Date:
20130412
Docket:
IMM-3021-12
Citation:
2013 FC 371
Ottawa, Ontario,
April 12, 2013
PRESENT: The
Honourable Madam Justice Gleason
BETWEEN:
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SHANZA BAIG
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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]
The
applicant is a citizen of Pakistan, who sought permanent residence in Canada as a member of the Federal Skilled Worker Class, described in section 75 of the Immigration
and Refugee Protection Regulations, SOR/2002-227. She claimed to possess
the requisite one year’s experience in the National Occupational Classification
[NOC] 4131 – College and Other Vocational Instructors. The applicant had worked
for at least a year in the position of lecturer in law at the Pakistan College
of Law, which is affiliated with the University of the Punjab. In support of
her application, she provided a listing of the duties she performed in that
position (much of which was expressed in terms identical to the descriptor
contained in NOC 4131), an excerpt from the College’s calendar, showing her to
be a member of the Law Faculty and providing a brief biography, and a
confirmation of employment letter from the Dean of the Law Faculty, which
provided some additional detail regarding the applicant’s duties as a lecturer.
[2]
Her
application was rejected by an Immigration Officer at the Canadian High
Commission in London on February 27, 2012. In the letter advising the applicant
of the rejection of her application, the Officer provided extremely short
reasons, stating only that:
[The] main duties that [the applicant] listed [did]
not indicate that [she] performed the actions described in the lead statement
for the occupation, as set out in the occupational descriptions of the NOC or
that [the applicant] performed all of the essential duties and a substantial
number of the main duties, as set out in the occupational descriptions of the
NOC.
[3]
The
Officer provided more detail in the Computer Assisted Immigration Processing
System [CAIPS] notes, which the Officer prepared contemporaneously with the
decision; these notes are recognized as forming part of the Officer’s decision
(Ziaei v Canada (Minister of Citizenship and Immigration), 2007 FC 1169
at para 21; Toma v Canada (Minister of Citizenship and Immigration),
2006 FC 779 at para 10). In the CAIPS notes, the Officer stated:
Although the NOC Code 4131 corresponds to an
occupation specified in the instructions, the information submitted to support
this application is insufficient to substantiate that applicant meets the
occupational description and/or a substantial number of the main duties of NOC
4131. The employment letters do not contain any list of duties to demonstrate
that [the applicant] performed a substantial number of the main duties of NOC
4131.
[4]
In
this application for judicial review, the applicant argues that the Officer’s
decision should be set aside because the Officer erred in failing to apply
reason and common sense to assess the totality of the evidence, which
demonstrates that the applicant meets the requirements of NOC 4131 as a
university lecturer must necessarily perform the tasks set out in the NOC 4131.
The applicant also argues that the Officer unreasonably fettered his or her
discretion by relying on departmental guidelines and failing to assess the
merits of the applicant’s application. The applicant seeks costs, arguing that
the decision is so clearly erroneous that an award of costs is warranted.
[5]
The
respondent argues that the decision is reasonable, because it was open to the
officer to reject the details the applicant provided in her application as they
were copied verbatim from the NOC descriptor and that it was likewise open to
the Officer to reject the letter from the Dean as it did not confirm that the
applicant performed the duties listed in the descriptor for NOC 4131. The
respondent argues that this case is on all fours with the recent decision of
Justice Russell in Zeeshan v Canada (Minister of Citizenship and Immigration),
2013 FC 248 [Zeeshan], where he upheld a visa officer’s decision on
similar facts. Insofar as concerns the allegation the Officer fettered his or
her discretion, the respondent argues that there is no evidence that the
Officer relied on any guideline in making the decision and thus this argument
is without foundation.
[6]
The
respondent is correct in the latter assertion as there is no evidence that the
Officer relied on any guidelines in making her decision. Thus, the sole issue
for determination is whether the Officer’s conclusion is reasonable. For the
reasons set out below, I have determined that it is and that this application
should accordingly be dismissed.
Standard of
Review
[7]
The
standard of review applicable to the applicant’s challenge to the Officer’s
decision is reasonableness as the applicant is challenging the factual findings
made by the Officer (Patel v Canada (Minister of Citizenship and
Immigration), 2011 FCA 187 at para 36; Qin v Canada (Minister of
Citizenship and Immigration), 2013 FC 147 at para 16; Nasr v Canda
(Minister of Citizenship and Immigration), 2011 FC 783 at para 12; Roohi
v Canada (Minister of Citizenship and Immigration), 2008 FC 1408 at para
13). The reasonableness standard is a deferential one and involves
consideration of “the existence of justification, transparency and
intelligibility within the decision-making process [and of] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law” (Dunsmuir v New Brunswick,
2008 SCC 9 at para 47).
Factual findings
reasonable
[8]
As
noted, the particulars offered by the Officer in support of her conclusion were
that the “employment letter” the applicant submitted did “not contain any list
of duties to demonstrate that [the applicant] performed a substantial number of
the main duties of NOC 4131.” Contrary to what the applicant asserts, this
finding does not involve a conclusion that there were no details in the
supporting documentation offered by the applicant (which would be erroneous as
the Dean’s letter does provide some detail regarding the nature of the tasks
performed by the applicant). Rather, the Officer held that the details provided
by the Dean did not establish that the applicant performed a substantial number
of the main duties of the NOC 4131.
[9]
In
his letter, the Dean noted that the applicant’s “major responsibilities
included lecturing in the areas of Jurisprudence, International Law, Property
Laws, Constitutional Law, Human Rights […] Humanitarian Law […] and [the]
English Legal System.” He went on to note that she was a member of the
Editorial Board of the Pakistan Law review, the faculty member responsible for
the College newsletter and involved in the Faculty’s legal aid clinic.
[10]
The
main duties in NOC 4131, on the other hand, encompass:
• Teach students using a systematic plan of
lectures, demonstrations, discussion groups, laboratory work, shop sessions,
seminars, case studies, field assignments and independent or group projects
• Develop
curriculum and prepare teaching materials and outlines for courses
• Prepare,
administer and mark tests and papers to evaluate students' progress
• Advise
students on program curricula and career decisions
• Provide
individualized tutorial/remedial instructions
• Supervise independent or group projects, field
placements, laboratory work or hands-on training
• Supervise
teaching assistants
• May
provide consultation services to government, business and other organizations
• May serve on committees concerned with matters
such as budgets, curriculum revision, and course and diploma requirements.
[11]
In
my view, this case is indeed on all fours with Justice Russell’s decision in Zeeshan.
There, an almost identically-worded reference letter was found by the visa
officer to be insufficient to establish that the applicant met the almost
identical classification of NOC 4121 University Professors. (Parenthetically,
this category is likely the more applicable one in this case than the category
the applicant applied under, as she taught at a university as opposed to a college
or vocational school.) In Zeeshan, Justice Russell wrote at paras 43 and
44:
43 The letter from Lahore College submitted by the Principal Applicant reads as follows:
I, in the capacity of registrar
had been known Ms. Talat Zeeshan since Oct 2004. She is presently a lecturer in
Physics Department LCWU, Lahore in BPS-18. She is a well qualified and
experienced teacher. Her performance is up to the mark. Her total experience at
LCWU is five years to date.
Her annual salary is PKR
2,50,000/-only. I wish her success in every field of life.
44 At best, this letter tells us that the
Principal Applicant teaches physics and, by inference, that she prepares and
delivers lectures to students. I do not think the letter can be said to provide
evidence that the Principal Applicant has performed a substantial number of the
main duties, including all of the essential duties in the NOC 4121 description,
and it was not unreasonable for the Officer to come to this conclusion. These
deficiencies in the Principal Applicant's submissions cannot be rectified by
her assertion that she has performed the NOC 4121 duties, or by listing her
academic certificates and degrees. The application was simply deficient in a
fundamental requirement that the guidelines say is necessary.
[12]
In
result, Justice Russell determined that the officer’s decision – premised on
the same grounds as here – was reasonable. While I am sympathetic to the
applicant’s arguments regarding the need for officers to apply common sense to
their review of visa applications, given the strikingly similarity between this
case and Zeeshan, I believe that I should follow it as a matter of
comity and, accordingly, am dismissing this application.
[13]
Neither
party submitted a question for certification and none arises as this decision
is closely tied to its facts. The respondent did not seek costs, and there is
no basis to depart from the general rule that costs are not awarded in
immigration matters because there is nothing about this case that would justify
an award of costs.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
This
application for judicial review is dismissed;
2.
No
question is certified under section 74 of the Immigration and Refugee
Protection Act, SOR/2002-227; and
3.
There
is no order as to costs.
"Mary J.L.
Gleason"
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