Date:
20130405
Docket:
IMM-4492-12
Citation:
2013 FC 343
Ottawa, Ontario,
April 5, 2013
PRESENT: The
Honourable Madam Justice Strickland
BETWEEN:
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EMAD AGEEB EKLADIOUS MANSOUR
ENGY FIKRY BOLES SALAMON
SANDY EMAD AGEEB EKLADIOUS
MANSOUR
JOLLY EMAD AGEEB EKLADIOUS
MANSOUR
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Applicants
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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] This is an application for
judicial review commenced pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA). It seeks
review of a decision made by a visa officer (Visa Officer) refusing an
application for permanent residence in Canada as a federal skilled worker made
pursuant to subsection 12(2) of the IRPA and section 75 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (IRP Regulations).
Facts
[2] The Applicant and his family,
the co-applicants, are Egyptian citizens. The Applicant holds a Bachelor’s
Degree in Civil Engineering and a Diploma in Metallic Structures Engineering,
both from Cairo University. He also completed an American Society of Civil
Engineering one year Construction Project Management - Certified Program
offered in Cairo.
[3] In October 2010, the
Applicant applied for permanent residence in Canada under the skilled worker
category as a Construction Manager, National Occupational Classification Code:
0711 (NOC 0711). On December 13, 2011, the Canadian Embassy in Cairo requested updated information which the Applicant submitted on December 27, 2011. On
February 29, 2012, the Applicant received a letter from the Visa Officer
refusing his application on the basis that he did not provide satisfactory
evidence that he had performed the actions described in the lead statement for
the subject occupation as set out in NOC 0711 (Decision).
[4] Upon review of the
Decision, the Applicant formed the opinion that the Visa Officer did not
consider an employment letter that he had included in his application. He
submits that he resubmitted the letter on April 24, 2012 and, having received
no response, did so again on May 9, 2012. As he still received no
response, he commenced this application for judicial review.
Decision under
Review
[5] The Decision states that
the Visa Officer had completed his assessment of the Applicant’s application
for permanent residence in Canada as a federal skilled worker and determined
that the Applicant is not eligible for processing in the category of NOC 0711, Construction
Manager. The Visa Officer states that the Applicant did not provide
satisfactory evidence that he had performed the actions described in the lead
statement for the occupation as set out in the occupational descriptions. He
was therefore not satisfied that the Applicant is a Construction Manager
NOC 0711.
[6] Further, as the
Applicant did not provide satisfactory evidence that he had the necessary work
experience, he did not meet the requirements of the Ministerial Instructions.
These were published in the Canada Gazette on November 28, 2008 and specify
that only certain applicants, including those who have work experience in
certain listed occupations, are eligible to be processed in the federal skilled
worker class.
[7] Computer Assisted Immigration
Processing System notes (CAIPS Notes) accompany the Decision. The CAIPS Notes
original file assessment entry on August 9, 2010 by the service delivery agent
states the following:
Assessed Eligible NOC 0711. Duties performed by PA
correspond to Lead Statement and/or Main Duties for this NOC.
PA has a minimum of one year of work experience
within the past 10 years in eligible NOC Code 0711.
PA is therefore recommended to the visa office for a
final determination of eligibility for processing
Letter emailed to address(es) above requesting PA to
submit full application to CAIRO within 120 days.
This was followed by a February 27,
2012 entry, presumably by the Visa Officer:
PI IS A GRADUATE ENGINEER. ALL PROVIDED DOCUMENTAION
INDICATE THAT HE IS REGISTERED AND HAS WORKED AS AN ENGINEER. PI HAS NOT
PRESENTED ANY LETTERS FROM HIS EMPLOYERS TO SHOW THAT HE HAS WORKED AS A
CONSTRUCTION MANAGER.
I AM NOT SATISFIED THAT PI MEETS THE REQUIREMENTS OF
NOC 0711. ACCORDINGLY TO AVAILABLE INFORMATION, PI DOES NOT MEET REQUIREMENTS
OF NOC 0711 NO OTHER WORK EXPERIENCE OR OCCUPATIONS PRESENTED THAT COULD BE
CONSIDERED AS ELIGIBLE. THEREFORE PI IS INELIGIBLE FOR PROCESSING UNDER THIS
PROGRAM.
Issues
[8]
The
Applicant submits that there are two issues for consideration in the present
application, did the Visa Officer err when he concluded that the Applicant did
not meet the requirements of Construction Manager NOC 0711, and, did the Visa Officer
breach the duty of fairness by failing to provide the Applicant with an opportunity
to respond to the Visa Officer’s concerns?
[9] I would phrase the
issues as follows:
a)
Was
the Decision reasonable?
b)
Did
the Visa Officer breach the duty of fairness?
Standard of
Review
[10]
A
standard of review analysis need not be conducted in every instance if the
jurisprudence
already
establishes which standard is to apply (Dunsmuir v New Brunswick, 2008
SCC 9, [2008] 1 SCR 190 [Dunsmuir]. Apart from any question of law
or natural justice, when a decision is factual in nature and deference is owed
to the decision maker, the standard of review for decisions concerning permanent
residence under the federal skilled worker class is reasonableness (Tabanag
v Canada (Minister of Citizenship and Immigration), 2011 FC 1293 [Tabanag]
at paras 11-12).
[11]
Thus,
the first issue in this case is reviewed on a standard of reasonableness.
Reasonableness
is concerned with the
existence of justification, transparency and intelligibility, and with whether
the decision falls within a range of possible, acceptable outcomes (Dunsmuir,
above, at para 47; Brown v Canada (Minister of Citizenship and
Immigration), 2012 FC 1305 at para 16; Kaur Barm v Canada (Minister of Citizenship and Immigration), 2008 FC 893 at para 12).
[12] As breach of a duty of fairness is
an error in law, the
second issue is reviewable on the standard of correctness (Newfoundland and Labrador
Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62,
[2011] 3 S.C.R. 708 at para 22 [Newfoundland and
Labrador Nurses’ Union]).
Arguments of the
Parties
Applicant’s
Submissions
[13]
The
Applicant submits that the Visa Officer erred in finding that the Applicant
does not meet the requirements for Construction Manager NOC 0711. The
Applicant submitted documentation which confirms that he had worked as a
construction manager for seven years with Orascom Construction Industries
(Orascom). The Applicant submits that the Visa Officer either misunderstood or
ignored the letter from Orascom; either event being a reviewable error. The Applicant
submits that the Visa Officer’s reasons fail to explain the basis for his
conclusion that the Applicant did not meet the requirements and that the
Decision is unreasonable.
[14]
In
addition, the Applicant submits that the Visa Officer breached the duty of
fairness because he failed to provide the Applicant with an opportunity to
respond to the Visa Officer’s concern that he had not been employed as a
construction manager. The Applicant relies on Gedeon v Canada
(Minister of Citizenship and Immigration), 2004 FC 1245, for the
proposition that a visa officer commits a reviewable error when he or she does
not provide reasons for rejecting evidence of an applicant’s work experience
and does not provide an applicant with an opportunity to address those concerns.
Respondent’s
Submissions
[15]
In
its written submissions, the Respondent states that the Applicant failed to
discharge his onus to demonstrate that during the relevant period of employment
he performed the actions described in the lead statement for the occupation of
Construction Manager as set out in the occupational description for NOC 0711 (IRP
Regulations, above, subsection 75(2)(b)). As a result of this failure, the
Visa Officer is obliged to refuse the application without further assessment (IRP Regulations,
above, subsection 75(3)). The Respondent argues that the Applicant did not
provide sufficient evidence that he had performed the actions in the lead
statement on NOC 0711 and, in particular, did not provide any evidence to
demonstrate that he had worked as a construction manager.
[16]
The
Respondent also argued in its written submissions that it was reasonable for
the Visa Officer to only make a determination that the Applicant had not
performed the actions of this occupation pursuant to subsection 75(2)(b) of the
IRP Regulations. He did not make a determination under subsection 75(2)(c) of
the IRP Regulations regarding the main duties for this occupation which
the Applicant argues that he performed. Furthermore, visa officers do not have
a duty to contact an applicant to seek clarification when an applicant files
insufficient or ambiguous evidence (Lam v Canada (Minister of Citizenship
and Immigration), [1998] FCJ No 1239 at paras 3- 4 (TD); Kaur v
Canada, 2010 FC 442 at para 10-11 [Kaur]).
[17] However, when appearing before
me, the Respondent acknowledged that the certified tribunal record (CTR) did
contain a copy of the letter from Orascom as part of the Applicant’s
application seeking permanent residence status as a federal skilled worker.
This had been overlooked when the Respondent’s written submissions were
prepared. Accordingly, the Respondent made no submissions when appearing
before me.
Analysis
[18] The IRP Regulations state as follows regarding
skilled workers:
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Class
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.
Skilled workers
(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.
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Catégorie
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.
Qualité
(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.
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[19]
The
onus was on the Applicant to establish that he had performed the actions
described in the lead statement as set out in NOC 0711 and a substantial number
of the main duties of this occupation (Mihura Torres v Canada (Minister of
Citizenship and Immigration), 2011 FC 818 at para 37; Kaur, above,
at para 30).
[20]
The
lead statement, or job description, for NOC 0711 is found on the Human
Resources and Skills Development Canada website and it states the following:
0711 Construction
managers
Construction managers plan, organize, direct, control and
evaluate the activities of a construction company or a construction department
within a company, under the direction of a general manager or other senior
manager. They are employed by residential, commercial and industrial
construction companies and by construction departments of companies outside the
construction industry.
Example
Titles
commercial construction manager
construction manager
construction superintendent
general contractor
housing construction manager
industrial construction manager
pipeline construction manager
project manager, construction
residential construction manager
Main duties
Construction managers perform some or all of the
following duties:
•
Plan,
organize, direct, control and evaluate construction projects from start to
finish according to schedule, specifications and budget
•
Prepare
and submit construction project budget estimates
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Plan
and prepare construction schedules and milestones and monitor progress against
established schedules
•
Prepare
contracts and negotiate revisions, changes and additions to contractual
agreements with architects, consultants, clients, suppliers and subcontractors
•
Develop
and implement quality control programs
•
Represent
company on matters such as business services and union contracts negotiation
•
Prepare
progress reports and issue progress schedules to clients
•
Direct
the purchase of building materials and land acquisitions
•
Hire
and supervise the activities of subcontractors and subordinate staff.
[21]
It
should be noted that the Respondent originally argued that the Applicant did
not provide “any” evidence to demonstrate that he has worked as a Construction
Manager and referred to the CAIPS Notes entry which states that the Applicant
“has not presented any letters from his employers to show that he has worked as
a construction manager”.
[22]
On
an application for judicial review, the courts “should not substitute their own
reasons, but they may, if they find it necessary, look to the record for the
purpose of assessing the reasonableness of the outcome” (Newfoundland and Labrador Nurses’ Union,
above at
para 15).
[23]
Having
reviewed the record that was before the Visa Officer, it appears to me that
there was evidence that the Applicant was employed as a construction manager in
Egypt.
[24]
In
his visa application package, the Applicant provided a Certificate of
Experience and Recommendation from his employer of more than a decade, Orascom.
This letter indicates that the Applicant was employed as a full time civil
engineer from October 1, 1995 to December 31, 2002, and then as a construction
manager from January 1, 2003 to March 30, 2010.
[25]
The
letter includes his job description and I have underlined those areas that
overlap with the main duties of Construction Managers as set out in NOC 0711.
• Supervising
civil work at site such as surveying, earth work, levelling, and constructing
concrete buildings and foundations
• Erecting steel structures at site
• Adjusting and solving problems of
networks at site
• Designing and
preparing of shop drawing of steel structures using different codes
• Designing concrete structures
• Organizing, planning, and evaluating
construction projects
• Preparing construction schedules
• Representing the
company on business services and union contracts negotiation
• Preparing
contracts, changing orders, and negotiating revisions with consultants,
clients, and subcontractors
• Preparing progress reports
• Hiring and supervising activities of
subcontractors and staff
[26]
As
the foregoing indicates, there is a significant overlap between what the Applicant
did in his position as a construction manager and what is required of a
Construction Manager by NOC 0711.
[27]
While
the Visa Officer need not mention every piece of evidence in his Decision, the
Federal Court has stated that, “the more important the evidence that is not
mentioned specifically and analyzed in the agency's reasons, the more willing a
court may be to infer from the silence that the agency made an erroneous
finding of fact “without regard to the evidence”” Cepeda-Gutierrez v Canada,
[1998] 157 FTR 35 at para 17 citing Bains v Canada (Minister of Employment
and Immigration), [1993] 63 FTR 312.)
[28]
The
letter from the Applicant’s employer goes right to the heart of the matter. It
states that the Applicant worked as a civil engineer, then as a construction
manager from January 1, 2003 to March 30, 2010 and lists his duties in those
positions. Those duties clearly overlap with the Construction Manager NOC 0711
duties, yet the Visa Officer did not mention the letter in his reasons and
denied the application on the basis that the Applicant “did not provide
satisfactory evidence that [he] performed the actions described in the lead
statement for the occupation, as set out in the occupational descriptions of
the NOC.”
[29]
The
Respondent originally argued that this overlap pertains only to the main duties
and that the Visa Officer determined that the Applicant failed to establish
that he met the requirements of the lead statement of NOC 0711. The lead
statement is, in effect, a job description. It generally describes the duties
of construction managers.
[30]
I
have set out the lead statement below and have underlined the “actions” which
are common to the Applicant’s role as a construction manager as described in
the letter from Orascom:
Construction managers plan, organize,
direct, control and evaluate the activities of a construction
company or a construction department within a company, under the direction
of a general manager or other senior manager. They are employed by
residential, commercial and industrial construction companies and by
construction departments of companies outside the construction industry.
[31]
In
my view, the Respondent’s original position was one of form and not of
substance. The letter from Orascom Construction Industries clearly establishes
that the Applicant was employed by a construction company, as a construction
manager, and that his job description included planning, organizing,
controlling and directing the activities of that company. It addresses the
requirements of the lead statement of NOC 0711.
[32]
In
Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR
339 at para 72, the Supreme Court of Canada stated the following
while addressing a judicial review commenced pursuant to section 18.1 of the Federal
Courts Act, RSC, 1985, c F7:
[72] The language of s. 18.1(4)(d) makes clear
that findings of fact are to be reviewed on a highly deferential standard.
Courts are only to interfere with a decision based on erroneous findings of
fact where the federal board, commission or other tribunal’s factual finding
was ‘made in a perverse or capricious manner or without regard for the material
before it’. […]
[33]
In
this case, however, I am satisfied that the Visa Officer ignored or overlooked
critical evidence on the record before him, the Orascom letter, pertaining to
the Applicant’s employment as a construction manager. Accordingly, his finding
of fact as to the Applicant’s employment experience was made in a perverse or
capricious manner. The Decision was therefore, not justified, transparent and
intelligible, nor did it fall within the range of possible, acceptable
outcomes.
[34]
As
this finding alone is sufficient to allow the appeal, it is not necessary to
address the issue of the breach of the duty of fairness.
Conclusion
[35]
The
Application for judicial review is allowed and the matter is returned for
reconsideration by a different visa officer.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application for judicial review is
allowed and the matter is returned for reconsideration by a different visa
officer. No question of general importance for certification has been proposed
and none arises.
“Cecily Y. Strickland”
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