to have concerns about whether the Principal Applicant will become economically established. The second officer therefore concurred with the Officer’s substitution of evaluation as allowed by s 87(3) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR].
IV. ISSUES
[15] The Applicants submit that the following issues arise in this application:
Did the Officer breach the duty of fairness by not allowing the Principal Applicant an opportunity to respond to his concerns about her inability to meet the LICO for Saskatchewan?
Is the Officer’s determination that the Principal Applicant cannot become economically established in Canada unreasonable?
V. STANDARD OF REVIEW
[16] The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir], held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is settled in a satisfactory manner by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless, or where the relevant precedents appear to be inconsistent with new developments in the common law principles of judicial review, must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis: Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 48.
[17] The standard of review for issues of procedural fairness is correctness. See Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43 [Khosa], and Mission Institution v Khela, 2014 SCC 24 at para 79.
[18] The Officer’s determination that the Applicants are unlikely to become economically established is reviewable under a reasonableness standard. See Singh v Canada (Citizenship and Immigration), 2017 FC 808 at para 10 [Singh 2017], citing Parveen v Canada (Citizenship and Immigration), 2015 FC 473 at para 13.
[19] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir, above, at para 47, and Khosa, above, at para 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
VI. STATUTORY PROVISIONS
[20] The following provisions of the Act are relevant in this application:
Economic immigration
Immigration économique
12 (2) A foreign national may be selected as a member of the economic class on the basis of their ability to become economically established in Canada.
12 (2) La sélection des étrangers de la catégorie « immigration économique » se fait en fonction de leur capacité à réussir leur établissement économique au Canada.
[21] The following provisions of the IRPR are relevant in this application:
Class
Catégorie
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.
87 (1) Pour l’application du paragraphe 12(2) de la Loi, la catégorie des candidats des provinces est une catégorie réglementaire de personnes qui peuvent devenir résidents permanents du fait de leur capacité à réussir leur établissement économique au Canada.
Member of the class
Qualité
(2) A foreign national is a member of the provincial nominee class if
(2) Fait partie de la catégorie des candidats des provinces l’étranger qui satisfait aux critères suivants :
(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
a) sous réserve du paragraphe (5), il est visé par un certificat de désignation délivré par le gouvernement provincial concerné conformément à l’accord concernant les candidats des provinces que la province en cause a conclu avec le ministre;
(b) they intend to reside in the province that has nominated them.
b) il cherche à s’établir dans la province qui a délivré le certificat de désignation.
Substitution of evaluation
Substitution d’appréciation
(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.
(3) Si le fait que l’étranger est visé par le certificat de désignation mentionné à l’alinéa (2)a) n’est pas un indicateur suffisant de l’aptitude à réussir son établissement économique au Canada, l’agent peut, après consultation auprès du gouvernement qui a délivré le certificat, substituer son appréciation aux critères prévus au paragraphe (2).
Concurrence
Confirmation
(4) An evaluation made under subsection (3) requires the concurrence of a second officer.
(4) Toute décision de l’agent au titre du paragraphe (3) doit être confirmée par un autre agent.
VII. ARGUMENT
A. Applicants
(1) Procedural Fairness
[22] The Applicants submit that the Officer breached the duty of fairness by failing to disclose his concern that the Principal Applicant’s job offer would not meet the LICO. They say that the duty of fairness is elevated when a visa officer substitutes his evaluation under s 87(3) of the IRPR. In Sadeghi v Canada (Minister of Citizenship & Immigration), [2000] 4 FCR 337 (CA) [Sadeghi], the Federal Court of Appeal considered substituted evaluation in the independent category, a precursor to the federal skilled worker class. Justice Evans held that the discretion granted to ignore statutorily prescribed selection criteria was an extraordinary power and that “[d]ecisions removing a person’s legitimate expectation of receiving a benefit typically attract greater procedural protection than those where the discretion is at large”: Sadeghi, above, at para 15. The Applicants submit that these comments also apply to substituted evaluations in the provincial nominee context because the substitution similarly removes an applicant’s legitimate expectation that they meet the requirements of the class.
[23] The Applicants say that disclosure of the intent to rely on LICO was required because the Officer’s concerns did not directly arise from the requirements of the Act or its regulations. See Hassani v Canada (Citizenship and Immigration), 2006 FC 1283 at para 24 [Hassani]. They say that the Officer’s general statement in the fairness letter about his concern that employment the Principal Applicant might find would not “be of a sufficient level for you to become economically established” did not provide notice that the Officer would be relying on the LICO. The Applicants say they had no reason to anticipate that the LICO would be used in this way. They also note that the test from Hassani is cited with approval in Mohammed v Canada (Citizenship and Immigration), 2017 FC 992 at para 8 [Mohammed], a case relied on by the Respondent, and submit that, following Sadeghi, these concerns are elevated in the case of a substituted evaluation.
[24] The Applicants note that the provincial nominee class has no prescribed minimum income requirement and that where the LICO is referred to in the IRPR it is not used with respect to the income requirement of a potential immigrant to Canada. The LICO is relied on in the definition of “minimum necessary income” contained in s 2 of the IRPR. Applicants in the federal skilled worker class and federal skilled trades class must have available funds equal to one half of the minimum necessary income to show that they will become economically established. See IRPR, ss 76(1)(b)(i) and 87.2(5). And sponsors must demonstrate that they have the required level of income with reference to the minimum necessary income in order to be eligible to sponsor a family member for permanent residence. See IRPR, s 133(1)(j)(i). The Applicants submit that these are the only ways that the LICO is used in federal immigration law and that the Officer’s importation of the LICO into the provincial nominee class could not have been anticipated.
[25] The Applicants also submit that the Officer’s LICO concerns unfairly rely on extrinsic evidence. When relying on extrinsic evidence, a visa officer must disclose that evidence to the applicant so that the applicant can respond to it. See Kniazeva v Canada (Minister of Citizenship and Immigration), 2006 FC 268 at para 21. The failure to disclose extrinsic evidence can breach the duty of fairness. See e.g. Dasent v Canada (Minister of Citizenship & Immigration) (1994), [1995] 1 FCR 720 (TD). Considerations relevant to determining whether a failure to disclose extrinsic evidence breached the duty of fairness include the following:
a) Whether the evidence impacted the decision’s outcome (see Yang v Canada (Citizenship and Immigration), 2013 FC 20 at paras 17 and 29);
b) Whether the evidence was not easily accessible or could not have been anticipated (see Majdalani v Canada (Citizenship and Immigration), 2015 FC 294 at para 34 [Majdalani]);
c) Whether disclosure was required to allow the applicant meaningful participation in the decision (see Haghighi v Canada (Minister of Citizenship & Immigration), [2000] 4 FCR 407 at para 26 (CA) [Haghighi]); and
d) Whether disclosure reduces the risk of error or aides in resolving the dispute (Haghighi, above, at para 28).
[26] The Applicants submit that, in the present case, the Officer relies entirely on a LICO-based assessment to find that the job offer the Principal Applicant received did not demonstrate that she could become economically established and that use of the LICO therefore affected the Decision. They say that Rani v Canada (Citizenship and Immigration), 2015 FC 1414 at para 24, shows that a valid job offer could be sufficient to demonstrate economic establishment. They also say that, even though the document setting out the LICO is publicly available, reliance on the LICO could not have been reasonably anticipated “in light of the nature of the submissions made”: De Vazquez v Canada (Citizenship and Immigration), 2014 FC 530 at para 28 [De Vazquez]. They reiterate that there is no minimum income threshold in the statutory requirements of the provincial nominee class and point out that the LICO is a family-based statistic. The failure to inform the Principal Applicant that LICO would be relied on denied her meaningful participation in the decision-making process because she was not provided with an opportunity to respond to the Officer’s concern. Had the Principal Applicant been provided with this opportunity, the Applicants say that she could have argued that the Officer should also consider her husband’s potential income or she could have raised the issue with her prospective employer.
[27] The Applicants also submit that the Officer relies on extrinsic evidence when finding that the Principal Applicant’s English is insufficient to enroll in the ECE certification program at Sask Polytechnic. As with use of the LICO, no notice or opportunity to respond was provided to the Principal Applicant.
(2) Economic Establishment
[28] The Applicants submit, in the alternative should it be found that the Officer did not breach the duty of fairness, that the Officer’s finding that the Principal Applicant could not become economically established is unreasonable because it disregards the evidence she provided. The purpose of reasons is to “allow the reviewing court to understand why the tribunal made its decision and permit [the reviewing court] to determine whether the conclusion is within the range of acceptable outcomes”: Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 16. Since a decision-maker must consider the important points in issue, “its reasons must reflect consideration of the main relevant factors”: Turner v Canada (Attorney General), 2012 FCA 159 at para 41 [Turner], citing Via Rail Canada Inc v Canada (National Transportation Agency) (2000), [2001] 2 FCR 25 at para 22 (CA). Thus, a decision may be unreasonable when the reasons do not allow the reviewing court to understand why an important and relevant point has been disregarded. See Turner, above, at para 42. The Applicants submit that the Federal Court of Appeal has also suggested that the question of whether reasons are too sparse to be intelligible and transparent also requires consideration of the subjective sophistication of the individual affected by the decision. See D’Errico v Canada (Attorney General), 2014 FCA 95 at paras 12-13; see also Sidhu v Canada (Citizenship and Immigration), 2014 FC 176 at paras 20-21.
(a) Income
[29] The Applicants say that the Officer’s refusal to place any weight on the evidence about the Principal Applicant’s personal finances, the employability of her husband, and her family support in Canada as indications of her ability to become economically established is unreasonable. The Decision notes this evidence but finds that family assistance does not demonstrate the Principal Applicant’s own ability to become economically established and finds that her finances are only relevant to whether she is inadmissible for financial reasons. The Applicants say that the Officer’s finding about the Principal Applicant’s family’s irrelevance ignores how their assistance can facilitate her integration into the Saskatchewan workforce. And the Officer’s finding about the Principal Applicant’s financial resources suggests that he perceives the resources as only a threshold admissibility issue. The Applicants submit that in the context of whether to substitute an evaluation in the federal skilled worker class, this Court has held that it is an error for a visa officer to not consider an applicant’s available settlement funds when determining the applicant’s likelihood of becoming economically established. See Choi v Canada (Citizenship and Immigration), 2008 FC 577 at paras 21-22; Abro v Canada (Citizenship and Immigration), 2009 FC 1258 at para 15. They say that the similar language for substituted evaluations in s 76(3) of the IRPR implies that similar considerations should apply to substituted evaluations in the provincial nominee context under s 87(3).
[30] The Applicants also submit that the Principal Applicant provided evidence about her husband’s employability that was not considered by the Officer. While this Court has held that reliance on part time and casual work is a reasonable basis for finding that an applicant has not proven that they can become economically established, it has also implicitly held that a spouse’s employment can be a relevant factor in the determination. See Noreen v Canada (Citizenship and Immigration), 2013 FC 1169 at para 8; see also Zahid v Canada (Citizenship and Immigration), 2015 FC 1263 at paras 15-17, quoting Singh Sran v Canada (Citizenship and Immigration), 2012 FC 791 at paras 18-19.
[31] The Applicants also say that the Officer’s reliance on the LICO to evaluate whether their income is sufficient to become economically established is unreasonable because the LICO is not a measure of whether a family will be able to support themselves. Instead, the LICO measures whether they will spend more of their income on necessities than most Canadian families. The Officer does not explain why the LICO is relevant to whether a family can support themselves, but their financial assets and a spouse’s ability to contribute income to the household is not. They say that the case relied on by the Respondent for the principle that an officer may reasonably rely on the LICO level is distinguishable because the “brief notation in the GCMS entries does not suggest that [the LICO] was the basis for [the] decision”: Singh 2017, above, at para 21.
(b) Language Skills
[32] The Applicants also submit that the Officer’s finding that the Principal Applicant’s language skills will prevent her economic establishment is unreasonable as it contradicts IRCC’s own requirements and fails to account for the Principal Applicant’s ability to familiarize herself with the Canadian workplace. The Applicants note that the Officer finds that the Principal Applicant’s English language proficiency “may appear sufficient for performing some of the tasks of some lower-skilled [occupations]” compared to those in which she was nominated. But the Officer goes on to state that in “the context of performing the tasks of these or other occupations in Canada… [the situation] may not be described as ‘familiar’ or ‘non-demanding’ or ‘common and predictable contexts.’” The use of “familiar,” “non-demanding” and “common and predictable contexts” is a reference to the description of Stage I – Basic Language Ability (Benchmarks 1-4) in the CLB. But the Applicants note that the word “familiar” is also used in the description of Stage II – Intermediate Language Ability (Benchmarks 5-8). They say that the effect of the Officer’s reasoning is to effectively decide that anyone immigrating to Canada without existing work experience in Canada would need at least CLB 5 to work in Canada because of the unfamiliarity of the environment. It is only at Stage III – Advanced Language Ability (Benchmarks 9 -12) that language competency is described as fully encompassing “unfamiliar” contexts. This suggests that it is possible that even applicants in Stage II of the CLB may not satisfy the Officer’s concern if they have no Canadian work experience.
[33] The Applicants submit that imposing such a language threshold is unreasonable as it exceeds the language requirements in the federal skilled worker program, Canadian experience class, and federal skilled trades program set by the Minister under s 74(1) of the IRPR. Even though both the federal skilled worker and federal skilled trades programs have no requirement of Canadian work experience, the programs have prescribed CLB thresholds of 7 and 4 (in reading and writing), respectively. The Applicants say that if the Minister has decided that a CLB of 4 is sufficient to work in Canada with no Canadian experience, then it is unreasonable for the Officer to effectively impose a standard of CLB 5, or possibly CLB 9 if the Officer’s concerns extend to Stage II CLB scores.
B. Respondent
(1) Procedural Fairness
[34] The Respondent submits that the Officer did not breach the duty of fairness by consulting the LICO level for Saskatchewan because there was no duty to put concerns with respect to LICO to the Applicants. In Grewal v Canada (Citizenship and Immigration), 2017 FC 955 at para 17, a judicial review of the refusal of an application for a permanent resident visa submitted under the Manitoba Provincial Nominee Program, Justice Kane reviewed Justice Bédard’s summary of the principles relevant to the refusal of an applicant’s application for a permanent resident visa in Hamza v Canada (Citizenship and Immigration), 2013 FC 264 at paras 21-24, and noted the following:
the duty of procedural fairness owed by visa officers is at the low end of the spectrum; there is no obligation on a visa officer to notify the applicant of the deficiencies in the application or the supporting documents; and, there is no obligation on the visa officer to provide the applicant with an opportunity to address any concerns of the officer when the supporting documents are incomplete, unclear or insufficient to satisfy the officer that the applicant meets the requirements.
[35] The Respondent also notes that the onus is on applicants to provide sufficient information to support their permanent resident application. See Singh v Canada (Immigration, Refugees and Citizenship), 2018 FC 84 at para 35. Applicants must also “put together applications that are convincing, and that anticipate adverse inferences contained in the evidence and address them”: Penez v Canada (Citizenship and Immigration), 2017 FC 1001 at para 35. The Respondent says that it is reasonable for a visa officer to consider LICO levels when assessing whether a job offer will allow an applicant to become economically established. See Singh 2017, above, at para 21. Since the LICO issue arose after the Applicant’s response to the fairness letter and the Officer was under no duty to request further submissions to overcome weaknesses in the Principal Applicant’s submissions, the Respondent submits that there was no requirement to put concerns about the LICO levels to the Principal Applicant.
[36] The Respondent also says that the LICO levels are not extrinsic evidence as they are publicly available and the Principal Applicant could have anticipated the Officer relying on them. In the circumstances, the Applicants were not taken by surprise by this information. See Mohammed, above, at para 10. Similarly, certification requirements for ECE assistants are also publicly available and directly relevant to one of the Principal Applicant’s proposed fields of employment. The Officer’s reliance on this information could not have taken the Principal Applicant by surprise and is therefore also not extrinsic evidence.
(2) Economic Establishment
[37] The Respondent submits that the Officer’s conclusion that the Principal Applicant was not likely to become economically established is reasonable because the Principal Applicant’s language level is insufficient for employment as a small business owner and because the salary of the job offer she later submitted is below Saskatchewan’s LICO levels.
[38] The Respondent emphasizes that it is important to consider the Applicants’ application for permanent residence in context. The Principal Applicant was initially nominated as a provincial nominee under the NOC for elementary school and kindergarten teachers and proposed to enter that job market or “any entry level job (teaching/sewing/beautician).” The Officer’s fairness letter was prompted by concerns that the Principal Applicant’s English language proficiency would not allow her to obtain teacher certification or to complete additional training and concerns that she did not have the skill level expected by employers in the sewing or beauty treatment industries. In the Principal Applicant’s response, she instead proposed that she could establish her own small business as a sewing machine operator and she later submitted a job offer as a cleaner, a job significantly removed from the one proposed in her original application. The Respondent says that the Officer’s consideration of the Principal Applicant’s language skills and the LICO levels for Saskatchewan must be viewed as part of the assessment of the application as a whole.
[39] The Respondent submits that the Principal Applicant’s language skills are insufficient for her intended employment as a small business owner. When assessing visa applications, a visa officer is entitled to use their general experience and knowledge of local conditions to evaluate the evidence submitted in support of the application. See Mohammed, above, at para 7, and Bahr v Canada (Citizenship and Immigration), 2012 FC 527 at para 42 [Bahr]. The Principal Applicant’s language scores, which are at or slightly above the minimum level, were weighed against the requirements of her preferred professions and proposal to operate a small business. The Respondent says that the Officer’s finding that the Principal Applicant’s language skills are insufficient for employment as an ECE assistant or to run her own business is reasonable, and that it is common sense that operating a business requires stronger language skills than performing specific tasks. The Principal Applicant failed to satisfy the Officer that her language skills are sufficient to enable her to become economically established.
[40] The Respondent also notes that the annual income for the Principal Applicant’s job offer was less than half the 2017 LICO level for Saskatchewan.
[41] The Respondent submits that the Officer’s conclusions are reasonable because they are based on a reasonable weighing of the Applicants’ evidence. The Principal Applicant’s language skills are below the requirements of the professions she proposed to pursue, her job offer’s income is well below the LICO level, and there was insufficient evidence about her husband’s employment plan. The Respondent also says that the settlement assistance the Principal Applicant’s family could provide and their financial resources do not answer the question of whether the Applicants could become economically established in Canada as “settlement” and “economic establishment” are distinct concepts.
[42] The Respondent also says that the Officer’s reasons are sufficient to allow the Court to understand the Decision and to determine whether it is within the range of reasonable outcomes. See Cayanga v Canada (Citizenship and Immigration), 2017 FC 1046 at para 14. In the context of the volume of applications visa officers consider and the interests at stake, “the duty to provide reasons is ‘at the lower end of detail and formality’”: Mohammed, above, at para 5, quoting Wang v Canada (Minister of Citizenship and Immigration), 2006 FC 1298 at para 20. The Respondent also notes that the Officer’s reasons for the Decision include the GCMS notes prepared throughout the application process.
VIII. ANALYSIS
[43] The Officer found that the Principal Applicant had not demonstrated that, in accordance with s 87(1) of the IRPR and governing jurisprudence, she could become “economically established in Canada” within a reasonable period of time. The Applicants have made a significant effort to challenge this finding and I will deal with each of their grounds for reviewable error in turn.
A. Legitimate Expectation
[44] Relying upon the reasoning of Justice Evans in Sadeghi, above, at paras 14-17, the Applicants’ position on this issue is summarized in their written representations as follows:
20. Justice Evan’s comments in Sadeghi underline the role of immigration law in grounding a potential immigrant’s expectation in predictable metrics. As indicated in s. 87(l) of IRPR, those nominated by the province are, prima facie, eligible for permanent residence. When substituting such an evaluation, a visa officer is removing an applicant’s legitimate expectation. In such cases, “accurate decision-making is particularly important” and such an evaluation will attract “a higher degree of procedural fairness”.
[45] It is important to keep in mind that, in Sadeghi, Justice Evans was addressing s 11(3)(b) of the Immigration Regulations, 1978, SOR/78-172, made under the now repealed Immigration Act, RSC 1985, c I-2, in the context of the precursor to the federal skilled workers class. The question was whether that particular subsection provided visa officers “with a general discretion to revisit their assessment under the specific selection criteria or to support a view that the applicant does not… ‘measure up.’” In Sadeghi, Justice Evans founds that:
14 It is important to emphasize the particular context in which this question of procedural fairness arises. Paragraph 11(3)(b) is an extraordinary power intended for exceptional cases, and does not provide visa officers with a general discretion to revisit their assessment under the specific selection criteria or to support a view that the applicant does not in some way quite “measure up”: see Chen, supra, [1991] 1 F.C. 350 (T.D.), at page 363. The important statutory purpose served by the requirement that independent applicants for permanent residence visas be assessed in accordance with the prescribed statutory selection criteria is to ensure a certain objectivity and uniformity in decision-making by visa officers.
…
16 In this context I note that, in this case, the officer’s observation in her CAIPS notes that she may have been too generous in her assessment of Dr. Sadeghi’s proficiency in the English language may indicate that she fell into the error of thinking that she could use paragraph 11(3)(b) to revise her evaluation when it became apparent that he had more than 70 points.
17 In order to ensure that visa officers base their opinion that there are good reasons for thinking that the points evaluation does not adequately reflect an applicant’s chances of becoming successfully established in Canada, it is important that they raise their concerns with the individual in a way that enables her or him to respond, at least when they are of the kind on which the applicant may be able to shed some useful light. Accurate decision-making is particularly important when an adverse decision may deprive a person of her legal rights or, as here, a legitimate expectation of receiving a statutory benefit.
[46] In Sadeghi, the officer fell into error because she thought “she could use paragraph 11(3)(b) to revise” her previous evaluation. This was obviously procedurally unfair in the circumstances because the applicant was provided with no opportunity to respond to such a re-evaluation. There is nothing of this kind in the present case. Here, the Principal Applicant was sent a fairn