Docket: IMM-6664-13
Citation: 2015 FC 325
Ottawa, Ontario,
March 16, 2015
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
|
MARIAM MAHFOUZ MEKHAEL KERYAKOUS
|
Applicant
|
and
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
Respondent
|
JUDGEMENT AND REASONS
[1]
This is an application for judicial review of a
decision of a visa officer of the Embassy of Canada in Cairo, Egypt, refusing
Ms. Keryakous’ application for permanent residence in the Federal Skilled
Worker class [FSW class].
[2]
For the reasons that follow, this application is
allowed.
Background
[3]
Ms. Keryakous is a citizen of Egypt. In January
2013, she applied for permanent residence in the FSW class and requested that
her application be reviewed based on experience in the “Other
administrative service managers” (NOC 0114) and “Retail
and wholesale trade managers” (NOC 0621) occupations.
[4]
With her application, she provided a Human
Resources and Skills Development Canada [HRSDC] confirmation of her arranged
employment with a pharmacy in Peterborough, Ontario, as a “Pharmacy Administration Manager” [the arranged
employment]. This document indicated that a Bachelor’s degree was required by
the employer for this position. She also included two letters from employers
in Egypt – she was employed as an “Assistant
Administrative Manager” and “Administrative
Manager” at Emad Soliman Pharmacies Group [the Pharmacy] and as an “Administrator” at the Mansoura University Faculty of
Medicine [the University].
[5]
At the Pharmacy, her job duties included
reviewing attendance of employees, creating timetables for executives and
cashiers, determining daily tasks for administrative employees and cashiers,
managing customer service and complaints, determining stock deficiencies, and
placing orders. At the University her job duties included “managing, directing and assigning the tasks of all office
staff as well as IT staff and technicians.”
[6]
In a Global Case Management System [GCMS] entry
dated April 8, 2013, the officer noted that the letters on file did not satisfy
him or her that Ms. Keryakous “has performed the main
duties of a manager or even of a NOC A or B position full-time,” that
the job duties from her employment in Egypt appeared to be clerical, and that “it was not at all clear that she has been responsible for
supervising other employees.” The officer was concerned that Ms.
Keryakous was not qualified for the arranged employment and that she intended
to reside in Mississauga, Ontario when the arranged employment was in
Peterborough.
[7]
A procedural fairness letter dated April 19,
2013, informed Ms. Keryakous of these concerns and she was given sixty days to
respond.
[8]
Ms. Keryakous provided a response on May 10,
2013, including another letter from the Pharmacy and a job description card
from the University that attested to the fact that her employment experience
included management, training, and supervising staff. She also provided a
letter from her prospective Canadian employer stating that he had interviewed
her thoroughly and was satisfied that she had “tremendous
practical experience and management skills” and that her “experience and knowledge meet and even exceed those required
for the job in Canada.” The prospective employer indicated that he
lives in Mississauga and commutes to work in Peterborough, so he had offered to
carpool with Ms. Keryakous until she and her family decide where to live.
[9]
The application was refused on June 19,
2013, with the officer indicating that no submissions to the fairness letter
had been received. The Applicant’s representative advised the visa office of
the error and provided proof that a response has been sent before the
deadline. The GCMS notes indicate that the submissions had been made in time
but not properly attached to the file. By letter dated August 12, 2013, the officer
advised that the application had been re-opened and requested documentation to
show that her uncle, Mr. Nagi Youssef, “is currently
residing in Canada which should include a lease agreement, most recent notice
of assessment (NOAH) from CRA, employer’s letter confirming employment, monthly
bills, credit card invoices.” In addition the letter stated that she “is required to provide … updated contact information for her
relative in Canada.”
[10]
Ms. Keryakous’ representative responded by email
dated September 9, 2013, attaching her Uncle’s Confirmation of Landing dated
July 4, 2012, Permanent Resident Card dated July 4, 2012, and a TD Canada Trust
credit card statement dated July 25, 2013, for the month showing purchases and
payments made between July 14 and July 25, 2013. It was explained that the
uncle was on a month-to-month lease and had no lease agreement, did not have a
Notice of Assessment from CRA as he had not yet filed a tax return, and had no
current employment but was seeking employment.
[11]
The officer refused the application in a
decision dated September 12, 2013. The officer was not satisfied that Ms.
Keryakous had experience that fit within the “Other administrative service
managers” (NOC 0114) or “Retail and wholesale trade
managers” (NOC 0621) categories or in any Skill Type 0 Management
Occupation. However, the officer was satisfied that she had sufficient
experience in an occupation that corresponds to Skill Level A or B of the NOC
matrix to meet the requirements of subsection 75(2) of the Immigration and
Refugee Protection Regulations, SOR/2002-227, so this was used as the basis
of her assessment.
[12]
The Officer did not award Ms. Keryakous any
points for her arranged employment in Canada. The officer found that her
response to the April 9, 2013 fairness letter was insufficient to overcome his
or her concerns that Ms. Keryakous is not able to perform or likely to accept
and carry out arranged employment.
[13]
In a GCMS entry dated August 8, 2011, the
officer wrote:
[Applicant] has no education that is directly
related to retain [sic] management or to pharmacy. She has a bachelor
degree in English Language and literature …. I have reviewed other
applications with similar [Arranged Offers of Employment] where the applicant
is a practicing Pharmacist in Egypt but is not yet registered to work as a
Pharmacist in Canada. That is not the case here. Applicant has no
qualifications as a pharmacist in Egypt and so she could not be registered as a
Pharmacist in Canada (unless she takes a degree in Pharmacy). I understand
that the [Arranged Offer of Employment] is not for a job as a pharmacist and
therefore it is not necessarily relevant that she is not qualified as a
pharmacist. I also understand that she has provided evidence that she worked
in a pharmacy in an administrative position in Egypt and that this is relevant
to the position offered. Nevertheless, I find it impractical that the employer
would not seek to hire someone who has the ability to be registered in Canada
as a pharmacist. It is certainly reasonable to suppose that such an employee
would have more to offer for the purposes of the owner of pharmacies.
[14]
The officer also did not award Ms. Keryakous any
points for adaptability on the basis of having a relative in Canada. In
reaching that decision, the officer considered the response to the request for
supporting documentation. In a GCMS entry dated September 12, 2013, the
officer noted that Mr. Youssef’s credit card statement did not establish he was
living in Canada because it only covered a brief period of time, showed
purchases which could have been made by someone on vacation and there were no
payments that indicated long-term residency. Further, the officer questioned
whether Mr. Youssef actually lived at the address provided since there was no
lease and the officer had been unable to contact Mr. Youssef at the phone
number provided. Mr. Youssef’s status as a permanent resident did not address
the officer’s concern that he may be living and working outside of Canada. The
officer concluded that he was not satisfied that Mr. Youssef is living in
Canada. Ms. Keryakous does not challenge that part of the decision.
[15]
The GCMS entry noted that Ms. Keryakous, her
prospective employer and the immigration consultant are all Egyptian Christians
and that “while this itself is in no way an indication
that the job offer is not genuine or that the applicant is unable to perform
the job,” if she is “under qualified for the job
or doesn’t really intend to take the job, it is possible that community members
have facilitated this job offer so that the applicant would be eligible to
apply for [permanent residence]” [emphasis added].
[16]
In the officer’s overall assessment, Ms.
Keryakous received 65 points out of a possible 100. The minimum requirement to
qualify for immigration to Canada is 67, so the officer concluded that Ms.
Keryakous had not obtained sufficient points to demonstrate that she will be
able to become economically established in Canada.
Issues
[17]
The issues are:
1.
Did the officer err in failing to exercise his
discretion to approve Ms. Keryakous’s skilled worker application given the
unique circumstances of this case?
2.
Did the officer err in assessing Ms. Keryakous’s
arranged employment? Did the officer deny Ms. Keryakous procedural fairness by
failing to provide a meaningful opportunity to respond to the officer’s
concerns with respect of the offer of arranged employment?
Analysis
A.
Substituted Evaluation
[18]
I agree with the respondent that this issue is
to be decided in its favour. As is stated in the Minister’s memorandum of
argument, “While visa officers have the authority to
consider an alternative evaluation under section 76(3) on their own initiative,
they are under no duty to exercise that discretion unless specifically
requested to do so:” Ealamieh v Canada (Minister of Employment and Immigration),
2008 FC 722. There was no request by Ms. Keryakous that the officer exercise
that discretion and there is thus no reviewable error in his failure to do so
on his own initiative.
B.
Evaluation of the Arranged Employment Offer
[19]
It is submitted by the respondent that the
officer’s decision is entitled to deference and that his decision is reasonable
based on the record.
[20]
While I accept that the result reached by the
officer was open to him, I am similarly of the view that the opposite result
was equally open to him based on the record. I am deeply concerned that the
result reached may have been swayed by improper considerations and it is for
that reason, that the decision must be set aside and the application redetermined
by a different officer. Moreover, these improper considerations were outlined
in the officer’s notes and Ms. Keryakous was not given the appropriate
opportunity to respond to them. Therefore, the decision was also procedurally
unfair and must be set aside for this reason as well.
[21]
In particular, I am not satisfied that the
officer’s assessment was not influenced or tainted by a suspicion that the
offer was made only to facilitate Ms. Keryakous’s entry into Canada. My
concern arises from the fact that the officer appears to give no weight to the
opinion of Ms. Keryakous’s future employer in Canada who wrote that he had
interviewed Ms. Keryakous, discussed “her credentials
and areas of her practical experience” at her current and former jobs, and
found her to have “tremendous practical experience and
management skills and people skills” which led him to conclude that she
is more than qualified to do the job he offered her. I am particularly
troubled by at least two observations of the officer.
[22]
First, the officer speculates that it is “impractical” that the Canadian employer is not
seeking to fill the Administrative Manager position in the pharmacy with
someone who has the ability to be registered as a pharmacist in Canada. He
writes in the GCMS notes:
I find it
impractical that the employer would not seek to hire someone who has the
ability to be registered in Canada as a pharmacist. It is certainly reasonable
to suppose that such an employee would have more to offer for the purposes of
the owner of pharmacies.
[23]
This observation strongly suggests that the
officer has questions about the bona fides of the alternative employment offer.
[24]
Second, the officer in the fairness letter
observed that “you have declared an intention to reside
in Mississauga, Ontario, which is approximately 180km away from the location of
the employment that has been offered to you.” The officer asks no
question regarding this observation or indicates in any way what his concern
is. Nonetheless, the prospective employer in his letter to the officer writes:
I live in Mississauga and commute to
Peterborough. I offered Mariam to carpool with me at the beginning until she
and her family make their own choice of residence.
[25]
The officer’s comments on this again suggest
that he is questioning the bona fides of the offer. He writes:
I do not find it
reasonable that the applicant would intend to travel 180km each way to work….
The employer has indicated that [Ms. Keryakous] may carpool with him, but
according to his letter he owns many pharmacies. Are they all in
Peterborough? Does he go to Peterborough each day? I would have expected [Ms.
Keryakous] to provide a well-thought out explanation for why she has not
immediately chosen to live where the job is. The response provided is insufficient
to overcome my concerns.
Perhaps if the
officer had asked Ms. Keryakous why she had not immediately chosen to live
where the job is, he would have received a response. If that was his concern,
then procedural fairness dictates that he ought to have stated it clearly in
the fairness letter. His real concern appears to be directed to the
prospective employer and his offer of carpooling. Surely the employer knows
how frequently he drives to Peterborough and knows his expectations for the
employee. How can there be any real concern that the offer of carpooling will
permit the applicant to meet the employer’s needs?
[26]
In my view, one can not help but ask whether
this officer’s determination on these central questions was influenced by what
he speculated was a scheme by the Egyptian Christian community to facilitate Ms.
Keryakous entry into Canada. The officer suggests this as a possibility in the
GCMS notes:
I note that there is info in the [Arranged Employment
Offer] file which indicates that the employer and the consultant are both
Egyptians who know each other through their church community in Canada. According to her birth certificate on file [Ms. Keryakous] is also an Egyptian
Christian and she has at least one relative who recently became a [Permanent Resident]
so she has some connection to the same community in Canada. This in itself is
in no way an indication that the job offer is not genuine or that the applicant
is unable to perform the job. Indeed, if the applicant were qualified this
community connection would likely have a very large positive impact on her
ability to settle in to the job and Canada. However, if applicant is under
qualified for the job, or doesn’t really intend to take the job, it is possible
that community members have facilitated this job offer so that applicant would
be eligible to apply for [Permanent Residence], as having an [Arrangement
Employment Offer] was one of the very few ways to be eligible to apply at the
time that [Permanent Residence] applied. I note that the employer was
contacted by telephone prior to the issuance of the [Arranged Employment Offer]
and I note that the employer has provided updated confirmation of the [Arranged
Employment Offer]. However, after considering the applicant’s education and
training background and prior work experience, and after presenting my concerns
about her ability and likelihood to accept and carry out the employment and
providing her with an opportunity to respond, I am not satisfied that she is
able to perform and is likely to accept this employment.
[27]
In my view, it cannot be said with any assurance
that this decision is reasonable given the shadow of these concerns surrounding
it. Furthermore, the officer did not put his concerns to Ms. Keryakous in a
procedurally fair manner.
[28]
No party proposed a question for certification.
JUDGMENT
THIS COURT’S JUDGMENT is that this
application is allowed, the decision is set aside and the application is
referred to a different officer for determination.
"Russel W. Zinn"