OFFICER ASSESSED JOB DUTIES INCORRECTLY IN CEC APPLICATION

Officers assessing Canadian Experience Class candidates have wide discretion, but must not misread the evidence or apply the incorrect test.  In the case below, the officer misread the duties of the job as presented by the applicant's letter of reference, and incorrectly assessed it againt the duties in the NOC requirements.

Song v. Canada (Minister of Citizenship and Immigration)

Between
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.

(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:

·       1. 

Did the Officer err in law in finding that the Applicant did not meet the requirements of NOC 0621? 

·       2. 

Did the Officer err in calculating the qualifying period for the Applicant's work experience? 

·       3. 

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

·       (2) 

A foreign national is a member of the Canadian experience class if 

·       (a) 

they 

·       (i) 

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) 

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, 

·       (B) 

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, 

·       (C) 

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 

·       (D) 

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 

·       (ii) 

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

·       (2) 

Fait partie de la catégorie de l'expérience canadienne l'étranger qui satisfait aux exigences suivantes: 

·       a) 

l'étranger, selon le cas: 

·       (i) 

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: 

·       (A) 

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, 

·       (B) 

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, 

·       (C) 

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, 

·       (D) 

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), 

·       (ii) 

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

·       A. 

Applicant

·       (1) 

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.

·       (2) 

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.

·       B. 

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

·       1. 

The application is allowed. The Decision is quashed and the matter is returned for reconsideration by another officer in accordance with my reasons; and 

·       2. 

There is no question for certification. 

RUSSELL J.

EVIDENcE OF WORK EXPERIENCE NOT SUFFICIENT FOR CANADIAN EXPERIENCE CLASS

The applicant below applied under the Canadian Experience Class but the officer rejected her application due to questionable evidence of experience. the Federal Court upheld the negative decision on the basis that the  officer had discretion and the reasons were sufficient.

Morgan v. Canada (Minister of Citizenship and Immigration)

Between
Lucinda Gabrielle Morgan, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2014] F.C.J. No. 905

2014 FC 897

Docket: IMM-880-14

Federal Court
Toronto, Ontario

Mosley J.

Heard: September 4, 2014.
Judgment: September 18, 2014.

(27 paras.)

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JUDGMENT AND REASONS

1     MOSLEY J.:-- The applicant seeks to set aside the decision of a visa officer refusing her application for permanent residency as a member of the Canadian Experience Class (CEC) of skilled workers. She alleges that the visa officer assessed her application unreasonably and that he offered inadequate reasons in support of his decision. For the reasons that follow, I have concluded that the officer's decision should be upheld. The application for judicial review is dismissed.

I. BACKGROUND

2     Ms Morgan is a citizen of the United Kingdom. She entered Canada on May 11, 2011, with a work permit under the International Experience Class.

3     Ms Morgan worked at the Healthcare of Ontario Pension Plan (HOOPP) as a financial planning assistant from June 2011 to December 2012. In March 2013, she began working as an office assistant at Crowe Soberman LLP.

4     On April 25, 2013, Ms Morgan applied for permanent residency under the CEC. She identified two categories as matching her skilled work experience: NOC 1241 (administrative assistant) and NOC 1221 (office assistant). While she provided a reference letter from HOOPP in support of her application, she did not submit any documents relating to her work at Crowe Soberman LLP.

5     A visa officer rejected Ms Morgan's application on August 27, 2013. One month later, she requested that the respondent Minister of Citizenship and Immigration reconsider her application.

6     Ms Morgan applied for leave and judicial review of the negative decision on February 13, 2014. Six days later, the respondent refused her request for reconsideration. Ms Morgan then sought an extension of time and leave for judicial review of the August 27, 2013 decision. Leave and an extension of time were granted on June 6, 2014.

II. DECISION UNDER REVIEW

7     The visa officer's decision has two components: a letter dated August 27, 2013 and entries in the Computer Assisted Immigration Processing System (CAIPS).

8     In his letter, the officer indicated that he had refused the application for the following reasons:

·       I am not satisfied that you meet the requirement(s) because After taking into consideration the work experience supporting documentation on file, I am not satisfied that you have performed the actions described in the lead statement for the occupation or that you performed a substantial number of the main duties of NOC 1241 (Administrative assistants). The main duties of your work experience that are listed in your employment letter from HOOPP do not correspond to the main duties of NOC 1241 (Administrative assistants). As well, you have not provided an employment letter listing main duties of your work experience from your current employer (Crowe Soberman). 

9     The CAIPS notes read as follows:

·       CEC FILE REVIEWED BY PROGRAM SUPPORT OFFICER PA's file has been reviewed under Canadian Experience Class category. Although PA has indicated work experience at an 0, A or B NOC level, I am not satisfied that PA has performed a substantial number of the main duties and/or that duties performed by PA do not correspond to lead statement for the NOC codes 1241 (Financial Planning Assistant). As well, PA did not provide an employment letter listing main duties from her current employer (NOC 1221 -- Office Assistant with Crowe Soberman). It appears PA has not met all requirements to submit an application under the CEC category. Letter emailed to address(es) on file informing PA that s/he is [sic] application is refused. [...] 

III. ISSUE

10     The issue is whether the visa officer rendered a reasonable decision. Since Ms Morgan disputes his application of the relevant regulations to her case and the sufficiency of the officer's reasons, I will examine the decision in light of both these factors.

11     In addition, the applicant's written submissions alleged that the decision gave rise to a reasonable apprehension of bias. Her counsel did not press this issue at the hearing. In my view, there is nothing in the record to support the allegation.

IV. ANALYSIS

·       A. 

Standard of review

12     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 paras 10-11.

13     An analysis on the reasonableness standard examines both the process and outcome of decision-making. The Supreme Court has stated that reasonableness requires both "justification, transparency and intelligibility within the decision-making process" and 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 para 47.

14     Importantly, 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 para 14 [Newfoundland Nurses]; see also Ayanru v Canada (Minister of Citizenship and Immigration), 2013 FC 1017 at para 7. I will examine the adequacy of the officer's reasons when inquiring whether his decision, taken as a whole, is reasonable.

·       (1) 

Did the visa officer render a reasonable decision?

15     The visa officer assessed Ms Morgan's application against subsection 87.1(2) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations], which sets out cumulative criteria for obtaining permanent residency under the CEC. Three are relevant to this case. First, an applicant must have acquired, during the three years preceding her application, at least one year of full-time work experience (or the equivalent in part-time experience) in occupations listed in Skill Type 0 Management Occupations or Skill Level A or B of the National Occupational Classification (NOC) matrix: paragraph 87.1(2)(a). Second, the applicant must have performed the actions described in the lead statement for the occupation as set out in its NOC description: paragraph 87.1(2)(b). Third, the applicant must have performed a substantial number of the main duties of that occupation: paragraph 87.1(2)(c). The applicant bears the onus of proving that her application meets the requisite criteria.

16     In the case at bar, the officer evaluated a reference letter detailing Ms Morgan's work experience at HOOPP. He determined that she had performed neither the actions described in the lead statement for NOC 1241 (administrative assistant) nor a substantial number of the main duties of that occupation. The officer also found that Ms Morgan could not rely on NOC 1221 (office assistant) because she had not submitted a letter listing her main duties while working at Crowe Soberman LLP.

17     In Qin v Canada (Minister of Citizenship and Immigration), 2013 FC 147 at paras 28 and 30, Justice Gleason commented on the task of a visa officer considering a CEC application:

·       [Section] 87.1 of the Regulations requires an officer to evaluate whether a candidate has experience in one of the listed NOC occupations, but provides no guidance as to how such experience is to be evaluated, other than by reference to the listing of duties contained in the NOC matrix. 

[...]

·       In evaluating whether or not an applicant's experience falls within a permissible NOC Code, an officer is required to understand the nature of the work performed and the degree of complexity of the tasks undertaken, to determine whether or not they fall within the duties listed in the relevant NOC Code descriptors. The requisite analysis necessitates much more than a rote comparison of the duties listed in the NOC Code with those described in a letter of reference or job description. Rather, what is required is a qualitative assessment of the nature of the work done and comparison of it with the NOC Code descriptor. Indeed, there is a line of authority which indicates that, in the context of Federal Skilled Workers (where an officer is similarly required to assess duties performed against the NOC Code descriptors), the officer may legitimately question whether the applicant possesses the relevant experience if all that he or she does is repeat the duties from the NOC descriptor in a letter of reference. In such cases, this Court has sometimes held that an officer is required to hold an interview or pose additional questions in writing to an applicant, in order to obtain more detail about the actual nature of the work performed (see e.g. Talpur and Patel v Canada (Minister of Citizenship & Immigration), 2011 FC 571). Thus, it is beyond debate that the officer must undertake a substantive analysis of the work actually done by an applicant. [emphasis added] 

18     Ms Morgan contends that the visa officer did not undertake a substantive analysis of her application. Rather, he followed a check-off approach that gave no regard to the substance of her employment at HOOPP. It is for this reason, Ms Morgan argues, that his refusal was unreasonable.

19     As I noted previously, subsection 87.1(2) of the Regulations establishes a cumulative test. The applicant must therefore prove that the officer erred in concluding that her employment did not match the lead statement and that she did not perform a substantial amount of the duties of NOC 1241. If either one of the officer's findings is reasonable, his decision must stand.

20     The lead statement for NOC 1241 reads as follows:

·       Administrative assistants perform a variety of administrative duties in support of managerial and professional employers. They are employed throughout the private and public sectors. 

21     The applicant's evidence indicates that she reconciled financial data, processed journal entries, performed data entry and supported planning and performance teams. Ms Morgan submits that these tasks qualify as administrative duties in support of a public sector employer. On the other hand, the respondent advances that the applicant's primary role at HOOPP involved the entry and reconciliation of financial data. He draws particular attention to her reference letter's qualification that her responsibility to provide support to the planning and performance teams arose only "as required".

22     In my view, the officer could reasonably characterize the applicant's employment as a clerical or bookkeeping role which does not match the lead statement for NOC 1241. However, even if the applicant had succeeded in casting doubt on this finding, paragraph 87.1(2)(c) of the Regulations would still doom her application for judicial review.

23     Indeed, the evidence tendered by the applicant reveals a discrepancy between the duties she performed at HOOPP and those listed under NOC 1241. The visa officer's conclusion that Ms Morgan did not perform a substantial number of the main duties of NOC 1241 withstands scrutiny on the standard of reasonableness. It clearly falls "within a range of possible, acceptable outcomes which are defensible in respect of the facts and law": Dunsmuir, above, at para 47.

24     In my view, this is not a case such as Gao v Canada (Minister of Citizenship and Immigration) 2014 FC 821, where the officer had unreasonably excluded evidence of three of the eight duties and erroneously considered some of them to be essential.

25     I now turn to the applicant's argument that the visa officer provided inadequate reasons. The case law is clear that sparse reasons do not impair an administrative decision if the outcome is reasonable in light of the record. As the Supreme Court stated in Newfoundland Nurses, above, at para 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. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion [.] 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. 

26     Newfoundland Nurses does not provide a license to the Court to fill in the gaps in a decision or to speculate as to what the decision-maker was thinking: Komolafe v Canada (Citizenship and Immigration), 2013 FC 431, at paragraph 11. However here, the officer's brief reasons adequately identify the grounds for which he rejected Ms Morgan's application. They refer the applicant -- and a potential reviewing court -- to the lead statement and listed duties of NOC 1241. The officer reasonably concluded that the applicant did not meet the burden of proving that her work experience matched these requirements. Consequently, his failure to compose more elaborate reasons does not render his decision unreasonable.

27     To conclude, I see no basis for interfering with the visa officer's decision. As neither party proposed a serious question of general importance, none will be certified.

JUDGMENT

THIS COURT'S JUDGMENT is that the application is dismissed. No question is certified.

MOSLEY J

CANADIAN EXPERIENCE CLASS APPLICANT NOT PROPERLY ASSESSED

The officer in the case below misconstrued the employer letter and emphasized the areas that were not supervisory. The court rejected that assessment and the applicant was granted a second chance.

Gao v. Canada (Minister of Citizenship and Immigration)

Between
Cijia Gao, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2014] F.C.J. No. 850

2014 FC 821

Docket: IMM-3457-13

 Federal Court
Calgary, Alberta

Rennie J.

Heard: July 8, 2014.
Judgment: August 25, 2014.

(10 paras.)

---

JUDGMENT AND REASONS

1     RENNIE J.:-- The applicant seeks to set aside the April 25, 2013 decision of a visa officer refusing the applicant's application for permanent residency as a member of the Canadian Experience Class of skilled workers. The applicant had applied under the Canadian Experience Class under National Occupation Classification (NOC) 6211 as a Retail Sales Supervisor and had been offered a position at Safeway Ltd.

2     After reviewing the evidence, the visa officer made the following relevant findings:

·       1. 

The applicant had not supervised and co-ordinated sales staff and cashiers or assigned sales workers to duties. 

·       2. 

The applicant provided a letter from his employer, describing the applicant's job duties. The officer noted that three of the five job duties described use the verbs "helping," "assisting" and "aiding" in describing the applicant's responsibilities. 

3     In the decision letter, the officer concluded that the applicant did not provide evidence that he performed a substantial number of the main duties of a retail sales supervisor under NOC 6211, nor evidence that he performed the essential duties of the position. As such, the officer was not satisfied that the applicant met the statutory requirements to be granted permanent residence under the Canadian Experience Class and refused the application.

4     The case before me is identical in substance to that of Benoit v Canada (Citizenship and Immigration), 2013 FC 185. In that decision Justice Russel Zinn wrote:

·       Paragraph 87.1(2)(c) of the Regulations required that Ms. Benoit "[have] performed a substantial number of the main duties [...] including all of the essential duties" listed in the NOC under which she listed her experience. In NOC 6211, under which she applied, there are no "essential" duties, only "main" duties. Accordingly, Ms. Benoit was required to have performed a "substantial number" of these main duties... 

5     The officer in this case was required to determine if the applicant "performed a substantial number of the main duties." As noted however, the April 25, 2013 decision letter states that the officer was not satisfied that the applicant had "performed a substantial number of the main duties of Retail Trade Supervisors as set out in the occupational description of the National Occupational Classification, including all of the essential duties."

6     NOC 6211 does not list any essential duties. It is, therefore, unclear, against what standard the officer assessed the application.

7     The respondent points to the Computer Assisted Immigration Processing System (CAIPS) notes, which make no reference to essential duties, but only to "a substantial number of the job duties", and urges that the Court overlook the error in the decision letter on the authority of Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, at para 12. In my view, there is a substantive difference in resorting to the record to complete, or, in the language of the Supreme Court of Canada, to supplement an otherwise deficient decision, and resorting to the record to override or negate patent error on the face of the decision in respect of a critical element. In Komolafe v Canada (Citizenship and Immigration), 2013 FC 431, at paragraph 11, I wrote:

·       Newfoundland Nurses is not an open invitation to the Court to provide reasons that were not given, nor is it licence to guess what findings might have been made or to speculate as to what the tribunal might have been thinking. This is particularly so where the reasons are silent on a critical issue. It is ironic that Newfoundland Nurses, a case which at its core is about deference and standard of review, is urged as authority for the supervisory court to do the task that the decision maker did not do, to supply the reasons that might have been given and make findings of fact that were not made. This is to turn the jurisprudence on its head. Newfoundland Nurses allows reviewing courts to connect the dots on the page where the lines, and the direction they are headed, may be readily drawn. Here, there were no dots on the page. 

8     In note that in Benoit, Justice Zinn resisted a similar argument urging an expansive application of the Newfoundland Nurses decision:

·       In my view, no amount of "supplement[ing]," to quote Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 12, salvages the officer's decision. The Regulations clearly require that only a "substantial" number of the duties be performed. That is the test. The officer in this case singles out only parts of two of the eight main duties from NOC 6211 and on that basis concluded that Ms. Benoit's experience at the Granite did not qualify. 

9     The decision also cannot stand for a second reason. NOC 6211 requires that "some or all" of the duties be met. The decision letter focuses on the fact that employer's letter described the applicant as "helping," "assisting" and "aiding". From that, the officer concluded that the applicant did not perform three of the duties. Without greater context, evidence or information before the officer, it was unreasonable for the officer to conclude that performing a function in concert with, or parallel to others, such as is common in a team-based work environment, means that the person did not perform the function or duty.

10     In sum, this case is on all fours with Benoit, where the officer singled out two parts of the eight duties and on that basis concluded that Ms. Benoit did not qualify. Here, the officer unreasonably excluded evidence of three of the eight duties, and, on the face of the decision erroneously considered some of them to be essential.

JUDGMENT

THIS COURT'S JUDGMENT is that the application is granted and the matter is remitted for reconsideration by a different immigration officer. There is no question for certification.

RENNIE J.