Docket: IMM-3773-13
Citation:
2015 FC 82
Ottawa, Ontario, January 22, 2015
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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AMIRA LOTFY FARWIZ MILLIK
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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.
Nature of the Matter and Background
[1]
Pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [Act], Ms. Amira Lotfy
Farwiz Millik [Applicant] seeks judicial review of the decision of a visa
officer [Officer] to deny her application for permanent residence in Canada
under the Federal Skilled Worker class. The Officer was not satisfied that the
Applicant had met the requirements set forth in subsection 75(2) of the Immigration
and Refugee Protection Regulations, SOR/2002-227 [Regulations].
[2]
The Applicant is a 44 year old citizen of Egypt who received a job offer as an administrative secretary at the Queen’s Medical Centre, in Oakville, Ontario, from her sister, Dr Bebawy. Following the issuance of a positive
arranged employment opinion from Service Canada dated February 7, 2012, the
Applicant applied for permanent residence status in Canada under the Skilled
Worker Program in September, 2010. This application was rejected by the Officer
in a letter dated April 18, 2013.
II.
Decision
[3]
The Officer was not satisfied that the Applicant
had met the requirements set forth in subsection 75(2) of the Regulations. The
Officer’s decision letter stated, in part, that:
[T]he letter you provided
from your employer does not list your hours of work and your letter of
employment provides insufficient information about your duties to satisfy me
that you have performed the actions described in the lead statement or a
substantial number of the main duties of the occupations in which you have
requested assessment: NOC [National Occupational Classification code] 1243: Medical
administrative assistants, and NOC 4031: Secondary school teachers. I have also
considered NOC 1241: Administrative assistants.
[4]
In the Global Case Management System [the GCMS]
notes, the Officer found, amongst other things, that:
•
The duties described in the letter from the
Applicant’s employer were very vague and referred to “participating
in” activities and, thus, were insufficient to assess the Applicant’s
specific duties;
•
The duties that the Applicant said that she had
as an administrative assistant did not match the main duties of NOC codes 1241
or 1243;
•
The duties that the Applicant said that she had
as a teacher did not match the main duties of NOC code 4031;
•
The original Arabic copy of the letter from her
employer was not supplied and the copy on file had been translated in Ontario;
•
The employment letter did not list the
Applicant’s hours of work or confirm that she worked full time;
•
The employment letter did not state the
Applicant’s salary and no pay stubs or employment contract were provided in
support of the application;
•
The employment letter did not provide any
contact information for the school where the Applicant worked; and
•
The “[d]uties listed [in
the employment letter] do not match any of the NOCs in which assessment is
required”.
[5]
The Officer thus concluded that the Applicant
had not proven that she performed the duties of any of the occupations for
which assessment had been requested. Accordingly, the Officer refused the
application and did not complete a selection assessment.
III.
The Parties’ Submissions
A.
The Applicant’s Arguments
[6]
The Applicant submits that the Officer’s
decision is unreasonable. Not only is there a clear factual error concerning
the letter from the Applicant’s employer, but the Officer misapplied the NOC
codes. According to the Applicant, the Officer’s decision is not intelligible
and lacks transparency.
[7]
The Applicant criticizes the Officer’s statement
that the letter from the Applicant’s employer did not disclose her hours of
work or confirm that she worked full time. The Applicant states that is
erroneous as the letter clearly says: “[t]he school
certifies that she has excellent organization skills, as she works full time (40
hours per week), and takes full responsibility for her work.” The
Applicant argues that this failure to register such readily apparent and
important information in the letter casts doubt on the Officer’s diligence in
reviewing that letter as well as on the subsequent analysis. In addition, the
Applicant submits that a statement of the salary for the position is not
required by the Regulations.
[8]
The Officer, according to the Applicant, unduly
and unreasonably focused upon the words “participating in”
in the employer’s letter, especially given that it was a translation. Citing
the decisions in Rodrigues v Canada (Citizenship and Immigration), 2009
FC 111 at paragraphs 9-10 (available on CanLII), and in Noman v Canada (Minister
of Citizenship and Immigration), 2002 FCT 1169 at paragraphs 29, 32-33, 24
Imm LR (3d) 131, the Applicant submits that an applicant does not need to
perform all of the duties listed in a NOC and a visa officer needs to assess
the “pith and substance” of an applicant’s previous employment. The Applicant
says there is an element of common sense that needs to be applied in the
circumstances of this case, since she clearly is a teacher, an occupation
common across the world.
[9]
Citing the decision in Taleb v Canada (Citizenship and Immigration), 2012 FC 384 at paragraph 36, 407 FTR 185, the
Applicant argues that the employer’s letter sufficiently lists the Applicant’s
job duties. She argues that the NOC requirements are broad, and it was not
reasonable for the Officer to focus upon the duties in minute detail. The
decision in Zeeshan v Canada (Citizenship and Immigration), 2013 FC 248
(available on CanLII), is distinguishable from the circumstances here, the
Applicant says, since in that case there was no list of duties in the
employer’s letter.
[10]
The Applicant further argues that the Officer’s
reasons were not intelligible, as the Officer did not sufficiently explain how
the decision was reached. Citing Abbasi v Canada (Citizenship and
Immigration), 2013 FC 278 at paragraphs 6-9, 16 Imm LR (4th) 323 [Abbasi],
and Komolafe v Canada (Citizenship and Immigration), 2013 FC 431 at paragraphs
8-11, 16 Imm LR (4th) 267 [Komolafe], the Applicant says that the
reasons are simply not transparent enough.
[11]
As for the decision in Khowaja v Canada
(Citizenship and Immigration), 2013 FC 823, 437 FTR 219 [Khowaja] upon
which the Respondent relies, the Applicant submits that that case is
distinguishable since the officer’s notes in that case were more extensive and
better reasoned than is the case here.
B.
The Respondent’s Arguments
[12]
The Respondent states that the onus was upon the
Applicant to put her best case forward and to submit an application that was “relevant, convincing and unambiguous” (see: Obeta v Canada (Citizenship and Immigration), 2012 FC 1542 at paragraph 25, 424 FTR 191; Pan v Canada (Citizenship and Immigration), 2010 FC 838 at paragraph 27, 90 Imm LR (3d) 309).
[13]
The Respondent concedes that the Officer erred
in finding that the letter from the Applicant’s employer did not confirm her
work schedule or full-time status. However, this error, the Respondent says,
was a minor one that does not make the decision as a whole unreasonable.
[14]
The Respondent submits that the Officer’s
analysis was based on the uncertainty of the duties performed by the Applicant.
The employer’s letter only refers to the Applicant as a “teacher,”
not a “secondary school teacher,” which was the relevant
occupation in respect of which the Applicant had requested assessment. Further,
although we can assume what a teacher does in respect of some things, the
Applicant also said that she performed a number of administrative duties, which
implies a somewhat different role than a teacher in Canada. In the Respondent’s
view, her role was ambiguous, and the Officer was entitled to expect more detail.
[15]
The Respondent also states that the NOC
comparison made by the Officer was clear. The Respondent argues that there is a
presumption of deference to the decision of the Officer and this case is no
different than that in Khowaja at paragraph 38.
[16]
The Respondent concludes that the Officer’s
decision was a reasonable one.
IV.
Issues and Analysis
[17]
This application for judicial review raises only
one central issue for determination by the Court: was the Officer’s decision
that the Applicant did not meet the requirements set out in subsection 75(2) of
the Regulations reasonable?
[18]
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 paragraphs 10-11 (available
on CanLII). The Supreme Court has stated that reasonableness requires “justification, transparency and intelligibility within the
decision-making process” as well as 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 paragraph 47, [2008] 1 S.C.R. 190.
[19]
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 paragraph 14, [2011] 3 S.C.R. 708 [Newfoundland
Nurses]; see also Ayanru v Canada (Citizenship and Immigration),
2013 FC 1017 at paragraph 7 (available on CanLII). However, reasons must “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”: Newfoundland Nurses at paragraph
16. The Court does not have a licence to fill in the gaps in a decision or to speculate
as to what the decision-maker was thinking: see Komolafe at paragraph 11;
Lemus v Canada (Citizenship and Immigration), 2014 FCA 114 at
paragraphs 37-38, 372 DLR (4th) 567.
[20]
I agree with the Applicant’s submission that the
Officer’s erroneous finding of fact as to her full-time work status, which error
the Respondent concedes, casts doubt on the Officer’s entire review of the
Applicant’s application. In my view, this factual error clouded and confused
the Officer’s analysis of the Applicant’s job duties as a teacher. This case is
not like that in Khowaja, upon which the Respondent relies, since there
was no blatant factual error in the officer’s notes in that case.
[21]
This factual error, in and of itself, does not
render the Officer’s decision unreasonable. However, it was incumbent upon the
Officer here to assess and analyze the “pith and substance” of the Applicant’s
duties at the Manarat Alexandria Private School and consider those duties with
the NOCs being assessed, something which the Officer did not do in the reasons.
On the contrary, the Officer simply stated in the GCMS notes that he or she
found the description of the duties in the letter from the Applicant’s employer
“very vague” because they referred merely to “participating in” certain activities. In my view, it
was not reasonable for the Officer to microscopically examine the employer’s
letter in this manner and then to conclude with reference to the duties listed
in the letter: “Insufficient for me to assess her
specific duties”.
[22]
This Court’s decision in Komolafe is
instructive in this regard, where my colleague Mr. Justice Donald Rennie
stated:
[8] ... It is not for this Court to
determine whether the applicant has in fact performed the actions described in
the lead statement and a substantial number of the main duties. The agent must
do so, with some line of reasoning which provides a basis for review. As
Justice Richard Mosley found in Gulati v Canada (Citizenship and
Immigration), 2010 FC 451, it is impossible to assess the reasonableness of
the officer’s conclusions without knowing which duties had not been performed.
[9] The decision provides no insight
into the agent’s reasoning process. The agent merely stated her conclusion,
without explanation. It is entirely unclear why the decision was reached.
[23]
The Officer’s conclusion that the “duties listed [in the employment letter] do not match any of
the NOCs in which assessment is required” was made without any apparent
evaluation or assessment of the Applicant’s duties at the Manarat Alexandria
Private School. The Regulations require in paragraph 75(2)(c) that only a “substantial” number of the main duties be performed
with respect to the NOC being assessed. It is not clear in this case that the
Officer turned or directed his or her mind to the question of whether subsection
75(2) of the Regulations had been met.
[24]
As to the adequacy or sufficiency of the
Officer’s reasons in this case, this Court’s decision in Abbasi deserves
note. In Abbasi, Madam Justice Judith Snider stated as follows:
[9] The Officer’s reasons did not need
to be extensive. However, to be reasonable, the reasons must demonstrate that
the Officer had performed his duty. In this regard, I note the words of Justice
Mosley in Gulati v Canada (Minister of Citizenship and Immigration),
2010 FC 451 at paras 41-42, 89 Imm LR (3d) 238:
It is impossible to assess the officer's
conclusion, that the applicant had not performed a substantial number of the
main duties of NOC 6212, without knowing which duties the officer thought had
not been performed and why.
According to Dunsmuir, above, at
paragraph 47, the transparency and intelligibility of a decision are important
elements of a reasonableness analysis. I conclude that their absence in the
present decision render it unreasonable.
[25]
As in Abbasi, the Officer’s decision in
this case offers no insight into his or her reasoning process and it is
entirely unclear why the decision was reached. The Officer’s decision does not
provide sufficient grounds for this Court to understand the Officer’s reasoning
and, thus, is neither intelligible nor transparent.
V.
Conclusion
[26]
In the result, therefore, I find that the
Officer’s decision is not reasonable as it is not defensible in respect of the
facts and law.
[27]
Accordingly, the application for judicial review
is allowed, the decision of the Officer is quashed, and the matter sent back
for re-determination by a different visa officer. Neither party raised a
question of general importance, and so none is certified.
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