Docket: IMM-707-13
Citation:
2014 FC 813
Ottawa, Ontario, August 22, 2014
PRESENT: The
Honourable Mr. Justice LeBlanc
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BETWEEN:
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ARTIN KATEBI
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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
I.
Overview
[1]
The applicant is seeking judicial review, under
s. 72(1) of the Immigration and Refugee Protection Act, SC 2001, c. 27
(the Act), of the decision of an immigration visa officer (the Officer)
denying his application for permanent residence in Canada under the Federal
Skilled Workers category. The Officer found that the applicant has failed to
provide sufficient evidence regarding the work duties he was performing in his
country of origin.
[2]
The applicant claims that the Officer erred in
failing to allow him an opportunity to respond to this evidentiary concern. In
the alternative, he contends that the Officer’s finding that he does not
qualify under the Federal Skilled Workers program is unreasonable.
[3]
For the reasons that follow, the applicant’s
judicial review application must fail: it was filed late and the applicant, in
any event, has not shown that the Officer has committed a reviewable error in
concluding as he did.
II.
Background
[4]
The facts of this case are straightforward. The
applicant is a citizen of Iran. In June 2010, he applied for permanent
residence under the Federal Skilled Worker category as a “Construction Manager”
(the Skilled Worker Application), a category of the immigrants’ “economic
class”, as referred to in s. 12 of the Act.
[5]
On June 18, 2012, the applicant’s Skilled Worker
Application was denied. The Officer found that the applicant had not provided
sufficient evidence that he performed the duties of a Construction Manager as
described in the occupational descriptions of the National Occupation
Classification (the NOC). In particular, the Officer noted that the reference
letter the applicant’s employer had provided in support of his Skilled Worker
Application did not contain any description of his job duties and that the
applicant’s own job duties’ description had been taken verbatim from the
NOC and did not appear, as a result, “credible”.
[6]
On July 24, 2012, the applicant requested that
his Skilled Worker Application be reconsidered on the basis of a revised letter
from his employer providing details as to the duties he performed as a
Construction Manager.
[7]
This request was denied on November 22, 2012 on
the ground that permanent residence applications are assessed based on the
information available at the time it is reviewed by a visa officer.
[8]
On January 28, 2013, the applicant filed a
Notice of Application for Leave and Judicial Review (the Leave Application)
against the Officer’s decision denying his Skilled Worker Application and
sought an extension of time in order to do so. The applicant did not challenge
the decision dismissing his request for reconsideration.
[9]
Leave was granted by this Court but the request
for an extension of time was not addressed by the Leave judge.
III.
Issues
[10]
This case raises two issues. The first issue is
whether the applicant is entitled to an extension of time in order to cure the
Leave Application’s late filing. The second is whether, assuming an extension
of time is granted, the Officer’s decision denying the applicant’s Skilled
Worker Application should be interfered with.
IV.
Analysis
A.
The Request for an Extension of Time
[11]
According to s. 6(2) of the Federal Courts
Immigration and Refugee Protection Rules, SOR/93-22, as amended, a request
for an extension of time is normally considered at the same time as the
application for leave. When it is not, the jurisdiction over the request for an
extension of time falls to the application judge (Deng Estate v Canada (Public Safety and Emergency Preparedness), 2009 FCA 59 at para 17).
[12]
According to s. 72(2)(b) of the Act, the
applicant had 60 days from the date of the Officer’s decision to file his Leave
Application. He filed it on January 28, 2013, five months past the prescribed
deadline.
[13]
The test applicable to requests for extension of
time was set out by the Federal Court of Appeal in Canada (Attorney General)
v Hennelly, 244 NR 399, [1999] FCJ No 846 (QL), at para 3. This test
requires an applicant to demonstrate: (1) a continuing intention to pursue his
or her application; (2) that the application has some merit; (3) that no
prejudice to the respondent arises from the delay; and (4) that a reasonable
explanation for the delay exists.
[14]
The applicant claims that there is a reasonable
explanation for the delay as he was unaware that a decision regarding his request
for reconsideration had been rendered and that the time to file his Leave
Application was running while his request was still pending.
[15]
He says he had a continuing intention to
challenge the Officer’s decision, as evidenced by his request for reconsideration,
that he has an arguable case and that the Minister has suffered no prejudice
given the “minimal delay” in filing the Leave Application.
[16]
The Minister disagrees.
[17]
First, he takes issue with the applicant’s
allegation that he never received the decision regarding his request for
reconsideration. The Minister filed evidence that this decision was
communicated to the applicant’s counsel at the time via e-mail to the e-mail
address listed on the letterhead of the reconsideration request. He claims that
when a visa officer sends a communication to an address provided by a skilled
worker applicant that has not been revoked or revised and where there is no
indication of a communication failure, the risk of non-delivery rests on the
applicant.
[18]
Second, the Minister contends that the fact the
applicant was not aware that the time for filing the Leave Application was
running while the reconsideration request was pending is not a reasonable
explanation for the delay as poor legal advice and ignorance of the law are not
valid excuses in this regard. He says that the applicant had an obligation to
file the Leave Application within 60 days of the Officer’s decision denying his
Skilled Worker Application, regardless of the fact he had also requested a
reconsideration of the Officer’s decision.
[19]
Finally, the Minister submits that the
applicant’s failure to file the Leave Application until seven months after the
impugned decision was rendered does not demonstrate a continuing intention to
pursue the matter. The Minister concludes by stressing that statutory time
limits serve an important public interest in allowing to bring finality to
administrative decisions.
[20]
I agree with the Minister that the applicant has
failed to provide a reasonable explanation for the seven-month delay in filing
his Leave Application. This, in my view, is fatal to the applicant’s request
for an extension of time for two reasons.
[21]
First, the fact the applicant and his counsel at
the time, were not aware that the time for filing the Leave Application was
running despite the request for reconsideration being pending, is not a valid
explanation for the delay as ignorance of the law and failings of counsel are
not meritorious excuses in this regard (Chin v Canada, 69 FTR 77, [1993]
FCJ. No. 1033 (QL) at para. 10 and Cove v Canada, 2001 FCT 266, [2001]
FCJ. No. 482 (QL); at para. 10; Mutti v Minister of Citizenship and Immigration,
2006 FC 97, at para 4).
[22]
Such excuses in the context of this case, if
they were to be accepted, would undermine, in my view, the importance of time
limits imposed by Parliament. This Court has indeed often said that time limits
are not whimsical (Canada v. Berhad, 2005 FCA 267 at para 60; (Canada
(Minister of Human Resources Development) v Hogervost, 2007 FCA 41 at para
24; Strungmann v Canada (Citizenship and Immigration), 2011 FC 1229 at
para 8; Dawe v Her Majesty the Queen, 86 FTR 240 (FCA), [1994] FCJ
No1327 (QL), at para 18). The principle is that “[time-limit]
exists in the public interest, in order to bring finality to administrative
decisions so as to ensure their effective implementation without delay and to
provide security to those who comply with the decision or enforce compliance
with it, often at considerable expense” (Berhad, above, at para
60).
[23]
There is no such thing as a request for
reconsideration in the Act or enabling regulations when it comes to rejections
of permanent residence’s applications in general, and of Federal Skilled Worker
visa applications, in particular. In fact, s. 75(3) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the Regulations) makes it
clear that there is no further assessment of such applications once they are
refused by a visa officer. Reconsiderations therefore are not mandated by the
Act and Regulations. Whether a decision will be reconsidered or not is entirely
within the discretion of the visa officer (Ali v Canada (Minister of
Citizenship and Immigration), 2013 FC 879, at para 21).
[24]
In such context, seven months to sort out that
time was running despite the request for reconsideration is simply too long a
delay for such a basic issue to be acceptable.
[25]
Second, the confusion surrounding the
communication of the decision on the request for reconsideration is not helpful
to the applicant either. The evidence on record is that this communication was
made to the proper e-mail address, with no indication that the e-mail
transmission failed or that the e-mail was not received at the receiving end.
The evidence of counsel for the applicant is that he never saw that e-mail.
[26]
In such circumstances, however unfortunate they
might be, the risk of non-delivery rests with the applicant, not the Minister (Kaur
v Minister of Citizenship and Immigration, 2009 FC 935, at paras
8-12). Even assuming those risks rest on the Minister, this would not change
the fact that there was no valid excuse for the applicant not to file his Leave
Application within the 60-day time limit prescribed by s. 72(2)(b) of the Act.
[27]
For these reasons, I can not accept the
applicant’s request for an extension of time.
[28]
If I am wrong on this, then I am of the view
that the applicant has not established that interference with the Officer’s
decision denying his permanent residence application is warranted.
B.
There is no Basis for the Officer’s Decision to
be Interfered With
[29]
According to s. 11 and 12 of the Act, foreign
nationals applying for a visa, as a condition for entering Canada, may be selected for permanent residency on the basis of their ability to become economically
established in Canada. To that end, the government, through the Regulations,
has created a certain number of visas’ classes. The Federal Skilled Worker visa
category is one of them. It is defined in s. 75(1) of the Regulations.
[30]
Foreign nationals applying for permanent
residence under the Federal Skilled Worker category must meet the minimal
requirements set out in s. 75(2) of the Regulations. That is :
a.
within the 10 years preceding the date of their
application, they have at least one year of full-time employment experience, or
the equivalent in continuous part-time employment, in one or more of a certain
number of listed occupations;
b.
during that period of employment, they performed
the actions described in the lead statement for the occupation as set out in
the occupational descriptions of the NOC; and
c.
during that period of employment, they performed
a substantial number of the main duties of the occupation as set out in these
NOC occupational descriptions.
[31]
As set out in s 75(3) of the Regulations, the
role of visa officers is to review the applicants’ work experience to determine
if they meet these minimal requirements.
[32]
These provisions of the Act and Regulations are
reproduced in the Annex to this decision.
[33]
In the case at bar, the applicant claims that
the Officer breached the principles of procedural fairness in failing to notify
him of his concerns with the content of the employer’s letter and with the fact
the job description he himself provided was taken verbatim from the NOC.
He further claims that the Officer’s decision is unreasonable.
[34]
There is no controversy here as to the standard
of review applicable to these two issues. The question of whether or not the
Officer should have brought his concerns to the attention of the applicant and
offered him an opportunity to address them is a question of procedural fairness
and is reviewable on a standard of correctness. As to the Officer’s assessment
of the evidence and subsequent finding that the applicant’s Skilled Worker
Application is ineligible for processing, they are reviewable on the standard
of reasonableness (Obeta v Canada (Citizenship and Immigration), 2012 FC
1542, 424 FTR 191 at para 14 [Obeta]).
The Officer
had no obligation to notify the applicant of the deficiencies in his Skilled
Worker Application or supporting material
[35]
It is well established that Skilled Worker visa
applicants bear the onus of putting together an application that is not only
complete “but relevant, convincing and unambiguous”
(Obeta, above, at para 25; Ansari v Canada (Citizenship and
Immigration), 2013 FC 849 at para 18 [Ansari]; Sharma v Canada
(Citizenship and Immigration), 2009 FC 786, at para 8).
[36]
It is also well established that the decisions
made by visa officers on such applications are entitled to a high degree of
deference. In other words, because of the visa officers’ expertise in this
area, these decisions will not be disturbed unless they are unreasonable or
based on irrelevant or extraneous considerations (Talpur v Canada
(Citizenship and Immigration), 2012 FC 25, at para 19 [Talpur]).
[37]
In terms of procedural fairness, the duty owed
to Skilled Workers visa applicants is at the low end of the spectrum as there
are no substantive rights at issue, a visa applicant having no unqualified
right to enter Canada (Talpur, above, at para 21; Obeta, above,
at para 15; Malik v Canada (Citizenship and Immigration), 2009 FC 1283,
at paras 26-29).
[38]
This means that there is no obligation on a visa
officer to notify an applicant of the deficiencies in his or her application or
supporting material. This means also that there is no obligation on a visa
officer to provide an applicant with an opportunity to address any concerns the
officer may have when the supporting documents are incomplete, unclear or
insufficient to satisfy the officer that the applicant meets the requirements
of the Act and Regulations (Hamza v Canada (Citizenship and Immigration),
2013 FC 264, 429 FTR 93 at paras 22-24; Ansari, above, at para 23; Chen
v Canada (Citizenship and Immigration), 2011 FC 1279, at para 22 [Chen]).
[39]
As this Court has stated, procedural fairness
does not stretch to the point of requiring that a visa officer be obliged to
provide an applicant with a “running score” of the weaknesses in his or her
application (Rukmangathan v Canada (Minister of Citizenship and
Immigration), 2004 FC 284, 247 FTR 147 at para 23).
[40]
Contrary to what the applicant claims, the issue
of whether a visa officer should hold an interview will only arise when the
credibility, accuracy or genuine nature of the information submitted by an
applicant in support of his or her visa application is the basis of the visa
officer’s concerns (Hassani v Canada (Citizenship and Immigration), 2006
FC 1283, [2007] 3 FCR 501 at para 24). As Mr. Justice Roy stated in Bar v Canada (Citizenship and Immigration), 2013 FC 317, at para 29:
In other words, the rules of natural justice
may require that additional questions be asked if the evidence would have been
sufficient had it not been for doubts regarding the credibility, accuracy or
genuine nature of information submitted by the applicant in support of his or
her application. However, if the application itself is insufficient, there is
no duty to contact the applicant to ask him or her to bolster the application.
[41]
Here, in my view, the Officer’s concerns were
clearly related to the insufficiency of the information provided by the
applicant.
[42]
The letter from the applicant’s employer was
clearly deficient. It contained no description of the applicant’s duties, but
rather a simple list of projects on which the applicant was called upon to
work. This is not a matter of credibility, accuracy or genuineness but a matter
of sufficiency. The applicant must have been aware of this weakness in his
Skilled Worker Application material as his request for reconsideration was
prompted by his desire to file a more detailed letter from his employer.
[43]
The applicant bore the onus of putting together
an application that was complete, relevant, convincing and unambiguous and the
Officer had no duty, according to the jurisprudence of this Court, to provide
him with an opportunity to address the Officer’s concern regarding the content
of the employer’s letter. As Mr. Justice Donald J. Rennie pointed out in Chen,
at para 22, visa officers are not expected to engage in a dialogue with visa
applicants on whether the Act and Regulations are satisfied.
[44]
With respect to the Officer’s concern regarding
the paraphrasing of the NOC’s descriptions in the applicant’s Skilled Worker
Application materials, I am of the view that when the Officer’s decision is
read as a whole, this concern is not one of credibility but again one of
sufficiency of evidence.
[45]
It is well settled within the jurisprudence of
this Court that the mere use of the term “credibility” in a visa officer’s
decision is not determinative of whether his or her concern regarding copying
or paraphrasing the NOC descriptions is about credibility or sufficiency. Each
case in this regard must be assessed on its own facts (Ansari, above, at
para 30; Ha v Canada (Minister of Citizenship and Immigration), 2004 FCA
49, [2004] 3 FCR 195, at paras 40-44, Hamza v Canada (Minister of
Citizenship and Immigration), 2013 FC 264, 429 FTR 93, at para 30).
[46]
Here, although the Officer did indicate in his
decision that the paraphrasing of the NOC by the applicant diminished the
credibility of the job description he provided in his application materials,
his key findings were clearly about the insufficiency of the applicant’s
evidence.
[47]
Indeed, all the references to the duties
and experiences of the applicant paraphrased the NOC; none came from another
source, including the employer’s letter. In such circumstances, these
references could be regarded as self-serving and the Officer was therefore
entitled to give them less weight and question whether they accurately
described the applicants’ work experience (Kamchibekov v Canada (Minister of
Citizenship and Immigration), 2011 FC 1411, at para 15).
[48]
In other words, in such context, visa officers
are justified in being doubtful as to whether a visa applicant meets the
Skilled Worker visa requirements. Although these doubts may sometimes be
expressed as credibility concerns, as they were in the present case, they often
are an indication that a visa officer was not able to make that determination
based on the material before him (Ansari, at para 32; Kamchibekov,
above, at 27).
[49]
In the present case, none of the other concerns
expressed by the Officer in his decision pointed to credibility; they all
pointed to the insufficiency of the applicant’s information. To paraphrase Ansari,
what transpires from the impugned decision, when read as a whole, is that the
Officer could not be confident that the applicant actually had the experience
since he could not “articulate his own experience or
duties or responsibilities in his own words and in relation to the job he
actually performed” (Ansari, at para 32).
[50]
The Officer’s decision is clear and unequivocal
in this respect. In such context, the Officer had no obligation to notify the
applicant of the deficiencies in his Skilled Worker Application and provide him
with an opportunity to address his concerns in this regard.
[51]
There was no breach of the principles of
procedural fairness in the present case.
The Officer’s
decision was otherwise reasonable
[52]
The applicant claims in any event that the
Officer’s finding that he did not meet the minimal requirements for the
issuance of a Skilled Worker visa was unreasonable. He contends in this regard
that evidence of his academic qualifications, of the fact his employment letter
was issued by a construction company and of his job title as “construction
manager” was enough to establish that he satisfied these requirements.
[53]
This Court has established, in unequivocal
terms, that a job title and relevant education is not sufficient for someone to
establish that he or she is a Skilled Worker within the meaning of the
Regulations (Tabanag v Canada (Minister of Citizenship and
Immigration), 2011 FC 1293, at para 22; Mollajafari v Canada (Ministry
of Citizenship and Immigration), 2013 FC 906; at paras 15-19; Moradi v
Canada (Minister of Citizenship and Immigration), 2013 FC 1186 at para
35.).
[54]
In Tabanag, Mr. Justice Richard Mosley
has articulated this rule as follows:
Here, there was
no evidence before the agent to establish that the applicant had performed any
of the duties required to satisfy the occupational classification. It
is not sufficient for an applicant to provide evidence that he or she has the
academic qualifications, bears a job title and is addressed by that title in
correspondence. They must provide evidence that they have actually performed
"a substantial number of the main duties of the occupation". Here, the applicant did not provide that evidence
either through the employer's certificate or alternate documentation. The
information submitted fell short of establishing a prima
facie case, as the applicant contends (Tabanag,
at para 22). (my emphasis)
[55]
The Regulations clearly indicate that a foreign
national is only a skilled worker if he can show one year of full-time
employment where he performed the actions in the lead statement of the NOC and
a substantial number of the main duties.
[56]
The applicant, as I previously indicated, had
the burden of putting together an application that was complete, relevant,
convincing and unambiguous (Obeta, above, at para 25). The Officer found
that he had not done so. In particular, he found that copying the NOC and
providing the job titles and academic qualifications was not convincing and
unambiguous evidence.
[57]
Decisions made by visa officers on Skilled
Worker visa applications are entitled to a high degree of deference. On the
facts of the present case and in light of this Court’s jurisprudence, I am
satisfied that the Officer’s finding that the applicant did not meet the
requirements for a Skilled Worker visa set out in s. 75(2) of the Regulations,
falls within the range of acceptable outcomes (Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, at para 47). I see no reason to interfere with
the Officer’s decision.
[58]
The parties have not proposed any question of
general importance. None shall be certified.
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