Date:
20130225
Docket:
IMM-3833-12
Citation:
2013 FC 188
Ottawa, Ontario,
February 25, 2013
PRESENT: The
Honourable Mr. Justice Scott
BETWEEN:
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FARAH NAUMAN
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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
I. Introduction
[1]
This
is an application by Ms. Farah Nauman (the Applicant), pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA],
for judicial review of a Visa Officer’s (the Officer) decision, rendered May 4,
2012, denying the Applicant’s application for permanent residence as a member
of the Federal Skilled Worker [FSW] class under subsections 87.3 (2) and (3) of
IRPA.
[2]
For
the reasons that follow this application is dismissed.
II. Facts
[3]
The
Applicant is a 38 year old citizen of Pakistan.
[4]
Around
December 12, 2009, the Applicant submitted an application for permanent
residence in Canada under the FSW class. The Applicant indicated that she had
seven years work experience falling under the National Occupation
Classification (NOC) code, NOC-4131 (now 4021) - College and other vocational
instructors.
[5]
The
Applicant included letters of recommendation from the three most recent schools
at which she had taught. The Applicant taught chemistry at the Pakistan Community School and College in Tripoli, Libya; the Convent of Jesus & Mary School, in Lahore, Pakistan; and the Lahore Grammar College for Women.
[6]
The
Applicant’s resume specified that she had a master’s degree in chemistry from
the University of The Punjab and had taught chemistry to “college level
students of Pre-engineering /Pre-medical (Part 1 & 2)” at the Pakistan Community School and College in Tripoli and the Lahore Grammar College for Women
(Application Record, pages 122-123). Other forms the Applicant included
indicated that she had worked as a college teacher at the Pakistan Community School and College in Tripoli and the Lahore Grammar College for Women; and as a
school teacher at the Convent of Jesus & Mary.
[7]
On
May 4, 2012, the Officer rejected the Applicant’s application on grounds that
she failed to provide satisfactory evidence that she had, over the last ten
years, at least one year of continuous full-time or equivalent part-time
experience as a college instructor as required by paragraph 75(2)(a) of
the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR].
[8]
The
Officer noted that the Applicant’s letters from past employers indicated that
she had been employed as either a secondary or higher secondary level
instructor rather than as a college level instructor. As a result, the Officer
decided that the Applicant did not have the required work experience in an
occupation listed under NOC-4021-College and other vocational instructors.
III. Legislation
[9]
The
applicable legislation is appended to this judgment.
IV. Issues
and standard of review
A. Issues
1.
Was the Applicant denied procedural
fairness?
2. Was
the Officer’s conclusion that the Applicant’s work experience did not fall
under NOC-4021 - College and other vocational instructors’ reasonable?
B. Standard
of review
[10]
It
is now firmly established in the case law that the standard of review to be
applied to potential breaches of a rule of natural justice or procedural
fairness is that of correctness (see Canadian Union of Public Employees
(C.U.P.E.) v Ontario (Minister of Labour), 2003 SCC 29 at para 100, [2003]
1 SCR 539; Kuhathasan v Canada (Minister of Citizenship and Immigration),
2008 FC 457 at para 18 [Kuhathasan]; Jin v Canada (Minister of
Citizenship and Immigration), 2008 FC 1129, at para 13).
[11]
With
regards to the second issue, the Officer’s decision involved assessing the
Applicant’s work experience against legislative requirements. The decision was based
on findings of mixed fact and law and is therefore reviewable on the standard
of reasonableness (see Dunsmuir v New Brunswick, 2008 SCC 9 at
para 47, [2008] 1 S.C.R. 190 [Dunsmuir]; Gulati v Canada (Minister of Citizenship and Immigration), 2010 FC 451 at
para 19).
[12]
When
reviewing a decision on a standard of reasonableness, the Court must be
concerned “with the existence of justification, transparency and
intelligibility within the decision-making process. But it is also concerned
with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law” (see Dunsmuir,
cited above, at para 47).
V. Analysis
1. Was
the Applicant denied procedural fairness?
A. Applicant’s
submissions
[13]
The
Applicant submits that she was denied procedural fairness when the Officer
refused her application without first notifying her of his doubts regarding her
teaching experience. The Applicant argues that while “officers [generally] do
not have a duty to apprise applicants of a concern which arises directly out of
the requirements of the Act [...] where the applicant is aware of their onus to
provide evidence, and provides such evidence, an officer may have a duty to
apprise the applicant of concerns with this evidence” (Applicant’s Memorandum
of Fact and Law, at para 24). Such was the conclusion, the Applicant contends,
that the Honourable Justice Mosley arrived at in Rukmangathan v Canada (Minister of Citizenship and Immigration), 2004 FC 284, [Rukmangathan],
where at paragraph 38 he wrote:
“. . . The applicant was aware that evidence of his
educational background was required in order to satisfy his onus of proof. He
provided such evidence. The visa officer's problems with two of his diplomas .
. . could have easily been addressed if the applicant had been apprised of it,
however, I am persuaded that he was not afforded such opportunity.”
[14]
The
Applicant next cites three decisions supporting the view that where an
application appears to meet all of the requisite elements, a Visa Officer has a
duty to notify an Applicant of any other concern before refusing it (see Kumar
v Canada (Minister of Citizenship and Immigration), 2010 FC 1072 at para 29
[Kumar]; Sandhu v Canada (Minister of Citizenship and Immigration),
2010 FC 759 [Sandhu]; Gedeon v Canada (Minister of Citizenship and
Immigration), 2004 FC 1245 at paras 99-100 [Gedeon]).
[15]
The
Applicant submits that she knew what the eligibility requirements were and
filed appropriate documentation to demonstrate that she met them. The Officer
had a duty to alert the Applicant of his doubts as to whether her experience of
teaching at the higher secondary level met the NOC-4021 college level
requirement.
[16]
Finally,
the Applicant argues that the Officer’s refusal necessarily implies that he
made a negative credibility finding regarding the other documents included in
the application. As noted above, the Applicant’s resume indicated that the she
had taught chemistry to pre-engineering and pre-medical college level students.
The Applicant concludes that because her application was, on its face, adequate
and that the veracity of the Applicant’s documents was at issue, the Officer
had a duty to provide her with the opportunity to clarify what level she had
taught at.
B. Respondent’s
submissions
[17]
The
Respondent submits that it is now well-established in the case law that
procedural fairness does not require a Visa Officer to alert an Applicant of
deficiencies in his application that are related to requirements arising
entirely out of IRPA or the IRPR (see Kamchibekov v Canada (Minister
of Citizenship and Immigration), 2011 FC 1411 at para 26 [Kamchibekov];
Kaur v Canada (Minister of Citizenship and Immigration), 2010 FC 442 at
para 12 [Kaur]).
[18]
Given
that relevant work experience in the context of a FSW application is a concern
that arises out of the IRPA or the IRPR, the Respondent concludes
that the Officer had no duty to inform the Applicant of his doubts regarding
the level at which she had taught (see Kamchibekov cited above, at para
26; Kaur cited above, at para 12).
[19]
The
onus was on the Applicant to ensure that her application clearly demonstrated
that she met the requirements for NOC-4021 and to anticipate any possible
ambiguities contained in it (see Singh v Canada (Minister of Citizenship and
Immigration), 2012 FC 526 at para 52). The Respondent argues that the
Applicant’s application was not convincing enough and should have contained
information explaining the equivalence between higher secondary level schooling
in Pakistan and Libya and CEGEP/college level schooling in Canada.
[20]
The
Respondent notes that the decisions cited by the Applicant are distinguishable
from the case at hand because they relate to concerns of credibility of
evidence as opposed to concerns arising directly out of the legislation.
[21]
Relying
on Obeta v Canada (Minister of Citizenship and Immigration), 2012 FC
1542, the Respondent argues that the onus is on the Applicant to adduce
adequate evidence of his work experience.
C. Analysis
[22]
This
Court must decide whether procedural fairness required the Officer to notify
the Applicant of his concerns regarding her work experience prior to denying
her application. For the reasons that follow, the Court finds that the Officer
had no such duty.
[23]
As
the Respondent noted in his submissions, it is well settled in the case law
that a Visa Officer does not have a duty to inform an Applicant of his concerns
that arise directly from the requirements of the IRPA or its
regulations. In Hassani v Canada (Minister of Citizenship and Immigration),
2006 FC 1283 at para 24 [Hassani], Justice Mosley articulated the
principle in the following manner:
“Having reviewed the factual context of the cases
cited above, it is clear that where a concern arises directly from the
requirements of the legislation or related regulations, a visa officer will not
be under a duty to provide an opportunity for the applicant to address his or
her concerns. Where however the issue is not one that arises in this context,
such a duty may arise. This is often the case where the credibility, accuracy
or genuine nature of information submitted by the applicant in support of their
application is the basis of the visa officer’s concern, as was the case in Rukmangathan
. . . .”
[24]
In
Kaur, cited above, at para 12, the Honourable Justice Tremblay-Lamer
noted that:
The question whether an applicant has the relevant
experience as required by the regulations and is thus qualified for the trade
or profession in which he or she claims to be a skilled worker is “based
directly on the requirements of the legislation and regulations” (Hassani,
above, at par. 26). Therefore it was up to the Applicant to submit sufficient
evidence on this question, and the visa officer was not under a duty to apprise
her of his concerns.
[25]
Finally,
in Lam v Canada (Minister of Citizenship and Immigration), [1998] FCJ No
1239 at para 4, the Honourable Justice Rothstein, then of the Federal Court,
had the following to say regarding the quality of applications that is expected
from applicants:
“ . . . The onus is on an applicant to file a clear
application together with such supporting documentation as he or she considers
advisable. The onus does not shift to the visa officer and there is no
entitlement to a personal interview if the application is ambiguous or
supporting material is not included.”
[26]
The
Court agrees with the Respondent that the Officer’s concern in the present case
(i.e. whether the Applicant had the required college level teaching experience)
arose directly from the requirements of paragraph 75(2)(a) of the IRPR
and that the Officer had no duty to alert her of his concerns. The onus was on
the Applicant to provide an application which clearly indicated that she met
the NOC-4021 requirements.
[27]
The
Court disagrees with the Applicant’s interpretation of Rukmangathan,
cited above. It was clearly indicated, at paragraph 24 of that decision, that
the visa officer’s concerns “[could not] be said to have emanated directly from
the requirements of the legislation”. In Rukmangathan, cited above, the
Applicant was required to provide proof of his education in the field of
computer science and did so by submitting his diplomas in that field. The
officer had issues with the form rather than the substance of the evidence. In
the present case, the Applicant was required to provide evidence of her
experience teaching at the college level but provided letters which seemingly
indicated that she had taught at the secondary level instead. The two cases are
clearly distinguishable.
[28]
The
Court also disagrees with the Applicant’s comparison of the present case with Kumar, Sandhu and Gedeon, all
cited above. As the Respondent noted, all three of those cases involved
situations where the Applicants’ applications, if believed, fulfilled the
requirements of the legislation and its regulations. In the case at bar, the
Officer found that the application did not, on its face, meet the requirements
of NOC-4021. The Applicant failed to adduce satisfactory evidence of relevant
teaching experience.
[29]
Finally,
the Court rejects the Applicant’s submission that the Officer’s refusal
involved credibility or accuracy issues. If the Court accepts that this case
involves credibility issues because the Applicant claimed to have taught
college level students in her resume, it would essentially be accepting that
every application denied due to insufficient or unsatisfactory evidence
involves a credibility issue. Such a proposition cannot stand. A credibility
issue, as this Court understands it, only arises when all the documents
submitted make a prima facie case that an Applicant has met all the
eligibility requirements (as was the case in Kumar, Sandhu and Gedeon,
cited above). There is no need to question the veracity of documents unless
they serve as evidence of an applicant’s eligibility. In the case at bar, the
Applicant did not provide satisfactory evidence that she had teaching
experience at the college level.
2. Was
the Officer’s conclusion that the Applicant’s work experience did not fall
under NOC-4021-College and other vocational instructors’ reasonable?
A. Applicant’s
submissions
[30]
The
Applicant contends that the Officer’s decision to refuse her application on the
basis that she failed to provide adequate proof of having taught at the college
level was unreasonable.
[31]
The
Applicant argues that given the following considerations:
- The
Applicant holds a master’s degree in chemistry;
- She
taught pre-engineering and pre-medical students;
- Her
duties included all of those described in the NOC-4021 code;
the Officer was required to provide
adequate reasons as to why he did not believe the Applicant had college level
teaching experience. The Applicant contends that the Officer’s reason did not
indicate why he believed higher secondary or FSc I and II did not constitute
college level and concludes that in failing to do so, “the [O]fficer failed to
meet the standard of justification and transparency set in Dunsmuir v New
Brunswick” (Applicant’s Memorandum of Fact and Law, at para 39).
B. Respondent’s
submissions
[32]
The
Respondent submits that the Applicant’s letters did not provide clear evidence
that she had teaching experience at the college level. On the contrary, the
letters submitted by the Applicant clearly indicated that she had taught at the
secondary level. The Officer’s decision was, as a result, reasonable and fell
“within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law” (Dunsmuir, cited above, at para 47).
C. Analysis
[33]
For
the following reasons, the Court finds that the Officer’s decision was reasonable.
[34]
The
May 4, 2012 decision clearly indicated that the Officer rejected the
Applicant’s application because the letters she included indicated that the she
had taught at the secondary or higher secondary level rather than at the
college level. The Officer’s interpretation of the term senior or higher
secondary as nevertheless implying a secondary level was reasonable and was
obviously related to the plain meaning of the terms. His reasons were
sufficiently justified and transparent. The Court is satisfied that such a
decision was reasonable and a possible outcome as it reviewed the contents of
the letters presented by the Applicant.
V. Conclusion
[35]
In
conclusion, the Officer did not have a duty to advise the Applicant in this
instance since his concerns arose from the requirements of the legislation or
related regulations as to the evidence adduced and his decision to reject her
application was reasonable.
ORDER
THIS
COURT ORDERS that the application be dismissed and no
question is certified.
"André F.J.
Scott"
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