Latest Immigration Court Decisions

Latest Immigration Court Decisions
Kisson v. Canada (Minister of Public Safety & Emergency Preparedness)
Skilled Worker (Substituted Evaluation/H&C Considerations)

Case: Kisson v. Canada (Minister of Public Safety & Emergency Preparedness)

Decider: Richard G. Mosley J.

Citation: 2010 FC 99

Judgment: January 27, 2010

Docket: IMM-918-09

[14] I am of the view that the applicant's submissions provided good reasons for the exercise of the discretion under subsection 76(3) of the Regulations. The evidence in this case, does not satisfy me that the visa officer and immigration program manager gave sufficient consideration to the applicant's (1) extensive work experience in Canada, (2) significant involvement in community organizations in Canada. (3) arranged employment, (4) knowledge of Canadian culture and customs, (5) that the applicant had lived in Canada for eight years without relying on government assistance and (6) the fact that the Vice-President of St. Regis Crystal Inc., had declared that English language proficiency was not a significant consideration.

[15] I agree with the applicant that in considering the substituted evaluation, the visa officer did not demonstrate that he looked beyond the selection criteria listed at subsection 76(1) of the Regulations (i.e. education, language, experience, age, arranged employment, adaptability). I am unable to find in the evidence any indication that the visa officer's substituted evaluation broadly assessed the likelihood of the ability of the applicant to become economically established in Canada according to his set of circumstances. “The clear intent of subsection 76(3) is to allow the visa officer to substitute their evaluation taking into account a number of factors, and not just the factors listed in paragraph 76(1)(a) as contended by the respondent:” Choi v. Canada (Minister of Citizenship and Immigration), 2008 FC 577, [2008] F.C.J. No. 734, at para. 20.

[18] I am not satisfied that the officer considered the totality of the circumstances in this case. I agree with the applicant that the existing employment offer and the applicant's previous establishment in Canada are indicative of the possibility that the applicant will once again be able to establish himself successfully in Canada. I find it unreasonable that these key factors do not appear to have been considered by the officer when he assessed the humanitarian and compassionate considerations under section 25 of the IRPA.

[19] I don't accept the respondent's submission that in this case, the applicant is attempting to use humanitarian and compassionate considerations as “a back door when the front door has, after all legal remedies have been exhausted, been denied in accordance with Canadian law:” Rizvi v. Canada (Minister of Citizenship and Immigration), 2009 FC 463, [2009] F.C.J. No. 582, at para. 17.