Friday, January 22, 2016

FRAUDSTER WHO PREYED ON ASPIRING TEMPORARY FOREIGN WORKERS SENTENCED

Here is the decision on the massive fraud case. The sentence was six years in jail. 

R. v. Saluma
Between
Her Majesty the Queen, and
Imelda Saluma
[2015] O.J. No. 6977
2015 ONCJ 754

 Ontario Court of Justice

L.C. Pringle J.


Heard: November 10 and 25, 2015.
Judgment: December 11, 2015.
(52 paras.)




Reasons for Sentence

·         L.C. PRINGLE J.:-- 
1. Introduction and Overview
1     Imelda Saluma has entered a guilty plea to fraudulent activity carried out between July 1, 2012 and January 7, 2015, resulting in over $2.4 million in funds received by her. The majority of the monies were obtained through a large and sophisticated fraud involving the Canadian Temporary Foreign Worker Program, and included over 900 victims. Other funds were obtained by asking unsuspecting friends or acquaintances to cash cheques for her while Ms. Saluma knew that she had no monies to cover the cheques.
2     Although some money has been repaid to a few victims, almost $2 million remains outstanding. There is little hope of restitution: in and around the period of the fraud, Ms. Saluma incurred gambling losses at casinos estimated in the range of $2.6 million.
3     Ms. Saluma is 47 years old. She has a prior record for frauds in 2008 and in 2010. She has been in jail since her arrest on the current charges since January 29, 2015.
4     The Crown submits that a jail sentence of 6-8 years is appropriate. The Defence position is that 4-5 years in jail is the right sentence. Both parties agree that a restitution order in the amount of $1.5 million should form part of the sentence.
5     I have determined that the sentence should be one of 6 years, less credit for pre-sentence custody. I will make the restitution order as agreed.
2. The Temporary Foreign Worker Fraud
6     The Temporary Foreign Worker Program has been in place since 2002, and is jointly managed by Human Resources and Skills Development Canada, and Citizenship and Immigration Canada. The program allows Canadian employers to hire foreign nationals to fill temporary labour and skill shortages when qualified Canadian citizens or permanent residents are not available.
7     In order to hire a foreign worker, employers require a Labour Market Opinion or Labour Market Impact Assessment from Human Resources. A positive Labour Market Opinion or Assessment means that the employer has tried but has been unable to find a Canadian or permanent resident for the job, that the job offer is genuine, and that the employer has met job offer commitments to temporary foreign workers they have hired in the past.
8     After obtaining a positive Labour Market Opinion or Assessment, the employer contacts the worker, who then needs to apply to Citizenship and Immigration for a work permit. The employer must provide a copy of the positive Opinion or Assessment from Human Resources for inclusion with the worker's application for a work permit.
9     Imelda Saluma began operating a Temporary Foreign Worker recruiting business in Toronto under the name Go West Jobs/Go West International on July 1, 2012. The company was supposed to assist workers, mostly from the Philippines, to obtain temporary employment in Canada. When Ms. Saluma began her business, contacts in the Filipino community began asking if they could become recruiters for her. The premise was that she had Canadian companies looking for foreign workers who either had or were waiting for Canadian government approval. The recruiters were asked to begin building lists of interested applicants.
10     Ms. Saluma recruited 10 agents, who in turn recruited 8 sub-agents, to assist in the business. As part of the scheme, she enlisted members of her family and a business associate, (Rosemary Walters), to receive some of the funds. In some circumstances, she instructed the agents to pay her directly in cash.
11     The foreign worker applicants usually were expected to pay the following fees to Go West:

·         1. 
$1500 to start the application process and have their name added to the list. The recruiter would receive $500; 

·         2. 
$2000 once the applicant was advised there had been Canadian government approval. The recruiter would receive another $500; 

·         3. 
$1500 for a work visa and plane ticket (no one ever got to this stage). 
12     All recruiters were offered a 30% fee, however some charged a higher commission. Some recruiters charged no commission.
13     In fact, there was never any Canadian government approval of these applications. Ms. Saluma would forward the recruiters what appeared to be a positive Labour Market Opinion or Assessment, but they were all fraudulent. Foreign workers began to apply to their local Canadian Immigration Office for their work permits, the majority of which were in the Philippines. Soon after, the foreign workers began receiving letters of rejection from Immigration Canada, advising them that the Labour Market Opinion or Assessment was fraudulent. As a result of the fraud, the foreign workers were advised they were banned from applying to work in Canada for another 2 years.
14     The foreign workers began to demand refunds and an explanation from the recruiters, who in turn attempted to obtain them from Ms. Saluma. Some monies were repaid, but the vast majority remain outstanding. During this time until at least October 2014, Ms. Saluma continued to solicit new funds for Labour Market Impact Assessments: for example she received money from Juriphie Maristela in October 2014 for a purported meeting with a contractor named Guido, whom she represented would be providing employment to Temporary Foreign Workers.
15     Ms. Saluma's company Go West International was barred by the Philippine authorities from further recruiting Filipino workers in January 2013. An advisory was issued to Filipino overseas job applicants concerning the alleged fraudulent recruitment activities of Go West Jobs.
16     In total, there were 979 applicants for whom Ms. Saluma did not find employment.
3. Cheque Cashing Fraud
17     During the course of the fraud, Ms. Saluma convinced various friends, acquaintances or contacts, and in one case, National Money Mart, to cash cheques for her or accept money transfers in return for cash in varying amounts from $2,800 up to $10,300, knowing that she did not have the funds available to cover the cheque or transfer.
18     The total number of victims was 20, for a total fraud of $98,350.00. Some of this money was repaid, however, most was not ($82,750.00 remains outstanding). These frauds continued well into December 2014, when Ms. Saluma succeeded in borrowing money from Juhan Luik and Maria Tolentino on false pretences.
19     The figures for the cheque cashing fraud are included in the totality of the fraud indicated by the Crown, along with the Temporary Foreign Worker fraud.
4. Total Fraud and Amounts Outstanding
20     Together, the fraud involving the Temporary Foreign Worker Program and the cheque cashing fraud amounted to $2,423,350.00. Of that, $1,995,750.00 remains outstanding.
5. The Victim Impact Statements
21     Twenty-eight victims filed statements, and some read them to the court. What emerged from these statements was an overwhelming sense of betrayal from people who had tried to help Ms. Saluma when she plied them with tales of temporary financial hardship and begged them for help, and from people who had trusted her with their savings and that of their family who hoped to come to work in Canada. The statements revealed the immeasurable pain and hardship caused by Ms. Saluma's crimes, with far-reaching effects both here in Canada and in the Philippines.
22     I will quote from just a few that provide a glimpse into the hardship caused:

·         ...She preyed on my honesty, my obvious willingness to help someone in need, and at a time when we are all thinking about everything good in everyone... Financially this became worse every day. The bank froze my accounts, held my cheques, and took any money I deposited to apply against the bad cheque... I took on extra jobs, worked evenings and weekends away from my family. I did everything I could to try and keep my house and begin to correct the damage done by Imelda. We are still trying to recover. I know $3,500 doesn't sound like much but when you are already financed to the max, and are living paycheque to paycheque, $20 makes a difference. 

·         ...she wouldn't answer her phone or return my messages trying to get updates on the status of my sister's application. This began to worry me as the money I had given this woman was the sum total saving for two years, working up to 4 jobs living off the very basics of life. Some weeks I would eat only one meal a day for weeks at a time. Other times I would work 7-14 days straight. I did this just to have the chance of bring my family here. 

·         ...Imelda shuttered the dreams of everyone, and extremely destroyed the good reputation I have, the good reputation that I always protect. People do not trust me anymore and it put risk on my personal business. The humiliation that Imelda put me thru is unbearable that I thought of killing myself. I received death threats and unbearable accusations. 

·         ...I had no idea behind her face filled with smiles and reassurance lied another, one laughing at me with eyes only for my money. 

·         ...it was difficult to see her wearing expensive clothes, eating and drinking good food and wine, taking many holidays and generally spending other people's money! 

·         ...I come from a family of hard workers and have come from humble beginnings. I do not have much income as it is and the shear sum of money lost financially crippled not just me, but my entire family too. 

·         ...this woman destroyed people dreams & future & make the government of Canada law as a joke for here! 

·         ...Imelda Saluma has completely turned my life and my business upside down; my family and I have never been the same since she stole $9,500 from me on Sep 24/2014. I spent 4 months chasing, begging and pleading with her to please give the money back. Instead all she would continue to do for the next few months was make unlimited amounts of false promises. 
6. Imelda Saluma's Background
23     Ms. Saluma is 47 years old. She is divorced, and has 3 children ages 24, 22 and 17. According to Ms. Lipson, Ms. Saluma's mother and sisters had gambling problems, and Ms. Saluma's own problems in relation to gambling began in 1996, triggered by her mother's death from an aneurism. According to the Defence, coping with difficult issues such as her mother's death, her husband's infidelity and her father's death served as triggers for gambling by Ms. Saluma.
24     In April 2008, Ms. Saluma pleaded guilty to fraud under $5000; fraud over $5000; fail to comply recognizance; and uttering a forged document. While the nature of the fraud was not discussed directly in the transcript of the reasons for sentence, the judge referred to the scheme as "very sophisticated", noting that it required some planning. It appears there were 18 victims in all, including four financial institutions. A report prepared by Dr. Ilacqua indicated that Ms. Saluma had a severe gambling addiction. On top of 190 days of pre-sentence custody, Ms. Saluma received a suspended sentence and 1 year of probation. A restitution order in the amount of $61,820.00 was made.
25     I am advised $59,600 remains outstanding.
26     In May to July 2008 after sentencing, Ms. Saluma completed a treatment program for Problem Gambling, with both group and individual counselling.
27     In October 2010, she reconnected with the program, and attended group support for gamblers on November 1, 2010, January 20, 2011 and June 2, 2011.
28     In December 2010, Ms. Saluma pleaded guilty to 2 counts of fraud under $5000, and received a conditional sentence of 6 months.
29     Since her arrest on these charges, Ms. Saluma has taken a further "Addiction and Harm Reduction" workshop, as well as a number of other programs, while in custody.
30     On sentencing, Ms. Saluma addressed the court and indicated that she is full of remorse and shame for her actions. She said that in the last 10 months, while in custody, she has obtained the tools she believes she will need to abstain from gambling in future.
7. Positions of the Parties
31     On behalf of the Crown, Mr. Wright submits that this was a large and sophisticated fraud that operated like a Ponzi scheme. When some victims complained, Ms. Saluma was prepared to pay their money back, but she continued to solicit further funds from other victims to do so, as well as to gamble. In the Crown's submission, Ms. Saluma was a fraudster in the truest sense: beguiling, manipulating and tricking people into giving her money which she used for gambling and greed. As a result, the Crown submits she created havoc in the lives of people who were in dire need and besmirched the reputation of the Canadian Temporary Foreign Worker Program abroad. Taking into account her prior criminal record, Mr. Wright submits the sentence should be 6-8 years in the penitentiary.
32     On behalf of Ms. Saluma, Ms. Lipson notes that Ms. Saluma has entered a guilty plea and accepted responsibility. She has made restitution in the amount of more than $400,000, and avoided a long trial. Ms. Lipson also asks me to take into account that Ms. Saluma didn't hide the Philippine government's warnings about her business from the victims, who still came to her and asked for her help in applying for the Temporary Foreign Worker Program in Canada notwithstanding the warnings. The Defence further submits that since the agents were not Ms. Saluma's employees, this was not a true breach of trust situation. Finally, Ms. Lipson submits that Ms. Saluma has an addiction to gambling which should be seen as a mitigating factor. In the Defence submission, a sentence of 4-5 years is appropriate.
33     The parties have agreed and jointly submitted that a restitution order in the amount of $1.5 million is appropriate.
8. Law and Analysis
34     In R. v. Drabinsky, 2011 ONCA 582, our Court of Appeal confirmed that denunciation and general deterrence must dominate sentencing for large scale commercial frauds involving public companies. The trial judge in Drabinsky found the appropriate range of sentence in those situations to be between five and eight years. The Court of Appeal noted that while "one might quibble about both ends of that spectrum", significant penitentiary terms well beyond two years would normally be appropriate.
35     In R. v. Cunsolo, 2012 ONSC 114, at para.37, Justice Hill indicated that a sentence of six years is within the correct range of sentences for major frauds, and sentences in the three to five year range are common. Penitentiary sentences in the six-year range have been imposed in cases involving millions of dollars.
36     In R. v. Dhanaswar and Saheed, [2014] O.J. No. 6388 (S.C.J.), Justice Ducharme sentenced the two accused persons after a long trial in relation to frauds connected to real estate deals and loans in relation to promissory notes with unsophisticated victims, with losses of $2.3 million. He noted that while it is difficult to define a clear range of sentence for these types of fraud, his review of the case law suggested it was in the range of three to eight years. He sentenced Mr. Saheed to 7 years, and Ms. Dhaneswar to 6 years.
37     In this case involving Ms. Saluma, there are numerous aggravating factors:

·         1. 
Ms. Saluma has a criminal record and was been convicted of a series of fraud-related offences on two prior occasions, in 2008 and 2010; 

·         2. 
The fraud in relation to the Temporary Foreign Worker Program in this case was of long duration, lasting for over 2 years; 

·         3. 
There is merit to the Crown's submission that while Ms. Saluma made some restitution, she continued to solicit fraudulent funds into late 2014 in order to do so, and in essence, was simply "robbing Peter to pay Paul"; 

·         4. 
There were literally hundreds of victims (979); 

·         5. 
The impact on the victims has been devastating. The financial and emotional costs to these people has been life-changing and will be long lasting; for some, they have now been banned from applying to the Temporary Foreign Worker Program as a result of Ms. Saluma's fraudulent scheme; 

·         6. 
I agree with the Crown that this fraud besmirched the integrity of the Canadian government and the Temporary Foreign Worker program, causing the Philippine government to issue warnings about this Canadian company. As one victim put it, the law of the government of Canada was made to appear "a joke" by her actions; 

·         7. 
The fraud was a bold one, involving numerous forged Labour Market Opinions or Assessments that purported to be from Canadian authorities. While other people may have benefited in part from this fraud (there are several co-accused parties), Ms. Saluma was clearly the "mastermind" of the operation, and the primary beneficiary of the funds; 

·         8. 
The cheque-cashing frauds in relation to Ms. Saluma's friends, acquaintances and contacts traded upon their good will in response to her pleas for a "favour", and had high moral culpability; 

·         9. 
There is little prospect of restitution. 
38     I cannot agree with Ms. Lipson that it is a mitigating factor, or even a relevant factor, that recruiters continued to seek out Ms. Saluma despite the public internet warnings made about her company by the Philippine government in 2013. Indeed, there is no evidence that the victims knew that Go West Jobs was barred from recruiting Filipino workers for placement in Canada; and it seems contrary to common sense that the recruiters or applicants would have given her their hard earned savings if they had known that Go West Jobs was being investigated for fraudulent job offers and Labour Market Opinions with forged signatures.
39     Similarly, I do not see any mitigating value to the fact that the recruiters were not employees of Ms. Saluma's company. While this fraudulent scheme may not have been a breach of a position of trust by Ms. Saluma, it was certainly a thorough scam involving completely false misrepresentations and forged documents. Not one applicant got work as a result of Ms. Saluma's "business", and it bears repeating that the victims numbered close to a thousand. As the Court of Appeal noted in Drabinsky at para. 173, "cases properly characterized as "scams" will normally call for significantly longer sentences than frauds committed in the course of the operation of a legitimate business". This business was a complete scam.
40     Finally, while an illness or addiction such as gambling may be seen as a mitigating factor in some cases, I cannot agree that is extenuating in this case.
41     Ms. Saluma has known of her gambling problems for many years. In fact, Justice Clark identified the gambling addiction at the time of Ms. Saluma's offences in 2008, and imposed counselling as a term of probation. While Ms. Saluma did take some counselling immediately after her release from jail, and sporadically again during the following year, it was minimal. Tragically, it appears to have had no effect on her behaviour in this case.
42     The scope of that gambling problem is rather breath-taking. Over a period of two and a half years, Ms. Saluma gambled away $2.6 million dollars of other people's money at Niagara area casinos. At the same time, it appears she was also living the high life, as one victim remarked that Ms. Saluma was wearing expensive clothes, eating good food, drinking fine wine, and taking many holidays.
43     This case stands in contrast to a case such as R. v. Kuenzler, 2010 ONSC 4016, where the trial judge found that the accused's motivation to engage in drug activity arose from his gambling addiction. Within two weeks after his arrest, he began therapy at CAMH. He also self-excluded at casinos, saw a psychiatrist, and participated in treatment for over two years. In such circumstances, the trial judge found that his motivation to change was a significant mitigating factor on sentence, noting his "enormous effort to address his addiction", and his "remarkable progress including the absence of relapse".
44     Unfortunately, the same cannot be said for Ms. Saluma, whose efforts at rehabilitation were minimal. Her relapse was monumental and long-lasting. Accordingly, in the circumstances of this case, gambling can explain why Ms. Saluma orchestrated these frauds, but it cannot be seen as a mitigating factor.
45     However, I do agree that there is one significant mitigating factor here, and that is that Ms. Saluma has pleaded guilty and accepted responsibility for her crime. In Drabinsky, the Court of Appeal stated at para.166:

·         It is impossible to catalogue the factors that in combination could justify a sentence below the usually applicable range. We would however, make two observations. First, the investigation and prosecution of crimes like these is difficult and expensive. It places significant stress on the limited resources available to the police and the prosecution. An early guilty plea coupled with full cooperation with the police and regulators and bona fide efforts to compensate those harmed by the frauds has considerable value to the administration of justice. The presence of those factors, depending of course on the other circumstances, may merit sentences outside of the range. 
46     Looking at the range of three to eight years noted above for this kind of massive fraud, it is immediately obvious that Ms. Saluma is not at the top end of the range by virtue of her guilty plea. Similarly, she is clearly not at the lower end of the range, taking into account the size of the fraud, the nature of the fraud, and the prospect that there will be little or no restitution. However, perhaps most significantly, Ms. Saluma's case is distinguishable from all of the cases referred to by either party, by virtue of her prior criminal record.
47     Ms. Saluma's prior criminal record for related offences in 2008 and again in 2010 puts her moral and legal culpability for these current offences at the high end. While there is no doubt that she is a gambling addict, she has previously been provided with the opportunity to take counselling and address the root of her problem. Yet, I would characterize her efforts at rehabilitation as minimal at best, and find that her meagre efforts to address her gambling pale in comparison to the massive toll of misery and hardship she imposed on others in committing these offences.
48     Accordingly, notwithstanding her plea, it is my view that a sentence of 6 years is warranted.
9. Credit for Pre-trial Custody
49     I agree with the parties that Ms. Saluma should be given credit for the time she has already served at the rate of 1.5:1 in accordance with the principles set out in R. v. Summers, 2014 SCC 26. Ms. Saluma has been in custody from January 29, 2015 to December 11, 2015, which is a total of 317 days. At the rate of 1.5:1, that is the equivalent sentence of 476 days, or 1 year and 111 days, already served.
50     Accordingly on today's date the sentence will be 6 years less 476 days (2190 - 476 =1714 days) or 4 years and 254 days.
10. Restitution
51     In accordance with the joint submission, I will impose a restitution order of $1,500,000. It is a sad reality that in light of Ms. Saluma's gambling losses, it does not appear that she has any monies or assets to satisfy this debt. However, in default of payment within 90 days, the victims may seek to have the restitution order filed in the Ontario Superior Court to have judgement registered for civil enforcement should any money or assets be discovered in future.
11. Summary
52     This is a sad day for everyone. I know that the sentence imposed on Ms. Saluma will not bring back the money she squandered or erase the pain and hardship felt by the victims. I am unsure whether the time in jail will assist Ms. Saluma in wrestling with her demons or rehabilitate her. As the Court of Appeal noted in Drabinsky, the deterrent value of any sentence is a matter of controversy and speculation. However, as the Court explained, denunciation and general deterrence most often find expression in the length of the jail term imposed, and that is why the sentence is 6 years here.
L.C. PRINGLE J.

Monday, December 21, 2015

SERGIO R. KARAS QUOTED IN NATIONAL POST STORY ON IMMIGRATION AND MENTAL ILLNESS

I was quoted in today/s National Post on a very unusual case involving deportation  and mental illness.

http://news.nationalpost.com/news/canada/bipolar-man-on-verge-of-deportation-to-a-country-he-left-as-a-baby-57-years-ag

December 20, 2015

Bipolar man on verge of deportation to a country he left as a baby - 57 years ago

By Tom Blackwell 

Len Van Heest is now planning a last-ditch application to the new Immigration minister, John McCallum, for a permanent stay of deportation, said his...

A 57-year-old man who immigrated to Canada as a baby is on the verge of being deported from the only country he's known because of a string of crimes triggered by severe mental illness.
Len Van Heest - diagnosed with bipolar disorder in British Columbia at age 16 - is just the latest, dramatic example of a growing trend, say some immigration lawyers.
Increasing numbers of adult immigrants who came here as small children and developed psychiatric or neurological conditions now face removal after the previous government toughened the law on non-citizen criminals, they say.
The Canada Border Services Agency detained Len Van Heest last Wednesday and plans to send him to the Netherlands, though he doesn't speak Dutch and has not lived there since he was in diapers.
We're just dumping someone in another country
The Vancouver Island man neglected to become a Canadian citizen, so falls under legislation that lets the government expel immigrants who commit serious crimes.
A Federal Court judge has just upheld the denial of Van Heest's application to remain on humanitarian and compassionate grounds - and rejected his claim that deportation to the Netherlands would be cruel and unusual punishment.
"I don't think it's fair at all," said Peter Golden, his Victoria-based lawyer. "I don't think we can treat someone who has these vulnerabilities just like we treat everybody else ...We're just dumping someone in another country."
Golden said he is worried that his client will end up on the streets in Holland, without his required drug treatment. "In all probability, it's a death sentence for him."
Van Heest is now planning a last-ditch application to the new Immigration minister, John McCallum, for a permanent stay of deportation, said his lawyer.
But a spokesman for the Canada Border Services Agency said the decision to remove someone from Canada "is not taken lightly," and that various avenues of appeal are open to those facing deportation.
Van Heest was twice given a reprieve from removal, only to relapse into criminal activity, noted another immigration lawyer.
"I think in this particular case, as the court notes, there were just too many strikes against this fellow," said Sergio Karas, vice-chair of the Ontario Bar Association's immigration section. What's more, "in the Netherlands, you're going to get perhaps even better (mental-health) support than here."
There were just too many strikes against this fellow
Still, the United Nations' human-rights committee criticized Canada earlier this year for another, similar decision: the 2011 deportation of a 52-year-old Jamaican man who had immigrated as a teenager and committed crimes related to his schizophrenia.
Since the Conservatives tightened the law in 2013, lawyers are seeing more such removal cases, "where people came to Canada as children and developed either mental illness or brain injury due to an accident," Golden said.
The deportation rule now kicks in with a sentence of six months or more - down from two years - and there is no longer a right to appeal to the Immigration Appeal Division.
"Across the board, immigration lawyers would say they have been seeing more of these cases," echoed Jennifer Stone, a lawyer at Neighbourhood Legal Services in Toronto. "This fact scenario is one that I see somewhat commonly, and it's a real problem."
But Karas said the six-month rule makes sense, since under the old law many judges were imposing sentences of just below two years solely to avoid deportation.
According to the Federal Court ruling earlier this month, Van Heest arrived in Canada at eight months old and was a teenager when diagnosed with bipolar - where altered brain function triggers occasionally severe and disabling mood swings.
The disease causes manic episodes where he becomes agitated and hostile, harming himself and others, said Justice George Locke. He has a lengthy criminal record - usually racked up when he goes off his treatment - with about 32 police reports filed just in 2012.
Van Heest was first ordered removed from Canada in 2008, but twice won stays on deportation, and each time breached the conditions by getting in more trouble with the law, said the decision. Most recently, he was charged with uttering a threat and possession of a dangerous weapon - which Golden said was a kitchen knife.
He applied for reinstatement of his permanent residence on humanitarian and compassionate grounds, but an immigration officer rejected the request.
Golden says his client is tall, burly and bearded - making him look somewhat threatening - but he has never done serious harm to anyone.
Justice Locke - who could only review whether the immigration officer's decision was reasonable, not retry the case - cited evidence from a Dutch psychiatrist that as a citizen of Holland, Van Heest would receive treatment there, and that most Dutch people speak at least some English.
National Post

Tuesday, December 15, 2015

ABILITY FOR ECONOMIC ESTABLISHMENT DISCUSSED IN NOMINEE CASE

Thai is a rare case discussing the applicant's ability to establish himself economically in Canada after receiving  a Saskatchewan Nominee Immigration Program certificate.

Yasmin v. Canada (Minister of Citizenship and Immigration)

Between
Tahira Yasmin, Munayar Hussain Rana, Applicants, and
The Minister of Citizenship and Immigration, Respondent
[2015] F.C.J. No. 1416
2015 FC 1346

Docket: IMM-8464-14

 Federal Court
Toronto, Ontario

Annis J.


Heard: November 24, 2015.
Judgment: December 4, 2015.
(29 paras.)


JUDGMENT AND REASONS
1     ANNIS J.:-- This is an application for judicial review pursuant to section 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA or the Act] of a decision made by an immigration officer of the High Commission of Canada [the Officer] refusing the Applicants' permanent residence as members of the Provincial Nominee Class. The Applicants are seeking to have the decision set aside and referred back to a different officer for redetermination.
2     For the reasons that follow, the application is dismissed.
I. Background
3     The Principal Applicant, Tahira Yasmin, a citizen of Pakistan, was named in a certificate issued by the province of Saskatchewan for a permanent resident visa application as a member of the Provincial Nominee Class as someone who may become a permanent resident on the basis of their ability to become economically established in Canada pursuant to section 87 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [the IRPR or Regulations].
4     The Saskatchewan Immigration Nominee Program [SINP] concluded that the Principal Applicant demonstrated an ability to economically establish herself in Saskatchewan based upon the Province's low unemployment rate and availability of more than 14,000 jobs, many of which were related to the Applicant's education and experience.
5     It also relied upon the fact that the Principal Applicant had an offer of permanent full-time employment from an employer who verified that she had the skills required to perform the job, being that of a cashier working in a gas station.
6     After exchanges with the SINP and a fairness letter being sent to the Applicants, the Officer acting pursuant to section 87(3) substituted his criteria for those of the SINP. It concluded that in order for the Applicants to become economically established, it is expected that they will be able to obtain employment in Canada and already have the abilities, education and work experience which will enable them to procure employment.
7     Based on the foregoing criteria, the Officer concluded that the Applicant did not have the English language skills to be able to perform the duties required for the position of a cashier.
8     This refusal is the decision currently under judicial review.
II. Impugned Decision
9     The Officer noted the Applicants' sufficient settlement funds, but concluded that this in itself was an insufficient indicator of the Applicants' ability to become economically established.
10     The Officer considered the prospective employer's letter indicating, amongst other considerations, that the Principal Applicant's language abilities were similar to those of other employees of his who successfully carried out their duties. The Officer nonetheless concluded that it was reasonable to expect a cashier to require at least moderate English language abilities to work in Saskatoon. Based upon the Applicant's most recent International English Language Testing System [IELTS] results placing her English language abilities below basic for listening, and at the basic level for reading, writing and speaking, she did not have the required level of English proficiency.
11     The Officer indicated to the Principal Applicant that with the level of English language ability she had demonstrated, he was not satisfied that she would be able to perform the tasks of a cashier.
III. Statutory Provisions
12     The relevant subsections of section 87 of the IRPR, SOR/2002-227 in force at the time are as follows:

·       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. 

·       (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. 

·       (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. 

·       (4) 
An evaluation made under subsection (3) requires the concurrence of a second officer. 
* * *

·       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. 

·       (2) 
Fait partie de la catégorie des candidats des provinces l'étranger qui satisfait aux critères suivants : 

·       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) il cherche à s'établir dans la province qui a délivré le certificat de désignation. 

·       (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). 

·       (4) 
Toute décision de l'agent au titre du paragraphe (3) doit être confirmée par un autre agent. 
IV. Issue
13     This application raises the issue as to whether the Officer's assessment of the Principal Applicant's permanent resident under the Provincial Nominee Program was reasonable.
V. Standard of Review
14     The applicable standard of review in this application is one of reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9).
VI. Analysis
15     There was some discussion during the hearing concerning the appropriate interpretation of the requirements of demonstrating an ability to become economically established in Canada. The Applicant referred to the decision of Rezaeiazar v Canada (Minister of Citizenship and Immigration), 2013 FC 761 [Rezaeiazar] where at paragraph 77 Justice Russell considered the meaning of becoming economically established in Canada pursuant to paragraph 85 (3) (b) as follows:

·       [77] This brings up the issue of the relationship between the point system and economic self-sufficiency. The Applicant says that, in order to meet the requirements necessary to come to Canada pursuant to the skilled worker class, she must meet the points requirements set out in paragraph 85(3)(b) of the Regulations and demonstrate that she can become economically established in Canada. That is, that she can become economically self-sufficient within a reasonable amount of time upon her arrival in Canada. Given that the Applicant has already surpassed the points requirement by three points in this case, she says that the only issue is whether or not there is an additional requirement that she be able to establish herself economically in the occupation in which she qualified. 

·       [Emphasis added] 
16     Based on the criterion in Rezaeiazar of the Applicant becoming "economically self-sufficient within a reasonable amount of time upon her arrival in Canada" and the employer's letter indicating other employees with similar language deficits were successfully employed, I think it fair to conclude that the Applicant would have the ability to become economically established within a reasonable time after arrival in Canada.
17     The Officer did not apply a test based on reasonably acquiring the abilities in a reasonable time period after arriving in Canada. Instead, the Officer required that the Applicants demonstrate that "they will be able to obtain employment in Canada and already have the abilities, education and work experience which will enable them to procure employment." [Emphasis added]
18     I am satisfied that the Officer applied an appropriate definition of the "the ability to become economically established" for the purpose of section 87 (3) of the Regulations. I find that the circumstances before Justice Russell are distinguishable from those in this matter. In Rezaeiazar, the applicant had "already surpassed the points requirement" and therefore, her abilities, education and work experience were not in issue.
19     It is understandable that the Regulations would require that persons arriving in Canada to occupy positions already possess the necessary abilities, education and work experience to discharge their duties. Otherwise the granting of permanent residency would be based upon a contingent outcome in the future. Once accepted as a permanent resident under the program, the foreign national maintains that status, even if it proves that she is unable to perform in the position, or leaves the Province to live somewhere else in Canada.
20     It is therefore a reasonable policy that an employer's representation of the future successful outcome of someone in the position offered should not outweigh an objective reasonable conclusion that an Applicant who cannot perform the tasks of the position offered is not able to participate sufficiently in the Canadian labour market to economically support herself.
21     Accordingly, I accept the Officer's implicit interpretation of the requirement of becoming economically established in Canada that applicants must demonstrate upon arrival in Canada that they already have the abilities, education and work experience which will enable them to procure employment.
22     On this basis, I also reject the Applicant's argument that in engaging considerations beyond those relied upon by the SINP, the Officer was basing his decision on irrelevant considerations. The Officer acknowledged that deference was owed to the factors underpinning the Province's nomination of persons for the Provincial Nominee Class. Nevertheless, by section 87(3) of the IRPR, it remains the mandate of the Minister to determine whether the Principal Applicant can support herself economically. Accordingly, it is reasonable that the Principal Applicant must be able to demonstrate that she is capable of performing the job offered which includes the communication and related language skills to perform in the position.
23     With respect to the substance of the Officer's decision, I furthermore find it reasonable to conclude that for a position that has tasks of complexity that range from basic to moderate, the Principal Applicant should have at least, moderate English language proficiency. The Principal Applicant possessed only "Extremely limited user" for listening skills, and only basic abilities in reading, writing and speaking in English. These abilities improved slightly on the second test.
24     Additionally, while the employer's statement that he may be prepared to keep persons in a position even though the person does not possess the skills to perform the position because of a shortage of available workers to otherwise perform the tasks, the employer nevertheless did not explain how someone could be a cashier who cannot understand customers, or provide services or maintain or prepare reports with only basic reading, writing and speaking skills.
25     I similarly agree with the Officer's conclusion that the employer's response that the language ability required for the position is "not high" does not explain how the Principal Applicant would be able to perform her duties with only basic and below basic English language abilities except by the employee learning on the job.
26     An employer's representation of the future successful outcome of someone in the position offered does not outweigh an objective reasonable conclusion that an applicant who cannot perform the tasks of the position offered is not able to participate sufficiently in the Canadian labour market to economically support herself.
27     I also conclude that the decision of Sran v Canada (Minister of Citizenship and Immigration), 2012 FC 791 cited by the Applicants where it was found that the officer was applying the criteria from the skilled worker class is distinguishable inasmuch as there is no suggestion here that a language skill is not relevant to being able to perform the job, whether or not it is also a factor for a skilled worker NOC evaluation.
28     Given the deference owed to the decision-maker, including applying his own statute if this could be considered an interpretation issue, I find the evidence sufficient to support the Officer's conclusion that the Applicant does not have the English language skills to be a cashier. As such, the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
VII. Conclusion
29     The application is dismissed and no question will be certified for appeal.
JUDGMENT
THIS COURT'S JUDGMENT is that the application is dismissed and no question is certified for appeal.

ANNIS J.
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