Docket:
IMM-6493-12
Citation: 2013 FC 906
Ottawa, Ontario, August 27, 2013
PRESENT: The Honourable Mr. Justice Annis
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Docket:
IMM-6493-12
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BETWEEN:
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MAJID MOLLAJAFARI
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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 for judicial review,
pursuant to section 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27, of a decision refusing the applicant’s application for permanent
residence in Canada in the Federal Skilled Worker category.
[2]
The applicant is requesting
an order of certiorari quashing the negative decision and an order of mandamus compelling the respondent to reconsider his
application.
Background
[3]
Mr. Mollajafari was born in Iran in 1977. He attended Islamic Azad University, obtaining a three-year Civil Surveying
associate’s degree and a B.A. in Civil Engineering in 2007. He then went to
work for Eista Bon Consulting Engineers Company as a construction manager. In
2009, he applied to immigrate to Canada in the Skilled Worker category under
National Occupation Code [NOC] 0711 Construction Manager. He explains that his
application was accepted by the Sydney, Nova Scotia office and the visa officer
in Damascus, but he was then refused because he was short two education points
(having been credited with only one university credential, not two). He was
advised that it would be more practical to apply again than to request judicial
review.
[4]
Accordingly, he applied again in 2010. The Sydney office approved his application again. However, the visa office in Damascus closed
before it could reassess the application, and his file was forwarded to Ankara. There, a visa officer accepted both university credentials but rejected the
application on June 18, 2012 on the new ground that the applicant had not
demonstrated that he had performed the duties of NOC 0711. This time Mr.
Mollajafari applied for judicial review.
[5]
The dispositive portion of the decision letter
to Mr. Mollajafari states as follows:
You have indicated
that you have work experience in (an) occupation(s) with the following NOC
(National Occupational Classification) code(s): 0711- Construction Managers.
Although the NOC code(s) correspond(s) to the occupations specified in the
Instructions, you have not provided sufficient evidence that you performed the
actions described in the lead statement for the occupation, as a set out in the
occupational descriptions of the NOC and that you performed all of the essential
duties and a substantial number of the main duties, as set out in the
occupational descriptions of the NOC. The duties described on your reference
letter from Eista Bon Consulting Engineers Company do not match the
occupational descriptions of the NOC. As such, I am not satisfied that you are
a Construction Manager - 0711.
[6]
The main activities listed in the reference
letter of the applicant were described as follows:
a. Structure design of the residential buildings as such as residential
complexes, long towers, apartment and Villa
b. Structure design of the official, commercial and educational
complexes
c. Structure design of the cultural, sport and recreational complexes
d. Design of the space structures
e. Preparation, control and confirmation of estimation of the consumer
materials and cost price of projects
f. Management of designing team
g. Supervisor of surveying team in preparation of topographical plans
of projects at beginning of designing process
h. Buildings industrial designing with use from the modern technology
i.
Management of the supervision team
j.
Management of constructional projects
k. Selection and employment of the technical personnel in the
constructional projects
[7]
The Computer Assisted Immigration Processing
System [CAIPS] notes which form part of the reasons for the decision state
that:
The job description
provided in the reference letter more closely resembles the description of a
Construction Engineer (NOC2131). PA was involved in design work, estimation,
supervision of surveying teams etc., which more closely resemble NOC2131. Have
same concerns with respect to the description provided by PA on Schedule 3
form. Consequently, am not satisfied that PA performed a substantial amount of
the duties stated in NOC0711. Therefore, am not satisfied that the ministerial
instructions have been met.
Issues
[8]
The issue is whether the visa officer came to an
unreasonable decision based on the documentation before him.
Standard of
review
[9]
Where jurisprudence has already determined the
standard of review applicable to a particular issue, the reviewing court may
adopt that standard (Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph 57). As noted in Patel v Canada
(MCI), 2011 FC 571, at para 18 and in Kamchibekov v Canada (MCI),
2011 FC 1411, at para 12, it has been established that a visa officer’s
determination on eligibility under the Federal Skilled Worker class, as a
question of mixed fact and law, is reviewable on a standard of reasonableness
and should be granted a high degree of deference.
Analysis
[10]
The applicant argues that the reasons for
decision show that the visa officer assessed his documentation against the
description of NOC 2131, an employee job, and failed to assess it against NOC
0711, a managerial job (as shown by the “0” designation). He argues that both
jobs required an engineering educational credential, so it is obvious that
there would be a certain amount of overlap in the duties.
[11]
He submits that the visa officer was required to
assess him in the category he claimed (Hajariwala v Canada (MEI), [1988]
FCJ No 1021 (QL) (TD); Hussain v Canada (MCI), [1998] FCJ No 1570 (QL)
(TD)).
[12]
I disagree that the applicant was measured
against the civil engineer category. The decision letter stated that “the
duties described on your reference letter from Eista Bon Consulting Engineers
Company do not match the occupational descriptions of the NOC”. This statement
is supported by the letter and the comparison with the requirements for a
construction manager in NOC 0711.
[13]
The lead statement for NOC 0711 as provided in
the applicant’s materials reads:
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.
[14]
An applicant is required to have performed the
duties in the lead statement and all or more of the main duties of the
occupation. Applicants have the onus of providing documentation to demonstrate
this. In the present case, the visa officer specifically considered the company
reference letter. While he found that the applicant was involved in design work,
estimation, supervision of surveying terms, etc., that was more akin to NOC
2131, this was because there was only one clear item relating to construction
management from a list of 11 duties carried out by the applicant, that of
“management of constructional projects”.
[15]
The respondent argues that the applicant
proposes that the key aspect of the lead statement was being a manager rather
than an employee, but in fact the key distinction was working for a
construction company or a construction department. While his company described
him as a “Constructional Projects Manager” and an “engineer”, the employer’s
reference letter sets out a long list of items pertaining to design and
provides minimal detail supporting a conclusion that he was involved in managing
the physical construction of buildings or was employed on construction job
sites.
[16]
I agree with the respondent that describing the
applicant as a “Constructional Projects Manager” carries no weight when the
main activities relate to structural design and managing design and surveying
teams.
[17]
I also conclude that common sense dictates that
it was entirely reasonable for the visa officer to consider related NOCs when
it is apparent from the list of duties provided in his employer’s reference
letter that the applicant was performing mostly design and surveying functions.
[18]
Granted, there may be some overlap in the field,
but nevertheless the NOC makes no reference to design and surveying functions,
which would exclude the large majority of duties of the applicant as described
by his employer. They do not fall within the NOC description for a construction
manager.
[19]
The applicant submitted that the Court should
take into consideration other evidence from the record, including the
applicant’s education which showed construction management courses as part of a
civil engineering program and the fact that he was on the Board of Directors of
a construction company. This evidence however does not demonstrate that the
applicant was working as a construction manager.
[20]
On the basis of the evidence provided by the
applicant with a view to demonstrate his work experience as a construction
manager, I am satisfied that the visa officer’s decision that the applicant did
not meet the requirements as a construction manager described in NOC 0711 falls
within the possible, acceptable outcomes that are defensible in fact and in
law.
[21]
Accordingly, the application is dismissed.
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