Date: 20130328
Docket: IMM-3673-12
Citation: 2013 FC 317
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, March 28, 2013
PRESENT: The Honourable Mr. Justice
Roy
BETWEEN:
IHAB ABDEL BAR
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review brought under subsection 72(1) of
the Immigration and Refugee Protection Act, SC 2001, c 27 (the Act), of
a decision by a visa officer at the Canadian Embassy in Cairo to reject the
application for permanent residence of Ihab Abdel Bar (the applicant).
Facts
[2]
The
applicant is an Egyptian citizen. He is a dentist, and it is common ground that
he also has training in computer science.
[3]
On
December 9, 2009, he filed an application for permanent residence as a
skilled worker. This application was to be considered in relation to the
occupation “Computer and Information Systems Manager”, identification number
0213 of the National Occupational Classification and the occupation at issue in
this case [NOC 0213].
[4]
In
support of his application, the applicant provided two letters from an Egyptian-government-sponsored
organization called CULTNAT (Centre for Documentation of Cultural and Natural
Heritage). These two letters were included in the initial application. They
constituted the documentary evidence provided to allow a determination of
whether the applicant’s qualifications satisfied the NOC 0213 criteria.
[5]
The
applicant’s permanent residence application was processed at the Federal
Skilled Worker Centralized Intake Office in Sydney, Nova Scotia. A letter dated
February 10, 2010, informed the applicant that his application for
permanent residence would be processed by the Canadian Embassy in Cairo.
[6]
The
decision being challenged by the applicant was rendered on March 6, 2012.
The visa officer rejected the permanent residence application in the following
terms:
Although the NOC code corresponds to the occupation specified in the
Ministerial Instructions, you did not provide satisfactory evidence 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 Computer & Information System Manager NOC 0213.
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.
[7]
In
his notes, which are included in the record, the officer acknowledged that the
applicant had worked for CULTNAT twice. As mentioned above, two letters were
provided in support of the application. The first letter covered the period
from October 2003 to October 2005 and contained specific
details about the projects in which the applicant had been involved. However,
the officer noted that the second letter, covering the period from
August 2008 to September 2009, contained only vague generalizations
regarding the tasks performed by the applicant. The paragraph to which the
applicant is objecting reads as follows:
PI is a graduate dentist who has had some extra education in it (sic)
field. He has worked on two occasions for CULTNAT - a government sponsored
organisation which is a centre charged with the documentation of the cultural
and natural heritage. It appears to be a project based entity with ongoing
documentation of specialised topics associated with Egypt’s past. PI has worked
for them on two occasions. The first occasion from 2003 - 2005 the description
of his work is clear and precise – giving details of the projects he worked on.
The second letter (written by the same person) covers August 2008 - September
2009. This letter notes that he worked at “managerial level” with vague
generalisations as to work content. It appears that the letter, for work just
over a year, may have been written to satisfy our requirements.
Applicant’s submissions
[8]
The
applicant submits that his qualifications were amply demonstrated. His counsel
argues that the visa officer botched the decision, which she characterizes as
incomprehensible. What could he possibly have meant, she asks, by the words, “may
have been written to satisfy our requirements”? Relying on Dunsmuir v New
Brunswick, [2008] 1 S.C.R. 190 [Dunsmuir], she submits that the
decision rendered is unintelligible. The applicant provided evidence of his
professional qualifications, and the two letters sent in December 2009
should have sufficed. If the visa officer had doubts about the authenticity of
either of these letters, he should have asked the applicant to provide him with
additional explanations, which could then have been sought. Therefore, he
violated his duties relating to natural justice.
[9]
During
the hearing, the applicant’s position revolved around two distinct issues that
his counsel submits to the Court. First, she argues that her client’s
application was sufficient and that the visa officer should have selected him
as a permanent resident. She also argues that the rules of natural justice have
been breached if the visa officer believed that the second letter had been
written to “satisfy our requirements”.
Respondent’s submissions
[10] The respondent very helpfully
set out the legal framework applicable to such cases. Section 11 of the
Act establishes the principle that a foreign national wishing to come to Canada
must “apply to an officer for a visa or for any other document required by the
regulations”. Applicants such as the one in this case apply under the category
of economic immigration, which means they have the ability to become
economically established in Canada.
[11] Section 87.3 of the
Act applies here, as it enables the Minister to give instructions with respect
to the processing of applications and requests. Subsection 87.3(2) reads
as follows:
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(2) The
processing of applications and requests is to be conducted in a manner that,
in the opinion of the Minister, will best support the attainment of the
immigration goals established by the Government of Canada.
|
(2) Le
traitement des demandes se fait de la manière qui, selon le ministre, est la
plus susceptible d’aider l’atteinte des objectifs fixés pour l’immigration
par le gouvernement fédéral.
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[12] The instructions in
question took the form of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (the Regulations). It is worth reproducing section 75 of the
Regulations in full:
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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.
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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.
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[13] The respondent submits
that the visa officer’s decision was perfectly reasonable if one compares the
application submitted, particularly the two letters from CULTNAT, to the
criteria listed in NOC 0213. The first letter, which goes into much more
detail about the applicant’s activities, does not demonstrate a good fit with
the occupation of “Computer and Information Systems Manager”. In the second
letter, there has clearly been an attempt to stick more closely to the
criteria, but it is too vague to be of any real use. Ultimately, the visa
officer had no choice but to reject the application because it contained
insufficient information.
Analysis
[14] To the extent that the
applicant is challenging the visa officer’s assessment of his application, he
appears to be arguing that his application fully met the criteria. There is no
doubt that the standard of reasonableness applies to this type of argument (Dunsmuir,
above). The recent decision in Ismaili v Canada (Minister of Citizenship and
Immigration), 2012 FC 351, and all the authorities cited in that judgment
summarize the state of the law in this area.
[15] The standard of
correctness applies to the second argument, according to which the applicant
was entitled to have the decision maker provide him with the opportunity to
answer any questions arising from the decision maker’s doubts about the
authenticity of a document or the credibility of a witness or document. In Obeta
v Canada (Minister of Citizenship and Immigration), 2012 FC 1542 [Obeta],
Boivin J. presented the issue as follows:
[14] The issue of whether or not the Officer
should have brought his concerns to the attention of the applicant and offered
him an opportunity to address them is a question of procedural fairness, and is
reviewable on a standard of correctness. However, the Officer’s concerns
themselves, namely his assessment of the evidence and subsequent conclusion
that the application was ineligible for processing, are reviewable on the
standard of reasonableness.
[16] With respect to the
first issue, whether the visa officer acted unreasonably in rejecting the
application for permanent residence, I see nothing in the record that leads me
to find in the applicant’s favour. The onus was on the latter to demonstrate
that he met the criteria of NOC 0213. On its face, the first letter, which
the visa officer described as detailed, did not satisfy the management aspect
of NOC 0213.
[17] The standard of reasonableness
calls for considerable deference to the decision maker. The Court states at
paragraph 47 of Dunsmuir, above:
Reasonableness is a deferential standard
animated by the principle that underlies the development of the two previous
standards of reasonableness: certain questions that come before administrative
tribunals do not lend themselves to one specific, particular result. Instead,
they may give rise to a number of possible, reasonable conclusions. Tribunals
have a margin of appreciation within the range of acceptable and rational
solutions. A court conducting a review for reasonableness inquires into the
qualities that make a decision reasonable, referring both to the process of
articulating the reasons and to outcomes. In judicial review, reasonableness is
concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process. But it is also concerned
with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law.
[18] Similarly, in Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
[2011] 3 S.C.R. 708, the Supreme Court of Canada notes that reviewing courts do
not need to look for extensive reasons:
[16] Reasons may not include all the arguments,
statutory provisions, jurisprudence or other details the reviewing judge would
have preferred, but that does not impugn the validity of either the reasons or
the result under a reasonableness analysis. . . . In other words, if the
reasons allow the reviewing court to understand why the tribunal made its
decision and permit it to determine whether the conclusion is within the range
of acceptable outcomes, the Dunsmuir criteria are met.
[19] In my view, a review of
the visa officer’s notes reveals that he was dissatisfied with the adequacy of
the evidence in support of the application for permanent residence. He
concluded that NOC 0213, which in this case represents the standard to be
met, required more than what the applicant had provided. In light of the level
of deference required, this assessment fully satisfies the standard of
reasonableness.
[20] NOC 0213 describes
the main duties sought to meet the standard:
Computer and information systems managers perform some or all of the
following duties:
•
Plan, organize,
direct, control and evaluate the operations of information systems and
electronic data processing (EDP) departments and companies
•
Develop and implement
policies and procedures for electronic data processing and computer systems
development and operations
•
Meet with clients to
discuss system requirements, technical specifications, costs and timelines
•
Assemble and manage
teams of information systems personnel to design, develop, implement, operate and
administer computer and telecommunications software, networks and information
systems
•
Control the budget
and expenditures of the department, company or project
•
Recruit and supervise
computer analysts, engineers, programmers, technicians and other personnel and
oversee their professional development and training.
The emphasis is on the management of computer and
information systems. The first letter in support of the application described
the activities of someone who develops computer and information systems. It is
difficult to understand how a finding that this letter fails to satisfy the
requirements could be unreasonable.
[21] The second letter gave
the applicant a better chance of meeting the criteria, as it referred to
aspects of system management. However, the letter contains no basis on which
the decision maker could determine that the requirements had indeed been met. It
is nothing but a collection of vague statements.
[22] With respect, when the
visa officer writes, “[i]t appears that the letter, for work just over a year,
may have been written to satisfy our requirements”, he is simply noting that
the second letter merely reproduces some of the NOC 0213 requirements. He
therefore states that the second letter is insufficient. The second letter was
meant to corroborate the first. In fact, it was necessary because the first did
not suffice. However, to the extent that the second letter was necessary, it
had to contain sufficient information.
[23] It is not enough to
declare in an application for permanent residence that one satisfies the
requirements of the appropriate NOC, but that is exactly what the second letter
does in this case. It is not enough to call oneself a “manager”; one has to
demonstrate this to meet the NOC requirements. The applicant did provide enough
detail in the first letter. However, what was missing was the “management”
aspect, which the applicant attempted to rectify with the second letter. I
would therefore find that it was not unreasonable for the visa officer to
decide that the application contained insufficient information.
[24] Have the principles of
natural justice been violated in this case? The applicant attempted to
interpret some of the words used by the visa officer as expressing doubts
regarding the applicant’s credibility. I disagree. The decision maker in no way
questioned the credibility or authenticity of the documents and evidence
provided by the applicant. He merely commented on their insufficiency.
[25] When the words pointed
to by the applicant (“may have been written to satisfy our requirements”) are
read in context, the decision maker is explaining that the second letter was
written to satisfy the classification standards applicable in this case. Having
found that the letter contained only vague generalizations, the visa officer is
merely stating the obvious. He addresses neither the applicant’s credibility
nor the document’s authenticity. He simply notes that the letter contains
insufficient information.
[26] As this Court has held
on several occasions, there is no legal duty to speak with an applicant or let
him know how he might make his application compliant. The following recent
cases, inter alia, are relevant: Kamchikbekov v Canada (Minister of
Citizenship and Immigration), 2011 FC 1411, Anabtawi v Canada (Minister
of Citizenship and Immigration), 2012 FC 856, and Chadha v Canada
(Minister of Citizenship and Immigration), 2013 FC 105.
[27] It should be noted that
the onus is on applicants to provide the relevant documentation to demonstrate
that they meet the criteria of the particular category in which they are
applying for status in Canada (Shetty v Canada (Minister of Citizenship and Immigration),
2012 FC 1321).
[28] In Hassani v Canada (Minister
of Citizenship and Immigration), 2006 FC 1283, [2007] 3 FCR 501 [Hassani],
the Court wrote the following at paragraph 24:
. . . where a concern arises directly from the requirements
of the legislation or related regulations, a visa officer will not be under a
duty to provide an opportunity for the applicant to address his or her
concerns. Where however the issue is not one that arises in this context, such
a duty may arise. This is often the case where the credibility, accuracy or
genuine nature of information submitted by the applicant in support of their
application is the basis of the visa officer’s concern, as was the case in Rukmangathan,
and in John [John v. Canada (Minister of Citizenship and Immigration)
(2003), 2003 FCT 257, 26 Imm. L.R. (3d) 221 (F.C.T.D.)] and Cornea [Cornea
v. Canada (Minister of Citizenship and Immigration) (2003), 2003 FC 972, 30
Imm. L.R. (3d) 38] cited by the Court in Rukmangathan, above.
[29] In other words, the
rules of natural justice may require that additional questions be asked in
cases where the evidence would have been sufficient had it not been for doubts
regarding the credibility, accuracy or genuine nature of information submitted
by the applicant in support of his or her application. However, if the
application itself is insufficient, there is no duty to contact the applicant
to ask him or her to bolster the application. To borrow the words of Hassani,
above, where a concern arises directly from the requirements of the legislation
or related regulations, there is no duty to attempt to provide the applicant
with the possibility of addressing this concern. The applicant is responsible
for providing documentation that meets the requirements of the Canadian
legislation.
[30] Accordingly, the
application for judicial review is dismissed. It was reasonable for the visa
officer to find that the application was insufficient; the visa officer never
raised any doubts as to the accuracy, genuine nature or credibility of the
information provided. He simply noted that repeating the NOC requirements, with
nothing further, did not satisfy the requirements. Therefore, there is no issue
as to whether he respected the rules of natural justice.
[31] I agree with counsel for
the parties that no question for certification arises pursuant to
section 74 of the Act.
JUDGMENT
The application for judicial review of the
decision by a visa officer rendered on March 6, 2012, is dismissed.
“Yvan Roy”
Certified true translation
Francie Gow, BCL, LLB
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