Date: 20110512
Docket: IMM-3840-10
Citation: 2011 FC 545
Ottawa, Ontario, May 12,
2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
|
|
KIM CHI HOANG
|
|
|
|
Applicant
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant, a citizen of Vietnam, seeks to overturn the
decision made on May 3, 2010 by a visa officer at the Canadian Consulate in Detroit, U.S.A.,
rejecting her application for permanent residence under the Skilled Worker
Category.
[2]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).
BACKGROUND:
[3]
At
the time of her application in March 2009, Ms. Hoang was a resident in the United
States,
where she was pursuing her Ph.D. She was the principal applicant and her
husband and two children were included as dependents.
[4]
Ms.
Hoang applied under the then Minister’s Instructions relating to “In-demand”
occupations, namely under the occupation of “College and Other Vocational
Instructors”: National Occupational Classification (“NOC”) 4131. The NOC is a
systematic taxonomy of occupations in the Canadian labour market. She indicated
that she had worked as a Professional Training Official in Vietnam between 1998
and 2000 and again between 2001 and 2004. The duties described included
developing material on environmental management and inspection, professional
training on policy, law, regulations of environmental protection and management
for provincial staff. She also indicated other duties such as management and
coordination on environmental protection projects, conducting inspections and
making decisions on environmental management and protection.
[5]
Ms.
Hoang provided a letter from the Vietnam Environment Administration Department
of Conservation and Biodiversity, which stated that she had been employed there
from 1997-2004. The letter indicated that her work included designing and
implementing environmental inspection plans, scientific research and
management, and other duties including teaching and training staff.
[6]
An
interview with the visa officer was conducted on April 26, 2010. Ms. Hoang
received a refusal letter dated May 2, 2010, stating that her application had
been rejected.
DECISION UNDER REVIEW:
[7]
The
refusal letter and the officer’s Computer Assisted Immigration Processing
System (“CAIPS”) notes indicate that the officer was not satisfied that the
applicant had the required work experience during the periods stated on her application.
In particular, the officer was not satisfied that the applicant performed all
of the essential duties and a substantial number of the main duties as set out
in the occupational description of a college/vocational instructor under NOC
4131.
ISSUES:
[8]
The
issues raised on this application are as follows:
a.
Should the
officer’s affidavit be excluded?
b.
Did the officer
unreasonably fail to award the applicant any points for her work experience?
c.
Are the
reasons for the decision insufficient?
d.
Was the
process unfair because the officer relied on extrinsic evidence that was not
actually relevant to the applicant’s work duties?
ANALYSIS:
Standard of Review
[9]
There
is no dispute between the parties that the assessment of an applicant for
permanent residence under the Skilled Worker Class is an exercise of discretion
based essentially on the facts of each particular application, and that it
should be given a high degree of deference. I agree that, overall, the decision
should be reviewed on the reasonableness standard: Khan v. Canada (Minister of
Citizenship and Immigration), 2009 FC 302 at paras. 9 and 10; Hanif
v. Canada (Minister of
Citizenship and Immigration), 2009 FC 68 at paras. 11 and 12. The
decision will be considered reasonable unless it does not fall within the range
of possible, acceptable outcomes which are defensible in respect of the facts
and the law: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190. The Court must be satisfied that the officer reached a result that
was completely outside the range of available outcomes. That is a heavy burden
for an applicant to meet.
[10]
For
questions of procedural fairness such as reliance on undisclosed extrinsic
evidence and sufficiency of the reasons, deference to the decision-maker is not
at issue. What constitutes adequate reasons is a matter to be decided in light
of the particular circumstances of each case: Via Rail Canada Inc., v.
National Transportation Agency, [2001] 2 F.C. 25 (FCA). In general, the
proper approach is to ask whether the requirements of natural justice have been
met. See: Ontario
(Commissioner Provincial Police) v. MacDonald, 2009 ONCA 805, 3 Admin
L.R. (5th) 278 at para. 37 and Bowater Mersey Paper Co. v. Communications,
Energy and Paperworkers Union of Canada, Local 141, 2010 NSCA 19, 3 Admin
L.R. (5th) 261 at paras. 30-32.
Should
the Officer’s Affidavit be excluded?
[11]
As
a preliminary matter, the applicant has argued that that the affidavit filed by
the respondent from the Officer who decided the case should be excluded, at
least in part as it is said to provide additional information and reasons for
why the visa application was denied. The applicant relies on the words of
Justice Russel Zinn in Huang v. Canada (Canada (Minister of
Citizenship and Immigration), 2009 FC 135 at para. 18:
As noted, the respondent put in evidence
an affidavit sworn December 15, 2008 by the Visa Officer whose decision is
under review. I concur with the observations of Justice Gauthier in Jesuorobo
v. Canada (Minister of Citizenship and Immigration), [2007] F.C.J. No. 1680, at
paragraph 12, that the respondent cannot rely on new evidence from the Officer
to change, explain or add to the refusal letter and the CAIPS notes. It is an
attempt by the Officer to pull himself up by his bootstraps where his CAIPS
notes may be deficient or too summary in nature.
[12]
In
the absence of an affidavit attesting to the truth of what was recorded as
having been done, CAIPS notes have no status as evidence of the underlying
facts on which they rely: Chou v. Canada (2000), 3 Imm. L.R.
(3d) 212, 190 F.T.R. 78 at para. 13; aff'd 2001 FCA 299, 17 Imm. L.R. (3d) 234.
[13]
Here
the officer adopted the CAIPS notes as her evidence of what transpired at the
interview. As adopted through the affidavit, the CAIPS notes are evidence of
the facts to which they refer. The officer could have been cross-examined on
those facts had the applicant chosen to do so. In light of the applicant’s
statements about the manner in which the officer conducted the interview, the
respondent was entitled to adduce evidence to counter her allegations.
[14]
In
my view, the affidavit does not add new arguments to the reasons. Rather, the
affidavit confirms the CAIPS notes as evidence of the interview, sets out why
the officer made the remarks that she did in the CAIPS notes and indicates how
the reasons are based on the evidence and the lack of evidence before her. As
the applicant chose not to cross-examine the officer I find it difficult to see
how she can now complain about the content of the affidavit. See: Obeng v. Canada (Minister of
Citizenship and Immigration), 2008 FC 754, 330 F.T.R. 196 at para. 27.
The affidavit is thus admissible.
Did the
Officer unreasonably fail to award the applicant any points for her work
experience?
[15]
The
applicant submits that the officer unreasonably failed to award points for her
work experience as a vocational instructor. She contends that she had set out
in her application forms that she had performed the duties of an instructor,
including developing materials and providing professional training. Her
employer in Vietnam provided a
reference letter stating that she drafted conference materials and arranged and
taught about inspection content and environmental protection in State
Management training courses for provincial inspectors and staff members.
[16]
When
asked by the officer how often and for how long she did this, the applicant
says she replied that it varied from year to year but was up to 50% of her
working time. The applicant submits that if she spent approximately 50% of her
time as an instructor, then over the course of her more than five years of
experience, she would have obtained about 2.5 years of full-time experience,
ample to meet the requirements of NOC 4131.
[17]
The
officer did not unreasonably fail to award the applicant any points for her
work. The CAIPS notes demonstrate that the officer questioned the applicant
numerous times and in various ways about her work experience. The onus was on
the applicant to demonstrate that she fulfilled the requirements of the
particular category of skilled work. The officer specifically referenced the
documentary evidence submitted by the applicant, questioned the applicant about
her concerns and was not satisfied with the applicant’s responses. That the applicant
is unhappy with the result does not demonstrate that it was unreasonable.
[18]
As
stated by Justice Paul Crampton in Pan v. Canada (Minister of
Citizenship and Immigration), 2010 FC 838, 90 Imm. L.R. (3d) 309 at
para. 28, “a visa officer has no legal obligation to seek to clarify a
deficient application […].” In the instant case, the officer went beyond what
was required of her by asking the applicant to bring additional information to
the interview and by attempting to prompt her with reference to particular laws
for which it could be reasonably assumed she would have been called upon to
instruct others by her employer in Vietnam. The applicant was not
able to identify any new laws or regulations on which she provided training nor
could she describe the last formal training she gave and what it entailed.
[19]
It
is reasonable to infer that the officer would have made note of the applicant’s
statement that she had spent up to 50% of her working time on training, had it
been mentioned during the interview. Unlike the officer’s contemporaneous notes,
the applicant’s affidavit containing this assertion was made several months
later. I understand that her recollection of events may differ from that of the
officer and that this was an important event for her as opposed to the officer
for whom it would have been part of her daily workload. In any event, given the
other information before the officer, this particular conflict in the evidence
is not determinative.
[20]
The
officer noted that the applicant’s employer listed training as fourth or fifth
on the list of tasks accomplished by the applicant. This suggests she viewed training
as less of a priority and it may have occupied less of her time than the other
tasks mentioned. Furthermore, when first asked to describe her job, the
applicant did not mention training as one of her main duties nor did she answer
specific questions regarding the topics for which she provided training.
[21]
The
officer is assumed to have weighed and considered all the evidence presented to
her unless the contrary is shown: Obeng, above at para. 35; Toma et
al v. Canada (Minister of
Citizenship and Immigration), 2006 FC 779 at para. 26. The contrary has not been shown in this application.
Are the reasons for the
decision insufficient?
[22]
The
applicant submits that an officer has a duty to provide a reasonable
explanation for a decision and that the reasons provided to the applicant do
not provide any explanation as to why the officer was not satisfied with the
applicant’s qualifications.
[23]
I
agree with the respondent that the CAIPS notes, which form part of the reasons
for the officer’s decision, adequately review the applicant’s evidence, the
officer’s concerns and her reasons for determining that the evidence did not
support the applicant’s claimed experience under NOC 4131. The reasons show
that the officer appreciated the relevant law and approached the factual and
evidentiary issues before her in a careful and thoughtful manner. As such, the
reasons demonstrate the necessary “justification, transparency and
intelligibility within the decision-making process” as per Dunsmuir,
above at para. 47. See also: Public Service Alliance of Canada v. Canada
Post Corporation and Canadian Human Rights Commission, 2010 FCA 56, 399
N.R. 127 at para. 164.
Was the process unfair because the
Officer relied on extrinsic evidence that was not actually relevant to the
applicant’s work duties?
[24]
The
officer conducted an internet search for general information concerning
Vietnamese environmental law. She found a 1999 decree on water resources which
she in turn raised with the applicant. This gave the applicant the opportunity to
address the information. The applicant stated that she was not familiar with
the decree and says that it was not in fact relevant to the work of her
department, which was the Ministry of Science, Technology and Environment, but
was within the jurisdiction of the Ministry of Agriculture and Rural
Development.
[25]
The
applicant submits that it is unclear whether the officer understood the
distinction between the Ministries. To the extent that the officer may have
relied on the applicant’s ignorance of this decree in making the final
determination, the applicant says that the decision was unfair because it was
based on extrinsic evidence that was irrelevant to the case.
[26]
Based
on the CAIPS notes, however, it does not appear as though the officer refused
the applicant’s application due to her lack of familiarity with the decree. The
decree seems only to have been brought up as an attempt to prompt the applicant
to provide additional details as to the type of training that she had
performed, as she had not given adequate answers up to that point. In that
respect, it cannot be said that the officer relied on extrinsic evidence that
was not actually relevant to the applicant’s work experience. The authorities cited by
the applicant on the use of extrinsic evidence all concern cases where evidence
was not put to the applicant during the interview. That was not the case here.
The officer communicated her concerns to the applicant, giving her the
opportunity to respond fully.
[27]
The
parties dispute whether or not the applicant had indicated at the interview that
the referenced decree was not within the purview of the work of her department.
In considering the evidence on this question, the contemporaneous CAIPS notes are
a more reliable record of the events of the interview day. In any event, the
dispute as to what was said about the decree is not determinative. As stated
above, the decree was only raised in order to give the applicant a further
opportunity to explain her experience. It was not meant to determine her
knowledge of the decree.
[28]
On
this reasoning, I cannot conclude that there has been any breach of procedural
fairness arising from the officer’s reference to the 1999 Decree.
[29]
In
the result, I am satisfied that the decision was not unreasonable and that this
application must be dismissed.
[30]
Neither
party proposed a serious question of general importance.
JUDGMENT
THIS COURT’S JUDGMENT
is
that the application for judicial review is
dismissed. No questions are certified.
“Richard
G. Mosley”
Email this Content