Date:
20130822
Docket:
IMM-7131-12
Citation:
2013 FC 891
Ottawa, Ontario,
August 22, 2013
PRESENT: The
Honourable Mr. Justice Manson
BETWEEN:
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HAMMAD AHMAD KHAN
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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
[1]
This
is an application for judicial review of the decision of a First Secretary
(Immigration) at the Embassy of Canada in London [the Officer], pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27
[the Act]. The Officer refused the Applicant’s claim for Permanent Residence in
Canada as a Federal Skilled Worker.
I. Background
[2]
The
Applicant is a Pakistani citizen. He applied for permanent residence in Canada as a skilled worker in June, 2010. He was subsequently assessed for eligibility
based on his work experience as a Financial Manager.
[3]
Included
in his application were various documents as evidence of his prior employment
with two financial firms: Lehman Brothers and Marshall Wace. These letters were
submitted to meet the requirement that he hold one year of continuous full-time
paid work experience as a Financial Manager for the last ten years.
[4]
The
documents relating to Lehman Brothers include a letter from MJA Jarvis, the
bankruptcy administrators for Lehman Brothers, which confirmed that he was
employed in the firm’s equities department as a Quant Associate from June 26,
2006, to October 3, 2008 at a salary of ₤70,000. The
letter also notes that the general practice of Lehman Brothers is only to
provide the department, job title and dates of employment in reference to former
employees. The Applicant also provided a copy of his original employment
contract with Lehman Brothers and a letter explaining that due to the
bankruptcy proceedings against Lehman Brothers, he was unable to obtain a more
detailed reference letter.
[5]
In
his Memorandum of Argument, the Applicant states that his job at Lehman
Brothers entailed various financial analysis duties, including advising clients
on investments, stock trading, and developing various investments models.
[6]
The
documents relating to Marshall Wace include a letter from a director at
Marshall Wace confirming that he was employed from October 2008 to January 2011
(the date of the letter), though he does note in his Memorandum of Argument
that he was employed there until June, 2011. The letter notes his job as
involving responsibility for researching and implementing new ideas in stock
and futures markets, his salary as ₤85,000, and his
title as a “quantitative researcher.” The Applicant also submitted his offer letter
and contract of employment for his position with Marshall Wace.
[7]
In
his Memorandum of Argument, the Applicant notes that he attempted to get
another letter from Marshall Wace after being refused by the Officer, but as he
no longer worked at the firm he was unsuccessful.
[8]
The
Applicant also submits his own description relating to his employment at these
firms in Schedule 3 of his application. For Marshall Wace, this includes a
reiteration of the responsibilities described in the employment letter. For
Lehman Brothers, he describes his main duties as “Advising clients on
Quantitative Investment in Global Stock Markets and Global Futures markets and
making quantitative tools to help their investments.”
[9]
A
document checklist for skilled worker applications describes the necessary
content of employment letters, which are required to prove the necessary work
experience. As specified by this checklist, these letters must include: period
of employment, position(s) held, main responsibilities and duties in each
position, total annual salary plus benefits, and the number of hours per week.
[10]
On
May 24, 2012, the Applicant’s application was rejected on the basis that the
letters he submitted provided insufficient evidence that he had met the work
experience requirement as described above. In particular, the Officer’s notes
indicated that only brief reference letters were provided, and these did not
list the duties involved in his employment. Further, the Officer held that the
evidence provided in Schedule 3 was not objective.
II. Issues
[11]
The
issue raised in the present application are as follows:
A. Did
the Officer breach the duty of procedural fairness in failing to raise concerns
with the Applicant prior to rendering a decision?
B. Was
the Officer’s decision to reject the Applicant unreasonable in light of the
evidence provided?
III. Standard of review
[12]
The
parties agree that the standard of review for procedural fairness is
correctness (Kastrati v Canada (Minister Citizenship and Immigration),
2008 FC 1141 at paras 9-10; Dhillon v Canada (Minister of Citizenship and
Immigration), 2010 FC 1049 at paras 11-14).
[13]
The
parties further agree that the standard of review for the second issue is
reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
IV. Analysis
A. Did the Officer Breach the
Duty of Procedural Fairness in Failing to Raise Concerns with the Applicant
Prior to Rendering a Decision?
[14]
I
find that there was no breach of procedural fairness.
[15]
The
Applicant submits that the Officer should have raised her concerns about the
letters from Lehman Brothers and Marshall Wace prior to refusing his
application, and that this duty extends to evidence provided by the Applicant
himself, as well as any concerns over credibility.
[16]
While
there is a duty of procedural fairness to consult an Applicant when there is a
perceived issue of credibility or authenticity, that duty does not extend to
insufficiency of an Applicant’s evidence (Luongo v Canada (Minister of
Citizenship and Immigration), 2011 FC 618 at paras 16, 18).
[17]
The
Officer’s decision to reject the Applicant’s application turned on
insufficiency of the evidence before her. As stated by Justice Gleason in Bayat
v Canada (Minister of Citizenship and Immigration), unreported,
IMM-7042-12, at page 7:
Finally, insofar as concerns the alleged violation
of procedural fairness, contrary to the applicant’s claim, the officer was not
required to inform the applicant of the concerns with his application as these
related simply to the insufficiency of the evidence submitted by the applicant
and did not involve questioning the applicant’s credibility or the authenticity
of the documents he submitted. It is well-established that in such
circumstances a visa officer need not afford an applicant an opportunity to
provide additional submissions (Talpur v Canada (Minister of Citizenship and
Immigration), 2012 FC 25; Pan v Canada (Minister of Citizenship and
Immigration), 2010 FC 838 at paras 26-28; Hassani v Canada (Minister of Citizenship and Immigration), 2006 FC 1283 at para 24). The cases relied
upon by the applicant – namely, Farooq v Canada (Minister of Citizenship and
Immigration), 2013 FC 164 and Farsoodeh v Canada (Minister of Citizenship
and Immigration) (24 May 2013), IMM-7132-12 (FC) – are consistent with this
case law, as both turned on the officer having doubted the credibility of the
evidence offered. This did not occur in the present case, and there was
accordingly no violation of the applicant’s rights to procedural fairness.
[18]
Moreover,
the onus is on the Applicants to provide the necessary evidence that he meets
the criteria of the particular category in which they are applying for status
in Canada (Shetty v Canada (Minister of Citizenship and Immigration),
2012 FC 1321 at para 12).
B. Was
the Officer’s Decision to Reject the Applicant Unreasonable in Light of the
Evidence Provided?
[19]
The
Applicant argues in his Memorandum of Argument that he met the documentary
requirements specified in the Overseas Processing Manual relating to skilled
workers to support his claim that he had at least one year of continuous work
experience in the last ten years. This Manual specifies that the evidence
should include “sufficient detail” to support such a claim.
[20]
The
Applicant cites Shinde v Canada (Minister of Citizenship and Immigration),
[2001] FCJ No 1468 for the proposition that the case law has established that
an applicant is not required to have performed all duties for a position as listed
in the National Occupational Classification [NOC]. In Tabanag v Canada (Minister of Citizenship and Immigration), [2011] FCJ No 1575, the court held
that “one or more” of the main duties was sufficient if performed.
[21]
The
Respondent’s argument in both the initial and further Memorandum of Argument
are focussed on the fact that the document checklist clearly explains the
required content of the employment letters and that none of the letters
provided met that criteria. In addition, the document checklist clearly states
that self-declared descriptions of duties will not be accepted. As a result, it
was reasonable for the Officer to require objective evidence of the Applicant’s
duties (Bar v Canada (Minister of Citizenship and Immigration), 2013 FC
317 at paras 22-23).
[22]
The
NOC description of a Financial Manager is as follows:
Financial managers plan, organize, direct, control
and evaluate the operation of financial and accounting departments. They
develop and implement the financial policies and systems of establishments.
Financial managers establish performance standards and prepare various
financial reports for senior management. They are employed in financial and
accounting departments in companies throughout the private sector and in
government.
[23]
The
main duties of a Financial Manager are described as follows:
Financial managers perform some or all of the
following duties:
1.
Plan,
organize, direct, control and evaluate the operation of an accounting, audit or
other financial department
2.
Develop
and implement the financial policies, systems and procedures of an
establishment
3.
Prepare
or co-ordinate the preparation of financial statements, summaries, and other
cost-benefit analyses and financial management reports
4.
Co-ordinate
the financial planning and budget process, and analyze and correct estimates
5.
Supervise
the development and implementation of financial simulation models
6.
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
7.
Recruit,
organize, train and manage staff
8.
Act
as liaison between the organization and its shareholders, the investing public
and external financial analysts
9.
Establish
profitability standards for investment activities and handle mergers and/or
acquisitions
10.
Notify
and report to senior management concerning any trends that are critical to the
organization's financial performance.
[24]
Returning
to the Applicant’s evidence, the Respondent’s letter from Marshall Wace
somewhat corresponds to the duty listed in point 5, above, as does his
description of duties for his employment at Lehman Brothers.
[25]
However,
it was reasonable for the Officer to find that the Applicant is not
appropriately qualified. Regardless of the precise number of duties required,
it is clear that the Applicant’s evidence established that he may have met, at
best, one of the duties. While, on the basis of the precedent in Taleb,
the Applicant has an argument that the Officer ought to have given greater
weight to his description of duties in Schedule 3, I do not see, given the scarcity
of information provided the Applicant’s Schedule 3, how that assists the
Applicant’s claim that that the Officer was unreasonable in deciding the
Applicant fell short of meeting his obligation to provide sufficient evidence.
[26]
The
Officer’s reasons as to why he rejected the Applicant were clear – he did not
find the evidence of duties performed to be sufficient. As argued by counsel
for the Respondent, it is not for the Officer to have to infer what duties the
Applicant in fact carried out as part of his employment merely from a job title
and a salary amount. This is justifiable in light of the evidence, and is
within a range of possible outcomes as required by Dunsmuir. The
deference owed to this Officer results in my finding that her decision is
upheld.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
Applicant’s application is dismissed;
2.
There
is no question to be certified.
“Michael D. Manson”
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