Date:
20101001
Docket: IMM-1703-10
Citation: 2010 FC 984
Vancouver, British Columbia, October 1, 2010
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
JATINDER
SINGH BUTTAR
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (the “Act”), by Jatinder Singh
Buttar (the “applicant”), for judicial review of a decision by a visa officer
(the “officer”) at the Canadian High Commission in New Delhi, dated January
29, 2010, whereby the officer rejected his application for permanent residence
as a member of the skilled worker class.
[2]
The
applicant is a 45-year-old citizen of India. In December 2003, he applied
for a permanent resident visa in Canada under the federal skilled worker class
and requested that his application be considered under the occupation of a
Financial Auditor and Accountant (NOC Code 1111), and included two letters from
his employer, the Anjala Co-operative Sugar Mills Limited (the “Mill”).
[3]
On
June 18, 2008, the officer sent a letter to the applicant requesting
further information and documentation.
[4]
On
July 21, 2008, the applicant submitted an updated application and additional
supporting documents.
[5]
Mr.
Buttar submitted three letters in total with his application. The first two
letters were sent with the initial application, and the third was sent with the
updated application.
a.
First
letter (April 9, 2003): From the Mill. Stated that he had worked
since 1988 and that he had worked as an accountant there since March 20, 1996.
b.
Second
letter (November 14, 2003): From the Mill. Listed some of the duties he
performed as an assistant accountant from 1993-1996 and as an accountant from
1996.
c.
The
third letter (June 30, 2008): From Supreme Freight Forwarders and documents from
his most current employment. Details of some of his work duties from
October 2006 to June 2008. Indicates that he managed the account section,
bank reconciliations, payments of customs duties and other charges, raising
debit notes of brokerage claims to the shipping lines and supervising the
preparation of income tax and service tax. He was also responsible for the
finalization of the balance sheet and had obtained his “G” certificate which
qualified him to work as a broker and customs agent to facilitate the
importation of goods.
[6]
The
officer was not satisfied that the applicant had performed the duties of a Financial
Auditor and Accountant listed in NOC 1111.
[7]
Furthermore,
the officer stated that it was clear that the applicant’s duties were closer to
bookkeeping or accounting clerk duties, as described in the National Occupation
Matrix, and which fell under skill level C.
[8]
The
decision of a visa officer regarding whether or not an applicant had
performed the required duties is largely an assessment based on facts. The
standard of review is reasonableness which attracts a high degree of deference (Dunsmuir
v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, para. 47). As such, the Court will not
interfere with the decision unless it does not fall within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law.
[9]
Given
that an officer has great expertise in the issuance of visas, deference is owed
(Tiwana v. Canada (Minister of Citizenship and Immigration),
2008 FC 100 (F.C.), para. 12).
[10]
As
for issues of procedural fairness, they are reviewable according to the
correctness standard (CUPE v. Ontario (Minister of Labour), 2003
SCC 29, [2003] S.C.J. No. 28 (S.C.C.) para. 100; Sketchley v. Canada
(Attorney General), 2005 FCA 404, [2005] F.C.J. No. 2056 (F.C.A.) para.
54).
[11]
In
the case at bar, I find that the officer’s decision was reasonable for the
reasons explained below.
[12]
With
regards to the allegation that the officer ignored the information provided
about the applicant’s work at the Mill, the affidavit submitted by the officer
demonstrates that the officer did consider the letters from the
Mill in coming to her conclusions. The Computer Assisted
Immigration Processing System (“CAIPS”) (page 6 of the Tribunal Record) shows
that the officer reviewed all documents on file and the information provided by
the applicant following a letter sent to him on June 18, 2008. The Court
believes that the officer's affidavit is not an attempt to embellish her
decision, but rather to explain how she reached it.
[13]
The
applicant has also argued that if the officer found that his work fit better
under the heading of a “bookkeeper”, which is a skill level B, then he should
have been assessed under the corresponding NOC classification.
[14]
The
Court finds, however, that as stated in Khan v. MCI, 2009 FC 302,
para. 17, “it is trite law that the visa officer had the
obligation to assess the occupation listed by the applicant”, which was that of
an accountant and not that of a bookkeeper. The fact that the officer stated
that the duties performed by the applicant were more akin to bookkeeping or
accounting clerk duties does not mean that the applicant would necessarily
qualify as a skilled worker under one of these categories, it simply means that
the work he has done is more similar to those categories than the category
under which he applied.
[15]
With
regards to the alleged confusion by the officer, I accept that the officer made
an error in typing Code “1411” instead of “1431”. I do not find that
this shows any kind of confusion on her part.
[16]
I
see also no reason for the Court's intervention on the applicant's allegations
of improper classification of his experience. The officer reasonably
justified why she was not satisfied that the applicant’s duties matched those
set out under NOC 1111. For instance, the officer indicated in her affidavit
that the duties of a financial auditor or accountant go beyond preparing
financial documents and include examining and approving financial documents,
preparing analysis of financial statements, providing financial business and
tax advice and may also include supervising and training others.
[17]
The
officer’s decision falls within a range of possible, acceptable outcomes which
are defensible in respect of the facts and law.
[18]
Finally,
on the question of breach of procedural fairness, the applicant's
allegation pertained to the “ignoring of information” by the officer. Since I
have found that the officer did in fact take into account the letters from the
Mill, this submission is unfounded.
[19]
No
questions for certification were proposed and none arise.
JUDGMENT
THIS COURT
ORDERS that this application for judicial
review is dismissed. No question is certified.
“Michel
Beaudry”
Email this Content