Date:
20130517
Docket:
IMM-8549-12
Citation:
2013 FC 516
Ottawa, Ontario,
May 17, 2013
PRESENT: The
Honourable Mr. Justice Phelan
BETWEEN:
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ROYA NIK ZADEH
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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 a judicial review of a Visa Officer’s [Officer] decision to deny the
application for a permanent resident visa under the Federal Skilled Worker
Class.
II. BACKGROUND
[2]
The
Applicant claimed that she qualified under National Occupation Classification
[NOC] Code as a Financial Manager. She is a resident of Iran and works as a financial manager for Hugel Co., Hugugan Queshm Trading Co. in Iran. She holds a Bachelor Degree in Business Management and the university certificates suggest
that she had a Masters degree. Nothing seems to turn on this distinction.
[3]
The
Applicant’s file was transferred from Damascus to Ankara, Turkey for processing. Despite the Applicant’s argument that she did not know this and that it is
somehow unfair, I see no prejudice to the Applicant nor any infringement of her
rights.
[4]
The
Officer’s decision turned on the Applicant’s failure to provide sufficient
evidence to support her claim. The duties described in the employment letters
did match the occupational description of the NOC Code.
The Officer’s
Notes detail the deficiencies more precisely by referring to the specific
activities performed at each of her current and prior employers.
The Officer
found that the Applicant was more like a Bookkeeper than a Financial Manager.
III. ANALYSIS
[5]
The
Applicant argued (a) that the Officer erred in assessing the Applicant’s
experience as it related to NOC – Financial Manager; and (b) breached natural
justice/procedural fairness by not providing the Applicant with an opportunity
to address the Officer’s concerns about her application.
[6]
It
is well settled that the standard of review for the evaluation of eligibility
within the Federal Skilled Workers Category is reasonableness (Chadha v Canada (Minister of Citizenship and Immigration), 2013 FC 105, 225 ACWS (3d) 202). This
includes the issue of sufficiency of reasons (Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62, [2011] 3 S.C.R. 708).
The issue of
procedural fairness is subject to a correctness standard of review (Chadha,
above).
A. Procedural Fairness
(1) Officer’s
Evaluation
[7]
This
Court has confirmed, in cases such as Farooqui v Canada (Minister of
Citizenship and Immigration), [2000] FCJ No 714, 182 FTR 306 (FCTD), that a
visa officer can give greater weight to certain duties within the NOC
description. This Court’s role is to review the reasonableness of the Officer’s
conclusion.
[8]
A
comparison between the Applicant’s experience and the NOC description provides
a sound basis for assessing the reasonableness of the Officer’s evaluation.
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Applicant’s
Experience
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NOC Description
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•
programming,
organizing, guidance, control and accounting operations assessment and
studding other financial department activities [sic in original translated
letter];
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employment,
organizing, educating and managing employees of financial department;
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providing
financial report to directing management;
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to
prepare and provide financial lists and analyzing the final cost and other
financial reports;
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to
assess financial reporting system, accounting process and investment
activities and to provide proposal regard to modify operating procedure,
budgeting to company directing management and other related departments.
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codified
programming in order to registration of company books;
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being
assured of optimum registration of financial activities in system and
presenting reports of balance sheet;
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optimum
usages of tax regulations;
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preparing
financial reports for related organs including Ministry of Finance, insurance
and etc., under the control of the manager of the company;
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determining
competent personnel in financial affairs;
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closing
fiscal year accounts and preparing financial reports appropriate to them;
and,
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presenting
financial consulting services.
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plan,
organize, direct, control and evaluate the operation of an accounting, audit
or other financial department;
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recruit,
organize, train and manage staff;
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prepare
or co-ordinate the preparation of financial statements, summaries, and other
cost-benefit analyses and financial management reports;
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develop
and implement the financial policies, systems and procedures of an
establishment;
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evaluate
financial reporting systems, accounting procedures and investment activities
and make recommendations for changes to procedures, operating systems,
budgets and other financial control functions to senior managers and other
department or regional managers;
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co-ordinate
the financial planning and budget process, and analyze and correct estimates;
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supervise
the development and implementation of financial simulation models;
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act
as liaison between the organization and its shareholders, the investing
public and external financial analysts;
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establish
profitability standards for investment activities and handle mergers and/or
acquisitions; and,
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notify
and report to senior management concerning any trends that are critical to
the organization’s financial performance.
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[9]
There
are a number of areas in which there is no evidence of the Applicant meeting
the job description. These include:
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developing
policies or procedures;
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supervising
the development or implementation of financial simulation models;
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liaising
between the organization and shareholders, the public or other analysts;
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establishing
profitability standards;
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handling
mergers or acquisitions; and
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reporting
trends that are critical to the organization’s financial performance.
[10]
While
the Officer concluded that the Applicant had no experience in “recruiting,
organizing or training staff”, there was in fact evidence that she had
experience in this area. Despite this questionable finding, reviewed as a whole,
the Officer’s conclusions were reasonable.
[11]
I
can find no relevant evidence that was ignored. Contrary to the Applicant’s
submissions, the Cooperation Contracts were specifically noted by the Officer
and therefore were considered.
[12]
Further,
I can find no basis for concluding that the reasons were not sufficient. The
Applicant seeks to expand Newfoundland Nurses, above, to formalize
decisions of visa officers along the lines of court decisions. I do not
interpret Newfoundland Nurses to impose that requirement. It is
sufficient if the record, including notes, shows the reasons behind the
administrative decision. The Officer’s decision satisfies that requirement and
is reasonable when examined in totality.
[13]
The
Applicant contends that the Officer should have accorded her an opportunity to
address the Officer’s concerns about her application.
[14]
As
Justice Rennie held in Chen v Canada (Minister of Citizenship and Immigration),
2011 FC 1279, 209 ACWS (3d) 668, the visa officer is to focus on relevant
experience, training or education and certification. The officer is not
expected to engage in a dialogue.
[15]
The
decision under review is one of adequacy of the evidence where the onus is on
the Applicant. The decision is not one where true credibility is at issue or
accuracy and genuineness of documents are questioned where cases such as Ma
v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FC
1042, 84 Imm LR (3d) 280, and Hassani v Canada (Minister of Citizenship and
Immigration), 2006 FC 1283, [2007] 3 FCR 501, indicate that fairness
dictates that an applicant be able to address those matters.
[16]
Therefore,
there was no breach of procedural fairness.
IV. CONCLUSION
[17]
This
judicial review will be dismissed. There is no question for certification.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed.
“Michael L. Phelan”
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