Docket:
IMM-3600-13
Citation: 2014 FC 141
Vancouver, British Columbia, February 11, 2014
PRESENT: The Honourable Mr. Justice Barnes
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BETWEEN:
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PEDRAM SAMADI DINANI
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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 by
Pedram Samadi Dinani challenging a decision by a Visa Officer to deny his
application for a skilled worker visa. The parties agree that the standard of
review is reasonableness.
[2]
Mr. Dinani is a PhD student in the Department of
Electrical and Computer Engineering at the University of British Columbia. He applied for a skilled worker visa in the post-secondary teaching and
research assistants employment category. Under subsection 75(2)(b) of
the Immigration and Refugee Protection Regulations, SOR/2002-227, it was
incumbent upon Mr. Dinani to establish that he performs the actions of a
research and teaching assistant as described in the lead statement for that occupation
found in the applicable National Occupation Classification [NOC]. The NOC Unit
Group that applied to Mr. Dinani’s application was “4012 Post-Secondary
Teaching and Research Assistants”. It described the duties of the position as
follows:
Post-secondary
teaching and research assistants assist university professors, community
college and CEGEP teachers and other faculty members in teaching and research
activities at universities and colleges.
…
Main duties
Post-secondary
teaching assistants perform some or all of the following duties:
• Organize reference materials, visual aids and other materials
as required by university professors or college teachers for lectures
• Conduct seminars, discussion groups and laboratory sessions to
supplement lectures
• Assist in the preparation and administration of examinations
• Grade examinations, term papers and laboratory reports.
Research assistants perform some or all of the following duties:
• Conduct literature reviews, surveys, laboratory experiments and
other research for use in scholarly publications
• Compile research results and assist professors in the analysis
of results and the preparation of journal articles or papers.
Post-secondary
teaching and research assistants specialize in a subject matter based on their
field of study.
[3]
Mr. Dinani provided letters of reference from
three members of the Engineering faculty setting out the nature of his
employment duties. The letters referred to his employment as either a graduate
teaching assistant or a graduate research assistant in the Electrical and
Computer Engineering Department. His faculty supervisor, Dr. Vincent Wong,
described the work as follows:
This is to
certify that Mr. Pedram Samadi Dinani has been employed as a full-time
Graduate Research Assistant (RA) under my supervision with the working
hours of 40 hours per week in the Department of Electrical & Computer
Engineering at the University of British Columbia (UBC) since September 2009
and is expected to complete his degree requirements by December 2013.
Mr. Samadi Dinani is
working in the broad area of smart grid, especially demand side management that
is of great interest to Canadian industry and society at large. As a research
assistant, his main responsibilities and duties are conducting literature
reviews, developing efficient algorithms, mathematical analysis of the proposed
models, compilation of research results, and preparation of journal
articles and conference papers. In addition to his graduate work, Mr. Samadi
Dinani has been appointed the following positions in our department:
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Position
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From
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To
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Monthly
Stipend
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Graduate Research
Assistant
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September 8th,
2009
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August 31st
, 2010
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$1583.00 CAD
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Graduate Research
Assistant
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September 1st,
2010
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August 31st,
2011
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$1583.00 CAD
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Graduate Research
Assistant
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September 1st
2011
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August 31st,
2012
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$2000.00 CAD
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…
There is no doubt that Mr. Samadi
Dinani’s competence in conducting research in smart grid will enable him to
make solid contributions to Canadian society should he be granted Canadian
permanent resident status. I strongly support his application for Canadian
permanent residency.
[4]
A second reference letter confirmed that, in the
role of graduate teaching assistant, Mr. Dinani was responsible for the
supervision of examinations, marking and holding office hours.
[5]
The basis for the Visa Officer’s decision as
expressed in the Departmental Global Case Management System was only that Mr.
Dinani’s letters of reference failed “to list job duties or responsibilities
that match the actions described in the lead statement under [NOC 4012].” No details
were provided as to what requirements were absent. In an affidavit filed in
this proceeding, the Visa Officer justified the decision on the basis that the
letters of reference failed to expressly state that Mr. Dinani was
assisting other members of the Engineering faculty when performing the otherwise
described tasks.
[6]
The use of ex post facto affidavits to
bolster or to explain poorly justified decisions has been the subject of
considerable criticism. In Sellathurai v Canada (Minister of Citizenship and
Immigration), [2008] FCJ No 1267, 208 FCA 255, the Court described the
problem as follows:
46 The
judges of the Federal Court have previously stated that a tribunal or a
decision-maker cannot improve upon the reasons given to the applicant by means
of the affidavit filed in the judicial review proceedings. In Simmonds v Canada (Minister of National Revenue), 2006 FC 130, 289 FTR 15, Dawson J. wrote at
paragraph 22 of her reasons:
I observe the
transparency in decision-making is not promoted by allowing decision-makers to
supplement their reasons after the fact in affidavits.
47 See to the same effect Kalra v Canada (Minister of
Citizenship and Immigration), 2003 FC 941, 29 Imm LR (3d) 208, at para
15; Yue v Canada (Minister of Citizenship and Immigration), 2006 FC 717,
[2006] FCJ No 914, at para 3; bin Abdullah v Canada (Minister of Citizenship
and Immigration), 2006 FC 118, [2006] FCJ No 1482, at para 13. Any
other approach to this issue allows tribunals to remedy a defect in their
decision by filing further and better reasons in the form of an affidavit. In
those circumstances, an applicant for judicial review is being asked to
hit a moving target.
Also see Ghirmatsion
v Canada (Minister of Citizenship and Immigration), [2013] 1 FCR 261, 2011
FC 519 at para 7.
[7]
I do not accept the Visa Officer’s belated
explanation for the decision to reject Mr. Dinani’s visa application and I give
it no weight. The descriptions of Mr. Dinani’s employment duties in the
reference letters closely conform to the main duties set out in NOC 4012. The
after-the-fact justification that required the references to expressly state
that Mr. Dinani was “assisting” other members of the faculty appears to be
a colourable attempt to rationalize a decision that was not otherwise
justifiable.
[8]
Although attaching a job label may not be a
determinative consideration, surely it means something when three references
from the Department of Electrical and Computer Engineering described Mr. Dinani
as a graduate research assistant or a graduate teaching assistant. Visa
officers have an obligation to bring at least a modicum of common sense and
rationality to the exercise of comparing actual job descriptions to NOC
employment criteria. It seems quite obvious to me that assistance to other
members of the faculty is being provided when a PhD student is teaching,
setting and supervising examinations, marking and conducting supervised
research. In the absence of that assistance, the work would necessarily need to
be carried out by others in the Department. Furthermore, any fair reading of
Dr. Wong’s reference letter would lead to the conclusion that the described tasks
were of direct assistance to Dr. Wong. I do not accept the contrary view expressed
by counsel for the Minister that the rationale for the decision, whatever it
was, was reasonably open to the Visa Officer on the evidence before him. The
decision is not reasonable and the reasons given for it are insufficient. The
decision is, therefore, set aside. The matter is remitted for reconsideration
by another decision-maker on the merits and in accordance with these reasons.
Given the passage of time, Mr. Dinani is entitled to submit current
employment references in support of his application.
[9]
Neither party proposed a certified question and
no issue of general importance arises on this record.
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