Date:
20130425
Docket:
IMM-4639-12
Citation:
2013 FC 431
Ottawa, Ontario,
April 25, 2013
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
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OLUDARE AYODELE
KOMOLAFE
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Applicant
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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]
The
applicant applied for permanent residence in Canada under the Federal Skilled
Worker (FSW) class on the basis of his stated experience under national
occupational classification code (NOC) 7372, driller and blaster. He has a
bachelor’s degree in geology and a certificate in blasting from the Ministry of
Mines and Steel Development in Nigeria. He is employed as a quarry supervisor
in Nigeria.
[2]
Subsection
75(2) of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (Regulations) describes a skilled worker as, inter alia,
a foreign national who has performed the tasks described in the lead statement
for the occupation as set out in the NOC occupational descriptions and
performed a substantial number of the main duties of the occupation, including
all “essential” duties.
[3]
A
Citizenship and Immigration Canada agent determined that the applicant did not
provide evidence that he satisfied this requirement and was not eligible for
further processing pursuant to subsection 75(3) of the Regulations.
[4]
The
decision is a form letter which states that the agent was not satisfied that
the applicant had performed the actions in the lead statement for the
occupation or a substantial number of the main duties. The agent subsequently
swore an affidavit for this judicial review stating that the applicant’s
evidence only demonstrated experience in two of the listed main duties.
[5]
Decision
makers may not supplement their reasons by way of an affidavit, but they may
provide an explanation for their notes made contemporaneous to the decision: Taleb
v Canada (Minister of Citizenship and Immigration), 2012 FC 384, paras
24-25.
[6]
In
this case, the agent has no contemporaneous notes which describe her reasoning
process. The affidavit was sworn on July 30, 2012, three months after the
decision, casting doubt as to its reliability. It necessarily goes beyond
explaining the agent’s notes, as there are none, and is tendered as reasons for
the decision. The affidavit is therefore inadmissible.
[7]
The
applicant’s employer provided a letter stating that, among other things, he:
(a) schedules, supervises and coordinates drilling operations, (b) maps the
pattern of holes and determines their size and spacing, (c) decides when to
suspend or continue drilling, (d) calculates the amount of explosives required,
(e) supervises subordinates in carrying out charging operations, (g) ensures
safety precautions are followed, and (h) connects the blasting circuit.
[8]
The
NOC occupational description states that, “Blasters in this group fill blast
holes with explosives and detonate explosives.” There are six main duties
listed, several of which could arguably correspond with the tasks described in
the applicant’s evidence, particularly (b) (e) (g) and (h) noted above. It is
not for this Court to determine whether the applicant has in fact performed the
actions described in the lead statement and a substantial number of the main
duties. The agent must do so, with some line of reasoning which provides a
basis for review. As Justice Richard Mosley found in 
Gulati
v Canada (Citizenship and Immigration), 2010 FC 451,
it is impossible to assess the reasonableness of the officer’s conclusions
without knowing which duties had not been performed.
[9]
The
decision provides no insight into the agent’s reasoning process. The agent
merely stated her conclusion, without explanation. It is entirely unclear why
the decision was reached.
[10]
Newfoundland and
Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62, [2011] 3 S.C.R. 708 does not save the decision. Newfoundland
Nurses ensures that the focus of judicial review remains on the outcome or
decision itself, and not the process by which that outcome was reached. Where
readily apparent, evidentiary lacunae may be filled in when supported by
the evidence, and logical inferences, implicit to the result but not expressly
drawn. A reviewing court looks to the record with a view to upholding the
decision.
[11]
Newfoundland
Nurses
is not an open invitation to the Court to provide reasons that were not given,
nor is it licence to guess what findings might have been made or to speculate
as to what the tribunal might have been thinking. This is particularly so
where the reasons are silent on a critical issue. It is ironic that Newfoundland
Nurses, a case which at its core is about deference and standard of review,
is urged as authority for the supervisory court to do the task that the
decision maker did not do, to supply the reasons that might have been given and
make findings of fact that were not made. This is to turn the jurisprudence on
its head. Newfoundland Nurses allows reviewing courts to connect the
dots on the page where the lines, and the direction they are headed, may be
readily drawn. Here, there were no dots on the page.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
granted. The
agent's decision is set aside, and the matter is referred back to Citizenship
and Immigration Canada for reconsideration by a different agent. There
is no question for certification.
"Donald J.
Rennie"
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