Date:
20130627
Docket:
IMM-11481-12
Citation:
2013 FC 721
Montréal, Quebec,
June 27, 2013
PRESENT: The
Honourable Mr. Justice Harrington
BETWEEN:
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ANTONIO PORTO TURIZO
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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 ORDER AND ORDER
[1]
Mr.
Porto Turizo, a professional engineer from Columbia, applied for permanent
residence in Canada as a Federal Skilled Worker. In order to succeed, he had to
meet the criteria set out in the instructions of the Minister of Citizenship
and Immigration published in the Canada Gazette, 28 November 2008. He
submitted that he had work experience in an approved occupation, National
Occupation Classification Code NOC 0711 – Construction Managers. That
particular classification in the material published by Human Resources and
Skills Development Canada indicates that a university degree in civil
engineering or a college diploma in construction technology is usually required
and some employers may also require professional engineering status. Mr. Porto
Turizo met those requirements. His application was refused because the officer
was not satisfied that he had performed the duties associated with the lead
statement, and his employment letter did not stipulate clearly that he performed
some or most of the duties under NOC 0711. This is the judicial review of that
decision.
[2]
The
officer is supposed to be a specialist in these matters and, therefore, Courts,
as generalists, owe deference. The decision may only be set aside if found to be
unreasonable. This decision was unreasonable.
[3]
The
lead statement for NOC 0711 provides:
Construction managers plan, organize, direct,
control and evaluate the activities of a construction company or a construction
department within a company, under the direction of a general manager or other
senior manager. They are employed by residential, commercial and industrial
construction companies and by construction departments of companies outside the
construction industry.
[4]
NOC
0711 goes on to set out the following main duties:
•
Construction
managers perform some or all of the following duties:
•
Plan,
organize, direct, control and evaluate construction projects from start to
finish according to schedule, specifications and budget
•
Prepare
and submit construction project budget estimates
•
Plan
and prepare construction schedules and milestones and monitor progress against
established schedules
•
Prepare
contracts and negotiate revisions, changes and additions to contractual
agreements with architects, consultants, clients, suppliers and subcontractors
•
Develop
and implement quality control programs
•
Represent
company on matters such as business services and union contracts negotiation
•
Prepare
progress reports and issue progress schedules to clients
•
Direct
the purchase of building materials and land acquisitions
•
Hire
and supervise the activities of subcontractors and subordinate staff.
[5]
Mr.
Porto Turizo has worked for many years as a public servant for the Government
of Bolivar, based in Cartagena. According to the employer’s letter of July 23, 2010,
these are the functions he has carried out since 2006:
a.
Design
and formulate investment projects in infrastructure works that must take place
in the department of Bolivar.
b.
Evaluate
infrastructure projects to determine their feasibility
c.
Selectively
study the proposals presented to the Government of Bolivar for civil work
contracts.
d.
Diagnostic
and budget civil works that must be done in the department of Bolivar
(initials).
e.
Supervise
the works for the Department.
f.
Receive
the works done and proceed to liquidate the contracts according with the legal
current regulations.
g.
Establish
remodelling designs for the construction of properties of the Government of
Bolivar.
h.
Make
recommendations or objections to the works that are being executed.
i.
Project
administrative acts which are required during the contracting process.
j.
Give
periodical reports to his immediate boss on the development of the works he is
supervising.
k.
Project
replies or the required reports by the supervision and control departments.
l.
Exercise
self control in all the functions which are assigned to him.
[6]
My
comparative reading of NOC 0711 and the duties he has carried out indicates
that he has satisfied the lead statement and carried out most of the main
duties.
[7]
The
rejection letter states: You have not provided (sic) with sufficient evidence
to satisfy me that you performed the actions described in the lead statement
for the occupation – or that you performed all of the essential duties and a
substantial number of the main duties --.
[8]
What
would it take to satisfy the officer? He does not say and I do not know. He has
given no reasons.
[9]
Counsel
invited the Court to delve into the record. In Newfoundland and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011]
3 SCR 708, the Supreme Court stated that it was permissible for a court to
review the record in order to determine whether the decision was reasonable,
even if the reasons given were not as fulsome as one would like. I have done
so. I find that all the material leads away from the decision reached and so,
in accordance with Cepeda-Gutierrez v Canada (Minister of Citizenship and
Immigration), (1998) 157 FTR 35, reasons would have to be given as to why the
employment letter from the Government of Bolivar, Colombia was insufficient.
[10]
The
reasonableness standard of judicial review was considered by the Supreme Court
in Communications, Energy & Paperworkers Union of Canada, Local 30 v Irving
Pulp & Paper, Ltd., 2013 SCC 34, [2013] SCJ No 34 (QL). All members of
the court agreed that the standard of review in interpreting the management rights
clause of a collective agreement was reasonableness. There was disagreement as
to the application of that standard given the facts of the case. Although in
dissent, there can be no disagreement with the language of Justices Rothstein
and Moldaver, with whom Chief Justice McLachlin concurred. They said at para
117:
To be sure, the decisions of labour arbitration boards
command judicial deference. But, in our respectful view “deference ends where
unreasonableness begins” (Khosa at para 160, per Fish J.).
Khosa is a
reference to Canada (Citizenship and Immigration) v Khosa, 2009
SCC 12, [2009] 1 S.C.R. 339, [2009] scj
No 12.
ORDER
For reasons
given, THIS COURT ORDERS that the judicial review is granted. The
application is referred to another officer for redetermination. There is no
question to certify.
“Sean Harrington”
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