Ismaili v. Canada (Minister of Citizenship and
Immigration)
Between
Al Ismaili and Sultan Hilal Majid, Applicant, and
The Minister of Citizenship and Immigration, Respondent
The Minister of Citizenship and Immigration, Respondent
[2012] F.C.J. No. 381
2012 FC 351
Docket IMM-2466-11
Federal Court
Montréal, Quebec
Bédard J.
Heard: February 28, 2012.
Judgment: March 22, 2012.
Docket IMM-2466-11
Federal Court
Montréal, Quebec
Bédard J.
Heard: February 28, 2012.
Judgment: March 22, 2012.
(25 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 BÉDARD J.:-- The applicant is a citizen of
Oman. He filed an application for a permanent resident visa to Canada as a
member of the Federal Skilled Worker class. His application was refused on
April 4, 2011, because the adjudicating immigration officer found that he
provided insufficient details about his employment.
2 This
is an application for judicial review of that decision pursuant to section 72
of the Immigration and Refugee Protection Act, SC 2001, c 27. For the following reasons the application is
dismissed.
3 The
applicant submitted an application for permanent residence in Canada as a
member of the Federal Skilled Worker class on September 17, 2007. He included
his wife and child in his application.
4 He
stated in his application that he was employed as a pilot for Gulf Air.
According to the National Occupation Classification (NOC), the occupation of
pilot is classified under NOC 2271 and categorized under Skill Level B.
5 On
March 11, 2010, the High Commission of Canada in London sent a letter to the applicant
informing him that his application was being transferred to the Case Processing
Pilot in Ottawa, as part of the Government of Canada's Action Plan for Faster
Immigration, implemented to expedite processing times for certain types of
applications. This letter also requested several documents from the applicant,
including an updated visa application form and documents substantiating his
work experience. With respect to the latter, the letter specified the
following:
· Provide employment letters, contracts, pay-slips and job descriptions endorsed by your employer's personnel department covering the period from 10 years prior to your application date
until today. Please make sure that the employment
letters have details of your duties and clearly show the
start and end dates (if relevant) of your employment. CPP-O is under no
obligation to further request detailed employment letters, and your work
experience review will be based solely on the documents initially
provided.
· [Emphasis added]
6 In
July 2010, the applicant submitted several documents, including a letter from
his employer, Gulf Air, dated June 21, 2010, attesting that he had been
employed by Gulf Air since April 19, 1992. The letter stated that the applicant
works as a captain in the Airbus Fleet Management.
7 In
Schedule 3 of his updated application, the applicant indicated, in the section
dealing with work experience, that he had been employed as a pilot since April
1992, and he described his main duties as follows:
Fly aircrafts fro [sic] Gulf airlines to transport passengers and
freight;
Direct activities of
aircraft crew during flight, as captain of aircraft
Co-pilot aircraft and
perform captain's duties of required, as first officer
Train pilots to use new
equipment
8 The
immigration officer decided that the applicant did not meet the definition of a
Federal Skilled Worker pursuant to paragraphs 75(2)(b) and (c) of the Immigration and Refugee Protection Regulations,
SORS/2002-227 [the Regulations]. The immigration officer indicated that she was
not satisfied that the applicant met the requirements of the Regulations
because he failed to provide sufficient details about his employment, as
requested. The immigration officer explained her reasoning as follows:
· ... The employment confirmation from Gulf Air did not give any job
description or a description of the duties performed for the position. There is
insufficient information on the document provided by your employer to satisfy
me that you have performed the main duties of the position described. You were
asked, by letter from our London office dated March 11, 2010, to provide your
work experience documents, including details of your duties. That same email
informed you that failure to provide these documents would result in an
assessment of your application based on the documents initially on file. After
reviewing all documents provided, I am not satisfied you have performed the
actions as set out in the lead statements of the NOC stated, and that you have
performed a substantial number of the main duties of the position as described
in the NOC. As a result, I am not satisfied that you meet the minimum
requirements to apply as a skilled worker as stated in R75.
9 This
case raises the issue of the reasonableness of the immigration officer's
decision.
10 It
is well established that decisions made by immigration officers regarding
applicants' eligibility for permanent residence in Canada as members of the
Federal Skilled Worker class involve an exercise of discretion and attract the
reasonableness standard of review (Aramouni v Canada
(Minister of Citizenship and Immigration), 2011 FC 430
at para 15 (available on CanLII); Mihura Torres v Canada
(Minister of Citizenship and Immigration), 2011 FC 818
at para 26 (available on CanLII) [Mihura Torres]; Hoang v Canada (Minister of Citizenship and
Immigration), 2011 FC 545 at para 9, 98 Imm LR (3d) 247;
Veryamani v Canada (Minister of Citizenship and
Immigration), 2010 FC 1268 at para 26, 379 FTR 153; Trivedi v Canada (Minister of Citizenship and Immigration), 2010 FC 422 at para 17 (available on CanLII); Malik v Canada (Minister of Citizenship and Immigration), 2009 FC 1283 at para 22 (available on CanLII) [Malik]; Roberts v
Canada (Minister of Citizenship and Immigration), 2009
FC 518 at para 15 (available CanLII)).
11 The
Court's role when reviewing a decision against the standard of reasonableness
is defined in Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 SCR 190:
· [47] ... A court conducting a review for reasonableness inquires into
the qualities that make a decision reasonable, referring both to the process of
articulating the reasons and to outcomes. In judicial review, reasonableness is
concerned mostly with 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.
12 The
applicant argues that the immigration officer fettered her discretion by
relying on departmental guidelines, as they are outlined in the March 11, 2010
letter. The applicant further alleges that the immigration officer refused his
application solely on the basis that he did not provide an employer's letter
that described the main duties of his job as a pilot. However, the legislation
and the Regulations do not specify the means by which one must establish that
an applicant exercises the main duties of an occupation and do not specifically
require employers' letters that include job descriptions. Accordingly, the
applicant submits that the immigration officer's decision is unreasonable.
13 The
applicant also argues that it was unreasonable for the immigration officer to
conclude that he had not satisfactorily established his main duties as a pilot
for Gulf Air. The applicant insists that there was no issue of credibility in
his case and that the evidence he submitted clearly established his main duties
as a pilot. First, he argues that the specific job duties of a pilot, and more
particularly of a captain, are obvious and an immigration officer is expected
to know what they are. Second, he alleges that the description of his main
duties in Schedule 3, combined with the confirmation letter provided by his
employer, was sufficient to establish that he genuinely works as a pilot for Gulf
Air and was also sufficient to establish his job duties.
14 The
respondent argues, for his part, that the onus was on the applicant to
establish that he met the requirements to be admitted to Canada as a Federal
Skilled Worker and that the request to submit detailed employers' letters for
the past 10 years, was explicitly outlined in the letter sent to him on March
11, 2010. The respondent argues that considering that the applicant did not
submit the documentation that was required of him, it was reasonable for the
immigration officer to conclude as she did.
15 The
respondent further argues that none of the documents provided by the applicant
list the main duties of his work as a pilot, nor do they provide a job
description. The respondent contends that the applicant simply copied and
pasted the job duties from NOC 2271 to his Schedule 3 form and that this was
not enough to satisfy his burden of proof. Rather, it was reasonable for the
immigration officer to expect objective evidence from the applicant's employer.
Without this evidence, the immigration officer was unable to assess whether the
applicant had experience relevant to the duties outlined in NOC 2271 and this
was sufficient to justify the finding that the applicant was ineligible for immigration
to Canada pursuant to subsection 75(2) of the Regulations.
16 A
Federal Skilled Worker is defined at subsection 75(2) of the Regulations:
A foreign national is a
skilled worker if
· (a) within the 10 years
preceding the date of their application for a permanent resident visa, they
have at least one year of continuous full-time employment experience, as
described in subsection 80(7), or the equivalent in continuous part-time
employment in one or more occupations, other than a restricted occupation, that
are listed in Skill Type 0 Management Occupations or Skill Level A or B of the National Occupational Classification
matrix;
· (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;
and
· (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..
* * *
Est un travailleur
qualifié l'étranger qui satisfait aux exigences suivantes :
· a) il a accumulé au moins une année continue
d'expérience de travail à temps plein au sens du paragraphe 80(7), ou
l'équivalent s'il travaille à temps partiel de façon continue, au cours des dix
années qui ont précédé la date de présentation de la demande de visa de
résident permanent, dans au moins une des professions appartenant aux genre de
compétence 0 Gestion ou niveaux de compétences A ou B de la matrice de la Classification nationale des professions --
exception faite des professions d'accès limité;
· 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 Pursuant
to this provision, a foreign national must have at least one year of full time
employment, or the equivalent within the past ten years, in one or more of
certain types of occupations. In addition, he or she must have performed the
actions described in the lead statement set out in the NOC for the occupation
in question, as well as a substantial number of the main duties set out in the
NOC. This requirement is coherent with the need to ensure that the duties that
an applicant performed for a position held in their country of origin,
correspond to the Canadian duties of the same occupation.
18 The
onus was on the applicant to establish that, within the past ten years, he
performed the actions described in the lead statement for the occupation of a
pilot as set out in NOC 2271 and that he performed a substantial number of the
main duties of this occupation for at least one year. (Mihura
Torres, above, at para 37; Kaur v
Canada (Minister of Citizenship and Immigration), 2010
FC 758, at para 30 (available on CanLII); Verma v Canada
(Minister of Citizenship and Immigration), 2003 FCT 136
at para 9, 120 ACWS (3d) 858). The applicant is responsible for supplying
enough supporting documents and evidence and he must put his best case forward
(Oladipo v. Canada (Minister of Citizenship and
Immigration) a, 2008 FC 366 at para 24, 166 ACWS (3d)
355a; Mihura Torres, above, at
para 40). The immigration officer is under no obligation to request further
clarification from the applicant if he or she finds there is not enough
evidence initially submitted (Sharma v Canada (Minister
of Citizenship and Immigration), 2009 FC 786 at para 8,
179 ACWS (3d) 912; Luongo v Canada (Citizenship and
Immigration), 2011 FC 618 at para 18 (available on
CanLII)).
19 In
order to evaluate admissibility, immigration officers need sufficient
information to assess an applicant's job experience. They also need to verify
the completeness and accuracy of the information that applicants submit with
their application. In that sense, it is reasonable to require, as a general
rule, that applicants provide corroborative third party information such as
employers' letters that include details about the applicants' duties and /or
job descriptions (Malik, above,
at para 33). These types of documents provide immigration officers with a
complete picture of an applicant's duties and responsibilities and allow them
to determine whether the duties performed by an applicant in his or her country
of origin are similar to the Canadian description of the given occupation. In some
cases, the information provided by employers also serves to confirm that an
applicant actually performed the actions and duties that he or she claims to
have performed.
20 In
this case, the applicant did not meet his evidentiary burden.
21 First,
in his description of his duties, the applicant limited himself to re-stating
the main duties of a pilot as described in the NOC, without providing any
further details about these duties. The applicant is asking the Court to infer,
from this very generic information provided by the applicant, that a person
employed as a captain for Gulf Air performs the same duties as those described
in NOC 2271. In my view, it is neither for the immigration officer nor for the
Court to make this inference. As mentioned above, the onus is on the applicant
to establish that he meets the criteria as a Federal Skilled Worker and he
failed to do so despite specific instructions on what types of documents are
required. In my view, the applicant failed to meet the evidentiary burden
required by subsection 75(2) of the Regulations because he did not provide
sufficient information about his job duties and responsibilities.
22 Second,
there is no doubt that the letter from the applicant's employer did not contain
all the information that was plainly required by the immigration officer in the
letter dated March 11, 2010. The employer's letter states only that the
applicant is employed as a captain in the Airbus Fleet Management. The letter
is silent as to the duties and responsibilities carried out by a captain in
Gulf Air's Airbus Fleet Management. In fact, the employer's letter does not
even include information about the activities of Air Gulf or its fleet.
23 The
applicant argues that the duties of a pilot are obvious and that the
immigration officer is expected to know what they are. This argument requires
that the immigration officer assume that a pilot for Gulf Air performs the
duties as described in NOC 2271. With respect, an immigration officer should
not determine whether an applicant's work experience corresponds to the lead
statement and main duties set out in the NOC for an occupation based on his
personal knowledge of an occupation or on the personal knowledge that an
applicant imputes to the immigration officer. Immigration officers must assess
applications based on the evidence that applicants put forward and not on their
own personal knowledge or assumptions. In my view, this is the only rigorous,
fair, cohesive and coherent approach to assessing whether an applicant has
performed the main duties of any position described in the NOC.
24 Finally,
the applicant faults the immigration officer for having relied on a general
guideline and argues that, in doing so, she fettered her discretion. I
disagree. I have already stated that it is reasonable to require information
from applicants' employers about the specific duties of an occupation. While I
acknowledge that immigration officers cannot treat administrative guidelines as
immutable law and that, sometimes, they need to apply them with nuances, I do
not consider that, in this case, the immigration officer fettered her
discretion. Considering the generic nature of the information provided by the
applicant, it was reasonable for her to require details from the applicant's
employer about his specific duties as a pilot. Furthermore, the applicant
offered no excuse for failing to provide the information and documents
requested of him; he did not allege that it was impossible for him to obtain
the requested information from his employer, nor did he provide any other
explanation.
25 In
conclusion, considering the generic nature of the evidence on file and the
applicant's failure to provide the documentation and information requested, I
find that it was reasonable for the immigration officer to conclude that she
was not satisfied that the applicant had established that he had performed the
main duties of a pilot. The immigration officer's reasons are clear and
reasonable and the outcome falls within the range of possible, acceptable
outcomes which are defensible in respect of the facts and law (Dunsmuir, above, at para 47). The parties did
not propose any question for certification and none arise in this case.
JUDGMENT
THIS COURT'S JUDGMENT is that the application for judicial review is dismissed.
There is no question for certification.
BÉDARD J.
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