Date: 20110614
Docket: IMM-4481-10
Citation: 2011 FC 697
Ottawa, Ontario, June 14, 2011
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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MAYUKUMAR ZAVERCHAND SHAH
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Applicant
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and
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MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an application pursuant to section 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial
review of the decision of an immigration officer (Officer) in the Federal
Skilled Worker—Central Intake Office (CIO), dated 14 July 2010 (Decision), wherein
the Officer determined that the Applicant’s application did not qualify for
further processing under the federal skilled worker program.
BACKGROUND
[2]
The Applicant is a
citizen of the United
Kingdom. He filed an
application for permanent residence in Canada as part of the federal skilled worker
class, indicating that he has experience as an accounts manager. In his
affidavit dated 26 August 2010, the Applicant states that the responsibilities
of his current job exceeded the space allotted in the standard form entitled “Schedule
3: Economic Classes—Federal Skilled Workers” (Schedule 3). Therefore, he
attached an addendum expounding on those duties. This addendum, entitled
“Additional Employment Information for Principal Applicant—Mayurkumar
Zaverchand Shah” (Addendum), is reproduced in the Application Record (at page
32). It sets out seventeen duties that the Applicant has performed as part of
his employment as an accounts manager. The Applicant swears that the Addendum
was attached to his application and, therefore, was before the Officer when he
was making his Decision.
[3]
The Applicant’s
application was received by the CIO on 9 April 2010. The Officer assessed the application based
on whether the Applicant had work experience in one of the occupations eligible
for processing, in this case Financial Auditors and Accountants (which is
identified by its National Occupation Code [NOC]: 1111). Contrary to the
Applicant’s evidence, the Officer swears in his affidavit dated 12 October 2010
that the Addendum was not before him. Instead, he assessed the application
based on the two “main duties” set out in Schedule 3, which formed part of the
Applicant’s application and which is reproduced in the Application Record (at page
31). These main duties are: (1) producing statutory financial accounts and
management reports; preparing payroll; and liaising with government bodies,
banks and auditors; and (2) producing both management reports and financial
accounts; payroll; and dealing with all stakeholders.
[4]
The NOC defines the
essential duties for financial auditors and for accountants respectively as
follows:
Financial auditors
perform some or all of the following duties:
• Examine and
analyze journal and ledger entries, bank statements, inventories, expenditures,
tax returns and other accounting and financial records, documents and systems
of an individual, department, company or other establishment to ensure financial
recording accuracy and compliance with established accounting standards,
procedures and internal controls
• Prepare
detailed reports on audit findings and make recommendations to improve
individual or establishment’s accounting and management practices
• Conduct field
audits of businesses to ensure compliance with provisions of the Income Tax
Act, Canadian Business Corporations Act or other statutory requirements
• May supervise
other auditors or professionals in charge of accounting within client’s
establishment.
Accountants perform some or all of the
following duties:
• Plan, set up
and administer accounting systems and prepare financial information for an
individual, department, company or other establishment
• Examine
accounting records and prepare financial statements and reports
• Develop and
maintain cost finding, reporting and internal control procedures
• Examine
financial accounts and records and prepare income tax returns from accounting
records
• Analyze
financial statements and reports and provide financial, business and tax advice
• May act as a
trustee in bankruptcy proceedings
• May supervise
and train articling students, other accountants or administrative technicians.
[5]
According to the
Officer’s assessment, the Applicant’s experience as set out in Schedule 3 did
not correspond to the essential duties of a financial auditor or accountant as
set out in the NOC description above. This is the Decision under review.
DECISION UNDER REVIEW
[6]
The
relevant excerpts of the Decision are as follows:
[T]he
main duties that you have listed do not indicate that you performed a
substantial number of the main duties of the occupation as set out in the
occupational description of the NOC, including all of the essential duties. As
such, I am not satisfied that your experience corresponds to NOC 1111,
Financial Auditors and Accountants.
For
the reasons outlined above, your application does not meet the requirements of
the Ministerial Instructions and your application is not eligible for processing….
[Y]ou
have not satisfied the requirements to apply under the Federal Skilled Worker
Class ….
ISSUES
[7]
The
Applicant raises the following issues:
a. Whether the
Officer’s findings of fact regarding the Applicant’s work experience were
unreasonable; and
b. Whether the
Officer failed to provide the Applicant with an opportunity to respond to his
concerns regarding deficiencies in the Applicant’s stated employment duties as
compared to the duties set out in the NOC description, thereby depriving the
Applicant of fair process.
STATUTORY PROVISIONS
[8]
The
following provisions of the Immigration and Refugee Protection Regulations,
SOR/2000-227 (Regulations), are applicable in these proceedings:
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Federal Skilled Worker
Class
Class
75. (1) 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 and who
intend to reside in a province other than the Province of Quebec.
Skilled workers
(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.
Minimal requirements
(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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Travailleurs qualifiés (fédéral)
Catégorie
75. (1) Pour l’application du paragraphe 12(2) de la
Loi, la catégorie des travailleurs qualifiés (fédéral) est une catégorie
réglementaire de personnes qui peuvent devenir résidents permanents du fait
de leur capacité à réussir leur établissement économique au Canada, qui sont
des travailleurs qualifiés et qui cherchent à s’établir dans une province
autre que le Québec.
Qualité
(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.
Exigences
(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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STANDARD OF REVIEW
[9]
The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9, held
that a standard of review analysis need not be conducted in every instance.
Instead, where the standard of review applicable to the particular question
before the court is well-settled by past jurisprudence, the reviewing court may
adopt that standard of review. Only where this search proves fruitless must the
reviewing court undertake a consideration of the four factors comprising the
standard of review analysis.
[10]
The
Applicant alleges that the Officer erred in his findings of fact. Factual
findings fall within the Officer’s
area of expertise and, therefore, attract a standard of reasonableness. See Madan
v Canada (Minister of Citizenship and Immigration) (1999), 172 FTR 262, [1999] FCJ No 1198
(QL) at paragraph 24; and Dunsmuir, above, at paragraphs 51 and 53.
[11]
When reviewing a decision on the standard of reasonableness, the
analysis will be concerned with “the existence of justification, transparency
and intelligibility within the decision-making process [and also with] whether
the decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at paragraph
47; and Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph 59. Put another way, the Court
should intervene only if the Decision is unreasonable in the sense that it
falls outside the “range of possible, acceptable outcomes which are defensible
in respect of the facts and law.”
[12]
The
Applicant alleges that the Officer found him lacking in credibility but did not
confront the Applicant, thereby depriving him of fair process. Procedural
fairness is reviewable on a standard of correctness. See Dunsmuir, above;
and Khosa, above, at paragraph 43. When applying the correctness standard, a reviewing court will show no
deference to the decision-maker’s reasoning process. Rather, it will rather
undertake its own analysis of the question.
ARGUMENTS
The Applicant
The Decision Was
Unreasonable
[13]
The
Applicant assumes that the Officer read the Addendum and deemed the Applicant’s
relevant experience not “credibly commensurate” with the duties set out in the
NOC description.
[14]
Given the contents of
the application, it is difficult to conceive how the Applicant possesses an
insufficient number of duties to allow him to apply under the relevant NOC. The
Applicant argues that the Decision falls outside the range of reasonableness as
defined in Dunsmuir and therefore must be set aside.
The Applicant
Was Deprived of the Opportunity to Respond
[15]
The
Computer Assisted Immigration Processing System (CAIPS) notes do not indicate
that the Officer put his credibility concerns to the Applicant, as is required.
As Justice Richard Mosley of this Court stated in Hassani v Canada (Minister of
Citizenship and Immigration), 2006 FC 1283 at paragraph 24:
Having
reviewed the factual context of the cases cited above, it is clear that where a
concern arises directly from the requirements of the legislation or related
regulations, a visa officer will not be under a duty to provide an opportunity
for the applicant to address his or her concerns. Where however the issue is
not one that arises in this context, such a duty may arise. This is often the
case where the credibility, accuracy or genuine nature of information submitted
by the applicant in support of their application is the basis of the visa
officer’s concern, as was the case in Rukmangathan, and in John and
Cornea cited by the Court in Rukmangathan, above.
The
Respondent
The
Officer’s Findings Were Based on the Record and Therefore Reasonable
[16]
The application
stated that the Applicant had been employed as an accountant since January 1998.
However, the description of his “main duties” as set out in Schedule 3, which
formed part of his application, failed to include a substantial number of the
main duties of Financial Auditors and Accountants as set out in the NOC
description, including all of the essential duties.
[17]
The Addendum, which
sets out seventeen duties that the Applicant has performed as part of his
employment as an accounts manager, was not before the Officer when he rendered
his Decision on 14 July 2010 and therefore cannot be used to challenge that
Decision. Indeed, the evidence found at pages 39-46 of the Application Record was
not before the Officer prior to his Decision and should be struck from the
record. See George v Canada (Minister of Citizenship and
Immigration), 2007 FC
1315 at paragraph 12.
The Officer’s Findings
Were Based on Fact and Not on Credibility
[18]
The Applicant’s
argument that the Officer found him lacking in credibility and, as such, had a
duty to confront him with such concerns is without merit. The Decision is based
on the Officer’s finding that, according to the evidence before him when he
rendered his Decision, the Applicant had not performed a substantial number of
the main duties of the occupation as set out in the NOC description, including
all of the essential duties. The onus is on the Applicant to provide all
necessary material for a positive decision; it is not incumbent on the Officer
to ask for clarification. See Madan, above, at paragraph 6.
The
Applicant’s Reply
[19]
The Applicant
contends that the summary of “main duties” set out in Schedule 3, which formed
part of the Applicant’s application and which is reproduced in the Application
Record (page 31), fits squarely within the intended occupation of accountant.
Notwithstanding the Officer’s assertion that the Addendum was not before him,
the Decision was nonetheless unreasonable based on the summary of “main duties”
and on the application as a whole.
[20]
The Applicant further
argues that the Officer had a duty to question the Applicant regarding his
qualification and that this position is supported by the jurisprudence of this
Court. Justice Paul Rouleau of this Court observed in Dhaliwal v Canada (Minister of Employment and Immigration) (1992), 52 FTR 311, [1992] FCJ No 122 (QL) that:
[g]iven the extremely limited space provided in the application
form for a description of an applicant's work history and the discrepancies in
the number of years experience attributed to the applicant in the intended
occupations by his solicitor, … fairness demands that the visa officer question
the applicant on the duties performed in his previous employment.
ANALYSIS
[21]
The
Applicant says that when he submitted his permanent residence application in
March 2010, he attached an addendum that provided additional information about
his past experience:
The occupational basis for my application
was my experience working as an Accounts Manager for a London-based Commercial
set of Barrister’s Chambers. As the considerable responsibilities of this post
exceeded the space allotted in the standard form to describe said duties, I
attached an addendum to the application to allow for this exposition.
[22]
Mr.
Patrick Nelson, who works in the office of Applicant’s counsel in Toronto says that
the Applicant has told him that the package of documents (presumably including
the Addendum) was before the Central Intake Office in Sydney, Nova Scotia and that
“Mr. Shah informs me and I do believe that these documents were before the CIO.”
[23]
Mr.
Nelson’s affidavit adds nothing to the picture. He is simply repeating what the
Applicant has told him.
[24]
There
is very little in the Applicant’s affidavit to reassure the Court that the
assertions concerning inclusion of the Addendum are reliable evidence and, in
any event, all the Applicant can say is that he included the Addendum in the
package of documents that he sent with his application.
[25]
The
Officer says that the additional documents in question were not before him when
he made the Decision.
[26]
The
Court has no reason to believe that either the Applicant or the Officer is not
being truthful in his assertions. Neither of them can provide an explanation as
to why the Addendum was not before the Officer when he reviewed the Applicant’s
application for permanent residence. The Officer was cross-examined on his
affidavit, and what he said provides scope for speculation about what might
have happened but nothing that could assist the Court in arriving at an
acceptable conclusion on this issue.
[27]
On
the Applicant’s side, the Court notes that the standard form documentation,
which the Applicant completed and which was before the Officer, provides no
notification that an Addendum was attached or included in the package. It is
also notable that, although the Applicant says that he included an Addendum
because the forms provided insufficient space to describe his duties, he
nonetheless provided some description under “Main Duties” and did not use up
all of the space available. Therefore, there is nothing that would have alerted
the Officer to the fact that the Applicant did not regard his description under
“Main Duties” as complete or that the Applicant had enclosed an Addendum which
completed the picture.
[28]
In
the end, it is impossible for the Court to say what happened to the Addendum or
to come to any conclusions about why it did not come before the Officer. It is impossible
to attribute cause or blame in these circumstances. All that the Court can say
for certain is that the Officer is clear that he did not have the Addendum
before him when he made the Decision and that there was nothing in the standard
forms submitted that would alert him to any missing documents. The Applicant
has asked the Court to draw a negative inference based upon the revelations in
the cross-examination as to how the file was handled and assembled before it
reached the Officer. However, the Court simply does not have sufficient
objective evidence of what happened in this case to draw an inference either
way.
[29]
That
being the case, the procedural fairness issue and the reasonableness of the
Decision can be assessed only on the basis of the documentation that we know
was before the Officer. The Court cannot conduct a de novo assessment
based upon materials that it cannot say were before the Officer or should have
been before the Officer.
[30]
As
regards procedural fairness, credibility was not an issue in the Decision. The
reasons are based upon the information that was before the Officer. Justice
Mosley provided a comprehensive review of matters that should be put before the
Applicant in Hassani, above, at paragraph 24:
Having reviewed the factual context of the cases cited above, it
is clear that where a concern arises directly from the requirements of the
legislation or related regulations, a visa officer will not be under a duty to
provide an opportunity for the applicant to address his or her concerns. Where
however the issue is not one that arises in this context, such a duty may
arise. This is often the case where the credibility, accuracy or genuine nature
of information submitted by the applicant in support of their application is
the basis of the visa officer's concern, as was the case in Rukmangathan, and in John and Cornea cited by the Court in Rukmangathan,
above.
[31]
In
the present case, the concerns about the Applicant’s past experience arose
directly from the requirements of the legislation and related regulation. The
issue was simply whether the Applicant’s past duties sufficiently corresponded
with NOC 1111. This was not about credibility, accuracy or the genuine nature
of information submitted by the Applicant. There was no procedural unfairness.
[32]
As
regards reasonableness, when I compare the description provided by the
Applicant with NOC 1111, I cannot say that the Officer’s assessment falls
outside the range of possible, acceptable outcomes which are defensible in
respect of the facts and law which is the test established in Dunsmuir.
As Justice John Evans made clear in Madan, above, at paragraph 24, visa
officers must be allowed a considerable discretion when it comes to this kind
of assessment:
In any
event, visa officers should be afforded considerable discretion in determining
whether an applicant satisfies the requirements for a given occupation,
including their interpretation of the provisions of the NOC. They have a
familiarity with and understanding of this document that is at least equal to,
and will often exceed, that of a reviewing court.
[33]
At
the hearing, the Applicant also asked the Court to consider the adequacy of the
reasons. I have done that. In my view, given the nature of the paper decision
that the Officer had to make, the requirements of what the Applicant had to
demonstrate under Regulation 75(3) and the material that was before the
Officer, I cannot say that the reasons were inadequate. The Applicant could not
help but understand that, assuming his Addendum was not before the Officer, he
did not meet the requirements. I can see that the Applicant would think the
reasons inadequate if he assumes his Addendum of duties was before the Officer,
but that is not an assumption that the Court can make in this case.
[34]
Counsel
for both parties agree there is no question for certification and the Court
concurs.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application is dismissed.
2.
There
is no question for certification.
“James
Russell”
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