Docket: IMM-3457-13
Citation:
2014 FC 821
Ottawa, Ontario, August 25, 2014
PRESENT: The
Honourable Mr. Justice Rennie
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BETWEEN:
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CIJIA GAO
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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 April 25,
2013 decision of a visa officer refusing the applicant’s application for
permanent residency as a member of the Canadian Experience Class of skilled
workers. The applicant had applied under the Canadian Experience Class under
National Occupation Classification (NOC) 6211 as a Retail Sales Supervisor and
had been offered a position at Safeway Ltd.
[2]
After reviewing the evidence, the visa officer
made the following relevant findings:
1.
The applicant had not supervised and
co-ordinated sales staff and cashiers or assigned sales workers to duties.
2.
The applicant provided a letter from his
employer, describing the applicant’s job duties. The officer noted that three
of the five job duties described use the verbs “helping,” “assisting” and
“aiding” in describing the applicant’s responsibilities.
[3]
In the decision letter, the officer concluded
that the applicant did not provide evidence that he performed a substantial
number of the main duties of a retail sales supervisor under NOC 6211, nor
evidence that he performed the essential duties of the position. As such, the
officer was not satisfied that the applicant met the statutory requirements to
be granted permanent residence under the Canadian Experience Class and refused
the application.
[4]
The case before me is identical in substance to
that of Benoit v Canada (Citizenship and Immigration), 2013 FC 185. In
that decision Justice Russel Zinn wrote:
Paragraph 87.1(2)(c) of the Regulations
required that Ms. Benoit “[have] performed a substantial number of the main
duties […] including all of the essential duties” listed in the NOC under which
she listed her experience. In NOC 6211, under which she applied, there are no
“essential” duties, only “main” duties. Accordingly, Ms. Benoit was required to
have performed a “substantial number” of these main duties…
[5]
The officer in this case was required to
determine if the applicant “performed a substantial
number of the main duties.” As noted however, the April 25, 2013
decision letter states that the officer was not satisfied that the applicant
had “performed a substantial number of the main duties of
Retail Trade Supervisors as set out in the occupational description of the National
Occupational Classification, including all of the essential duties.”
[6]
NOC 6211 does not list any essential duties. It
is, therefore, unclear, against what standard the officer assessed the
application.
[7]
The respondent points to the Computer Assisted
Immigration Processing System (CAIPS) notes, which make no reference to
essential duties, but only to “a substantial number of
the job duties”, and urges that the Court overlook the error in the
decision letter on the authority of Newfoundland and Labrador Nurses' Union
v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, at para 12. In
my view, there is a substantive difference in resorting to the record to
complete, or, in the language of the Supreme Court of Canada, to supplement an
otherwise deficient decision, and resorting to the record to override or negate
patent error on the face of the decision in respect of a critical element. In Komolafe
v Canada (Citizenship and Immigration), 2013
FC 431, at paragraph 11, I wrote:
Newfoundland Nurses is not an open invitation to the Court to provide reasons that were
not given, nor is it licence to guess what findings might have been made or to
speculate as to what the tribunal might have been thinking. This is
particularly so where the reasons are silent on a critical issue. It is ironic
that Newfoundland Nurses, a case which at its core is about deference
and standard of review, is urged as authority for the supervisory court to do
the task that the decision maker did not do, to supply the reasons that might
have been given and make findings of fact that were not made. This is to turn
the jurisprudence on its head. Newfoundland Nurses allows reviewing courts to
connect the dots on the page where the lines, and the direction they are
headed, may be readily drawn. Here, there were no dots on the page.
[8]
In note that in Benoit, Justice Zinn
resisted a similar argument urging an expansive application of the Newfoundland
Nurses decision:
In my view, no amount of “supplement[ing],” to
quote Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para
12, salvages the officer’s decision. The Regulations clearly require
that only a “substantial” number of the duties be performed. That is the test.
The officer in this case singles out only parts of two of the eight main duties
from NOC 6211 and on that basis concluded that Ms. Benoit’s experience at the
Granite did not qualify.
[9]
The decision also cannot stand for a second
reason. NOC 6211 requires that “some or all” of the duties be met. The
decision letter focuses on the fact that employer’s letter described the
applicant as “helping,” “assisting”
and “aiding”. From that, the officer concluded
that the applicant did not perform three of the duties. Without greater
context, evidence or information before the officer, it was unreasonable for
the officer to conclude that performing a function in concert with, or parallel
to others, such as is common in a team-based work environment, means that the
person did not perform the function or duty.
[10]
In sum, this case is on all fours with Benoit,
where the officer singled out two parts of the eight duties and on that basis
concluded that Ms. Benoit did not qualify. Here, the officer unreasonably
excluded evidence of three of the eight duties, and, on the face of the
decision erroneously considered some of them to be essential.
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