Millik v. Canada (Minister of Citizenship and
Immigration)
Between
Amira Lotfy Farwiz Millik, Applicant, and
The Minister of Citizenship and Immigration, Respondent
Amira Lotfy Farwiz Millik, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2015] F.C.J. No. 39
2015 FC 82
Docket: IMM-3773-13
Federal Court
Toronto, Ontario
Boswell J.
Heard: October 22, 2014.
Judgment: January 22, 2015.
Docket: IMM-3773-13
Federal Court
Toronto, Ontario
Boswell J.
Heard: October 22, 2014.
Judgment: January 22, 2015.
(27 paras.)
JUDGMENT AND REASONS
· BOSWELL J.:--
I. Nature of the Matter and Background
1 Pursuant
to subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 [Act], Ms. Amira Lotfy
Farwiz Millik [Applicant] seeks judicial review of the decision of a visa
officer [Officer] to deny her application for permanent residence in Canada
under the Federal Skilled Worker class. The Officer was not satisfied that the
Applicant had met the requirements set forth in subsection 75(2) of the Immigration and Refugee Protection Regulations,
SOR/2002-227 [Regulations].
2 The
Applicant is a 44 year old citizen of Egypt who received a job offer as an
administrative secretary at the Queen's Medical Centre, in Oakville, Ontario,
from her sister, Dr Bebawy. Following the issuance of a positive arranged
employment opinion from Service Canada dated February 7, 2012, the Applicant
applied for permanent residence status in Canada under the Skilled Worker
Program in September, 2010. This application was rejected by the Officer in a
letter dated April 18, 2013.
II. Decision
3 The
Officer was not satisfied that the Applicant had met the requirements set forth
in subsection 75(2) of the Regulations. The Officer's decision letter stated,
in part, that:
· [T]he letter you provided from your employer does not list your hours
of work and your letter of employment provides insufficient information about
your duties to satisfy me that you have performed the actions described in the
lead statement or a substantial number of the main duties of the occupations in
which you have requested assessment: NOC [National Occupational Classification
code] 1243: Medical administrative assistants, and NOC 4031: Secondary school
teachers. I have also considered NOC 1241: Administrative assistants.
4 In
the Global Case Management System [the GCMS] notes, the Officer found, amongst
other things, that:
The duties described in
the letter from the Applicant's employer were very vague and referred to
"participating in" activities and, thus, were insufficient to assess
the Applicant's specific duties;
The duties that the
Applicant said that she had as an administrative assistant did not match the
main duties of NOC codes 1241 or 1243;
The duties that the
Applicant said that she had as a teacher did not match the main duties of NOC
code 4031;
The original Arabic copy
of the letter from her employer was not supplied and the copy on file had been
translated in Ontario;
The employment letter
did not list the Applicant's hours of work or confirm that she worked full
time;
The employment letter
did not state the Applicant's salary and no pay stubs or employment contract
were provided in support of the application;
The employment letter
did not provide any contact information for the school where the Applicant
worked; and
The "[d]uties
listed [in the employment letter] do not match any of the NOCs in which
assessment is required".
5 The
Officer thus concluded that the Applicant had not proven that she performed the
duties of any of the occupations for which assessment had been requested.
Accordingly, the Officer refused the application and did not complete a
selection assessment.
III. The Parties' Submissions
The Applicant's
Arguments
6 The
Applicant submits that the Officer's decision is unreasonable. Not only is
there a clear factual error concerning the letter from the Applicant's
employer, but the Officer misapplied the NOC codes. According to the Applicant,
the Officer's decision is not intelligible and lacks transparency.
7 The
Applicant criticizes the Officer's statement that the letter from the
Applicant's employer did not disclose her hours of work or confirm that she
worked full time. The Applicant states that is erroneous as the letter clearly
says: "[t]he school certifies that she has excellent organization skills,
as she works full time (40 hours per week), and takes full responsibility for
her work." The Applicant argues that this failure to register such readily
apparent and important information in the letter casts doubt on the Officer's
diligence in reviewing that letter as well as on the subsequent analysis. In
addition, the Applicant submits that a statement of the salary for the position
is not required by the Regulations.
8 The
Officer, according to the Applicant, unduly and unreasonably focused upon the
words "participating in" in the employer's letter, especially given
that it was a translation. Citing the decisions in Rodrigues
v Canada (Citizenship and Immigration), 2009 FC 111 at
paragraphs 9-10 (available on CanLII), and in Noman v
Canada (Minister of Citizenship and Immigration), 2002
FCT 1169 at paragraphs 29, 32-33, 24 Imm LR (3d) 131, the Applicant submits
that an applicant does not need to perform all of the duties listed in a NOC
and a visa officer needs to assess the "pith and substance" of an
applicant's previous employment. The Applicant says there is an element of
common sense that needs to be applied in the circumstances of this case, since
she clearly is a teacher, an occupation common across the world.
9 Citing
the decision in Taleb v Canada (Citizenship and
Immigration), 2012 FC 384 at paragraph 36, 407 FTR 185,
the Applicant argues that the employer's letter sufficiently lists the
Applicant's job duties. She argues that the NOC requirements are broad, and it
was not reasonable for the Officer to focus upon the duties in minute detail.
The decision in Zeeshan v Canada (Citizenship and
Immigration), 2013 FC 248 (available on CanLII), is
distinguishable from the circumstances here, the Applicant says, since in that
case there was no list of duties in the employer's letter.
10 The
Applicant further argues that the Officer's reasons were not intelligible, as
the Officer did not sufficiently explain how the decision was reached. Citing Abbasi v Canada (Citizenship and Immigration),
2013 FC 278 at paragraphs 6-9, 16 Imm LR (4th) 323 [Abbasi], and Komolafe v Canada (Citizenship and
Immigration), 2013 FC 431 at paragraphs 8-11, 16 Imm LR
(4th) 267 [Komolafe], the
Applicant says that the reasons are simply not transparent enough.
11 As
for the decision in Khowaja v Canada (Citizenship and
Immigration), 2013 FC 823, 437 FTR 219 [Khowaja] upon which the Respondent relies, the
Applicant submits that that case is distinguishable since the officer's notes
in that case were more extensive and better reasoned than is the case here.
The Respondent's
Arguments
12 The
Respondent states that the onus was upon the Applicant to put her best case
forward and to submit an application that was "relevant, convincing and
unambiguous" (see: Obeta v Canada (Citizenship and
Immigration), 2012 FC 1542 at paragraph 25, 424 FTR 191;
Pan v Canada (Citizenship and Immigration), 2010 FC 838 at paragraph 27, 90 Imm LR (3d) 309).
13 The
Respondent concedes that the Officer erred in finding that the letter from the
Applicant's employer did not confirm her work schedule or full-time status.
However, this error, the Respondent says, was a minor one that does not make the
decision as a whole unreasonable.
14 The
Respondent submits that the Officer's analysis was based on the uncertainty of
the duties performed by the Applicant. The employer's letter only refers to the
Applicant as a "teacher," not a "secondary school teacher,"
which was the relevant occupation in respect of which the Applicant had
requested assessment. Further, although we can assume what a teacher does in
respect of some things, the Applicant also said that she performed a number of
administrative duties, which implies a somewhat different role than a teacher
in Canada. In the Respondent's view, her role was ambiguous, and the Officer
was entitled to expect more detail.
15 The
Respondent also states that the NOC comparison made by the Officer was clear.
The Respondent argues that there is a presumption of deference to the decision
of the Officer and this case is no different than that in Khowaja at paragraph 38.
16 The
Respondent concludes that the Officer's decision was a reasonable one.
IV. Issues and Analysis
17 This
application for judicial review raises only one central issue for determination
by the Court: was the Officer's decision that the Applicant did not meet the
requirements set out in subsection 75(2) of the Regulations reasonable?
18 Visa
officers render discretionary decisions which are reviewable on the standard of
reasonableness: Wang v Canada (Minister of Citizenship
and Immigration), 2008 FC 798 at paragraphs 10-11
(available on CanLII). The Supreme Court has stated that reasonableness
requires "justification, transparency and intelligibility within the
decision-making process" as well as a decision which falls "within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law": Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph 47, [2008] 1 SCR 190.
19 The
insufficiency of reasons is not "a stand-alone basis for quashing a
decision": Newfoundland and Labrador Nurses' Union
v Newfoundland and Labrador (Treasury Board), 2011 SCC
62 at paragraph 14, [2011] 3 SCR 708 [Newfoundland
Nurses]; see also Ayanru v Canada
(Citizenship and Immigration), 2013 FC 1017 at paragraph
7 (available on CanLII). However, reasons must "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": Newfoundland Nurses at paragraph 16. The Court
does not have a licence to fill in the gaps in a decision or to speculate as to
what the decision-maker was thinking: see Komolafe at paragraph 11; Lemus v Canada (Citizenship
and Immigration), 2014 FCA 114 at paragraphs 37-38, 372
DLR (4th) 567.
20 I
agree with the Applicant's submission that the Officer's erroneous finding of
fact as to her full-time work status, which error the Respondent concedes,
casts doubt on the Officer's entire review of the Applicant's application. In
my view, this factual error clouded and confused the Officer's analysis of the
Applicant's job duties as a teacher. This case is not like that in Khowaja, upon which the Respondent relies,
since there was no blatant factual error in the officer's notes in that case.
21 This
factual error, in and of itself, does not render the Officer's decision
unreasonable. However, it was incumbent upon the Officer here to assess and
analyze the "pith and substance" of the Applicant's duties at the
Manarat Alexandria Private School and consider those duties with the NOCs being
assessed, something which the Officer did not do in the reasons. On the
contrary, the Officer simply stated in the GCMS notes that he or she found the
description of the duties in the letter from the Applicant's employer
"very vague" because they referred merely to "participating
in" certain activities. In my view, it was not reasonable for the Officer
to microscopically examine the employer's letter in this manner and then to
conclude with reference to the duties listed in the letter: "Insufficient
for me to assess her specific duties".
22 This
Court's decision in Komolafe is
instructive in this regard, where my colleague Mr. Justice Donald Rennie
stated:
· [8] ... It is not for this Court to determine whether the applicant
has in fact performed the actions described in the lead statement and a
substantial number of the main duties. The agent must do so, with some line of
reasoning which provides a basis for review. As Justice Richard Mosley found in
Gulati v Canada (Citizenship and Immigration), 2010 FC 451, it is impossible to assess the reasonableness of the
officer's conclusions without knowing which duties had not been
performed.
· [9] The decision provides no insight into the agent's reasoning
process. The agent merely stated her conclusion, without explanation. It is
entirely unclear why the decision was reached.
23 The
Officer's conclusion that the "duties listed [in the employment letter] do
not match any of the NOCs in which assessment is required" was made
without any apparent evaluation or assessment of the Applicant's duties at the
Manarat Alexandria Private School. The Regulations require in paragraph
75(2)(c) that only a "substantial" number of the main duties be
performed with respect to the NOC being assessed. It is not clear in this case
that the Officer turned or directed his or her mind to the question of whether
subsection 75(2) of the Regulations had been met.
24 As
to the adequacy or sufficiency of the Officer's reasons in this case, this
Court's decision in Abbasi
deserves note. In Abbasi, Madam
Justice Judith Snider stated as follows:
· [9] The Officer's reasons did not need to be extensive. However, to
be reasonable, the reasons must demonstrate that the Officer had performed his
duty. In this regard, I note the words of Justice Mosley in Gulati v Canada (Minister of Citizenship and Immigration), 2010 FC 451 at paras 41-42, 89 Imm LR (3d) 238:
· It is impossible to assess the officer's conclusion, that the
applicant had not performed a substantial number of the main duties of NOC
6212, without knowing which duties the officer thought had not been performed
and why.
· According to Dunsmuir,
above, at paragraph 47, the transparency and intelligibility of a decision are
important elements of a reasonableness analysis. I conclude that their absence
in the present decision render it unreasonable.
25 As
in Abbasi, the Officer's decision
in this case offers no insight into his or her reasoning process and it is
entirely unclear why the decision was reached. The Officer's decision does not
provide sufficient grounds for this Court to understand the Officer's reasoning
and, thus, is neither intelligible nor transparent.
V. Conclusion
26 In
the result, therefore, I find that the Officer's decision is not reasonable as
it is not defensible in respect of the facts and law.
27 Accordingly,
the application for judicial review is allowed, the decision of the Officer is
quashed, and the matter sent back for re-determination by a different visa
officer. Neither party raised a question of general importance, and so none is
certified.
JUDGMENT
· THIS COURT'S JUDGMENT is that:
the application for
judicial review is allowed;
the decision of the
Officer is quashed and the matter sent back for re-determination by a different
visa officer; and
no question of general
importance is certified.
BOSWELL J.
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