Docket: IMM-1806-17
Citation:
2017 FC 1070
Ottawa, Ontario, November 27, 2017
PRESENT: The
Honourable Madam Justice McDonald
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BETWEEN:
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SHABBIR SADIK
KAPASI
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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]
Mr. Kapasi [the Applicant] seeks judicial review
of the Visa Officer’s [the Officer] refusal of his application for a permanent
resident visa as a skilled worker. He applied for consideration under National
Occupation Classification [NOC] code 1113 for securities agents, investment
dealers, and brokers. Despite providing details of the positions held and his
responsibilities with large financial institutions, his application was denied.
For the reasons that follow, this judicial review is allowed as the Officer
fettered his discretion by relying heavily on the wording of the NOC rather than
the governing legislation.
I.
Background
[2]
The Applicant is a citizen of India and became a
Canadian permanent resident along with his wife and son in 2005. His permanent
resident card expired in 2010, and in anticipation of the decision under
review, he renounced his Canadian permanent resident status in early 2017.
[3]
In December 2014, he applied under NOC 1113 of the
Federal Skilled Worker Class [FSWC] program. He claimed experience as an
investment representative similar to the securities agent/investment dealer
referenced in NOC 1113. The Applicant stated that he met the requirements under
s.75 (2) of the Immigration and Refugee Protection Regulations [IRPR],
which sets out the requirements for a foreign national to be considered a
skilled worker.
[4]
On March 17, 2015, the Applicant received
correspondence from Immigration Canada confirming his eligibility for the
program.
[5]
On February 23, 2017, he was notified that his application
was refused. The Applicant later received the reasons for the refusal, dated May
3, 2017.
II.
Decision Under Review
[6]
The decision consists of two documents - the
refusal letter of February 23, 2017, and the reasons of May 3, 2017.
[7]
In the February 23 letter, the Officer noted
that the Applicant did not meet the requirements of s.75 (2)(b) and (c) as the
Applicant did not perform the actions and duties described in NOC 1113. The Officer
noted that to qualify, applicants must establish that they performed the
actions described in the lead statements of the specific NOC and have carried
out a substantial number of the main duties of that occupation, including all
of the essential duties.
[8]
In the reasons of May 3, the Officer outlined the
main duties associated with each of the job titles in NOC 1113. The Officer
compared these duties to those outlined in the evidence provided by the Applicant
for the positions he held as Director in Global Securities with Bank of America;
Executive Director in the Equities Division for Goldman Sachs; Director with Deutche
Bank; and Vice-President of HDFC Mutual Fund.
[9]
With respect to the Bank of America position,
the Officer concluded that the Applicant’s position did not meet “in name or level” the sample positions listed in NOC
1113. The Officer further concluded that the Bank of America position did not
involve “investment orders to buy and sell
products…bids and orders to buy and sell securities…and reviews of portfolio
positions” as required by NOC 1113. The Officer concluded that although
the duties in the Applicant’s position involved managing clients, the clients
contemplated by NOC 1113 include personal, individual clients and businesses, and
not major clients like banks.
[10]
Regarding the Goldman Sachs position, the Officer
stated that the employment letter provided did not list any duties, and the
list of duties as provided by the Applicant could not be given much weight
because it was self-serving information.
[11]
The Officer took the same position with respect
to the information provided regarding the Applicant’s position with Deutche
Bank.
[12]
On the HDFC position, the Officer noted that
this position did not meet, in name or level, the positions set out in NOC 1113.
The Officer also noted that there was insufficient evidence to show that the
Applicant met the duties of a broker as outlined in the NOC.
[13]
Based upon this assessment, the Officer
concluded that the Applicant did not meet the requirements of s.75(2) of the
IRPR.
III.
Issues
[14]
The Applicant argues that the decision is
unreasonable and raises a number of issues. However, the issue of the Officer
fettering his discretion is dispositive of this application.
IV.
Standard of Review
[15]
The standard of review is reasonableness (Zhu
v Canada (Citizenship and Immigration), 2013 FC 155 at para 23).
V.
Analysis
A.
Fettering of Discretion
[16]
The Applicant argues that the Officer erred by strictly
applying the language and titles used in the NOC, thereby fettering his
discretion and failing to properly assess the Applicant’s evidence.
[17]
An administrative decision-maker fetters his/her
discretion by relying solely on non-binding guidelines as if they were
law (Canada (Citizenship and Immigration) v Thamotharem, 2007 FCA 198 at
para 62; Stemijon Investments Ltd. v Canada (Attorney General), 2011 FCA
299 at para 24). This is precisely what occurred here, and therefore the
Officer’s decision is unreasonable.
[18]
Section 75 of the IRPR sets out the applicable
legislative framework which the Officer was under a duty to apply. Section
75(2)(b) of the IRPR requires applicants to perform actions “described in the lead statement for the occupation as set
out in the occupational descriptions of the [NOC].” Section 75(2)(c) of
the IRPR requires that an applicant perform “a
substantial number of the main duties of the occupation as set out in the
occupational descriptions of the [NOC], including all of the essential duties.”
[19]
While s.75 of the IRPR, to some extent,
incorporates the NOC as the standard by which an applicant’s experience is
measured, it clearly does not mandate a microscopic analysis of an applicant’s
experience according to the exact terminology of the titles or duties listed in
the NOC.
[20]
In this case, the lead statement for NOC 1113
provides that securities agents and investment dealers buy and sell certain
financial instruments for individual investors, pension fund managers, banks,
trust companies, insurance firms and other establishments. Brokers trade these
instruments on behalf of investment firms and other groups. The main duties for
each position generally track the lead statement. The NOC also includes a list
of example titles which qualify under the NOC.
[21]
However, instead of using the NOC as a guide in
his assessment of whether the Applicant qualified under s.75 of the IRPR, as
required by the legislation, the Officer applied the exact wording of the
non-binding NOC, measuring the Applicant’s listed titles and duties against the
words of the NOC. This is unreasonable because the Officer should have
considered whether the Applicant’s job titles and duties met the substantive
requirements of s.75 of the IRPR, which do not incorporate the NOC in whole.
[22]
The Officer stated that the Applicant’s various
positions “do[es] not appear to meet in name or in
level the positions stated under NOC 1113.” However, as the NOC Tutorial
in the record shows, the names and levels of positions in the NOC are illustrations
only, and an applicant need not closely track those positions in order to
qualify under the legislation. Accordingly, the Officer is not bound by them
and his heavy reliance on them resulted in his failure to properly consider the
Applicant’s evidence.
[23]
Similarly, it is well-established that an
applicant need not frame an application according to the exact duties listed in
the NOC; accordingly, an Officer should not assess the application by applying
the strict wording of the NOC (Song v Canada (Citizenship and Immigration),
2015 FC 141 at para 29). Yet, here, the Officer noted that: “There is insufficient evidence to show that the PA carries
out investment orders to buy and sell products, make bids and offers to buy and
sell securities, or prepare reviews of portfolio positions” which are the
duties described for a “broker” in the NOC. Again,
the Officer focused too rigidly on the listed duties without considering the substance
of the Applicant’s job experiences.
[24]
By fettering his discretion, the Officer failed
to apprehend the Applicant’s evidence. For example, the Officer rejected the
Applicant’s Bank of America letter because that letter focused on larger-scale
clients. Despite it appearing that the Applicant otherwise performed the
substance of the duties listed in NOC 1113, the Officer disregarded this by
noting that the Applicant’s clients were not individuals. The Officer concluded
that the term “clients” in the NOC duties refers
to “individual or small business groups” and
their “portfolios” to mean “personal investment accounts.” However, there is no
basis for this conclusion anywhere in the NOC, or more importantly, in the
governing legislation which the Officer had to apply.
[25]
Taken together, these errors demonstrate that
the Officer was unreasonable and based his decision on the specific wording in
the NOC respecting titles and duties, thus fettering his discretion.
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