Date: 20090324
Docket: IMM-2818-08
Citation: 2009 FC 302
Montreal,
Quebec,
March 24, 2009
PRESENT: The Honourable Maurice E. Lagacé
BETWEEN:
SHAUKAT ALI KHAN
YASMIN KHAN
WASIM KHAN
SANA KHAN
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of the decision of a
visa officer at the High Commission of
Canada in London, United Kingdom (HCC), dated March 27, 2008, refusing the principal
applicant’s request for a permanent resident visa as a member of the Federal
Skilled Worker Class (FSWC) for immigration to Canada, because he failed to
meet the requirements set out in subsection 75(3) of the Immigration and
Refugee Protection Regulations, SOR/2002-227 (IRPR).
II. The facts
[2]
The
principal applicant Shaukat Ali Khan (applicant) applied for permanent
residence for himself as a member of the FSWC and on behalf of his dependants, his
wife and two children who are all citizens of India.
[3]
The
applicant holds a bachelor of commerce from Osmania University and has extensive
work experience in the area of accounting with Gulf Air’s Finance Department
for whom he has worked full time for more than fifteen years. In his
application for permanent residence, the applicant indicated that, from October
1992 to the time of his application, he was working as an accounts
assistant.
[4]
The
visa officer subsequently listed in his notes the applicant’s entire work
experience and, taking into account his reference letters, noted that a letter
indicated that the applicant had been promoted to “Senior Accounts Assistant”
in October 2004, and that this promotion had not been mentioned by the
applicant when he completed his work history.
[5]
On
February 26, 2008, the HCC sent the applicant and his family a letter
requesting additional documents in order to make a decision on their file. The
letter stated that their application would not be considered before the 60-day
term from the date of the letter. However, before the expiry of the term to
submit the additional documents requested, the visa officer assessed the
applicant’s file and concluded that:
Pl has listed his occupation since
November 1992 as NOC 1431. Duties described are that of NOC 1431 and employment
letters support this occupation. NOC 1431 (Accounting and related clerks) is
not an O, A or B level occupation. I am not satisfied that Pl has at least one
year of experience in an O, A or B level occupation therefore I am not
satisfied that he meets the minimum requirements of the skilled worker class.
[Emphasis added]
[6]
The
applicant and his family finally received a letter dated March 27, 2008
refusing their application for permanent resident visas as members of the
federal skilled workers class. The refusal letter specified that the applicant
did not meet the requirements of paragraph 75(2)(a)
of the IRPR because he did not have the experience in an occupation listed in
NOC skill type level O, A or B. Furthermore, considering that subsection 75(3)
of the IRPR states that if a foreign national fails to meet the requirements,
his application shall be refused without further assessment required, the visa
officer refused the application.
[7]
On
May 9, 2008, notwithstanding the previous refusal of his application, the
applicant sent to the HCC the additional documents requested by the visa
officer. The visa officer took cognizance of the applicant’s additional
documents and stated in his refusal of the application that although the
applicant’s letter of employment filed listed his title as “Accounts Officer”,
his duties were nevertheless those of NOC 1431.
III. Issue
[8]
Did
the immigration officer breach the principles of procedural fairness and
natural justice in deciding on the file before the end of the term allocated to
the applicants to present additional documents?
IV. Analysis
Standard of
review
[9]
The
particular expertise of visa officers dictates a deferential approach when
reviewing their decision. The assessment of an applicant for permanent
residence under the FSWC is an exercise of discretion that should be given a
high degree of deference. To the extent that his assessment has been made in good faith, in accordance with the principles of
natural justice applicable, and without relying on irrelevant or extraneous
considerations, the decision of the visa officer should be reviewed on the
standard of unreasonableness (Kniazeva v. Canada (Minister of Citizenship
and Immigration), 2006 FC 268 at paragraph 15; Dunsmuir v. New
Brunswick,
2008 SCC 9).
[10]
The
visa officer is authorized to make decisions relative to the issuance of visas.
He has greater expertise in this regard than the Court and that expertise
attracts deference (Tiwana v. Canada (Minister of
Citizenship and Immigration), 2008 FC 100).
[11]
The
Supreme Court of Canada clearly stated though, in Canadian Union of Public
Employees (C.U.P.E.) v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539,
at paragraph 100, that: “It is for the courts, not the Minister, to provide the
legal answer to procedural fairness questions. It is only the ultimate exercise
of the Minister's discretionary s. 6(5) power of appointment itself that is
subject to the ‘pragmatic and functional’ analysis”; therefore, the pragmatic
and functional analysis is not to be applied and the reviewing Court shall
consider all questions, including questions in regard to the adequacy of
reasons, on a standard of correctness. (Martins v. Canada (Minister of Citizenship
and Immigration), 2002 FCT 189 at paragraph 5; Baker v. Canada (Minister
of Citizenship and Immigration), [1999] 2 S.C.R. 817).
The applicable legislation
[12]
Subsection
12(2) of the IRPA states:
|
(2)
A foreign national may be selected as a member of the economic class on the
basis of their ability to become economically established in Canada.
|
(2)
La sélection des étrangers de la catégorie « immigration économique » se fait
en fonction de leur capacité à réussir leur établissement économique au Canada.
|
[13]
Furthermore
subsections 75(2) and (3) of the IRPR set out the conditions imposed on an
applicant applying in the FSWC as follows:
|
75.(1) …
(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.
(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.
|
75.(1)
…
(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.
(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.
|
[Emphasis added]
[14]
It
follows from these provisions that an applicant who cannot meet the
requirements of subsection 75(2) will invariably see his application refused
under subsection 75(3). It is also well established that where an applicant
puts forward an occupation under which he wishes to be assessed, a visa officer
is under an obligation to assess that particular occupation (Olorunshola v.
Canada (Minister of Citizenship and Immigration) 2007 CF 1056).
The visa officer’s
assessment of the applicant’s work history
[15]
The
applicant indicated in his request having four years or more experience as an
“Accountant Assistant”. According to the visa officer, the main duties listed
by the applicant correspond to NOC 1431 and not to “Skill Type O Management
Occupations or Skill Levels A or B of the National Occupational
Classification matrix”. Hence, the visa officer refused the applicant’s request as per subsection 75(3) of the FSWC.
[16]
The
applicant insists that his occupation should have been listed as NOC 1231 since
he indicated bank reconciliation as part of his main duties. Had this been done,
he argues, he then would have been able to meet the requirements set out at
subsection 75(3) of the FSWC.
[17]
The
Court does not see how the visa officer erred in his assessment of the
applicant’s qualifications. First, the applicant applied under NOC 1431
“Accounting and related clerks” which indeed involves reconciliation. According
to the visa officer’s affidavit, however, the main duties listed by the
applicant in his declaration correspond more
closely to NOC 1431 than to NOC 1231. The visa officer had the expertise to
make this assessment and the Court sees no valid reasons to reverse the opinion
of the decision maker, especially, as stated previously, that it is trite law
that the visa officer had the obligation to assess the occupation listed by the
applicant, which was NOC 1431, and not NOC 1231.
[18]
It
is evident from the applicant’s arguments that he relies on his promotion as an
“Accounts Officer Grade 8” to demonstrate the requirements of subsection 75(2)
of the IRPR. However that subsection specifies that it is within the 10
years preceding the date of their application for a permanent resident visa,
that the skilled worker must show that he has 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
O Management Occupations or Skill Levels A or B of the National Occupational
Classification matrix.
[19]
Therefore,
the applicant’s work as an “Accounts Officer Grade 8” and his alleged new
enhanced responsibilities could not have changed the visa officer’s decision.
Procedural fairness
[20]
The
Overseas Processing Manual OP 1 on procedures states that applicants must be
allowed to bring evidence and to make an argument in order to disabuse officers
of any concerns.
[21]
The
values underlying the duty of procedural fairness relate to the principle that a
person should have the opportunity to present
his case fully and fairly, and have decisions affecting his rights made using a
fair, impartial, and open process, appropriate to the context of the decision.
[22]
In
the case at bar, the representations made by the visa officer that he would not
take any further action on the file until the additional documents were
submitted constituted a reason for the applicant to expect that the officer would
proceed as he had indicated. Undoubtedly it would have been preferable for the visa
officer to wait for these documents, which he did not do. On the other hand, even
if the visa officer had waited for the applicant to produce the additional
evidence required, these documents would have
had no practical effect on the decision.
[23]
The
applicant’s promotion to “Accounts Officer Grade 8” and his new job description
more than eight months after the HCC received his application, could not have
helped the applicant to meet the requirements of subsection 75(2) of the IRPR,
since his experience was not cumulated in the 10 years preceding the date of
his application for a permanent visa. Therefore, the visa officer’s procedural
shortcoming under these circumstances had no effect on the decision especially
since the visa officer had no choice, under subsection 75(3) the IRPR, but
to refuse the application, and this without
any further assessment.
[24]
The applicant suffered no prejudice as a result
of the visa officer’s procedural failure; therefore, there is no breach of the
duty of fairness and no justification for the Court to intervene. For all these
reasons, the present application will be dismissed.
[25]
The
Court
agrees with the parties that there is no serious question of general importance to certify.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application is dismissed.
“Maurice
E. Lagacé”
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