Date:
20130627
Docket:
IMM-7043-12
Citation:
2013 FC 716
Toronto, Ontario,
June 27, 2013
PRESENT: The
Honourable Mr. Justice Zinn
BETWEEN:
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OMID MADADI
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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, who holds a master’s degree in civil engineering, and stated in his
application for permanent residence under National Occupational Classification
[NOC] 0711 – “Construction Manager” – that he had been working as a
construction manager since September 2003, was found by an officer “not
eligible for processing in this category.”
[2]
It
is accepted by the Respondent that the Applicant met all of the eligibility
conditions for processing in that category, had the letter from his current
employer been fully accepted by the officer. That letter confirmed the
Applicant’s title, salary, period of employment, projects worked on, and the
duties he performed in this position.
[3]
The
officer, in the rejection letter, states that “the duties described on your
employment letter are either copied word for word or closely paraphrased from
occupational descriptions of the NOC, diminishing the overall credibility of
the employment letter.”
[4]
The
rejection of the application based on the credibility of the employer’s letter
is also confirmed in the officer’s notes in the Global Case Management System:
PA stated that she [sic – it is “he”] has
experience as a Construction Manager NOC 0711. PA submitted an employment
letter from Dej Damghan Co. Main duties described in the employment letter for
this position are either copied from the NOC description or closely paraphrased
from the NOC for the occupation listed under NOC0711. This diminishes the
overall credibility of the employment. The duties which were not copied from
NOC do not satisfy me that PA indeed performed a significant amount of duties
stated in NOC0711. Therefore, not satisfied that the ministerial instructions
have been met in this occupation. RA5020: Pls draft eligibility-not met ltr
and refund all processing fees.
[5]
No
interview or other fairness opportunity was given by the officer before the
application was rejected.
[6]
The
jurisprudence of this Court on procedural fairness in this area is clear: Where
an applicant provides evidence sufficient to establish that they meet the
requirements of the Act or regulations, as the case may be, and the officer
doubts the “credibility, accuracy or genuine nature of the information
provided” and wishes to deny the application based on those concerns, the duty
of fairness is invoked: Perez Enriquez v Canada (Citizenship and
Immigration), 2012 FC 1091 at para 26; See also among many decisions Patel
v Canada (Citizenship and Immigration), 2011 FC 571; Hamza v Canada
(Citizenship and Immigration), 2013 FC 264; Farooq v Canada (Minister of
Citizenship and Immigration), 2013 FC 164; and Ghannadi v Canada
(Minister of Citizenship and Immigration), 2013 FC 515.
[7]
In
line with the authorities cited above, because the officer erred in failing to
put his or her concerns to the Applicant, the Applicant was denied fairness,
and the decision must be set aside.
[8]
No
question was proposed for certification by the parties.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application is allowed, the
decision of the officer rejecting the Applicant’s application for permanent
residence under National Occupational Classification 0711 – “Construction
Manager” – is set aside, the Applicant’s application is to be redetermined by a
different officer, and no question is certified.
"Russel W. Zinn"
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