Chadha v. Canada (Minister of Citizenship and
Immigration)
Between
Rashpal Singh Chadha, Manpinder Kaur and Ishika Kaur Chadha,
Applicants, and
The Minister of Citizenship and Immigration, Respondent
Applicants, and
The Minister of Citizenship and Immigration, Respondent
[2013] F.C.J. No. 87
2013 FC 105
Docket IMM-3727-12
Federal Court
Toronto, Ontario
Russell J.
Heard: January 9, 2013.
Judgment: January 31, 2013.
Docket IMM-3727-12
Federal Court
Toronto, Ontario
Russell J.
Heard: January 9, 2013.
Judgment: January 31, 2013.
(51 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 RUSSELL J.:-- This is an application under
subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c. 27 (Act) for judicial
review of the decision of a Visa Officer (Officer) of the High Commission of
Canada in London, United Kingdom, dated 16 March 2012 (Decision), which refused
the Applicant's application for permanent residence in Canada as a member of
the Federal Skilled Worker class.
BACKGROUND
2 The
Principle Applicant (Applicant) is a 45-year-old citizen of India and a
resident of Kuwait. The Secondary Applicants are his wife and daughter. The
Applicant submitted an application for Permanent Residence as a Federal Skilled
Worker on 21 April 2010 based on his professional qualifications as an
Accountant. The Centralized Intake Office (CIO) conducted an initial assessment
of his application, and then transferred it to the Officer for final
determination. The Applicant received notice of this transfer by way of letter
dated 16 July 2010.
3 The
Applicant submitted his application under the National Occupation
Classification code (NOC) 1111 - Financial Auditors and Accountants. NOC 1111
states that Accountants perform some or all of the following main duties:
Plan, set up and
administer accounting systems and prepare financial information for an
individual, department, company or other establishment;
Examine accounting
records and prepare financial statements and reports;
Develop and maintain
cost finding, reporting and internal control procedures;
Examine financial
accounts and records and prepare income tax returns from accounting
records;
Analyze financial
statements and reports and provide financial, business and tax advice;
May act as a trustee in
bankruptcy proceedings;
May supervise and train
articling students, other accountants or administrative technicians.
4 Along
with his application, the Applicant submitted a Schedule 3 listing duties he
performed during his work experience:
Reconciling and
maintaining balance sheet accounts;
Auditing data sheets of
raw material used to manufacture oil into finished product;
Preparing monthly
payroll and daily wage reports;
Maintaining and
following up on maintenance contracts with clients;
Handling accounts
receivable;
Preparing collection
analysis reports;
Handling cash flow and
bank reconciliations;
Supervising annual
stock audits.
5 The
Applicant also submitted letters from his previous employers: Kuwait National
Lube Oil Co., Al-Sundus Gen. Trading & Cont. Est., Kuwait Oxygen &
Acetylene Company, and the United Fisheries of Kuwait. These letters all spoke
highly of the Applicant and confirmed his employment, but none of them
discussed the duties that he performed as an employee.
6 After
receiving the 16 July 2010 letter, the Applicant heard nothing until he
received a letter dated 16 March 2012 informing him that his application was
not eligible for further processing.
DECISION UNDER REVIEW
7 The
Decision in this case consists of the letter dated 16 March 2012 (Refusal
Letter), as well as the Computer Assisted Immigration Processing System (CAIPS)
Notes made by the Officer.
8 The
Officer completed an assessment of the application and found that it was not
eligible because the "information submitted to support this application is
insufficient to substantiate that [the] applicant meets the occupational
description and/or a substantial number of the main duties of the NOC
Code."
9 The
Officer found that the main duties listed by the Applicant in Schedule 3 did
not reflect the main duties of NOC 1111, and the employment letters did not
actually describe his past jobs. Therefore, the Officer was not satisfied that
the Applicant had one year of job experience in this occupation, and found that
the application was not eligible for further processing.
ISSUES
10 The
Applicant raises the following issue in this application:
Whether the Officer
erred by concluding that the Applicant did not meet the requirements of NOC
1111, when it is clear the Applicant did;
Whether the Officer
breached the duty of fairness owed to the Applicant by failing to give him an
opportunity to respond to the Officer's concerns.
STANDARD OF REVIEW
11 The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 held that a standard of review analysis need not be
conducted in every instance. Instead, where the standard of review applicable
to a particular question before the court is well-settled by past
jurisprudence, the reviewing court may adopt that standard of review. Only
where this search proves fruitless must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis.
12 The
first issue involves an evaluation of the Officer's conclusion that the
Applicant was ineligible under the Federal Skilled Worker category. The case
law has established that this is reviewable on a reasonableness standard (Zhong v Canada (Minister of Citizenship and Immigration), 2011 FC 980 at paragraph 11; Malik v Canada
(Minister of Citizenship and Immigration), 2009 FC 1283
at paragraph 22).
13 When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with "the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law." See Dunsmuir, above, at paragraph 47, and Canada
(Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph 59. Put
another way, the Court should intervene only if the Decision was unreasonable
in the sense that it falls outside the "range of possible, acceptable
outcomes which are defensible in respect of the facts and law."
14 In
his arguments, the Applicant also takes issue with the adequacy of the
Officer's reasons. He submits that this is a matter of procedural fairness.
However, in Newfoundland and Labrador Nurses' Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62
[Newfoundland Nurses], the
Supreme Court of Canada held at paragraph 14 that the adequacy of reasons is
not a stand-alone basis for quashing a decision. Rather, "the reasons must
be read together with the outcome and serve the purpose of showing whether the
result falls within a range of possible outcomes." Thus, the adequacy of
the reasons will be analysed along with the reasonableness of the Decision as a
whole.
15 The
second issue is a matter of procedural fairness (Kuhathasan
v Canada (Minister of Citizenship and Immigration),
2008 FC 457 [Kuhathasan] at
paragraph 18). As stated by the Supreme Court of Canada in Canadian Union of Public Employees (C.U.P.E.) v Ontario (Minister of
Labour), [2003] 1 SCR 539 at paragraph 100, "it is
for the courts, not the Minister, to provide the legal answer to procedural
fairness questions." Accordingly, the standard of review applicable to the
second issue is correctness.
STATUTORY PROVISIONS
16 The
following provisions of the Act are applicable in these proceedings:
· Application before entering Canada
· 11. (1) A foreign national must, before
entering Canada, apply to an officer for a visa or for any other document
required by the regulations. The visa or document may be issued if, following
an examination, the officer is satisfied that the foreign national is not
inadmissible and meets the requirements of this Act.
· [...]
· 87.3 (1) This section applies to applications
for visas or other documents made under subsection 11(1), other than those made
by persons referred to in subsection 99(2), to sponsorship applications made by
persons referred to in subsection 13(1), to applications for permanent resident
status under subsection 21(1) or temporary resident status under subsection
22(1) made by foreign nationals in Canada, to applications for work or study
permits and to requests under subsection 25(1) made by foreign nationals
outside Canada.
The processing of
applications and requests is to be conducted in a manner that, in the opinion
of the Minister, will best support the attainment of the immigration goals
established by the Government of Canada.
For the purposes of
subsection (2), the Minister may give instructions with respect to the
processing of applications and requests, including instructions
· (a) establishing
categories of applications or requests to which the instructions apply;
· (a.1) establishing
conditions, by category or otherwise, that must be met before or during the
processing of an application or request;
· (b) establishing an
order, by category or otherwise, for the processing of applications or
requests;
· (c) setting the number
of applications or requests, by category or otherwise, to be processed in any
year; and
· (d) providing for the
disposition of applications and requests, including those made subsequent to
the first application or request.
An instruction may, if
it so provides, apply in respect of pending applications or requests that are
made before the day on which the instruction takes effect.
For greater certainty,
an instruction given under paragraph (3)(c) may provide that the number of applications or requests, by
category or otherwise, to be processed in any year be set at zero.
Officers and persons
authorized to exercise the powers of the Minister under section 25 shall comply
with any instructions before processing an application or request or when
processing one. If an application or request is not processed, it may be
retained, returned or otherwise disposed of in accordance with the instructions
of the Minister.
* * *
· Visa et documents
· 11. (1) L'étranger doit, préalablement à son
entrée au Canada, demander à l'agent les visa et autres documents requis par
règlement. L'agent peut les délivrer sur preuve, à la suite d'un contrôle, que
l'étranger n'est pas interdit de territoire et se conforme à la présente
loi.
· [...]
· 87.3 (1) Le présent article s'applique aux
demandes de visa et autres documents visées au paragraphe 11(1) -- sauf à celle
faite par la personne visée au paragraphe 99(2) -- , aux demandes de parrainage
faites par une personne visée au paragraphe 13(1), aux demandes de statut de
résident permanent visées au paragraphe 21(1) ou de résident temporaire visées
au paragraphe 22(1) faites par un étranger se trouvant au Canada, aux demandes
de permis de travail ou d'études ainsi qu'aux demandes prévues au paragraphe
25(1) faites par un étranger se trouvant hors du Canada.
Le traitement des
demandes se fait de la manière qui, selon le ministre, est la plus susceptible
d'aider l'atteinte des objectifs fixés pour l'immigration par le gouvernement
fédéral.
Pour l'application du
paragraphe (2), le ministre peut donner des instructions sur le traitement des
demandes, notamment des instructions :
· a) prévoyant les groupes de demandes à
l'égard desquels s'appliquent les instructions;
· a.1) prévoyant des conditions, notamment par
groupe, à remplir en vue du traitement des demandes ou lors de celui-ci;
· b) prévoyant l'ordre de traitement des
demandes, notamment par groupe;
· c) précisant le nombre de demandes à traiter
par an, notamment par groupe;
· d) régissant la disposition des demandes dont
celles faites de nouveau.
Les instructions
peuvent, lorsqu'elles le prévoient, s'appliquer à l'égard des demandes
pendantes faites avant la date où elles prennent effet.
Il est entendu que les
instructions données en vertu de l'alinéa (3)c) peuvent préciser que le nombre de demandes à traiter par an,
notamment par groupe, est de zéro.
L'agent -- ou la
personne habilitée à exercer les pouvoirs du ministre prévus à l'article 25 --
est tenu de se conformer aux instructions avant et pendant le traitement de la
demande; s'il ne procède pas au traitement de la demande, il peut, conformément
aux instructions du ministre, la retenir, la retourner ou en disposer.
17 The
following provisions of the Regulations are applicable in this proceeding:
· Experience (21 points)
(1) Up to a maximum of
21 points shall be awarded to a skilled worker for full-time work experience,
or the full-time equivalent for part-time work experience, within the 10 years
preceding the date of their application, as follows:
[...]
Occupational experience
For the purposes of
subsection (1), a skilled worker is considered to have experience in an
occupation, regardless of whether they meet the employment requirements of the
occupation as set out in the occupational descriptions of the National Occupational Classification, if they
performed
· (a) the actions
described in the lead statement for the occupation as set out in the
occupational descriptions of the National Occupational
Classification; and
· (b) at least a
substantial number of the main duties of the occupation as set out in the
occupational descriptions of the National Occupational
Classification, including all the essential
duties.
· Expérience (21 points)
(1) Un maximum de 21
points d'appréciation sont attribués au travailleur qualifié en fonction du
nombre d'années d'expérience de travail à temps plein, ou l'équivalent temps
plein du nombre d'années d'expérience de travail à temps partiel, au cours des
dix années qui ont précédé la date de présentation de la demande, selon la
grille suivante :
[...]
Expérience professionnelle
Pour l'application du
paragraphe (1), le travailleur qualifié, indépendamment du fait qu'il satisfait
ou non aux conditions d'accès établies à l'égard d'une profession ou d'un
métier figurant dans les description des professions de la Classification nationale des professions, est
considéré comme ayant acquis de l'expérience dans la profession ou le métier
:
· a) s'il a accompli l'ensemble des tâches
figurant dans l'énoncé principal établi pour la profession ou le métier dans
les descriptions des professions de cette classification;
· b) s'il a exercé une partie appréciable des
fonctions principales de la profession ou du métier figurant dans les
descriptions des professions de cette classification, notamment toutes les
fonctions essentielles.
18 On
15 June 2009, Citizenship and Immigration Canada issued the publicly available
Operational Bulletin (OB 120). OB 120 is meant to provide "visa officers
with additional guidance on making final determinations of eligibility for
processing of federal skilled workers (FSW) files referred from the Centralized
Intake Office in Sydney." It states:
· Insufficient evidence of meeting Ministerial Instructions: Visa
officers will assess the application on the basis of the information on file.
If the applicant's submission is insufficient to determine that the application
is eligible for processing, a negative determination of eligibility should be
rendered.
· [...]
· For SW1 (one of the 38 occupations listed in the MI), review the
documents related to work experience. These documents should include those
listed in the Appendix A document checklist of the visa office specific forms.
They should include sufficient detail to support the claim of one year of
continuous work experience or equivalent paid work experience in the occupation
in the last 10 years. Documents lacking sufficient information about the
employer or, containing only vague descriptions of duties and periods of
employment, should be given less weight. Descriptions of duties taken verbatim
from the NOC should be regarded as self-serving. Presented with such documents,
visa officers may question whether they accurately describe an applicant's
experience. A document that lacks sufficient detail to permit eventual
verification and a credible description of the applicant's experience is
unlikely to satisfy an officer of an applicant's eligibility.
19 The
Appendix A Checklist to the Federal Skilled Worker application form is also
relevant to this application. Page A-4 of that document says:
WORK EXPERIENCE
[...]
Letters must include all the following
information:
the specific period of
your employment with the company
the positions you have
held during the period of employment and the time spent in each position
your main
responsibilities and duties in each position
your total annual
salary plus benefits
the signature of your
immediate supervisor or the personnel officer of the company
a business card of the
person signing
ARGUMENTS
The Applicant
The Reasonableness of the Decision
The Applicant submits that having worked as an
accountant for 13 years, it is obvious he would have performed the required
duties of the profession. Additionally, the duties he performed were explicitly
detailed in the Schedule 3 portion of his application. The Applicant also
submits that the CIO would not have forwarded his application to the Officer
for further review if, on the face of it, it did not appear that the Applicant
met the requirements of NOC 1111.
20 The
Applicant states that there is no explanation offered in the Decision as to why
the Officer did not think he met the requirements of NOC 1111, considering the
evidence that was before him or her. There is no factual foundation for the
Officer's conclusions, and the reasons are lacking in analysis or explanation.
The Officer's reasons fail to explain the basis for the conclusions reached in
the Decision, and this is a reviewable error (Canada
(Minister of Citizenship and Immigration) v Jeizan,
2010 FC 323).
Procedural Fairness
21 The
Applicant also submits that the Officer did not reach the Decision in
accordance with principles of procedural fairness and failed to provide the
Applicant with an opportunity to address his or her concerns. As Justice
Richard Mosley said at paragraph 22 of Rukmangathan v
Canada (Minister of Citizenship and Immigration), 2004
FC 284:
· It is well established that in the context of visa officer decisions
procedural fairness requires that an applicant be given an opportunity to
respond to extrinsic evidence relied upon by the visa officer and to be
apprised of the officer's concerns arising therefrom: Muliadi, supra. In my view,
the Federal Court of Appeal's endorsement in Muliadi, supra, of Lord
Parker's comments in In re H.K. (An Infant), [1967] 2 Q.B. 617, indicates that the duty of fairness may require
immigration officials to inform applicants of their concerns with applications
so that an applicant may have a chance to "disabuse" an officer of
such concerns, even where such concerns arise from evidence tendered by the
applicant. Other decisions of this court support this interpretation of Muliadi, supra. See, for example, Fong v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 705 (T.D.), John v. Canada
(Minister of Citizenship and Immigration), [2003]
F.C.J. No. 350 (T.D.)(QL) and Cornea v. Canada (Minister
of Citizenship and Immigration) (2003), 30 Imm. L.R.
(3d) 38 (F.C.T.D.), where it had been held that a visa officer should apprise
an applicant at an interview of her negative impressions of evidence tendered
by the applicant.
22 In
Hassani v Canada (Minister of Citizenship and
Immigration), 2006 FC 1283 at paragraph 24:
· Having reviewed the factual context of the cases cited above, it is
clear that where a concern arises directly from the requirements of the
legislation or related regulations, a visa officer will not be under a duty to
provide an opportunity for the applicant to address his or her concerns. Where
however the issue is not one that arises in this context, such a duty may
arise. This is often the case where the credibility, accuracy or genuine nature
of information submitted by the applicant in support of their application is
the basis of the visa officer's concern, as was the case in Rukmangathan, and in John and Cornea cited by
the Court in Rukmangathan,
above.
23 Also,
in Gedeon v Canada (Minister of Citizenship and
Immigration), 2004 FC 1245 at paragraphs 101-102:
· Although the Applicant has the burden of proving that she qualifies
to come to Canada, this does not relieve the Visa Officer of the duty to act
fairly. This Court has stated on numerous occasions that, while a decision
maker is not required to refer explicitly, or to analyse, every item before it
in evidence that tends to negate a finding of fact, "much depends upon the
relevancy and cogency of the evidence, and upon its importance to the ultimate
decision on the fact to which the evidence relates," to borrow the words
of Mr. Justice Rouleau in Toth v. Canada (Minister of
Citizenship and Immigration), [2002] F.C.J. No. 1518
(T.D.).
· In the present case, the Officer should have dealt clearly in the
Decision or the CAIPS notes with his reasons for rejecting the employer's
description of the Applicant's experience and responsibilities in Lebanon and should
have given the Applicant the opportunity to address the concerns he had in this
regard. Not to do so was a reviewable error.
24 The
Applicant submits that if the Officer had concerns about the evidence in the
application, he or she had a duty to give the Applicant an opportunity to
respond. The Applicant was not aware there was a problem with the
documentation, and none of the Officer's concerns were raised with the
Applicant.
25 As
stated in Liao v Canada (Minister of Citizenship and
Immigration), [2000] FCJ No 1926 at paragraph 17, the
"duty to inform the applicant will be fulfilled if the visa officer adopts
an appropriate line of questioning or makes reasonable inquiries which give the
applicant the opportunity to respond to the visa officer's concerns."
26 The
Applicant submits that his case is similar to the situation in Kuhathasan, above, where the Court said at
paragraphs 39-41:
· In considering procedural fairness issues in the present case, I
think it has to be borne in mind that the Applicants were dealt with under
somewhat exceptional circumstances and that normal procedures had to be
adjusted. I see no real evidence that the Applicants had access to the
information they needed to satisfy all of the requirements under the Act. The
Respondent's web-site instructions were published to tell applicants and those
helping them how to apply. Those instructions told the Applicants to use the
Federal Skilled Worker application form and also asked for a letter from a
family member in Canada offering financial assistance.
· The fact is that the Applicants did all they were asked to do and
complied with the instructions that were posted on the web-site. The Officer's
principal concern, as shown in the Decision, was general financial viability,
although the documentation suggests that there were also peripheral credibility
issues regarding the financial capabilities of the Canadian relative.
· Under the specific facts in this case, I cannot see how the
Applicants could have anticipated and addressed either the financial viability
issue, the peripheral credibility issues, or possible language problems in
advance. They did what they were told to do in accordance with the instructions
on the web-site. General financial viability was obviously a crucial issue in
the Decision. On these facts, fairness required the Officer to give the
Applicants some kind of opportunity to address her concerns. There is no
evidence before me to suggest that, had the Applicants been given such an
opportunity, they could not have satisfied the Officer's concerns. The
Principal Applicant is an established professional and he has also indicated
various other connections and resources he can tap into for financial
support.
27 The
Applicant also relies upon Sekhon v Canada (Minister of
Citizenship and Immigration), 2012 FC 700 where Justice
James O'Reilly had the following to say at paragraphs 12-14:
· Mr. Sekhon's submissions were directed to the officer's concerns
about whether the school was carrying on business at the stated address. The
parents' letters and photographs were aimed at meeting those concerns, and
further documentation was provided regarding the school's finances. But Mr.
Sekhon could not have met the officer's other unstated concerns because he was
not made aware of them.
· Accordingly, I find that Mr. Sekhon was not given a fair opportunity
to meet the officer's concerns about the shortcomings of his application.
· The officer did not give Mr. Sekhon a chance to meet her real
concerns about his application. Therefore, he was not treated fairly.
Accordingly, I must allow this application for judicial review and order a
reassessment of Mr. Sekhon's application by another officer...
28 The
Applicant submits that, based on the above, the Officer had a duty to advise
the Applicant of the problems with the application and give him an opportunity
to respond. As this was not done, the Applicant's rights of procedural fairness
were breached.
The Respondent
29 On
29 November 2008, the Government of Canada published in the Canada Gazette instructions issued under
subsection 87.3 of the Act that in order to have an application processed, it
must first be determined whether an application is eligible for processing. On
15 June 2009, Citizenship and Immigration Canada issued the publicly available
Operational Bulletin 120 (OB 120) that provides "visa officers with
additional guidance on making final determinations of eligibility for
processing of federal skilled worker (FSW) files referred from the Centralized
Intake Office in Sydney."
The Reasonableness of the Decision
30 The
Court has established that the onus is on the Applicant to submit a clear and
complete application, and to satisfy the Officer that he has met all the
requirements of his application (Prasad v Canada
(Minister of Citizenship and Immigration), [1996] FCJ
No 453 (TD)). There is no general obligation on visa officers to request
clarification from an applicant (Lam v Canada (Minister
of Citizenship and Immigration), [1998] FCJ No 1239).
31 In
this case, the Applicant provided five reference letters, none of which
described the duties actually performed by him. Therefore, the Respondent
submits it was open to the Officer to find that the Applicant had not
demonstrated that he performed the duties described in the lead statement of
NOC 1111.
32 The
Officer did not ignore evidence. The Applicant's documentary evidence was
specifically considered, including his Schedule 3, and found to be insufficient
to establish that he had the requisite experience under NOC 1111. The
Respondent submits that in light of OB 120, above, and the concerns the Officer
had with the letters submitted by the Applicant, this was a reasonable finding.
It was open to the Officer to find that there was insufficient evidence to
demonstrate the Applicant's work experience (Elisha v
Canada (Minister of Citizenship and Immigration), 2012
FC 520).
33 The
Court said at paragraphs 9-10 of Rodrigues v Canada
(Minister of Citizenship and Immigration), 2009 FC 111:
· In the Federal Court of Appeal's decision in Noman
v. Canada (Minister of Citizenship and Immigration),
[2002] F.C.J. No. 1568, 2002 FCT 1169, while the Court outlined that an
applicant was not required to perform all of the main duties in a NOC job
category; they did require that an applicant perform a few -- meaning more than
one.
· The real function of the visa officer is to determine what is the
pith and substance of the work performed by an applicant. Tangential
performance of one or more functions under one or more job categories does not
convert the job or the functions from one NOC category to another.
34 The
Applicant failed to satisfy the Officer that he had the requisite experience
under NOC 111, and has not demonstrated any errors in the Officer's Decision.
35 Further,
contrary to the Applicant's submissions, the Respondent submits that the
Officer did provide reasons for the Decision (Newfoundland
Nurses, above, at paragraphs 14-23). In the CAIPS notes,
the Officer explained that he or she was not satisfied that the Applicant had
the requisite work experience.
Procedural Fairness
36 The
Respondent points out that procedural fairness in the context of a permanent
residence application is at the low end of the spectrum (Patel v Canada (Minister of Citizenship and Immigration), 2002 FCA 55 at paragraph 10) and the Officer was not under a duty
to provide the Applicant with an opportunity to address his or her concerns
with the application.
37 In
deciding what the duty of fairness entails, the Court must be careful to
balance the requirements of fairness with the need of the administrative
immigration process in question (Khan v Canada (Minister
of Citizenship and Immigration), 2001 FCA 345 at
paragraphs 30-32). This is an administrative decision, and thus the duty of
fairness is more limited than one involving a quasi-judicial tribunal (Khan).
38 The
Officer is under no obligation to provide a running score to the Applicant of
the weaknesses in his application (Kamchibekov v Canada
(Minister of Citizenship and Immigration), 2011 FC 1411
at paragraph 25). The question of whether the Applicant has the relevant
experience required for the profession in which he claims to be a skilled
worker is based directly on the requirements of the Act and its Regulations (Chen v Canada (Minister of Citizenship and Immigration), 2011 FC 1279 at paragraphs 20-22). Thus, the Respondent submits
that the Officer was not required to provide the Applicant with an opportunity
to respond to the Officer's concerns, just as he want not entitled to an
interview to remedy his own shortcomings (Kaur v Canada
(Minister of Citizenship and Immigration), 2010 FC
442).
The Applicant's Reply
39 The
Applicant maintains that the deficiency in the Officer's reasons constitutes a
breach of procedural fairness. The Applicant further maintains that the letters
indicate that he held the position of accountant for years, and thus he must
have performed the duties listed in NOC 1111 - this was ignored by the Officer.
The Applicant says that he could not have maintained his employment as an
accountant for 15 years without performing some or all of the duties outlined
in the Schedule 3.
40 The
Applicant further maintains that the Officer did have a duty to give him an
opportunity to address any concerns with his application. This is not a case
where the Applicant failed to adduce sufficient evidence; the Applicant adduced
the evidence and the Officer had concerns with it. The Applicant submits that
the jurisprudence put forward in his arguments supports this position.
ANALYSIS
41 As
the CAIPS notes make clear, the reasons why the application was refused was
because the Officer was not satisfied that the Applicant had provided
sufficient evidence of having one year of experience in NOC 1111. The Officer
was not satisfied that the Applicant had performed the actions described in the
lead statement as set out in the occupation description for NOC 1111 or that
the Applicant had performed all of the essential duties and a substantial
number of the main duties as set out in the occupational descriptions for NOC
1111. The Officer was not satisfied that the main duties performed by the
Applicant in his employment reflected the main duties set out in NOC 1111. The
Officer found that the employment letters submitted by the Applicant in support
of his application did not give any descriptions of the duties performed by the
Applicant in these jobs. In other words, the application was deficient and did
not contain the information that the Applicant was instructed to provide. The
Applicant's application was determined to be ineligible for processing.
42 The
Decision was made in accordance with the relevant Ministerial Instructions in
the Canada Gazette and with
Operational Bulletin 120 which are public documents and available to
applicants, as well as Regulation 80(3). The Applicant appears to think that
the deficiencies in his application (i.e. his failure to provide employer's
letters that comply with the mandated requirements and details) can be
disregarded and that his application should have been assessed on the basis of
what he thinks was sufficient evidence of his past experience.
43 As
Justice Yvon Pinard confirmed in Kamchibekov, above, at paragraph 18:
· The respondent is right to emphasize that we are in the context of
an eligibility determination where visa officers are told to assess an
applicant's application as-is and proceed directly to a final determination of
eligibility in a timely fashion (see Operational Bulletin 120, above).
Therefore, the officer's decision is consistent with these guidelines. The
applicant has not established that the officer erred in considering the
evidence before him.
44 In
the present case, the Applicant provided an incomplete and deficient
application even though he was fully aware, or reasonably ought to have been,
of what was required. Justice Richard Mosley's words in Elisha, above, at paragraphs 10-13, are instructive:
· The applicant was provided with specific instructions as to how to
complete her application. These are set out in the Overseas Processing Manual
OP 6 and the Visa Office Specific Instructions, Buffalo, dated November 2010.
The instructions include requirements for the information to be included in the
reference letters provided by employers. As the employment letters did not
contain the necessary information, the applicant sought to rectify the deficit
by providing a written explanation. In such cases, the Buffalo instructions
state, the applicant must also provide documentation such as employment
contracts, work descriptions and performance appraisals describing job duties
to support the claim to relevant employment.
· Here, the applicant did not provide any supporting documentation in
relation to her work at the New York Presbyterian Hospital, other than her
identity card, and her employment at the Duke University Hospital.
· The onus was on the applicant to file her application with all
relevant supporting documentation and to provide sufficient credible evidence
in support: Karanja v Canada (Minister of Citizenship and Immigration), 2006 FC
574 at para 8; and Oladipo v Canada (Minister of Citizenship and Immigration),
2008 FC 366 at para 24. She must put her "best case forward". That
was simply not done.
· In the result, the decision to dismiss the application was well
within the range of acceptable outcomes defensible in respect of the facts and
law: Dunsmuir v New Brunswick, 2008 SCC 90 at para 47.
45 Given
the materials submitted by the Applicant and the relevant assessment
instructions, I cannot say it was unreasonable for the Officer to conclude that
the Applicant had not demonstrated that he had performed the main duties set
out in NOC 1111. The Officer gives full reasons for this conclusion, and there
is no indication that the Officer ignored any of the evidence in the
Applicant's submissions.
46 As
regards any procedural fairness requirement, I think the Respondent correctly
states the law on this matter. The Officer was not required to put any concerns
to the Applicant in the present case. The Officer found that the documentation
submitted by the Applicant was deficient and there was insufficient evidence to
demonstrate that the Applicant had the one-year work experience for the NOC
code under which he applied.
47 The
content of procedural fairness is variable and contextual. In deciding what the
duty of fairness entails, with respect to visa applicants, the Courts have been
careful to balance the requirements of fairness with the needs of the
administrative immigration process in question. See Baker
v Canada (Minister of Citizenship and Immigration),
[1999] 2 SCR 817, paragraph 21; Patel, above, at paragraph 10; and Khan, above, at paragraphs 22, 30-32.
48 The
duty of fairness in this case, involving an administrative decision-maker, is
more limited than in one involving a quasi-judicial tribunal where the
obligation to confront an applicant with concerns may be more stringent. See Khan, above, paragraphs 31-32. The Federal
Court has held that the Officer is under no obligation to provide a running
score of weaknesses in an applicant's application. See Kamchibekov, above, paragraph 25; Thandal v Canada
(Minister of Citizenship and Immigration) 2008 FC 489,
paragraph 9; Nabin v Canada (Minister of Citizenship and
Immigration), 2008 FC 200, paragraphs 7-10.
49 The
question of whether the Applicant has the relevant experience required for the
profession in which he claims to be a skilled worker is based directly on the
requirements of the Act and its Regulations. See Chen, above, at paragraphs 20-22. Thus, the Officer was not required to
provide the Applicant with an opportunity to respond to the Officer's concerns,
as he was not entitled to an interview to remedy his own shortcomings. See Kamchibekov, above, at paragraph 26; and Kaur, above.
50 This
was not a case about the credibility or accuracy of the Applicant's
information, as the Applicant alleges. The Applicant simply failed to provide
an application in accordance with the relevant instructions, and the Officer
properly followed OB 120.
51 Neither
party proposed a serious question of general importance for certification.
JUDGMENT
THIS COURT'S JUDGMENT is that
The application is
dismissed.
There is no question
for certification.
RUSSELL J
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