Docket:
IMM-2346-12
Citation: 2014 FC 279
Ottawa, Ontario, March 24, 2014
PRESENT: The Honourable Mr. Justice Mosley
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BETWEEN:
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SABA KHOSH KHOOEE
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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]
Ms. Saba Khosh Khooee’s application for a visa as
a member of the Federal Skilled Worker class was denied. She had claimed
qualifying experience in two eligible occupations: NOC 0711- Construction
Manager, and NOC 2151- Architect. This is her application for judicial review
of that decision pursuant to s 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [IRPA].
[2]
The applicant is a 31 year-old Iranian citizen
living in Sweden on a student visa. Ms. Khooee obtained a Bachelor’s and a
Master’s degree in Architectural Engineering in Tehran, Iran in September 2005 and March 2008 respectively. Ms. Khooee has been a member of the Iranian
Construction Engineers Organization since February 2008. In August 2008, Ms.
Khooee and her husband moved to Sweden where Ms. Khooee began a Master’s degree
in Urban Planning and Design at the Royal Institute of Technology.
[3]
Throughout her undergraduate and Masters’ degree
studies (November 2003-June 2008), Ms. Khooee worked part-time and full-time in
various jobs as an architect. Upon graduation with her Masters’ degree, Ms.
Khooee worked full-time from June 2008 to July 2009, which she claimed as work
experience as a Construction Manager.
[4]
In a letter dated February 18, 2010, the
applicant was notified that her application had been deemed eligible for
processing under the Federal Skilled Worker class due to her work experience in
an occupation specified in the Minister’s Instructions. The letter did not
refer to a specific NOC code. The applicant assumed that her application was
being assessed under NOC 0711- Construction Manager. However, Computer Assisted
Immigration Processing System (CAIPS) notes from February 9, 2010 indicate
that the applicant had identified NOC codes 0711 – Construction Manager and NOC
2151 – Architect in her application and that she had been found to be eligible
for assessment under the Architect code.
[5]
CAIPS notes entered on June 24, 2010 state the
following:
I have completed
an assessment of this application and have determined that PI is not eligible
for processing in this category [of Federal Skilled Workers…].
[…]
Although the NOC
code 0711 corresponds to an occupation specified in the Instructions, the
information submitted to support this application is sufficient [sic] to
substantiate that Applicant do not meets [sic] the occupational
description and/or a substantial number of the main duties of NOC 0711. PI has
provided several reference letters which indicate that she is more an architect
than a construction manager. The job description (duties and responsibilities)
does not correspond to the NOC 0711. By the same time [sic] she was
working apparently full time, she was also studying architecture. She claimed
only one year of experience as construction manager (her last job) but claimed
4 years of experience as an architect. I am therefore not satisfied that PI
actually has one year of experience in this occupation, as per NOC 0711, and
this application is not eligible for other processing.
[6]
On February 10, 2012 or earlier (the exact date
of receipt is disputed), Ms. Khooee received an undated refusal letter, which
explained that she had not provided sufficient evidence of her work experience
in the listed occupation of NOC 2151- Architect. The CAIPS notes indicate that
the refusal letter was sent on January 26, 2012.
[7]
In a letter dated February 13, 2012, the
applicant sought clarification and asked that her application be reconsidered.
She submitted that her application had been made primarily under NOC 0711 -
Construction Manager, although she had claimed prior experience as an
architect. Ms. Khooee’s counsel expressed concern that the application had not
been assessed as a construction manager at all. It was also noted that
Construction Managers were no longer on the list of Occupations in Demand in
the most recent Ministerial Instructions.
[8]
This application for leave and for judicial
review was filed on March 9, 2012. On March 23, 2012, the applicant received a
response from Ms. Wendy Wolbert, the Second Secretary Immigration at the High
Commission of Canada in London. She indicated that a clerical error had
resulted in Ms. Khooee being sent an incorrect refusal letter. However, Ms.
Wolbert confirmed that Ms. Khooee’s work experience as NOC 0711 – Construction
Manager had also been reviewed and refused as insufficient. An amended refusal
letter dated April 2, 2012 was sent.
[9]
The amended refusal letter stated, among other
things:
0711 –
Construction Manager
I have determined
your eligibility on the basis of the information on your file. Although the NOC
code corresponds to the occupations specified in the Instructions, you provided
insufficient evidence 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. I am therefore not satisfied that you have experience
as an [sic] Construction Manager.
Since you did not
provide satisfactory evidence that you have work experience in any of the
listed occupations, you do not meet the requirements of the Ministerial
Instructions and your application is not eligible for processing. […]
[10]
The sole issue, in my view, is whether the visa
officer’s decision was reasonable.
[11]
The parties agree and I accept that the standard
of review applicable to the decisions of visa officers is reasonableness. As
discussed by the Supreme Court of Canada in Dunsmuir v New Brunswick 2008
SCC 9 [Dunsmuir] at para 47, reasonableness is concerned mostly with the
existence of justification, transparency and intelligibility within the
decision-making process. It is also concerned with whether the decision falls
within a range of possible, acceptable outcomes which are defensible in respect
of the facts and law.
[12]
The applicant submits that the decision is not
intelligible, transparent or justified as it confuses her application for
consideration under the two NOC codes –
0711-Construction Manager and 2151- Architect. Although she had been deemed
eligible for assessment due to her work experience in an occupation
specified in the Minister’s Instructions and was informed of this in the
February 18, 2010 letter, she was not informed that the initial eligibility
finding was on the basis of work experience as an Architect, and not as a
Construction Manager. Nor was she informed what impact, if any, this deemed
eligibility had on the assessment of the NOC 0711 – Construction Manager claim.
Then in early 2012, her application was assessed on the basis of the
Construction Manager NOC but denied on the ground that she had
not provided sufficient evidence to establish the required work experience for
the Architect NOC. No explanation was ever provided for why the NOC codes were
confused or why the visa officer considered that her duties were closer to
those of an architect. The record contains no affidavit from the visa officer
to clarify matters.
[13]
On at least two separate occasions, the wrong
NOC code was referenced. The respondent submits that these were mere clerical
errors that should not taint the decision or its reasons. Reading the CAIPS
notes and the corrected refusal letter, it is clear that the visa officer
assessed the applicant in the intended occupation of Construction Manager. Her
reasons for the ineligibility finding are also clear, the respondent submits.
The officer was not satisfied, based on the applicant’s evidence, that the
applicant had performed all of the essential duties and a substantial number of
the main duties set out in NOC 0711 for a minimum of one full year. Furthermore,
it was not surprising that the officer reached the conclusion that the
applicant’s duties were more akin to those of an architect given that she
self-identified as having more experience as an architect than as a
construction manager.
[14]
Moreover, the respondent argues, the visa
officer’s main concern was that even if the applicant’s employment from June
2008 to July 2009 could be characterized as performing the duties of a
construction manager, it was not equivalent to one year’s worth of full time
employment in that occupation, because she was also studying full time. The
reference letter does not state whether she was employed on a full- or
part-time basis. Hence, it was not unreasonable for the visa officer to
conclude that the applicant could not work full-time and go to school
full-time.
[15]
The applicant contends that this was yet another
error by the visa officer as she completed her Master’s degree in March 2008
and was not, therefore, studying between June 2008 and July 2009. Moreover, she
argues that when the reference letter for the project manager job she performed
for that year is compared to the NOC description of the Construction Manager
role, the duties set out in both “appear identical”.
[16]
I agree with the applicant that the decision is
unintelligible and lacks transparency. Further, it is unclear whether the
alternative application under NOC code 2151- Architect was ever properly
assessed. In the circumstances, I am satisfied that the application must be
granted.
[17]
The applicant seeks costs and a writ of mandamus
directing that the visa application be processed within 60 days. Costs may only
be awarded in immigration proceedings for special reasons pursuant to Rule 22
of the Federal Courts Immigration and Refugee Protection Rules. While I
don’t think that the application in this matter was handled with due care and
attention, that does not amount to special reasons in my view. Nor is a writ of
mandamus fixing the date for processing the visa application appropriate. The
administration of the legislative scheme is the responsibility of the Minister.
I will order that it be done within a reasonable amount of time.
[18]
I am satisfied that the applicant should not be
disadvantaged by the change in Ministerial instructions since the date she
submitted her application. I will order that her application for a visa be
freshly considered under the instructions as they were on the date her
application was submitted.
[19]
No serious question of general importance was
proposed and none will be certified.
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