Mollajafari v. Canada (Minister of Citizenship and Immigration)
Between
Majid Mollajafari, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2013] F.C.J. No. 933
2013 FC 906
Docket IMM-6493-12
Federal Court
Toronto, Ontario
Annis J.
Heard: July 18, 2013.
Judgment: August 27, 2013.
Docket IMM-6493-12
Federal Court
Toronto, Ontario
Annis J.
Heard: July 18, 2013.
Judgment: August 27, 2013.
(21 paras.)
1 [1]
ANNIS J.:-- This is an
application for judicial review, pursuant to section 72(1) of the Immigration and Refugee Protection Act, SC
2001, c 27, of a decision refusing the applicant's application for permanent
residence in Canada in the Federal Skilled Worker category.
2 [2]
The applicant is requesting an order of certiorari quashing the negative decision and an order of mandamus compelling
the respondent to reconsider his application.
Background
3 [1]
Mr. Mollajafari was born in Iran in 1977. He attended Islamic Azad University,
obtaining a three-year Civil Surveying associate's degree and a B.A. in Civil
Engineering in 2007. He then went to work for Eista Bon Consulting Engineers
Company as a construction manager. In 2009, he applied to immigrate to Canada
in the Skilled Worker category under National Occupation Code [NOC] 0711
Construction Manager. He explains that his application was accepted by the
Sydney, Nova Scotia office and the visa officer in Damascus, but he was then
refused because he was short two education points (having been credited with
only one university credential, not two). He was advised that it would be more
practical to apply again than to request judicial review.
4 [2]
Accordingly, he applied again in 2010. The Sydney office approved his
application again. However, the visa office in Damascus closed before it could
reassess the application, and his file was forwarded to Ankara. There, a visa
officer accepted both university credentials but rejected the application on
June 18, 2012 on the new ground that the applicant had not demonstrated that he
had performed the duties of NOC 0711. This time Mr. Mollajafari applied for
judicial review.
5 [3]
The dispositive portion of the decision letter to Mr. Mollajafari states as
follows:
·
You have indicated that you have
work experience in (an) occupation(s) with the following NOC (National
Occupational Classification) code(s): 0711 -
Construction Managers. Although the NOC code(s)
correspond(s) to the occupations specified in the Instructions, you have not
provided sufficient evidence that you performed the actions described in the
lead statement for the occupation, as a set out in the occupational
descriptions of the NOC and that you performed all of the essential duties and
a substantial number of the main duties, as set out in the occupational
descriptions of the NOC. The duties described on your reference letter from
Eista Bon Consulting Engineers Company do not match the occupational
descriptions of the NOC. As such, I am not satisfied that you are a Construction Manager - 0711.
6 [4]
The main activities listed in the reference letter of the applicant were
described as follows:
Structure design of the
residential buildings as such as residential complexes, long towers, apartment
and Villa
Structure design of the
official, commercial and educational complexes
Structure design of the
cultural, sport and recreational complexes
Design of the space
structures
Preparation, control and
confirmation of estimation of the consumer materials and cost price of
projects
Management of designing
team
Supervisor of surveying
team in preparation of topographical plans of projects at beginning of
designing process
Buildings industrial
designing with use from the modern technology
Management of the
supervision team
Management of
constructional projects
Selection and employment
of the technical personnel in the constructional projects
7 [5]
The Computer Assisted Immigration Processing System [CAIPS] notes which form
part of the reasons for the decision state that:
·
The job description provided in
the reference letter more closely resembles the description of a Construction
Engineer (NOC2131). PA was involved in design work, estimation, supervision of
surveying teams etc., which more closely resemble NOC2131. Have same concerns
with respect to the description provided by PA on Schedule 3 form.
Consequently, am not satisfied that PA performed a substantial amount of the
duties stated in NOC0711. Therefore, am not satisfied that the ministerial
instructions have been met.
Issues
8 [6]
The issue is whether the visa officer came to an unreasonable decision based on
the documentation before him.
Standard of review
9 [7]
Where jurisprudence has already determined the standard of review applicable to
a particular issue, the reviewing court may adopt that standard (Dunsmuir v New
Brunswick, 2008 SCC 9 at paragraph 57). As noted in Patel
v Canada (MCI), 2011 FC 571, at para 18 and in Kamchibekov v Canada (MCI), 2011 FC 1411, at
para 12, it has been established that a visa officer's determination on
eligibility under the Federal Skilled Worker class, as a question of mixed fact
and law, is reviewable on a standard of reasonableness and should be granted a
high degree of deference.
Analysis
10 [8]
The applicant argues that the reasons for decision show that the visa officer
assessed his documentation against the description of NOC 2131, an employee
job, and failed to assess it against NOC 0711, a managerial job (as shown by
the "0" designation). He argues that both jobs required an
engineering educational credential, so it is obvious that there would be a
certain amount of overlap in the duties.
11 [9]
He submits that the visa officer was required to assess him in the category he
claimed (Hajariwala v Canada (MEI), [1988] F.C.J. No. 1021 (QL) (TD); Hussain v
Canada (MCI), [1998] F.C.J. No. 1570 (QL) (TD)).
12 [10]
I disagree that the applicant was measured against the civil engineer category.
The decision letter stated that "the duties described on your reference
letter from Eista Bon Consulting Engineers Company do not match the
occupational descriptions of the NOC". This statement is supported by the
letter and the comparison with the requirements for a construction engineer in
NOC 0711.
13 [11]
The lead statement for NOC 0711 as provided in the applicant's materials reads:
·
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.
14 [12]
An applicant is required to have performed the duties in the lead statement and
all or more of the main duties of the occupation. Applicants have the onus of
providing documentation to demonstrate this. In the present case, the visa
officer specifically considered the company reference letter. While he found
that the applicant was involved in design work, estimation, supervision of
surveying terms, etc., that was more akin to NOC 2131, this was because there
was only one clear item relating to construction management from a list of 11
duties carried out by the applicant, that of "management of constructional
projects".
15 [13]
The respondent argues that the applicant proposes that the key aspect of the
lead statement was being a manager rather than an employee, but in fact the key
distinction was working for a construction company or a construction
department. While his company described him as a "Constructional Projects
Manager" and an "engineer", the employer's reference letter sets
out a long list of items pertaining to design and provides minimal detail
supporting a conclusion that he was involved in managing the physical
construction of buildings or was employed on construction job sites.
16 [14]
I agree with the respondent that describing the applicant as a "Constructional
Projects Manager" carries no weight when the main activities relate to
structural design and managing design and surveying teams.
17 [15]
I also conclude that common sense dictates that it was entirely reasonable for
the visa officer to consider related NOCs when it is apparent from the list of
duties provided in his employer's reference letter that the applicant was
performing mostly design and surveying functions.
18 [16]
Granted, there may be some overlap in the field, but nevertheless the NOC makes
no reference to design and surveying functions, which would exclude the large
majority of duties of the applicant as described by his employer. They do not
fall within the NOC description for a construction manager.
19 [17]
The applicant submitted that the Court should take into consideration other
evidence from the record, including the applicant's education which showed
construction management courses as part of a civil engineering program and the
fact that he was on the Board of Directors of a construction company. This
evidence however does not demonstrate that the applicant was working as a
construction manager.
20 [18]
On the basis of the evidence provided by the applicant with a view to
demonstrate his work experience as a construction manager, I am satisfied that
the visa officer's decision that the applicant did not meet the requirements as
a construction manager described in NOC 0711 falls within the possible,
acceptable outcomes that are defensible in fact and in law.
21 [19]
Accordingly, the application is dismissed.
JUDGMENT
THIS COURT'S JUDGMENT is that the application is dismissed.
ANNIS J.
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