Date: 20081104
Docket: IMM-322-08
Citation: 2008 FC 1226
Ottawa, Ontario, November 4,
2008
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
LIUDMILA
SKLYAR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
judicial review is in respect of a decision by an immigration officer denying
Ms. Sklyar’s application for permanent residence as a skilled worker pursuant
to section 75 of the Immigration and Refugee Protection Regulations, S.O.R./2002-227
(Regulations). The issues in this judicial review include both the
reasonableness of the decision as well as the natural justice and fairness of
the procedures. For the reasons outlined, the Respondent’s decision must be
quashed and the judicial review is granted.
II. FACTS
[2]
As
indicated above, the Applicant made an application under section 75 of the Regulations,
the pertinent provisions of which are as follows:
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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.
(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.
(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.
[Emphasis added]
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75. (1) Pour l’application du paragraphe 12(2) de la Loi, la
catégorie des travailleurs qualifiés (fédéral) est une catégorie
réglementaire de personnes qui peuvent devenir résidents permanents du fait
de leur capacité à réussir leur établissement économique au Canada, qui sont
des travailleurs qualifiés et qui cherchent à s’établir dans une province
autre que le Québec.
(2) Est un travailleur qualifié l’étranger qui satisfait
aux exigences suivantes :
a) il a
accumulé au moins une année continue d’expérience de travail à temps plein
au sens du paragraphe 80(7), ou l’équivalent s’il travaille à temps partiel de
façon continue, au cours des dix années qui ont précédé la date de
présentation de la demande de visa de résident permanent, dans au moins
une des professions appartenant aux genre de compétence 0 Gestion ou
niveaux de compétences A ou B de la matrice de la Classification nationale
des professions — exception faite des professions d’accès limité;
b) pendant
cette période d’emploi, il a accompli l’ensemble des tâches figurant dans
l’énoncé principal établi pour la profession dans les descriptions des professions
de cette classification;
c) pendant
cette période d’emploi, il a exercé une partie appréciable des fonctions
principales de la profession figurant dans les descriptions des professions
de cette classification, notamment toutes les fonctions essentielles.
(3) Si l’étranger ne satisfait pas aux exigences
prévues au paragraphe (2), l’agent met fin à l’examen de la demande de visa
de résident permanent et la refuse.
[Non souligné dans
l’original]
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Subsection 80(7) of the Regulations
specifies that full-time employment for purposes of the above is considered to
be at least 37.5 hours per week.
[3]
There
is some confusion in the Record as to whether the Applicant applied under three
or under five different job categories. The parties seem to have accepted that
the proper number is five and, for purposes of this judicial review, the Court
will accept that conclusion.
[4]
The
categories of occupation set forth in an affidavit filed by the responsible
immigration officer (Officer) were Economist, Financial Analyst, Economic
Development Officer, Economic Analyst and Other Financial Officers.
[5]
In
October 2007, the Officer informed the Applicant that her application was
denied because the Officer was not satisfied that the Applicant had provided
sufficient evidence to establish that she had had at least one year of relevant,
continuous, full-time experience. The letter is extremely brief in respect of
the reasons for the decision at issue.
[6]
In
addition to the October 2007 letter, the CAIPS notes show that a similar
conclusion with respect to the absence of evidence of continuous, full-time
experience was reached on October 5, 2006. Subsequently in May 2007 a request
was made to the Applicant for updated employment information and for a letter
of reference. The CAIPS notes also include a notation of October 9, 2007 that
the Applicant’s “offshore experience cannot be confirmed is questionable” [sic].
[7]
The
Applicant filed for leave for judicial review and raised as one of the central
issues the failure of the Officer, as evidenced by the decision letter and
CAIPS notes, to consider all five categories of occupation which the Applicant
had listed. In response, the Officer filed an affidavit in which she attested
that she had considered the submitted materials, had noted the five categories
the Applicant allegedly applied for, and discussed in detail the Applicant’s
qualifications regarding only one occupation – that of Economist.
III. LEGAL
ANALYSIS
[8]
In
the post-Dunsmuir era (Dunsmuir v. New Brunswick, 2008 SCC
9), the appropriate standard of review is reasonableness. However, in
considering previous analysis of standard of review in this Court, there is
authority for a proposition that a decision in respect of the federal skilled
worker class is one which is deserving of a high degree of deference (Oladipo
v. Canada (Minister of Citizenship and Immigration), 2008 FC 366). There is
a considerable degree of experience and expertise involved in this
consideration. It is one for which deference is owed and therefore the range of
reasonable outcomes which the Officer could reach is broad.
[9]
Having
said this, there is an important issue of procedural fairness raised in this
matter for which the standard of review is correctness.
IV. ASSESSMENT
OF OCCUPATIONS
[10]
The
issue raised is whether the Officer’s assessment of the Applicant’s work
experience was reasonable. In this regard, the Respondent attempted to buttress
the decision letter and CAIPS notes with an affidavit attesting to
consideration of five occupational categories.
[11]
While
there may be instances where the reasons for the decision are properly
contained in not only the decision letter and the CAIPS notes but also in an
affidavit (see Hayama v. Canada (Minister of Citizenship and Immigration),
2003 FC 1305), the Court is concerned when the evidence submitted post-filing
of an application for judicial review attempts to fill in gaps in the record of
decision on the very points in issue and does so by adding major elements to
the Record. The attempt to supplement the Record must be approached with
caution when attempted by either an applicant or a respondent. If admissible,
the Court must assess its weight. In this case, greater weight is given to the
pre-application record than to the affidavit.
[12]
A
central issue in this case was whether the Officer had in fact considered all
five occupational categories. It is central because there is a positive
obligation on the Officer to assess an applicant’s qualifications under all the
occupational categories indicated by an applicant (Hajariwala v. Canada
(Minister of Employment and Immigration), [1989] 2 F.C. 79 (F.C.T.D.)). It
is evident from the Record that the Officer focused virtually all of her
attention on the occupation of Economist.
[13]
In
argument before this Court, the Respondent’s counsel outlined a far better
assessment of the merits of each of these categories than appears anywhere in
the Record. The Record suggests that the Officer based her conclusion with
respect to the Economist occupation largely on the fact that the employer’s
letter of reference, which outlined the tasks actually performed, did not
mirror the National Occupational Classification code for Economist. However,
there is no indication that the Officer did a detailed analysis or balancing of
the evidence of the tasks performed to determine into which of the other four
occupational classifications the Applicant may have fallen.
[14]
It
is my conclusion that the Officer failed to properly assess, or to assess at
all, the other occupations relied upon by the Applicant. For that reason alone,
this judicial review should be granted.
[15]
The
Applicant also raised, as a matter of procedural fairness, the absence of any
notice of the Officer’s concern about the Applicant’s work experience. It is
well established law that where a visa officer’s concern relates to the
requirements set out in the legislation, the officer is under no obligation to
apprise an applicant of those concerns (Parmar v. Canada (Minister of
Citizenship and Immigration) (1997), 139 F.T.R. 203 (T.D.); Ramos-Frances
v. Canada (Minister of Citizenship and Immigration), 2007 FC 142). However,
in this case, it was the Respondent’s position that the letter requesting the
Applicant to update her employment information and to file a letter of
reference was in fact notice to her of concerns with respect to the evidence
both as to experience and occupational classifications.
[16]
I
am unable to find how this Applicant or any applicant would have been put on
notice of deficiencies as to experience and occupational classification by
receiving a letter simply requesting updated information. The letter was
sufficiently vague to have misled the Applicant and the Applicant’s counsel,
and would have, in my view, misled any other reasonable person. In this
instance, the Officer having elected to give notice, that notice was
insufficient.
V. CONCLUSION
[17]
For
all these reasons, this judicial review will be granted, the decision of the
immigration officer quashed and the matter is to be referred back to another
officer for a new determination. There is no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is granted, the decision of the immigration
officer is quashed, and the matter is to be referred back to another officer for
a new determination.
“Michael
L. Phelan”
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