Docket: IMM-5081-16
Citation:
2017 FC 1002
Ottawa, Ontario, November 6, 2017
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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NILIMA KAPOOR
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Applicant
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and
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CANADA (MINISTER
OF CITIZENSHIP AND IMMIGRATION)
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Respondent
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JUDGMENT AND REASONS
[1]
The Applicant, Nilima Kapoor, is a 34-year-old
citizen of India who first came to Canada in 2010 on a study permit. After she
received an accounting diploma from Humber College in December 2012, the
Applicant continued to reside in Canada with a post-graduate work permit and,
from July 2013 to December 2014, worked for Malke Enterprises Ltd. Malke is a
family-owned company located in Brampton, Ontario, which engages independent
contractors for its freight hauling business. When the Applicant worked at Malke,
the business operated with four employees: the owner, Jagdip Sidhu; his wife,
Rajinder Sidhu; a dispatch supervisor, Sinderpal Gill; and the Applicant.
Despite having no prior experience in Malke’s area of business, the Applicant
was hired as a “logistics coordinator” at Malke.
[2]
In September 2014, the Applicant applied for a
permanent residence visa under the Canadian Experience Class [CEC], requesting
in her application that she be assessed as a Logistics Coordinator, National
Occupation Classification [NOC] Code 1215. The lead statement for the NOC 1215
states that supervisors in this unit group supervise and co-ordinate the
activities of various workers such as shippers and receivers, production
logistics coordinators, dispatchers, and transportation route and crew
schedulers. An immigration Officer at Immigration, Refugees and Citizenship
Canada refused the Applicant’s application for permanent residence in a letter
dated December 1, 2016, on the basis that the Applicant had not performed the
duties of the lead statement for NOC 1215. The Applicant has now applied, under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c-27, for judicial review of the Officer’s decision.
I.
Background
[3]
In a letter to the Applicant dated April 15, 2016,
an immigration officer raised concerns that Malke was not operational during
the time period when the Applicant claimed to have worked there. These concerns
arose because of information from the Innovation, Science and Economic
Development Canada website that showed Malke had been dissolved on December 8,
2013, and revived on January 25, 2016. In response to this procedural fairness
letter, the Applicant submitted a letter from Mr. Sidhu dated May 10, 2016,
stating that he had inadvertently allowed the company’s incorporation to lapse
during this time period, and including tax and financial documents showing that
Malke had remained operational throughout that time period.
[4]
The Applicant received a second procedural
fairness letter dated September 27, 2016, which raised several issues:
•
That the Applicant had not met the work
requirements of NOC 1215, but had in fact worked as a Dispatcher (NOC 1525).
The Officer noted that employment as a Logistics Coordinator normally requires
several years’ experience working in related occupations.
•
That Ms. Gill had previously declared to have
performed the duties of NOC 1215, and the Officer found it unreasonable that a
small family-owned business with four employees would require two employees to
perform the duties of NOC 1215.
•
That the Applicant had not demonstrated that she
supervised and coordinated the activities of workers as listed in the NOC 1215
requirements.
•
That the job duties in her letter of employment
used the wording of NOC 1215 verbatim.
•
That she had provided evidence that she worked
as an office manager for a company called Race Carriers Ltd. since September 1,
2015, despite the Applicant’s temporary resident visa stating that she had
worked at Malke until May 2016.
•
That Mr. Sidhu’s signature on Ms. Gill’s letter
of employment differed noticeably from his signature on the Applicant’s letter
of employment and on Mr. Sidhu’s response to the first procedural fairness
letter.
[5]
Following receipt of the second procedural
fairness letter, the Applicant retained legal counsel to provide a response.
The letter from the Applicant’s counsel dated October 28, 2016, included
statutory declarations from Mr. Sidhu and from the Applicant which addressed
the issues raised in the second procedural fairness letter:
•
Mr. Sidhu said he had hired the Applicant based
on her communication skills, personality, and a positive reference from a
previous employer, and that she had been trained for three weeks and performed
her duties successfully.
•
Mr. Sidhu stated that his company had a heavy
volume of clients during the Applicant’s time at Malke and, accordingly, it was
necessary for the company to have two logistics coordinators, especially since
Mr. Sidhu was out of the country for part of that time. Mr. Sidhu submitted
documents attesting to the number of clients Malke served.
•
Mr. Sidhu provided a more detailed job
description showing how the Applicant’s duties corresponded to the requirements
of NOC 1215. In particular, Mr. Sidhu noted that the Applicant had trained Ms.
Sidhu to work as a dispatcher for Malke.
•
The Applicant stated that her representative had
inadvertently listed the wrong date for completion of her employment with
Malke.
•
Mr. Sidhu stated that when he signed his
response to the first procedural fairness letter his wrist was injured.
II.
Decision
[6]
In the refusal letter dated December 1, 2016,
the Officer stated that:
I am not satisfied that you meet the skilled
work experience requirement. Following a review of your submissions and your
application in its entirety, I am not satisfied, on a balance of probabilities,
that you have performed the duties of the lead statement of the declared NOC
and acquired one year of skilled work experience as set out in the requirements
of R87.1.
[7]
The refusal letter further stated that the Officer
also was “not satisfied” that the Applicant had
supervised and coordinated the activities of workers as listed in the lead
statement for NOC 1215. The Officer found it was “unreasonable
that your employer would need two supervisors in the office, and that you
trained and supervised the owner’s wife in the family business.” In the
Global Case Management System [GCMS] notes pertaining to the Officer’s review
of the Applicant’s procedural fairness response, the Officer found that the
Applicant’s job title “was inflated to satisfy
immigration requirements.”
III.
Issues
[8]
The Applicant frames the main issue as being
whether the Officer made unreasonable findings of fact with respect to the
Applicant’s work experience. In my view, characterizing the issue in this manner
overly narrows the primary issue which is: was the Officer’s decision to refuse
the Applicant’s application for a permanent residence visa under the CEC
reasonable?
[9]
Although the Applicant notes that the question
of whether she was provided a meaningful opportunity to respond to the Officer’s
concerns is a question of procedural fairness assessed on a standard of
correctness, she did not pursue this issue in her written or oral submissions.
IV.
Analysis
A.
Standard of Review
[10]
As noted by the Federal Court of Appeal in Qin
v Canada (Citizenship and Immigration), 2013 FCA 263 at para 25, [2015] 1 FCR
313: “A visa officer’s refusal of an application for
permanent residence on the ground that an applicant’s employment was not
consistent with an occupation in an NOC code of the required skill level is a
question of mixed fact and law at the factual end of the spectrum. Accordingly,
it is reviewable on the standard of reasonableness.”
[11]
Under the reasonableness standard, the Court is
tasked with reviewing a decision for “the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: Dunsmuir v New Brunswick, 2008 SCC 9 at para 47,
[2008] 1 S.C.R. 190. Those criteria are met 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”: Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 16,
[2011] 3 S.C.R. 708.
[12]
Additionally, “as long
as the process and the outcome fit comfortably with the principles of justification,
transparency and intelligibility, it is not open to a reviewing court to
substitute its own view of a preferable outcome”; and it is also not “the function of the reviewing court to reweigh the evidence”:
Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at paras 59
and 61, [2009] 1 S.C.R. 339. The decision under review must be considered as an
organic whole and the Court should not embark upon “a
line-by-line treasure hunt for error” (Communications, Energy and
Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper Ltd., 2013
SCC 34 at para 54, [2013] 2 S.C.R. 458).
B.
Was the Officer’s decision to refuse the
Applicant’s application for a permanent residence visa under the CEC
reasonable?
[13]
The Applicant argues that she responded to the
Officer’s concerns in a sworn statement, and it was unreasonable for the
Officer to reject this evidence in the absence of evidence to the contrary. In
the Applicant’s view, the Officer’s reasons summarily rejected or ignored the
Applicant’s sworn statement and are thus unreasonable. The Applicant says the
Officer dismissed the possibility that she could have trained and supervised
Ms. Sidhu, without providing any justification and in the absence of contrary
evidence. The Applicant contends that the Officer relied on stereotypes about
family businesses instead of the submitted evidence.
[14]
The Applicant further argues that the Officer
ignored Mr. Sidhu’s explanation for why his company required two logistical
coordinators, without providing any explanation as to why. According to the
Applicant, this evidence was either ignored or rejected without explanation,
thus rendering the decision unintelligible, not transparent, and unjustified.
Moreover, the Applicant says that, because the Officer’s reasons do not engage
at all with Mr. Sidhu’s statement detailing how the Applicant performed each of
the duties listed for NOC 1215, the reasons are insufficient and therefore
unreasonable. According to the Applicant, the Respondent’s position that the
NOC 1215 lead statement contemplates individuals who supervise more than one
employee is an overly narrow reading of the lead statement. The Applicant notes
that she supervised the independent contractors engaged by Malke in its freight
hauling business.
[15]
The Respondent defends the Officer’s decision,
noting that the Officer believed the Applicant may have performed the
responsibilities of a Dispatcher (NOC 1525), and that the onus was on the
Applicant to satisfy the Officer that she performed the requisite duties for
NOC 1215. The Respondent highlights the requirement in the lead statement for
NOC 1215 for supervision of workers in specified unit groups, and notes that
the Applicant supervised only a single worker, Ms. Sidhu. According to the
Respondent, the Officer’s decision was not based on a finding that it was
unreasonable that the Applicant would have trained Ms. Sidhu but, rather, that
the evidence did not demonstrate that the Applicant had performed the duties
outlined in the lead statement of NOC 1215.
[16]
The Respondent notes that the GMCS notes specify
that the Officer undertook “a review of the submissions
and the application in its entirety,” and that a decision-maker is
presumed to have considered all of the evidence. A tribunal’s decisions are
not, the Respondent says, to be read hypercritically, and to require that the
reasons for a decision reference every piece of evidence would be an onerous
requirement on an already overburdened system. In the Respondent’s view, the
Officer reasonably weighed and assessed the Applicant’s evidence and it was not
a reviewable error that the Officer did not refer to the Applicant’s evidence
concerning how her responsibilities aligned with those set out in the NOC 1215
description. As to the Applicant’s arguments concerning the sufficiency of
reasons, this is not an independent basis for judicial review and, according to
the Respondent, the Officer’s reasons in this case were sufficient for the
Applicant to know why her application was rejected, particularly in view of the
second procedural letter sent to her detailing the Officer’s concerns.
[17]
In Lazar v. Canada (Citizenship and
Immigration), 2017 FC 16, 275 ACWS (3d) 843, the Court recently summarized
the principles applicable to applications for permanent residence from within
Canada under the CEC:
[20] The jurisprudence establishes that
in the visa context: (1) an applicant has the onus of providing sufficient
evidence to support the application; (2) the degree of procedural fairness owed
to an applicant is at the low end of the spectrum; (3) there is no obligation
on an Officer to notify an applicant of deficiencies in the application or
supporting documentation; and (4) there is no obligation on the Officer to
provide the applicant with an opportunity to address any concerns of the
Officer when the supporting documents are incomplete, unclear or insufficient
to satisfy the Officer that the applicant meets the requirements. (Ansari v
Canada (Minister of Citizenship and Immigration), 2013 FC 849 at para 23
referring to Hamza v Canada (Minister of Citizenship and Immigration),
2013 FC 264).
[21] Concerns relating to credibility,
the accuracy or the genuine nature of information submitted with an application
often require that an applicant be given an opportunity to address these
concerns (Madadi v Canada (Citizenship and Immigration), 2013 FC 716 at
para 6 citing Perez Enriquez v Canada (Citizenship and Immigration),
2012 FC 1091 at para 26)….
[18]
In this case, it cannot be said that the
Applicant was not afforded an opportunity to disabuse any concerns the Officer
had. On the contrary, the Applicant was afforded two opportunities to respond
to the concerns about her application for permanent residence. The Applicant
had the onus to provide sufficient evidence and supporting documents to support
her application and to satisfy the Officer that she had performed the duties of
NOC 1215. This she failed to do.
[19]
I agree with the Respondent that the Officer
reasonably weighed and assessed the Applicant’s evidence, and it was not
unreasonable for the Officer not to refer explicitly to the Applicant’s
evidence about how her responsibilities aligned with those set out in the NOC
1215 description. A visa officer does not need to mention every piece of
evidence in his or her reasons for a decision; and, moreover, it is assumed
that an officer weighed and considered all of the evidence before him or her,
unless the contrary is shown (see: Akram v Canada (Minister of Citizenship
and Immigration), 2004 FC 629 at para 15, 130 ACWS (3d) 1004; D’Souza v.
Canada (Minister of Employment and Immigration), [1983] 1 FC 343 at para 8,
16 ACWS (2d) 324 (CA); and Florea v. Canada (Minister of Employment and
Immigration), [1993] FCJ No 598 at para 1, [1993] ACF No 598 (CA). The
Applicant has not shown how the Officer’s consideration of the evidence
concerning the Applicant’s job duties vis-à-vis those set out in the NOC
1215 description was unreasonable.
V.
Conclusion
[20]
The Officer’s decision in this case was
justifiable, transparent and intelligible, and it falls within a range of
possible, acceptable outcomes defensible in respect of the facts and law. The
Applicant’s application for judicial review will be dismissed.
[21]
Neither party raised a serious question of
general importance; so, no such question is certified.
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