Date:
20121126
Docket:
IMM-2568-12
Citation:
2012 FC 1364
Ottawa, Ontario,
November 26, 2012
PRESENT: The
Honourable Mr. Justice Russell
BETWEEN:
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BABATUNDE JOSEPH AFOLABI
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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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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c. 27 (Act) for judicial review of the decision
of a Visa Officer (Officer) of the High Commission of Canada in Accra, Ghana,
dated 28 February 2012 (Decision), which refused the Applicant’s application
for permanent residence in Canada as a member of the Skilled Worker class.
BACKGROUND
[2]
The
Applicant is 35-year-old citizen of Nigeria. He submitted an application for
Permanent Residence as a Federal Skilled Worker at the High Commission of Canada in Accra, Ghana based on his professional qualifications as a Financial Manager. His
application was refused because he failed to reach the 67 point threshold
stipulated by regulation 76(1)(a) of the Immigration and Refugee Protection
Regulations, (SOR/2002-227) [Regulations].
[3]
The
Applicant started his banking career in June 2004, working at Gulf Bank PLC. He
worked there until December 2006. He submitted letters from Gulf Bank dated 4
June 2004, 20 April 2005, 4 May 2005, and 5 September 2005. These letters
describe the Applicant’s terms of employment and discuss certain transfers and
promotions. None of them make any mention of the Applicant’s job description or
duties.
[4]
In
December 2006, the Applicant started working at Equitorial Trust Bank, where he
remained until June 2009. He submitted an offer of employment from Equitorial
dated 13 December 2006, which laid out the basic terms of employment such as
hours and pay. He also submitted a reference letter from Equitorial dated 14
December 2009. This letter, however, did describe his job duties.
[5]
The
Applicant then started working for Oceanic Bank International PLC in June 2009,
and he has remained there ever since. He submitted a letter of offer from
Oceanic dated 15 April 2009, which did not provide a job description. A letter
of promotion from Oceanic was also provided dated 22 February 2010, which again
did not provide a job description.
[6]
The
Computer
Assisted Immigration Processing System (CAIPS) Notes indicate that the
Applicant first submitted an application for permanent residence to the
Centralized Intake Office in Sydney, Nova Scotia in September 2009. Based on
the Applicant’s self-assessment of his work experience, he was found to have
one year’s worth of experience in the NOC 0111 category. As a result, his file
was transferred to the Canadian High Commission in Accra, Ghana.
[7]
In
October 2010, the Applicant was “provisionally” given 17 points for work
experience. By letter dated 15 October 2010, the Applicant was asked to submit
additional proof of his work experience as a Financial Manager, such as
“letters from your employer(s) that indicate your job title, specific duties,
responsibilities and length of employment.”
[8]
In
November 2010, the Applicant responded and submitted his business card, a
letter of introduction from Oceanic Bank, and a letter indicating he was
registered to take his IELTS exam in January 2011. He also provided some
contact information for his superiors at Oceanic Bank.
[9]
The
same officer who assessed the file in October 2010 assessed the file again in
November 2010 and awarded the Applicant 15 points for work experience, based on
the letter from Oceanic Bank. In February 2011, a copy of the IELTS test
results was received, and the file was again reviewed by the same officer. The
Applicant was still assessed as having less than two years experience (June
2009 – February 2011). The application was forwarded to the Officer for a final
decision.
[10]
The
Officer awarded the Applicant 17 points for his work experience, which is the
number prescribed for more than two but less than three years of work
experience. As such, the Applicant did not reach 67 points and the Officer
rejected his application on 28 February 2012. The Applicant contends that he
has five years of work experience and should have been awarded the full 21
points available under this category; this would have put him over the 67 point
threshold.
DECISION UNDER
REVIEW
[11]
The
Decision
in this case consists of the Officer’s CAIPS Notes.
[12]
The
Officer awarded the Applicant points for work experience based upon his
employment at Oceanic Bank, starting in June 2009 until February 2012, the time
of the Decision. This was under three years, so the Applicant was awarded 17
points. On 20 February 2012 he Officer stated:
It is possible that he has experience as Financial
Manager from June 2009 to date of letter from Oceanic Bank Mar. 4, 2010 because
the letter refers to him as a senior officer. However, for the period of Jan.
4, 2007 to June 26, 2009 his position at Equitorial Trust bank was Banking
Officer and his job duties did not include management of staff as would
normally be required at the level of 0111 of the NOC, as indicated by the lead
statement and main duties. Therefore I will not award any points for experience
for period prior to June 26, 2009.
[13]
The
Officer awarded 17 points out of a possible 21 for work experience. This put
the Applicant’s total points at 63, and as such his application was refused
pursuant to subsection 11(1) of the Act. A request for re-assessment was
received on 28 February 2012, which was refused on 28 March 2012. The Applicant
then commenced this application for judicial review.
ISSUES
[14]
The
Applicant raises the following issue in this application:
a.
Whether
the Officer erred in the assessment of the Applicant’s work experience.
STANDARD OF
REVIEW
[15]
The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9
held that a standard of review analysis need not be conducted in every
instance. Instead, where the standard of review applicable to a particular
question before the court is well-settled by past jurisprudence, the reviewing
court may adopt that standard of review. Only where this search proves
fruitless must the reviewing court undertake a consideration of the four
factors comprising the standard of review analysis.
[16]
The award of points in a permanent residence application is a
mixed question of fact and law that attracts a standard of review of
reasonableness (Patel v Canada (Minister of Citizenship and Immigration),
2011 FCA 187 at paragraphs 36-38). Further, the decision of a visa officer
to grant a permanent residency is reviewable on a standard of reasonableness
(see Enriquez v Canada (Minister of Citizenship and Immigration), 2012
FC 1091 at paragraph 4; Torres v Canada (Minister of Citizenship and
Immigration), 2011 FC 818 at paragraph 26). Thus, the standard of
review is reasonableness.
[17]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are defensible
in respect of the facts and law.” See Dunsmuir, above, at paragraph 47,
and Canada (Minister of Citizenship and Immigration) v Khosa,
2009 SCC 12 at paragraph 59. Put another way, the Court should intervene
only if the Decision was unreasonable in the sense that it falls outside the
“range of possible, acceptable outcomes which are defensible in respect of the
facts and law.”
STATUTORY
PROVISIONS
[18]
The
following provisions of the Act are applicable in these proceedings:
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Application before entering Canada
11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the
regulations. The visa or document may be issued if, following an examination,
the officer is satisfied that the foreign national is not inadmissible and
meets the requirements of this Act.
[…]
Obligation – answer truthfully
16. (1) A person who makes an
application must answer truthfully all questions put to them for the purpose
of the examination and must produce a visa and all relevant evidence and
documents that the officer reasonably requires.
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Visa
et documents
11. (1) L’étranger
doit, préalablement à son entrée au Canada, demander à l’agent les visa et
autres documents requis par règlement. L’agent peut les délivrer sur preuve,
à la suite d’un contrôle, que l’étranger n’est pas interdit de territoire et
se conforme à la présente loi.
[…]
Obligation
du demandeur
16. (1) L’auteur d’une demande au
titre de la présente loi doit répondre véridiquement aux questions qui lui
sont posées lors du contrôle, donner les renseignements et tous éléments de
preuve pertinents et présenter les visa et documents requis.
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[19]
The
following provisions of the Regulations are applicable in this proceeding:
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Selection
criteria
76. (1) For the purpose of determining whether a
skilled worker, as a member of the federal skilled worker class, will be able
to become economically established in Canada, they must be assessed on the
basis of the following criteria:
(a) the
skilled worker must be awarded not less than the minimum number of required
points referred to in subsection (2) on the basis of the following factors,
namely,
(i) education, in accordance with section 78,
(ii) proficiency in the
official languages of Canada, in accordance with section 79,
(iii) experience, in
accordance with section 80,
(iv) age, in accordance
with section 81,
(v) arranged employment,
in accordance with section 82, and
(vi) adaptability, in
accordance with section 83; and
(b) the skilled
worker must
(i) have in the form of
transferable and available funds, unencumbered by debts or other obligations,
an amount equal to half the minimum necessary income applicable in respect of
the group of persons consisting of the skilled worker and their family
members, or
(ii) be awarded the number
of points referred to in subsection 82(2) for arranged employment in Canada within the meaning of subsection 82(1).
[…]
Experience
(21 points)
80. (1) Up to a maximum of 21 points shall be
awarded to a skilled worker for full-time work experience, or the full-time
equivalent for part-time work experience, within the 10 years preceding
the date of their application, as follows:
(a) for
one year of work experience, 15 points;
(b) for two years
of work experience, 17 points;
(c) for three years
of work experience, 19 points; and
(d) for four or
more years of work experience, 21 points.
[…]
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Critères
de sélection
76. (1) Les
critères ci-après indiquent que le travailleur qualifié peut réussir son
établissement économique au Canada à titre de membre de la catégorie des
travailleurs qualifiés (fédéral) :
a) le travailleur qualifié accumule le
nombre minimum de points visé au paragraphe (2), au titre des facteurs
suivants :
(i) les
études, aux termes de l’article 78,
(ii) la
compétence dans les langues officielles du Canada, aux termes de l’article
79,
(iii) l’expérience,
aux termes de l’article 80,
(iv) l’âge,
aux termes de l’article 81,
(v) l’exercice
d’un emploi réservé, aux termes de l’article 82,
(vi) la capacité
d’adaptation, aux termes de l’article 83;
b) le travailleur qualifié :
(i) soit
dispose de fonds transférables — non grevés de dettes ou d’autres obligations
financières — d’un montant égal à la moitié du revenu vital minimum qui lui
permettrait de subvenir à ses propres besoins et à ceux des membres de sa
famille,
(ii) soit
s’est vu attribuer le nombre de points prévu au paragraphe 82(2) pour un
emploi réservé au Canada au sens du paragraphe 82(1).
[…]
Expérience
(21 points)
80. (1) Un
maximum de 21 points d’appréciation sont attribués au travailleur
qualifié en fonction du nombre d’années d’expérience de travail à temps
plein, ou l’équivalent temps plein du nombre d’années d’expérience de travail
à temps partiel, au cours des dix années qui ont précédé la date de
présentation de la demande, selon la grille suivante :
a) pour une année de travail,
15 points;
b) pour deux années de travail, 17 points;
c) pour trois années de travail, 19 points;
d) pour quatre années de travail, 21 points.
[…]
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ARGUMENTS
The Applicant
[20]
The
Applicant says that for a decision to be reasonable it must be supported by
reasons “that can stand up to a somewhat probing examination” (Canada
(Director of Investigation and Research Competition Act) v Southam Inc, [1997]
1 SCR 748 at 776). The Officer awarded the Applicant 17 points for work
experience, which is the amount attributed to two years experience. However,
the Applicant says he submitted evidence indicating that he had five yeas of
experience, and thus deserved to be awarded 21 points. The Applicant submits
the Officer ignored the evidence demonstrating the Applicant has five years of
work experience.
[21]
The
Applicant submits that the Decision is based on an erroneous finding of fact
because the Officer did not consider the evidence that the Applicant had five
years of work experience. There is nothing in the Decision to indicate that the
Officer considered this evidence. The Applicant submits that the magnitude of
this error is such that the Decision should be set aside.
The Respondent
[22]
The
Respondent states that the evidence provided by the Applicant does not
demonstrate that he has four or more years of experience in his intended
occupation. The Applicant only produced one letter from one of his past
employers that described the duties he performed from January 2007 to June
2009.
[23]
Not
only did the Applicant only submit one letter describing his job duties, none
of the duties match any of the duties of a Financial Manager set out in NOC
0111. Although there is no description of any of the duties performed by the
Applicant at Oceanic Bank, it appears the Officer still gave him the benefit of
the doubt and awarded him experience for this employment. The Applicant did not
submit any other evidence that he is experienced in the activities described in
NOC 0111 – Financial Manager.
[24]
Based
on the evidence provided by the Applicant in support of this application, he
has not shown that the Officer erred, or that he should have been awarded 21
points for work experience to bring his total to 67. This is a fact-driven
decision, and entirely reasonable for the Officer to reject the application.
The Respondent submits that this application for judicial review be dismissed.
ANALYSIS
[25]
In
his permanent resident visa application, the Applicant sought to be assessed
for NOC 0111 Financial Manager. The Applicant was awarded 17 points for
experience in the NOC 0111 category for the period from June 2009 to the time
of the Decision (i.e. two years and eight months) for a total of 63 points.
[26]
The
Applicant now says that he had five years of experience under paragraph 80(1)(d)
of the Regulations so that he should have been awarded the maximum of 21 points
for experience. The Applicant says that he provided evidence to the Officer
which demonstrated that he had five years of experience, and that the Officer’s
assessment was not based upon the evidence before him.
[27]
Hence,
this review involves a very narrow assessment of whether the Officer overlooked
evidence of the Applicant’s claimed five years of experience.
[28]
I
have reviewed the evidence submitted by the Applicant to show his experience in
NOC 0111. In my view, there is insufficient evidence of experience as a
Financial Manager to demonstrate that the Officer’s Decision to award the
Applicant 17 points for experience was unreasonable.
[29]
This
is because, as the Respondent points out, the Applicant has produced one letter
from one bank describing the duties that he performed from January 2007 to June
2009. None of the duties described in the letter match any of the main duties
of a financial manager set out in the NOC 0111.
[30]
Nor
was there any other evidence provided by the Applicant to show that he was
involved in the development and implementation of policies and systems, or that
he established performance standards, and prepared financial reports for senior
management — activities listed in the lead statement of a Financial Manager.
[31]
I
think it is also worth pointing out that the Applicant was given notification
of the deficiencies in his application regarding the need for additional proof
of experience under NOC 0111. The Applicant simply failed to provide evidence
that would establish additional relevant experience.
[32]
I
cannot say that the Decision contains a reviewable error. My own assessment convinces
me that the Decision falls within the Dunsmuir range.
[33]
Counsel
agree there is no question for certification and the Court concurs.
JUDGMENT
THIS
COURT’S JUDGMENT is that
1.
The
application is dismissed.
2.
There
is no question for certification.
“James Russell”
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