Moradi v. Canada (Minister of Citizenship and
Immigration)
Between
Maryam Moradi, Applicant, and
The Minister of Citizenship and Immigration, Respondent
Maryam Moradi, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2013] F.C.J. No. 1293
2013 FC 1186
Docket IMM-1379-13
Federal Court
Toronto, Ontario
Russell J.
Heard: September 9, 2013.
Judgment: November 26, 2013.
Docket IMM-1379-13
Federal Court
Toronto, Ontario
Russell J.
Heard: September 9, 2013.
Judgment: November 26, 2013.
(42 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
RUSSELL J.:--
INTRODUCTION
1 This
is an application under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [Act] for
judicial review of the decision of a visa officer [Officer], dated June 1,
2012, which denied an application for permanent residence in the Federal
Skilled Worker [FSW] class.
BACKGROUND
2 The
Applicant is a citizen of Iran who submitted an application for permanent
residence as a Federal Skilled Worker. Under the relevant Ministerial
instructions, only those with an Offer of Arranged Employment, those legally
residing in Canada for at least one year as a Temporary Foreign Worker or
International Student, or those who have work experience in certain listed
occupations can apply through this program. The Applicant applied based on
experience as an accountant under National Occupational Classification (NOC)
1111, Financial Auditors and Accountants, which is one of the eligible
occupations.
3 The
application for permanent residence was initially screened by the Central
Intake Office in Sydney, Nova Scotia, and determined to be eligible for
processing under the FSW class. The Applicant was invited to submit a full
application package, which was referred to an overseas visa office for a final
determination of eligibility. A visa officer in Ankara, Turkey denied the
application, and the Applicant was notified of this decision by a letter dated
June 1, 2012.
4 The
"lead statement" for NOC 1111 states:
· Financial auditors examine and analyze the accounting and financial
records of individuals and establishments to ensure accuracy and compliance
with established accounting standards and procedures. Accountants plan,
organize and administer accounting systems for individuals and establishments.
Articling students in accounting firms are included in this unit group.
Financial auditors and accountants are employed by auditing and accounting
firms throughout the private and public sectors, or they may be
self-employed.
5 Under
"main duties," NOC 1111 states that accountants perform some or all
of the following duties:
Plan, set up and
administer accounting systems and prepare financial information for
individuals, departments within organizations, businesses and other
establishments
Examine accounting
records and prepare financial statements and reports
Develop and maintain
cost finding, reporting and internal control procedures
Examine financial
accounts and records and prepare income tax returns from accounting
records
Analyze financial
statements and reports and provide financial, business and tax advice
May act as a trustee in
bankruptcy proceedings
May supervise and train
articling students, other accountants or administrative technicians.
DECISION UNDER REVIEW
6 The
Officer determined that the Applicant was not eligible to immigrate in the FSW
class because her work experience did not match the description of NOC 1111. In
the Officer's view, the Applicant had not provided sufficient evidence that she
had performed the actions described in the lead statement for the occupation,
nor that she had performed all of the essential duties and a substantial number
of the main duties set out in the NOC.
7 The
Officer found that the duties described in the two employment letters submitted
in support of the application more closely resembled the duties of a bookkeeper
(NOC 1231) or an accounting clerk (NOC 1431), which are not eligible
occupations under the FSW. The Officer's May 29, 2012 notes from the Global
Case Management System (GCMS Notes), which form part of the reasons for the
Decision, read as follows:
· ...PA states has experience as an Accountant NOC 1111. PA submitted
two employment letters in support of application. One is from Hafez Karan Sehat
and states that PA prepared monthly reports and lists of salary, insurance, tax
and submitted them to relevant organizations, analyzed proposed projects and
determined profits and loss, prepared financial reports and data for employers
and director. Second employment letter is from Iran Khodro and states that PA
analyzed and calculated costs associated with "outbound delegates",
calculated and paid daily allowances, prepared and issued foreign exchange
bills. Am not satisfied, on the basis of the descriptions provided in employment
letters that PA performed a substantial amount of the duties stated in NOC
1111. Her work experience more closely resembles that of a bookkeeper (NOC1231)
or accounting clerk (NOC1431). Therefore, am not satisfied that the ministerial
instructions have been met. ECP: Pls draft eligibility-not met ltr and refund
all processing fees.
ISSUES
8 The
Applicant raises the following issues in this Application:
Did the Officer breach a
duty of procedural fairness by failing to inform the Applicant of his concerns
regarding her employment experience and provide her an opportunity to address
those concerns before rejecting the application?
Was the Officer's
decision unreasonable?
STANDARD OF REVIEW
9 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 [Agraira].
10 The
Respondent argues that a visa officer's determination of eligibility for
permanent residence under the FSW class involves findings of mixed fact and
law, and is reviewable on a standard of reasonableness: Dunsmuir, above, at paras 47-48 and 50-51; Nasr v.
Canada (Minister of Citizenship and Immigration), 2011
FC 783 at para 12. The Applicant argues that this Application also raises
issues of natural justice and procedural fairness, and that such questions are
reviewable on a standard of correctness: Kastrati v.
Canada (Minister of Citizenship and Immigration), 2008
FC 1141 at paras 9-10; Benitez v. Canada (Minister of
Citizenship and Immigration), 2006 FC 461 at para 44; Khan v. Canada (Minister of Citizenship and Immigration), 2009 FC 302; Canada (Citizenship and
Immigration) v. Khosa, 2009 SCC 12 at para 43 [Khosa].
11 I
agree with the Applicant that, to the extent issues of procedural fairness
arise here, they are reviewable on a standard of correctness: Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of
Labour), 2003 SCC 29 at para 100; Sketchley v. Canada (Attorney General), 2005
FCA 404 at para 53. The Officer's decision regarding whether the applicant was
eligible to immigrate under the FSW class is reviewable on a standard of
reasonableness.
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, and Khosa, above, 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."
STATUTORY PROVISIONS
13 The
following provisions of the Act are applicable in these proceedings:
12 [...]
Economic immigration
A foreign national may
be selected as a member of the economic class on the basis of their ability to
become economically established in Canada.
* * *
12 [...]
Immigration économique
La sélection des
étrangers de la catégorie "immigration économique" se fait en
fonction de leur capacité à réussir leur établissement économique au
Canada.
14 The
following provisions of the Immigration and Refugee
Protection Regulations, SOR/2002-227 [Regulations] in
effect on the date of the decision are applicable in these proceedings:
· Issuance
(1) An officer shall
issue a permanent resident visa to a foreign national if, following an
examination, it is established that
the foreign national has
applied in accordance with these Regulations for a permanent resident visa as a
member of a class referred to in subsection (2);
[...]
Classes
The classes are
· [...]
the economic class,
consisting of the federal skilled worker class, the transitional federal
skilled worker class, the Quebec skilled worker class, the provincial nominee
class, the Canadian experience class, the investor class, the entrepreneur
class, the self-employed persons class, the transitional federal investor
class, the transitional federal entrepreneur class and the transitional federal
self-employed persons class; and
[...]
Class
(1) For the purposes of
subsection 12(2) of the Act, the federal skilled worker class is hereby
prescribed as a class of persons who are skilled workers and who may become
permanent residents on the basis of their ability to become economically
established in Canada and who intend to reside in a province other than the
Province of Quebec.
Skilled workers
A foreign national is a
skilled worker if
within the 10 years
preceding the date of their application for a permanent resident visa, they have
at least one year of continuous full-time employment experience, as described
in subsection 80(7), or the equivalent in continuous part-time employment in
one or more occupations, other than a restricted occupation, that are listed in
Skill Type 0 Management Occupations or Skill Level A or B of the National
Occupational Classification matrix;
during that period of
employment they performed the actions described in the lead statement for the
occupation as set out in the occupational descriptions of the National
Occupational Classification; and
during that period of
employment they performed a substantial number of the main duties of the
occupation as set out in the occupational descriptions of the National
Occupational Classification, including all of the essential duties.
· Minimal requirements
If the foreign national
fails to meet the requirements of subsection (2), the application for a
permanent resident visa shall be refused and no further assessment is
required.
* * *
· Délivrance du visa
(1) L'agent délivre un
visa de résident permanent à l'étranger si, à l'issue d'un contrôle, les
éléments suivants sont établis :
l'étranger en a fait,
conformément au présent règlement, la demande au titre d'une des catégories
prévues au paragraphe (2);
[...]
Catégories
Les catégories sont les
suivantes :
· [...]
la catégorie de
l'immigration économique, qui comprend la catégorie des travailleurs qualifiés
(fédéral), la catégorie des travailleurs qualifiés (fédéral -- transitoire), la
catégorie des travailleurs qualifiés (Québec), la catégorie des candidats des provinces,
la catégorie de l'expérience canadienne, la catégorie des investisseurs, la
catégorie des entrepreneurs, la catégorie des travailleurs autonomes, la
catégorie des investisseurs (fédéral -- transitoire), la catégorie des
entrepreneurs (fédéral -- transitoire) et la catégorie des travailleurs
autonomes (fédéral -- transitoire);
· Catégorie
(1) Pour l'application
du paragraphe 12(2) de la Loi, la catégorie des travailleurs qualifiés
(fédéral) est une catégorie réglementaire de personnes qui peuvent devenir
résidents permanents du fait de leur capacité à réussir leur établissement
économique au Canada, qui sont des travailleurs qualifiés et qui cherchent à
s'établir dans une province autre que le Québec.
· Qualité
Est un travailleur
qualifié l'étranger qui satisfait aux exigences suivantes :
il a accumulé au moins
une année continue d'expérience de travail à temps plein au sens du paragraphe
80(7), ou l'équivalent s'il travaille à temps partiel de façon continue, au
cours des dix années qui ont précédé la date de présentation de la demande de
visa de résident permanent, dans au moins une des professions appartenant aux
genre de compétence 0 Gestion ou niveaux de compétences A ou B de la matrice de
la Classification nationale des professions -- exception faite des professions
d'accès limité;
pendant cette période
d'emploi, il a accompli l'ensemble des tâches figurant dans l'énoncé principal
établi pour la profession dans les descriptions des professions de cette
classification;
pendant cette période
d'emploi, il a exercé une partie appréciable des fonctions principales de la
profession figurant dans les descriptions des professions de cette
classification, notamment toutes les fonctions essentielles.
· Exigences
Si l'étranger ne
satisfait pas aux exigences prévues au paragraphe (2), l'agent met fin à
l'examen de la demande de visa de résident permanent et la refuse.
ARGUMENT
Applicant
Procedural Fairness
15 The
Applicant argues that the Officer breached a duty of procedural fairness by not
informing the Applicant of concerns regarding her employment experience and
providing her an opportunity to address those concerns. This Court has
previously held that the duty of fairness may "require visa officers to
inform an applicant of their concerns or negative impressions regarding the
case and give the applicant the opportunity to disabuse them": Liao v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1926 (QL) at paras 15-17. The duty to provide an
opportunity to "disabuse" an officer of their concerns may apply
"even when such concerns arise from evidence tendered by the
Applicant": Rukmangathan v. Canada (Minister of
Citizenship and Immigration), 2004 FC 284 at para 22 [Rukmangathan]. It is well established that the
duty encompasses an officer's concerns relating to the credibility or
authenticity of documents: Talpur v. Canada (Minister of
Citizenship and Immigration), 2012 FC 25 at para 21. The
Applicant submits that it can also extend to concerns that the evidence is
deficient or incomplete: Gay v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1280 at paras
32-33, 38-39 [Gay].
16 The
Applicant says that while the NOC and the Regulations do not identify which of
the duties listed in the NOC description are considered to be
"essential", or what constitutes a "substantial number" of
the main duties of an occupation, the applicable departmental manual states
that this is a determination to be made by officers on a case-by-case basis,
and "in cases where officers have concerns about whether or not the
applicant has carried out 'a substantial number of the main duties... including
all of the essential duties,' they should give the applicant an opportunity to
respond to these concerns": OP6A Manual, section 10.13.
17 This
Court has held that where a person has complied with the requirements of the
Act, and should not reasonably have anticipated the Officer's concerns, the
failure to provide notice of the concerns and an opportunity to respond is a
breach of natural justice: Kuhathasan v. Canada
(Minister of Citizenship and Immigration), 2008 FC 457
at paras 39-41. In this case, the Applicant had offered prima
facie evidence that she met the description of an
accountant set out in NOC 1111, and she therefore could not have anticipated
that the Officer would have concerns on this point, or would conclude that she
was a bookkeeper or a clerk. The Applicant argues that her Affidavit filed with
this application shows that had the officer expressed these concerns, she could
have provided further evidence, explanations and details of her job duties that
would have alleviated those concerns.
18 While
there is no duty on an Officer to advise the Applicant of concerns that arise
directly from the Regulations, an applicant must be advised of concerns that
relate to credibility and accuracy. Concerns regarding the documentation and
evidence submitted to prove a legal requirement can be credibility concerns,
because they relate to the accuracy of the statements and documentation at
issue: Rukmangathan, above, at
para 38; Hassani v. Canada, 2006
FC 1283 at paras 27-28 [Hassani];
Gay, above at paras 32, 38-39. In
other words, when the Officer doubts statements in the Applicant's evidence,
that is a credibility concern. This is not a case where the Applicant failed to
provide evidence to satisfy a legal requirement, but rather a case where the
Officer had unanticipated questions about the authenticity of the documentation
and statements provided. The Officer doubted the Applicant's statements that
she was an accountant, and doubted the employment letters that confirmed that
she worked as an accountant.
Reasonableness of the Decision
19 The
Applicant also argues that the Officer's finding that the Applicant is not an
accountant, but is rather a bookkeeper or accounting clerk, is unreasonable.
She has the qualifications of an accountant and is working as an accountant,
performing the duties listed in NOC 1111.
20 Recent
case law interprets the requirement for FSW applicants to have performed all of
the "essential" duties and a "substantial number" of the
main duties set out in the NOC description (see subsection 75(2)(c) of the
Regulations) to mean that the applicant must have performed"one or more of
the main duties": Tabanag v. Canada (Minister of
Citizenship and Immigration), 2011 FC 1293 at para 18 [Tabanag]; Navid Jafari
v. Canada (Minister of Citizenship and Immigration)
(unpublished Order of May 16, 2013 in Federal Court file IMM-7376-12). An
Officer who requires an applicant to have performed all of the duties listed in
the NOC description is essentially adding requirements and changing the
applicable legal standard, and thereby acting in excess of their jurisdiction: Chen v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 422 at para 8.
21 While
the NOC is legally binding, it should not be meticulously construed, but should
rather be given a broad interpretation: Hussain v.
Canada (Minister of Citizenship and Immigration), [1998]
F.C.J. No. 1570 at para 27.
22 The
Applicant has a degree in accounting, provided two job letters confirming that
she has work experience as an accountant, and has consistently stated that this
is her occupation. Her job letter from Hafez Karan Sehat states that she holds
the position of accounting expert and head of the salary and wage section, and
lists her duties as including:
Preparing monthly
reports and lists of salary, insurance and tax and their submission to the
relevant sections and organizations;
Analyzing the (sic)
proposed projects and determining their profit and loss and also reporting them
to the Managing Director for making due decision (sic);
Preparing financial
reports and data for employers and the Managing Director.
23 The
Applicant submits that this letter demonstrates that she has performed:
The first main duty
listed in the NOC, "...prepare financial information for individuals,
departments within organizations, businesses and other establishments,"
because she prepares monthly reports and lists of salaries, insurance and tax
and submits them to various sections and organizations within the
company;
The second main duty,
"[e]xamine accounting records and prepare financial statements and
reports," because she prepares financial reports; and
The fifth main duty,
"[a]nalyze financial statements and reports and provide financial,
business and tax advice," because she analyzes proposed projects from an
accounting perspective, determining their profit and loss, and provides reports
and advice on the projects, which necessarily implies that she analyzes the
company's financial reports.
24 The
Applicant's second job letter also demonstrates that she has performed the
duties in NOC 1111, as it shows that she was responsible for analyzing
financial records to calculate costs associated with outbound delegates, and
for preparing financial reports and financial information for individuals in
the process of preparing and issuing foreign exchange bills for delegates.
25 Both
letters show she had more responsibility than a bookkeeper or an accounting
clerk, the Applicant says. Unlike those occupations, an accountant is
responsible for analysis and providing reports based on financial analysis, and
the letters show that the Applicant performed these duties. The duties of a
bookkeeper are focused solely on maintaining records. The duties of an
accounting clerk are also predominantly administrative: maintaining records and
preparing and processing bills. Neither occupation involves the kind of
analysis and report preparation that the Applicant's jobs have entailed.
26 In
addition, the Applicant says that the Officer's reasons are inadequate. The
Officer did not explain why or how the duties listed in the job letters
correspond to those of a bookkeeper or accounting clerk, and found that the
Applicant has not performed the essential duties or many of the main duties
without specifying what duties in the NOC are essential and which are main: McHugh v. Canada (Minister of Citizenship and Immigration), 2006 FC 1181 at para 14. The Applicant says that the Court's
analysis in Gulati v. Canada (Minister of Citizenship
and Immigration), 2010 FC 451 at paras 41-42 applies to
this case. There, the Court found that it was impossible to assess the
officer's conclusion that the applicant had not performed a substantial number
of the main duties of the NOC category at issue without knowing which duties the
officer thought had not been performed and why.
Respondent
Procedural Fairness
27 The
Respondent argues that the Officer in this case was under no duty to make
further inquiries about the Applicant's work experience. In the context of a
skilled worker application, relevant work experience is a concern that arises
directly from the requirements of the Act and Regulations, and a visa officer
is under no duty to mention his or her concerns regarding that work experience
to the applicant: Kamchibekov v. Canada (Minister of
Citizenship and Immigration), 2011 FC 1411 [Kamchibekov]; Kaur v.
Canada (Minister of Citizenship and Immigration), 2010
FC 442 [Kaur]. More generally, an
applicant's failure to provide adequate, sufficient or credible proof in
support of a visa application does not trigger a duty to inform the applicant
of concerns about the sufficiency or credibility of the proof provided: Kamchibekov, above, at para 26; Kaur, above, at para 12; Hassani, above, at para 24.
28 The
case law cited by the Applicant relates to credibility, which is not at issue
in the present case. There were no specific concerns with the evidence. Rather,
the Officer was not satisfied, on the basis of the evidence taken as a whole,
that the Applicant had performed a substantial number of the duties stated in
NOC 1111. The Applicant essentially argues that every application denied due to
insufficient or unsatisfactory evidence involves a credibility issue - a
proposition that has been rejected by this Court: Nauman
v. Canada (Minister of Citizenship and Immigration),
2013 FC 188 [Nauman].
29 Similarly,
a duty of procedural fairness does not arise whenever an officer has concerns
that the applicant could not reasonably have anticipated. Rather, "[t]he
onus is upon applicants to put together applications that are convincing and
that anticipate possible adverse inferences contained in the evidence and local
conditions and address them": Singh v. Canada
(Minister of Citizenship and Immigration), 2012 FC 526
at para 52. Here, the Respondent says, the Applicant simply did not put
together convincing evidence that she had the required work experience.
Reasonableness of the Decision
30 The
Respondent argues that the onus is on the Applicant to put her "best case
forward." Here, the test established by the statutory scheme was not met;
the Applicant failed to satisfy the Officer that she has work experience as an
accountant: Oladipo v. Canada (Minister of Citizenship
and Immigration), 2008 FC 366 at para 24; Kaur, above, at para 9. This conclusion was
well within the range of possible, acceptable outcomes.
31 Neither
the Applicant's assertion nor the employment letters were capable of
establishing that she had performed the actions described in the lead statement
for NOC 1111, and she did not provide sufficient evidence that she performed
all of the essential duties and a substantial number of the main duties set out
in the NOC. Her degree and position title do not establish that she had work experience
as an accountant: Tabanag, above,
at para 22. A visa officer is not required to speculate as to an applicant's
experience in an occupation: Wankhede v. Canada
(Minister of Citizenship and Immigration), [2000] F.C.J.
No. 968.
32 While
an applicant is not required to have performed all of the main duties set out
in the NOC description, he or she must have performed a few - that is, more
than one. The task of a visa officer is to determine the "pith and
substance"of the work performed: Rodrigues v.
Canada (Minister of Citizenship and Immigration), 2009
FC 111 at paras 9-10 [Rodrigues],
citing Norman v. Canada (Minister of Citizenship and
Immigration), 2002 FCT 1169 (FCTD).
ANALYSIS
33 In
my view, there is no procedural fairness issue in this case. The Officer had no
concerns with respect to the Applicant's credibility or the accuracy and
authenticity of the information and documentation she provided. There is no
indication that the Officer doubted the veracity of the letters; he or she
simply did not accept that the duties described in the letters brought the
Applicant with the definition of "Accountant" as described in NOC
1111. The issue was whether the Applicant satisfied the requirements of the
legislation, and the jurisprudence of the Court is clear that this does not
give rise to procedural fairness issues. See, for example, Justice Kane's
recent summary of the law in Ansari v. Canada (Minister
of Citizenship and Immigration), 2013 FC 849 at para 14
and Justice Scott's recent analysis in Nauman, above, at paras 26-29.
34 Also,
in my view, there is no inadequacy of reasons issue in this case. As the
Decision (including the GCMS notes) makes clear, the application was refused
because the Applicant did not provide "sufficient evidence that [she]
performed the actions described in the lead statement for the occupation, as
set out in the occupational descriptions of the NOC ..." or that she had
"performed all of the essential duties and a substantial number of the
main duties, as set out in the occupational description of the NOC." The
reason why, in the Officer's view, this was the case was because "the
duties described in your employment letters do not match the occupational
descriptions of the NOC." These reasons are entirely transparent and intelligible
within the meaning of para 47 of Dunsmuir and Newfoundland and Labrador Nurses' Union
v. Newfoundland and Labrador (Treasury Board), 2011 SCC
62 at para 16. The only issue is whether the Decision is reasonable.
35 The
Applicant points to her academic qualifications and job title as evidence that
she performed accounting duties. However, academic credentials and job titles
are not evidence of experience performing specific duties. As Justice Mosley
pointed out in Tabanag, above, at
para 22:
· 22 Here, there was no evidence before the agent to establish that the
applicant had performed any of the duties required to satisfy the occupational
classification. It is not sufficient for an applicant
to provide evidence that he or she has the academic qualifications, bears a job
title and is addressed by that title in correspondence. They must provide
evidence that they have actually performed "a substantial number of the
main duties of the occupation". Here, the applicant
did not provide that evidence either through the employer's certificate or
alternate documentation. The information submitted fell short of establishing a
prima facie case, as the
applicant contends.
· [Emphasis added]
36 The
lead statement for NOC 1111 for financial auditors and accountants provides
that "Accountants plan, organize and administer accounting systems for
individuals and establishments...". The duties listed for NOC 1111 include
the following:
Plan, set up and
administer accounting systems and prepare financial information for
individuals, departments within organizations, businesses and other
establishments;
Examine accounting
records and prepare financial statements and reports;
Develop and maintain
cost finding, reporting and internal control procedures;
Examine financial
accounts and records and prepare income tax returns from accounting
records;
Analyze financial
statements and reports and provide financial, business and tax advice;
May act as a trustee in
bankruptcy proceedings;
May supervise and train
articling students, other accountants or administrative technicians.
37 In
my view, there is nothing in the employment letters submitted to the Officer to
suggest that the Applicant planned or organized accounting systems for either
employer. The letters suggest that the Applicant's duties were confined to
compiling lists and reports, determining profit and loss, preparing financial
reports and data, and calculating and paying costs associated with outbound
delegates. The Applicant has done some of the things that, according to NOC
1111, accountants do, but she has also done some of the things that a
bookkeeper does under NOC 1231, or an accounting clerk does under NOC 1431. So
the difficulty for the Officer was to determine where the Applicant fits into
the scheme of the Act and the Regulations. As the Court pointed out in Rodrigues, above, at para 10:
· The real function of the visa officer is to determine what is the
pith and substance of the work performed by an applicant. Tangential
performance of one or more functions under one or more job categories does not
convert the job or the functions from one NOC category to another.
38 Consequently,
I cannot say that the Officer's conclusions in the GCMS notes that "on the
basis of the descriptions provided in employment letters," he or she could
not be satisfied that the Applicant "performed a substantial amount of the
duties stated in NOC 1111" was unreasonable. There is obviously scope for
disagreement over this finding, but I cannot say it falls outside of the Dunsmuir range. In a tangential way, the
Applicant has done some of the things that an accountant may do from time to
time, but this does not mean that the pith and substance of the work she has
performed fits under NOC 1111.
39 The
Applicant concedes, for instance, that items 1 and 3 in the letter from Hafez
Karan Sehat are just as likely to be performed by a bookkeeper or an accounting
clerk. She says, however, that item 2 in the same letter is what raises her to
the level of accountant and qualifies her under NOC 1111:
· 2 - Analyzing the proposed projects and determining their profit and
loss and also reporting them to the Managing Director for making due
decision.
40 She
says that this is equivalent to one of the "Main Duties" under NOC
1111:
· Analyse financial statements and reports and provide financial,
business and tax advice.
41 I
can see that both statements refer to analysis, but without more information a
meaningful comparison is all but impossible. In any event, I do not think that
this kind of possible overlap is sufficient to render the Applicant's experience,
in pith and substance, that of an accountant. Or, more to the point, I do not
think it is enough to take the Officer's Decision outside of the Dunsmuir range and render it unreasonable.
42 Counsel
agree there is no question for certification and the Court concurs.
JUDGMENT
THIS COURT'S JUDGMENT is that:
The application is
dismissed.
There is no question for
certification.
RUSSELL J.
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