Date: 20110420
Docket: IMM-3303-10
Citation: 2011
FC 461
Ottawa, Ontario,
April 20, 2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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BABAK PIRZADEH
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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
JUDGMENT
[1]
The
applicant seeks to set aside a decision dated March 4, 2010 of a Visa
Officer at the Canadian Embassy in Damascus, Syria, denying the applicant’s application for a Permanent
Resident Visa (PRV) under the Federal Skilled Worker (FSW) class. The visa
request was denied on the basis that the Visa Officer was not satisfied that
the applicant was able to perform the duties listed in the arranged offer of
employment nor that he met the minimum requirements of the job. The standard
of review of this decision is reasonableness, which can only be assessed if the
decision is first situated in the legislative and regulatory context in
which it is taken.
Facts
[2]
The
applicant is a citizen of Iran.
In July 2007 he submitted an FSW application to the Canadian Embassy in Damascus. Under the Immigration
and Refugee Protection Regulations (SOR/2002-227) (the Regulations) points
are awarded to applicants based on discrete categories: age, education,
experience, arranged employment, official language proficiency, and
adaptability. The applicant was awarded a total of 63 points, when he needed
67 points for his application to be approved under the FSW regime.
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NOC code: 0631
Points Assessed
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Maximum
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Age:
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10
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10
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Education:
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20
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25
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Experience:
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21
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21
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Arranged
Employment:
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0
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10
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Official
Language Proficiency
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8
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24
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Adaptability
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4
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10
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TOTAL
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63
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100
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[3]
Along
with his application, the applicant included an Arranged Employment Offer (AEO)
as a manager of a Toronto Subway™
restaurant. He had secured an Arranged Employment Opinion from Service Canada
(AEOSC) in support of this AEO, in which Service Canada classified the position
as that of a Retail Trade Manager under NOC0621, found on the National
Occupations Classifications (NOC) list.
[4]
The
applicant was assessed by the Visa Officer under NOC0631 instead of
NOC0621, and no points were awarded in the Arranged Employment
category. The Visa Officer wrote in his decision:
Although
you submitted an application with arranged employment, I am not
satisfied that you meet the minimum requirements of the job and are able to
perform the duties listed in the arranged employment. The arranged
employment states that previous related experience is required. You do not
have previous related experience in NOC code 0631 and therefore I am not
satisfied you meet the minimum requirements of the job. I advised you of my
concern at interview and gave you the opportunity to respond. [Emphasis added]
[5]
It
is indisputable that based on the above the Visa Officer had legitimate
concerns about the applicant’s ability or capacity to perform the job of Retail
Trade Manager. The Visa Officer wrote:
[y]ou have therefore not satisfied me that you will be able to become
economically established in Canada.
[6]
The
Visa Officer concluded in his letter to the applicant, that:
[f]ollowing
an examination of your application, I am not satisfied that you meet the
requirements of the [IRPA] Act and the regulations for the reasons
explained above. I am therefore refusing your application.”
Issue
[7]
Counsel
for the applicant contends that the Visa Officer’s decision that the applicant
did not have related work experience is unreasonable because:
(a) The officer compared the wrong NOC codes;
(b) The applicant’s work experience was
clearly related to the duties of the position he was offered; or
(c) The officer ignored the rest of the job
offer contents, including that on-site training would be provided.
Secondly, the applicant
contends that the reasons for decision are deficient.
[8]
The
substantive question, the Visa Officer’s assessment of the work experience is assessed
on a reasonableness standard, and the procedural question, the adequacy of
reasons, is a legal one which attracts a standard of correctness, per Dunsmuir v
New Brunswick, [2008] 1 S.C.R. 190, 2008 SCC 9.
[9]
The Visa
Officer referenced the wrong NOC codes. The Visa Officer, relying on the Human
Resources and Skills Development Canada (HRSDC) opinion, referenced the duties
of the applicant’s current occupation as a manufacturing manager to the NOC
occupation of Restaurant and Food Service Managers - NOC 0631. Given that the
substantive position was to manage a food service establishment, it is
difficult to see how this error in the label worked any unfairness to the
applicant. This is, indeed, the crux of the case.
[10]
When
the applicant submitted his application, he described the employment he was
then engaged in as an Industrial Manager. He claimed that his job
entailed the following:
·
I plan, organize, direct
and control the operations of our manufacturing establishment.
·
Develop and implement
plans to efficiently use materials, labour and equipment to meet production
targets.
·
Direct quality
control inspection system and develop production reporting procedures.
·
Develop equipment
maintenance schedules and recommend the replacement of machines.
·
Time measurement for
develop of production line, project control, line balancing (man balance
power).
[11]
As
noted earlier, the applicant also supplied an AEO as a Retail Trade Manager
from a Subway™ restaurant in Toronto. The letter declared that the job entailed the following:
·
Plan and direct the
operation of our establishment.
·
Manage staff and
assign duties.
·
Determine services to
be sold, and implement prices.
·
Locate, select and
procure merchandise for purchase.
·
Develop and implement
marketing strategies.
·
Plan budgets and
authorize expenditures.
·
Determine staffing
requirements and hire or oversee hiring of staff.
[12]
As
noted earlier, this AEO was validated by the AEO from Service Canada. However
the AEO itself incorrectly ascribed NOC code 0631 (Retail Food Service Manager)
to Retail Trade Manager.
[13]
As a
result of concerns as to the relevance and suitability of the applicant’s prior
experience the applicant was instructed by the Embassy, in a letter dated
December 16, 2009, to provide a reference letter and explain how he qualified
for his AEO. The applicant responded on January 11, 2010:
In
respond [sic] to your inquiry regarding submission of a written description of
my employment, I should claim that all my transferable skills in the managerial
job I was performing may be useful in my future occupation as a “Retail Trade
Manager”, In my current job which I have had since 1988, I have been involved
with supervision and training of manpower in Iran Khodro and I am sure I will
be able to use this experience in my future job. I will be planning,
organizing, directing and controlling the operation of the store to optimize
the sell and services of this business. Although the appearance of these two
jobs may look different but the managerial requirements to run them both still
remains the same.
[14]
The Computer
Assisted Immigration Processing System (CAIPS) notes indicate that the Visa
Officer remained unsatisfied with the response;
I
am not satisfied with PA’s [person affected] written explanation. I have
concerns with PA’s ability to perform the job and I have concerns with PA’s
intent to accept job once in Canada.
Interviewing
Officer:
PA
has an AEO to be a Retail Trade Manager at Subway. Pa’s previous work
experience has been with Iran Khodro as an Industrial Manager since 1988.
Concerns with PA’s ability and intent.
[Emphasis added]
[15]
The Visa
Officer had concerns with not only the applicant’s ability to perform the job
offered to him, but also his intent to accept it, to actually assume his
responsibilities in the position. This is, of course, the second prong of the
test imposed under the Regulations. This finding is not challenged on
this application.
[16]
The
applicant was interviewed by the Visa Officer. The interview was conducted in
English. The applicant confirmed he understood English and was instructed by
the Visa Officer to explain when he did not understand something asked of him.
The applicant claimed that his work experience as an Industrial Manager lended
itself well to being a Retail Trade Manager at the Subway™ restaurant in
Toronto. During the interview, the Visa Officer noted that as “PA started
speaking incoherently about products and targets….PA does not understand the question
[about intent to take the employment in Canada]…PA then speaks incoherently about finding
targets and goals and society targets.”
[17]
The
Visa Officer ultimately remained unsatisfied and wrote in the CAIPS notes:
I
have reviewed the complete file and I am not satisfied that the PA meets the
requirements of the AEO. The job details of the AEO state “previous related
experience is required”. PA does not have “previous related experience” as a retail
trade manager or a restaurant and food service manager (NOC code
0631). Although PA states that the main duties under NOC 0911 (his current job)
and NOC 0631 (his employment for the AEO) are similar, they are significantly
different. I am not satisfied PA meets the minimum requirements for the AEO.
APPLICATION REFUSED. [CAPS in original] [Emphasis added]
[18]
Three
observations flow from this. First, the Visa Officer assessed the applicant
against both occupational codes. Second, the Visa Officer tested the
applicant’s prior experience against the requirements of the proposed
employment. Third, throughout their correspondence and the interview, the Visa
Officer and the applicant were ad idem as to the nature of the employment
offered and its classification as a Retail Trade Manager.
[19]
The
error in the labeling of the position does not go to the root of the decision nor
does it render it unreasonable. First, in the CAIPS notes, which form part of
the decision, the Visa Officer wrote: “PA does not have ‘previous related
experience’ as a retail trade manager or a restaurant and food service manager
(NOC code 0631).” Thus, the Visa Officer did in fact consider the applicant’s
application in relation to the NOC code he actually applied for: NOC code 0621,
Retail Trade Manager. Secondly, the Visa Officer found that the
applicant did not have the requisite intention to undertake the employment, and
third, the CAIPS notes reveal a solid evidentiary footing on which the Visa
Officer based his conclusions.
[20]
I
note as well that NOC codes 0621 and 0631 are strikingly similar:
0621
Retail Trade Managers
Retail
trade managers plan, organize, direct, control and evaluate the
operations of establishments that sell merchandise or services on a retail
basis. Retail trade managers are employed by retail sales establishments or
they may own and operate their own store.
Employment
requirements:
·
Completion of
secondary school is required.
·
A university degree
or college diploma in business administration or other field related to the
product or service being sold may be required.
·
Several years of
related retail sales experience
at increasing levels of responsibility are usually required.
[Emphasis
added]
0631
Restaurant and Food Service Managers
Restaurant
and food service managers plan, organize, direct, control and evaluate the
operations of restaurants, bars, cafeterias and other food and beverage
services. They are employed in food and beverage service establishments, or
they may be self-employed.
Employment
requirements:
·
Completion of a
college or other program related to hospitality or food and beverage service
management is usually required.
·
Several years of
experience in the food service sector,
including supervisory experience, are required.
[Emphasis
added]
[21]
NOC
code 0621 speaks of an FSW applicant requiring several years of related retail
sales experience while NOC code 0631 speaks of an FSW applicant requiring
several years of experience in the food service sector. While these are
different requirements, the Visa Officer’s classification or labeling error had
no bearing on the substance of the decision or the fairness by which the
decision was reached. The applicant had no experience in either. The Visa
Officer wrote:
I
am not satisfied that you meet the minimum requirements of the job and
are able to perform the duties listed in the arranged employment… [which]
states that previous related experience is required. You do not have previous
related experience in NOC code 0631 and therefore I am not satisfied you
meet the minimum requirements of the job. [Emphasis added]
[22]
Validation
or classification by HRSDC is not determinative of the Visa Officer's
obligation to conduct an analysis in accordance with the IRPA and the Regulations.
It does not relieve the obligation on the Visa Officer to assess and test
whether the applicant is able to perform the duties of the position offered, or
to put it more directly, the Visa Officer must determine whether the applicant
is up to the requirements of the job; Bellido v Canada (Minister of
Citizenship and Immigration) 2005 FC 452. The Visa Officer turned his mind
to the specific requirements of the position offered. It is the substantive
position offered, and not the HRSDC label that governs the Visa Officer’s
assessment, it should not be forgotten that during the interview the applicant
indicated that Subway sold hamburgers.
[23]
It is a basic principle
of administrative law that, where natural justice or the fairness of the
procedure is in question, a remedy will ordinarily
be recognized regardless of the futility or inevitability of the
result when the matter is remitted to the decision maker for reconsideration. There
are rare exceptions to this, as discussed by the Supreme Court of Canada (SCC)
in Mobil Oil Canada Ltd. v Canada‑Newfoundland Offshore Petroleum
Board [1994] 1 S.C.R. 202, Justice Iacobucci, writing for the Court
noted:
On
occasion, however, this Court has discussed circumstances in which no relief
will be offered in the face of breached administrative law principles:
e.g., Harelkin v. University of Regina, [1979] 2 S.C.R. 561.
…
In
Administrative Law (6th ed. 1988), at p. 535, Professor Wade discusses
the notion that fair procedure should come first, and that the demerits of bad
cases should not ordinarily lead courts to ignore breaches of natural justice
or fairness. But then he also states:
A
distinction might perhaps be made according to the nature of the
decision. In the case of a tribunal which must decide according to law,
it may be justifiable to disregard a breach of natural justice where the
demerits of the claim are such that it would in any case be hopeless.
[24]
In the context of
this case, is an academic discussion because, as noted, I do not find any
breach of procedural fairness. The applicant's ability to perform the job
in question was fully and fairly assessed on its merits against
the relevant standards and against the correct occupational code,
albeit also against an incorrect, but substantially similar
occupational code. No one was misled by this. Moreover, with
respect to the second branch of the test under the Regulations, the Officer
formed the opinion that the applicant did not have the requisite intention
to assume the position, a finding which was not challenged on this
application.
[25]
The
responsibility of this Court is to ensure that the Visa Officer exercised his
discretion in accordance with the IRPA and the Regulations as
informed by the jurisprudence. It is also to ensure that there is no breach of
procedural fairness in the process by which the assessment is conducted. No
unfairness, or lack of opportunity arose from the error. The applicant knew
throughout the entire process what was in issue, and, significantly, could not
point to any further or different information that might have been brought to
the attention of the Visa Officer but for the mislabeling. The applicant’s
argument would have the substantive analysis conducted by the Officer
subordinated to a clerical error in referring to the incorrect code.
Applicant’s Work Experience
[26]
Counsel
for the applicant argues that his client’s work experience is clearly related
to the duties of the position he was offered. In other words, counsel argues
that the applicant’s experience as an Industrial Manager in Iran
qualifies him for work as a Retail Sales Manager in Canada. To conclude on this
issue, it is prudent to again look at the applicant’s assertions:
In
respond [sic] to your inquiry regarding submission of a written description of
my employment, I should claim that all my transferable skills in the managerial
job I was performing may be useful in my future occupation as a “Retail
Trade Manager”. In my current job which I have had since 1988, I have been
involved with supervision and training of manpower in Iran Khodro and I
am sure I will be able to use this experience in my future job. I will be planning,
organizing, directing and controlling the operation of the store to optimize
the sell and services of this business. Although the appearance of these
two jobs may look different but the managerial requirements to run them both
still remains the same. [Emphasis added]
[27]
This
aspect of the decision making process is entitled to considerable deference.
In assessing the relevance of the past experience to the AOE the Visa Officer
is making a finding of fact which will not be disturbed unless demonstrated to
be unreasonable. In this case, the applicant’s past experience was in relation
to an automobile parts manufacturing plant. As noted from the excerpts of the
interview in the CAIPS notes, it was not without reason that the Visa Officer
questioned the transferability of that experience to a position in a fast-food
restaurant.
Adequacy of Reasons
[28]
Counsel
for the applicant also argues that the reasons for decision supplied in the
letter are deficient.
[29]
I do
not accept that the reasons are inadequate. The CAIPS notes form, unquestionably,
part of the decision and they indicate clearly, both through the nature of the
questions posed by the Visa Officer and the responses received, together with
the formal decision letter, the scope and detail of the Visa Officer’s
concerns. The reasons meet the criteria expressed by the Court of Appeal in VIA
Rail Canada Inc. v National Transportation Agency [2001] 2 FC 25 and in
particular the comments of Evans JA in Canada (Minister of Human Resources
Development) v Quesnelle 2003 FCA 92, at para 11.
[30]
For
these reasons, the application will be dismissed.
[31]
No
question of general importance was put forward for certification, and none will
be certified.
JUDGMENT
THIS COURT’S JUDGMENT is that the
application for judicial review be and is hereby dismissed. No question for
certification has been proposed and the Court finds that none arises.
"Donald J. Rennie"
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