Docket: IMM-6501-10
Citation: 2011 FC 1026
Ottawa, Ontario, September 2,
2011
PRESENT: The Honourable
Mr. Justice Beaudry
BETWEEN:
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ENRIQUE PUPKO MAIZEL
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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 JUGDMENT
[1]
This
is an application for judicial review under s. 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 26 (IRPA) of the decision rendered by an
immigration Officer (Officer), dated July 22, 2010 denying the applicant’s
application for permanent resident status as a Federal Skilled Worker –
Financial Manager (NOC 0111 category).
[2]
For
the reasons set out below, this application shall be allowed.
Facts
[3]
The
applicant is a citizen of Mexico and
resides in Mexico City but spends significant time in Toronto, as a visitor, investor
and business person.
[4]
Since
July 1997, he has been employed as Chief Executive Officer (CEO)/ Chief
Financial Officer (CFO) at Procables de Mexico (Procables) in Mexico City.
[5]
He
applied for permanent residence in Canada as a Federal Skilled Worker – Financial Manager
(NOC 0111 category) on October 19, 2009. In accordance with the Ministerial
Instructions, his application was screened by the Officer in Mexico City to determine whether it
was eligible for processing.
[6]
The Officer’s
Computer Assisted Immigration Processing System (CAIPS) notes indicated that
the Officer was unsatisfied with the applicant’s evidence, showing performance
of duties or occupation of a Financial Manager on a full-time basis. The CAIPS
notes also indicated that the applicant did not provide evidence that
Procables had registered him with the Social Security Mexican Institute as the
financial manager of his company.
[7]
A
letter dated July 22, 2010 was sent to the applicant to advise him that he did
not qualify under Ministerial NOC 0111 Financial Manager.
[8]
He requested
a redetermination of the Officer’s decision on September 17, 2010, which was
refused on September 20, 2010.
[9]
The
applicant has become a successful business person in Mexico and is currently
collaborating with a group of business partners to open a bakery
café/restaurant in Toronto.
Issues
[10]
The
issues to be determined in this application are:
a. Did the Officer
err in law in determining that the applicant was trying to circumvent the
business classifications of Investor or Entrepreneur?
b. Did the Officer
exhibit bias against the applicant?
c. Did the Officer
err by not providing the applicant an opportunity to respond to any concerns
relating to his Skilled Worker eligibility?
d. Did the Officer
err in fact and in law in determining that the applicant did not qualify for
processing under the NOC 0111 category?
Standard of review
[11]
The
applicant submits that questions of fact and mixed fact and law should be
granted deference and should be reviewed on a standard of reasonableness,
whereas questions of law should generally be reviewed on a standard of
correctness. For questions of procedural fairness, he contends that no
deference is accorded and therefore the correctness standard should be applied
(Dunsmuir v New Brunswick, [2008] 1 SCR
190).
[12]
The
respondent states that an Officer’s assessment of a Skilled Worker applicant is
generally subject to reasonableness (Dunsmuir, above, paras 45, 47-49,
53; Canada (Minister of
Citizenship and Immigration) v Khosa, [2009] CSC 12, paras
59, 62). He also cites Kniazeva v Canada (Minister of
Citizenship and Immigration), [2006] ACF
336.
[13]
Therefore,
the Court is of the opinion that the first three issues shall be
reviewed using the reasonableness standard, and for the fourth, correctness
will be applied (Dunsmuir, above, paras 47, 50).
a. Did the Officer err
in law in determining that the applicant was trying to circumvent the business
classifications of Investor or Entrepreneur?
Applicant’s Arguments
[14]
The
applicant submits that the Officer erred in indicating that the applicant was
trying to circumvent the business categories as Investor or Entrepreneur. The
applicant relies on the CAIPS notes which state: “IT APPEARS PA MAY BE
TRYING TO CIRCUMVENT THE BUSINESS CATEGORIES AS INVESTOR OR ENTREPRENEUR” (Exhibit
L of the Affidavit of Candace Rose Salmon, Tab 4 of the Applicant’s Application
Record, page 437).
[15]
He
urges that the Officer linked the fact that the applicant is a shareholder in
the company and has significant wealth for use in establishing himself in Canada with the
possibility of the applicant wanting to evade the business categories of immigration.
As such, the applicant argues that the Officer considered extraneous
information to determine if his application was eligible for processing.
[16]
He
asserts that the reference to his possible circumvention of the business
categories is without merit, as the immigration law, policy and common law enable
him to submit his application under the category that will best suit his
interest and experience (Olajuwon v Canada (Minister of Citizenship
and Immigration), [1998] FCJ 967).
Respondent’s Arguments
[17]
The
respondent contends that the applicant admitted his attempt at
circumventing the system by stating in his affidavit that his application under
the NOC 0111 category was due to the lengthy timelines and process under the Investor
and Entrepreneur categories.
[18]
Accordingly,
he reiterates that the applicant did not demonstrate that it was his intent to
be a financial manager, as per the NOC 0111 category. He argues that
the applicant has started a business venture in Canada and has made substantial
investments in Canada beyond the requirements of the entrepreneurial
category. As a result, the applicant demonstrates that his application belongs in
the business categories as Investor or Entrepreneur.
[19]
The
respondent takes further issue with applicant’s challenge of a finding of pure
facts where deference should be given to the Officer due to his familiarity
with the NOC. He relies on Madan v Canada (Minister of
Citizenship and Immigration), [1999] FCJ 1198, para 24:
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.
Analysis
[20]
According
to Madan, an Officer should be afforded discretion in determining
whether an applicant satisfies the requirements for a given occupation,
including his interpretation of the provisions of the NOC. However, the Court
agrees as per Olajuwon, that an Officer has the duty to assess the
applicant in relation to the category he applied for.
[21]
In
the case at bar, the Court does not agree with the respondent’s submission
that, by his own admission, the applicant demonstrates that his application
belongs under a different NOC category. The respondent relies on the
applicant’s affidavit stating that (Affidavit of Enrique Pupko Maizel, Tab 4 of
the Applicant’s Application Record, page 13, para 17):
I
have already invested substantially in Canada and have created many job opportunities
for Canadians beyond the requirements of the entrepreneur category. The
investor category is not appropriate for me. Investor and entrepreneur class
applications in Mexico are so few, or so long in process, that there is not a
processing time available on the Citizenship and Immigration Website […] I
applied for immigration to Canada in the manner which best enables my
application’s processing, and it is my belief that I am a skilled worker per
the definition under NOC 0111 Financial Manager […]
[22]
As
such, the Court finds the Officer’s inference that the applicant was trying to get
around the business categories of Investor or Entrepreneur is unreasonable. While
the applicant did refer to the lengthy processing times for entrepreneur and investor
applications in Mexico as a motivation to apply under the NOC 0111 category,
this statement does not entail that the applicant chose this method to circumvent
a category that the Officer considered more appropriate. The Officer’s
findings were unreasonable, as applicants have the right to submit their case
in the manner which best represents them and with the highest likelihood of
success.
b. Did the Officer
exhibit bias against the applicant?
Applicant’s Arguments
[23]
The
applicant believes that there “may” have been bias in the processing of his
application (applicant’s Memorandum of Fact and Law, Tab 5 of the applicant’s
Application Record, page 505, para 71). He argues that the fact that he
and his family are Jewish was an extraneous reason for the denial of his application
for permanent resident status (Committee for Justice and Liberty v Canada
(National Energy Board), [1978] 1 S.C.R. 369).
[24]
The
applicant notes that the negative determination of eligibility was made days
after the applicant applied for study permits for his children to attend a
Hebrew school in Canada. In fact, he applied for and was
granted the study permits on July 14, 2010 and the negative determination was rendered
on July 22, 2010.
Respondent’s Arguments
[25]
The
respondent argues that the applicant’s assertions are without merit. The
respondent states that there is no evidence to suggest that the Officer
exhibited bias towards the applicant nor that the Officer was aware that the
applicant applied for and obtained study permits for his children to attend a
Hebrew school in Canada (Committee for Justice and Liberty, above).
The respondent asserts that there is no evidence that would lead a reasonable
and informed person to find bias in the applicant’s case.
Analysis
[26]
The
court is not satisfied that the applicant has demonstrated that the Officer exhibited
bias towards the applicant because he is Jewish. The granting of the study
permits on July 14, 2010 and the negative determination on July 22, 2010 is a
coincidence. There are no reasons to believe that the Officer showed an
apprehension of bias without anymore evidence. Therefore, the case of
Committee for Justice and Liberty does not apply.
c. Did the Officer err
by not providing the applicant an opportunity to respond to any concerns
relating to his Skilled Worker eligibility?
Applicant’s Arguments
[27]
The
applicant argues that the Officer had a duty of fairness to inform him of the
concerns regarding his application and consequently had a duty to give him
the opportunity to disabuse them (Liao v Canada (Minister of Citizenship and Immigration), [2000] FCJ
1719, Rukmangathan v Canada (Minister of
Citizenship and Immigration), [2004] ACF 317).
Respondent’s Arguments
[28]
The
respondent replies that the duty of procedural fairness applies to
discretionary administrative decisions and its content varies according to the context.
The respondent states that the concept of fairness is situational, not abstract
or absolute Baker v Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817. Several factors have been
recognized as relevant in determining the procedures required by the common law
for the duty of procedural fairness.
[29]
It
is at the low end of the spectrum for claims for permanent residence
under the NOC 0111 category due to the absence of legal right to permanent
residence, the fact that the burden is on the applicant to establish his
eligibility, the less serious impact on him compared with the removal of
a benefit and the public interest in containing administrative costs (Mei v
Canada (Minister of Citizenship and Immigration), [2009] FC 1281).
[30]
The
respondent further adds that the Officer was under no duty of fairness,
as the application was never placed into processing. The Officer
notified the applicant that rather than being refused, his application was
never placed into processing as it was deemed ineligible under Ministerial
Instructions (Exhibit H of the Affidavit of Candace Rose Salmon, Tab 4 of the
Applicant’s Application Record, page 396).
[31]
Finally,
the respondent underscores that an Officer is under no duty of fairness to
clarify a deficient application or to advise an applicant of every concern he
has (Kaur v Canada (Minister of Citizenship and Immigration), [2010] FCJ
587, para 9; Hassani v Canada (Minister of
Citizenship and Immigration), [2006] FCJ 1597, para 26).
Analysis
[32]
The
applicant cites Rukmangathan, at para 22 to argue that “[…] the duty of
fairness may require immigration officials to inform applicants so that an
applicant may have a chance to “disabuse” an Officer of such concerns […]”.
However, Rukmangathan further goes on to say that “[…] this principle of
procedural fairness does not stretch to the point of requiring that a visa Officer
has an obligation to provide an applicant with a ‘running score’ of the
weaknesses in their application” (confirmed in Hassani, para 23 and in Kaur,
above, para 9).
[33]
It is
worth reiterating the main principles relating to the consideration of the duty
of procedural fairness cases. In Baker, at paragraphs 22 and 23, Justice L’Heureux-Dubé opined as follows:
The duty of procedural fairness is
flexible and variable and depends on an appreciation of the context of the
particular statute and the rights affected
[…]
Several factors are relevant to
determining the content of the duty of fairness: (1) the nature of the decision
being made and process followed in making it; (2) the nature of the statutory
scheme and the terms of the statute pursuant to which the body operates; (3)
the importance of the decision to the individual or individuals affected; (4)
the legitimate expectations of the person challenging the decision; (5) the
choices of procedure made by the agency itself. This list is not exhaustive.
[34]
Thus,
as stated in Mei, at paragraph 16, “it has been decided that the duty of
fairness is limited in cases of permanent residence applications made from
outside Canada”.
[35]
In
the case at bar, a number of factors tend to limit the requirements of the duty
of fairness:
a.
First, the
nature of the decision made by the Officer was clearly of an administrative
nature, not judicial;
b.
Second, as
mentioned in Mei, although there is no appeal procedure for applications
of permanent residency, there is the possibility of bringing an application for
leave and judicial review. Also, if rejected, the applicant can submit a new
application;
c.
Third,
there is no evidence that being granted permanent residence status is of such
crucial importance to the applicant or his family;
d.
Fourth,
there is no evidence to prove that the applicant had a legitimate expectation
to be questioned by the Officer who had concerns with his application. In fact,
the Officer notified the applicant in his correspondence dated September 7,
2010 that procedural fairness applies only to cases that have been placed into
processing, as per the Operation Manuel, OP 6 Federal Skilled Workers (Exhibit
T of the Affidavit of Candace Rose Salmon, Tab 4 of the Applicant’s Application
Record, pages 481-482);
e.
Fifth, the
duty of fairness requires taking into account and respecting the choices of
procedure made by the agency itself (Baker,). As such, an Officer
screening an application to determine whether it is eligible for processing is
not required to confront an applicant with his concerns relating to the
inadequacy of supporting documentation, or to point out the evidentiary
weaknesses of the application;
[36]
The
burden of proof as to whether there has been a breach of the principles of
natural justice or procedural fairness is on the person alleging the breach.
The Court is not satisfied that the evidence presented by the applicant shows that
such a situation occurred.
d. Did the Officer err
in fact and in law in determining that the applicant did not qualify for
processing under the NOC 0111 category?
Applicant’s Argument
NOC 0111 Classification
[37]
The
applicant challenges the Officer’s decision because, he argues, the Officer did
not assess his application under the NOC 0111 category as a Financial Manager
but rather under the NOC 0014 category as a general business manager.
[38]
He
refers to the CAIPS notes: “IT APPEARS PA IS A GENERAL BUSINESS MANAGER
0014 OF HIS COMPANY – THIS NOC IS NOT LISTED UNDER MINISTERIAL INSTRUCTIONS” (Exhibit
L of the Affidavit of Candace Rose Salmon, Tab 4 of the Applicant’s Application
Record, page 437).
[39]
The
applicant states that the NOC 0014 category is intended for Senior Managers in
health, social and community services and membership organizations. He
submits that his position as CEO/CFO at Procables, a private corporation
which provides electrical components, does not fall within the scope of the NOC
0014 category (Tab 4 of the Applicant’s Application Record, pages 454-457 for
the NOC 0014 requirements) (Saggu v Canada (Minister of Citizenship and
Immigration), [1994] ACF 1823).
[40]
He
relies on Qin v Canada (Minister of
Citizenship and Immigration), [2002] FCJ 1576 at paragraph 20, stating:
[…] The purpose of the
statute is to permit immigration, not prevent it. It follows that applicants
have the right to frame their application in a way that maximizes their chances
for entry. It is the corresponding obligation of immigration Officers to
provide a thorough and fair assessment, and to provide adequate reasons for
refusals when they occur.
Duties and
Responsibilities under the NOC 0111 Category
[41]
The
applicant further challenges the Officer’s decision by claiming that he meets
the requirements for the Federal Skilled Worker under the NOC 0111 category. He
argues having the ability to become financially established in Canada and
having a minimum of one year’s continuous experience over the past ten years as
a Financial Manager (Shangguan v Canada (Minister of Citizenship and
Immigration), [2007] FCJ 127; McHugh v Canada (Minister of Citizenship
and Immigration), [2006] FCJ 1480).
[42]
Furthermore,
he argues that he has completed the duties enumerated in the NOC 0111 category
in the course of his employment at Procables, such as planning, organizing,
directing, controlling and evaluating the operation of the accounting
department (for a list of Financial Manager’s duties, see pp 495-495 of the Applicant’s
memorandum of fact and law) (Saggu v Canada (Minister of Citizenship and Immigration),
[1994] FCJ 1823).
[43]
He
alleges that he provided sufficient documentation, namely reference
letters and financial details, as evidence of his experience as a Financial
Manager.
[44]
Finally,
he takes issue with the Officer’s finding that Procables did not appear
to have registered him as their Financial Manager. The applicant relies on the
CAIPS notes stating the following: “PA DID NOT PROVIDE EVIDENCE THAT COMPANY
HAS REGISTERED HIM BEOFRE SOCIAL SECURITY MEXICAN INSTITUTE AS THE FINANCIAL
MANAGER OF THIS COMPANY” (Exhibit L of the Affidavit of Candace Rose Salmon,
Tab 4 of the applicant’s Application Record, page 437). The applicant certifies
that Mexican law permits one high-ranking company Officer to be exempt from
Social Security registration.
Respondent’s Arguments
NOC 0111 Classification
[45]
The
respondent argues that the Officer’s reference to the NOC 0014 category is
irrelevant since the applicant was considered under the NOC 0111 category. He states
that the Officer was merely noting that the applicant appeared to fall under
another NOC category and commented on the applicant’s evidence that he appeared
to be better suited for a Business category as an Investor or Entrepreneur.
[46]
It
was therefore reasonable for the Officer to note that the duties the
applicant performed at Procables did not coincide with the NOC 0111 category,
given that the applicant is
currently collaborating with a group of business partners to open a business in
Toronto.
Duties and
Responsibilities under the NOC 0111 Category
[47]
According
to the respondent, in order to be eligible for processing under the NOC 0111
category, an individual must meet the requirements set out in the Ministerial
Instructions. The applicant must have arranged employment, have been residing
in Canada for at least one year as a temporary foreign worker or have at least
one year of continuous full-time employment or equivalent paid work experience
in the last ten years in one or more of the listed occupations (Ministerial
Instructions, Canada Gazette, Vol 142, No 48).
[48]
He
relies on Wankhede v Canada (Minister of Citizenship
and Immigration), [2000] FCJ 968, at para 6, to argue that a visa Officer is
not required to speculate as to an applicant’s experience in an occupation.
[49]
He
submits that the applicant did not provide sufficient information to prove
that he performed the duties of Financial Manager under the NOC 0111 category, adding
that the evidence demonstrated that he was a business owner and shareholder of
Procables. With the exception of one letter provided by Diversified Managed
Investments (DMI, the applicant’s reference letters did not specifically
outline his employment duties while employed at Procables. As such, the
respondent maintains that the Officer’s determination falls within the range of
possible and acceptable outcomes.
Analysis
NOC 0111 Classification
[50]
I
find that the Officer considered the applicant’s application under the NOC 0111
category and not under the NOC 0014 category.
[51]
A
visa Officer has a duty to assess an application with reference to the
occupation represented by the application as the one for which the applicant is
qualified and prepared to pursue in Canada Saggu v Canada (Minister of
Citizenship and Immigration), para 16.
[52]
As
such, I do not agree that the applicant was considered under the NOC 0014
category. In light of the CAIPS notes, the Officer was simply indicating that
the applicant appeared to fall under another potential category and better
suited to a Business category as an Investor or Entrepreneur. This note was
clearly reasonable, as the applicant is currently collaborating with a group of
business partners to open a bakery business in Toronto, Canada.
Duties and
Responsibilities under the NOC 0111 Category
[53]
Having
considered and analyzed the documents and the parties’ written submissions, I
find that the Officer’s decision to decline the applicant’s application for
processing cannot stand.
[54]
The
Minister of Citizenship and Immigration issued instructions that were published
in the Canada Gazette on November 28, 2008. These instructions specify that
only applicants who have an Arranged Employment Offer, who are legally residing
in Canada for at least one year as a Temporary Foreign Worker or an
International Student, or who have work experience in a certain listed
occupations are eligible to be processed in the Federal Skilled Worker class
(Ministerial Instructions, Canada Gazette, Vol 142, No 48).
[55]
The
relevant provision of the Immigration and Refugee Protection Regulations
(SOR/2002-227) (the Regulations) is as follows (Exhibit M of the Affidavit of
Candace Rose Salmon, Tab 4 of the Applicant’s Application Record, page 450):
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.
[56]
Financial
Managers are also required to have performed some or all of the following
duties (for a complete list, see Exhibit N of the Affidavit of Candace Rose
Salmon, Tab 4 of the Applicant’s Application Record, at page 452):
a.
Plan,
organize, direct, control and evaluate the operation of an accounting, audit or
other financial department
b.
Develop
and implement the financial policies, systems and procedures of an
establishment
c.
Prepare or
co-ordinate the preparation of financial statements, summaries and other
cost-benefit analyses and financial reports
d.
Co-ordinate
the financial planning and budget process, and analyze and correct estimates
e.
Supervise
the development and implementation of financial simulation models.
[57]
In
McHugh, at para 15, the Court states that NOC categories require
that applicants have performed some or all of the duties in question,
allowing “[…]
a
Visa Officer to give greater weight to certain duties contained in the job
description over others, but does not require that applicants must have
performed all of the duties listed.”
[58]
Moreover,
according to Wankhede, at para 6, “the applicant has the obligation to
put forward a prima facie case that he meets the employment requirements of the
job with respect to which he asks to be assessed.” Wankhede further
states that an Officer is not required to speculate as to the training and
experience of an applicant.
[59]
I
find that the Officer did not reasonably assess the applicant’s workplace duties
relevant to the NOC 0111 category. The applicant's responsibilities
at Procables included directing all the accounting and finance
operations as well as planning financial policies, procedures and systems. In
addition, the applicant was in charge of supervising and making decision based
on financial statements, summaries, and other cost-benefit analyses and financial
management reports (see letters of references, Exhibit J of the Affidavit of
Candace Rose Salmon, Tab 4 of the Applicant’s Application Record, pages 426-429).
[60]
The
applicant’s documented financial management skills demonstrate that he would
satisfy several of the criteria in the Financial Management category. Seeing
that the applicant established Procables in Mexico City with only
two other partners, he was obliged to fulfill financial duties listed
under the NOC 0111 category, such as co-ordinating the financial planning and
budget process, cash flow management and accounting supervision. The Court
relies on the applicant’s statement that “In the beginning, all of us had to do
everything” (“Procables de Mexico”, Exhibit J of the Affidavit of Candace Rose
Salmon, Tab 4 of the Applicant’s Application Record, page 431).
[61]
While the Officer
had considerable discretion in determining whether the applicant satisfied the
requirements of NOC 0111 category, in this case, the Officer’s conclusion was unreasonable.
[62]
The
parties did not propose questions for certification and none arise.
JUDGMENT
THIS COURT
ORDERS that:
1. The
application for judicial review be allowed.
2. The matter is
remitted back for redetermination by a different visa Officer.
3. No question is
certified.
“Michel
Beaudry”
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