Date: 20080910
Docket: IMM-4843-07
Citation: 2008 FC 1012
Ottawa, Ontario, September 10, 2008
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
NORY
ANNE MALONZO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
In
November 2004, Ms. Malonzo submitted an application for permanent residence
under the skilled worker category. She included in her application an arranged
employment opinion from Human Resources and Skills Development Canada (HRSDC) for
the position of Administrative Officer under National Occupation Classification
(NOC) 1221. A Canadian employer had extended an offer of employment to Ms.
Malonzo for a full-time position as an Administrative Officer in its commercial
interior design company in Toronto.
[2]
On
September 20, 2007, Ms. Malonzo attended an interview at the Consulate in Buffalo, New York. At the
interview, the officer inquired about the nature of the arranged employment in
Canada and Ms. Malonzo’s previous employment in the Philippines.
[3]
As
a result of the interview Ms. Malonzo was unable to achieve sufficient points
to qualify for a permanent resident visa as a member of the skilled worker
category and her application was rejected. She achieved 63 points, while 67 is
the minimum required score. In this application, she principally challenges
two aspects of the assessment: (1) the awarding of 17 out of a maximum of 21
points for prior work experience; and (2) the awarding of 0 out of a maximum of
10 points for arranged employment.
[4]
For
the reasons that follow, I am of the view that the officer’s decision was not
unreasonable, and that this application should be dismissed.
ISSUES
[5]
Ms.
Malonzo raises three issues:
1.
Whether
the officer erred in determining that she did not have any experience as an
Administrative Officer (NOC 1221) and Financial Accounts Analyst (NOC 1114) and
further erred in not awarding her points for arranged employment;
2.
Whether
the officer erred in failing to utilize substituted evaluation methodology
under section 76(3) of the Immigration and Refugee Protection Regulations, S.O.R./
2002-227; and
3.
Whether
the officer provided insufficient reasons for the decision.
BACKGROUND AND ANALYIS
The Arranged Employment
[6]
In
the HRSDC application for arranged employment, the employer listed the requirements
of the job as including a post-secondary business diploma and three years
experience in an administrative or financial position. The skills required were
listed as: advanced computer skills; organizational skills; being detail
oriented; and good communication skills. The duties were described in the
application in the following manner:
COMPUTER RECORD KEEPING OF
CLIENTS/CONTRACTS/PROJECTS/TIME-TRACKING/PAYABLES & RECEIVABLES, ALL
ASPECTS OF OFFICE MANAGEMENT & COORDINATION OF OFFICE SYSTEMS.
[7]
At
the interview on September 20, 2007, officer noted the following on the
Computer Assisted Immigration Processing System (CAIPS) notes:
SUBJECT ASKED TO DEFINE DUTIES WHICH WILL
INCLUDE FILING, PAYROLL (CALCULATE TIME, OT ETC. AND ISSUE CHECKS), PREPARE
APPOINTMENTS FOR MR. SWEENEY, RESEARCH ON COMPANIES THEY ARE WORKING ON (E.G.
SEARS).
…
LMO STATES NOC CODE AND TITLE AS 1221 --
ADMINISTRATIVE OFFICER. DUTIES AS DESCRIBED BY SUBJECT SEEM TO FALL UNDER NOC
CODE 1432 (PAYROLL CLERK) OR 1411 (GENERAL OFFICE CLERK) BOTH WHICH FALL UNDER
SKILL LEVEL C AND DO NOT QUALIFY FOR POINTS. I HAVE REVIEWED THE DUTIES UNDER
NOC CODE 1221 AND FEEL THAT THE WORK AS DESCRIBED BY SUBJECT ABOVE DOES NOT
REFLECT THE MAIN DUTIES OF THIS OCCUPATION AS SET OUT IN THE OCCUPATIONAL
DESCRIPTIONS OF THE NATIONAL OCCUPATIONAL CLASSIFICATION (NOC). I FIND THAT
THIS EMPLOYMENT DOES NOT MEET THE POINT QUALIFICATION AS OUTLINED IN R75(2) (B)
AND (C). NO POINTS AWARDED FOR ARRANGED EMPLOYMENT.
[8]
Ms.
Malonzo filed an affidavit with this application in which she swears that she
advised the officer that the duties of the arranged job were “to administer
general office procedures and routines, specifically to develop and manage an
effective filing system to keep track and record the company’s clients and
projects; to oversee payables and receivables, including payroll; to coordinate
all matters related to meetings and the executive” and would be responsible “to
coordinate matters related to budgets, expenses, including manage the purchase
of equipment and supplies, maintain records of office services, and prepare
financial report”. (sic)
[9]
The
Applicant submits that the officer misapprehended or ignored her evidence in
determining that the duties of the arranged job corresponded with NOC 1432 or
1411, both of which fall under Skill Level C and neither of which qualify for
points. The Applicant asserts that the duties are more properly described as
falling under NOC 1221, which would attract points.
[10]
In
my view, the officer’s summary in the CAIPS notes and that of the Applicant in
her affidavit do not differ to the extent that it can be said that the
officer’s decision in this regard was unreasonable. To go further would
involve a reweighing of the evidence and a redetermination of the officer’s
decision – a role that is not open to this Court on judicial review.
Employment History
[11]
The
officer also reviewed with Ms. Malonzo her employment history and, in this
regard, the CAIPS notes read as follows:
MAY 1994 - JUNE 1995 - ADMINISTRATIVE
ASSISTANT - PHILIPPINE NATIONAL BANK THROUGH TEMP AGENCY. TELLER AT THE BANK.
WORKED FRONT LINE SERVING CUSTOMERS DURING DAY, OPENING ACCOUNTS, CLOSING,
FILING, CURRENCY EXCHANGE ETC.
JUNE 1995 - MARCH 1997 - FINANCIAL
ACCOUNTS ANALYST - ABSORBED FROM AGENCY (WORKED DIRECTLY FOR BANK). STILL A
BANK TELLER BUT HAD MORE RESPONSIBILITY -- DID CLEARING CHECKS, GENERAL
LEDGERS, REPORTS, ATM, BALANCING IN/OUT CASH OF ATM. MADE 4000/MO. PHIL PESO.
THE ABOVE BOTH FALL UNDER NOC 1434 -
BANKING, INSURANCE AND OTHER FINANCIAL CLERKS AND IS SKILL LEVEL C. DOES NOT
QUALIFY FOR POINTS.
JUNE 1997 - DECEMBER 2000 -- CHANGED JOBS
(ASKED FOR TRANSFER) AND MOVED TO LAND BANK OF THE PHILIPPINES (LBP). LBP SERVICE CORP. HELD HER
“CONTRACT" AND ARRANGMENT THE EMPLOYMENT WITH LBP. CREDIT INVESTIGATOR -
WORKED FOR THE LOAN BRANCH OF THE BANK. NO LONGER HANDLED CASH -- CREDIT
INVESTIGATOR - LOAN OFFICER - EVALUATING ACCOUNTS – RE-EVALUATION OF LOANS -
MADE RECOMMENDATION TO LOAN DECISION MAKE AND PROVIDED SUPPORTING ARGUMENTS FOR
RECOMMENDATION. MADE $6,000 - $7,000/MO PHIL PESO.
THE ABOVE QUALIFIES UNDER NOC CODE 1232 -
LOAN OFFICER AND IS SKILL LEVEL B. SUBJECT QUALIFIES FOR TWO YEARS EXPERIENCE
FOR ABOVE WORK HISTORY.
[12]
Again,
in her affidavit Ms. Malonzo provides greater detail of the roles she performed
in these positions. Contrary to the submissions made at the hearing of this
application, the CAIPS notes clearly indicate that the officer awarded the
Applicant points for her work experience after June 1997. The real area of
dispute is with respect to the work experience prior to that date, for which she
was not awarded any points.
[13]
With
respect to the period prior to June 1995, the evidence in Ms. Malonzo’s
affidavit and the officer’s notes are quite similar in terms of the duties
described for that position. Accordingly, the officer’s decision cannot be
said to be unreasonable.
[14]
There
is a divergence between the officer’s notes and the Applicant’s affidavit with
respect to the duties Ms. Malonzo performed as a Financial Accounts Analyst
between 1995 and 1997. The officer’s notes from the interview, as set out in
paragraph 11 above, describe the duties as being equal to those of a bank
teller but with more responsibility, including responsibilities for clearing
cheques, general ledgers, reports and ATM responsibilities. The officer found
that those duties fall under NOC 1434, Banking Clerk. The Applicant submits that
the officer gave only a cursory analysis of the evidence she presented at the
meeting. I am unable to agree with that position. Had the Applicant submitted
documentation with the original application that detailed the duties of the
roles in which she had been employed, that submission might have carried
greater weight. Unfortunately, all that was before the officer were letters
from employers stating the period of employment and the position title. Other
than that, the only evidence of the duties associated with these jobs was that provided
by the Applicant in her original application, which is quite similar to the
officer’s description, and her statements made to the officer at the interview.
[15]
In
my view, the officer’s evidence with respect to the content of the interview is
to be preferred to the Applicant’s because his notes were made contemporaneously
with the event and his description of duties is more in keeping with the pay
level of the position. Further, if the position involved the responsibilities alleged
now by the Applicant, one would expect them to have been recited by her in her
original application; but they are not.
[16]
For
these reasons, I am unable to agree with the Applicant that the decision of the
officer was unreasonable.
Substituted Evaluation
Methodology
[17]
The
Applicant submits that as she was so close to having the required points –
having achieved 63 of the required 67 – the officer erred in failing to employ
the substituted evaluation methodology under section 76(3) of the Regulations, which
provides as follows:
|
76. (3) Whether or not the
skilled worker has been awarded the minimum number of required points
referred to in subsection (2), an officer may substitute for the criteria set
out in paragraph (1)(a) their evaluation of the likelihood of the
ability of the skilled worker to become economically established in Canada if
the number of points awarded is not a sufficient indicator of whether the
skilled worker may become economically established in Canada.
|
76. (3) Si le nombre de points obtenu par un
travailleur qualifié — que celui-ci obtienne ou non le nombre minimum de
points visé au paragraphe (2) — ne reflète pas l’aptitude de ce travailleur
qualifié à réussir son établissement économique au Canada, l’agent peut
substituer son appréciation aux critères prévus à l’alinéa (1)a).
|
[18]
The
Respondent submits that the Applicant made no request to the officer to
substitute his or her own evaluation and, in those circumstances, cannot now
complain that the officer did not do so. I agree with this submission which
relies on the following observation from Justice Rothstein of this Court, as he
then was, in Lam v. Canada (Minister of
Citizenship and Immigration), (1998), 152 F.T.R. 316 at para. 5 and 6:
Nothing precludes the visa officer, on
his or her own motion, from proceeding under subsection 11(3) [now s. 76(3)] if
he or she considers that it is warranted to do so. However, if an applicant
wishes the visa officer to exercise discretion under subsection 11(3), it would
seem that some form of application would be required. While there is no
prescribed wording to which an applicant must adhere, I would think the
application would at least have to indicate some good reasons why a units of
assessment determination would not reflect the chances of successful
establishment in Canada by the applicant. There was no such
application here.
The applicant says he would not know that
he must make an application to request subsection 11(3) consideration until he
is told his application fails under the units of assessment determination, and
this is a reason for a personal interview. However, this argument is misplaced.
The visa officer is not required to provide a piecemeal ongoing determination
and advise the applicant at each stage, even if a personal interview is
conducted. The units of assessment award is the conventional way in which visa
officers determine whether an immigrant visa may be issued. Subsection 11(3) is
exceptional. Where an applicant has reason to believe that he or she may be
successfully established in Canada, irrespective of the units of assessment
determination, he or she should apply for a determination under subsection
11(3) setting forth relevant reasons. Otherwise, while the visa officer may do
so on his or her own volition, there is no obligation on the visa officer to
exercise a discretion under subsection 11(3). As indicated, there was no
application by the applicant for the exercise of discretion by the visa officer
under subsection 11(3) in this case.
[19]
Accordingly,
the officer cannot be faulted for failing to consider a substituted evaluation
mechanism when none was requested.
Adequacy of Reasons
[20]
It
was submitted that the Respondent breached its duty of fairness by providing a
decision which was a short letter that did not include the CAIPS notes. In my
view, the Respondent’s submission on this point is correct: if there was any
unfairness here, it was corrected when the Respondent provided the certified
tribunal record to the Court and parties following the filing of this
application for leave and judicial review.
Conclusion
[21]
For
all of these reasons this application is dismissed. No question was proposed
by either party for certification and, in my view, there is none.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1.
The
application is dismissed; and
2.
No
question is certified.
“Russel W. Zinn”
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