Docket: IMM‑5394‑11
Citation: 2012 FC 384
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, April 3, 2012
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
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MADAME AMINA TALEB
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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
[1]
The applicant is
challenging the lawfulness of a decision by a Citizenship and Immigration
Canada service delivery agent [the agent] refusing, at the pre‑qualification
stage, her application for permanent residence under the Federal Skilled Worker
Class on the ground that she does not meet the requirements of
subsection 75(2) of the Immigration and Refugee Protection Regulations,
SOR/2002‑227 [Regulations].
[2]
The application for judicial
review should be allowed, since the agent’s decision seems to me to be
unreasonable in every respect.
EVIDENCE IN THE RECORD
[3]
On May 31, 2011,
the applicant sent the Centralized Intake Office in Sydney an application for
permanent residence in the skilled worker class, with supporting documentation.
The applicant’s spouse and minor daughter are included in the application as
dependants.
[4]
The applicant is a
citizen of the Kingdom of Morocco. From April 2003 to May 2005, she
held the occupation of resident physician and, since then, has been practising
as a specialist physician in oncology.
[5]
As stated
on the form for her application for permanent residence under the heading “work
experience”, the applicant worked for more than a year as a medical intern, an
occupation corresponding to National Occupational Classification [NOC]
code 3112, that is, the “general practitioners and family physicians”
category [NOC 3112]. Under the heading “main duties”, the applicant stated that,
as a medical intern, she was [translation]
“assigned to the paediatric surgery, gynaecology and life‑support
department”.
[6]
Also
according to her work experience as set out in Schedule 3 to the form, the
applicant then worked as a resident physician in oncology for over
five years and as a specialist physician in oncology for over one year;
those occupations correspond to NOC code 3111, that is, the “specialist
physicians” category [NOC 3111]. The applicant describes her main duties as
resident physician and specialist physician in oncology as follows: [translation] “responsible for managing
cancer patients (condition, treatment, follow‑up) and for supervising
young residents in training, responsible for cancer patient follow‑up,
assigned to the medical oncology department”.
[7]
To substantiate this
professional experience, the applicant submitted a number of occupational attestations
from her employers:
a.
An work certificate issued on November 24,
2010, by the Ibn Rochd hospital, Ibn Rochd hospital centre in Casa Blanca,
confirming that she has the status of médecin de premier grade, or medical
doctor, and that the applicant performs the function of physician assigned to
the oncology department;
b.
A work certificate issued on March 22,
2010, by the chief physician of the Institut national d’oncologie, or national
oncology institute, Sidi Mohamed Ben Abdellah, of the Ibn Sina hospital centre at
Rabat, confirming that the applicant has been practising as a specialist
physician assigned to the medical oncology department since May 2005;
c.
A statement of earnings covering the period from
January 1, 2009, to December 31, 2009, issued by the department of
health of the Kingdom of Morocco, on which the applicant is designated as a médecin
de premier grade;
d.
An internship certificate confirming that the
applicant completed a six‑month internship in the radiotherapy department
of the Centre hospitalier Ibn Sina in 2008–2009; and
e.
A certificate issued on April 23, 2008, by
the head of the department of medicine of the Institut de cancérologie Gustave
Roussy, or Gustave Roussy cancer institute, confirming that the applicant
performed the functions of Résident de rang A, or category A resident,
in the department of medicine for a period of six months in 2007 providing
in‑patient care in the Finistère ward and for another period of
six months in 2008 providing consultations in mastology.
[8]
The
applicant also submitted all of her university degrees, school‑leaving
certificates and transcripts attesting to her university training as a specialist
physician in oncology, in addition to her detailed curriculum vitae and the
appointment decree issued by the department of health of the Kingdom of Morocco
on September 25, 2077, appointing her as a médecin de premier grade. Furthermore, the
applicant’s identity card, Moroccan passport and other supporting documents
refer to her as a medical practitioner.
LEGAL FRAMEWORK
[9]
The Skilled Worker
Class is governed by sections 75 to 85 of the Regulations.
[10]
Subsection 75(2)
of the Regulations describes a skilled worker as a foreign national who, during
the employment period, has at least one year of continuous full‑time
employment experience, performed the actions described in the lead statement
for the occupation as set out in the NOC occupational descriptions and, during
that employment period, performed a substantial number of the main duties of
the occupation as set out in the NOC occupational descriptions, including all
of the so‑called “essential” duties.
[11]
Subsection 75(3)
of the Regulations specifies that the agent must proceed no further with the
assessment of the application and refuse it if the foreign national fails to
meet the minimal prequalification requirements.
[12]
In addition,
section 11.1 of the OP6 Manual on skilled workers contains
instructions for officers to follow to determine whether a skilled worker meets
the minimal requirements set out at paragraphs 75(2)(b) and (c)
of the Regulations:
The officer
reviews the applicant’s work experience to determine if the applicant meets
the minimal requirements to apply as a skilled worker, as stipulated in R75.
The applicant
must have at least one year of continuous full‑time paid work
experience, or the continuous part‑time equivalent, in the category of
Skill Type 0, or Skill Level A or B, according to the Canadian National
Occupational Classification (NOC).
The work
experience which will be assessed for all skilled worker applicants must:
• have
occurred within the 10 years preceding the date of application;
• not be in
an occupation that is considered a restricted occupation. At the time of
printing, there were no occupations designated as restricted. However, for
the most up‑to‑date listing,
refer to the
Skilled Workers and Professionals Web page at
http://www.cic.gc.ca/english/immigrate/skilled/index.asp.
The applicant
must have:
• performed
the actions described in the lead statement for the occupation (or
occupations) as set out in the occupational description of the NOC
(R75(2)(b));
• performed a
substantial number of the main duties, including all of the essential duties,
of the occupation as set out in the occupational description of the NOC
(R75(2)(c)).
If …
the applicant
meets the minimal requirements
Then the officer
will …
• proceed to
Section 12.
If …
the applicant
does not meet the
minimal
requirements
Then the officer
will …
• not assess
the application against the selection criteria;
• refuse the
application (R75(3)) and proceed to Section 15.
Note: Substituted evaluation (Section 13.3), cannot be used to
overcome a failure to meet the minimal requirements.
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L’agent
examine l’expérience de travail du demandeur afin de déterminer si ce dernier
répond aux exigences minimales pour présenter une demande à titre de
travailleur qualifié, tel que défini dans le R75.
Le demandeur
doit avoir au moins une année continue d’expérience de travail rémunérée à
temps plein, ou l’équivalent continu à temps partiel, qui est comprise dans
le genre de compétence 0 ou
le niveau de
compétence A ou B, selon la Classification nationale des professions (NOC).
L’expérience
de travail, qui sera évaluée pour les demandeurs à titre de travailleur
qualifié, doit :
avoir été
acquise dans les dix années précédant la demande;
• ne pas
avoir été acquise dans une profession d’accès limitée. Au moment de mettre
sous
presse, il n’y
avait aucune profession d’accès limitée. La dernière mise à jour de la liste
peut être consultée à la page Web sur les travailleurs qualifiés et
professionnels à l’adresse suivante : http://www.cic.gc.ca/francais/immigrer/qualifie/index.asp.
Le demandeur
doit :
• avoir fait
les activités décrites dans la déclaration principale de la profession (ou
des professions) telles qu’énumérées dans la description de la NOC [R75(2)b)];
• avoir
accompli un nombre substantiel des principales tâches de la profession
incluant toutes celles qui sont essentielles telles qu’énumérées dans la
description de la NOC [R75(2)c)].
Si …
le demandeur
répond aux exigences minimales
Alors…
• poursuivre à
la section 12.
Si…
le demandeur
ne répond pas
aux exigences
minimales
Alors…
• ne pas
évaluer la demande en fonction des critères de
sélection;
• refuser la
demande [R75(3)] et se rendre à la section 15.
Note : La substitution de l’appréciation (section 13.3) ne peut pas être
appliquée lorsque le demandeur ne satisfait pas aux exigences minimales.
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[13]
The
applicant’s application was assessed on the basis of the list of occupations
included in the NOC, as updated by the Minister on June 26, 2010. The occupations
of “general practitioners and family physicians” (NOC 3112) and “specialist
physicians” (NOC 3111) are described as follows, with those same codes
also covering the periods for residencies in general and in specialized
medicine:
General
practitioners and family physicians diagnose and treat the diseases,
physiological disorders and injuries of patients. They provide primary contact
and continuous care toward the management of patients’ health. They usually
work in private practice, including group or team practices, hospitals and
clinics. Residents in training to be general practitioners and family
physicians are included in this unit group.
3111 Specialist physicians
This unit group
includes specialist physicians in clinical medicine, in laboratory medicine and
in surgery. Specialists in clinical medicine diagnose and treat diseases and
physiological or psychiatric disorders and act as consultants to other
physicians. Specialists in laboratory medicine study the nature, cause and
development of diseases in humans. Specialists in surgery perform and supervise
surgical procedures. Specialists in clinical medicine usually work in private
practice or in a hospital while those in laboratory medicine and in surgery
usually work in hospitals. Residents in training to become specialist
physicians are included in this unit group.
[14]
The main duties listed
in the NOC description of the general practitioner and family physician
category are as follows:
General practitioners and family physicians perform some or all of
the following duties:
·
Examine patients and take their histories, order
laboratory tests, X‑rays and other diagnostic procedures and consult with
other medical practitioners to evaluate patients’ physical and mental health
·
Prescribe and administer medications and
treatments
·
Perform and assist in routine surgery
·
Provide emergency care
·
Provide acute care management
·
Vaccinate patients to prevent and treat diseases
·
Deliver babies and provide pre‑natal and
post‑natal care
·
Advise patients and their families on health
care including health promotion, disease, illness and accident prevention
·
Provide counselling and support to patients and
their families on a wide range of health and lifestyle issues
·
Perform patient advocacy role
·
Co‑ordinate or manage primary patient care
·
Provide continuous care to patients
·
Supervise home care services
·
Report births, deaths, and contagious and other
diseases to governmental authorities.
[15]
The main duties listed
for the occupation of specialist physician, including, therefore, the
occupation of oncologist, are as follows:
Specialists in clinical medicine perform some or all of the
following duties:
·
Diagnose and treat diseases and physiological or
psychiatric disorders
·
Order laboratory tests, X‑rays and other
diagnostic procedures
·
Prescribe medication and treatment and refer
patients for surgery
·
Act as consultants to other physicians
·
May conduct medical research.
Specialists in laboratory medicine perform some or all of the
following duties
·
Study the nature, cause and development of
diseases in humans and the structural and functional changes caused by diseases
·
Conduct microscopic and chemical analyses of
laboratory samples and specimens
·
Supervise laboratory activities
·
Act as consultants to other physicians.
Specialists in surgery perform some or all of the
following duties:
·
Assess patients’ diseases or disorders to
determine appropriate surgical procedures
·
Perform and supervise surgical procedures to
correct physical abnormalities and deficiencies and repair injuries
·
Act as consultants to other physicians.
AGENT’S REFUSAL
[16]
On July 27, 2011,
the agent refused the applicant’s application for permanent residence.
[17]
The grounds for the
refusal are extremely brief and general:
[translation]
. . . you have not provided sufficient evidence that you
performed all of the main duties of the occupation shown in the NOC
occupational descriptions and a substantial number of the main duties, as
stipulated in those descriptions. Having considered the documentation on your
additional work experience, I am not satisfied that you performed all of the
main duties of the occupation in the NOC occupational descriptions and a
substantial number of the main duties for NOC 3111 and 3112. I am
therefore not satisfied that you held the occupation of specialist physician
corresponding to code 3111 or the occupation of general practitioner and
family physician corresponding to code 3112.
[18]
The application was
therefore categorized as ineligible for processing.
STANDARD OF REVIEW
[19]
The parties
agree that the assessment of the evidence by the agent is an exercise of her
discretion and that it is subject to the reasonableness standard (Talpur v
Canada (Minister of Citizenship and Immigration), 2012 FC 25 at
paragraph 19 [Talpur]; Hoang v Canada (Minister of Citizenship
and Immigration), 2011 FC 545 at paragraph 9).
[20]
The parties also agree
that the correctness standard must apply when it is a matter of determining
whether an administrative decision‑maker has met his or her obligation of
procedural fairness and upheld the principles of natural justice; as a result,
the decision maker is owed no deference (Kumar v Canada (Minister of
Citizenship and Immigration), 2011 FC 770 at paragraph 8).
UNREASONABLE DECISION
[21]
The agent’s decision
will be considered reasonable if it falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law and if
the decision‑making process is transparent and intelligible (Dunsmuir
v New Brunswick, 2008 SCC 9 at paragraph 47).
[22]
The applicant contends
that the agent did not make a reasonable assessment of the evidence submitted
in support of the application when the agent found that this evidence did not
allow her to conclude that applicant performed the main duties of a specialist
physician or those of a medical intern, given that the burden of proof on the
applicant was none other than proof on a balance of probabilities and that
nothing in the evidence contradicted this fact in this case.
[23]
The respondent attempted
to enhance the reasons for the impugned decision by filing, with the Court, an
affidavit signed by the agent on September 29, 2011. At the hearing,
counsel for the respondent stated that the agent’s affidavit does not aim to
explain the grounds for the refusal; it merely adds additional reasons and is
therefore admissible in evidence. It seems to me that these contentions are
without merit.
[24]
The case law is
consistent that an administrative decision‑maker cannot supplement or
improve upon the initial reasons by means of an affidavit filed in proceedings
on an application for judicial review (Sellathurai v Canada (Minister of
Public Safety and Emergency Preparedness), 2008 FCA 255 at
paragraphs 46–47; Khatun v Canada (Minister of Citizenship and Immigration),
2011 FC 3 at paragraphs 9–10).
[25]
That said, the
interview notes such as the notes entered in the Computer‑Assisted
Immigration Processing System (CAIPS) do constitute reasons (Ghirmatsion v
Canada (Minister of Citizenship and Immigration), 2011 FC 519 at
paragraph 8), and a visa officer may, by way of affidavit, testify about what
occurred during the interview or about comments made in his or her CAIPS notes
(Karimzada v Canada (Minister of Citizenship and Immigration), 2012 FC
152 at paragraph 14; Gulati v Canada (Minister of Citizenship and
Immigration), 2010 FC 451 at paragraph 21).
[26]
In this case, the notes
in the file do not enable the Court to understand the agent’s line of reasoning,
and the affidavit in question provides no further justification for the
impugned decision, which appears unreasonable to me with regard to the evidence
on record.
[27]
Although it has been
recognized in the case law that visa officers have a certain degree of
discretion in interpreting NOC definitions and contents and in assessing the
various pieces of evidence in an application for permanent residence (see,
among others, Verma v Canada (Minister of Citizenship and Immigration),
2003 FCT 136 at paragraph 9), it is certain that the burden of proof which
a skilled worker must meet in order to prove that he or she holds an occupation
covered by the NOC is not within the visa officer’s discretion to decide.
[28]
It should be specified
that the application was not refused on the basis of an insufficient period of
practice by the applicant (paragraph 75(2)(a) of the Regulations)
or any specifically identified lack of qualifications or professional
experience. Instead, the respondent submits that the applicant’s work
certificates are insufficient to prove that she worked as a physician because
they do not contain a description of the specific duties carried out by the
applicant in performing her professional function.
[29]
The applicant is
relying on the judgment in Tabañag v Canada (Minister of Citizenship and
Immigration), 2011 FC 1293 [Tabañag]. The facts of that case are, in
my opinion, distinguishable from the applicant’s case. In Tabañag, at
paragraph 6, the Court stated that the applicant had provided an
employment certificate stating that he held the position of Construction
Project Architect, whereas, in the tribunal record, there was not “any evidence
of a written explanation or other documentation submitted by the applicant . . .
to support his claim that he performed the duties of an architect; other than a
letter from a government official addressed to him as ‘Architect Bryan Tabañag,
Site Safety Health Officer/Assistant Construction Project Manager’ inviting the
applicant to participate in a discussion on the implementation of a
construction safety and health program”.
[30]
At paragraph 22 of
the reasons for judgment, the Court stated the following:
Here, there was
no evidence before the agent to establish that the applicant had performed any
of the duties required to satisfy the occupational classification. It is not
sufficient for an applicant to provide evidence that he or she has the academic
qualifications, bears a job title and is addressed by that title in
correspondence. They must provide evidence that they have actually performed “a
substantial number of the main duties of the occupation”. Here, the applicant
did not provide that evidence either through the employer’s certificate or
alternate documentation. The information submitted fell short of establishing a
prima facie case, as the applicant contends.
[31]
However, the evidence
in the case at bar presents no such deficiencies. The evidence must be assessed
as a whole so that the various pieces of evidence submitted may corroborate or
refute one another. In this case, it is clear that the applicant is an
experienced physician. She is remunerated and insured as such. She has
completed a number of years of training and residency both in her country and
abroad, all of which was amply corroborated by the documentary evidence in the
file.
[32]
The respondent submits
that the agent could rightly decline to give any probative value to the
documents provided by the applicant herself, such as her curriculum vitae or the
Schedule 3 to her application for permanent residence form. In the Court’s
opinion, these documents constitute written testimony by the applicant which
the agent cannot reasonably exclude on the ground that they were drafted by the
applicant or her counsel, especially given that, in this case, these statements
are confirmed by common sense and the rest of the evidence, which mainly
consists of documents from state institutions. It is also erroneous to contend
that the agent was unable to use objective evidence to verify the information
provided by the applicant.
[33]
Plain common sense
confirms the applicant’s statements at paragraphs 7–8 of her affidavit,
signed on September 8, 2011:
[translation]
. . .
I do not practise in the private sector, but in the public sector. The work
certificates issued by the hospital are standard certificates for which the
template is provided by the department of health. I cannot request that
external remarks be added.
These duties are so obvious that it would be odd to request that my section
head make additions, in parentheses, indicating what a physician does in
performing the function of physician within a hospital. Not only might he not
have the right to indicate this, since he does not have the discretion to add
external remarks to a state document, but, what is more, he would consider my
request absurd. This request would also raise my employer’s suspicions of a
potential departure, which is never desirable.
[34]
The respondent contends
that this explanation is an explanation ex post facto which the
applicant cannot rely on at the application for judicial review stage in order
to attempt to complete or enhance her evidence. In my opinion, the applicant’s
explanation contains no facts which the agent herself could not have reasonably
known. Rather, the agent’s error lay in requiring that all of the elements set
out in the NOC, including the most obvious ones, appear in the applicant’s
supporting documents, which clearly led her to reach erroneous findings of
fact, which were arrived at abusively or arbitrarily and without taking into
account all of the evidence available to her.
[35]
Furthermore, in Monteverde
v Canada (Minister of Citizenship and Immigration), 2011 FC 1402, at
paragraph 27 [Monteverde], the Court decided that a visa officer
could not reasonably refuse an application for permanent residence in the
skilled worker class for the sole reason that the supporting employment
documentation provided by the employers of an applicant did not contain
detailed descriptions of his duties, regardless of the form on which the
applicant personally described his professional responsibilities and any other
corroborating evidence:
[27] It is not clear from the decision letter or the CAIPS notes
why the application failed. The officer merely states that the employment
letters submitted by the applicant did not provide sufficiently detailed duty
descriptions. Neither the decision nor the CAIPS notes refer to the document
provided by the applicant detailing his employment responsibilities and the
other objective evidence submitted in support. It appears that the officer
simply disregarded the remainder of the evidence when he found that the
employer’s letters did not contain the expected information.
[36]
I also agree with the
applicant that the NOC contains no mention of any duties other than those which
are usually performed by general practitioners or specialist physicians all
over the world, that is, making diagnoses and treating their patients, ordering
laboratory tests or other diagnostic procedures, prescribing medication, acting
as a consultant for other physicians or occasionally conducting research. The
duties described in NOC 3111 and 3112 are an inherent part of the work of
any physician practising modern medicine. To reach the opposite conclusion
would amount to believing that fire does not burn both in Athens and in Persia,
to draw on a maxim from the Nicomachean Ethics which the great philosopher
Aristotle used to distinguish between natural law and “conventional” law.
[37]
At the hearing, counsel
for the respondent submitted with conviction that the NOC is intended to
protect both Canadian society and the occupations it covers. To me, this
argument seems inapplicable here. It is understandable that a person may not be
admitted into Canada because he or she is a danger to the public and to Canada
because of criminal offences he or she may have committed abroad. That said, it
seems to me that this is the first time that is has been alleged that the
Minister has any power to judge the professional competency of a foreign
national. It must be borne in mind that the applicant’s occupation is a profession
that is widely regulated and subject to entry limits.
[38]
Instead, in Canada,
provincial professional orders are responsible for the regulation of
professions and for the protection of the public in respect of their
professionals. The Act imposes no such obligation on the respondent, whereas,
under subsection 75(1) of the Regulations, the federal skilled worker
class is a prescribed class of persons who are skilled workers, who may become
permanent residents on the basis of their ability to become economically
established in Canada and who intend to reside in a province other than the
Province of Quebec.
[39]
The flagrant
unreasonableness of the agent’s decision is sufficient to set it aside, without
there being any need to consider the second issue raised by the applicant, that
is, the issue of natural justice and the necessity of calling the applicant to
an interview if the agent had doubts as to the credibility or authenticity of
the documents provided.
[40]
This application for
judicial review is allowed. The agent’s decision is set aside, and the matter
is referred back to Citizenship and Immigration Canada for reconsideration by
another agent. No question of general importance was proposed by the parties
for certification, and none will be certified.