Date: 20080725
Docket: IMM-3111-07
Citation: 2008
FC 911
Ottawa, Ontario,
July
25, 2008
PRESENT: The Honourable Madam Justice Simpson
BETWEEN:
ARVINDER
KAUR GILL
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
On
August 14, 2001, the Applicant applied for permanent residence (the
Application) as a skilled worker based on her qualifications as an accountant
(NOC 1111.2) and as a computer programmer (NOC 2163).
[2]
On
May 30, 2007, the Applicant was interviewed by a Visa Officer (the
Officer) in New
Delhi, India and
in a letter dated May 31, 2007, the Officer denied the Application (the
Decision). This application is for judicial review of that Decision.
THE ISSUES
Issue 1 Was
the Evidence Overlooked?
[3]
The
Applicant says and the Respondent acknowledges that the Officer failed to
consider a letter from a firm of Chartered Accountants (the Accounting Firm)
dated June 29, 2001 which showed that she had been employed as an
accountant for one year after she completed her education (the Letter).
[4]
The
Respondent argues that the Officer’s failure to consider the Letter is
immaterial. In his affidavit of June 5, 2008, the Officer notes that the
Letter does not include a description of the Applicant’s duties and does not
indicate that the Applicant met the employment requirements for accountants
found in the National Occupational Classification (NOC) 1111.2. The first such
requirement reads as follows:
Chartered accountants require a
university degree
and
completion of a training program approved
by the institute of Chartered Accountants and several years of
on-the-job training
and
accreditation by the Institute of Chartered
Accountants.
…
[5]
There is
no issue that, although the Applicant holds a Bachelor and Masters degrees in
Commerce, she has had no training and is not accredited as required by the NOC.
For this reason, the Respondent says that the case should not be referred back
for reconsideration because the outcome will be the same. The Respondent relied
on the decision of the Federal Court of Appeal in Cartier v. Canada (Attorney General), [2002] F.C.J. No. 1386 at
paragraph 31 where the Court said:
One of the reasons which may lead a judge
not to grant the relief sought even when the decision on review is reviewable
is the futility of reconsidering the said decision. In Mobil Oil Canada v. Canada—Newfoundland Offshore Petroleum Board,
[1994] 1 S.C.R. 202, at 228, Iacobucci J. for the Court cited with approval
this passage from Prof. Wade, Administrative Law (6th ed. 1988), at
p. 535:
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.
At 229, Iaccobucci J. explained that this
factor of hopelessness was “exception [in] character”.
[6]
In my
view, because the mandatory requirements of the NOC have not been met, the case
is clearly hopeless and should not be reconsidered based on this issue.
Issue 2 Procedural
Fairness
[7]
The CAIPS
notes show that the Officer had concerns about the validity of a letter dated
April 29, 2007 from her employer JPR Logistics of India (the JPR Letter).
The Officer noted that the telephone number on the stationary was described as
a cell number and that, although the JPR Letter was signed by the proprietor,
his name and title were not typed. The Officer also observed that JPR had 25
employees and that it was not registered. Notwithstanding these observations,
the Officer questioned the Applicant at length about her employment as an
accountant at JPR and about the duties described in the JPR Letter.
[8]
The
Officer concluded that she was not satisfied that the Applicant had performed
most of the duties of NOC 1111. These facts defeat the Applicant’s suggestion
that, once the Officer doubted the JPR Letter, she failed to complete a
thorough assessment of the Application.
[9]
The second
breach of fairness allegedly occurred at the end of the interview. In paragraph
7 of her affidavit of August 28, 2007, the Applicant lists documents which
were submitted to the Visa Officer. Seven are documents in support of her
application. However, the last document is entitled “Questions by the Visa
Officer and my answers.” It is attached as Exhibit I and lists twenty-two
questions and answers followed by a conclusion. It reads:
Conclusion: - O.K Arvinder I am giving
your passport back as all your certificate are O.K Your English is good but only
I want to verify this JPR. I am keeping your working experience (original
certificate) of JPR.
[10]
The
Applicant therefore says that the Officer undertook to verify the status of JPR
and reached the Decision without doing so in breach of the duty of fairness.
The difficulty with Exhibit I is that the Applicant’s affidavit says nothing
about when and by whom it was prepared. Further, it is obviously misdescribed.
It cannot have been submitted to the Visa Office along with the other documents
because it was clearly created after the Applicant’s interview with the
Officer.
[11]
In
contrast, the Officer’s affidavit of June 5, 2008, says that she wrote her
computerized notes on the day of the Applicant’s interview. They conclude with
the following statement:
…
I am satisfied that the points and units
awarded under either Act accurately reflect the applicant’s ability to
establish economically in Canada.
Informed the PA that since he had failed
to meet the minimum selection criteria under both the Acts, his application was
refused and that a refusal letter would be sent to him by mail.
Asked the PA if there was anything he
wished to add to the interview, PA stated there was not.
Passports and original documents returned
to PA at interview.
…
[12]
I have
concluded that the Officer’s CAIPS notes are the more reliable evidence about
the end of the interview and that the Officer did not undertake to further
investigate JPR to “verify” its status.
Issue 3 The
Occupation of the Bookkeeper
[13]
The
Applicant says that she should have been assessed as a bookkeeper even though
in her Application she only asked to be assessed as an accountant and as a
computer programmer. Bookkeeper appears in the NOC under the heading “Similar
Occupations Classified Elsewhere”.
[14]
In Moksud v. Canada (Minister of Citizenship and
Immigration), [2001] F.C.J. No. 73, Mr. Justice Rouleau dealt with a case
in which an application for permanent residence as a Software Engineer (NOC 2147.2)
was denied. At paragraph 17, Justice Rouleau began by restating the principle
that a Visa Officer’s duty is to assess only the applicant’s requested
occupation and not alternative occupations which are not mentioned in an
application. As well, at paragraph 20, he acknowledged that Visa Officers have
no obligation to advance applicants’ positions.
[15]
However, the issue in this case, was whether two occupations described
in NOC 2147.2 as “classified elsewhere” should have been assessed even though
not mentioned in the applicant’s application. Those occupations were Computer
Programmer (NOC 2163) and Computer Systems Analyst (NOC 2162).
[16]
Justice Rouleau held that those positions should have been considered
but repeatedly confined his conclusion to the peculiar circumstances of the
case in which:
(i)
no interview was held
(ii)
the Visa Officer unilaterally decided to assess the applicant for an
alternative position but then chose an unreasonable alternative which bore no
relationship to the applicant’s areas of study.
[17]
In my view, that decision is confined to its unusual facts and contrary
to the Applicant’s submission, it does not stand for the proposition that Visa
Officers have a duty to consider occupations which an NOC describes as “Similar
Occupations Classified Elsewhere”.
[18]
The
Applicant also relies on the decision of Madam Justice Gauthier in Jagjit
Singh Lehal v. Minister of Citizenship and Immigration, 2003 FC 1515 and
says that, in that case, she held that there is a duty to assess occupations
described in the NOC as “Similar Occupations Classified Elsewhere”. However, I
have not been persuaded that Justice Gauthier made any such ruling. In my view,
she was dealing only with an allegation that a visa officer had misconstrued
NOC 2241.2.
ORDER
UPON reading the material filed
and hearing the submissions of counsel for both parties in Toronto on June 11, 2008
THIS COURT ORDERS that, for the reasons given above,
this application is hereby dismissed.
“Sandra
J. Simpson”
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