Song v. Canada (Minister of Citizenship and
Immigration)
Between
Seho Song, Applicant, and
The Minister of Citizenship and Immigration, Respondent
Seho Song, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2015] F.C.J. No. 94
2015 FC 141
Docket: IMM-4550-13
Federal Court
Toronto, Ontario
Russell J.
Heard: November 12, 2014.
Judgment: February 4, 2015.
Docket: IMM-4550-13
Federal Court
Toronto, Ontario
Russell J.
Heard: November 12, 2014.
Judgment: February 4, 2015.
(31 paras.)
JUDGMENT AND REASONS
· RUSSELL J.:--
I. INTRODUCTION
1 This
is an application under s. 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 for judicial
review of the decision of a visa officer [Officer], dated May 29, 2013
[Decision], which refused the Applicant's application for permanent residence
in Canada as a member of the Canadian Experience class.
II. BACKGROUND
2 The
Applicant submitted his application for permanent residence in September 2012.
The Applicant applied under National Occupational Classification [NOC] 0621
(Retail and Wholesale Trade Manager) and NOC 3219 (Pharmacy Technician).
3 At
the time of his application, the Applicant says that he had been working as a
Front Store Manager for more than one year at a pharmacy in Toronto. He also
says that he worked from October 2009 to December 2010 as a Pharmacy Technician
at the same pharmacy.
III. DECISION UNDER REVIEW
4 The
Applicant's application for permanent residence was denied in a letter dated
May 29, 2013.
5 The
Officer said that the Immigration and Refugee Protection
Regulations, SOR/2002-227 [Regulations] require that an
applicant under the Canadian Experience class demonstrate: knowledge of English
or French; Canadian skilled work experience; and, Canadian educational
credentials (if applying under the Post-Graduation Stream). The Officer found
that the Applicant did not meet the skilled work experience requirement. The
Officer said that the Applicant's letter of employment detailing his
responsibilities as a Front Store Manager did not satisfy him or her that the
Applicant had performed the functions listed under NOC 0621. As a result, the
Officer concluded that the Applicant had failed to demonstrate that he had
"acquired twelve months of full-time skilled work experience in Canada at
a National Occupational Classification skill of type O or level A or B in the
last twenty-four months prior to the submission of [his] application and after
having obtained [his] Canadian educational credential" (Certified Tribunal
Record [CTR] at 34).
6 The
Global Case Management System [GCMS] notes, dated May 29, 2013, provide further
explanation of the Officer's Decision (CTR at 36):
· Work: Qualifying period: 2/10/10-2/10/12. According to application,
PA worked as a Front Shop Manager (NOC 0621) for Bloor Park Pharmacy from JAN11
to present. Letter confirms employment, salary and lists duties which do not
match those under NOC 0621. Specifically, according to the letter, the PA does
not: Plan, organize direct control and evaluate the operations of establishments
engaged in wholesale and retail sales or of departments in such establishments
Does not: Study market research and trends to determine consumer demand,
potential sales volumes and effect of competitors' operations on sales
implement price and credit policies Plan budgets and authorize expenditures As
the PA's experience does not include the above, I cannot count this experience.
PA also requested assessment for as a Pharmacy Technician (NOC 3219) at the
same employer from OCT09 to DEC10. However, work experience is outside of
qualifying period with exception of two months. I am not satisfied that the PA
has 12 months of full-time skilled work experience. Eligibility failed.
IV. ISSUES
7 The
Applicant raises three issues in this application:
Did the Officer err in
law in finding that the Applicant did not meet the requirements of NOC
0621?
Did the Officer err in
calculating the qualifying period for the Applicant's work experience?
Did the Officer breach
the duty of procedural fairness in failing to provide the Applicant with an
opportunity to respond to his or her concerns?
V. STANDARD OF REVIEW
8 The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] 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 settled in a satisfactory manner by
past jurisprudence, the reviewing court may adopt that standard of review. Only
where this search proves fruitless, or where the relevant precedents appear to
be inconsistent with new developments in the common law principles of judicial
review, must the reviewing court undertake a consideration of the four factors
comprising the standard of review analysis: Agraira v
Canada (Public Safety and Emergency Preparedness), 2013
SCC 36 at para 48.
9 The
Applicant says that the standard of review for decisions involving the exercise
of discretion and questions of mixed fact and law is reasonableness: Kastrati v Canada (Citizenship and Immigration), 2008 FC 1141 at paras 9-10. The standard of review for questions
of law and natural justice is correctness: Restrepo
Benitez v Canada (Minister of Citizenship and Immigration), 2006 FC 461 at para 44.
10 The
Respondent says that visa officers are experts in assessing permanent residence
applications, and this Court has held that visa officers are owed deference due
to their expertise: Onyeka v Canada (Citizenship and
Immigration), 2009 FC 336 at para 17; Pacheco Silva v Canada (Citizenship and Immigration), 2007 FC 733 at para 6; Kniazeva v Canada
(Minister of Citizenship and Immigration), 2006 FC 268;
Hassani v Canada (Citizenship and Immigration), 2006 FC 1283 [Hassani].
11 This
Court has held that an officer's determination under the Canadian Experience
class involves questions of mixed fact and law and is reviewed on a standard of
reasonableness: Anabtawi v Canada (Citizenship and
Immigration), 2012 FC 856 at para 28. The jurisprudence
is clear that questions of procedural fairness are reviewed on a standard of
correctness: Mission Institution v Khela, 2014 SCC 24 at para 79; Exeter v Canada
(Attorney General), 2014 FCA 251 at para 31.
12 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 para 47; Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12 at para 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."
VI. STATUTORY PROVISIONS
13 The
following provisions of the Regulations were in force at the time the
Applicant's application was assessed and are applicable to this proceeding:
· Canadian Experience Class
· Class
· 87.1 (1) For the purposes of subsection 12(2) of the Act, the
Canadian experience class is prescribed as a class of persons who may become
permanent residents on the basis of their experience in Canada and who intend
to reside in a province other than the Province of Quebec.
· Member of the class
A foreign national is a
member of the Canadian experience class if
they
have acquired in Canada
within the 24 months before the day on which their application for permanent
residence is made at least 12 months of full-time work experience, or the
equivalent in part-time work experience, in one or more occupations that are
listed in Skill Type 0 Management Occupations or Skill Level A or B of the
National Occupational Classification matrix, and have acquired that work
experience after having obtained
a diploma, degree or
trade or apprenticeship credential issued on the completion of a program of
full-time study or training of at least two years' duration at a public,
provincially recognized post-secondary educational or training institution in
Canada,
a diploma or trade or
apprenticeship credential issued on the completion of a program of full-time
study or training of at least two years' duration at a private, Quebec
post-secondary institution that operates under the same rules and regulations
as public Quebec post-secondary institutions and that receives at least 50 per
cent of its financing for its overall operations from government grants,
subsidies or other assistance,
a degree from a
private, provincially recognized post-secondary educational institution in
Canada issued on the completion of a program of full-time study of at least two
years' duration, or
a graduate degree from
a provincially recognized post-secondary educational institution in Canada
issued on the completion of a program of full-time study of at least one year's
duration and within two years after obtaining a degree or diploma from an
institution referred to in clause (A) or (C), or
have acquired in Canada
within the 36 months before the day on which their application for permanent
residence is made at least 24 months of full-time work experience, or the
equivalent in part-time work experience, in one or more occupations that are
listed in Skill Type 0 Management Occupations or Skill Level A or B of the National
Occupational Classification matrix; and
· [...]
* * *
· Catégorie de l'expérience canadienne
· Catégorie
· 87.1 (1) Pour l'application du paragraphe 12(2) de la Loi, la
catégorie de l'expérience canadienne est une catégorie réglementaire de
personnes qui peuvent devenir résidents permanents du fait de leur expérience
au Canada et qui cherchent à s'établir dans une province autre que le
Québec.
· Qualité
Fait partie de la
catégorie de l'expérience canadienne l'étranger qui satisfait aux exigences
suivantes:
l'étranger, selon le
cas:
a accumulé au Canada au
moins douze mois d'expérience de travail à temps plein ou l'équivalent s'il
travaille à temps partiel 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 au cours des vingt-quatre mois
précédant la date de la présentation de sa demande de résidence permanente et,
antérieurement à cette expérience de travail, a obtenu au Canada, selon le
cas:
un diplôme, certificat
de compétence ou certificat d'apprentissage après avoir réussi un programme
d'études ou un cours de formation nécessitant au moins deux ans d'études à
temps plein et offert par un établissement d'enseignement ou de formation
postsecondaire public reconnu par une province,
un diplôme, certificat
de compétence ou certificat d'apprentissage après avoir réussi un programme
d'études ou un cours de formation nécessitant au moins deux ans d'études à
temps plein et offert par un établissement d'enseignement postsecondaire privé
au Québec qui est régi par les mêmes règles et règlements que les établissements
d'enseignement publics et dont les activités sont financées, pour au moins 50
%, par le gouvernement notamment, au moyen de subventions,
un diplôme
universitaire après avoir réussi un programme d'études nécessitant au moins
deux ans d'études à temps plein et offert par un établissement d'enseignement
postsecondaire privé reconnu par une province,
un diplôme d'études
supérieures après avoir réussi un programme d'études à temps plein d'une durée
d'au moins un an, offert par un établissement d'enseignement postsecondaire
reconnu par une province, au plus tard deux ans après avoir obtenu un diplôme d'un
établissement visé aux divisions (A) ou (C),
a accumulé au Canada au
moins vingt-quatre mois d'expérience de travail à temps plein ou l'équivalent
s'il travaille à temps partiel 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 au cours des trente-six
mois précédant la date de la présentation de sa demande de résidence
permanente;
· [...]
VII. ARGUMENT
Applicant
Reasonableness
14 The
Applicant says that he submitted an employment letter with his application
which outlined his performance of the duties required by NOC 0621. The letter
outlined the Applicant's duties as Front Store Manager (Applicant's Record at
82-84):
Determine merchandise
(over-the-counter products) and services to be sold
Take charge of refunds
and exchanges
Manage staff and assign
duties (also train new staff)
Resolve customer
complaints
Organize and locate
merchandise to promote sales in two ways
Locate and select
merchandise for resale
Organize special
promotions, displays and events (implementing marketing strategies)
Decide merchandise to
carry on the basis of customer's demands, which indicates analyzing and
interpreting trends to facilitate future planning of merchandise certain
products
Determine staffing
requirements and hire or oversee hiring of staff for the retail section
Manage the team to
increase sales and ensure efficiency
Work alongside the
pharmacist and technicians to balance stock levels and making decisions about
stock control
Touring the sales floor
regularly, talking to colleagues and customers, and identifying or resolving
urgent issues
15 The
Applicant says that a comparison of the duties outlined in the employment
letter with the duties described under NOC 0621 shows that the Officer's
finding that he had not performed all of the duties is unreasonable. NOC 0621
provides that Retail Managers perform some or all of the following main duties
(CTR at 26-27):
Plan, direct and
evaluate the operations of establishments engaged in wholesale and retail sales
or of departments in such establishments
Manage staff and assign
duties
Study market research
and trends to determine consumer demand, potential sales volumes and effect of
competitors' operations on sales
Determine merchandise
and services to be sold, and implement price and credit policies
Locate, select and
procure merchandise for resale
Develop and implement
marketing strategies
Plan budgets and
authorize expenditures
Resolve customer
complaints
Determine staffing
requirements and hire or oversee hiring of staff
16 The
Applicant says that the duties provided in the employment letter are specific
to employment in pharmacy and encompass the general statements that the Officer
made regarding the requirements under NOC 0621. The Applicant says that
"either the officer erred in law in misconstruing or ignoring evidence, or
the reasons as expressed are inadequate to meet the requirements of
fairness" (Applicant's Record at 129).
17 The
Applicant further submits that the Officer erred in calculating the qualifying
period for the Applicant's experience in relation to NOC 3219. The Applicant
says that his application detailed his experience as a Pharmacy Technician from
October 2009 to December 2010. The Citizenship and Immigration Canada website
provides that an applicant "must have had at least 12 months of full time
skilled work experience in Canada in the three year period prior to
application" in order to be eligible. The Applicant says that his
application was submitted in September 2012 and so should include all full-time
employment dating back to September 2009. The Officer erred in not taking his
experience as a Pharmacy Technician into consideration.
18 The
Applicant also says that the reasons are deficient because the reason that NOC
3219 was not considered has not been communicated to the Applicant. The
provision of insufficient reasons is a breach of the duty of fairness: Canada (Citizenship and Immigration) v Jeizan,
2010 FC 323 at paras 17-22.
Procedural
Fairness
19 The
Applicant says that the Officer breached the duty of procedural fairness by
failing to provide the Applicant with an opportunity to address the Officer's
concerns. The Applicant says that visa officers have a duty to not consider
extraneous information and may have a duty to alert applicants about particular
concerns: Rukmangathan v Canada (Minister of Citizenship
and Immigration), 2004 FC 284 at para 22 [Rukmangathan].
20 The
Applicant agrees that the duty does not require that an applicant be provided a
"running score" of deficiencies: Rukmangathan, above. However, the duty exists to allow an applicant an
opportunity to reply where the visa officer's concern is with the
"credibility, accuracy or genuine nature of the information submitted by
the applicant": Hassani,
above, at para 24. In Gedeon v Canada (Minister of
Citizenship and Immigration), 2004 FC 1245 at paras
101-102, the Court said that it was a reviewable error when the visa officer
failed to provide reasons for rejecting evidence of the applicant's work
experience and did not give the applicant an opportunity to address his
concerns.
21 The
Applicant says that this is not a case where the Applicant failed to adduce any
evidence to support the facts. Rather, the Applicant adduced evidence which the
Officer has raised concerns about. The Applicant should have been given an
opportunity to respond: Liao v Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. no 1926 at
paras 15, 17 (TD)(QL); Kuhathasan v Canada (Citizenship
and Immigration), 2008 FC 457 at paras 39-41; Singh Sekhon v Canada (Citizenship and Immigration), 2012 FC 700 at paras 12-14.
Respondent
22 The
Respondent says the Officer reasonably found that the Applicant's evidence was
insufficient to establish that he held the required experience under NOC 0621.
This assessment of the evidence falls within the Officer's jurisdiction: Wang v Canada (Minister of Citizenship and Immigration), 2006 FC 1298 at para 13 [Wang].
23 The
Respondent acknowledges that the current Regulations require qualifying work
experience to have been acquired in the three years preceding an application.
However, the Regulations that were in force when the Applicant submitted his
application provided that the qualifying work experience had to be acquired in
the twenty-four months preceding an application. As a result, the Officer
correctly identified the qualifying period as October 2010 to October 2012. The
Applicant had only two months of experience working as a Pharmacy Technician in
this time period.
24 The
Respondent says that the reasons detail the deficiencies in the Applicant's
evidence and set out the appropriate time period. The Officer's reasons are
supported by the record and the Regulations. There is no merit to the
Applicant's claim that the reasons are insufficient: Newfoundland
and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paras 14-17.
25 The
Respondent further submits that this Court has discussed the low level of
procedural fairness that is owed to visa applicants: Malik
v Canada (Citizenship and Immigration), 2009 FC 1283 at
paras 26, 29. An officer is not required to alert an applicant to concerns that
arise from legislative requirements or from their own evidence: Dhillon v Canada (Citizenship and Immigration), 2009 FC 614 at para 30; Liu v Canada
(Minister of Citizenship and Immigration), 2006 FC 1025
at para 16; Qin v Canada (Minister of Citizenship and
Immigration), 2002 FCT 815 at para 7. Whether the
Applicant had the requisite experience was directly related to the regulatory
requirements. The onus is on the applicant to submit all necessary information
and the onus does not shift to the visa officer to seek more information: see Singh v Canada (Citizenship and Immigration),
2010 FC 212 at para 11; Arango v Canada (Citizenship and
Immigration), 2010 FC 424 at para 15.
VIII. ANALYSIS
26 The
Applicant now concedes that the Officer did not err in the calculation of the
qualifying period for NOC 3219. This leaves the Court to deal with
unreasonableness and breach of procedural fairness with regard to the Decision
on NOC 0621 -- Front Store Manager. There is no need to address the procedural
fairness issues raised because I have concluded that the Decision is
unreasonable with regards to the Applicant's application under NOC 0621.
27 I
say this because a comparison between the duties that Human Resources and
Skills Development Canada sets out for NOC 0621 and the employer's letter
submitted with the application, which describes in detail what the Applicant
does as a Front Store Manager at Mary Gergis Pharmacy Inc O/A Bloor Park
Pharmacy, leaves me in no doubt that the Applicant's duties satisfy the lead
statement for NOC 0621 and nearly all of the main duties listed in NOC 0621.
The only one that I cannot say is immediately apparent is any reference to
"competitors' operations" which appears in the third bullet under Main Duties:
Study market research
and trends to determine consumer demand, potential sales volumes and effect of
competitors' operations on sales
The employer's letter covers everything else.
28 I
agree with the Respondent that the Officer has a broad discretion to weigh the
evidence submitted in making a decision, and that the Court should be very
reluctant to interfere with that discretion: see Wang, above, at para 13. However, the present case requires interference
because the evidence before me shows that the Decision is simply
incomprehensible.
29 It
is clear that the duties listed in the employer's letter do not use the same
words that appear in NOC 0621. But this will inevitably be the case because
applications have been refused when an employer simply reiterates the wording
of a NOC. So employers are obliged to describe in their own words exactly what
applicants do. This requires officers to examine applications carefully and not
to reject them because the same words are not used.
30 In
the present case, the Respondent conceded before me that, given the details in
the employer's letter, it would not have been unreasonable for the Officer to
have concluded that the Applicant did fulfill the requirements of NOC 0621. The
Respondent correctly points out that just because a positive decision would
have been reasonable does not mean that a negative decision is unreasonable. In
this case, however, there are, in my view, no grounds for the Officer's finding
that the Applicant did not meet the requirements of NOC 0621. In other words,
the Decision lacks justification and intelligibility and falls outside the
range of possible, acceptable outcomes which are defensible in respect of the
facts and law: see Dunsmuir,
above, at para 47. This means the Decision must be quashed and retuned for
reconsideration in accordance with these reasons.
31 Counsel
agree there is no question for certification and the Court concurs.
JUDGMENT
· THIS COURT'S JUDGMENT is that
The application is
allowed. The Decision is quashed and the matter is returned for reconsideration
by another officer in accordance with my reasons; and
There is no question
for certification.
RUSSELL J.
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