Date: 20131129
Docket: IMM-3407-13
Citation: 2013 FC 1201
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, November 29, 2013
PRESENT: The Honourable Mr. Justice Roy
BETWEEN:
MAMADY
BADRA KABA
Applicant
and
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The applicant, who is
self-represented, has applied for judicial review of a decision by a
Citizenship and Immigration Canada officer who refused his application for
permanent residence under the Canadian Experience Class. This class is dealt
with at section 87.1 of the Immigration and Refugee Protection
Regulations, SOR/2002-227 (the Regulations). The application for judicial
review was brought under section 72 of the Immigration and Refugee
Protection Act, SC 2001, c 27 (the Act).
[2]
The applicant is a
citizen of Guinea who wishes to become a permanent resident now that he has
completed his university studies in Canada. For the applicant to meet the
conditions of the Regulations, it must be shown that he has acquired in Canada
at least twelve months of full-time work experience in one or more occupations
that are listed in the National Occupation Classification [NOC].
[3]
In this case, the
applicant applied on the basis of NOC 6221, or “Technical Sales Specialists
– Wholesale Trade”. In support of his application, he submitted a certificate
of employment stating that he was responsible for a number of different tasks.
The certificate of employment referred specifically to [translation] “Job Classification: Telecommunications
sales representative (NOC 6221)”. Comparing his certificate of employment
to his main tasks, Mr. Kaba claims to fulfil the main duties identified
under NOC 6221. He argues that the immigration officer did not perform
this comparative examination, thereby making her decision reviewable. In his
view, such a comparison would show that he is a technical sales specialist. It
is undisputed before this Court that the applicant meets the educational requirements
of this classification.
[4]
The impugned decision
can be summarized as follows:
[translation]
. . . On
the basis of this letter, I am not satisfied that the duties correspond to the
lead statement of NOC 6221, Technical Sales Specialists – Wholesale Trade.
More specifically, you do not sell technical goods and services such as
scientific, farming and industrial equipment or telecommunications, electricity
and computer services, in national and international markets. According to your
letter of employment, you telephone existing and potential clients to promote
Bell Canada’s products and services (Bell Internet Fibe and Bell Fibe TV, Bell telephone,
Bell Internet and Bell television).
[5]
It is important to
clarify something at this stage. This Court’s role is neither to determine
whether the letter of employment corresponds to the main duties described in
NOC 6221, nor to determine whether it meets the NOC 6221 standard.
Its role is to determine whether the decision was lawful. The parties agree
that the applicable standard of review is reasonableness. This implies that the
decision warrants deference. Dunsmuir v New Brunswick, 2008 SCC 9,
[2008] 1 SCR 190, describes the qualities that make a decision
reasonable:
[47] Reasonableness
is concerned mostly with the existence of justification, transparency and
intelligibility within the decision making process and with whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and the law.
[6]
Therein lies the
problem. A person is entitled to know why his or her application is determined
to be ineligible. The reasons need not be long or particularly detailed, but
they must have at least some substance. The Supreme Court wrote the following
in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador
(Treasury Board), 2011 SCC 62, [2011] 3 SCR 708:
[15] In
assessing whether the decision is reasonable in light of the outcome and the
reasons, courts must show “respect for the decision-making process of
adjudicative bodies with regard to both the facts and the law” (Dunsmuir,
at para. 48). This means that courts should not substitute their own reasons,
but they may, if they find it necessary, look to the record for the purpose of
assessing the reasonableness of the outcome.
[7]
I examined the file as
it was at the time of the decision to determine whether the reasons showed
these qualities of reasonableness. In response, counsel for the respondent, who
otherwise valiantly defended the respondent’s interests, could point only to a
reply given by the respondent to a question regarding the affidavit filed two
months after the decision was rendered.
[8]
This approach strikes
me as problematic. The respondent’s affidavit was filed in support of his
memorandum concerning the application for judicial review. The affidavit, which
was filed under Rule 11 of the Federal Courts Immigration and Refugee
Protection Rules, SOR/93-22 (the Rules), is being used to attempt to buttress
the impugned decision. The “wholesale trade” aspect is not mentioned anywhere
in the decision, while the affidavit mentions it for the first time at
paragraph 12.
[9]
It is well established
that an affidavit filed under Rule 11 cannot be used to supplement a decision (Barboza v
Canada (Minister of Citizenship and Immigration), 2011 FC 1420). However,
that is precisely the situation here.
[10]
The applicant, who is
not a lawyer, wished to examine the witness regarding the affidavit. In
response to the first question, the respondent not only tried to explain that
the applicant’s tasks showed that he worked in the residential sector, but also
added an explanation of the decision not found elsewhere. It was new. The last
paragraph of the response is reproduced below:
Following a review of
the letter of employment dated June 13, 2012, I was not satisfied that the
applicant sold technical goods and services on a wholesale level. As noted
above, the duties listed are descriptive of a residential clientele, and not a
wholesale trade technical sales specialist as described in the lead statement of
NOC 6221. As a result, I was not satisfied applicant met the employment
criteria of the Canadian Experience as set out in R87.1 and the application was
refused.
[11]
Not only do we learn
that the lack of wholesale experience was key to the decision, but we are told
that the description found at the beginning of NOC 6221 is the “lead
statement”.
[12]
The additions to the
respondent’s affidavit and the cross-examination on the affidavit are clearly
being relied upon to buttress a decision that seems to be based on scant
reasons. These additions may not be introduced now. They are not part of the
file that is subject to judicial review.
[13]
The reasons for the
decision, even when read in light of the file resulting in the decision of
April 25, 2013, do not support a finding that the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and the law. It would have been necessary to clearly establish the
parameters of NOC 6221, with its lead statement that had to be respected
and, if the standard was not met in this case, an explanation of why not. The
applicant is entitled to that. The affidavit presented by the respondent and
the cross-examination on the affidavit, the content of which would have
fulfilled the legal obligations in question had it been part of the decision,
came after the fact. I would add that filing an affidavit in support of an
opposition to an application for judicial review in order to explain a decision
is to be avoided. Using an examination on an affidavit to further explain and
articulate a decision should also be proscribed, in my opinion. In this case,
the applicant is self-represented, and the question he asked during the
cross-examination on the affidavit, which was quite specific, did not require
the type of response that was provided.
[14]
The applicant relied
heavily on the decision of my colleague Justice Elizabeth Heneghan in a case
that seems to bear a close resemblance to the matter under consideration. In Ye v
Canada (Citizenship and Immigration), 2012 FC 652, the Court held
as follows in a very brief judgment:
[6] NOC
6221 includes the following example titles that may describe a position within
that category: “technical support specialist”, “telecommunications sales
representative” and “telecommunications salesperson”.
[7] In
my opinion, the Officer erred by failing to address the evidence before her
that the Applicant’s responsibilities and work experience were described in
terms of one of the example titles in the NOC 6221 category.
[15]
The applicant hoped
that this decision would be binding on me through the doctrine of stare decisis and that the respondent would therefore be forced to
concede. That doctrine does not apply to the decisions of colleagues. One may,
of course, be influenced by a decision’s persuasiveness, but in this case, the
decision is so short and lacking in detailed reasons that its persuasive value
is limited. However, I take comfort in the fact that my colleague opted to
refer the matter back for reconsideration in circumstances that are, as far as
can be determined, analogous to the circumstances of this case.
[16]
At the hearing I made
it very clear to the applicant that the Court would not make a finding that his
position made him eligible under NOC 6221. The new decision will consider
the lead statement. One might think that when the decision of an administrative
tribunal is referred back for redetermination on the basis that it is
unreasonable, only an outcome opposite to the initial outcome could be
reasonable. This would be an error.
[17]
As I have tried to
explain, this Court is not rendering a decision on the merits. It is possible
that once the file has been examined correctly, the decision maker will
reasonably conclude that the position held by the applicant does not qualify
under NOC 6221. My decision is based only on the fact that the reasons and
the file before the tribunal are insufficient to support a finding that the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and the law. The applicant was confused, and
it is easy to understand why when considering the file as a whole. A new
decision must therefore be rendered by somebody other than the immigration
officer who rendered the original decision in this matter. I would add that,
given the particular facts of the case, it would be appropriate to allow the
applicant to present his point of view again. This would include providing him
with the opportunity to present examples of employment that, in his view,
correspond better to that which he occupied and that fall under NOC 6221 (Friesen
Dental Corp v Director of Companies (Manitoba) (2011), 341 DLR (4th) 83
(C.A. Man.); Canada (Minister of Citizenship and Immigration) v
Pinnock (1996), 122 FTR 68). Conversely, the Minister would have
the opportunity to explain more precisely the requirements of NOC 6221. A
new decision maker will be able to reach a decision on the basis of all of this
evidence and any submissions made.
[18]
The applicant insisted
that there be an order with respect to costs. The rule in an immigration
context is that no costs are to be awarded absent special reasons. Rule 22
of the Rules reads as follows:
|
22. No costs shall be
awarded to or payable by any party in respect of an application for leave, an
application for judicial review or an appeal under these Rules unless the
Court, for special reasons, so orders.
|
22. Sauf ordonnance contraire rendue par un juge pour des raisons
spéciales, la demande d’autorisation, la demande de contrôle judiciaire ou
l’appel introduit en application des présentes règles ne donnent pas lieu à
des dépens.
|
[19]
His request is not
outlandish. However, the applicant’s complaints seem to be mainly related to
the refusal to change the decision rendered by the officer on April 25,
2013. His application for judicial review was handled expeditiously, and just
because it was successful does not mean that it would be appropriate to award
costs when that is permitted only for special reasons. I am not of the view
that mere eagerness to defend a position is sufficient to warrant an order of
costs, even if the ex post facto additions through the affidavit
and the cross-examination on affidavit were ill advised (Ndungu v The
Minister of Citizenship and Immigration, 2011 FCA 208).
[20]
Accordingly, the
application for judicial review is allowed without costs. There is no question
for certification.
JUDGMENT
The application for judicial review is allowed without
costs. The matter is referred back to Citizenship and Immigration Canada for
redetermination by someone other than the immigration officer who decided this
matter on April 25, 2013. Given the particular facts of the case, it would
be appropriate to allow the applicant to present his point of view again. This
would include providing him with the opportunity to present examples of
employment that, in his view, correspond better to that which he occupied and
that fall under NOC 6221. Conversely, the Minister would have the
opportunity to explain more precisely the requirements of NOC 6221. A new
decision maker will be able to reach a decision on the basis of all of this
evidence and any submissions made.
There is no question for certification.
“Yvan Roy”
Certified true
translation
Francie Gow, BCL,
LLB
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