Mansour v. Canada (Minister of Citizenship and
Immigration)
Between
Emad Ageeb Ekladious Mansour, Engy Fikry Boles Salamon, Sandy
Emad Ageeb Ekladious Mansour, Jolly Emad Ageeb Ekladious
Mansour, Applicants, and
The Minister of Citizenship and Immigration, Respondent
Emad Ageeb Ekladious Mansour, Jolly Emad Ageeb Ekladious
Mansour, Applicants, and
The Minister of Citizenship and Immigration, Respondent
[2013] F.C.J. No. 365
2013 FC 343
Docket IMM-4492-12
Federal Court
Toronto, Ontario
Strickland J.
Heard: March 20, 2013.
Judgment: April 5, 2013.
Docket IMM-4492-12
Federal Court
Toronto, Ontario
Strickland J.
Heard: March 20, 2013.
Judgment: April 5, 2013.
(35 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 STRICKLAND J.:-- This is an application for
judicial review commenced pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC
2001, c 27 (IRPA). It seeks
review of a decision made by a visa officer (Visa Officer) refusing an
application for permanent residence in Canada as a federal skilled worker made
pursuant to subsection 12(2) of the IRPA and section 75 of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (IRP Regulations).
Facts
2 The
Applicant and his family, the co-applicants, are Egyptian citizens. The
Applicant holds a Bachelor's Degree in Civil Engineering and a Diploma in
Metallic Structures Engineering, both from Cairo University. He also completed
an American Society of Civil Engineering one year Construction Project
Management - Certified Program offered in Cairo.
3 In
October 2010, the Applicant applied for permanent residence in Canada under the
skilled worker category as a Construction Manager, National Occupational
Classification Code: 0711 (NOC 0711). On December 13, 2011, the Canadian
Embassy in Cairo requested updated information which the Applicant submitted on
December 27, 2011. On February 29, 2012, the Applicant received a letter from
the Visa Officer refusing his application on the basis that he did not provide
satisfactory evidence that he had performed the actions described in the lead
statement for the subject occupation as set out in NOC 0711 (Decision).
4 Upon
review of the Decision, the Applicant formed the opinion that the Visa Officer
did not consider an employment letter that he had included in his application.
He submits that he resubmitted the letter on April 24, 2012 and, having
received no response, did so again on May 9, 2012. As he still received no
response, he commenced this application for judicial review.
Decision under Review
5 The
Decision states that the Visa Officer had completed his assessment of the
Applicant's application for permanent residence in Canada as a federal skilled
worker and determined that the Applicant is not eligible for processing in the
category of NOC 0711, Construction Manager. The Visa Officer states that the
Applicant did not provide satisfactory evidence that he had performed the
actions described in the lead statement for the occupation as set out in the
occupational descriptions. He was therefore not satisfied that the Applicant is
a Construction Manager NOC 0711.
6 Further,
as the Applicant did not provide satisfactory evidence that he had the
necessary work experience, he did not meet the requirements of the Ministerial
Instructions. These were published in the Canada Gazette on November 28, 2008
and specify that only certain applicants, including those who have work
experience in certain listed occupations, are eligible to be processed in the
federal skilled worker class.
7 Computer
Assisted Immigration Processing System notes (CAIPS Notes) accompany the
Decision. The CAIPS Notes original file assessment entry on August 9, 2010 by
the service delivery agent states the following:
·
Assessed Eligible NOC 0711.
Duties performed by PA correspond to Lead Statement and/or Main Duties for this
NOC.
·
PA has a minimum of one year of
work experience within the past 10 years in eligible NOC Code 0711.
·
PA is therefore recommended to
the visa office for a final determination of eligibility for processing
·
Letter emailed to address(es)
above requesting PA to submit full application to CAIRO within 120 days.
This was followed by a February 27, 2012 entry,
presumably by the Visa Officer:
·
PI IS A GRADUATE ENGINEER. ALL
PROVIDED DOCUMENTAION INDICATE THAT HE IS REGISTERED AND HAS WORKED AS AN
ENGINEER. PI HAS NOT PRESENTED ANY LETTERS FROM HIS EMPLOYERS TO SHOW THAT HE
HAS WORKED AS A CONSTRUCTION MANAGER.
·
I AM NOT SATISFIED THAT PI MEETS
THE REQUIREMENTS OF NOC 0711. ACCORDINGLY TO AVAILABLE INFORMATION, PI DOES NOT
MEET REQUIREMENTS OF NOC 0711 NO OTHER WORK EXPERIENCE OR OCCUPATIONS PRESENTED
THAT COULD BE CONSIDERED AS ELIGIBLE. THEREFORE PI IS INELIGIBLE FOR PROCESSING
UNDER THIS PROGRAM.
Issues
8 The
Applicant submits that there are two issues for consideration in the present
application, did the Visa Officer err when he concluded that the Applicant did
not meet the requirements of Construction Manager NOC 0711, and, did the Visa
Officer breach the duty of fairness by failing to provide the Applicant with an
opportunity to respond to the Visa Officer's concerns?
9 I
would phrase the issues as follows:
Was the Decision
reasonable?
Did the Visa Officer
breach the duty of fairness?
Standard of Review
10 A
standard of review analysis need not be conducted in every instance if the
jurisprudence already establishes which standard is to apply (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 [Dunsmuir]. Apart from
any question of law or natural justice, when a decision is factual in nature
and deference is owed to the decision maker, the standard of review for
decisions concerning permanent residence under the federal skilled worker class
is reasonableness (Tabanag v Canada (Minister of
Citizenship and Immigration), 2011 FC 1293 [Tabanag] at paras 11-12).
11 Thus,
the first issue in this case is reviewed on a standard of reasonableness.
Reasonableness is concerned with the existence of justification, transparency
and intelligibility, and with whether the decision falls within a range of
possible, acceptable outcomes (Dunsmuir, above, at para 47; Brown v Canada (Minister
of Citizenship and Immigration), 2012 FC 1305 at para
16; Kaur Barm v Canada (Minister of Citizenship and
Immigration), 2008 FC 893 at para 12).
12 As
breach of a duty of fairness is an error in law, the second issue is reviewable
on the standard of correctness (Newfoundland and
Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708 at para 22 [Newfoundland
and Labrador Nurses' Union]).
Arguments of the Parties
Applicant's Submissions
13 The
Applicant submits that the Visa Officer erred in finding that the Applicant
does not meet the requirements for Construction Manager NOC 0711. The Applicant
submitted documentation which confirms that he had worked as a construction
manager for seven years with Orascom Construction Industries (Orascom). The
Applicant submits that the Visa Officer either misunderstood or ignored the
letter from Orascom; either event being a reviewable error. The Applicant
submits that the Visa Officer's reasons fail to explain the basis for his
conclusion that the Applicant did not meet the requirements and that the
Decision is unreasonable.
14 In
addition, the Applicant submits that the Visa Officer breached the duty of
fairness because he failed to provide the Applicant with an opportunity to
respond to the Visa Officer's concern that he had not been employed as a
construction manager. The Applicant relies on Gedeon v
Canada (Minister of Citizenship and Immigration), 2004
FC 1245, for the proposition that a visa officer commits a reviewable error
when he or she does not provide reasons for rejecting evidence of an
applicant's work experience and does not provide an applicant with an
opportunity to address those concerns.
Respondent's Submissions
15 In
its written submissions, the Respondent states that the Applicant failed to
discharge his onus to demonstrate that during the relevant period of employment
he performed the actions described in the lead statement for the occupation of
Construction Manager as set out in the occupational description for NOC 0711
(IRP Regulations, above, subsection 75(2)(b)). As a result of this failure, the
Visa Officer is obliged to refuse the application without further assessment
(IRP Regulations, above, subsection 75(3)). The Respondent argues that the
Applicant did not provide sufficient evidence that he had performed the actions
in the lead statement on NOC 0711 and, in particular, did not provide any
evidence to demonstrate that he had worked as a construction manager.
16 The
Respondent also argued in its written submissions that it was reasonable for
the Visa Officer to only make a determination that the Applicant had not performed
the actions of this occupation pursuant to subsection 75(2)(b) of the IRP
Regulations. He did not make a determination under subsection 75(2)(c) of the
IRP Regulations regarding the main duties for this occupation which the
Applicant argues that he performed. Furthermore, visa officers do not have a
duty to contact an applicant to seek clarification when an applicant files
insufficient or ambiguous evidence (Lam v Canada
(Minister of Citizenship and Immigration), [1998] FCJ No
1239 at paras 3- 4 (TD); Kaur v Canada, 2010 FC 442 at para 10-11 [Kaur]).
17 However,
when appearing before me, the Respondent acknowledged that the certified
tribunal record (CTR) did contain a copy of the letter from Orascom as part of
the Applicant's application seeking permanent residence status as a federal
skilled worker. This had been overlooked when the Respondent's written
submissions were prepared. Accordingly, the Respondent made no submissions when
appearing before me.
Analysis
18 The
IRP Regulations state as follows regarding skilled workers:
·
Class
·
75. (1)
For the purposes of subsection 12(2) of the Act, the federal skilled worker
class is hereby prescribed as a class of persons who are skilled workers and
who may become permanent residents on the basis of their ability to become
economically established in Canada and who intend to reside in a province other
than the Province of Quebec.
·
Skilled workers
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.
* * *
·
Catégorie
·
75. (1)
Pour l'application du paragraphe 12(2) de la Loi, la catégorie des travailleurs
qualifiés (fédéral) est une catégorie réglementaire de personnes qui peuvent
devenir résidents permanents du fait de leur capacité à réussir leur
établissement économique au Canada, qui sont des travailleurs qualifiés et qui
cherchent à s'établir dans une province autre que le Québec.
·
Qualité
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.
19 The
onus was on the Applicant to establish that he had performed the actions
described in the lead statement as set out in NOC 0711 and a substantial number
of the main duties of this occupation (Mihura Torres v
Canada (Minister of Citizenship and Immigration), 2011
FC 818 at para 37; Kaur, above,
at para 30).
20 The
lead statement, or job description, for NOC 0711 is found on the Human
Resources and Skills Development Canada website and it states the following:
·
0711 Construction managers
·
Construction managers plan, organize,
direct, control and evaluate the activities of a construction company or a
construction department within a company, under the direction of a general
manager or other senior manager. They are employed by residential, commercial
and industrial construction companies and by construction departments of
companies outside the construction industry.
Example Titles
commercial construction manager
construction manager
construction superintendent
general contractor
housing construction manager
industrial construction manager
pipeline construction manager
project manager, construction
residential construction manager
Main duties
·
Construction managers perform
some or all of the following duties:
Plan, organize, direct,
control and evaluate construction projects from start to finish according to
schedule, specifications and budget
Prepare and submit
construction project budget estimates
Plan and prepare
construction schedules and milestones and monitor progress against established
schedules
Prepare contracts and
negotiate revisions, changes and additions to contractual agreements with
architects, consultants, clients, suppliers and subcontractors
Develop and implement
quality control programs
Represent company on
matters such as business services and union contracts negotiation
Prepare progress
reports and issue progress schedules to clients
Direct the purchase of
building materials and land acquisitions
Hire and supervise the
activities of subcontractors and subordinate staff.
21 It
should be noted that the Respondent originally argued that the Applicant did
not provide "any" evidence to demonstrate that he has worked as a
Construction Manager and referred to the CAIPS Notes entry which states that
the Applicant "has not presented any letters from his employers to show
that he has worked as a construction manager".
22 On
an application for judicial review, the 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" (Newfoundland and Labrador Nurses' Union, above
at para 15).
23 Having
reviewed the record that was before the Visa Officer, it appears to me that
there was evidence that the Applicant was employed as a construction manager in
Egypt.
24 In
his visa application package, the Applicant provided a Certificate of
Experience and Recommendation from his employer of more than a decade, Orascom.
This letter indicates that the Applicant was employed as a full time civil
engineer from October 1, 1995 to December 31, 2002, and then as a construction
manager from January 1, 2003 to March 30, 2010.
25 The
letter includes his job description and I have underlined those areas that
overlap with the main duties of Construction Managers as set out in NOC 0711.
Supervising civil work
at site such as surveying, earth work, levelling, and constructing concrete
buildings and foundations
Erecting steel
structures at site
Adjusting and solving
problems of networks at site
Designing and preparing
of shop drawing of steel structures using different codes
Designing concrete
structures
Organizing, planning,
and evaluating construction projects
Preparing construction
schedules
Representing the
company on business services and union contracts negotiation
Preparing contracts,
changing orders, and negotiating revisions with consultants, clients, and
subcontractors
Preparing progress
reports
Hiring and supervising
activities of subcontractors and staff
26 As
the foregoing indicates, there is a significant overlap between what the
Applicant did in his position as a construction manager and what is required of
a Construction Manager by NOC 0711.
27 While
the Visa Officer need not mention every piece of evidence in his Decision, the
Federal Court has stated that, "the more important the evidence that is
not mentioned specifically and analyzed in the agency's reasons, the more
willing a court may be to infer from the silence that the agency made an
erroneous finding of fact 'without regard to the evidence'" Cepeda-Gutierrez v Canada, [1998] 157 FTR 35
at para 17 citing Bains v Canada (Minister of Employment
and Immigration), [1993] 63 FTR 312.)
28 The
letter from the Applicant's employer goes right to the heart of the matter. It
states that the Applicant worked as a civil engineer, then as a construction
manager from January 1, 2003 to March 30, 2010 and lists his duties in those
positions. Those duties clearly overlap with the Construction Manager NOC 0711
duties, yet the Visa Officer did not mention the letter in his reasons and
denied the application on the basis that the Applicant "did not provide
satisfactory evidence that [he] performed the actions described in the lead
statement for the occupation, as set out in the occupational descriptions of
the NOC."
29 The
Respondent originally argued that this overlap pertains only to the main duties
and that the Visa Officer determined that the Applicant failed to establish
that he met the requirements of the lead statement of NOC 0711. The lead statement
is, in effect, a job description. It generally describes the duties of
construction managers.
30 I
have set out the lead statement below and have underlined the
"actions" which are common to the Applicant's role as a construction
manager as described in the letter from Orascom:
·
Construction managers plan, organize, direct, contro l and
evaluate the activities of a construction company or a
construction department within a company, under the direction of a general
manager or other senior manager. They are employed by
residential, commercial and industrial construction companies and by construction departments of companies outside the
construction industry.
31 In
my view, the Respondent's original position was one of form and not of
substance. The letter from Orascom Construction Industries clearly establishes
that the Applicant was employed by a construction company, as a construction
manager, and that his job description included planning, organizing,
controlling and directing the activities of that company. It addresses the
requirements of the lead statement of NOC 0711.
32 In
Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR 339 at para 72, the Supreme Court of
Canada stated the following while addressing a judicial review commenced
pursuant to section 18.1 of the Federal Courts Act, RSC, 1985, c F7:
·
[72] The language of s.
18.1(4)(d) makes clear that findings of fact are to be reviewed on a highly
deferential standard. Courts are only to interfere with a decision based on
erroneous findings of fact where the federal board, commission or other
tribunal's factual finding was 'made in a perverse or capricious manner or
without regard for the material before it'. [...]
33 In
this case, however, I am satisfied that the Visa Officer ignored or overlooked
critical evidence on the record before him, the Orascom letter, pertaining to
the Applicant's employment as a construction manager. Accordingly, his finding
of fact as to the Applicant's employment experience was made in a perverse or
capricious manner. The Decision was therefore, not justified, transparent and
intelligible, nor did it fall within the range of possible, acceptable outcomes.
34 As
this finding alone is sufficient to allow the appeal, it is not necessary to
address the issue of the breach of the duty of fairness.
Conclusion
35 The
Application for judicial review is allowed and the matter is returned for
reconsideration by a different visa officer.
JUDGMENT
THIS COURT'S JUDGMENT is that this application for judicial review is allowed and the matter is
returned for reconsideration by a different visa officer. No question of
general importance for certification has been proposed and none arises.
STRICKLAND J.
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