Date: 20100427
Docket: IMM-4121-09
Citation: 2010 FC 451
Ottawa, Ontario, April 27, 2010
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
CHANDER
MOHAN GULATI
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to Section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision dated
June 24, 2009 of a visa officer at the High Commission of Canada in New Delhi,
India. The officer refused the applicant’s application for permanent residence
as a member of the Federal Skilled Worker class.
[2]
The
officer found that the applicant had not met the requirements of subsection
75(2) of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (the Regulations). Those requirements are threefold:
a. Within the 10
years preceding the date of the application, the applicant must have at least
one year of continuous full-time employment in one or more occupations listed
in certain categories of the National Occupational Classification (NOC)
matrix;
b. During that
period of past employment, the applicant must have performed the actions
described in the lead statement for the relevant NOC;
c. During that
period of past employment, the applicant must have performed a substantial
number of the main duties set out in the relevant NOC, including all of the
essential duties.
[3]
Subsection
75(3) of the Regulations provides that if these requirements are not met, the
application for permanent residence must be dismissed. No further assessment is
required.
[4]
The
applicant applied to be considered as a skilled worker in an occupation with
the NOC code of 6212: Food Services Supervisor (“NOC 6212”). The officer found
that he had not performed the lead statement or a substantial number of the
main duties of NOC 6212. Accordingly, she refused the application for permanent
residence.
BACKGROUND
[5]
The
applicant is a 33-year-old citizen of India. He came to Canada on a student
visa in 2003.
In 2005, having made a claim for refugee protection, he successfully applied
for a work permit which continues to be valid. The refugee claim was refused in
November 2007.
[6]
In
June 2006, the applicant was hired as a food service supervisor at Nirvana: the
Flavours of India (Nirvana), a
fine dining restaurant in Mississauga, Ontario. He continues to hold
that position.
[7]
On
October 27, 2008, Nirvana received an Arranged Employment Opinion (AEO) from
Human Resources and Skills Development Canada (HRSDC). The general purpose of
an AEO is to establish that a person has arranged employment in Canada, as defined
in s.82 of the Regulations. It does this by confirming a job offer that the
person has received.
[8]
The
AEO in the case at bar confirmed that Nirvana had made a permanent or
indeterminate-length offer of employment to the applicant as a Food Service
Supervisor. According to the applicant, this offer was to rehire him to the
same position that he has held since June 2006. The annex to the AEO confirms
that the offer was for a position falling within NOC 6212.
[9]
On
December 19, 2008, the applicant submitted the application for permanent
residence that is now at issue. The documents submitted with the application
included the following:
a. A letter from
the Director of Nirvana outlining the applicant’s job duties at Nirvana (the
Experience Letter);
b. A copy of the
applicant’s resumé;
c. The AEO;
d. A copy of a
formal job offer from Nirvana (the Job Offer) was submitted later, in response
to a request from the officer.
DECISION UNDER REVIEW
[10]
In
Computer Assisted Immigration Processing System (CAIPS) notes, the officer listed
the applicant’s job duties at Nirvana as they are described in the Experience
Letter. The officer concluded, however, that at Nirvana, the applicant performed
only 2 of 8 essential duties of NOC 6212. Moreover, the officer found, the
Experience Letter did not refer to the number of people the applicant
supervised.
[11]
The
officer also noted that according to its lead statement, NOC 6212 is predominantly
found in hospitals and fast food establishments. Nirvana is a fine dining
establishment.
[12]
For
those reasons, the officer was not satisfied that the applicant had performed
the functions described in the lead statement or a substantial number of the
essential duties of NOC 6212, as required by subsection 75(2) of the
Regulations. The officer therefore refused the applicant’s application for
permanent residence pursuant to subsection 75(3).
[13]
In
her affidavit, the officer admitted that she had not considered the AEO or the
Job Offer in reaching her decision.
ISSUES
[14]
The
issues on this application are as follows:
a. Did the officer
err in failing to consider the AEO, Job Offer and resumé?
b. Did the officer
err in finding that the applicant did not satisfy the requirements in s.75 (2)
of the Regulations?
c. Did the officer
violate principles of procedural fairness?
[15]
In
addition, the applicant has raised a preliminary issue concerning the
admissibility of portions of the officer’s affidavit.
ANALYSIS
Standard of Review
[16]
In
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190, the Supreme Court of Canada held that a standard of review analysis
need not be conducted in every instance. Where the standard of review
applicable to the particular question before the court is well-settled by past
jurisprudence, the reviewing court may adopt that standard of review.
[17]
Past
jurisprudence establishes that when reviewing an officer’s decision on an
application for permanent residence, issues of law should be reviewed on a
standard of correctness while issues of discretion and of mixed fact and law
should be reviewed on a standard of reasonableness: Kastrati v. Canada
(Minister of Citizenship and Immigration), 2008 FC 1141, [2008] F.C.J. No. 1424
(Q.L.); To v. Canada (Minister of Employment and Immigration), [1996]
F.C.J. No. 696 (F.C.A.) (Q.L.).
[18]
It
is tempting to view issue (a) as a question about the legal relevance of the AEO
and the Job Offer. However, in my opinion, the real dispute between the parties
is whether the officer erred in finding that the applicant does not have
experience performing NOC 6212. That dispute is one of fact or mixed fact and
law. If it is found that the AEO and Job Offer were relevant evidence which the
officer ignored, that may render her findings unreasonable, but it does not
turn a factual question into a legal one.
[19]
Similarly,
issue (b) is a question of mixed fact and law or discretion, which should be
reviewed on a standard of reasonableness: Kniazeva v. Canada (Minister of Citizenship
and Immigration),
2006 FC 268, [2006] F.C.J. No. 336 (Q.L.); Patel v. Canada (Minister of Citizenship
and Immigration),
2008 FC 867, 169 A.C.W.S. (3d) 180. Deference should also be shown to the officer’s
interpretation of NOC 6212: Madan v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1198
(T.D.) (Q.L.).
[20]
Finally,
past jurisprudence establishes that issues of procedural fairness, such as
issue (c), should be reviewed on a standard of correctness: Canadian Union of Public Employees v. Ontario (Minister of Labour), 2003 SCC
29, [2003] 1 S.C.R. 539; Level (Litigation Guardian) v. Canada (Minister of Public
Safety and Emergency Preparedness), 2008 FC 227, [2008] F.C.J. No. 297 (F.C.)
(Q.L.).
Preliminary Issue
[21]
I
am satisfied that the affidavit of the officer is admissible. In accordance
with this Court’s decisions in bin Abdullah v. Canada (Minister of Citizenship
and Immigration),
2006 FC 1185, 155 A.C.W.S. (3d) 417 at paragraph 15, Obeng v. Canada (Minister
of Citizenship and Immigration), 2008 FC 754, 169 A.C.W.S. (3d) 869 at
paragraphs 27-30, and Wai v. Canada (Minister of Citizenship and Immigration),
2009 FC 780, 348 F.T.R. 85, the affidavit does not add new arguments to the officer’s
reasons. It merely, in the words of bin Abdullah, “elaborat[es] on
cursory reasons for an assessment provided in CAIPS notes,” or in the words of Obeng,
“states why she made the remarks in the CAIPS notes.”
These uses of an affidavit are acceptable.
[22]
As well, contrary to the applicant’s submission at the hearing of
this matter, there is nothing in Obeng to suggest that an officer may
only submit an affidavit to answer an allegation of fact made by the applicant.
The restriction is that the officer may not add to her reasons, and here she
has not.
Failure to Consider the AEO,
Job Offer and Resumé
[23]
The
officer admits in her affidavit that she did not consider the AEO or Job Offer.
It is unclear whether she considered the resumé. Ought she to have considered this
evidence?
[24]
Unfortunately,
the jurisprudence offers little guidance on this question. Randhawa v. Canada (Minister of Citizenship
and Immigration),
2006 FC 1294, 152 A.C.W.S. (3d) 702 and
Chen v. Canada (Minister of Citizenship
and Immigration),
[2000] F.C.J. No. 594 (T.D.) (Q.L.) establish that in assessing whether an
applicant has the necessary skills to perform a certain job or NOC, the officer
must rely on objective evidence. However, the cases do not say what sort of
objective evidence should be considered. Bellido v. Canada (Minister of Citizenship
and Immigration), 2005 FC 452, 138 A.C.W.S. (3d) 728, cited by the
respondent, holds
that an AEO is not dispositive of an applicant’s skills, but the applicant is
not arguing that it should be dispositive. He is only arguing that it should
have been taken into account, among other evidence.
[25]
Although
there is little jurisprudence directly on point, it is trite law that a
decision-maker may not make a factual finding without regard to relevant
evidence: Cepeda-Gutierrez v. Canada (Minister of
Citizenship and Immigration) (1998), 157 F.T.R. 35. Accordingly, the
question to be answered is whether the AEO, Job Offer and resumé were
relevant to the decision.
[26]
The
decision was made under subsection 75(2) of the Regulations, which requires the
applicant to prove that he has experience performing the lead statement and a
substantial number of the main duties of NOC 6212, within the ten years
preceding his application for permanent residence. In other words, the applicant
must establish that he has certain past work experience.
[27]
A
job offer, and an AEO that confirms it, relate to future employment. Ordinarily,
this evidence would be irrelevant to the applicant’s past work experience. The
case at bar, though, is unusual, because the AEO confirms a job offer for the
same job that the applicant has performed for three years. The AEO has
classified that job as falling within NOC 6212. In my view, this is relevant
evidence that the applicant has performed NOC 6212 in the past. Similarly, the
duties listed
in the Job Offer are relevant in assessing
the applicant’s past work experience, because the Job Offer refers to the same
job the applicant has performed in the past.
[28]
In
oral argument, the respondent submitted that the applicant never informed the officer
that the Job Offer and AEO referred to a job he was already performing. Accordingly,
there was no reason for the officer to believe that this evidence was relevant
to the applicant’s past experience. The respondent cites differences in salary
and in job duties between the past job, as described in the Experience Letter,
and the future job described in the Job Offer.
[29]
In
my opinion, despite these differences, the two job descriptions are
substantially similar. They refer to the same employer, the same job title, and
almost all of the same duties. Had the officer turned her mind to the question,
I am satisfied that she would have recognized that they referred to the same
position, or a substantially similar one. Thus, she would have been able to recognize
that the AEO and Job Offer were relevant evidence. The officer only failed to recognize
this because, unreasonably, she did not consider the AEO or Job Offer at all.
[30]
The
respondent also submits that it was appropriate for the officer not to consider
the resumé or the AEO, because they do not conform to the High Commission’s
requirements for evidence. Signed letters from the applicant’s employer are
required. The applicant was made aware of these requirements before submitting
his application.
[31]
In
Malik v. Canada (Minister of Citizenship and Immigration), 2009 FC
1283, [2009] F.C.J. No. 1643 (Q.L.), Justice Mainville considered the extent to
which non-binding administrative
guidelines may dictate what sort of
evidence a decision-maker can consider. Justice Mainville held that the
guideline at issue in Malik was appropriate because it merely notified
the applicant that a certain type of evidence would not be deemed “satisfactory
proof” of a fact. The evidence could still be considered; it could still be “satisfactory
proof” in an unusual case; the guideline was reasonable and inoffensive.
[32]
Nothing
in Justice Mainville’s decision excuses an officer from the obligation to
consider all evidence. As Justice Mainville wrote, even evidence that would not
be “satisfactory proof” in an ordinary case might be satisfactory in an unusual
case. The officer must, therefore, consider all of the evidence to determine
whether it is satisfactory in any particular instance.
[33]
In
this instance, I am prepared to assume that the officer did consider the resumé,
and merely found, appropriately, that it was not “satisfactory proof.” On the
other hand, the officer acknowledged not considering the AEO. Since she failed
to consider relevant evidence, her finding that the applicant had not met the
requirements in subsection 75(2) was unreasonable and must be set aside.
The officer’s decision
on the s.75(2) Requirements
[34]
The
officer held that the applicant had performed neither the lead statement nor a
substantial number of the main duties of NOC 6212 in his job at Nirvana.
[35]
The
applicant’s main submission concerning the lead statement is that the officer
erred in interpreting it to exclude fine dining restaurants. This is because
the lead statement expressly refers to “other food service establishments.” The
respondent submits that the lead statement contains a list of establishments,
including hospitals and cafeterias. It was reasonable, in the respondent’s
view, for the officer to interpret “other food service establishments” as only
including establishments that are analogous to the ones in the list.
[36]
I
accept that the officer is owed deference in interpreting NOC 6212, and based
on the wording of the NOC alone, I would have accepted the respondent’s
argument. However, in the circumstances of this case, other factors must be
taken into account. First, even if the AEO had not been relevant to the applicant’s
past work experience, it was certainly relevant in interpreting NOC 6212. HRSDC, a body with
considerable expertise in occupational classifications, determined that the applicant’s
offer for a future restaurant job fell within NOC 6212.
[37]
Furthermore,
NOC 6212 was considered by this Court in Nathoo v. Canada (Minister of
Citizenship and Immigration), 2007 FC 818, 159 A.C.W.S. (3d) 427. Although Nathoo
arose in a different factual and legal context from the case at bar, it is
relevant in that Justice O’Reilly accepted that a job managing a restaurant
could fall within NOC 6212. In light of this decision, and the HRSDC
determination, the officer’s interpretation of the lead statement was
unreasonable.
[38]
The
next question is whether the decision was reasonable with respect to the applicant’s
failure to perform a substantial number of the main duties of NOC 6212. I find
this question difficult to answer because of the minimal reasons provided.
[39]
The
CAIPS notes say that the applicant only performed 2 of 8 essential duties, but they
do not specify which 2 he performed, or why he was found not to have performed
the other 6. The
officer’s affidavit says that the Experience Letter only contained general
statements, but that is not a sufficient explanation. The Experience Letter was
apparently detailed enough to prove that the applicant had performed 2 of the
duties; why not the others?
[40]
The
respondent submits that certain remarks in parentheses in a March 12, 2009
CAIPS entry reveal the 2 duties the officer thought had been performed.
However, it appears to me that these remarks, including the parentheses, were
copied verbatim from the applicant’s application for permanent residence. They
do not set out the officer’s own findings.
[41]
It
is impossible to assess the officer’s conclusion, that the applicant had not
performed a substantial number of the main duties of NOC 6212, without knowing
which duties the officer thought had not been performed and why.
[42]
According
to Dunsmuir, above, at paragraph 47, the transparency and
intelligibility of a decision are important elements of a reasonableness
analysis. I conclude that their absence in the present decision render it
unreasonable.
Procedural Fairness
[43]
The
applicant submits that he should have been notified of the officer’s concerns
about his past work experience, and given an opportunity to respond. In my
opinion, this Court’s decision in
Hassani v. Canada (Minister of Citizenship
and Immigration),
2006 FC 1283, 152 A.C.W.S. (3d) 898 controls the present case. It says that an officer
does not need to give notice of a concern that the applicant lacks work
experience, and therefore does not fall within a certain NOC, because that
concern arises directly from the Regulations. Accordingly, the officer did not
breach her duty of procedural fairness.
[44]
In
oral argument, the applicant submitted that the present case is distinguishable
from Hassani because there has been ongoing communication between the officer
and the applicant. With respect, I cannot conclude that the officer must give
notice of these concerns just because she was also communicating with the applicant
about other issues and raising other concerns.
CONCLUSION
[45]
I
find that the decision was made in a procedurally fair manner. However, I also
find that the decision was unreasonable in that it was made without regard to
relevant evidence, relied on an unreasonable interpretation of the lead
statement of NOC 6212, and did not meet the standards of transparency and
intelligibility. Accordingly, the application for judicial review is granted.
The decision is quashed and the matter will be returned for consideration by a
different visa officer. The parties have not proposed any questions for
certification, and none, in my view, arise from the facts of this case.
JUDGMENT
IT IS THE JUDGMENT OF
THIS COURT that:
- the application is
granted and the matter is remitted to the High Commission of Canada in India for
reconsideration by another visa officer; and
- no questions of
general importance are certified.
“Richard
G. Mosley”
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