Date: 20140527
Docket: IMM-11768-12
Citation: 2014 FC 507
Ottawa, Ontario, May 27, 2014
PRESENT: The Honourable Mr. Justice S. Noël
BETWEEN:
|
SHUSHAN KOTANYAN
|
Applicant
|
and
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
Respondent
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ORDER AND REASONS
I. Introduction
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [IRPA] of a decision rendered by a visa officer of the Embassy of Canada
in Moscow [the Officer] rejecting the Applicant’s application for permanent
residence under the federal skilled worker class. The decision dated November
13, 2012 was based on the fact that the Applicant failed to meet the National
Occupational Classification [NOC] requirements.
II. Facts
[2]
The Applicant is a citizen of Armenia who applied in Moscow, Russia, for permanent residence in Canada as a skilled worker on
August 15, 2011.
[3]
In her application, the Applicant claimed to
have worked as an Assistant Restaurant Manager (under NOC 0631 – Restaurant and
food service manager) from April 2007 to September 2009, and as a Product
Manager (under NOC 0611 – Sales, Marketing and Advertising Managers) between
December 2009 and the time she filed her application.
[4]
After the Officer talked to her employers, the
Applicant was convoked to an interview on October 16, 2012 to address the
Officer’s concerns with respect to her application.
III. Decision under
review
[5]
After having spoken with both the Applicant’s
previous and current employers, the Officer was not satisfied that the
Applicant met the requirements set out in paragraphs 75(2)(b) and (c)
of the Immigration and Refugee Protection Regulations, SOR/2002-227
[IRPR]. According to the Officer, the Applicant performed neither “the actions
described in the lead statement for the occupation as set out in the
occupational descriptions” of NOC 0631 and NOC 0611 nor a “substantial number
of the main duties of the occupation as set out in the occupational
descriptions of [NOC 0631 and NOC 0611], including all of the essential duties”
(paragraphs 75(2)(b) and (c) of the IRPR). She further indicated
that while her concerns were to be addressed with the Applicant during the
interview held on October 16, 2012, the Applicant nonetheless failed to provide
satisfying answers.
[6]
Ultimately, the Officer found that the Applicant
was not an assistant manager, but rather a manager’s assistant (in other words,
an assistant to the manager).
IV. Decision under
review
[7]
The Applicant contends that the Officer’s decision
is unreasonable. First, the Officer made an error in assessing the Applicant’s
duties, omitting to consider the Applicant’s duties in organizing banquet
events in the restaurant. During the conversation between the Applicant’s
employer and the Officer, the employer stated that the Applicant was a
Manager’s Assistant, but he rectified his statement in a “Statutory
Declaration” wherein it is explained that this error had to do with translation
and that the Applicant was indeed an Assistant Manager. The Applicant’s
explanation and the evidence submitted, including the Statutory Declaration,
were consistent.
[8]
Second, the Officer breached procedural fairness
by adopting a selective approach with respect to the evidence submitted,
because she preferred her own interpretation of the Applicant’s interview
rather than the evidence submitted and she failed to provide adequate reasons.
V. Applicant’s
further memorandum
[9]
The Applicant further submits that the Officer
failed to appropriately consider the evidence with which she had been
presented. More particularly, she failed to refer to an important piece of
evidence that contradicts her finding, namely the Applicant’s employer’s
above-mentioned Statutory Declaration. Also, the Officer appeared to have a
“closed mind” in respect to the Applicant’s claim. In addition, the Officer
failed to address the verifiable and credible evidence submitted by the
Applicant the October 16, 2012 interview to the effect that she indeed
performed the duties as an assistant manager, i.e. banquet planning activities.
VI. Respondent’s
reply
[10]
The Respondent claims that the Officer’s
decision is reasonable. Considering that her affidavits were never sworn, the
Applicant submitted no evidence in support of her allegations that there are
inconsistencies between her version of the October 16, 2012 interview and what
was reported about this interview in the Global Case Management System notes
[GCMS notes]. The Officer did consider the Statutory Declaration in the GCMS
notes but reasonably decided to put more weight on the Applicant’s actual
statements and that of her employer in relation with the duties performed by
the Applicant, and it was certainly open for the Officer to do so.
[11]
In addition, the Officer’s reasons are entirely
sufficient and the assessment made was reasonable considering the circumstances
of the case and the evidence on file.
VII. Issue
[12]
Did the officer err in rejecting the Applicant’s
application for permanent residence under the federal skilled worker class?
VIII. Standard of review
[13]
As recently confirmed by Justice O’Keefe of this
Court, a visa officer’s determination of an “applicant’s foreign skilled worker
application is a finding of fact and law, reviewable on a reasonableness
standard” (see Butt v Canada (Minister of Citizenship and Immigration),
2013 FC 618 at para 13, [2013] FCJ No 695; see also Anabtawi v Canada
(Minister of Citizenship and Immigration), 2012 FC 856 at para 28, [2012]
FCJ No 923; Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] SCJ
No 9 [Dunsmuir]).
[14]
Accordingly, this Court shall intervene only if
the Officer came to a conclusion that is not transparent, justifiable and
intelligible and within the range of acceptable outcomes based on the evidence
with which it had been presented (Dunsmuir, above, at para 47). Under
this standard, it is not up to the Court to reweigh the evidence or “to
substitute its own view of a preferable outcome.” (Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59, [2009] SCJ
No 12)
IX. Analysis
[15]
The Applicant applied under NOC 0631 and NOC
0611. That being said, in her written submissions as well as at the hearing,
she takes issue only with the fact that her application for permanent residence
as an Assistant Restaurant Manager was rejected. As such, the analysis herein
shall focus only on the Officer’s analysis of the application as it concerns
NOC 0631, and for the reasons set out in the following paragraphs, I find that
the Officer’s decision was entirely reasonable and does not warrant the
intervention of the Court.
[16]
According to the Officer, the Applicant failed
to satisfy paragraphs 75(2)(b) and (c) of the IRPR, which set out
some of the requirements to be satisfied in order for a foreign national to be
considered a federal worker:
Immigration and Refugee Protection
Regulations, SOR/2002-227
PART 6
ECONOMIC CLASSES
Division 1
Skilled Workers
Federal Skilled Workers
[…]
Skilled
workers
75. (2) A foreign national is a skilled worker if
[…]
(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;
(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;
[…]
|
Règlement sur l’immigration
et la protection de réfugiés, DORS/2002-227
PARTIE 6
IMMIGRATION
ECONOMIQUE
Section 1
Travailleurs qualifiés
Travailleurs qualifiés
[…]
Qualité
75. (2) Est un travailleur qualifié l’étranger qui satisfait aux exigences
suivantes :
[…]
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;
[…]
|
[17]
The lead statement for NOC 0631 –
Restaurant and food managers, for the purposes of paragraph 75(2)(b)
of the IRPR, is as follows:
Restaurant and food
service managers plan, organize, direct, control and evaluate the operations of
restaurants, bars, cafeterias and other food and beverage services. They are
employed in food and beverage service establishments, or they may be
self-employed.
[18]
The main duties associated with NOC 0631
– Restaurant and food managers, for the purposes of paragraph 75(2)(c)
of the IRPR, are the following:
- Plan, organize, direct, control and evaluate the operations of
a restaurant, bar, cafeteria or other food or beverage service;
- Determine type of services to be offered and implement
operational procedures;
- Recruit staff and oversee staff training;
- Set staff work schedules and monitor staff performance;
- Control inventory, monitor revenues and modify procedures and
prices;
- Resolve customer complaints and ensure health and safety
regulations are followed;
- Negotiate arrangements with suppliers for food and other
supplies;
- Negotiate arrangements with clients for catering or use of
facilities for banquets or receptions.
[19]
Contrary to what is being argued by the
Applicant, the Officer did not adopt a selective approach with regard to the
evidence in the present case. In fact, I find that she appropriately assessed
the evidence.
[20]
On October 14, 2012, the Officer met with
the Applicant’s previous employer at the restaurant where they discussed the
Applicant’s employment in the business. During this encounter, the employer
stated that the Applicant was a manager’s assistant at the restaurant and he
assimilated her duties to those of a waitress, e.g. greet customers, take orders
and to serve food (see GCMS notes, Certified Tribunal Record [CTR], at page 5).
During the October 16, 2012 interview, as reported in the GCMS notes, the
Applicant indicated that she had been hired after seeing an ad for an opening
as a manager’s assistant (and not an assistant manager). Also during this
interview, the Applicant was questioned with respect to whether or not, in her
opinion, a manager’s assistant and an assistant manager are the same positions,
to which she answered: “They are the same thing in my opinion.” (see GCMS
notes, CTR, at page 4)
[21]
The Applicant claims that during the
October 16, 2012 interview, she gave evidence to the effect that she had
been an assistant manager at the restaurant and to have indicated to the
Officer that she planned banquets or private functions. While this may be the
case, it should be noted that the Applicant, who had the burden of proving her
claims (see for example Oladipo v Canada (Minister of Citizenship and
Immigration), 2008 FC 366 at para 24, [2008] FCJ No 468), based her
assertions on evidence that was weak even non-existent, as she submitted only
un-sworn affidavits despite having had over a year to correct the situation. The
Applicant did not even produce an affidavit from herself which would have given
her sworn version of the interview.
[22]
After the October 16, 2012 interview,
specifically on November 2, 2012, the Applicant sent to the Officer the
Statutory Declaration from her previous employer who indicated that she was in
fact an assistant manager and not a manager’s assistant. This Court notes that
the Officer explicitly considered the Statutory Declaration, as well as the
documents submitted along with it, in the GCMS notes, stating that despite
these documents, and keeping in mind the conversations held with the Applicant
herself and the Applicant’s previous employer – the essence of which is
describe above –, the Officer remained unsatisfied that the Applicant met the
NOC 0631 requirements.
[23]
This finding is reasonable. Indeed, it is vastly
recognized that the assessment and weighing of the evidence lies at the heart
of a visa officer’s jurisdiction, and as stated above it is not open to this
Court to reweigh the evidence:
[11] The visa officer has the
responsibility of determining whether an applicant has in fact performed the
duties of the NOC. Considerable discretion is afforded to the officer in this
respect, including interpretation of the NOC. The weight to be assigned the
various pieces of evidence is the task of the visa officer and it is not for the
court to reweigh the evidence. The onus is on the applicant to satisfy the visa
officer that she performed the duties contained in the NOC for the intended
application. It is within the visa officer’s discretion to assess an
applicant’s experience on the basis of the applicant’s representations at the
interview and to assign less weight to the written documents. See Kalia
v. Canada (Minister of Citizenship and Immigration), 2002 FCT 731, [2002]
F.C.J. No. 998, Atangan v. Canada (Minister of Citizenship and Immigration),
2002 FCT 752, [2002] F.C.J. No. 1017 and Malik v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 1050. [My emphasis.]
[Kianfer v Canada (Minister of Citizenship and Immigration), 2002 FCT 1061 at para 11, [2002] FCJ No 1439]
[24]
It is also established that a visa officer is
presumed to have considered all the evidence with which he or she is presented
unless the contrary is proven (Florea v Canada (Minister of Employment and
Immigration), [1993] FCJ No 598 (FCA) at para 1; see for example Ahmed v Canada (Minister of Citizenship and Immigration), 2013
FC 1083 at para 34, [2013] FCJ No 1180). What is more, the Officer had
no obligation to refer to every piece of evidence that is contrary to the
decision’s finding, and the reasons therein are not to be read
hypercritically (Cepeda-Gutierrez v Canada (Minister of Citizenship and
Immigration), [1998] FCJ No 1425 at para 16, 157
FTR 35). In this regard, the Applicant
asserts that the Officer failed to mention the employer’s Statutory Declaration
and the portion of the October 16, 2012 interview related to the
banquet-planning duties assumed by the Applicant. However, as stated above,
these elements of contradictory proof, which are indeed crucial to the
reasonableness of the decision, were actually addressed by the Officer, who
indicated in the GCMS notes that they did not suffice to establish that the
Applicant was an assistant manager and not a waitress or manager’s assistant.
[25]
In a nutshell, while evidence to the contrary
was submitted – and duly addressed – the Officer’s finding as it relates
to the fact that the Applicant was more a manager’s assistant or a waitress
than an assistant manager in the restaurant was based on a reasonable
assessment and weighing of the evidence which constitutes the role of the
Officer and not that of the Court. As such, contrary to the Applicant’s
assertion, the Officer did not have a closed mind and, by way of consequence,
did not commit an error in assessing the Applicant’s duties.
[26]
As for the adequacy of the Officer’s reasons,
this issue must also be considered under the standard of reasonableness (Newfoundland
and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at para 22, [2011] 3 S.C.R. 708; see for example Sidhu v Canada
(Minister of Citizenship and Immigration), 2014 FC 176 at para 17, [2014]
FCJ No 183 [Sidhu]). In the case at bar, I find that the reasons read
along with the GCMS notes – which form part of the reasons (see for example Khowaja
v Canada (Minister of Citizenship and Immigration), 2013 FC
823 at para 3, [2013] FCJ No 904) – were well done, sufficient and
adequate as envisioned by case law, as they explain why the permanent resident
application failed:
[20] The test of adequacy of reasons has been articulated by this
Court numerous times, including recently in Canada (Minister of Citizenship
and Immigration) v. Jeizan, 2010 FC 323, 386 F.T.R. 1:
[17] Reasons for
decisions are adequate when they are clear, precise and intelligible and when
they state why the decision was reached. Adequate reasons show a grasp of the
issues raised by the evidence, allow the individual to understand why the
decision was made and allow the reviewing court to assess the validity of the
decision: see Lake v. Canada (Minister of Justice), 2008 SCC 23,
[2008] S.C.J. No. 23 at para. 46; Mehterian v. Canada (Minister of
Employment and Immigration), [1992] F.C.J. No. 545 (F.C.A.); VIA Rail
Canada Inc. v. National Transportation Agency, [2001] 2 F.C. 25 (F.C.A.),
[2001] 2 F.C. 25 (C.A.), at para. 22; Arastu, [2008] F.C.J. No. 1561,
above, at paras. 35-36. [Emphasis added.]
[21] While there
is no question that an officer’s reasons can be brief, they must serve the
functions for which the duty to provide them is imposed – they must inform the
Applicant of the underlying rationale for the decision (VIA Rail Canada Inc.
v. National Transportation Agency, [2001] 2 F.C. 25 at para 21-22 (CA)).
[Sidhu, above,
at paras 20-21]
[27]
In the end, it comes down to whether or not the
Officer’s finding that the Applicant did not meet the requirements for
NOC 0631 falls within the range of acceptable outcomes based on the
evidence, and it does. As such, the Officer’s decision to reject the
Applicant’s application for permanent residence as a skilled worker was more
than reasonable and this application for judicial review shall be dismissed.
[28]
The parties were invited to submit a question
for certification, but none were proposed.
ORDER
THIS COURT ORDERS that this
application for judicial review is dismissed. No question is certified.
“Simon Noël”