Date: 20111213
Docket: IMM-7555-10
Citation: 2011 FC 1411
Ottawa, Ontario, this 13th
day of December 2011
Before: The
Honourable Mr. Justice Pinard
BETWEEN:
DILMURAD KAMCHIBEKOV
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
On
December 22, 2010, Dilmurad Kamchibekov (the “applicant”) filed the present application for judicial
review of the decision of a visa officer of the High Commission of Canada,
Immigration Section, in London, England (the “officer”), pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(the “Act”). The officer found that the applicant was not eligible in Canada for permanent residence
as a Federal Skilled Worker.
[2]
The
applicant, a citizen of the United Kingdom, applied for permanent residence in
Canada in March 2010 as a Federal Skilled Worker under the National
Occupational Classification (“NOC”) of Restaurant and Food Service Manager (NOC
0631), as per the Ministerial Instructions (“Ministerial Instructions”,
“Skilled Worker Instructions”, pursuant to section 87.3 of the Act, Canada
Gazette, Vol. 142, No. 48). At the time, the applicant allegedly possessed
two full years of work experience as a Restaurant and Food Manager, having
worked as an Assistant Manager at a restaurant called Azzurro since
2006.
[3]
In
his application, the applicant described his main duties as:
-
Plan, organize,
control and evaluate operations of a restaurant;
-
Determine type of
services to be offered;
-
Set staff schedules;
-
Monitor staff
performance;
-
Resolve customer
complaints;
-
Control over health
and safety regulations;
-
Assisted with the
training and coaching of new staff members.
[4]
In
support of his application, the applicant provided a reference letter dated
August 14, 2009 from his employer at Azzurro, which explained that he
worked as a waiter in 2005 and became assistant manager in 2006. In this
letter, his employer describes the applicant’s duties as follow:
-
Plan, organize, control
and evaluate the operations of a restaurant;
-
Determine the type of
services to be offered;
-
Set staff work
schedules and monitor staff performance;
-
Resolve customer
complaints;
-
Control over health
and safety regulations;
-
Responsible for
balancing the till daily and making bank lodgments, assisted with the training
and coaching of new staff members, helped in menu development.
[5]
The applicant
also provided a notarized copy of his employment contract with the restaurant
and copies of the various certificates and diplomas he obtained at the London College of Economics & Sciences,
all in the field of tourism and hospitality management.
[6]
On
October 25, 2010, the applicant received a refusal letter from the officer
dated October 22, 2010. On December 22, 2010, the applicant filed the
present application for judicial review against the officer’s decision refusing
his application for permanent residence as a skilled worker.
* * * * * * *
*
[7]
The
reason for refusal is identified in the letter as there being insufficient
evidence of the applicant’s work experience in the listed occupation, thereby
failing to meet the requirements set out in the Ministerial Instructions:
.
. . the main duties that you listed do not indicate that you performed the
actions described in the lead statement for the occupation, as set out in the
occupational descriptions of the NOC. I am therefore not satisfied that you are
a Restaurant and Food Service Manager (0631).
Since
you did not provide satisfactory evidence that you have work experience in any
of the listed occupations, you do not meet the requirements of the Ministerial
Instructions and your application is not eligible for processing.
[8]
The
letter concludes by indicating that the applicant will be refunded his
processing fee and is invited to reapply.
[9]
In
the Computer Assisted Immigration Processing System (CAIPS) notes which were
communicated on January 5, 2011, it states that the listed duties in the applicant’s
application are almost an exact copy from the description of tasks in the NOC
for Restaurant and Food Service Manager: “The same information is in the JV
letter so it is not possible to determine that PA meets MI - not eligible for
processing.”
* * * * * * * *
[10]
The
applicant raises the following issues:
i.
Is the officer’s
decision unreasonable?
ii.
Did the officer
contravene his duty of procedural fairness in not providing sufficient reasons
in his decision?
iii.
Did the officer
breach his duty of procedural fairness in not granting the applicant an
interview, denying him the opportunity to address any credibility concerns the
officer may have had?
[11]
The
issue of costs raised by the applicant in his written submissions was abandoned
at the hearing before me.
[12]
The
applicable standard of review to the officer’s decision of ineligibility is
reasonableness, being a question of mixed facts and law (Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 [Dunsmuir]).
Essentially, a review of the officer’s assessment of the evidence must be done
according to a standard of reasonableness (Kuhathasan v. Canada (Minister of
Citizenship and Immigration), 2008 FC 457 at para 17 [Kuhathasan]). Therefore,
this Court must determine whether the officer’s decision falls within the
“range of possible, acceptable outcomes that are defensible in respect of the
facts and the law” (Dunsmuir at para 47).
[13]
However,
it is for the courts and not the officer to provide the legal answers to
questions of procedural fairness: such questions are reviewed on a standard of
correctness (Kuhathasan at para 18; C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539).
* * * * * * * *
1. Is the officer’s
decision unreasonable?
[14]
The
first error identified by the applicant in the officer’s decision is the lack
of credibility given to the applicant’s description of his main tasks in his
application for permanent residence: allegations made by the applicant are
presumed true, unless there are reasons to doubt them (Maldonado v. Minister
of Employment and Immigration, [1980] 2 F.C. 302 at 305). However, the respondent
rightly asserts that the officer did have reasons to doubt the applicant’s
description: it was a verbatim copy of the tasks listed in NOC 0631.
[15]
According
to Operational Bulletin 120 - June 15, 2009, Federal Skilled Worker (FSW)
Applications - Procedures for Visa Offices, descriptions of duties taken
verbatim from the NOC are to be regarded as self-serving. When presented with
such documents, visa officers are entitled to wonder whether they accurately
describe the applicant’s work experience. Where a document lacks sufficient
detail to permit its verification and ensure a credible description, the
applicant will not have produced sufficient evidence to establish eligibility:
the visa officer must proceed to a final determination and if the evidence is
insufficient, a negative determination of eligibility should be rendered.
[16]
Therefore,
the officer was entitled to give less weight to the applicant’s description of
his work experience, being an almost exact replica of the NOC tasks.
Nonetheless, the applicant claims that the officer’s failure to consider the
other documentary evidence he provided constitutes a reviewable error.
[17]
The
case at hand is in the context of an eligibility determination by a visa
officer: it is not the same type of decision as those where an obligation has
been imposed on administrative agencies to mention specific evidence in their
decisions. Moreover, if the applicant wishes to impose these same obligations
on visa officers, it must then not be forgotten that a mere statement by an
administrative authority that it considered the evidence in making its decision
usually suffices to meet its obligation: the visa officer’s statement that the applicant
“did not provide satisfactory evidence” would fulfill his would-be obligation (Cepeda-Gutierrez
et al. v. Canada (Minister of Citizenship and Immigration) (1998), 157
F.T.R. 35).
[18]
The respondent
is right to emphasize that we are in the context of an eligibility
determination where visa officers are told to assess an applicant’s application
as-is and proceed directly to a final determination of eligibility in a timely
fashion (see Operational Bulletin 120, above). Therefore, the officer’s
decision is consistent with these guidelines. The applicant has not established
that the officer erred in considering the evidence before him.
[19]
The applicant
further claims the officer’s decision is unreasonable because, in his view, the
reason provided in the CAIPS notes is inconsistent with the written reason in
his letter of refusal. While the letter states that the “duties that you listed
do not indicate that you performed the actions described in the lead statement
for the occupation”, the CAIPS notes specify that the duties listed are
actually an exact copy of the lead statement. The refusal letter however did go
on to state that there was insufficient evidence that the applicant had the
necessary work experience. When the letter is read in its entirety, it does not
contradict what was said in the CAIPS notes: since the applicant’s description
and his reference letter were a copy of the NOC duties, there was insufficient
evidence to establish that he possessed the necessary experience.
[20]
Since
the applicant’s application was a virtual copy of the NOC tasks, as was his
reference letter, the officer could not properly evaluate whether the applicant
had the requisite work experience as a Restaurant and Food Manager, and
consequently declared the applicant ineligible, in conformity with the
guidelines (Operational Bulletin 120, above).
[21]
Therefore,
the officer’s decision was not unreasonable. Although this Court may have come
to a different conclusion, the officer’s decision falls within the possible,
acceptable outcomes that are defensible in facts and in law (Dunsmuir).
2. Did the officer contravene his
duty of procedural fairness in not providing sufficient reasons in his
decision?
[22]
The officer’s
reasons are sufficient so long as he gave an explanation to the applicant as to
why he did not qualify as a Restaurant and Food Manager (Adu v. Minister of
Citizenship and Immigration, 2005 FC 565 at para 14). While the officer’s
reasons may be brief (Ali v. Minister of Citizenship and Immigration,
2007 FC 283), they are clear and enable the applicant to understand why his
application was rejected (VIA Rail Canada Inc. v. National Transportation
Agency (C.A.), [2001] 2 F.C. 25): his reasons are adequate because they
fulfill their function of allowing the applicant to know why he was refused (Nodijeh
v. Minister of Citizenship and Immigration, 2007 FC 1217 at para 4 [Nodijeh]).
[23]
Moreover,
it has been confirmed by the Federal Court of Appeal in Minister of
Citizenship and Immigration v. Patel, 2002 FCA 55 at para 10, that the
content of the duty of fairness owed by a visa officer is at the lower end of
the spectrum (see also Nodijeh at para 3; Dash v. Minister of
Citizenship and Immigration, 2010 FC 1255 at para 27 [Dash]; Fargoodarzi
v. Minister of Citizenship and Immigration, 2008 FC 90 at para 12 [Fargoodarzi]).
Specifically, in the context of the decision of a visa officer on an
application for permanent residence, the duty of fairness is quite low and
easily met, “due to an absence of a legal right to permanent residence, the
fact that the burden is on the applicant to establish [his] eligibility, the
less serious the impact on the applicant that the decision typically has,
compared with the removal of a benefit and the public interest in containing
administrative costs” (Fargoodarzi at para 12). The applicant is not
entitled to anything more than the visa officer mentioning the evidence on
which his decision was based (Dash at para 29).
[24]
The officer
considered the documents submitted by the applicant with his application, most
notably his application form and the reference letter, and concluded that there
was insufficient evidence to establish that he possessed the necessary work
experience. He was then declared ineligible and reimbursed his application
fees, but invited to reapply. Hence, the applicant knows why his application
was denied and even what to correct if he chooses to reapply: the officer’s
reasons are sufficient and there was no breach of procedural fairness on his
part, in this respect.
3. Did the officer breach his duty
of procedural fairness in not granting the applicant an interview, denying him
the opportunity to address any credibility concerns the officer may have had?
[25]
Alternatively,
the applicant claims that even if the officer’s reasons are sufficient, the
latter breached his duty of fairness in not conducting an interview, denying
the applicant the right to respond to the officer’s concerns as to the veracity
of the application, which is the reason his application was rejected. As
defined by the applicant, the officer’s duty of fairness required the applicant
be given the opportunity to respond to the officer’s concerns (Olorunshola v.
Minister of Citizenship and Immigration, 2007 FC 1056 [Olorunshola]).
Inversely, the respondent emphasizes the context of the decision: at this
eligibility stage, notification is not a requirement of procedural fairness and
the applicant was not entitled to a running tally or an interview to correct his
deficient application (Kaur v. Minister of Citizenship and Immigration,
2010 FC 442 [Kaur]).
[26]
In Kaur,
procedural fairness did not require the visa officer to notify the applicant of
the inadequacies in the materials she had provided: the onus is on an applicant
to submit sufficient evidence in support of his application (Kaur at
para 9). Therefore, in such cases, the applicant is not entitled to an
interview to remedy his own shortcomings (Kaur at para 9). Moreover,
where the visa officer’s concerns arise directly from the requirements of the
legislation or regulations, he is under no duty to notify the applicant (Kaur
at para 11; Rukmangathan v. Minister of Citizenship and Immigration,
2004 FC 284 at para 23). Relevant work experience is a concern that arises from
the regulations: a visa officer is under no duty to mention his concerns as to
the applicant’s work experience (Kaur at para 12). Ultimately, the visa
officer has no obligation to make inquiries where the applicant’s application
is ambiguous: “there is no entitlement to an interview if the application is
ambiguous or supporting material is not included” (Kaur at para 10; Sharma
v. Minister of Citizenship and Immigration, 2009 FC 786 at para 8 [Sharma];
Lam v. Canada (Minister of Citizenship and Immigration) (1998), 152
F.T.R. 316 at para 4). To hold otherwise would impose on visa officers an
obligation to give advance notice of a negative finding of eligibility (Sharma
at para 8).
[27]
In
the case at hand, the officer did not have the obligation to hold an interview
or to inform the applicant of his concerns with regards to the duplication of
the NOC listed duties, much like in Kaur. In the words of Justice Danièle
Tremblay-Lamer at paragraph 14:
.
. . It did not help that the Applicant’s own description of her duties appeared
to be copied from the National Occupational Classification. Thus, it was open
to the visa officer, on the basis of the scant evidence before him, to find
that the Applicant had not established that she had sufficient work experience
in her stated occupation, and to reject her application on that basis.
[28]
Therefore,
the officer did not breach his duty of procedural fairness.
* * * * * * * *
[29]
For the above-mentioned
reasons, the present application for judicial review is dismissed.
[30]
I
agree with counsel for the parties that this is not a matter for certification.
JUDGMENT
The application for judicial
review is dismissed.
“Yvon
Pinard”
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