Date: 20130318
Docket: IMM-4320-12
Citation: 2013 FC 278
Ottawa, Ontario, March 18, 2013
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
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TAHIR
MUHAMMAD ABBASI
SAMBREEN
TAHIR
ZAINAB
ABBASI
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Applicants
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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]
Mr. Abbasi, his wife and dependent child (the Applicants)
are citizens of Pakistan who wish to come to Canada as permanent residents. To
this end, Mr. Abbasi filed an application for permanent residence as a Federal
Skilled Worker. Mr. Abbasi requested that he be assessed within National
Occupational Category (NOC) 0631 as a Restaurant and Food Service Manager.
[2]
In support of his application, Mr. Abbasi submitted
evidence of more than three years of experience in the food service industry as
an employee of McDonald’s Pakistan. His supporting documentation included a
letter from his employer setting out Mr. Abbasi’s position as “2nd
Assistant Manager” and a list of his duties.
[3]
In a decision dated March 2012, a visa officer (Officer)
refused his application, apparently on the basis that Mr. Abbasi did not meet
the requirements set out for NOC 0631. The following, almost incomprehensible
sentence is the sum total of the reasons set out in the decision letter:
Although the NOC code(s)
correspond(s) to the occupations specified in the Instructions, the main duties
that you listed do not indicate that you performed the actions described in the
lead statement for the occupation, as set out in the occupational descriptions
of the NOC that you performed all of the essential duties and a substantial
number of the main duties, as set out in the occupational descriptions of the
NOC.
[4]
As recognized by the parties, the Officer’s Computer Assisted
Immigration Processing System (CAIPS) notes also form part of the reasons for
the refusal. A review of the CAIPS notes discloses that the entirety of the
reasons consists of the following:
The job duties as outlined in his
reference from McDonalds do not indicate that they meet the lead statement for
NOC 0631 nor do they indicate that he has performed the main duties as outlined
in NOC 0631.
Based on documentary evidence, I
am not satisfied that the applicant has performed the main duties as set out in
the occupational description in the NOC.
[5]
To succeed in his application for permanent residence as a
Federal Skilled Worker, Mr. Abbasi had to first establish that he met the
test for “skilled worker” set out in s. 75(2) of the Immigration and Refugee
Protection Regulations, SOR/2002-227 [the Regulations].
Specifically, he had to satisfy the Officer that he performed the actions
described in the lead statement and a “substantial number of the main duties”
of NOC 0631. Stated in different terms, the obligation of the Officer was to
evaluate the duties described in Mr. Abbasi’s letter against the lead statement
and the main duties of NOC 0631. If Mr Abbasi performed the actions of the lead
statement and a substantial number of the main duties, he would qualify to be
assessed as a permanent resident.
[6]
The problem with the decision is that we have no idea
whether the Officer actually carried out any evaluation. The simple
statement that Mr. Abbasi had not performed the main duties does not provide
any guidance as to why the application was refused. The Regulations
clearly require that only a “substantial” number of the main duties be
performed. From the reasons, I conclude that either: (a) the Officer did not
assess Mr. Abbasi’s duties at McDonald’s; or (b) the Officer required that Mr.
Abbasi carry out all of the duties rather than a substantial number of the main
duties of NOC 0631. Either way, it is not clear that the Officer turned his
mind to the question of whether the test set out in the Regulations had been
met.
[7]
The Respondent suggests that I look to the record and
compare the employer’s letter with the duties of NOC 0631. On the basis of the
guidance of the Supreme Court of Canada in Newfoundland and Labrador Nurses'
Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3
SCR 708 [NL Nurses], the Respondent argues I can supplement the reasons
with such a review of the record. Frankly, in this case, if I were to compare
the job duties in the employer’s letter with those set out in NOC 0631, I would
see a great number of similarities.
[8]
In my view, the principles espoused in NL Nurses do
not extend to rectifying a failure of the Officer to carry out his duty.
[9]
The Officer’s reasons did not need to be extensive.
However, to be reasonable, the reasons must demonstrate that the Officer had performed
his duty. In this regard, I note the words of Justice Mosley in Gulati v Canada (Minister of Citizenship and Immigration), 2010 FC 451 at paras 41-42, 89 Imm LR
(3d) 238:
It is impossible to assess the officer's conclusion, that
the applicant had not performed a substantial number of the main duties of NOC
6212, without knowing which duties the officer thought had not been performed
and why.
According to Dunsmuir, above, at paragraph 47, the
transparency and intelligibility of a decision are important elements of a
reasonableness analysis. I conclude that their absence in the present decision
render it unreasonable.
[10]
The application for judicial review will be allowed.
Neither party proposes a question for certification.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1.
the application for judicial review is allowed, the
decision of the Officer is quashed and the matter sent back for
re-determination by a different visa officer; and
2.
no question of general importance is certified.
“Judith
A. Snider”
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