Docket: IMM-2231-17
Citation:
2017 FC 991
Vancouver, British Columbia, November 2, 2017
PRESENT: The Honourable Madam Justice Simpson
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BETWEEN:
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AHMAD HUSSAIN
CHAUDHRY
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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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ORDER AND REASONS
[1]
The Applicant has applied for judicial review of
a decision [the Decision] of an immigration officer [the Officer] dated March
20, 2017, refusing the Applicant’s application for permanent residence [PR] as
a member of the Federal Skilled Trades [FST] class. This application is brought
pursuant to subsection 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [the IRPA].
I.
BACKGROUND
[2]
The Applicant is a 54 year old citizen of
Pakistan. He is married with four children. The Applicant has been residing and
working in Saudi Arabia since 2004. He holds an Associate Diploma in Civil
Engineering.
[3]
From May 2010 until March 2013, the Applicant
worked as a construction supervisor with Life Connection Contracting Company
Ltd. [Life Connection]. From April 2013 until March 20, 2017, the Applicant
worked as a civil engineer with Huta Hegerfeld Saudia Ltd. [Huta].
[4]
The Applicant was offered and accepted a
position as a construction supervisor with a Canadian employer. It received a
positive Labour Market Impact Assessment [LMIA] on July 13, 2016. Based on the
job offer and the positive LMIA, the Applicant was issued an invitation to make
an application for PR as a member of the FST class. The Applicant applied for
PR on December 8, 2016. In his FST application, the Applicant specified he was
applying as a construction supervisor under the National Occupational Criteria
(NOC) 7302. As part of his application, the Applicant provided a letter from
Huta dated October 10, 2016 [the Huta Letter]. It provided a description of his
employment.
[5]
NOC 7302 reads in part as follows:
7302 Contractors and supervisors, ,heavy equipment
operator crews
Lead statement
This unit group includes excavating,
grading, paving, drilling and blasting contractors who own and operate their
own business. This unit group also includes supervisors who supervise and
co-ordinate the activities of workers classified in the following unit groups:
Crane Operators (7371), Drillers and Blasters - Surface Mining, Quarrying and
Construction (7372), Water Well Drillers (7373), Longshore Workers (7451),
Material Handlers (7452), Heavy Equipment Operators (Except Crane) (7521),
Public Works Maintenance Equipment Operators and Related Workers (7522), Railway Yard and Track
Main duties
Contractors and
supervisors in this unit group perform some or all of the following duties:
Supervise,
co-ordinate and schedule the activities of workers who operate cranes and
construction, paving, drilling, railway maintenance and other similar heavy
equipment
• Establish
methods to meet work schedules and co-ordinate work activities with other
project supervisors or managers
• Requisition
materials and supplies
• Resolve
work problems and recommend measures to improve productivity
• Train
or arrange for training of workers
• Recommend
personnel actions such as hirings and promotions
• Prepare
production and other reports
• May
manage the operations of own company
• May
also supervise, co-ordinate and schedule the activities of related apprentices,
helpers and labourers.
II.
The Decision
[6]
The Officer refused the Applicant’s application
on the basis that he did not meet the criteria set out in section 87.2(3)(b) of
the IRPR for the FST class. It provides that a foreign national is a member of
the FST class if they have, during the five years before the date on which
their PR application is made, acquired at least two years of full-time work
experience, or the equivalent of part-time work, in the skilled trade occupation
specified in the application. The Officer determined
the relevant five-year period ran from December 8, 2011 until December 8, 2016
[the Relevant Period].
[7]
The Officer accepted that the Applicant’s 17
months of employment with Life Connection met the requirements of NOC 7302. However,
the Officer concluded that the Applicant’s 7 months of work as a civil engineer
with Huta did not match the duties of construction supervisor found in NOC
7302. As a result, the Applicant had failed to acquire the required 24 months
of full-time employment in the Relevant Period.
[8]
The Officer’s refusal letter is a form letter
which sets out the legislative requirements. The portion that deals with the
evidence reads as follows:
I am not satisfied that the employment
letter you submitted in support of this application lists the duties or the
lead statement of NOC 7302. You have declared that you worked as Civil Engineer
(NOC7302) at Huta Hegerfeld Saudia Ltd from April 2013 until present. According
to the letter of employment form Huta Hegerfeld Saudia Ltd, you appear to have
experience under NOC 2131. Civil Engineers, which is not a skilled trade
pursuant to sub-section 87.2(1) of the Regulations.
[9]
The Officer’s reasons in the GCMS notes state:
PA has specified NOC 7302 for his current
position. However, it appears that his position from 2013/04 until present, and
duties with Huta match NOC 2131. Therefore, PA has accumulated 17 months of
full-time experience in primary NOC during the five years before the date on
which is permanent residence application was made. I am not satisfied that PA
meets minimum FST requirements as per 87.2(3)(b). Application is refused.
III.
The Issue
[10]
The issue is the reasonableness of the finding
that the Applicant’s employment at Huta does not fall under NOC 7302.
IV.
Discussion
[11]
The Officer does not specify why she reached her
conclusion. She makes no direct reference to the contents of the Huta Letter,
which describes the Applicant’s duties while in its employ. The Huta Letter is
written in two sections. There is a narrative of several paragraphs [the
Narrative], followed by a list of 29 duties [the List], assigned to the
Applicant.
[12]
In the Narrative, the Huta Letter states, inter
alia, that on “countless
construction projects” the Applicant:
– supervised each member of our construction
team
– oversaw the actual construction on the
ground
[13]
What is missing in both the Narrative and in the
List is any direct reference to supervision or co-ordination of the work of the
heavy equipment operators and the other types of operators referred to in the
Lead Statement.
[14]
However, the Applicant says it is reasonable to
conclude that such supervision and co-ordination occurred because of the
statements in the Narrative. As well, the List shows that the Applicant can
deal effectively and communicate with sub-contractors [points #6 and 22], and
manages change [point #8]. The Applicant submits that sub-contractors would
include the operators listed in the Lead Statement and that managing change is
a matter of coordinating the activities of the workers referred to in the Lead
Statement.
[15]
The Respondent says that the onus is on the
Applicant and that the Huta Letter fails to clearly demonstrate that his
employment met the requirements of NOC 7302.
V.
Conclusion
[16]
In my view, it was unreasonable of the Officer to
fail to refer to the statements in the Narrative portion of the Huta Letter. This
is not a case in which I can supplement the Decision by considering the Record.
I can only speculate about why the Officer apparently rejected the comments in
the Narrative. Accordingly, this application will be allowed.
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