Date: 20120322
Docket: IMM-2466-11
Citation: 2012 FC 351
Ottawa, Ontario, March 22,
2012
PRESENT: The Honourable Madam Justice Bédard
BETWEEN:
|
AL ISMAILI, SULTAN HILAL MAJID
|
|
|
Applicant
|
and
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
Respondent
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant is a citizen of Oman. He filed an application for a permanent
resident visa to Canada as a member of the Federal Skilled Worker
class. His application was refused on April 4, 2011, because the adjudicating
immigration officer found that he provided insufficient details about his
employment.
[2]
This
is an application for judicial review of that decision pursuant to section 72
of the Immigration and Refugee Protection Act, SC 2001, c 27. For the
following reasons the application is dismissed.
I. Background
[3]
The
applicant submitted an application for permanent residence in Canada as a member
of the Federal Skilled Worker class on September 17, 2007. He included his wife
and child in his application.
[4]
He
stated in his application that he was employed as a pilot for Gulf Air.
According to the National Occupation Classification (NOC), the occupation of
pilot is classified under NOC 2271 and categorized under Skill Level B.
[5]
On
March 11, 2010, the High Commission of Canada in London sent a
letter to the applicant informing him that his application was being
transferred to the Case Processing Pilot in Ottawa, as part of
the Government of Canada’s Action Plan for Faster Immigration, implemented to
expedite processing times for certain types of applications. This letter also
requested several documents from the applicant, including an updated visa
application form and documents substantiating his work experience. With respect
to the latter, the letter specified the following:
Provide employment letters, contracts,
pay-slips and job descriptions endorsed by your employer’s personnel
department covering the period from 10 years prior to your application date
until today. Please make sure that the employment letters have details of
your duties and clearly show the start and end dates (if relevant) of your
employment. CPP-O is under no obligation to further request detailed employment
letters, and your work experience review will be based solely on the documents
initially provided.
[Emphasis added]
[6]
In
July 2010, the applicant submitted several documents, including a letter from
his employer, Gulf Air, dated June 21, 2010, attesting that he had been
employed by Gulf Air since April 19, 1992. The letter stated that the applicant
works as a captain in the Airbus Fleet Management.
[7]
In
Schedule 3 of his updated application, the applicant indicated, in the section
dealing with work experience, that he had been employed as a pilot since April
1992, and he described his main duties as follows:
a.
Fly
aircrafts fro [sic] Gulf airlines to transport passengers and freight;
b.
Direct
activities of aircraft crew during flight, as captain of aircraft
c.
Co-pilot
aircraft and perform captain’s duties of required, as first officer
d.
Train
pilots to use new equipment
II. The decision under review
[8]
The
immigration officer decided that the applicant did not meet the definition of a
Federal Skilled Worker pursuant to paragraphs 75(2)(b) and (c) of
the Immigration and Refugee Protection Regulations, SORS/2002-227 [the
Regulations]. The immigration officer indicated that she was not satisfied that
the applicant met the requirements of the Regulations because he failed to
provide sufficient details about his employment, as requested. The immigration
officer explained her reasoning as follows:
. . . The employment confirmation from
Gulf Air did not give any job description or a description of the duties
performed for the position. There is insufficient information on the document
provided by your employer to satisfy me that you have performed the main duties
of the position described. You were asked, by letter from our London office dated March 11, 2010,
to provide your work experience documents, including details of your duties.
That same email informed you that failure to provide these documents would
result in an assessment of your application based on the documents initially on
file. After reviewing all documents provided, I am not satisfied you have
performed the actions as set out in the lead statements of the NOC stated, and
that you have performed a substantial number of the main duties of the position
as described in the NOC. As a result, I am not satisfied that you meet the
minimum requirements to apply as a skilled worker as stated in R75.
III. Issue
[9]
This
case raises the issue of the reasonableness of the immigration officer’s
decision.
IV. Standard of review
[10]
It is well
established that decisions made by immigration officers regarding applicants’
eligibility for permanent residence in Canada as members of the Federal Skilled
Worker class involve an exercise of discretion and attract the reasonableness
standard of review (Aramouni v Canada (Minister of Citizenship and
Immigration), 2011 FC 430 at para 15 (available on CanLII); Mihura
Torres v Canada (Minister of Citizenship and Immigration), 2011 FC 818 at
para 26 (available on CanLII) [Mihura Torres]; Hoang v Canada
(Minister of Citizenship and Immigration), 2011 FC 545 at para 9, 98 Imm LR
(3d) 247; Veryamani v Canada (Minister of Citizenship and Immigration),
2010 FC 1268 at para 26, 379 FTR 153; Trivedi v Canada (Minister of
Citizenship and Immigration), 2010 FC 422 at para 17 (available on CanLII);
Malik v Canada (Minister of Citizenship and Immigration), 2009 FC 1283
at para 22 (available on CanLII) [Malik]; Roberts v Canada (Minister
of Citizenship and Immigration), 2009 FC 518 at para 15 (available
CanLII)).
[11]
The
Court’s role when reviewing a decision against the standard of reasonableness
is defined in Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190:
[47] . . . A court conducting a review for reasonableness
inquires into the qualities that make a decision reasonable, referring both to
the process of articulating the reasons and to outcomes. In judicial review,
reasonableness is concerned mostly 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.
V. Analysis
[12]
The
applicant argues that the immigration officer fettered her discretion by
relying on departmental guidelines, as they are outlined in the March 11, 2010
letter. The applicant further alleges that the immigration officer refused his
application solely on the basis that he did not provide an employer’s letter
that described the main duties of his job as a pilot. However, the legislation
and the Regulations do not specify the means by which one must establish that
an applicant exercises the main duties of an occupation and do not specifically
require employers’ letters that include job descriptions. Accordingly, the
applicant submits that the immigration officer’s decision is unreasonable.
[13]
The
applicant also argues that it was unreasonable for the immigration officer to
conclude that he had not satisfactorily established his main duties as a pilot
for Gulf Air. The applicant insists that there was no issue of credibility in
his case and that the evidence he submitted clearly established his main duties
as a pilot. First, he argues that the specific job duties of a pilot, and more
particularly of a captain, are obvious and an immigration officer is expected
to know what they are. Second, he alleges that the description of his main
duties in Schedule 3, combined with the confirmation letter provided by his
employer, was sufficient to establish that he genuinely works as a pilot for
Gulf Air and was also sufficient to establish his job duties.
[14]
The
respondent argues, for his part, that the onus was on the applicant to
establish that he met the requirements to be admitted to Canada as a Federal
Skilled Worker and that the request to submit detailed employers’ letters for
the past 10 years, was explicitly outlined in the letter sent to him on March
11, 2010. The respondent argues that considering that the applicant did not
submit the documentation that was required of him, it was reasonable for the
immigration officer to conclude as she did.
[15]
The
respondent further argues that none of the documents provided by the applicant
list the main duties of his work as a pilot, nor do they provide a job
description. The respondent contends that the applicant simply copied and pasted
the job duties from NOC 2271 to his Schedule 3 form and that this was not
enough to satisfy his burden of proof. Rather, it was reasonable for the
immigration officer to expect objective evidence from the applicant’s employer.
Without this evidence, the immigration officer was unable to assess whether the
applicant had experience relevant to the duties outlined in NOC 2271 and this
was sufficient to justify the finding that the applicant was ineligible for
immigration to Canada pursuant to subsection 75(2) of the Regulations.
VI. Discussion
[16]
A Federal
Skilled Worker is defined at subsection 75(2) of the Regulations:
(2) A foreign national is a skilled worker if
(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;
(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
(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..
|
(2) Est un travailleur qualifié l’étranger qui satisfait
aux exigences suivantes :
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;
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;
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.
|
[17]
Pursuant to this
provision, a
foreign national must have at least one year of full time employment, or the
equivalent within the past ten years, in one or more of certain types of
occupations. In addition, he or she must have performed the actions described
in the lead statement set out in the NOC for the occupation in question, as
well as a substantial number of the main duties set out in the NOC. This
requirement is coherent with the need to ensure that the duties that an
applicant performed for a position held in their country of origin, correspond
to the Canadian duties of the same occupation.
[18]
The onus
was on the applicant to establish that, within the past ten years, he performed
the actions described in the lead statement for the occupation of a pilot as
set out in NOC 2271 and that he performed a substantial number of the main
duties of this occupation for at least one year. (Mihura Torres, above,
at para 37; Kaur v Canada (Minister of Citizenship and Immigration), 2010
FC 758, at para 30 (available on CanLII); Verma v Canada (Minister of Citizenship and
Immigration),
2003 FCT 136 at para 9, 120 ACWS (3d) 858). The applicant is responsible for
supplying enough supporting documents and evidence and he must put his best case
forward (Oladipo v. Canada (Minister of Citizenship and
Immigration), 2008 FC 366 at para 24, 166
ACWS (3d) 355; Mihura Torres, above, at para 40). The
immigration officer is under no obligation to request further clarification
from the applicant if he or she finds there is not enough evidence initially
submitted (Sharma v Canada (Minister of Citizenship and Immigration),
2009 FC 786 at para 8, 179 ACWS (3d) 912; Luongo v Canada (Citizenship and
Immigration), 2011 FC 618 at para 18 (available on CanLII)).
[19]
In order
to evaluate admissibility, immigration officers need sufficient information to
assess an applicant’s job experience. They also need to verify the completeness
and accuracy of the information that applicants submit with their application.
In that sense, it is reasonable to require, as a general rule, that applicants
provide corroborative third party information such as employers’ letters that
include details about the applicants’ duties and /or job descriptions (Malik,
above, at para 33). These types of documents provide immigration officers with
a complete picture of an applicant’s duties and responsibilities and allow them
to determine whether the duties performed by an applicant in his or her country
of origin are similar to the Canadian description of the given occupation. In
some cases, the information provided by employers also serves to confirm that
an applicant actually performed the actions and duties that he or she claims to
have performed.
[20]
In this
case, the applicant did not meet his evidentiary burden.
[21]
First, in
his description of his duties, the applicant limited himself to re-stating the
main duties of a pilot as described in the NOC, without providing any further
details about these duties. The applicant is asking the Court to infer, from
this very generic information provided by the applicant, that a person employed
as a captain for Gulf Air performs the same duties as those described in NOC
2271. In my view, it is neither for the immigration officer nor for the Court
to make this inference. As mentioned above, the onus is on the applicant to
establish that he meets the criteria as a Federal Skilled Worker and he failed
to do so despite specific instructions on what types of documents are required.
In my view, the applicant failed to meet the evidentiary burden required by
subsection 75(2) of the Regulations because he did not provide sufficient
information about his job duties and responsibilities.
[22]
Second,
there is no doubt that the letter from the applicant’s employer did not contain
all the information that was plainly required by the immigration officer in the
letter dated March 11, 2010. The employer’s letter states only that the
applicant is employed as a captain in the Airbus Fleet Management. The letter
is silent as to the duties and responsibilities carried out by a captain in
Gulf Air’s Airbus Fleet Management. In fact, the employer’s letter does not even
include information about the activities of Air Gulf or its fleet.
[23]
The
applicant argues that the duties of a pilot are obvious and that the
immigration officer is expected to know what they are. This argument requires
that the immigration officer assume that a pilot for Gulf Air performs the
duties as described in NOC 2271. With respect, an immigration officer should
not determine whether an applicant’s work experience corresponds to the lead
statement and main duties set out in the NOC for an occupation based on his
personal knowledge of an occupation or on the personal knowledge that an
applicant imputes to the immigration officer. Immigration officers must assess
applications based on the evidence that applicants put forward and not on their
own personal knowledge or assumptions. In my view, this is the only rigorous,
fair, cohesive and coherent approach to assessing whether an applicant has
performed the main duties of any position described in the NOC.
[24]
Finally,
the applicant faults the immigration officer for having relied on a general
guideline and argues that, in doing so, she fettered her discretion. I
disagree. I have already stated that it is reasonable to require information
from applicants’ employers about the specific duties of an occupation. While I
acknowledge that immigration officers cannot treat administrative guidelines as
immutable law and that, sometimes, they need to apply them with nuances, I do
not consider that, in this case, the immigration officer fettered her
discretion. Considering the generic nature of the information provided by the
applicant, it was reasonable for her to require details from the applicant’s
employer about his specific duties as a pilot. Furthermore, the applicant
offered no excuse for failing to provide the information and documents
requested of him; he did not allege that it was impossible for him to obtain
the requested information from his employer, nor did he provide any other
explanation.
[25]
In
conclusion, considering the generic nature of the evidence on file and the
applicant’s failure to provide the documentation and information requested, I
find that it was reasonable for the immigration officer to conclude that she
was not satisfied that the applicant had established that he had performed the
main duties of a pilot. The immigration officer’s reasons are clear and
reasonable and the outcome falls within the range of possible, acceptable outcomes which are
defensible in respect of the facts and law (Dunsmuir, above, at para 47). The parties did not propose
any question for certification and none arise in this case.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review is dismissed.
There is no
question for certification.
“Marie-Josée
Bédard”