Date:
20130607
Docket:
IMM-6620-12
Citation:
2013 FC 618
Ottawa, Ontario,
June 7, 2013
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
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KHURRAM ZAHUR BUTT
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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]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision by a visa officer (the officer), dated May 10, 2012, wherein the
applicant’s application for permanent residence as a foreign skilled worker was
refused.
[2]
The applicant requests that the officer’s
decision be set aside and the application be referred back to the High Commission
of Canada in London for redetermination by a different officer.
Background
[3]
The
applicant is a citizen of Pakistan. He submitted his foreign skilled worker
application in 2010 based on his experience as a construction manager, National
Occupation Classification (NOC) Code 0711. In support of his application, he
included letters from two employers where he had worked as project manager.
Officer’s Decision
[4]
The
officer issued a decision on May 10, 2012. Notes from the Computer Assisted
Immigration Processing Service (CAIPS) serve as the reasons for decision.
[5]
The
entry for October 19, 2010, indicates the visa officer referred the application
for a final determination of processing. The entry for April 24, 2012,
indicates the application was rejected:
ALTHOUGH
THE NOC CODE 0711 CORRESPONDS TO AN OCCUPATION SPECIFIED IN THE INSTRUCTIONS,
THE INFORMATION SUBMITTED TO SUPPORT THIS APPLICATION IS INSUFFICIENT TO
SUBSTANTIATE THAT CLIENT MEETS THE OCCUPATIONAL DESCRIPTION AND/OR A
SUBSTANTIAL NUMBER OF THE MAIN DUTIES OF NOC 0711. SUBJECT PROVIDED LETTERS
FROM THE PAKISTAN ARMY WHICH PROVIDE NO DETAILS OF DUTIES, UNDATED WORK
REFERENCE FROM EDEN HOUSING AND APPOINTMENT LETTER FROM HUSNAIN COTEX LTD. ALSO
PROVIDED AN UNDATED WORK REFERENCE FROM HUSNAIN COTEX LTR STATING THAT WAS
EMPLOYED THERE AS PROJECT MANAGER IN LAHORE-GURANWALA HIGHWAY CONSTRUCTION.
DUTIES LISTED IN THE WORK REFERENCE DO NOT CONFORM TO THE LEAD STATEMENT AND THE
MAIN DUTIES OF NOC 0711. SUBJECT’S WORK EXPERIENCE APPEARS TO BE MORE SIMILAR
TO THOSE OF CIVIL ENGINEERS (NOC 2131). I AM THEREFORE NOT SATISFIED THAT
SUBJECT ACTUALLY HAS ONE YEAR OF EXPERIENCE IN THIS OCCUPATION, AS PER NOC
0711, AND THIS APPLICATION IS NOT ELIGIBLE FOR FURTHER PROCESSING.
Issues
[6]
The
applicant submits the following points at issue:
1. Did the decision
maker err in law by ignoring evidence or misconstruing evidence?
2. Did the decision
maker fail to exercise diligence as per the Processing Manual (OP 6A) in
assessing the applicant’s credentials?
[7]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the officer
err in rejecting the application?
Applicant’s Written Submissions
[8]
The
applicant argues the officer ignored or misconstrued the evidence concerning
work experience. The reference letter from Husnain Cotex Limited indicates that
the applicant worked as a project manager of the construction of a national
highway from January 2009 to June 2010. While the applicant listed his
designation as civil engineer in Schedule 3 of his application, it is obvious
that the duties and responsibilities fell within NOC 0711, construction manager.
[9]
Regarding
the undated reference letters, the applicant argues the foreign skilled worker
application checklist did not mention that such letters had to be dated. The
dates of the applicant’s employment were clearly mentioned so the omission of
the letter date is not material. The OP 6A Processing Manual only refers to
sufficient detail to support the claim of at least one year of continuous work
experience.
[10]
In
the alternative, the applicant argues the officer was not sufficiently diligent
in assessing his credentials as required by Processing Manual OP 6A.
Respondent’s Written Submissions
[11]
The
respondent argues the applicable standard of review is reasonableness and that
the officer’s decision was reasonable. The onus was on the applicant to file a
clear application together with supporting documentation. He failed to meet the
requirements, as none of the supporting documents referred to the duties listed
in NOC 0711, or did so in insufficient detail. While the applicant argues he
performed these duties, the officer made his decision based on the employment
documentation provided as evidence. Deference is owed to the officer given the
expertise in NOC listed duties.
Analysis and Decision
[12]
Issue
1
What is
the appropriate standard of review?
Where previous
jurisprudence has determined the standard of review applicable to a particular
issue before the court, the reviewing court may adopt that standard (see Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 57).
[13]
The
officer’s determination of the applicant’s foreign skilled worker application
is a finding of fact and law, reviewable on a reasonableness standard, as I
held in Anabtawi v Canada (Minister of Citizenship and Immigration),
2012 FC 856 at paragraph 28, [2012] FCJ No 923.
[14]
In
reviewing the officer’s decision on the standard of reasonableness, the Court
should not intervene unless the officer came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir above, at
paragraph 47 and Canada (Minister of Citizenship and Immigration) v Khosa,
2009 SCC 12 at paragraph 59, [2009] 1 S.C.R. 339). As the Supreme Court held
in Khosa above, it is not up to a reviewing court to substitute its own
view of a preferable outcome, nor is it the function of the reviewing court to
reweigh the evidence (at paragraph 59).
[15]
Issue
2
Did the officer err in
rejecting the application?
The main duties for NOC
0711, as shown in the Minister’s affidavit evidence, are as follows:
•
Plan,
organize, direct, control and evaluate construction projects from start to
finish according to schedule, specifications and budget
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Prepare and
submit construction project budget estimates
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Plan and
prepare construction schedules and milestones and monitor progress against
established schedules
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Prepare
contracts and negotiate revisions, changes and additions to contractual
agreements with architects, consultants, clients, suppliers and subcontractors
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Develop and
implement quality control programs
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Represent
company on matters such as business services and union contracts negotiations
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Prepare
progress reports and issue progress schedules to clients
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Direct the
purchase of building materials and land acquisitions
•
Hire and
supervise the activities of subcontractors and subordinate staff.
[16]
The
applicant’s letter of appointment from Husnain Cotex Limited lists duties as
part of the position of project manager:
a. Coordination
with RE SMEC / Project Director NHA and GM (NHIP) / CRE SMEC.
b. Preparation
of Construction and Material Schedule.
c. Procurement
of material required for the project.
d. Review
of existing staff and fire dishonest persons and hire new staff.
e. Ensure
proper maintenance of equipment.
f. Equipment
will be hired only with approval of CEO.
g. Prepare
monthly Profit and Loss Account.
h. Keep
records of material procured and consumed.
i. Keep
head office informed about progress and expenses.
[17]
The
officer made no mention of the letter of appointment. The reasons only
highlight the letter of reference for the same position. The letter of
appointment refers to duties that are similar to the NOC 0711 description that
are not included in the letter of reference, such as procurement and
supervising subordinate staff. The officer did not explain why the letter of
reference was considered as mutually exclusive to the letter of appointment.
[18]
The
officer is presumed to have considered all of the evidence before him (see Oprysk
v Canada (Minister of Citizenship and Immigration), 2008 FC 326 at
paragraph 33, [2008] FCJ No 411). However, the more important the evidence that
is not mentioned, the more willing a court may be to infer from silence that
the tribunal made a finding of fact without regard to the evidence (see Pinto
Ponce v Canada (Minister of Citizenship and Immigration), 2012 FC 181 at
paragraph 35, [2012] FCJ No 189).
[19]
While
I appreciate that reasons are typically brief in visa decisions, there were
three one-page documents listing job duties and the officer’s reasons only
mention two of them. Given that the officer’s decision centres around whether
the applicant’s documentation supports the claim that his duties were analogous
to those in NOC 0711, this is an omission that rises to the level described in Pinto
Ponce above. This was central evidence and it was unreasonable for the
officer not to consider it in making the decision or providing reasons.
[20]
The
application for judicial review is therefore granted and the matter is referred
to a different officer for redetermination.
[21]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
allowed, the decision of the officer is set aside and the matter is referred to
a different officer for redetermination.
“John A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Immigration
and Refugee Protection Act,
SC 2001, c 27
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72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
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72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
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