Docket:
IMM-1932-11
Citation:
2011 FC 1293
Ottawa, Ontario, November 10, 2011
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
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BRYAN CABRERA TABAÑAG
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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]
Mr.
Bryan Cabrera Tabañag applied for permanent resident status as a skilled worker
indicating that he had work experience as an Architect in Manila, Philipines.
In a decision dated March 2, 2011, a service delivery agent at the respondent’s
Centralized Intake Office in Sydney, Nova Scotia assessed
that Mr. Tabañag was not eligible for processing in the skilled worker
category.
[2]
Mr.
Tabañag seeks judicial review of that decision under section 72 of the Immigration
and Refugee Protection Act, SC 2001, c 26. For the reasons that follow, the
application is dismissed.
BACKGROUND:
[3]
The
position of “Architect” bears the National Occupation Code (NOC) of 2151 in the
standardized classification system used by the respondent to assess skilled
worker applications. NOC 2151 describes the tasks and duties of an architect in
these terms:
Architects conceptualize, plan and
develop designs for the construction and renovation of commercial,
institutional and residential buildings. They are employed by architectural
firms, private corporations and governments, or they may be self-employed.
[…]
Architects perform some or all of the
following duties:
·
Consult with
clients to determine type, style and purpose of renovations or new building
construction being considered
·
Conceptualize
and design buildings and develop plans describing design specifications,
building materials, costs and construction schedules
·
Prepare
sketches and models for clients
·
Prepare or
supervise the preparation of drawings, specifications and other construction
documents for use by contractors and tradespersons
·
Prepare
bidding documents, participate in contract negotiations and award construction
contracts
·
Monitor activities
on construction sites to ensure compliance with specifications
·
Conduct
feasibility studies and financial analyses of building projects.
Architects may specialize in a
particular type of construction such as residential, commercial, industrial or
institutional.
[4]
Mr.
Tabañag holds a bachelor of science in architecture. He worked for more than 20
years for a developer in Manila, Design Coordinates Inc., which develops
high rise buildings in that city. In submitting his application for permanent
residence, he followed the instructions in a document provided by the
respondent for such applications from Manila. Attached as Appendix
A to the instructions was a checklist of the steps to be completed and
information to be provided ("the Manila checklist").
[5]
Item
7 of the checklist completed by the applicant required him to submit employment
certificates from present and past employers setting out, among other things,
the positions held and "full details of your main responsibilities and
duties in each position". A note in bold advised applicants that if they
could not provide employment certificates they were to provide a written
explanation and other documentation that would support their claim to such
employment.
[6]
According
to a certificate issued by his employer and submitted with the application, the
applicant held the position of Construction Project Architect. However, there
is no description of the tasks and duties performed by the applicant in the
certificate. Nor is there any evidence of a written explanation or other documentation
submitted by the applicant in the Certified Tribunal Record to support his
claim that he performed the duties of an architect; other than a letter from a
government official addressed to him as "Architect Bryan Tabañag, Site
Safety Health Officer/Assistant Construction Project Manager" inviting the
applicant to participate in a discussion on the implementation of a
construction safety and health program.
[7]
The
agent was not satisfied that the applicant had provided sufficient evidence
that he had performed the actions described in the lead statement for the
occupation or performed a substantial number of the main duties of the
occupation as set out in the occupational description of the NOC. The
application was thus denied.
[8]
In
this proceeding, Mr. Tabañag has filed his affidavit attesting to his
employment responsibilities and the affidavit of an immigration consultant,
Rosalinda Ong, who prepared the skilled worker application on his behalf. Ms.
Ong deposes as to information she received from the applicant respecting the
work that he performed for his employer that would qualify him under NOC 2151.
She deposes further that in response to a request for a certificate of Mr.
Tabañag’s employment containing particulars of his duties, hours and wages the
employer returned a letter without that information. Ms. Ong and Mr. Tabañag
state in their affidavits that this is because employers in the Philippines are
reluctant to be specific about such matters for fear of lawsuits and union
problems.
[9]
The
respondent objected to the introduction of evidence that was not before the
agent when the decision was made. At the hearing, I noted the objection and
indicated that I would deal with it in rendering a decision on the merits of
the application.
ISSUES:
[10]
The
parties have raised a number of issues with respect to the manner in which the
skilled worker application was assessed. They can be reduced to the following
questions:
a.
Is the applicant’s fresh
affidavit evidence admissible?
b.
Was the decision of
the agent reasonable?
ANALYSIS:
Standard of Review:
[11]
The
applicant raises procedural fairness considerations and questions of law. To
the extent that such questions arise in this case no deference would be due the
decision maker: Sketchley v Canada (Attorney General), 2005 FCA
404 at paras 52-53.
Otherwise, the parties submit and I agree that the standard of review for
decisions on permanent residence under the federal skilled worker class has
been satisfactorily determined in the jurisprudence to be reasonableness: Oladipo
v Canada (Minister of Citizenship and Immigration), 2008 FC 366 at para 23;
and Kaur v Canada (Minister of Citizenship and Immigration), 2008 FC
1189 at para 17.
[12]
Apart
from any question of law or of natural justice, the decision in this case is
factual in nature and discretionary. Deference is thus owed to the
decision-maker. A reasonable decision is one that falls within a range of
possible and acceptable outcomes which are defensible with respect to the facts
and the law: Dunsmuir v New Brunswick, 2008 SCC 9 at para 47.
Is the applicant’s
affidavit evidence admissible?
[13]
As a
preliminary issue, the respondent objects to the introduction of paragraphs 4
to 9 of the applicant's affidavit and paragraphs 8 to 14 and 19 of Ms. Ong’s
affidavit on the ground that they contain statements concerning the applicant's
employment duties and responsibilities and explanations for why he did not
provide additional evidence in his skilled worker application that were not
submitted to the agent.
[14]
It
is trite law that the scope of the evidence on an application for
judicial review is restricted to the material that was before the
decision-maker: Lemiecha et al. v Canada (Minister of
Employment and Immigration) (1993), 72 FTR 49 at para 4; and Walker v Randall (1999), 173
FTR 161). Additional evidence may be submitted on issues of procedural fairness
and jurisdiction: Ontario Assn. of Architects v Assn. of Architectural
Technologists of Ontario, [2003] 1 FC
331 (CA), leave to appeal to the Supreme Court of Canada refused.
[15]
The
impugned evidence is not admissible in this proceeding to bolster the
applicant's claim that he met the requirements of the NOC classification when
he submitted his skilled worker application. In particular, the applicant may
not rely on the assertions in the affidavits regarding his employment duties or
the practice of employers in Manila to be shy of certifying such duties. The affidavit evidence
is admissible solely for the limited purpose of supporting his argument that
the manner in which his application was assessed was unfair.
Was the decision reasonable?
[16]
The
applicant acknowledges that he bears the onus of satisfying the agent under ss.11
(1) of the IRPA and that the burden of proof upon him was the balance of probability:
Hilewitz v Canada (Minister of
Citizenship and Immigration), 2005 SCC 57 at para 58. He submits that the
agent applied a standard of proof which was too high and misapplied s.80 (3)
of the Immigration and Refugee Protection Regulations, SOR/2002-227
(hereafter the Regulations) and the NOC 2151 statement of duties to the facts
before him.
[17]
The
applicant argues that he met the evidentiary standard with regard to the lead
statement in NOC 2151. He was trained as an architect and he was employed as an
architect. Once prima facie evidence of this was provided to the agent,
he submits, the officer had a duty to inform the applicant of his doubts, if he
had any, which would prevent the issuing of a visa: Hussain v Canada
(Minister of Citizenship and Immigration), [1998] FCJ No 1570 at paras
34-35.
[18]
Paragraph
80 (3) (b) of the Regulations requires an officer to consider whether or not
the applicant has performed a substantial number of duties found in a NOC. Courts
have interpreted that paragraph as meaning that an officer needs to be
satisfied that an applicant has performed one or more of the main duties: A'Bed
v Canada (Minister of Citizenship and Immigration), 2002 FCT 1027 at para
12; Noman v Canada (Minister of Citizenship and Immigration), 2002 FCT
1169 at para 28; and Dahyalal v Canada (Minister of Citizenship and
Immigration), 2007 FC 666 at para 4.
[19]
The
applicant submits that use of the checklist oversteps the powers of the
Minister under paragraph 80 (3) (b) of the IRPA. He argues that the word “including”
in that provision limits the directions that the Minister can issue to the
subject matter listed in the subsection, that is to a “substantial number of
the main duties of the occupation…including all the essential duties”. The
checklist goes further, he says, by requiring “full details of your main
responsibilities and duties in each position.”
[20]
I do
not accept the applicant’s argument that the use, in itself, of the Manila checklist is unfair. The
checklist provides notice to an applicant that he or she must put their best
foot forward and that the onus is on him or her to provide all relevant
documents: the Immigration and Refugee Protection Regulations, SOR/2002-227, ss.75 (2)
(3) and 80 (3); Lam v Canada (Minister of Citizenship and Immigration),
152 FTR 316, [1998] FCJ No 123 at para 4; Chen v Canada (Minister of
Citizenship and Immigration), 171 FTR 265, [1999] FCJ No 1123 at para 26;
and Kaur v Canada (Minister of Citizenship and Immigration), 2010 FC 442
at paras 10-14.
[21]
The
respondent’s agents may not interpret and apply the Manila checklist in a
manner that exceeds the scope of the Minister’s authority. “[A]ll exercises of
public authority must find their source in law”: Dunsmuir, above, at
paragraph 28; Stemijon Investments Ltd. v Canada (Attorney General), 2011 FCA 299 at
paragraphs 24-25. There may be instances where strict application of the
checklist by officials will go beyond the Minister’s statutory and regulatory
authority and will also result in a breach of natural justice. I do not
consider it necessary in the circumstances of this case to comment on whether
the checklist requirement to provide “full details of your main
responsibilities and duties in each position”, certified by the employer,
exceeds the regulatory authority.
[22]
Here,
there was no evidence before the agent to establish that the applicant had
performed any of the duties required to satisfy the occupational
classification. It is not sufficient for an applicant to provide evidence that
he or she has the academic qualifications, bears a job title and is addressed
by that title in correspondence. They must provide evidence that they have
actually performed “a substantial number of the main duties of the occupation”.
Here, the applicant did not provide that evidence either through the
employer’s certificate or alternate documentation. The information submitted
fell short of establishing a prima facie case, as the applicant
contends.
[23]
As
stated by Justice Rothstein in Lam, above at paragraph 4, while an
officer can not be wilfully blind in assessing an application and must act in
good faith, he does not have a duty to follow up on an application when the
evidence is insufficient. See also Ramos-Frances v Canada (Minister of
Citizenship and Immigration), 2007 FC 142 at paragraph 16; and Ahmed v Canada (Minister of
Citizenship and Immigration), [1997] FCJ No 940 at paragraph 8.
[24]
In
the result, I am satisfied that the agent’s decision that there was
insufficient evidence to establish performance of the duties set out in the
classification was reasonable and the application must be dismissed.
Certified
Questions;
[25]
The
applicant has proposed that I certify two questions:
Given
that the Manila checklist both contemplates and requires a level of supporting
documentation on a mandatory level which contemplates an exactitude that is
akin to an evidentiary standard of beyond a reasonable doubt, does such a
checklist conflict with the standard of proof required by Section 11 (1) of the
IRPA, whether that checklist was imported by policy or by prescription?
Secondly,
does the Court have the ability to apply administrative efficiency as a charge
to defeat the plain meaning of Section 11 (1) of the IRPA?
[26]
The
respondent is opposed to the certification of either question and does not propose
any alternative.
[27]
In
Zazai v Canada (Minister of Citizenship and Immigration), 2004 FCA 89 at
paragraph 11, the threshold for certification was articulated by the Court of
Appeal as whether the question would be dispositive of an appeal. In Boni v
Canada (Minister of Citizenship and Immigration), 2006 FCA 68 the Court of
Appeal added that a certified question must lend itself to a generic approach
leading to an answer of general application. That is, the question must
transcend the particular context in which it arose.
[28]
Here,
neither of the proposed questions would be dispositive of an appeal in this
matter nor would they lead to an answer of general application. The questions
presume findings of fact and law that were not made in these proceedings and
are not based on the admissible evidence in the record.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for
judicial review is dismissed. No questions are certified.
“Richard
G. Mosley”
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