Date: 20110902
Docket: IMM-5570-10
Citation: 2011 FC 1038
Ottawa, Ontario, September 2, 2011
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
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MATHEW JOSEPH BRIENZA
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Applicant
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and
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THE MINISTER OF PUBLIC SAFETY AND
EMERGENCY PREPAREDNESS
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Overview
[1]
Mr.
Matthew Brienza, a citizen of the United States, applied for permanent
residence in Canada as a skilled
worker, namely, a Computer and Information Systems Manager. He tendered an
application, along with a supporting letter of reference from his employer, but
an immigration officer denied it because Mr. Brienza’s experience did not line
up with the occupational requirements of the position he sought.
[2]
Mr.
Brienza maintains that the officer rendered an unreasonable decision, treated
him unfairly, and failed to provide adequate reasons for his refusal. He asks
me to quash the officer’s decision and order a reassessment by another officer.
[3]
I
cannot find any basis for overturning the officer’s decision. In my view, the
officer’s decision was reasonable, the officer did not treat Mr. Brienza
unfairly, and the officer’s reasons adequately explained why his application
was turned down. I must, therefore, dismiss this application for judicial
review.
[4]
There
are three issues:
1. Was the officer’s
decision unreasonable?
2. Did the officer
treat Mr. Brienza unfairly?
3. Were the officer’s
reasons inadequate?
II. Factual Background
[5]
Mr.
Brienza has a Bachelor’s of Science degree from Drexel University.
From July 2006 until March 2009, he worked at a firm called Aerotek Inc. in Chesterbrook,
Pennsylvania. He started
out as a recruiter in the Engineering Division, then, in January 2007, he was
promoted to Account Recruiting Manager. His employer described Mr. Brienza’s
duties in the latter position as follows:
• assisting with the
integration of recruiter workspace [RWS];
• assisting with
debugging efforts of RWS software;
• working with
managers to develop new recruiting software goals for RWS;
• organizing manager
and recruiter feedback on RWS;
• preparing Excel
spreadsheets on the pros and cons of new software; and
• presenting reports
to communicate systems feedback.
[6]
In
his application, Mr. Brienza described his duties as follows:
• organizing and
operating information systems;
• preparing and
presenting reports;
• analyzing systems
requirements and performance;
• assisting in
recruiting and training of analysts; and
• assisting in developing
policies and procedures.
III. The Officer’s Decision
[7]
The
officer compared the information provided by Mr. Brienza against the National
Occupational Classification code for a Computer and Information Systems Manager
[NOC 0213] and concluded that Mr. Brienza was ineligible. The main duties for
NOC 0213 are:
• Plan,
organize, direct, control and evaluate the operations of information systems
and electronic data processing departments and companies;
• Develop
and implement policies and procedures for electronic data processing and
computer systems operations and development;
• Meet with clients
to discuss system requirements, specifications, costs and timelines;
• Assemble
and manage teams of information systems personnel to design, develop, implement,
operate and administer computer and telecommunications software, networks and
information systems;
• Control the budget
and expenditures of the department, company or project;
• Recruit
and supervise computer analysts, engineers, programmers, technicians and other
personnel and oversee their professional development and training.
[8]
The
officer concluded that he was not satisfied that Mr. Brienza was a Computer and
Information Systems Manager. He had not provided sufficient evidence of work
experience in that occupation and, therefore, was ineligible.
[9]
The
officer’s notes provide further insight into his decision. The officer compared
the duties Mr. Brienza had listed in his application, and those in his letter
of reference, against NOC 0213. He found that Mr. Brienza’s responsibilities
did not accord with the requirement in the lead statement for the position to
“plan, organize, direct, control and evaluate activities” of organizations
involved in developing and operating computer software and information systems.
Further, among other stipulations, NOC 0213 requires an applicant to be
primarily responsible for the recruitment of personnel and the development of
policies; Mr. Brienza had merely assisted with these tasks. As such, he had not
performed the duties listed under the lead statement for NOC 0213 or any of the
main duties of the position.
IV. Was the Officer’s Decision
Unreasonable?
[10]
The
officer had to decide whether Mr. Brienza had performed the actions in the lead
statement for NOC 0213, as well as some or all of the main duties. Mr. Brienza
submits that the officer’s decision was unreasonable because he had presented
evidence showing he had performed most of the duties of NOC 0213.
[11]
However,
as I see it, Mr. Brienza had actually provided very little evidence about his
responsibilities, leaving it to the officer to determine whether the brief
description of his work experience fit within the requirements of NOC 0213. As
mentioned, the officer found that Mr. Brienza’s experience did not fit within
the lead statement. He went on to consider whether Mr. Brienza met the
requirement of performing some or all of the main duties of the position, and
found that he had only satisfied part of some of those duties – not enough to
be eligible.
[12]
Comparing
the information provided by Mr. Brienza against the requirements of NOC 0213,
the officer’s conclusion was not unreasonable. Mr. Brienza’s experience simply
does not line up with the duties of NOC 0213.
V. Did the Officer Treat Mr.
Brienza Unfairly?
[13]
Mr.
Brienza argues that the officer had a duty to give him a chance to address any
concerns the officer had about his application, and that the failure to do so
breached the duty of fairness.
[14]
The
burden lies on an applicant to present sufficient evidence to satisfy the
applicable criteria. As mentioned, Mr. Brienza simply failed to provide
information that would demonstrate that he met the requirements of NOC 0213.
[15]
In
some cases, an officer may have a duty to give an applicant a chance to clarify
something in an application; for example, where an officer doubts the contents
of an applicant’s supporting documents or relies on extrinsic evidence: Sandhu
v Canada (Minister of Citizenship and Immigration), 2010 FC 759; Gandhi
v Canada (Minister of Citizenship and Immigration), 2003 FC 1054; Huyen
v Canada (Minister of Citizenship and Immigration), 2001 FCT 904. However,
officers do not have to give applicants an opportunity to supplement deficient
applications.
[16]
A
guideline for officers appears to set out a broader duty to give applicants an
opportunity to respond to concerns about whether they have performed the
required duties of a position (OP 6 Federal Skilled Workers, 12.13), but that
is not a legal requirement.
VI. Were the Officer’s Reasons
Inadequate?
[17]
Mr.
Brienza argues that the officer’s reasons were inadequate because they do not
explain why his application was unsuccessful.
[18]
Taken
together, the officer’s decision letter and notes explain that Mr. Brienza’s
application was dismissed because his letter of reference and his own
description of his experience did not accord with the required duties of NOC
0213. In my view, the officer provided an intelligible and transparent
justification for his decision.
VII. Conclusion and Disposition
[19]
The
officer treated Mr. Brienza fairly and rendered a reasonable decision based on
the evidence before him. His conclusion was also adequately explained.
Therefore, I must dismiss this application for judicial review. Neither party
proposed a question of general importance for me to certify, and none is
stated.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application for judicial review is dismissed;
2.
No
question of general importance is stated.
“James
W. O’Reilly”
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