Date:
20130425
Docket:
IMM-6550-12
Citation:
2013 FC 403
Ottawa, Ontario,
this 25th day of April 2013
Present: The
Honourable Mr. Justice Roy
BETWEEN:
Maritza Rocio PERILLA-GIBNEY
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review made pursuant to section 72 of the Immigration
and Refugee Protection Act, SC 2001, c 27, (the “Act”) of the decision of a
visa officer at the High Commission of Canada in London, United Kingdom,
refusing the application for permanent residence in Canada as a Federal Skilled
Worker of the applicant, Ms. Maritza Rocio Perilla-Gibney (the “applicant”).
Facts
[2]
The
applicant, a citizen of Colombia and also Ireland, submitted an application for
permanent residence in Canada on October 23, 2009. The memorandum of arguments
submitted on behalf of the applicant refers to her as a citizen of England, but it appears that she is merely a resident of the United Kingdom. This first application
was denied. On March 29, 2010, a second application for permanent residency to Canada was submitted, together with an updated employment reference letter. It is the
refusal of that second application which is the subject of this judicial
review.
[3]
The
sole issue in this case is whether the applicant met the requirements under the
National Occupation Classification 4131 - College and Other Vocational
Instructors [NOC 4131]. The application was denied on May 2, 2012, by a visa
officer (the “decision-maker”).
Arguments
[4]
The
applicant contends that the necessary documentation was supplied and that she
met the criteria under the appropriate NOC. The applicant faults the officer
for not having stated “very clearly the type of evidence he was looking for if
what was submitted did not meet the standard he was looking for” (paragraph 23,
written submissions).
[5]
The
applicant then proceeds to list the duties she was required to perform as a
Deputy Health and Safety Manager at the St. George’s Healthcare NHS, between
August 2007 and June 2009.
[6]
The
respondent takes the exact opposite point of view and argues that the decision
of the officer was reasonable, given the evidence put in front of him.
Analysis
[7]
A
foreigner seeking permanent residence in Canada must first obtain a visa
(subsection 11(1) of the Act). In the case at hand, the applicant seeks to
qualify under an economic class. Subsection 12(2) of the Act reads:
|
12.
(2) A foreign national may be selected as a member of the economic class on
the basis of their ability to become economically established in Canada.
|
12. (2) La sélection
des étrangers de la catégorie « immigration économique » se fait en
fonction de leur capacité à réussir leur établissement économique au Canada.
|
[8]
It
is the Immigration and Refugee Protection Regulations, SOR/2002-227,
(the “Regulations”) that govern how applications for permanent residency under
the Federal Skilled Worker Class are to be assessed. Section 75 of the
Regulations states:
|
75.
(1) For the purposes of section 12(2) of the Act, the federal skilled worker
class is hereby prescribed as a class of persons who are skilled workers and
who may become permanent residents on the basis of their ability to become
economically established in Canada and who intend to reside in a province
other than the Province of Quebec.
(2) A
foreign national is a skilled worker if
(a) within
the 10 years preceding the date of their application for a permanent resident
visa, they have at least one year of continuous full-time employment
experience, as described in subsection 80(7), or the equivalent in continuous
part-time employment in one or more occupations, other than a restricted
occupation, that are listed in Skill Type 0 Management Occupations or Skill Level
A or B of the National Occupational Classification matrix;
(b) during
that period of employment they performed the actions described in the lead
statement for the occupation as set out in the occupational descriptions of
the National Occupational Classification; and
(c) during
that period of employment they performed a substantial number of the main
duties of the occupation as set out in the occupational descriptions of the National
Occupational Classification, including all of the essential duties.
(3) If
the foreign national fails to meet the requirements of subsection (2), the
application for a permanent resident visa shall be refused and no further
assessment is required.
|
75. (1) Pour
l’application du paragraphe 12(2) de la Loi, la catégorie des travailleurs
qualifiés (fédéral) est une catégorie réglementaire de personnes qui peuvent
devenir résidents permanents du fait de leur capacité à réussir leur
établissement économique au Canada, qui sont des travailleurs qualifiés et
qui cherchent à s’établir dans une province autre que le Québec.
(2) Est
un travailleur qualifié l’étranger qui satisfait aux exigences
suivantes :
a) il a accumulé au
moins une année continue d’expérience de travail à temps plein au sens du
paragraphe 80(7), ou l’équivalent s’il travaille à temps partiel de façon
continue, au cours des dix années qui ont précédé la date de présentation de
la demande de visa de résident permanent, dans au moins une des professions
appartenant aux genre de compétence 0 Gestion ou niveaux de compétences A ou
B de la matrice de la Classification nationale des professions —
exception faite des professions d’accès limité;
b) pendant cette
période d’emploi, il a accompli l’ensemble des tâches figurant dans l’énoncé
principal établi pour la profession dans les descriptions des professions de
cette classification;
c) pendant cette
période d’emploi, il a exercé une partie appréciable des fonctions
principales de la profession figurant dans les descriptions des professions
de cette classification, notamment toutes les fonctions essentielles.
(3) Si
l’étranger ne satisfait pas aux exigences prévues au paragraphe (2), l’agent
met fin à l’examen de la demande de visa de résident permanent et la refuse.
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[9]
It
is not disputed that the applicant meets the requirement for
continuous full-time employment experience. It is rather the requirements
associated with the lead statement for the occupation and the performance of a
substantial number of the main duties that are not adequate in the view of the
visa officer.
[10]
It
would appear that the applicant makes two arguments. First, she contends that
the visa officer ought to have indicated more clearly what evidence would be
needed in order to satisfy the requirement. Second, an argument is presented on
the merits of the decision made.
[11]
As
for the first argument, our Court has repeatedly stated that the visa officer
is under no obligation to raise concerns about the adequacy of an application.
[12]
There
could be a procedural fairness issue if the decision-maker had failed to raise
concerns with an applicant about the credibility or authenticity of information
submitted in support of an application. But such is not the case here. In the
words of Justice Richard Mosley in Hassani v Canada (Minister of
Citizenship and Immigration), 2006 FC 1283, [2007] 3 FCR 501:
[23] … there is no
obligation on the part of the visa officer to apprise an applicant of her
concerns that arise directly from the requirements of the former Act and
Regulations …
See also Pan v Canada (Minister of Citizenship and Immigration), 2010 FC 838 and Kaur v Canada (Minister of Citizenship and Immigration), 2010 FC 442. The applicant cannot succeed on
the basis of her first argument because her argument concerns the sufficiency
of evidence. There is no obligation for the visa officer to advise on the
sufficiency.
[13]
As
for the merits of the decision to deny the visa, the decision is unequivocal,
“the main duties that you listed do not indicate 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”. The visa officer was not satisfied with
the sufficiency of the information. The assessment of the information supplied
by the applicant was such that the applicant is ineligible.
[14]
On
an issue of sufficiency of evidence, the standard of review has been
authoritatively decided to be one of reasonableness: Hoang v Canada
(Minister of Citizenship and Immigration), 2011 FC 545; Khan v Canada
(Minister of Citizenship and Immigration), 2009 FC 302; Hanif v Canada
(Minister of Citizenship and Immigration), 2009 FC 68; Obeta v Canada
(Minister of Citizenship and Immigration), 2012 FC 1542. It will suffice
that a “decision falls within a range of possible, acceptable outcomes which
are defensible in respect of the facts and law” (Dunsmuir v New Brunswick, [2008] 1 S.C.R. 190, at paragraph 47).
[15]
Here,
the matter boils down to a comparison between NOC 4131 and the information
submitted by the applicant in order to satisfy the requirements of section 75
of the Regulations. They are that the actions described in the lead statement
for the occupation have been performed as well as a substantial number of the
main duties for that occupation. Was it reasonable for the decision-maker to
decide that such was not the case?
[16]
NOC
4131 read as follows at the time the application was made:
NOC 4131 College and Other Vocational
Instructors
This unit group includes instructors who teach applied arts,
academic, technical and vocational subjects to students at community colleges,
CEGEPs, agricultural colleges, technical and vocational institutes, language
schools and other college level schools. This unit group also includes trainers
who are employed by private training establishments, companies, community
agencies and governments to deliver internal training or development courses.
College teachers who are heads of departments are included in this group.
Example Titles
- CEGEP teacher
- college teacher
- commercial art instructor
- community college teacher
- company trainer
- computer training instructor
- department chairperson – college
- department head – CEGEP
- firefighting instructor
- language school instructor
- teacher – institute of technology
- teacher, legal assistant program
- training officer – company
- vocational institute teacher
Main Duties
College and other vocational instructors perform some or all of
the following duties:
- 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.
These instructors specialize in
particular fields or areas of study such as visual arts, dental hygiene,
welding, engineering technology, policing, computer software, management and
early childhood education.
[17]
The
reasons for the refusal decision are less than ideal. They barely satisfy the
standard of Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), [2011] 3 S.C.R. 708. However, they are
sufficient to establish that the decision is reasonable in light of the
outcome.
[18]
It
was reasonable for the decision-maker to conclude that the focus of NOC 4131 is
on being an instructor, whereas the material offered in support of the
application had training as a marginal activity. The material could be seen as
making training a marginal activity in view of everything else that was listed.
It was certainly open to the decision-maker to reach that conclusion. It was
one of the acceptable outcomes. It may not have been the only one, but, as
stated in Dunsmuir, supra at paragraph 47, “certain questions
that come before administrative tribunals do not lend themselves to one
specific, particular result. Instead, they may give rise to a number of
possible, reasonable conclusions”. Thus the deferential standard applied in
these types of cases.
[19]
On
its face, the job description refers to the position as a Health and Safety
Manager and the description of the position seems to fit the job title nicely.
Training was a marginal activity while NOC 4131 makes it clear that Canada is looking for instructors. That was the view of the visa officer as he pointed out
in the Field Operating Support System notes: “She might be involved a little
into training but this is not her main task”. The evidence before the
decision-maker supported that finding amply.
[20]
As
a result, this application for judicial review is dismissed. The parties did
not seek to have a question certified pursuant to section 74 of the Act, and
none arose.
JUDGMENT
The application for
judicial review of the decision rendered by a visa officer at the High
Commission of Canada in London, United Kingdom, on May 2, 2012 is dismissed.
“Yvan Roy”
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