Docket: IMM-93-15
Citation:
2015 FC 1179
Ottawa, Ontario, October 19, 2015
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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SOURABH PAUL
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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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JUDGMENT AND REASONS
I.
Background
[1]
This is an application for judicial review by
the Applicant pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 of a decision dated December 16, 2014,
wherein an Immigration Officer [Officer] rejected the Applicant’s Federal
Skilled Worker application.
[2]
The Applicant, Sourabh Paul, is an entrepreneur
and a citizen of Kenya. In October 2014, the Applicant applied for permanent
residence under the Federal Skilled Worker class and identified, in his
application, Senior Manager under two separate managerial occupations (NOC 0013
and NOC 0015) but only identified NOC 0015 as is current occupation.
[3]
The Officer rejected his application under NOC
0015 and did not examine his application under NOC 0013. The Officer rejected the
Applicant’s application on two grounds:
You have not provided sufficient evidence
that you performed the actions described in the lead statement for the
occupation as set out in the occupational description of the NOC.
You have not provided sufficient evidence
that you performed a substantial number of the main duties of the occupation as
set out in the occupational description of the NOC, including all of the
essential duties.
Therefore, I am not satisfied there is
sufficient evidence that you meet the work experience requirement for the
occupation as described of the NOC - 0015.
(Decision and Reasons, Applicant’s Record,
at pp 5 and 6)
II.
Issues
[4]
Although several issues were raised by the
parties, the Court considers that the central issues to be determined by this
application for judicial review are:
1)
Did the Officer err in finding that the
Applicant did not provide sufficient evidence that he satisfied the requirements
under subsection 75(2) of the Immigration and Refugee Protection Regulations,
SOR/2002-227?
2)
Did the Officer err by failing to consider
whether the Applicant met the duties under NOC 0013?
III.
Position of the Parties
[5]
The Applicant argues that he submitted, in
support of his application, several letters stating that he was a Senior Manager
for various corporations. Therefore, it was unreasonable for the Officer to
ignore this corroborating evidence, or in the alternative, that the Officer did
not explain why he rejected the letters as evidence without providing clear
reasons for doing so (Hilo v Canada (Minister of Employment and Immigration),
[1991] FCJ No 228; Ababio v Canada (Department of Employment and
Immigration), [1988] FCJ No 250; Armson v Canada (Minister of Employment
and Immigration), [1989] FCJ No 800). The Officer had a duty to consider
all of the evidence and to provide coherent reasons for the decision (Taleb
v Canada (Minister of Citizenship and Immigration), 2012 FC 384 [Taleb];
Monteverde v Canada (Minister of Citizenship and Immigration), 2011 FC
1402; Shirazi v Canada (Minister of Citizenship and Immigration), 2012
FC 306 [Shirazi]), but failed to do so as he incorrectly stated in his
computer notes that “there are no duties listed on any
letters” when in fact several letters, as well as Schedule 3 of the
Applicant, indicated the duties performed by the Applicant. Furthermore, the
described duties in the letters and in Schedule 3 of the application are
consistent with those described in the NOC. As a result of the Officer ignoring
or disregarding the evidence, his decision is unreasonable and should be
overturned on this basis alone (Turizo v Canada (Minister of Citizenship and
Immigration), 2013 FC 721; Ghannadi v Canada (Minister of Citizenship
and Immigration), 2013 FC 515). In the alternative, the Applicant submits
that the Officer had a duty to examine the Applicant’s experience under NOC
0013 as the Applicant had the right to be assessed for every occupation that he
is qualified under (Li v Canada (Minister of Employment and Immigration),
[1990] FCJ No 40).
[6]
Conversely, the Respondent submits that it was
reasonable for the Officer to solely assess the Applicant’s application under
NOC 0015 as it is the primary occupation that the Applicant identified in his
application. It was also reasonable for the Officer to find that the Applicant
did not provide sufficient evidence that he had performed the duties described
under NOC 0015 as the letters submitted with his application do not speak of
the Applicant having performed the duties described in the lead statement of
NOC 0015. Rather, the letters only describe the Applicant’s job title with
vague reference to his role in the various companies and that the signators of
the letters know the Applicant. As a result, it was reasonable for the Officer
to find that the Applicant did not meet the criteria as set out in the
Ministerial Instructions.
IV.
Standard of Review
[7]
The assessment by an Officer of the Applicant’s
eligibility to permanent residence pursuant to the Federal Skilled Worker class
is a determination of mixed fact and law reviewable under a standard of
reasonableness (Ansari v Canada (Minister of Citizenship and Immigration),
2013 FC 849; Shirazi, above).
V.
Analysis
A.
Adequacy of reasons and sufficient evidence
[8]
It is well established that a high degree of
deference is owed to decisions of an Officer on an assessment of an application
for permanent residence under the Federal Skilled Worker class (Katebi v
Canada (Minister of Citizenship and Immigration), 2014 FC 813 at para 36 [Katebi];
Shirazi, above at para 15; Taleb, above at para 27). As a result,
this Court must not interfere with the decision unless it is unreasonable,
namely that the decision is not transparent, intelligible, or, that it does
not fall within a range of possible, acceptable outcomes which are defensible
in respect of the facts and law (Dunsmuir v New Brunswick, [2008] 1
SCR 190, 2008 SCC 9 at para 47).
[9]
The Applicant submits that the decision is
unreasonable as the Officer failed to explain why he had rejected the letters
submitted with the application.
[10]
It is important to note that adequacy of reasons
is not a stand-alone basis to quash a decision (Newfoundland and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury Board), [2011] 3 SCR
708, 2011 SCC 62 at para 14 [Newfoundland Nurses]). In considering
whether a decision-maker provides sufficient reasons, the Court must be able to
understand “why the tribunal made its decision and permit it to determine
whether the conclusion is within the range of acceptable outcomes, the Dunsmuir
criteria are met” (Newfoundland Nurses, above at para 16).
[11]
As discussed above, the Officer’s reasons are
minimal; they only state that the Applicant did not provide sufficient evidence
that he had performed the duties described in the lead statement for NOC 0015
and that he had not performed a substantial number of the main duties for NOC
0015. Since the notes entered in the Computer-Assisted Immigration Processing
System [CAIPS] do constitute part of the reasons, the Court must also take them
into consideration (Taleb, above at para 25). The Officer entered as
notes in the CAIPS that “there are no duties listed on
any letter which accompanies the application”. Given the lack of justification
by the Officer as to why he found that the Applicant did not provide evidence,
the Court is unable to understand why the Officer came to the decision he did.
As a result, his decision is inadequate.
[12]
The Applicant submits that the Officer ignored
the evidence and that it was not reasonable for the Officer to conclude that
the Applicant did not meet the requirements under NOC 0015. The Court agrees
with that.
[13]
The onus is on the Applicant to put together an
application that is complete, relevant, convincing and unambiguous (Katebi,
above at para 35; Obeta v Canada (Minister of Citizenship and Immigration),
2012 FC 1542 at para 25). After reviewing the application submitted by the
Applicant, this Court finds that it was unreasonable for the Officer to
conclude as he did. Furthermore, it is not for the Court to reweigh the
evidence and substitute its decision for that of the Officer (Khoshnavaz v
Canada (Minister of Citizenship and Immigration), 2013 FC 1134 at para 41),
unless the evidence shows otherwise which it does in this specific case.
B.
Failure to consider NOC 0013
[14]
In addition, the Applicant specifically
mentioned in his application that his current occupation was both under NOC
0015 and NOC 0013.
VI.
Conclusion
[15]
Consequently, the application for judicial
review is granted.
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