Date:
20130517
Docket:
IMM-7130-12
Citation:
2013 FC 515
Ottawa, Ontario,
May 17, 2013
PRESENT: The
Honourable Mr. Justice Phelan
BETWEEN:
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REZA GHANNADI
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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
I. INTRODUCTION
[1]
This
judicial review concerns a decision of a Visa Officer [Officer] denying the
Applicant’s application for permanent residence under the Federal Skilled
Worker Class as a Construction Manager.
II. BACKGROUND
[2]
The
Applicant is a citizen of Iran who applied for a visa based on his experience
as a construction manager.
[3]
The
visa application included the Applicant’s curriculum vitae, a letter from an
earlier employer directed to his work as a marine structure designer and a
letter from his current employer, Chausse Construction Co., which listed the
duties performed since his employment in March 2006.
[4]
The
Officer denied the application on the basis of insufficient evidence that the
Applicant had performed the occupations specified in the National Occupation
Classification [NOC] and Ministerial Instructions.
[5]
The
only reason for the Officer’s conclusion that the Applicant had insufficient
evidence appears to be that the employer’s letter closely paraphrased the
occupational descriptions of the NOC, thus diminishing its credibility. In the
Officer’s Notes he describes the employer’s letter as “self-serving and was
prepared solely for the purposes of this application”.
[6]
The
Applicant raises two issues: the reasonableness of the Officer’s conclusion and
breach of procedural fairness in not permitting the Applicant to address the
Officer’s concerns.
III. ANALYSIS
[7]
It
is by now trite law that the Officer’s conclusions are subject to the
reasonableness standard of review (see Kamchibekov v Canada (Minister of Citizenship and Immigration), 2011 FC 1411, 210 ACWS (3d) 222) and
procedural fairness is subject to correctness.
[8]
With
respect to the Officer’s assessment of the visa application, the employer’s
letter from Chaussee Construction is the sole basis for his negative conclusion
on the grounds that it closely paralleled the NOC job description.
[9]
Firstly,
a fair review of that employer’s letter does not disclose the type of mindless
copying of the NOC description which gives some basis for undermining the
weight to be given to that evidence. The letter does not list all of the
functions in the NOC description and it separates out what functions were
performed in respect of two key projects. Those functions were not identical
with each project. This was an unfair and unreasonable characterization.
[10]
Secondly,
as Justice Heneghan held in Siddiqui v Canada (Minister of Citizenship and
Immigration) (January 26, 2011), Toronto IMM-2327-10 (FC), the use of
language in reference letters similar to job descriptions in the NOC Code “is
not, per se, grounds for dismissing those reference letters”.
[11]
There
is no reference to the CV and the job performance there or to other evidence
which was consistent with the Applicant’s description of his work experience.
[12]
It
was unreasonable to reject the employer’s letter. The Officer did not just give
it less weight, he totally rejected that evidence as not credible. It is hardly
surprising that employer’s letters would closely mirror the NOC; after all, it
is the information that the government says is relevant and an exercise in use
of a thesaurus to find synonyms is not likely to provide any better evidence.
[13]
The
Officer also discounted the employer’s letter because it was prepared for the
sole purpose of the Applicant’s application. It is difficult to see what other
reason an employer would have to create such a letter. The comment is
irrelevant and prejudicial.
[14]
Under
the circumstances of this case, the Officer’s conclusion was unreasonable.
[15]
As
to the breach of procedural fairness, the Officer used the term “credibility”
to undermine the employer’s letter. If, as it appears, the Officer concluded
that the letter was a fraud or misrepresentation, the Applicant would have been
entitled to an opportunity to address that concern (Ma v Canada (Minister of
Public Safety and Emergency Preparedness), 2009 FC 1042, 84 Imm LR (3d)
280, and Hassani v Canada (Minister of Citizenship and Immigration),
2006 FC 1283, [2007] 3 FCR 501). If what the Officer meant is that he gave it
less weight, it was an unreasonable basis to conclude lack of sufficiency of
evidence.
IV. CONCLUSION
[16]
Therefore,
this judicial review will be granted, the Visa Officer’s decision will be
quashed and the application referred to a different visa officer for a new
decision. There is no question for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
granted, the Visa Officer’s decision is quashed and the application is to be
referred to a different visa officer for a new decision.
“Michael L. Phelan”
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