Date: 20110809
Docket: IMM-7356-10
Citation: 2011 FC 980
Ottawa, Ontario,
August 9, 2011
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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JIN ZHONG
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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 pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial
review of the decision of a Designated Immigration Officer (Officer) of the
Canadian Consulate General in Hong Kong, dated 30 September 2010 (Decision),
which refused the Applicant’s application for permanent residence as a member
of the federal skilled worker program.
BACKGROUND
[2]
In
February 2009 the Applicant, through an immigration consultant, filed with the
Centralized Intake Unit of Citizenship and Immigration Canada (CIU) an
application for permanent residence as a member of the skilled worker program
in the occupation of Information Systems Manager (NOC 0213). That same month,
CIU advised the Applicant through the immigration consultant that he should
submit a complete application to the Consulate General of Canada in Hong Kong (Consulate General). He
complied with that request on or about 10 June 2009.
[3]
The complete
application included a positive Arranged Employment Opinion from Service
Canada, confirming the offer of permanent employment to the Applicant from Mr.
Ping Hay Szeto, owner of Gip Sing International Ltd. (Gip Sing) in Oakville, Ontario.
[4]
By
letter dated 30 September 2010, the Designated Immigration Officer (Officer) of
the Consulate General rejected the application for permanent residence based on
the Applicant’s failure to meet the 67-point minimum required for success. The
Officer had awarded no points to the Applicant for his Arranged Employment in Canada, having found that that
the offer of employment from Mr. Szeto was not genuine and that the Applicant
was not likely to accept and carry out this employment in Canada. This is the Decision
under review.
DECISION UNDER REVIEW
[5]
The
Officer states in her Decision that she assessed the Applicant based on all
documentation and information submitted with the application. Of material
importance was the letter, dated 28 January 2010, from the Applicant’s
prospective Canadian employer, Mr. Szeto, detailing the nature and the size of
his property management business in Oakville. The Officer made the following findings based
on the information provided in this letter:
[T]he
fact that he appears to be the only company executive in his property
management business and he is operating the said business from his own
cellphone [sic] and residential telephone numbers, I am not
satisfied that your prospective Canadian employer genuinely requires you to
perform the list of employment duties for his property management company as
stated in your Canadian employment offer letter dated 30 March 2009 and in his
explanation letter dated 28 January 2010 to this office. I have reasonable
grounds to believe the employment duties stated in those two letters have been
exaggerated for the purpose of facilitating your application for immigration to
Canada under the Federal Skilled Worker’s
Arranged Employment immigration category. I am, therefore, not satisfied that
you have a genuine offer of employment in Canada nor am I satisfied that you
are likely to accept and carry out the said employment in Canada. As a result I have not assigned any points to you under
the Arranged Employment factor when assessing your application. You have
obtained insufficient points to qualify for immigration to Canada, the minimum requirement being 67 points. You have not
obtained sufficient points to satisfy me that you will be able to become
economically established in Canada.
[6]
In
December 2009, the Officer sent to Mr. Szeto a letter requesting the following:
Documentation
demonstrating that your company possesses sufficient resources to employ the
applicant should permanent residence be granted. Please provide Company’s
latest Notice of Assessment and Revenue Canada’s documentation and records to
show the total number of staff employed by this company in the past 12 months
or fiscal year, and proof of business office and business activities/projects
at 579 Kerr Street in Oakville.
Mr. Szeto responded to this request for information
in two separate letters, both dated 28 January 2010.
[7]
The
Officer concluded that the Applicant had not met the requirements of the Act and,
in consequence, refused the application.
ISSUES
[8]
The
Applicant raises the following issues:
i.
Whether
the Officer’s Decision was reasonable in light of the evidence before her; and
ii. Whether the Officer’s
reasons were adequate.
STATUTORY PROVISIONS
[9]
The
following provisions of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (Regulations) are applicable in these proceedings:
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Definition
— arranged employment
82.
(2) Ten points shall be awarded to a skilled worker for arranged employment
in Canada in an occupation that is listed in Skill Type 0 Management
Occupations or Skill Level A or B of the National Occupational
Classification matrix if they are able to perform and are likely to
accept and carry out the employment and
[…]
(c) the skilled worker does not intend to work in Canada
before being issued a permanent resident visa and does not hold a work permit
and
[…]
(ii) an officer has approved that offer of employment
based on an opinion provided to the officer by the Department of Human
Resources and Skills Development at the request of the employer or an officer
that
(A) the offer of employment is genuine ….
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Définition :
emploi réservé
82. (2) Dix points sont attribués au travailleur qualifié pour un emploi
réservé appartenant aux genre de compétence 0 Gestion ou niveaux de
compétences A ou B de la matrice de la Classification nationale des
professions, s’il est en mesure d’exercer les fonctions de l’emploi et
s’il est vraisemblable qu’il acceptera de les exercer, et que l’un des
alinéas suivants s’applique :
[…]
c) le travailleur qualifié n’a pas
l’intention de travailler au Canada avant qu’un visa de résident permanent ne
lui soit octroyé, il n’est pas titulaire d’un permis de travail et les
conditions suivantes sont réunies :
[…]
(ii) un agent a approuvé cette offre sur le fondement d’un
avis émis par le ministère des Ressources humaines et du Développement des
compétences, à la demande de l’employeur, à sa demande ou à celle d’un autre
agent, où il est affirmé que :
(A) l’offre d’emploi est véritable ….
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STANDARD OF REVIEW
[10]
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 the
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.
[11]
The
first issue concerns the reasonableness of the Officer’s determination that the
Applicant was ineligible for permanent residence under the federal skilled
worker category. This is reviewable on a standard of reasonableness. See Malik
v Canada (Minister of
Citizenship and Immigration), 2009 FC 1283 at paragraph 22.
[12]
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.”
[13]
The
second issue concerns the adequacy of reasons. Adequacy of reasons is a
procedural fairness issue, reviewable on the correctness standard. See Miranda
v Canada (Minister of Citizenship and Immigration), 2010 FC 424 at
paragraph 10; and Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph 43.
ARGUMENTS
The Applicant
The
Officer’s Reasons Were Inadequate
[14]
The
Decision is clear that the Officer refused to consider as valid the Applicant’s
offer of employment because of the adverse inference that she drew from the
following three factors: the nature and size of Gip Sing does not justify Mr.
Szeto’s hiring of the Applicant; Mr. Szeto is Gip Sing’s only company
executive; and Mr. Szeto operates his business through his cell phone and
residential telephone.
[15]
The
Applicant submits that, in his 28 January 2010 response to the Officer’s
request for information, Mr. Szeto provided detailed information on Gip Sing
and its operations, including the date of its incorporation, the monetary value
and size of its commercial property in Oakville (i.e., $6 million and a commercial
plaza consisting of 14 units, respectively) and the total number of its
employees (6). He also explained that he uses his cell number as Gip Sing’s
business number to allow his tenants ease of contact since he is regularly on
the road and not always present at the plaza. Similarly, Mr. Szeto provides his
residential phone number as a fax number to allow his tenants maximum access to
him.
[16]
Although
the Officer refers to Mr. Szeto’s explanations in her CAIPS Notes, she does not
clarify why any of the three factors cited above are of concern and how they
support her conclusion that the nature and size of Mr. Szeto’s company does not
justify his hiring of the Applicant. Mr. Szeto offered a perfectly reasonable
explanation but the Officer failed to explain why it did not satisfy her.
[17]
To
be considered adequate, reasons must inform the individual whose rights,
privileges or interests are affected how and why the decision was made, thereby
permitting effective judicial review. The Applicant submits that the Officer’s
reasons are inadequate in that they fail to link the facts of the application
and the explanations of Mr. Szeto to the way in which she disposed of the
application.
[18]
It
is not enough for the Officer to simply recite the above-noted factors and draw
a conclusion. The reasons must address the major points in issue. See VIA
Rail Canada Inc. v National Transportation Agency (2000), [2001] 2 FC 25,
[2000] FCJ No 1685 (QL) (FCA).
[19]
The
Applicant submits that, in failing to provide adequate reasons, the Officer
breached the duty of fairness. See Clifford v Ontario Municipal Employees
Retirement System,
2009 ONCA 670.
The
Officer Did Not Have Regard for the Totality of the Evidence
[20]
The
Applicant submits that the Officer made erroneous findings of fact and that, in
light of the evidence as a whole, the inferences that she drew were
unreasonable.
The
Respondent
The
Decision Was Reasonable and Procedurally Fair
[21]
The
Respondent argues that the Officer reasonably found that Mr. Szeto did not
require the Applicant to perform the duties listed and that the duties were
exaggerated. The Officer properly carried out this analysis further to clause
82(2)(c)(ii)(A) of the Regulations, which requires that an offer of employment
be genuine.
[22]
Her
CAIPS Notes outline the duties listed in the offer letter of 30 March 2009 and
in the explanatory letters of 28 January 2010. The duties listed in the earlier
letter state that the Applicant would be required to “train and manage teams of
information systems personnel to design, develop, implement, operate and
administer computer software networks and information systems” and “recruit and
supervise computer technicians and oversee their training.” These duties were
not reiterated in later letters. In the later letters, the employer stated that
the Applicant was required “to build up, deploy and maintain a computerized
information system for the company” and “to set up the programs and information
system, to allow the business to classify the tenants’ information, the utility
and business types, the visiting customers’ information, to build up and
analyze data model, to analyze the business operation, to predict the company
business development future and to provide data evidence for the business
decision.”
[23]
The
Respondent contends that it was reasonable for the Officer to conclude that,
given the nature and size of the business, the duties were exaggerated for the
purpose of facilitating the Applicant’s immigration to Canada. Given that Mr. Szeto
was the only company executive, that he operated the business alone from his
cell phone and residential telephone numbers and that the commercial property
in question was comprised of only 14 units in a single location, it is unlikely
that the Applicant would be required to train and manage teams of personnel,
recruit and supervise computer technicians and control the budget and
expenditure of the company projects.
[24]
The
onus rests on the Applicant to establish the principal elements required for a
positive determination of his application. The Applicant failed to meet this
onus.
[25]
The
Officer provided sufficient reasons for her Decision. The refusal letter and
CAIPS Notes illustrate her relevant findings of fact, the principal evidence
upon which those findings were based and the major points in issue. The reasons
inform the Applicant as to why the employment offer was deemed not genuine. Therefore,
the test for sufficiency of reasons as set out in VIA Rail, above, is
met.
[26]
The
Officer also gave the Applicant an opportunity to respond to her concerns
regarding the employment offer. She then reviewed and assessed the documents
provided and concluded that the offer was not genuine. The Officer’s process
was fair and her determination reasonable.
The Applicant’s Reply
[27]
The
Applicant disputes the suggestion that the employment duties noted in Mr.
Szeto’s letter of 30 March 2009 and the letters of 28 January 2010 were
materially different. In any case, any alleged discrepancy between these
letters played no role whatsoever in the Officer’s Decision. The Officer merely
references these letters in her CAIPS Notes, which state:
Based
on the size and operation of Cdn Er’s property mgmt biz, I hv reasonable grounds to believe the
job duties stated in the PI’s Cdn job officer ltr and in Cdn Er’s explanation
ltr have been exaggerated for the purpose of facilitating PI’s appln for immg
to Cda under the are SW Immcat. (emphasis added)
It is clear that the Officer’s Decision was
based on the nature and size of the property management business and on her
finding that the offer of employment was not genuine. It had nothing to do with
the alleged discrepancies between the above-mentioned letters.
The Respondent’s Further Memorandum
[28]
The
Respondent submits that the Officer’s reasons should not be read
microscopically. When the Decision and the CAIPS Notes are read as a whole, the
Officer’s reasons are clear.
[29]
The
Officer noted that Mr. Szeto’s business consists of 14 units, one of which was
not rented. He has 11 tenants and an average of four employees. He is the only
executive and clearly is the only contact person, as he provides his cell phone
number so that tenants can reach him when he is travelling. The duties listed
in Mr. Szeto’s March 2009 letter differ from those listed in his January 2010
letter, and it is reasonable to assume from the Officer’s summary of the
content of the letters in the CAIPS Notes that she compared them. The January
2010 letter, unlike the March 2009 letter, contained no references to training
and managing teams of information systems personnel and recruiting, supervising
and overseeing the training of computer technicians.
[30]
These
pieces of information obviously are the factors considered by the Officer in
her assessment of the genuineness of the job offer in relation to a business whose
size, nature and type of operation resembles that of Gip Sing. The Officer’s
weighing of this evidence is deserving of deference.
ANALYSIS
[31]
The
Applicant says that the Officer’s reasons are inadequate:
In
short, it is the Applicants submission that Ms. Tsang has erred in that her
reasons have failed to articulate why she refused to accept the Applicant’s
Arranged Employment. The Applicant further submits that Ms. Tsang breached her
duty to (sic) procedural fairness through her failure to provide
meaningful or adequate reasons.
[32]
The
Applicant cites well-known authorities that speak to the issue of how reasons
should be assessed for adequacy. The Federal Court of Appeal in Via Rail,
above, had the following to say on point at paragraph 22:
The obligation to provide adequate reasons is not satisfied by
merely reciting the submissions and evidence of the parties and stating a
conclusion. Rather, the decision maker must set out its findings of fact and
the principal evidence upon which those findings were based. The reasons must
address the major points in issue. The reasoning process followed by the
decision maker must be set out and must reflect consideration of the main
relevant factors.
[33]
It
is also well-known that the purpose of reasons is two-fold. As the Supreme
Court of Canada put it in Lake v Canada (Minister of Justice), 2008 SCC 23 at
paragraph 46:
…The purpose of providing reasons is twofold: to allow the
individual to understand why the decision was made; and to allow the reviewing
court to assess the validity of the decision. The Minister’s reasons must make
it clear that he considered the individual’s submissions against extradition
and must provide some basis for understanding why those submissions were
rejected….
[34]
It
is also well-established that a decision-maker must do more than simply recite
the evidence and then add a conclusion. A connecting analysis is required that
leads from findings of fact to the stated conclusions based upon those facts.
In Adu v Canada (Minister of
Citizenship and Immigration) 2005 FC 565 at paragraphs 14 and 20 , Justice Anne
Mactavish put it as follows:
In
my view, these ‘reasons’ are not really reasons at all, essentially consisting
of a review of the facts and the statement of a conclusion, without any
analysis to back it up. That is, the officer simply reviewed the positive
factors militating in favour of granting the application, concluding that, in
her view, these factors were not sufficient to justify the granting of an
exemption, without any explanation as to why that is. This is not sufficient,
as it leaves the applicants in the unenviable position of not knowing why their
application was rejected.
…
In
contrast, in this case, the officer reviewed the evidence of establishment in Canada offered by the applicants in support of their applications,
and then simply stated her conclusion that this was not enough. We know from
the officer's reasons that she did not think that the applicants would suffer
unusual, undeserved or disproportionate harm if they were required to apply for
permanent residence from abroad. What we do not know from her reasons is why
she came to that conclusion.
[35]
In
the present case the reasons are found in the Officer’s letter of September 30,
2010 and are supplemented by the CAIPS notes. In sum, the reasons provided are
as follows:
I
have assessed you based on all documentation and information submitted to this
office by you in support of your immigration application. Your prospective
Canadian employer (Szeto) Ping Hay of Gip Sing International Ltd explained in
his letter dated 28 January 2010 to this office the nature and the operation of
his property management business in Oakville,
Ontario. Based on his own admission about the
nature and the size of his property management business, the fact that he
appears to be the only company executive in his property management business
and that he is operating the said business from his own cellphone (sic)
and residential telephone numbers, I am not satisfied that your prospective
Canadian employer genuinely requires you to perform the list of employment
duties for his property management company as stated in your Canadian
employment offer letter dated 30 March 2009 and in his explanation letter dated
28 January 2010 to this office. I have reasonable grounds to believe the
employment duties stated in those two letters letter (sic) have been
exaggerated for the purpose of facilitating your application for immigration to
Canada under the Federal Skilled Worker’s Arranged
Employment immigration category. I am, therefore, not satisfied that you have a
genuine offer of employment in Canada nor am I satisfied that you are likely to
accept and carry out the said employment in Canada. As
a result, I have not assigned any points to you under the Arranged Employment
factor when assessing your application. You have obtained insufficient points
to qualify for immigration to Canada, the minimum requirement being 67
points. You have not obtained sufficient points to satisfy me that you will be
able to become economically established in Canada.
Subsection
11(1) of the Act states that the 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 shall be issued if, following
an examination, the officer is satisfied that the foreign national is not
inadmissible and meets the requirements of this Act. Subsection 2(1) specifies
that unless otherwise indicated, references in the Act to “this Act” include
regulations made under it.
Following
an examination of your application, I am not satisfied that you meet the
requirements of the Act and the regulations for the reasons explained above. I
am therefore refusing your application.
CAIPS
Notes:
HV
concerns with authenticity of PI’s Cdn Job offer.
There
is no info in the public domain and in Cda’s Yellow Pages re a business called
“Gip Sing International Ltd” in Scarborough, Ont.
Biz
tel nbr shown in Cdn er’s co ltrhd on which the offer of emp dated 30Mar09 was
printed is a cellphone nbr based in Toronto.
Called
fax tel nbr shown in Cdn ER’s co ltrhd and noted that it does not appear to be
a fax nbr as claimed, that it is in fact a residential telephone nbr in
Markham, ON.
Noted
biz addr shown in Cdn er’s co ltrhd is a PO Box addr and not an actual biz
office addr.
Noted
PI is being offered the position of info systems mgr by Cdn er.
Noted
that PI’s emp duties include train and manage teams of info sys personnels to
design, develop, implement, operate, and administer computer software, networks
and info systems, supervise computer technicians and oversee their training.
Noted
that PI’s actual place of work is supposed to be at Gip Sing Intl Ltd’s Oakville office located at 579
Kerr St.
Info
available in the public domain indicates “579
Kerr St” is the location of
a number of retail restaurant and grocery stores in Oakville.
Info
available in the public domain re “579 Kerr St” indicates there is only one
computer retail store located at that Oakville addr, that it is not owned (sic)
by PI’s Cdn er and it provides computer sales, repairs, and cleaning service.
Concerns
ltr prepared on file.
GFK: Pls
1) Send concerns ltr on file
2) Send Cdn er ltr
requesting co’s latest NOA, revenue Cda’s docs and records to show the total
nbr of staff employed by this co in the past 12 mths or fiscal yr. and proof of
biz office and biz activities/projects at 579 Kerr St in Oakville.
17-DEC-2009
Sent concerns ltr
Sent Cdn er ltr
17-DEC-2009
Rec’d concerns reply
Owner
of Cdn employer Gip Sing International Lte, Mr. Szeto provides the following
docs to show his company is an active operating business.
Corporation
profile report issued by the Province of Ontario dated Jan 13, 2010 indicating the
company status is “active” and the registered office address is 1711 McCowan Rd in Scarborough.
Cert
of status issued by province of Ontario dated 13Jan2010 shows the company status
“has not been dissolved”.
Mr.
Szeto advised that Gip Sing is incorporated on Aug 26, 2004, and owns a
commercial plaza property at 579
Kerr St in Oakville which are leased out to various business.
Mr.
Szeto confirmed the job offer to PI is authentic.
Mr.
Szeto confirmed that the phone no and fax no provided on job offer are his
direct lines so as to respond directly to all matters.
Owner
provides the following docs to show sufficient resources to hire PI
-
2007 and 2008 NOA
-
T4 slips – 2009 for 6
employees of Gip Sing Int’l Ltd filed to CRA
-
Copy of stmt of
account for current source deductions of Gip Sing for 2009
-
Property tax bill of
Gip Sing shows location of Gip Sing is at 579
Kerr St., Oakville
-
Copy of commercial
lease agreement between Gip Sing and a buffet restaurant with annual rental
income of over Cad $19,000.
Feb
11 2010
Rec’d
rep’s fax dated 15Sep2010 for case status, said they have not heard anything
from us since doc submission 8 months ago
Sep
21 2010
Reviewed
Cdn employer’s biz docs and explanations provided in ltr dated 28Jan10
submitted to this office.
Cdn
employer (Szeto) Ping Hay of Gip Sing International Ltd explained in ltr to
this office that
1.
His co owns a
commercial plaza property at 579
Kerr St in Oakville, ON with
14 units available for leasing.
2.
Biz nature of his co
Gip Sing Intl ltd is property mgmt.
3.
He is the president,
the director, the secretary, and the treasurer of his co.
4.
Co’s biz tel nbr is
his own cell phone nbr as he is not always on site at 579 Kerr St in Oakville but wishes to respond to all matters
relating to his E biz, which is property mgmt.
5.
Co’s biz fax nbr is
his own residential tel nbr as he is not always on site at 579 Kerr St in Oakville but wishes to respond to all matters
relating to his biz, which is property mgmt.
Cdn
employer claimed that 13 of his 14 commercial units within the plaza have been
leased out and provided a list of 11 biz tenants.
Cdn
employer claimed that he required PI to work on site at unit 14, 579 Kerr St.
in Oakville, ON.
Cdn
employer claimed that he requires PI to perform the following duties:
a.
Build up, deploy and
maintain a computerized info system for his co
b.
Setup programs and
info system in order to classify the tenant’ info, the utility and business
types, the visiting customers’ info, build up and analyze data model, analyze
biz operation, predict co biz development future, and provide data evidence for
biz decision.
Noted
that Cdn er’s job offer ltr 30Mar09 submitted on file indicates PI’s job duties
to be
a.
Plan, organize,
develop, directm (sic) control and evaluate the operations of information
systems of the business.
b.
Meet with the
Director of the business to discuss system requirements, specifications costs
and timelines.
c.
Train and manage
teams of information systems personnel to design, develop, implement, operate
and administer computer software, networks and information systems.
d.
Control the budget
and expenditures of the Co projects.
e. Recruit and supervise computer
technicians and oversee their training.
Cdn
er submitted copy of revenue Cda’s stmt of account for current source
deductions for various mths in 2009 showing that he has been paying
contributions for an average of about 4 employees.
Based
on Cdn er’s biz docs submitted on file, I am satisfied an existing commercial
property rental biz.
However,
based on Cdn er’s own admission about the nature and the size of his biz, the
fact that he appears to be the only co executive in his property mgmt biz and
he is operating the biz from his own cellphone and residential telephone nbr, I
am not satisfied that Cdn er’s biz genuinely requires PI to perform the list of
job duties as stated in the PI’s Cdn job offer ltr dated 30Mar09 and Cdn er’s
explanation ltr dated 28Jan10.
Based
on the size and operation of Cdn er’s property mgmt biz, I have reasonable
grounds to believe the job duties stated in the PI’s Cdn job offer ltr and in
Cdn er’s explanation ltr have been exaggerated for the purpose of facilitating
PI’s appln for immig to Cda under the are SW immcat.
I
am, therefore, not satisfied that that PI has a genuine offer of emp in Cda nor
am I satisfied that PI is likely to accept and carry out the said emp in Cda.
10
are pts not assigned to PI.
[36]
The
CAIPS Notes make it clear that the Officer looked at all of the evidence. Her
reasoning process is also clear: when the stated duties of the job are compared
with the size and actual operation of the business, it is reasonable to assume
that a business of the size and nature of Gip Sing International Ltd. is not
likely to require someone to:
a.
Plan, organize,
develop, direct control and evaluate the operations of information systems of
the business
b.
…
c.
Train and manage
teams of information systems personnel to design, develop, implement, operate
and administer computer software, networks and information systems
d.
…
e.
Recruit and supervise
computer technicians and oversee their training.
The evidence was that
Gip Sing had paid contributions for an average of only four employees, so that
it was unlikely that the Applicant was needed by the business to, for example,
“train and manage teams of information systems personnel to design, develop,
implement, operate and administer computer software networks and information
systems,” particularly when the owner’s current mode of operations is examined
and taken into account.
[37]
Other
stated duties do not seem to be out of line:
b. Meet with the Director of the
business to discuss system requirements, specifications costs and timelines
…
d. Control
the budget and expenditures of the Co projects
[38]
The
plurals used in the job description create a very different impression from the
facts gathered by the Officer concerning the actual business. It looks as
though a considerable amount of exaggeration has taken place; the established
facts about the business lead to a reasonable conclusion that the business does
not require the Applicant to perform all of the duties set out in the list of
job duties that was provided to the Officer.
[39]
This
is much more than a statement of facts with a bald conclusion added. The Decision
says that when the list of job duties is compared with the actual size of this
business, and with the way it actually operates, there is an obvious
unexplained disconnect from which it is reasonable to conclude that the
business does not really need the Applicant to perform all of the stated duties,
and that the exaggeration of those duties has taken place to facilitate the
Applicant’s immigration to Canada.
[40]
In
my view, nothing could be plainer. The reasons are not extensive but they are
adequate because they allow the Applicant to see how and why the Decision was
made and they also allow the Court to assess their validity. “I am satisfied
that these reasons taken as a whole are sufficiently intelligible and
transparent and justified so as to enable the Applicant to understand what was
considered by the Officer and the conclusions reached in respect of the
relevant issues,” to use the words of Justice Roger Hughes in Rachewiski v
Canada (Minister of Citizenship and Immigration) 2010 FC 244 at paragraph
24.
[41]
The
reasons are adequate and, when the Officer’s conclusions are examined against
the evidence before her, they are reasonable. I cannot find a reviewable error
in this Decision.
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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