Docket: IMM-880-14
Citation:
2014 FC 897
Ottawa, Ontario, September 18, 2014
PRESENT: The
Honourable Mr. Justice Mosley
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BETWEEN:
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LUCINDA GABRIELLE MORGAN
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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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JUDGMENT AND REASONS
[1]
The applicant seeks to set aside the decision of
a visa officer refusing her application for permanent residency as a member of
the Canadian Experience Class (CEC) of skilled workers. She alleges that the
visa officer assessed her application unreasonably and that he offered
inadequate reasons in support of his decision. For the reasons that follow, I
have concluded that the officer’s decision should be upheld. The application
for judicial review is dismissed.
I.
BACKGROUND
[2]
Ms Morgan is a citizen of the United Kingdom. She entered Canada on May 11, 2011, with a work permit under the International
Experience Class.
[3]
Ms Morgan worked at the Healthcare of Ontario
Pension Plan (HOOPP) as a financial planning assistant from June 2011 to
December 2012. In March 2013, she began working as an office assistant at Crowe
Soberman LLP.
[4]
On April 25, 2013, Ms Morgan applied for
permanent residency under the CEC. She identified two categories as matching
her skilled work experience: NOC 1241 (administrative assistant) and NOC 1221
(office assistant). While she provided a reference letter from HOOPP in support
of her application, she did not submit any documents relating to her work at
Crowe Soberman LLP.
[5]
A visa officer rejected Ms Morgan’s application
on August 27, 2013. One month later, she requested that the respondent Minister
of Citizenship and Immigration reconsider her application.
[6]
Ms Morgan applied for leave and judicial review of
the negative decision on February 13, 2014. Six days later, the respondent
refused her request for reconsideration. Ms Morgan then sought an extension of
time and leave for judicial review of the August 27, 2013 decision. Leave and
an extension of time were granted on June 6, 2014.
II.
DECISION UNDER REVIEW
[7]
The visa officer’s decision has two components: a
letter dated August 27, 2013 and entries in the Computer Assisted Immigration
Processing System (CAIPS).
[8]
In his letter, the officer indicated that he had
refused the application for the following reasons:
I am not satisfied that you meet the
requirement(s) because After taking into consideration the work experience
supporting documentation on file, I am not satisfied that you have performed
the actions described in the lead statement for the occupation or that you performed
a substantial number of the main duties of NOC 1241 (Administrative
assistants). The main duties of your work experience that are listed in your
employment letter from HOOPP do not correspond to the main duties of NOC 1241
(Administrative assistants). As well, you have not provided an employment
letter listing main duties of your work experience from your current employer
(Crowe Soberman).
[9]
The CAIPS notes read as follows:
CEC FILE REVIEWED BY PROGRAM SUPPORT OFFICER
PA’s file has been reviewed under Canadian Experience Class category. Although
PA has indicated work experience at an 0, A or B NOC level, I am not satisfied
that PA has performed a substantial number of the main duties and/or that
duties performed by PA do not correspond to lead statement for the NOC codes
1241 (Financial Planning Assistant). As well, PA did not provide an employment
letter listing main duties from her current employer (NOC 1221 – Office
Assistant with Crowe Soberman). It appears PA has not met all requirements to
submit an application under the CEC category. Letter emailed to address(es) on
file informing PA that s/he is [sic] application is refused. […]
III.
ISSUE
[10]
The issue is whether the visa officer rendered a
reasonable decision. Since Ms Morgan disputes his application of the relevant
regulations to her case and the sufficiency of the officer’s reasons, I will
examine the decision in light of both these factors.
[11]
In addition, the applicant’s written submissions
alleged that the decision gave rise to a reasonable apprehension of bias. Her
counsel did not press this issue at the hearing. In my view, there is nothing
in the record to support the allegation.
IV.
ANALYSIS
A.
Standard of review
[12]
Visa officers render discretionary decisions which
are reviewable on the standard of reasonableness: Wang v Canada (Minister of Citizenship and Immigration), 2008 FC 798 at paras 10-11.
[13]
An analysis on the reasonableness standard
examines both the process and outcome of decision-making. The Supreme Court has
stated that reasonableness requires both “justification,
transparency and intelligibility within the decision-making process” and
a decision which falls “within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law”:
Dunsmuir v New Brunswick, 2008 SCC 9 at para 47.
[14]
Importantly, the insufficiency of reasons is not
“a stand-alone basis for quashing a decision”: Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62 at para 14 [Newfoundland Nurses]; see also Ayanru v Canada (Minister of Citizenship and Immigration), 2013 FC 1017 at para 7. I will examine
the adequacy of the officer’s reasons when inquiring whether his decision, taken
as a whole, is reasonable.
(1)
Did the visa officer render a reasonable
decision?
[15]
The visa officer assessed Ms Morgan’s
application against subsection 87.1(2) of the Immigration and Refugee
Protection Regulations, SOR/2002-227 [Regulations], which sets out
cumulative criteria for obtaining permanent residency under the CEC. Three are
relevant to this case. First, an applicant must have acquired, during the three
years preceding her application, at least one year of full-time work experience
(or the equivalent in part-time experience) in occupations listed in Skill Type
0 Management Occupations or Skill Level A or B of the National Occupational
Classification (NOC) matrix: paragraph 87.1(2)(a). Second, the applicant
must have performed the actions described in the lead statement for the
occupation as set out in its NOC description: paragraph 87.1(2)(b). Third, the
applicant must have performed a substantial number of the main duties of that
occupation: paragraph 87.1(2)(c). The applicant bears the onus of proving that
her application meets the requisite criteria.
[16]
In the case at bar, the officer evaluated a
reference letter detailing Ms Morgan’s work experience at HOOPP. He determined
that she had performed neither the actions described in the lead statement for
NOC 1241 (administrative assistant) nor a substantial number of the main duties
of that occupation. The officer also found that Ms Morgan could not rely on NOC
1221 (office assistant) because she had not submitted a letter listing her main
duties while working at Crowe Soberman LLP.
[17]
In Qin v Canada (Minister of Citizenship and
Immigration), 2013 FC 147 at paras 28 and 30, Justice Gleason commented on
the task of a visa officer considering a CEC application:
[Section] 87.1 of the Regulations requires an
officer to evaluate whether a candidate has experience in one of the listed NOC
occupations, but provides no guidance as to how such experience is to be
evaluated, other than by reference to the listing of duties contained in the
NOC matrix.
[…]
In evaluating whether or not an applicant’s
experience falls within a permissible NOC Code, an officer is required to
understand the nature of the work performed and the degree of complexity of the
tasks undertaken, to determine whether or not they fall within the duties
listed in the relevant NOC Code descriptors. The requisite analysis
necessitates much more than a rote comparison of the duties listed in the NOC
Code with those described in a letter of reference or job description. Rather,
what is required is a qualitative assessment of the nature of the work done
and comparison of it with the NOC Code descriptor. Indeed, there is a line
of authority which indicates that, in the context of Federal Skilled Workers
(where an officer is similarly required to assess duties performed against the
NOC Code descriptors), the officer may legitimately question whether the
applicant possesses the relevant experience if all that he or she does is
repeat the duties from the NOC descriptor in a letter of reference. In such
cases, this Court has sometimes held that an officer is required to hold an
interview or pose additional questions in writing to an applicant, in order to
obtain more detail about the actual nature of the work performed (see e.g. Talpur
and Patel v Canada (Minister of Citizenship & Immigration), 2011 FC
571). Thus, it is beyond debate that the officer must undertake a substantive
analysis of the work actually done by an applicant. [emphasis added]
[18]
Ms Morgan contends that the visa officer did not
undertake a substantive analysis of her application. Rather, he followed a
check-off approach that gave no regard to the substance of her employment at
HOOPP. It is for this reason, Ms Morgan argues, that his refusal was
unreasonable.
[19]
As I noted previously, subsection 87.1(2) of the
Regulations establishes a cumulative test. The applicant must therefore prove that
the officer erred in concluding that her employment did not match the lead
statement and that she did not perform a substantial amount of the
duties of NOC 1241. If either one of the officer’s findings is reasonable, his
decision must stand.
[20]
The lead statement for NOC 1241 reads as
follows:
Administrative assistants perform a variety of
administrative duties in support of managerial and professional employers. They
are employed throughout the private and public sectors.
[21]
The applicant’s evidence indicates that she
reconciled financial data, processed journal entries, performed data entry and
supported planning and performance teams. Ms Morgan submits that these tasks
qualify as administrative duties in support of a public sector employer. On the
other hand, the respondent advances that the applicant’s primary role at HOOPP
involved the entry and reconciliation of financial data. He draws particular
attention to her reference letter’s qualification that her responsibility to
provide support to the planning and performance teams arose only “as required”.
[22]
In my view, the officer could reasonably
characterize the applicant’s employment as a clerical or bookkeeping role which
does not match the lead statement for NOC 1241. However, even if the applicant had
succeeded in casting doubt on this finding, paragraph 87.1(2)(c) of the
Regulations would still doom her application for judicial review.
[23]
Indeed, the evidence tendered by the applicant
reveals a discrepancy between the duties she performed at HOOPP and those listed
under NOC 1241. The visa officer’s conclusion that Ms Morgan did not perform a
substantial number of the main duties of NOC 1241 withstands scrutiny on the
standard of reasonableness. It clearly falls “within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: Dunsmuir, above, at para 47.
[24]
In my view, this is not a case such as Gao v
Canada (Minister of Citizenship and Immigration) 2014 FC 821, where the
officer had unreasonably excluded evidence of three of the eight duties and
erroneously considered some of them to be essential.
[25]
I now turn to the applicant’s argument that the
visa officer provided inadequate reasons. The case law is clear that sparse
reasons do not impair an administrative decision if the outcome is reasonable
in light of the record. As the Supreme Court stated in Newfoundland Nurses,
above, at para 16:
Reasons may not include all the arguments,
statutory provisions, jurisprudence or other details the reviewing judge would
have preferred, but that does not impugn the validity of either the reasons or
the result under a reasonableness analysis. A decision-maker is not
required to make an explicit finding on each constituent element, however
subordinate, leading to its final conclusion [.] In other words, if the
reasons allow the reviewing court to understand why the tribunal made its
decision and permit it to determine whether the conclusion is within the range
of acceptable outcomes, the Dunsmuir criteria are met.
[26]
Newfoundland Nurses does not provide a license to the Court to fill in the gaps in a
decision or to speculate as to what the decision-maker was thinking: Komolafe
v Canada (Citizenship and Immigration), 2013 FC 431, at paragraph 11.
However here, the officer’s brief reasons adequately identify the grounds for
which he rejected Ms Morgan’s application. They refer the applicant – and a
potential reviewing court – to the lead statement and listed duties of NOC
1241. The officer reasonably concluded that the applicant did not meet the burden
of proving that her work experience matched these requirements. Consequently,
his failure to compose more elaborate reasons does not render his decision
unreasonable.
[27]
To conclude, I see no basis for interfering with
the visa officer’s decision. As neither party proposed a serious question of general
importance, none will be certified.
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