Date:
20130726
Docket:
IMM-5205-12
Citation:
2013 FC 823
Ottawa, Ontario,
July 26, 2013
PRESENT: The
Honourable Madam Justice Strickland
BETWEEN:
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IQBAL KHOWAJA
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
& IMMIGRATION CANADA
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application brought pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (the IRPA) seeking judicial
review of the decision of a visa officer (Officer) of the High Commission of
Canada in London, United Kingdom, refusing the Applicant’s application for
permanent residence in Canada as a member of the federal skilled worker class.
[2]
The
Applicant is a citizen of Pakistan. He applied for permanent residence in Canada under National Occupation Code (NOC) 0213, computer and information systems
managers. By letter dated April 25, 2012, the Officer informed the Applicant
that he had not indicated that he had performed all the essential duties and a
substantial number of the main duties set out in NOC 0213. Therefore, his
application was ineligible for processing. This is the judicial review of that
decision.
Decision Under Review
[3]
The
decision
in this case consists of the above described refusal letter and the reasons for
the decision contained in the Global Case Management System Notes (GCMS
Notes) made by the Officer. It is well established that GCMS Notes form part of
the reasons of a visa officer (Ghirmatsion v Canada (Minister of Citizenship
and Immigration) 2011 FC 519, [2011] FCJ No 650 (QL) [Ghirmatsion] at
para 8; Taleb v Canada (Minister of Citizenship and Immigration), 2012 FC 384,
[2012] FCJ No 650 (QL) [Taleb] at para 25; Rezaeiazar v
Canada (Citizenship and Immigration), 2013 FC 761, [2013] FCJ No 804 (QL) [Rezaeiazar]
at paras 58-59; Anabtawi v Canada (Citizenship and Immigration), 2012 FC
856, [2012] FCJ No 923 (QL) [Anabtawi] at para 10).
[4]
The refusal letter is in standard form. The relevant portion reads
as follows:
Although the NOC code corresponds to
the occupations specified in the instructions, 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. I am therefore not satisfied that you are a 0213-
Computer and Information Systems manager.
Since you did not provide satisfactory
evidence that you have work experience in any of the listed occupations, you do
not meet the requirements of the Ministerial Instruction and your application
is not eligible for processing.
[5]
The
GCMS Notes state, in part:
The information submitted to support this
application is insufficient to substantiate that client meets the occupational
description and/or a substantial number of the main duties of NOC 0213. Client
submitted a work reference letter from TRG in Pakistan. The letter describes
client as a Project Manager, Data Entry and Data Processing Dept. No
explanation is provided as far as the essence of the projects in which client
was involved is concerned. No budgetary responsibilities or recruitment of its
analysts, engineers, programmers is mentioned, only hiring of supervisors and
data entry processing teams, who appear to be employees who are simply
recording data in data bases. The job description provided appears to more
closely resemble the one of a Data Entry Supervisor as per NOC 1211. In view of
all of the concerns mentioned above, I am not satisfied that client completed a
period of one year of experience in NOC 0213. Am not satisfied on basis of the
information on file that client performed the duties specified in NOC 0213.
Issues
[6]
Although
the Applicant identified four issues in his submissions, in my view these are
captured as follows:
1.
Did
the Officer err in assessing the Applicant’s work experience?
2.
Did
the Officer deny the Applicant procedural fairness?
Standard of Review
[7]
A standard
of review analysis need not be conducted
in every instance if prior jurisprudence satisfactorily establishes which
standard is to apply (Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 [Dunsmuir]). Prior case law has held that the standard
of review that applies to an officer’s assessment of the evidence submitted to
support an application for permanent residence under the federal skilled worker
class will be reviewed on the reasonableness standard. This standard also
applies to the application of the NOC document to the evidence (Bazaid v
Canada (Minister of Citizenship and Immigration), 2013 FC 17, [2013]
FCJ No 39 (QL) at para 36; Gulati v Canada (Minister of Citizenship and Immigration),
2010 FC 451, [2010] FCJ No 771 (QL) at paras 17-18; Taleb v Canada
(Minister of Citizenship and Immigration), 2012 FC 384, [2012] FCJ No 400
(QL) at paras 19-20; Kamchibekov v Canada (Minister of Citizenship and
Immigration), 2011 FC 1411, [2011] FCJ No 1782 (QL) [Kamchibekov] at
para 12).
[8]
In
Anabtawi v Canada (Citizenship and Immigration), 2012 FC 856, [2012]
FCJ No 923 at para 29, Justice O’Keefe found that, when considering whether an
officer applied the correct legal test for assessing an applicant’s work
experience, the applicable standard of review was reasonableness, citing Smith
v Alliance Pipeline Ltd, 2011 SCC 7, [2011] 1 S.C.R. 160 at para 26 where the
Supreme Court of Canada held that the standard of review for questions
pertaining to the interpretation of a decision maker’s enabling statute or
statutes that are closely connected to its function is reasonableness.
[9]
Adequacy
of reasons is no longer a stand-alone basis for quashing a decision, but is
subsumed into the analysis of the reasonableness of the decision as a whole. A
reviewing court should not substitute its own reasons but may, if necessary,
look to the record for the purpose of assessing the reasonableness of the
outcome. If the reasons allow the reviewing court to understand why the
tribunal made its decision and permit it to determine whether the conclusion is
within the range of acceptable outcomes then the Dunsmuir criteria have
been met (Newfoundland
and Labrador Nurses’ Union v Newfoundland & Labrador (Treasury Board), 2011
SCC 62, [2011] SCR 708 [Newfoundland and Labrador Nurses’ Union] at para
14).
[10]
Accordingly,
the standard of review for the first issue is reasonableness.
[11]
Prior
case law has held that whether a visa officer should bring any concerns to the
attention of an applicant and offer an opportunity to address them is a
question of procedural fairness reviewable on a standard of correctness (Kamchibekov,
above; Obeta v Canada (Minister of Citizenship and Immigration), 2012
FC 1542, [2012] FCJ No 1624 (QL) at para 14). When examining an issue of
procedural fairness the Court must determine whether the process followed by
the decision-maker satisfied the level of fairness required in all of the
circumstances (Canada (Citizenship and Immigration) v Khosa, 2009 SCC
12, [2009] 1 S.C.R. 339
at para
43). Therefore, the standard of review applicable to the second issue is
correctness.
Analysis
[12]
Sections
75 to 85 of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (the IRPA Regulations) address the skilled worker class. Subsection
75(2) prescribes the three requirements that must be met by an applicant to
fall within that class. In essence, a skilled worker is a foreign national who
has a minimum of one year experience in a listed NOC code within the ten year
period preceding his or her application for permanent residence (subsection
75(2)(a)). Further, during that period of employment, has performed the
actions described in the lead statement for the occupation as set out in the
NOC (subsection 75(2)(b)), and, has performed a substantial number of the main
duties of the occupation as set out in the NOC, including all of the essential
duties (subsection 75(2)(c)). The relevant legislative provisions are
contained in the Annex of this decision.
[13]
The
NOC 0213 lead description states that:
Computer and information systems managers plan,
organize, direct, control and evaluate the activities of organizations that
analyze, design, develop, implement, operate and administer computer and
telecommunications software, networks and information systems. They are
employed throughout the public and private sectors.
[14]
The
main duties are described as:
Computer and information systems managers perform
some or all of the following duties:
•
Plan,
organize, direct, control and evaluate the operations of information systems
and electronic data processing (EDP) departments and companies;
•
Develop
and implement policies and procedures for electronic data processing and
computer systems development and operation;
•
Meet
with clients to discuss system requirements, specifications, costs and
timelines;
•
Assemble
and manage teams of information systems personnel to design, develop,
implement, operate and administer computer and telecommunications software,
networks and information systems;
•
Control
the budget and expenditures of the department, company or project;
•
Recruit
and supervise computer analysts, engineers, programmers, technicians and other
personnel and oversee their professional development and training.
[15]
Although
not clearly articulated, the Applicant appears to submit that the Officer
applied an incorrect test when applying the requirements of NOC 0213 to the
evidence provided by the Applicant. Specifically, that the refusal letter
states that the Applicant had not indicated that he had performed “all of the
essential duties and a substantial number of the main duties”, yet that could
not be the correct test as the NOC 0213 does not include any essential duties.
It contains only a lead statement and the main duties of the position.
[16]
The
refusal letter is to be considered in the context of the GCMS Notes which, as
indicated earlier, form a part of the Officer’s reasons. The GCMS Notes state
that the information submitted by the Applicant was insufficient to
substantiate that he met the occupational description and/or a substantial
number of the main duties of NOC 0213. Further, that the letter provided by The
Resource Group (the TRG letter), the Applicants’ employer, provided no
explanation “as far as the essence of the projects in which the client
[Applicant] was involved is concerned.” The GCMS Notes conclude that, on the
basis of the information provided, the Officer was not satisfied that the Applicant
performed the duties specified in NOC 0213.
[17]
The
GCMS Notes establish that the Officer applied the correct NOC requirements, being
whether the Applicant fulfilled the occupational description (the lead
statement) and a substantial number of the listed main duties.
[18]
The
Applicant argues that the Officer erred by stating that he had failed to
provide information as to the “essence of” the projects he worked on and
therefore imported a new and inapplicable element to the federal skilled worker
criteria. As noted above, I do not agree. The Officer was simply explaining
that, by failing to describe the nature of the projects, the Applicant failed
to provide sufficient information to permit the Officer to determine the “pith
and substance” of the position that the Applicant held and whether or not he
met the lead description.
[19]
The
Applicant submits that the use of the word “substantial” in subsection
75(2)(c), that is, in the performance of a substantial number of the NOC main
duties, leads to uncertainty as the NOC requires the performance of “some or
all” of the main duties. The result being that the Decision is unreasonable.
The Applicant relies on A’Bed v Canada (Minister of Citizenship and
Immigration), [2002] FCJ No 1347 (QL) [A’Bed] in support of that
position.
[20]
I
agree that A’bed, above is relevant in that it concluded that the words
“some or all” take precedence over and supersede the more general language
concerning a “substantial number” of the main duties, and, that “some” means
more than one. Subsequently it has been held that it is an error for a visa
officer to require an applicant to have performed a majority of the main duties
when the relevant NOC description merely demands experience in some or all of
them (Dahyalal v Canada (Minister of Citizenship and Immigration),
2007 FC 666, [2007] FCJ No 898 (QL) [Dahyalal] at para 4). I do not
agree that the wording of subsection 75(2)(c) and the NOC is alone sufficient
to render the Decision unreasonable. The jurisprudence has satisfactorily interpreted
the application of those provisions.
[21]
The
issue is whether the Officer reasonably applied the NOC requirements to the
Applicant’s evidence. As Justice Phelan states in Rodrigues v Canada (Minister of Citizenship and Immigration), 2009 FC 111, [2009] FCJ No 114 at para
10, “The real function of the visa officer is to determine what is the pith and
substance of the work performed by an applicant.” The onus is on the Applicant
to ensure that sufficient information is adduced (Ismaili v Canada (Minister of Citizenship and Immigration), 2012 FC 351, [2012] FCJ No
381 (QL) at para 18; Mihura Torres v Canada (Minister of Citizenship and Immigration), 2011 FC 818, [2011]
FCJ No 1022 (QL) at para 37.
[22]
In
that regard, the Applicant has filed an affidavit dated July 18, 2012 in
support of this judicial review. Paragraph 13 of that Affidavit states that,
“I need to explain in some detail what is meant by the TRG reference letter in
respect to the duties to which they have referred.” Paragraphs 14 to 24
and paragraph 39 then address this. These explanations are not contained in
the record that was before the Officer.
[23]
The
scope of the evidence admissible on an application for judicial review is
restricted to the material that was before the decision maker. Additional
evidence may only be submitted on issues of procedural fairness and
jurisdiction (Tabanag v Canada (Minister of Citizenship and Immigration),
2011 FC 1293, [2011] FCJ No 1575 (QL) [Tabanag]) at para 14. At para 15 of
Tabanag, Justice Mosley states the following:
[15] The impugned evidence is not admissible in
this proceeding to bolster the applicant’s claim that he met the requirements
of the NOC classification when he submitted his skilled worker application. In
particular, the applicant may not rely on the assertions in the affidavits
regarding his employment duties or the practice of employers in Manila to be shy of certifying such duties. The affidavit evidence is admissible solely
for the limited purpose of supporting his argument that the manner in which his
application was assessed was unfair.
[24]
In
this case the Applicant has referenced and relied heavily on his Affidavit to
support his written submissions. However, I agree with the Respondent that
paragraphs 13 to 24 and paragraph 39 are inadmissible
as they do not speak to an issue of procedural fairness, but are intended to
bolster the Applicant’s claim of his compliance with the NOC. I also note that
paragraphs 40 to 50 are comprised primarily of argument.
[25]
The
Applicant also submits that the Officer did not assess, or reasonably assess, the
duties he performed as against the NOC.
[26]
The
TRG letter states that the Applicant was employed as a Project Manager in the
Data Entry and Data Processing Department, from September, 2006 until February,
2009. It describes his responsibilities as the following:
•
Project
management of data entry and data processing projects at various locations;
•
Plan,
direct and organize data entry and data processing projects;
•
Prepare
policies and procedures for data entry and data processing projects;
•
Oversee
and evaluate the data entry projects, assess the needs of clients and assure
the fulfillment of the requirements;
•
Monitor
the productivity of the team;
•
Meet
with clients to discuss their needs on data entry projects and monitor the
progress of the teams;
•
Work
with information technology teams to discuss the hardware requirements of data
entry projects and resolve issues;
•
Prepare
invoices for projects in collaboration with the finance department;
•
Oversee
the training of the team for data entry projects;
•
Recruit
supervisors and data entry and processing teams in collaboration with the
recruitment department;
•
Manage
rotation of shifts;
•
Verify
the quality of data provided by the teams.
[27]
The
GCMS Notes establish that the Officer referred to the TRG letter. The letter was
the only evidence offered to substantiate that the Applicant met the
occupational description, including the lead statement, contained in NOC 0213.
In the absence of any further information, including any that could be derived
from the main duties description, as to the actual nature of the position held
by the Applicant and, given the Applicant’s title at TRG, it was not
unreasonable for the Officer to find that this did not substantiate that his
position was one of a computer and information systems manager as described in
the NOC 0213 lead statement which is a requirement of subsection 75(2)(b).
[28]
The
description of the Applicant’s responsibilities contained in the TRC letter
place these, almost exclusively, in the context of data processing projects.
This does not assist the Applicant in establishing that his position is one of
a computer and information systems manager who plans, organizes, directs,
controls and evaluates the activities of organizations that analyze, design,
develop, implement, operate and administer computer and telecommunications
software, networks and information systems.
[29]
The
GCMS Notes also state that while the TRG letter describes the Applicant as a
project manager, data entry and data processing department, no explanation is
provided as to the essence of the projects in which he was involved. As noted
above, by failing to describe the nature of those projects, the Applicant
failed to provide sufficient information to the Officer to permit him to
determine whether the position held by the Applicant met the lead description.
[30]
The
Officer also noted that the TRG letter did not mention budgetary
responsibilities or recruitment of IT analysts, engineers, or programmers. Instead,
it referred only to the hiring of supervisors and data entry processing teams
who appear to be employees and who are simply recording data in data bases. The
Officer then stated that the job description provided appears to more closely
resemble that of a Data Entry Supervisor as per NOC 1211. In view of this, the
Officer was not satisfied that the Applicant had performed the duties specified
in NOC 0213.
[31]
Given
that the main responsibilities of the Applicant as set out in the TRG letter
are limited to their performance in relation to data processing projects, absent
an explanation of the nature of those projects, the Officer reasonably found
that the Applicant had not met the onus of establishing that he had performed a
substantial number of the required NOC 0213 main duties.
[32]
The
Applicant argues that he was denied procedural farness because the Officer did
not bring this concern to his attention. This issue was addressed by Justice
Mosley in Hassani v Canada (Minister of Citizenship and Immigration), 2006
FC 1283, [2006] FCJ No 1597 (QL) [Hassani] at para 24:
[24] Having reviewed the factual context of the cases cited
above, it is clear that where a concern arises directly from the requirements
of the legislation or related regulations, a visa officer will not be under a
duty to provide an opportunity for the applicant to address his or her
concerns. Where however the issue is not one that arises in this context, such
a duty may arise. This is often the case where the credibility, accuracy or
genuine nature of information submitted by the applicant in support of their
application is the basis of the visa officer's concern, as was the case in Rukmangathan, and in John and Cornea cited by the Court in Rukmangathan,
above.
[33]
Here,
the Applicant’s credibility was not at issue and the Officer’s concerns arose
directly from the requirements of the IRPA and the IRPA Regulations. Specifically,
whether the information submitted by the Applicant was sufficient to establish
compliance with the legislative and regulatory requirements. Accordingly, the
Officer was not under a duty to raise his concerns with the Applicant and the
Applicant was not denied procedural fairness (Shah v Canada (Minister of Citizenship
and Immigration), 2011 FC 697, [2011] FCJ No 896 (QL) at paras 30-32; Gulati
v Canada (Minister of Citizenship and Immigration), 2010 FC 451, [2010] FCJ
No 771 (QL) at para 43; Hosseini v Canada (Citizenship and
Immigration),
2013 FC 766, [2013] FCJ No 814 (QL) at para 38; Hassani, above).
[34]
The
Applicant also submits that the reasons provided by the Officer in the Decision
are inadequate.
[35]
The
reference to the performance of the essential duties contained in the refusal
letter was in error as NOC 0213 does not identify any essential duties. The
letter also makes no reference to the determination found in the GCMS Notes that
the submitted information was insufficient to establish that the Applicant met
the occupational description. It also appears to suggest his application was
directed occupations in addition to NOC 0213 when that was not the case.
[36]
It
must be recalled that visa officers review and respond to thousands of similar
applications. It is simply not feasible to expect detailed reasons to be
issued in response to each application that is declined for processing. And as
indicated earlier, officers utilize standard form letters with their reasons
often supplemented in the GMCS Notes (Rezaeiazar, Ghirmatsion,
Taleb, Anabtawi, all above).
[37]
Further,
considerable deference is given to the decision of a visa officer assessing an
application in the federal skilled worker class (Chen v Canada (Minister of Citizenship and Immigration), 2011 FC 1279, [2011] FCJ No 1279 (QL)
at para 7).
[38]
While
the reasons are brief and to some degree inaccurate it must also be recalled
that the decision under review in this case is an eligibility determination by
a visa officer which falls on the lower end of the procedural fairness scale.
As Justice Pinard states in Kamchibekov, above at para 23:
[23] Moreover, it has been confirmed by the
Federal Court of Appeal in Minister
of Citizenship and Immigration v. Patel, 2002 FCA 55 at para 10, that the
content of the duty of fairness owed by a visa officer is at the lower end of
the spectrum (see also Nodijeh at para 3; Dash v. Minister of Citizenship and
Immigration, 2010 FC 1255 at para 27 [Dash]; Fargoodarzi v. Minister of
Citizenship and Immigration, 2008 FC 90 at para 12 [Fargoodarzi]).
Specifically, in the context of the decision of a visa officer on an
application for permanent residence, the duty of fairness is quite low and
easily met, “due to an absence of a legal right to permanent residence, the
fact that the burden is on the applicant to establish [his] eligibility, the
less serious the impact on the applicant that the decision typically has,
compared with the removal of a benefit and the public interest in containing
administrative costs” (Fargoodarzi at
para 12). The applicant is not entitled to anything more than the visa officer
mentioning the evidence on which his decision was based (Dash at para 29).
[39]
Further,
as to the sufficiency of reasons, in Dash v (Minister of Citizenship and Immigration),
2010 FC 1255, [2010] FCJ No 1565 (QL), CAIPS Notes (the older version of the
present GCMS notes) were relied upon for the purpose of supplementing the
reasons in a refusal letter:
[27] I must disagree with the Applicant who finds
these reasons to be inadequate. It is settled law that visa applicants
are owed a degree of procedural fairness which falls at the low end of the
spectrum (Pan v. Canada(Minister of Citizenship and Immigration),
2010 FC 838 at para. 26, Chiau v. Canada (Minister of Citizenship and
Immigration), [2001] 2 F.C. 297, [2000] F.C.J. No. 2043 (QL) (C.A.) at para. 41). CAIPS notes have been held to constitute sufficient reasons if
they provide detail sufficient enough to allow the applicant to know why their
application was rejected (Bhandal v. Canada (Minister of Citizenship and
Immigration), 2006 FC 427, 147 A.C.W.S. (3d) 474 at para. 18).
[40]
The
Applicant provided insufficient evidence as to the details of the data
processing projects that he worked on (i.e. the “essence” projects) and, based
on the details that were provided, it was unclear whether his job description
really matched either the lead description or the main duties listed in NOC
0213. Thus, while the duties listed in the TGR letter appear to coincide with
some of the NOC main duties, in the absence of clarity on the nature of the
data processing projects and the Applicant’s position as a data processing
manager, the Officer reasonably concluded that there was insufficient
information to confirm that the Applicant was a computer and information
systems manger.
[41]
The
reasons contained in the refusal letter are far from perfect and better use of
the form letter certainly could and should have been made. However,
ultimately, it does state that because the Applicant did not provide
satisfactory evidence that he had the required work experience his application
was not eligible for processing. The Applicant thus knew why his application
was denied (Kamchibekov, above, at paras 19-24) and nothing further was
required. There was no breach of procedural fairness and the Officer’s decision
was reasonable.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed. No question of general importance for certification has been
proposed and none arises.
"Cecily Y.
Strickland"
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