Zahid v. Canada (Citizenship and Immigration), 2015 FC 1263 : Provincial Nominee Refusal Overturned Because Officer Improperly Assessed Employment Prospects and Spousal Support

Outcome: Judicial Review Allowed

Ø  Introduction

The Federal Court reviewed the refusal of a permanent resident visa application submitted by a Pakistani teacher nominated under the Saskatchewan Immigrant Nominee Program’s Family Stream.

The visa officer was not satisfied that she could become economically established because her English was insufficient for teaching and she had not demonstrated the skills needed for other employment.

The Court overturned the refusal because the officer’s assessment of alternative employment lacked a factual basis and did not adequately consider her husband’s employment opportunities.

Ø  Key Principle

An assessment of economic establishment must consider the applicant’s overall employment prospects and relevant family support, including an accompanying spouse’s potential contribution.

An inability to work in the applicant’s preferred profession does not, by itself, establish an inability to become economically established.

Although a provincial nomination does not prevent a federal officer from reaching a different conclusion, the assessment must reasonably address the evidence, the province’s views, and the family’s circumstances.

Ø  Background

Ms. Zahid was a teacher in Pakistan who intended to immigrate to Saskatchewan with her husband and their three minor children.

Saskatchewan nominated her through its Family Stream. She was not nominated to fill a particular teaching vacancy and identified teaching as her intended occupation only when completing her federal application.

After reviewing her English language results, the visa officer raised concerns about her ability to teach in Saskatchewan and sent her a procedural fairness letter.

In response, she acknowledged that she might need to work as a teacher’s assistant or in another field, including the food and beverage industry.

She also explained that her husband had a job offer through his brother. He could not apply under the program himself because he exceeded its age limit.

Saskatchewan maintained its support for the nomination, noting her education, her ability to perform other work, and the province’s labour shortage.

Ø  Court Findings

The Federal Court accepted that the officer reasonably concluded that Ms. Zahid’s English was insufficient for teaching in Saskatchewan.

However, it found the refusal unreasonable in two respects: the assessment of alternative employment and the treatment of her husband’s employment prospects.

The officer concluded that her high level of education did not establish that she could succeed in a lower-level job.

The Court found no factual basis for suggesting that she could not perform tasks associated with food service, retail sales, or teacher-assistant positions.

The occupational information described duties such as taking orders, preparing food, stocking refrigerators, washing dishes, and supervising students. Some positions usually provided training on the job.

The Court distinguished a previous case involving evidence that an applicant’s expected salary would be insufficient to support herself and her children.

The officer also gave inadequate consideration to Ms. Zahid’s husband’s employment opportunities. In addressing the relevant operational manual, the officer treated guidance concerning overaged dependants as applying only to children.

The Court relied on an earlier decision applying that guidance to an accompanying spouse and requiring meaningful consideration of the spouse’s potential contribution.

Although operational manuals are not law, they can assist in assessing whether a decision is reasonable. The Court emphasized that spouses must support each other and rejected the officer’s narrow approach.

Ø  Outcome

The Federal Court allowed the application for judicial review and returned the application to a different visa officer for redetermination. No serious question of general importance was certified.

Case Citation:

Zahid v. Canada (Citizenship and Immigration), 2015 FC 1263 CanLII