Docket: IMM-2817-11
Citation: 2012 FC 306
Ottawa, Ontario, March 14,
2012
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
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FARHA FAROOK SHIRAZI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
This
is an application by Farha Farook Shirazi (Ms. Shirazi), pursuant to subsection
72(1) of the Immigration and refugee Protection Act, SC 2001, c 27 [IRPA],
for judicial review of a decision of M. Pendleton, Case Officer at Citizenship
and Immigration Canada (the officer) rendered April 14, 2011, denying Ms.
Shirazi’s application for permanent residence as a member of the Federal
Skilled Worker [FSW] class.
[2]
For
the reasons that follow, this application for judicial review is granted.
II. Background
A.
Facts
[3]
Ms.
Shirazi is a citizen of India, born in Surat, on
September 10, 1975.
[4]
Ms.
Shirazi is married with two children. She holds a Bachelor of Commerce and a
diploma in Computer Education from the D.R.K. College of Commerce,
in India and a
diploma in International Trade from Mumbai.
[5]
Her
resume reveals that she held several positions in the secretarial field. From
October 1999 to September 2001 she worked as a secretary for Al-Rods est., in
Sharjah, U.A.E. From November 2002 to February 2006, she worked as an Executive
Secretary for Avon Appliances in Mumbai. Ms. Shirazi then worked for Standard
Carpets in Sharjah until April 2007. Finally, she joined the “Happy Home English School” in
Sharjah from September 2008 to this date (see paras 7 to 15 of the Affidavit of
Farha Farook Shirazi).
[6]
In
July 2007, she filed an application under the FSW class.
[7]
On
October 9, 2007, Ms. Shirazi received an acknowledgement of application from
the Canadian High Commission in London, England.
[8]
On
March 11, 2010, Ms. Shirazi was informed that her application was sent to the
Case Processing Pilot in Ottawa.
[9]
The
Officer concluded that Ms. Shirazi did not satisfy the requirements of the IRPA
and the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR].
Therefore, she was inadmissible under de FSW class, more particularly under the
secretary category.
B.
Officer’s
decision
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Points
assessed
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Maximum
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Age
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10
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10
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Education
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22
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25
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Experience
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19
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21
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Arranged employment
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0
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10
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Official language
proficiency
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14
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24
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Adaptability
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0
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10
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TOTAL
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65
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100
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[10]
The
Officer assessed Ms. Shirazi’s application and awarded points as follows:
[11]
In
order to be accepted under the FSW class, Ms. Shirazi needed a minimum of 67 points.
However, as the table above indicates, Ms. Shirazi only scored 65 points out of
a maximum of 100 points.
[12]
The
portion of the decision that is at issue, in this case, relates to the
Officer's rating in the “Experience” category.
[13]
As
evidence of her experience in the secretarial field, Ms. Shirazi provided
several letters from past employers. According to the Officer, of all the documents
submitted, only two contained details of her duties (see pages 49 to 59 of the
Applicant’s Record). The Officer assessed Ms. Shirazi’s work experience using
these two letters. The Officer compared the duties listed in these letters to
the description in the National Occupational Classification [NOC] and found
that only one letter (see the letter from Avon Appliances, pages 49 to 57) demonstrated
that Ms. Shirazi had performed a number of the duties listed in the NOC code
1241 [NOC 1241]. The Officer writes: “that letter, from Avon Appliances, covers
a period of employment of three years, but less than 4 years” (see page 2 of
the Tribunal Record).
[14]
Ms.
Shirazi was awarded 19 points instead of 21 points in the experience category
because of the length of her tenure at Avon. The Officer calculated Work
Experience points “based upon the dates of employment as provided by the letter
from Avon Appliances. The dates of [employment] are indicated as 5 November
2002 to 28 February 2006. This is a total of 39 months of employment, or three
(3) years but less than four (4) years. As per section 80(1) of the [IRPR],
[the Officer] awarded 19 points for work experience based on this assessment”
(see para 16 of the Affidavit of Meghan Pendleton dated November 18, 2011).
III. Issue and
standard of review
A. Issue
·
Did the officer err in
finding that Ms. Shirazi failed to satisfy the requirements found in subsection
75(2) of the IRPR?
B. Standard of
Review
[15]
“The
assessment of an application for permanent residence under the [FSW] class is
an exercise of discretion that should be given a high degree of deference” (see
Ali v Canada (Minister of
Citizenship and Immigration), 2011 FC 1247, [2011] FCJ No 1536 at para
26; Kniazeva v Canada (Minister of
Citizenship and Immigration), 2006 FC 268). The present issue raises a
question of fact or of mixed fact and law. It is therefore reviewable on a standard
of reasonableness (see Gulati v Canada (Minister of
Citizenship and Immigration), 2010 FC 451, [2010] FCJ No 771 at para 19
[Gulati]).
[16]
When
reviewing a decision on a standard of reasonableness, the Court must be
concerned “with the existence of justification, transparency and
intelligibility within the decision-making process. But it is also concerned
with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (see Dunsmuir v
New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47 [Dunsmuir]).
IV. Parties’
submissions
A.
Ms.
Shirazi’s submissions
[17]
Ms.
Shirazi claims the Officer’s decision is unreasonable because she failed to
take in consideration her letter of employment from the “Happy Home English School”. She also submits
that an applicant does not need to perform all of the duties set out in the NOC
1241. In Sandhu v Canada (Minister of
Citizenship and Immigration), 2010 FC 759 at para 27, Justice Mandamin
wrote that “the Applicant’s last employer listed her responsibilities. This
list included two tasks which would qualify the Applicant as a secretary as
understood by the NOC 1241 standard: namely, making travel arrangements and
training new staff”.
[18]
Ms.
Shirazi underlines that she occupied the position of school secretary at the “Happy Home English School”. She
alleges that her duties at the school which were listed in her letter dated May
2, 2010 (see page 59 of the Applicant’s record) shows that she did perform a
number of the main tasks listed in the NOC 1241. She submits that, in comparing
the NOC 1241 to her letter of employment from the school, similarities of the
duties are apparent.
[19]
The
Officer disregarded Ms Shirazi’s experience at the school because it failed to
show that she had performed a number of the main duties described in the NOC. Ms.
Shirazi contends that the main duties listed in the NOC 1241 must be applied to
various contexts.
B. Respondent’s
submissions
[20]
The
Respondent submits that, although Ms. Shirazi had performed the main duties of a
secretary in the lead statement of the NOC 1241, she only met the requirements of
two criteria for one of her former positions.
[21]
The
Respondent alleges that the evaluation of an applicant’s work experience is a
matter that belongs to each visa officer. The decision at hand is discretionary
and is reasonable in its entirety. This Court’s intervention is therefore not warranted.
[22]
The
Respondent refers to Justice Jerome’s decision in Hajariwala v Canada (Minister of
Employment and Immigration), [1989] 2 FC 79 at para 7, where he held that
“it is clearly, therefore, the responsibility of the applicant to produce all
relevant information which may assist his application”. Since Ms. Shirazi did
not provide sufficient information in support of her application, the Officer
was unable to conclude that she had performed a substantial number of the main
duties listed in NOC 1241 when working for the “Happy Home English School”.
Consequently, The Officer’s decision is reasonable.
V. Analysis
·
Did
the officer err in finding that Ms. Shirazi failed to satisfy the requirements
found in subsection 75(2) of the IRPR?
[23]
On
April 14, 2011, the Officer rendered her decision. She wrote:
…you provided several letters of employment,
letters of offers and contracts. Of these documents, two (2) contained details
of your duties. I assessed your work experience using these two documents. I
compared the duties listed in these letters to the description in the National
Occupational Classification (NOC) and found that only one letter demonstrated
that you had performed a number of the main duties. That letter, from Avon
Appliances, covers a period of employment of three years, but less than 4
years.
[24]
The
Officer concluded that her letter of employment from the “Happy Home English School” failed to demonstrate
that she had performed a substantial number of the main duties set out in the
NOC 1241.
[25]
Pursuant
to subsection 11(1) of the IRPA, “the visa or document may be issued if,
following an examination, the officer is satisfied that the foreign national is
not inadmissible and meets the requirements of this Act”.
[26]
Subsection
12(2) of the IRPA governs the application under the economic class. Its
purpose is to determine whether a foreign national has the ability to become
economically established in Canada.
[27]
Furthermore,
subsection 75(1) of the IRPR provides that, “for the purposes of
subsection 12(2) of the Act, the federal skilled worker class is hereby
prescribed as a class of persons who are skilled workers and who may become
permanent residents on the basis of their ability to become economically
established in Canada”. Pursuant to subsections 75(2) and (3) of the IRPR:
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(2) a foreign national is a
skilled worker if
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(2) Est un travailleur qualifié
l’étranger qui satisfait aux exigences suivantes :
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(a) within the 10 years preceding the date
of their application for a permanent resident visa, they have at least one
year of continuous full-time employment experience, as described in subsection
80(7), or the equivalent in continuous part-time employment in one or more
occupations, other than a restricted occupation, that are listed in Skill
Type 0 Management Occupations or Skill Level A or B of the National Occupational Classification
matrix;
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a) il a accumulé au
moins une année continue d’expérience de travail à temps plein au sens du
paragraphe 80(7), ou l’équivalent s’il travaille à temps partiel de façon
continue, au cours des dix années qui ont précédé la date de présentation de
la demande de visa de résident permanent, dans au moins une des professions
appartenant aux genre de compétence 0 Gestion ou niveaux de compétences A ou
B de la matrice de la Classification nationale des professions —
exception faite des professions d’accès limité;
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(b) during that period of
employment they performed the actions described in the lead statement for the
occupation as set out in the occupational descriptions of the National Occupational Classification;
and
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b) pendant cette période
d’emploi, il a accompli l’ensemble des tâches figurant dans l’énoncé
principal établi pour la profession dans les descriptions des professions de
cette classification;
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(c) during that period of employment they
performed a substantial number of the main duties of the occupation as set
out in the occupational descriptions of the National Occupational Classification, including all of
the essential duties.
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c) pendant cette période
d’emploi, il a exercé une partie appréciable des fonctions principales de la
profession figurant dans les descriptions des professions de cette
classification, notamment toutes les fonctions essentielles.
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Minimal
requirements
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Exigences
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(3) If
the foreign national fails to meet the requirements of subsection (2), the
application for a permanent resident visa shall be refused and no further
assessment is required.
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(3) Si l’étranger ne
satisfait pas aux exigences prévues au paragraphe (2), l’agent met fin à
l’examen de la demande de visa de résident permanent et la refuse.
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[28]
In
reading subsection 75(3) of the IRPR it is clear that a foreign national
must meet the requirements found in subsection 75(2) in order to be considered
a skilled worker.
[29]
The
Officer held that Ms. Shirazi did not meet subsection 75(2) paragraph (c)
of the IRPR. However, as Justice Mosley wrote, in paragraph 41 of Gulati
cited above, “it is impossible to assess the officer’s conclusion, that the
applicant had not performed a substantial number of the main duties of NOC …
without knowing which duties the officer thought had not been performed and
why”. A review of the Computer Assisted Immigration Processing System notes [CAIPS
notes] does not shed additional light on the issue since they merely reiterate
the Officer’s reasons for her decision but do not provide any clear indication
of the reasoning behind the rejection of the letter from the Happy Home English School provided by
Ms. Shirazi.
[30]
Certain
clarifications were given in the Officer’s affidavit dated November 18, 2011
where she wrote that “[i]n comparing the details of the Applicant’s duties as
provided by letter from Happy Home English School to the NOC code provided by
the Applicant for this position (1241), I was not satisfied that the Applicant
had performed a substantial number of the main duties provided in the description.
I was satisfied that the Applicant had performed some of the main duties
listed, but not a substantial number” (see para 14 of the Affidavit of Meghan
Pendleton). Again, the affidavit failed to provide sufficient details to
explain the basis for the Officer’s conclusion that she was not satisfied that
Ms. Shirazi had performed a substantial number of the main duties as set out in
the NOC 1241.
[31]
The
Officer’s decision is a discretionary one. However, the reasonableness of a
decision stands on its transparency and intelligibility.
[32]
According
to Dunsmuir cited above “the transparency and intelligibility of a
decision are important elements of a reasonableness analysis” (see Gulati
at para 42). There absence renders the decision unreasonable.
VI. Conclusion
[33]
The
Officer’s decision is unreasonable, it lacked in transparency and
intelligibility. The application for judicial review is hereby granted and the
matter is remitted to the Case Processing Pilot in Ottawa for
reconsideration by another Officer.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
This
application for judicial review is granted and the matter is remitted to the
Case Processing Pilot in Ottawa for reconsideration by another Officer;
and
2.
There
is no question of general interest to certify.
"André
F.J. Scott"
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