Docket: IMM-2638-19
Citation: 2020 FC 105
Ottawa, Ontario, January 22, 2020
PRESENT: Mr. Justice Russell
| BETWEEN:
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| ONOME FREDDALINE EKAMA
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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.
INTRODUCTION
[1]
This is an application under s 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], for judicial review of the decision of an Immigration Officer [Officer], dated April 23, 2019 [Decision] denying the Applicant Permanent Resident status in Canada as a Federal Skilled Worker [FSW].
II.
BACKGROUND
[2]
The Applicant is a citizen of Nigeria. She is a certified Chartered Accountant and a member of the Association of Chartered Certified Accountants. She holds a B.Sc. in Banking and Finance from the University of Benin and has worked in various positions as an accountant in Nigeria since August 2014.
[3]
The Applicant was invited by Immigration, Refugees and Citizenship Canada to apply for permanent residence in Canada as a FSW in June 2018 based on her Express Entry profile. The Applicant submitted her application on August 31, 2018, in which she applied for permanent residence along with her partner and daughter.
[4]
The Applicant submitted several supporting documents with her application. This notably included reference letters from past and present employers, employment contracts, her curriculum vitae, and her academic and education credential assessment results.
III.
DECISION UNDER REVIEW
[5]
On April 23, 2019, the Officer denied the Applicant’s application for permanent residence in Canada as a FSW.
[6]
The Decision states that the Applicant failed to demonstrate that she met the requirements set out in s 75(2) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations]. Specifically, the Decision notes that, based on a review of the documents and information provided, the Officer was not satisfied that the Applicant had the experience required for, or had performed duties consistent with, the National Occupation Classification [NOC] 1111.
[7]
The Officer therefore refused the Applicant’s application pursuant to s 75(3) of the Regulations.
IV.
ISSUES
[8]
The issues to be determined in this application are the following:
- Did the Officer violate the Applicant’s right to procedural fairness by failing to provide her with an opportunity to address the Officer’s credibility concerns?
- Did the Officer violate the Applicant’s right to procedural fairness by means of a reasonable apprehension of bias?
- Did the Officer err in determining that the Applicant failed to demonstrate the necessary experience for, and performed duties consistent with, NOC 1111?
V.
STANDARD OF REVIEW
[9]
This application was argued prior to the Supreme Court of Canada’s recent decisions in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] and Bell Canada v Canada (Attorney General), 2019 SCC 66. This Court’s judgment was taken under reserve. The parties’ submissions on the standard of review were therefore made under the Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] framework. However, given the circumstances in this matter, and the Supreme Court of Canada’s instructions in Vavilov at para 144, this Court found that it was not necessary to ask the parties to make additional submissions on the standard of review. I have applied the Vavilov framework in my consideration of the application and it does not change the applicable standards of review in this case nor my conclusions.
[10]
In Vavilov, at paras 23-32, the majority sought to simplify how a court selects the standard of review applicable to the issues before it. The majority did away with the contextual and categorical approach taken in Dunsmuir in favour of instating a presumption that the reasonableness standard applies. However, the majority noted that this presumption can be set aside on the basis of (1) clear legislative intent to prescribe a different standard of review (Vavilov, at paras 33-52), and (2) certain scenarios where the rule of law requires the application of the standard of correctness, such as constitutional questions, general questions of law of central importance to the legal system as a whole and questions regarding the jurisdictional boundaries between two or more administrative bodies (Vavilov, at paras 53-64).
[11]
The Applicant submitted that the standard of reasonableness applies to the Officer’s assessment of the evidence in this case, while the standard of correctness applies to the Officer’s interpretation and application of the law as well as to any issues of procedural fairness. The Respondent submitted that only the standard of reasonableness applies in this case.
[12]
Some courts have held that the standard of review for an allegation of procedural unfairness is “correctness”
(Mission Institution v Khela, 2014 SCC 24 at para 79; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at paras 59 and 61 [Khosa]). The Supreme Court of Canada’s decision in Vavilov does not address the standard of review applicable to issues of procedural fairness (Vavilov, at para 23). However, a more doctrinally sound approach is that no standard of review at all is applicable to the question of procedural fairness. The Supreme Court of Canada in Moreau-Bérubé v New Brunswick (Judicial Council), 2002 SCC 11 stated that the issue of procedural fairness:
requires no assessment of the appropriate standard of judicial review. Evaluating whether procedural fairness, or the duty of fairness, has been adhered to by a tribunal requires an assessment of the procedures and safeguards required in a particular situation.
[13]
Whether a decision was tainted by a reasonable apprehension of bias is also matter of procedural fairness. It is possible, therefore, to rely on recent jurisprudence from this Court which posits that a standard of correctness applies to the question of reasonable apprehension of bias (Zhu v Canada (Citizenship and Immigration), 2013 FC 1139 at para 38). As described above, this is not doctrinally sound. As stated by Justice Teitelbaum, “[p]rocedural fairness requires that decisions be made free from a reasonable apprehension of bias by an impartial decision-maker”
(Gagliano v Canada (Commission of Inquiry into the Sponsorship Program and Advertising Activities), 2008 FC 981 at para 59). If a decision is found to have been affected by a reasonable apprehension of bias, the parties affected will have been denied procedural fairness. This will result in the decision being overturned.
[14]
As for the standard of review applicable to the Officer’s assessment of whether the evidence submitted demonstrated that the Applicant met the requirements applicable in this case, there is nothing to rebut the presumption that the standard of reasonableness applies. The application of the standard of reasonableness to this issue is also consistent with the existing jurisprudence prior to the Supreme Court of Canada’s decision in Vavilov. See Kapasi v Canada (Citizenship and Immigration), 2017 FC 1070 at para 15 and Zhu v Canada (Citizenship and Immigration), 2013 FC 155 at para 23.
[15]
When reviewing a decision on the standard of reasonableness, the analysis will be concerned with whether it “bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision”
(Vavilov, at para 99). Reasonableness is a single standard of review that varies and “takes its colour from the context”
(Vavilov, at para 89 citing Khosa, at para 59). These contextual constraints “dictate the limits and contours of the space in which the decision maker may act and the types of solutions it may adopt”
(Vavilov, at para 90). Put in another way, the Court should intervene only when “there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency”
(Vavilov, at para 100). The Supreme Court of Canada lists two types of fundamental flaws that make a decision unreasonable: (1) a failure of rationality internal to the decision-maker’s reasoning process; and (2) untenability “in light of the relevant factual and legal constraints that bear on it”
(Vavilov, at para 101).
VI.
ARGUMENTS
A.
Applicant
[16]
The Applicant argues that, in light of the overwhelming evidence submitted, the Officer breached her right to procedural fairness by failing to provide her with an opportunity to address the Officer’s credibility concerns regarding the evidence related to her experience and performed duties. The Applicant also notes that the Officer violated her right to procedural fairness by exhibiting bias through the Decision.
[17]
The Applicant also submits that, in any case, the Decision was unreasonable as it: (1) cannot withstand reasonable scrutiny; (2) ignored relevant evidence; and (3) failed to assign due weight to critical evidence. Consequently, the Applicant submits that this application for judicial review should be allowed and that the application be remitted to a different decision-maker.
(1)
Failure to Provide Opportunity to Address Concerns
[18]
The Applicant argues that the abundant evidence submitted clearly demonstrates that she has the experience required and has performed the duties stated in NOC 1111, thus meeting the requirements under s 75(2) of the Regulations. As such, the Applicant says that the rejection of her application due to a failure to demonstrate the required experience can only be explained by a veiled credibility finding concerning the evidence submitted.
[19]
The Applicant argues that it is trite law that a failure to afford an applicant an opportunity to address a decision-maker’s credibility concerns amounts to a breach of procedural fairness. The Applicant notably cites this Court’s decisions in Hernandez Bonilla v Canada (Minister of Citizenship and Immigration), 2007 FC 20 at para 25 as well as Hassani v Canada (Minister of Citizenship and Immigration), 2006 FC 1283 at para 24.
(2)
Reasonable Apprehension of Bias
[20]
The Applicant states that, given the lack of reasons for the Officer’s Decision, the Decision must have been motivated by bias. The Applicant submits that “it seems that this Immigration Officer was having a bad day and he/she allowed this to rub-off on the inhumane decision rendered in this case.”
(3)
Reasonableness of the Decision
[21]
Should this Court find that no breach of procedural fairness occurred, the Applicant argues that the Decision is unreasonable as it cannot withstand reasonable scrutiny. The Applicant argues that it is evident that the Officer unreasonably assessed the evidence by ignoring relevant evidence and by failing to allocate due weight to critical evidence.
[22]
First, the Applicant states that the Decision itself is unreasonable as it does not provide any explanation as to how the Officer came to a negative conclusion. The Applicant cites this Court’s decision in Asong Alem v Canada (Citizenship and Immigration), 2010 FC 148 at paras 17-18 in support.
[23]
Second, the Applicant argues that the Officer unreasonably ignored critical evidence which demonstrated sufficient experience and performed duties consistent with NOC 1111. The Applicant says she provided reference letters for her past and present employment as well as a copy of her curriculum vitae, the latter outlining duties she had performed in the past. She submits that this evidence was more than sufficient, especially when considered in context. Indeed, the Applicant notes that Mazars Coker and Co., where she worked, is an international firm specializing in audit, accountancy, advisory, tax and legal services, while membership in the Association of Chartered Certified Accountants is reserved for certified Chartered Accountants with a certain level of work experience. As such, the Applicant argues that the evidence was clearly sufficient in this case to comply with NOC 1111. The Applicant states that it is obvious that the Officer did not consider the entirety of the critical evidence in this case. Consequently, this error renders the Decision unreasonable. See Wang v Canada (Minister of Citizenship and Immigration), 2002 FCT 146 at paras 28-29.
[24]
Third, the Applicant submits that the Officer unreasonably failed to give due weight and relevance to most of the documents submitted and clearly failed to take the measures necessary to satisfy any doubts as to the probative value of the documentary evidence. Immigration, Refugees, and Citizenship Canada requires reference letters to contain the employer’s full contact information should concerns arise regarding the probative value of the evidence submitted. Consequently, the Applicant states that the Officer had a duty to seek further information from her employers if they believed the reference letters submitted were not sufficiently probative.
B.
Respondent
[25]
The Respondent says that the Officer conducted a reasonable analysis and concluded that the Applicant had failed to provide sufficient evidence from her employers to demonstrate that she had performed the duties described in NOC 1111. Consequently, given that this is a question about the sufficiency of the evidence submitted, and not its credibility, the Respondent submits that the Officer did not breach the Applicant’s right to procedural fairness. As such, the Respondent argues that this application for judicial review should be dismissed.
(1)
Failure to Provide Opportunity to Address Concerns
[26]
The Respondent submits that the Officer had no duty to inform the Applicant of any evidentiary concerns, or allow her an opportunity to address such concerns. This is because the Decision is based on the Applicant’s failure to provide “sufficient”
evidence to demonstrate that she met the requirements set out in the Regulations as opposed to a “credibility”
finding. The Respondent cites in support this Court’s decisions in Sharma v Canada (Citizenship and Immigration), 2009 FC 786 at para 8 [Sharma] and Ayyalasomayajula v Canada (Citizenship and Immigration), 2007 FC 248 at para 18 [Ayyalasomayajula].
(2)
Reasonable Apprehension of Bias
[27]
The Respondent states that there is no indication that the Officer ignored any evidence or demonstrated any bias.
(3)
Reasonableness of the Decision
[28]
The Respondent argues that the Decision was reasonable as it was the Applicant’s burden to satisfy the Officer that she met all of the legislative requirements for obtaining a visa (Singh v Canada (Citizenship and Immigration), 2012 FC 526 at para 52 [Singh]). The Applicant simply failed to meet this evidentiary burden.
[29]
The Respondent notes that corroborative third party evidence, including employment letters detailing an applicant’s duties, responsibilities, and job descriptions, is mandatory. In this case, the Officer could not reasonably infer the Applicant’s duties and responsibilities from the Applicant’s reference letters. This is because duties performed cannot simply be deduced from the job titles noted in reference letters, or by a general reference to “taxation.”
The Respondent states that this case is analogous to this Court’s decision in Ismaili c Canada (Citoyenneté et Immigration), 2012 FC 351 [Ismaili] where it was determined that the job title of “pilot”
was not sufficient to determine what duties the Applicant had actually performed.
[30]
The Respondent argues that this is not a question of how the Officer weighed the evidence at hand, but rather one where the Applicant’s application was refused based on a failure to submit sufficient mandatory objective evidence. The Respondent argues that the onus to provide the required evidence rests solely on the Applicant, and consequently, the Officer was under no obligation to seek further clarification from the Applicant or her employers (Sharma, at para 8).
VII.
ANALYSIS
[31]
Let me state up-front that I have great sympathy for the Applicant in this case because the documentation suggests that she is an extremely accomplished and well-qualified person in her chosen field. However, that is not the issue before me. This case is about whether, in her permanent residence application, she provided the information that the Regulations and instructions require, and without which the Officer had no choice but to refuse the application.
[32]
Notwithstanding her written submissions, counsel in oral presentation asked the Court to focus upon two principal issues. The first is whether, given the Applicant’s own detailed work history in her curriculum vitae, the Officer had the information required to make a positive decision, even though this information did not come from the Applicant’s employers. The second is whether, given that work history, the Officer was obliged as a matter of procedural fairness to contact either the Applicant or her employers to confirm that she had the qualifications and experience necessary to meet the requirements of NOC 1111.
[33]
The Applicant’s arguments are based upon what she thinks would have been reasonable on the facts of this case. In written submissions, counsel makes the following points that are central to her case:
26. Based on evidence on record, the Applicant provided a [sic] reference letters issued by her employers (current and previous), and she submitted this document in fulfilment of the IRCC requirements for providing employment experience or reference letters, which is that “A reference or experience letter from the employer. which should be an official document printed on company letterhead (must include the applicant’s name, the company’s contact information [address, telephone number and email address], and the name, title and signature of the immediate supervisor or personnel officer at the company)” One thus wonders why the Immigration Officer refused the Applicant’s application without confirming that the Applicant performed the duties set out under NOC1111 and as outlined on the Applicant’s resume. There is also no evidence on record to show that the Immigration Officer made any contact with the Applicant’s current and previous employer, even when he/she had the resources to easily do so at his/her disposal. Officers in the Immigration Officer’s position have in the past been known to contact the employer of Applicants to clarify details of their employment, so one wonders why the Immigration Officer failed to do so in this case? The Applicant provided ample documentation to prove that she was a Chartered Accountant and Auditor and that she had performed most of the duties set out under NOC1111, but the Immigration Officer still had doubts regarding this and outrightly refused to make the necessary clarifications that were required of him to clear his/her doubts.
[Emphasis in original.]
[34]
The Applicant also says:
8. The Respondent in his/her argument seems to harp on the assumption that the Applicant did not provide adequate documentation to support the fact that she performed the duties set out under NOC1111. In paragraph 25 of his/her argument, the Respondent further states that the Officer could not infer what the Applicant’s duties and responsibilities were simply from the job title of “accountant”. Likewise, the very general reference to taxation was also not sufficient to verify NOC code 1111.
9. The Respondent has clearly taken the various statement made in the Applicant’s employment letters out of context, as a thorough review of the letters will clearly show that the reference statements were made to confirm that the Applicant performed the duties of an Accountant and part of her duties involved her working on taxation related issues. Apart from the fact that her employment letters confirmed that she was an accountant, the Respondent has also failed to acknowledge the fact that one of the Applicant’s supervisors who issued the reference letter from Mazars and Co. clearly stated that the Applicant was involved in working in several audit engagements. All the above points to the fact that the Applicant indeed performed the duties as set out under the NOC1111 which she applied.
[35]
The Applicant’s argument is that, in her view, she clearly provided sufficient documentation (notably, her curriculum vitae) to allow the Officer to see that she had performed the duties set out in NOC 1111.
[36]
As the Decision makes clear, the application was refused because the Officer found that the Applicant had not met the legislative requirements for a positive decision as a FSW because she had failed to provide evidence from her employers that demonstrated she had actually performed the duties described in NOC 1111.
[37]
The problem was the documentation she submitted:
Based on the documents and the information you have provided, I am not satisfied you meet these requirements, and have the experience and performed the duties consistent with NOC 1111, the category which you applied.
[38]
Read as a whole, the record shows that the letters from the Applicant’s employers did not provide any information with respect to the Applicant’s job duties and responsibilities so that they did not satisfy the mandatory requirement set out in s 75 of the Regulations:
Federal Skilled Worker Class
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Travailleurs qualifiés (fédéral)
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Class
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Catégorie
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75 (1) For the purposes of subsection 12(2) of the Act, the federal skilled worker class is hereby prescribed as a class of persons who are skilled workers and who may become permanent residents on the basis of their ability to become economically established in Canada and who intend to reside in a province other than the Province of Quebec.
|
75 (1) Pour l’application du paragraphe 12(2) de la Loi, la catégorie des travailleurs qualifiés (fédéral) est une catégorie réglementaire de personnes qui peuvent devenir résidents permanents du fait de leur capacité à réussir leur établissement économique au Canada, qui sont des travailleurs qualifiés et qui cherchent à s’établir dans une province autre que le Québec.
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Skilled workers
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Qualité
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75 (2) A foreign national is a skilled worker if
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75 (2) Est un travailleur qualifié l’étranger qui satisfait aux exigences suivantes :
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(a) within the 10 years before the date on which their application for a permanent resident visa is made, they have accumulated, over a continuous period, at least one year of full-time work experience, or the equivalent in part-time work, in the occupation identified by the foreign national in their application as their primary occupation, other than a restricted occupation, that is listed in Skill Type 0 Management Occupations or Skill Level A or B of the National Occupational Classification matrix;
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a) il a accumulé, de façon continue, au moins une année d’expérience de travail à temps plein ou l’équivalent temps plein pour un travail à temps partiel, au cours des dix années qui ont précédé la date de présentation de sa demande de visa de résident permanent, dans la profession principale visée par sa demande appartenant au genre de compétence 0 Gestion ou aux niveaux de compétence A ou B de la matrice de la Classification nationale des professions, exception faite des professions d’accès limité;
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(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 National Occupational Classification;
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b) pendant cette période d’emploi, il a accompli l’ensemble des tâches figurant dans l’énoncé principal établi pour la profession dans les descriptions des professions de cette classification;
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(c) during that period of employment they performed a substantial number of the main duties of the occupation as set out in the occupational descriptions of the National Occupational Classification, including all of the essential duties;
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c) pendant cette période d’emploi, il a exercé une partie appréciable des fonctions principales de la profession figurant dans les descriptions des professions de cette classification, notamment toutes les fonctions essentielles;
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(d) they have submitted the results of a language test that is approved under subsection 74(3), which results must be provided by an organization or institution that is designated under that subsection, must be less than two years old on the date on which their application for a permanent resident visa is made and must indicate that they have met or exceeded the applicable language proficiency threshold in either English or French that is fixed by the Minister under subsection 74(1) for each of the four language skill areas; and
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d) il a fourni les résultats — datant de moins de deux ans au moment où la demande est faite — d’un test d’évaluation linguistique approuvé en vertu du paragraphe 74(3) provenant d’une institution ou d’une organisation désignée en vertu de ce paragraphe qui indiquent qu’il a obtenu, en français ou en anglais et pour chacune des quatre habiletés langagières, au moins le niveau de compétence établi par le ministre en application du paragraphe 74(1);
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(e) they have submitted one of the following:
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e) il a soumis l’un des documents suivants :
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(i) their Canadian educational credential, or
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(i) son diplôme canadien,
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(ii) their foreign diploma, certificate or credential and the equivalency assessment, which assessment must be less than five years old on the date on which their application is made.
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(ii) son diplôme, certificat ou attestation étranger ainsi que l’attestation d’équivalence, datant de moins de cinq ans au moment où la demande est faite.
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Minimal requirements
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Exigences
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75 (3) If the foreign national fails to meet the requirements of subsection (2), the application for a permanent resident visa shall be refused and no further assessment is required.
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75 (3) Si l’étranger ne satisfait pas aux exigences prévues au paragraphe (2), l’agent met fin à l’examen de la demande de visa de résident permanent et la refuse.
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[39]
These mandatory documents are specified in the Express Entry completeness check pursuant to the Operational Guidelines and Instructions for Express Entry applications, so that the Applicant and her advisers could have been in no doubt as to what was required for an acceptable experience letter from an employer. The Applicant applied online through the Express Entry portal which made it clear that:
The following documents are mandatory for each work experience declared:
● a reference or experience letter from the employer, which
○ should be an official document printed on company letterhead (must include the applicant’s name, the company’s contact information [address telephone number and email address], and the name, title and signature of the immediate supervisor or personnel officer at the company),
○ should indicate all positions held while employed at the company and must include the following details: job title, duties and responsibilities, job status (if current job), dates worked for the company, number of work hours per week and annual salary plus benefits; and
● if the applicant is self-employed, articles of incorporation or other evidence of business ownership, evidence of self-employment income and documentation from third-party individuals indicating the service provided along with payment details (self-declared main duties or affidavits are not acceptable proof of self-employed work experience).
If the work experience is in Canada, proof may include copies of T4 tax information slips and notices of assessment issued by the Canada Revenue Agency (the time period for these documents should reflect the work experience timeframe [e.g., work experience from 2006 to 2008 requires only documents from those calendar years]).
Individuals who must submit this documentation
● The principal applicant
● Their spouse or common-law partner (if work experience in Canada is claimed)
[Underline added, bold in original.]
[40]
In this case, the employers’ letters did not provide the mandatory details of duties and responsibilities performed by the Applicant. Consequently, the Officer was obliged to refuse the Applicant’s permanent residence application as a FSW.
[41]
In her present application for judicial review, the Applicant has attempted to overcome this defect in her FSW application and accuses the Officer of the following:
a)
Failing to confirm the Applicant’s employment with her current and previous employer;
b)
Breaching her right to procedural fairness by not giving her an opportunity to submit updated employment letters;
c)
Generally breaching her right to procedural fairness; and
d)
Exhibiting bias.
[42]
There is no substance to any of these grounds and the Applicant wisely withdrew the bias allegation at the hearing of this matter in Calgary on November 18, 2019. The Applicant simply failed to submit the full employment information mandated by the Regulations and the Express Entry instructions, which had to come from her employers. The Officer had no choice but to refuse her application for permanent residency as a FSW.
[43]
The jurisprudence of this Court is clear that the burden was on the Applicant to satisfy the Officer that she met the mandated requirement (see, for example, Singh, at para 52) and that the Officer was under no obligation to request further clarification (Sharma, at para 8). A job title is not enough (Ismaili) and the Officer was under no obligation to request further clarification from the Applicant or her employers. See Sharma, at para 8; Madan v Canada (Minister of Citizenship and Immigration), [1999] 172 FTR 262; and Ayyalasomayajula, at para 18.
[44]
There was no breach of procedural fairness because the Applicant’s credibility was not the issue. The issue was a lack of the mandated information. See Lal v Canada (Citizenship and Immigration), 2017 FC 717 at paras 22-23. The Applicant could not provide the information herself because the Regulations say that the Applicant must have performed a substantial number of the main duties set out in the relevant NOC and the Operational Guidelines and Instructions for Express Entry applications states that this evidence “must”
come from her employers. See Gugliotti v Canada (Citizenship and Immigration), 2017 FC 71 at paras 30-32. There are obvious reasons for this requirement. It is not that the Applicant was disbelieved; the Officer simply needed a reliability check and that can only come from an employer.
[45]
The refusal of an FSW application for a failure to provide mandated information does not even begin to suggest that there may be grounds for actual or reasonable apprehension of bias.
[46]
When I look at the Applicant’s permanent residence application as a whole, it seems to me that she could well be qualified for Permanent Resident status as a FSW. But there are no reviewable errors in the Decision.
[47]
Counsel agree that there are no questions for certification and the Court concurs.
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