Bar v. Canada (Minister of Citizenship and
Immigration)
Between
Ihab Abdel Bar, Applicant, and
The Minister of Citizenship and Immigration, Respondent
The Minister of Citizenship and Immigration, Respondent
[2013] F.C.J. No. 352
[2013] A.C.F. no 352
2013 FC 317
Docket IMM-3673-12
Docket IMM-3673-12
Federal Court
Montréal, Quebec
Roy J.
Heard: March 5, 2013.
Judgment: March 28, 2013.
Montréal, Quebec
Roy J.
Heard: March 5, 2013.
Judgment: March 28, 2013.
(31 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 ROY J.:-- This is an application for judicial
review brought under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (the Act), of
a decision by a visa officer at the Canadian Embassy in Cairo to reject the
application for permanent residence of Ihab Abdel Bar (the applicant).
Facts
2 The
applicant is an Egyptian citizen. He is a dentist, and it is common ground that
he also has training in computer science.
3 On
December 9, 2009, he filed an application for permanent residence as a skilled
worker. This application was to be considered in relation to the occupation
"Computer and Information Systems Manager", identification number
0213 of the National Occupational Classification and the occupation at issue in
this case [NOC 0213].
4 In
support of his application, the applicant provided two letters from an Egyptian-government-sponsored
organization called CULTNAT (Centre for Documentation of Cultural and Natural
Heritage). These two letters were included in the initial application. They
constituted the documentary evidence provided to allow a determination of whether
the applicant's qualifications satisfied the NOC 0213 criteria.
5 The
applicant's permanent residence application was processed at the Federal
Skilled Worker Centralized Intake Office in Sydney, Nova Scotia. A letter dated
February 10, 2010, informed the applicant that his application for permanent
residence would be processed by the Canadian Embassy in Cairo.
6 The
decision being challenged by the applicant was rendered on March 6, 2012. The
visa officer rejected the permanent residence application in the following
terms:
· Although the NOC code corresponds to the occupation specified in the
Ministerial Instructions, you did not provide satisfactory evidence that you
performed the actions described in the lead statement for the occupation, as
set out in the occupational descriptions of the NOC. I am therefore not
satisfied that you are a Computer & Information System Manager NOC 0213.
Since you did not provide satisfactory evidence that you have work experience
in any of the listed occupations, you do not meet the requirements of the
Ministerial Instructions and your application is not eligible for
processing.
7 In
his notes, which are included in the record, the officer acknowledged that the
applicant had worked for CULTNAT twice. As mentioned above, two letters were
provided in support of the application. The first letter covered the period
from October 2003 to October 2005 and contained specific details about the
projects in which the applicant had been involved. However, the officer noted
that the second letter, covering the period from August 2008 to September 2009,
contained only vague generalizations regarding the tasks performed by the
applicant. The paragraph to which the applicant is objecting reads as follows:
· PI is a graduate dentist who has had some extra education in it (sic) field. He has worked on two occasions
for CULTNAT - a government sponsored organisation which is a centre charged
with the documentation of the cultural and natural heritage. It appears to be a
project based entity with ongoing documentation of specialised topics
associated with Egypt's past. PI has worked for them on two occasions. The
first occasion from 2003 - 2005 the description of his work is clear and
precise - giving details of the projects he worked on. The second letter
(written by the same person) covers August 2008 - September 2009. This letter
notes that he worked at "managerial level" with vague generalisations
as to work content. It appears that the letter, for work just over a year, may
have been written to satisfy our requirements.
Applicant's submissions
8 The
applicant submits that his qualifications were amply demonstrated. His counsel
argues that the visa officer botched the decision, which she characterizes as
incomprehensible. What could he possibly have meant, she asks, by the words,
"may have been written to satisfy our requirements"? Relying on Dunsmuir v New Brunswick, [2008] 1 SCR 190 [Dunsmuir], she submits that the decision
rendered is unintelligible. The applicant provided evidence of his professional
qualifications, and the two letters sent in December 2009 should have sufficed.
If the visa officer had doubts about the authenticity of either of these
letters, he should have asked the applicant to provide him with additional
explanations, which could then have been sought. Therefore, he violated his
duties relating to natural justice.
9 During
the hearing, the applicant's position revolved around two distinct issues that
his counsel submits to the Court. First, she argues that her client's
application was sufficient and that the visa officer should have selected him
as a permanent resident. She also argues that the rules of natural justice have
been breached if the visa officer believed that the second letter had been
written to "satisfy our requirements".
Respondent's submissions
10 The
respondent very helpfully set out the legal framework applicable to such cases.
Section 11 of the Act establishes the principle that a foreign national wishing
to come to Canada must "apply to an officer for a visa or for any other
document required by the regulations". Applicants such as the one in this
case apply under the category of economic immigration, which means they have
the ability to become economically established in Canada.
11 Section
87.3 of the Act applies here, as it enables the Minister to give instructions
with respect to the processing of applications and requests. Subsection 87.3(2)
reads as follows:
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.
* * *
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.
12 The
instructions in question took the form of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the
Regulations). It is worth reproducing section 75 of the Regulations in full:
· 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.
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.
If the foreign national
fails to meet the requirements of subsection (2), the application for a
permanent resident visa shall be refused and no further assessment is
required.
* * *
· 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.
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.
Si l'étranger ne
satisfait pas aux exigences prévues au paragraphe (2), l'agent met fin à
l'examen de la demande de visa de résident permanent et la refuse.
13 The
respondent submits that the visa officer's decision was perfectly reasonable if
one compares the application submitted, particularly the two letters from
CULTNAT, to the criteria listed in NOC 0213. The first letter, which goes into
much more detail about the applicant's activities, does not demonstrate a good
fit with the occupation of "Computer and Information Systems
Manager". In the second letter, there has clearly been an attempt to stick
more closely to the criteria, but it is too vague to be of any real use.
Ultimately, the visa officer had no choice but to reject the application
because it contained insufficient information.
Analysis
14 To
the extent that the applicant is challenging the visa officer's assessment of
his application, he appears to be arguing that his application fully met the
criteria. There is no doubt that the standard of reasonableness applies to this
type of argument (Dunsmuir,
above). The recent decision in Ismaili v Canada
(Minister of Citizenship and Immigration), 2012 FC 351,
and all the authorities cited in that judgment summarize the state of the law
in this area.
15 The
standard of correctness applies to the second argument, according to which the
applicant was entitled to have the decision maker provide him with the
opportunity to answer any questions arising from the decision maker's doubts
about the authenticity of a document or the credibility of a witness or
document. In Obeta v Canada (Minister of Citizenship and
Immigration), 2012 FC 1542 [Obeta], Boivin J. presented the issue as follows:
· [14] The issue of whether or not the Officer should have brought his
concerns to the attention of the applicant and offered him an opportunity to
address them is a question of procedural fairness, and is reviewable on a standard
of correctness. However, the Officer's concerns themselves, namely his
assessment of the evidence and subsequent conclusion that the application was
ineligible for processing, are reviewable on the standard of
reasonableness.
16 With
respect to the first issue, whether the visa officer acted unreasonably in
rejecting the application for permanent residence, I see nothing in the record
that leads me to find in the applicant's favour. The onus was on the latter to
demonstrate that he met the criteria of NOC 0213. On its face, the first
letter, which the visa officer described as detailed, did not satisfy the
management aspect of NOC 0213.
17 The
standard of reasonableness calls for considerable deference to the decision
maker. The Court states at paragraph 47 of Dunsmuir, above:
· Reasonableness is a deferential standard animated by the principle
that underlies the development of the two previous standards of reasonableness:
certain questions that come before administrative tribunals do not lend
themselves to one specific, particular result. Instead, they may give rise to a
number of possible, reasonable conclusions. Tribunals have a margin of
appreciation within the range of acceptable and rational solutions. 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.
18 Similarly,
in Newfoundland and Labrador Nurses' Union v
Newfoundland and Labrador (Treasury Board), [2011] 3
SCR 708, the Supreme Court of Canada notes that reviewing courts do not need to
look for extensive reasons:
· [16] Reasons may not include all the arguments, statutory
provisions, jurisprudence or other details the reviewing judge would have
preferred, but that does not impugn the validity of either the reasons or the
result under a reasonableness analysis... . In other words, 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, the Dunsmuir criteria
are met.
19 In
my view, a review of the visa officer's notes reveals that he was dissatisfied
with the adequacy of the evidence in support of the application for permanent
residence. He concluded that NOC 0213, which in this case represents the
standard to be met, required more than what the applicant had provided. In
light of the level of deference required, this assessment fully satisfies the
standard of reasonableness.
20 NOC
0213 describes the main duties sought to meet the standard:
· Computer and information systems managers perform some or all of the
following duties:
Plan, organize,
direct, control and evaluate the operations of information systems and
electronic data processing (EDP) departments and companies
Develop and implement
policies and procedures for electronic data processing and computer systems
development and operations
Meet with clients to
discuss system requirements, technical specifications, costs and
timelines
Assemble and manage
teams of information systems personnel to design, develop, implement, operate
and administer computer and telecommunications software, networks and
information systems
Control the budget and
expenditures of the department, company or project
Recruit and supervise
computer analysts, engineers, programmers, technicians and other personnel and
oversee their professional development and training.
The emphasis is on the management of computer and
information systems. The first letter in support of the application described
the activities of someone who develops computer and information systems. It is
difficult to understand how a finding that this letter fails to satisfy the
requirements could be unreasonable.
21 The
second letter gave the applicant a better chance of meeting the criteria, as it
referred to aspects of system management. However, the letter contains no basis
on which the decision maker could determine that the requirements had indeed
been met. It is nothing but a collection of vague statements.
22 With
respect, when the visa officer writes, "[i]t appears that the letter, for
work just over a year, may have been written to satisfy our requirements",
he is simply noting that the second letter merely reproduces some of the NOC
0213 requirements. He therefore states that the second letter is insufficient.
The second letter was meant to corroborate the first. In fact, it was necessary
because the first did not suffice. However, to the extent that the second
letter was necessary, it had to contain sufficient information.
23 It
is not enough to declare in an application for permanent residence that one
satisfies the requirements of the appropriate NOC, but that is exactly what the
second letter does in this case. It is not enough to call oneself a
"manager"; one has to demonstrate this to meet the NOC requirements.
The applicant did provide enough detail in the first letter. However, what was
missing was the "management" aspect, which the applicant attempted to
rectify with the second letter. I would therefore find that it was not
unreasonable for the visa officer to decide that the application contained
insufficient information.
24 Have
the principles of natural justice been violated in this case? The applicant
attempted to interpret some of the words used by the visa officer as expressing
doubts regarding the applicant's credibility. I disagree. The decision maker in
no way questioned the credibility or authenticity of the documents and evidence
provided by the applicant. He merely commented on their insufficiency.
25 When
the words pointed to by the applicant ("may have been written to satisfy
our requirements") are read in context, the decision maker is explaining
that the second letter was written to satisfy the classification standards
applicable in this case. Having found that the letter contained only vague
generalizations, the visa officer is merely stating the obvious. He addresses
neither the applicant's credibility nor the document's authenticity. He simply
notes that the letter contains insufficient information.
26 As
this Court has held on several occasions, there is no legal duty to speak with
an applicant or let him know how he might make his application compliant. The
following recent cases, inter alia, are relevant: Kamchikbekov v Canada
(Minister of Citizenship and Immigration), 2011 FC
1411, Anabtawi v Canada (Minister of Citizenship and
Immigration), 2012 FC 856, and Chadha
v Canada (Minister of Citizenship and Immigration),
2013 FC 105.
27 It
should be noted that the onus is on applicants to provide the relevant
documentation to demonstrate that they meet the criteria of the particular
category in which they are applying for status in Canada (Shetty v Canada (Minister of Citizenship and Immigration), 2012 FC 1321).
28 In
Hassani v Canada (Minister of Citizenship and
Immigration), 2006 FC 1283, [2007] 3 FCR 501 [Hassani], the Court wrote the following at
paragraph 24:
· ... 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 [John v. Canada (Minister of Citizenship and Immigration) (2003), 2003 FCT 257, 26 Imm. L.R. (3d) 221 (F.C.T.D.)] and Cornea [Cornea v.
Canada (Minister of Citizenship and Immigration)
(2003), 2003 FC 972, 30 Imm. L.R. (3d) 38] cited by the Court in Rukmangathan, above.
29 In
other words, the rules of natural justice may require that additional questions
be asked in cases where the evidence would have been sufficient had it not been
for doubts regarding the credibility, accuracy or genuine nature of information
submitted by the applicant in support of his or her application. However, if
the application itself is insufficient, there is no duty to contact the
applicant to ask him or her to bolster the application. To borrow the words of Hassani, above, where a concern arises
directly from the requirements of the legislation or related regulations, there
is no duty to attempt to provide the applicant with the possibility of addressing
this concern. The applicant is responsible for providing documentation that
meets the requirements of the Canadian legislation.
30 Accordingly,
the application for judicial review is dismissed. It was reasonable for the
visa officer to find that the application was insufficient; the visa officer
never raised any doubts as to the accuracy, genuine nature or credibility of
the information provided. He simply noted that repeating the NOC requirements,
with nothing further, did not satisfy the requirements. Therefore, there is no
issue as to whether he respected the rules of natural justice.
31 I
agree with counsel for the parties that no question for certification arises
pursuant to section 74 of the Act.
JUDGMENT
The application for judicial review of the
decision by a visa officer rendered on March 6, 2012, is dismissed.
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