Date:
20130613
Docket:
IMM-9413-12
Citation:
2013 FC 630
Ottawa, Ontario,
this 13th day of June 2013
Present: The
Honourable Mr. Justice Pinard
BETWEEN:
JOHNSON IQBAL
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (the “Act”), of a decision
by a visa officer (the “officer”) with the Immigration Division of the High
Commission of Canada in London, England (the “High Commission”). In the
decision, dated August 16, 2012, the officer refused the applicant’s
application for permanent residence under the Federal Skilled Worker class.
[2]
Mr.
Johnson Iqbal (the “applicant”) is a 40-year-old citizen of Pakistan who applied for a permanent resident visa under the Federal Skilled Worker class.
He indicated that he had work experience as a cook and that he fell under the
National Occupational Classification [NOC] code 6242. In October 2010,
Citizenship and Immigration Canada transferred his application to the High
Commission for processing.
[3]
The
officer noted that the Ministerial Instructions (the “Instructions”) published
in the Canada Gazette on November 28, 2008 specified that applications
under the Federal Skilled Worker category are only eligible for processing if
the applicant (i) has an arranged employment offer; (ii) is legally residing in
Canada and has been in Canada for one year as a Temporary Foreign Worker or
International Student; or (iii) has at least one year of continuous full-time
or equivalence paid work experience in the last ten years in a listed
occupation class.
[4]
The
officer
accepted
that the NOC 6242 class is a listed occupation class under the Instructions but
found that that
the main duties the applicant listed did not indicate that he had performed the
actions described in the lead statement for the occupation or that he performed
all of the essential duties and a substantial number of the main duties, as set
out in the occupational description of the NOC.
[5]
Since
the officer found that the applicant had not shown that he had work experience
in any of the listed occupations, he concluded the applicant did not meet the
requirements of the Instructions and that the application was not eligible for
processing.
[6]
The
officer provided more detail for the reasons for his decision in the Global
Case Management System notes. The officer noted that although the applicant
provided a work reference from the Creek-Inn stating that he was employed as a
cook, besides a general statement that he was involved in the preparation of
Pakistani and Indian cuisines and desserts, no duties were provided. The
officer also noted that a work reference from the Days Inn Karachi was
provided, but that it only listed the applicant’s qualifications from his
training period and presented no details of his duties during his employment.
[7]
Subsection
75(2)
of the
Immigration and Refugee Protection Regulations, SOR/2002-227, describes
a skilled worker as follows:
|
75.
(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.
|
75.
(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.
|
* * * *
* * * *
[8]
The
issue is whether the officer erred in assessing the applicant’s work
experience.
[9]
A
visa officer’s exercise of discretion in assessing a permanent residence
application under the skilled worker class is reviewable on the reasonableness
standard (Persaud v The Minister of Citizenship and Immigration, 2009 FC
206; Ali v The Minister of Citizenship and Immigration, 2011 FC
1247 at para 26). Accordingly, the Court will consider “the existence of
justification, transparency and intelligibility within the decision-making
process” and “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] 1 S.C.R. 190 at para 47).
* * *
* * * * *
[10]
As
accepted by the officer in the case at bar, the NOC 6242 class is one of the
occupations listed in the Instructions. The NOC 6242 lead statement states the
following:
Cooks prepare and cook a wide variety of foods. They
are employed in restaurants, hotels, hospitals and other health care
institutions, central food commissaries, educational institutions and other
establishments. Cooks are also employed aboard ships and at construction and
logging campsites. Apprentice cooks are included in this unit group.
[11]
The
occupational description for NOC 6242 does not list any essential tasks.
Rather, it outlines the following “main duties”:
Cooks perform some or all of the following duties:
• Prepare and cook complete meals or individual
dishes and foods
• Prepare and cook
special meals for patients as instructed by dietitian or chef
• Schedule and
supervise kitchen helpers
• Oversee kitchen
operations
• Maintain inventory
and records of food, supplies and equipment
• May set up and
oversee buffets
• May clean kitchen
and work area
• May plan menus,
determine size of food portions, estimate food requirements and costs, and
monitor and order supplies
• May hire and train
kitchen staff
Cooks may specialize
in preparing and cooking ethnic cuisine or special dishes.
[12]
The
applicant submitted the following to demonstrate his work experience as a cook:
• an “Apprenticeship
Certificate” from the Days Inn Karachi stating that from October 15, 2003 to
October 14, 2005 he completed an apprenticeship program as a cook for
Pakistani and Indian food and that at the end of his apprenticeship, the
executive chef found him to be fully qualified in the preparation of a variety
of Pakistani and Indian snacks, dishes, breads, and desserts;
• a letter from the
Days Inn Karachi restaurant dated October 18, 2007, attesting to his employment
as a cook from November 2005 to September 2007;
• documentation from
the Creek-Inn dated November 16, 2010 attesting to the fact that he was
employed as a cook in the restaurant since November 2007 and prepared a variety
of Pakistani and Indian cuisines, different types of desserts, etc.;
• photographs of
himself at work.
[13]
The
applicant submits the evidence before the officer showed that he performed
eight out of the nine main duties listed under NOC 6242. In addition to the
letters from the Days Inn and Creek-Inn, the applicant bases this assertion on
the photographs he says were before the officer, as well as his statements in
his application form and assumptions that can be made about the tasks of a
cook. However, I agree with the following statement by Justice Marie-Josée
Bédard in Ismaili v The Minister of Citizenship and Immigration, 2012 FC
351, at paragraph 23:
The applicant argues
that the duties of a pilot are obvious and that the immigration officer is
expected to know what they are. This argument requires that the immigration
officer assume that a pilot for Gulf Air performs the duties as described in
NOC 2271. With respect, an immigration officer should not determine whether an
applicant’s work experience corresponds to the lead statement and main duties
set out in the NOC for an occupation based on his personal knowledge of an
occupation or on the personal knowledge that an applicant imputes to the
immigration officer. Immigration officers must assess applications based on the
evidence that applicants put forward and not on their own personal knowledge or
assumptions. In my view, this is the only rigorous, fair, cohesive and coherent
approach to assessing whether an applicant has performed the main duties of any
position described in the NOC.
[14]
The
relevant documentary evidence the applicant put forward in the present case
only mentioned work experience for one of the main duties listed in the
occupational description for NOC 6242: the preparation and cooking of “complete
meals or individual dishes and foods”. I cannot agree with the applicant that
it was unreasonable based on the minimal evidence submitted that the officer
found the applicant had not established that he had work experience in some or
all of the duties listed in the occupational description. As noted by the
respondent, subsection 16(1) of the Act requires that when making an
application, an applicant must produce all relevant evidence and documents that
the officer reasonably requires.
[15]
Nor
can I agree with the applicant that the officer had a duty to explain the main
duties in the occupational description for which the applicant failed to
demonstrate work experience. The applicant did not point to any authority to
support this submission.
[16]
In
my view, the officer reasonably found that the documents from the Days Inn
Karachi only provided a list of the applicant’s qualifications from his
training period and no details of his duties during his employment. I believe
it was also reasonable for the officer to find that other than the general
statement that the applicant was involved in the preparation of Pakistani and
Indian desserts, the letter from the Creek-Inn did not indicate the applicant’s
specific duties as a cook in the Creek-Inn restaurant.
[17]
As
for the photographs, I agree with the respondent that they do not detail the
applicant’s duties as a cook. As indicated by the officer in his affidavit:
“Photographs are neither proof nor demonstrative of actual work experience.”
[18]
Overall,
in my opinion the evidence supported the officer’s finding that the applicant
had not provided satisfactory evidence to demonstrate that he had work
experience as a cook as described in NOC 6242.
* * * * * * * *
[19]
For
the above-mentioned reasons, the application for judicial review is dismissed.
[20]
I
agree with counsel for the parties that this is not a matter for certification.
JUDGMENT
The application for
judicial review of the decision of a visa officer with the Immigration Division
of the High Commission of Canada in London, England, dated August 16,
2012, is dismissed.
“Yvon Pinard”
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