Kotanyan v. Canada (Minister of Citizenship and
Immigration)
Between
Shushan Kotanyan, Applicant, and
The Minister of Citizenship and Immigration, Respondent
Shushan Kotanyan, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2014] F.C.J. No. 589
2014 FC 507
Docket: IMM-11768-12
Federal Court
Toronto, Ontario
Noël J.
Heard: May 20, 2014.
Judgment: May 27, 2014.
Docket: IMM-11768-12
Federal Court
Toronto, Ontario
Noël J.
Heard: May 20, 2014.
Judgment: May 27, 2014.
(28 paras.)
ORDER AND REASONS
NOËL J.:--
I. Introduction
1 This
is an application for judicial review under subsection 72(1) of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA] of a decision rendered by a visa officer of the Embassy of
Canada in Moscow [the Officer] rejecting the Applicant's application for
permanent residence under the federal skilled worker class. The decision dated
November 13, 2012 was based on the fact that the Applicant failed to meet the
National Occupational Classification [NOC] requirements.
II. Facts
2 The
Applicant is a citizen of Armenia who applied in Moscow, Russia, for permanent
residence in Canada as a skilled worker on August 15, 2011.
3 In
her application, the Applicant claimed to have worked as an Assistant
Restaurant Manager (under NOC 0631 -- Restaurant and food service manager) from
April 2007 to September 2009, and as a Product Manager (under NOC 0611 -- Sales,
Marketing and Advertising Managers) between December 2009 and the time she
filed her application.
4 After
the Officer talked to her employers, the Applicant was convoked to an interview
on October 16, 2012 to address the Officer's concerns with respect to her
application.
III. Decision under review
5 After
having spoken with both the Applicant's previous and current employers, the
Officer was not satisfied that the Applicant met the requirements set out in
paragraphs 75(2)(b) and (c) of the Immigration
and Refugee Protection Regulations, SOR/2002-227
[IRPR]. According to the Officer, the Applicant performed neither "the
actions described in the lead statement for the occupation as set out in the
occupational descriptions" of NOC 0631 and NOC 0611 nor a
"substantial number of the main duties of the occupation as set out in the
occupational descriptions of [NOC 0631 and NOC 0611], including all of the
essential duties"(paragraphs 75(2)(b) and (c) of the
IRPR). She further indicated that while her concerns were to be addressed with
the Applicant during the interview held on October 16, 2012, the Applicant
nonetheless failed to provide satisfying answers.
6 Ultimately,
the Officer found that the Applicant was not an assistant manager, but rather a
manager's assistant (in other words, an assistant to the manager).
IV. Decision under review
7 The
Applicant contends that the Officer's decision is unreasonable. First, the
Officer made an error in assessing the Applicant's duties, omitting to consider
the Applicant's duties in organizing banquet events in the restaurant. During
the conversation between the Applicant's employer and the Officer, the employer
stated that the Applicant was a Manager's Assistant, but he rectified his
statement in a "Statutory Declaration" wherein it is explained that
this error had to do with translation and that the Applicant was indeed an
Assistant Manager. The Applicant's explanation and the evidence submitted,
including the Statutory Declaration, were consistent.
8 Second,
the Officer breached procedural fairness by adopting a selective approach with
respect to the evidence submitted, because she preferred her own interpretation
of the Applicant's interview rather than the evidence submitted and she failed
to provide adequate reasons.
V. Applicant's further memorandum
9 The
Applicant further submits that the Officer failed to appropriately consider the
evidence with which she had been presented. More particularly, she failed to
refer to an important piece of evidence that contradicts her finding, namely
the Applicant's employer's above-mentioned Statutory Declaration. Also, the
Officer appeared to have a"closed mind" in respect to the Applicant's
claim. In addition, the Officer failed to address the verifiable and credible
evidence submitted by the Applicant the October 16, 2012 interview to the
effect that she indeed performed the duties as an assistant manager, i.e.
banquet planning activities.
VI. Respondent's reply
10 The
Respondent claims that the Officer's decision is reasonable. Considering that
her affidavits were never sworn, the Applicant submitted no evidence in support
of her allegations that there are inconsistencies between her version of the
October 16, 2012 interview and what was reported about this interview in the
Global Case Management System notes [GCMS notes]. The Officer did consider the
Statutory Declaration in the GCMS notes but reasonably decided to put more
weight on the Applicant's actual statements and that of her employer in
relation with the duties performed by the Applicant, and it was certainly open
for the Officer to do so.
11 In
addition, the Officer's reasons are entirely sufficient and the assessment made
was reasonable considering the circumstances of the case and the evidence on
file.
VII. Issue
12 Did
the officer err in rejecting the Applicant's application for permanent
residence under the federal skilled worker class?
VIII. Standard of review
13 As
recently confirmed by Justice O'Keefe of this Court, a visa officer's determination
of an "applicant's foreign skilled worker application is a finding of fact
and law, reviewable on a reasonableness standard" (see Butt v Canada (Minister of Citizenship and Immigration), 2013 FC 618 at para 13, [2013] FCJ No 695; see also Anabtawi v Canada (Minister of Citizenship and Immigration), 2012 FC 856 at para 28, [2012] FCJ No 923; Dunsmuir
v New Brunswick, 2008 SCC 9 at para 47, [2008] SCJ No 9
[Dunsmuir]).
14 Accordingly,
this Court shall intervene only if the Officer came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence with which it had been presented (Dunsmuir, above, at para 47). Under this
standard, it is not up to the Court to reweigh the evidence or "to
substitute its own view of a preferable outcome." (Canada(Citizenship
and Immigration) v Khosa, 2009 SCC 12 at para 59,
[2009] SCJ No 12)
IX. Analysis
15 The
Applicant applied under NOC 0631 and NOC 0611. That being said, in her written
submissions as well as at the hearing, she takes issue only with the fact that
her application for permanent residence as an Assistant Restaurant Manager was
rejected. As such, the analysis herein shall focus only on the Officer's
analysis of the application as it concerns NOC 0631, and for the reasons set
out in the following paragraphs, I find that the Officer's decision was
entirely reasonable and does not warrant the intervention of the Court.
16 According
to the Officer, the Applicant failed to satisfy paragraphs 75(2)(b) and (c) of the IRPR, which set out some of the requirements to be
satisfied in order for a foreign national to be considered a federal worker:
·
Immigration and Refugee
Protection Regulations, SOR/2002-227
PART 6 ECONOMIC CLASSES
Division 1
Skilled Workers
Federal Skilled Workers
[...]
Skilled workers
75. (2) A foreign national
is a skilled worker if
[...]
·
(b) 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;
·
(c) 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;
[...]
* * *
·
Règlement sur l'immigration et
la protection de réfugiés, DORS/2002-227
PARTIE 6 IMMIGRATION ECONOMIQUE
Section 1
Travailleurs qualifiés
Travailleurs qualifiés
[...]
Qualité
·
75. (2)
Est un travailleur qualifié l'étranger qui satisfait aux exigences
suivantes:
[...]
·
b)
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;
·
c)
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;
[...]
17 The
lead statement for NOC 0631 -Restaurant and food
managers, for the purposes of paragraph 75(2)(b) of the IRPR, is as follows:
·
Restaurant and food service
managers plan, organize, direct, control and evaluate the operations of
restaurants, bars, cafeterias and other food and beverage services. They are
employed in food and beverage service establishments, or they may be
self-employed.
18 The
main duties associated with NOC 0631-Restaurant and food
managers, for the purposes of paragraph 75(2)(c) of the IRPR, are the following:
Plan, organize, direct,
control and evaluate the operations of a restaurant, bar, cafeteria or other
food or beverage service;
Determine type of
services to be offered and implement operational procedures;
Recruit staff and
oversee staff training;
Set staff work
schedules and monitor staff performance;
Control inventory,
monitor revenues and modify procedures and prices;
Resolve customer
complaints and ensure health and safety regulations are followed;
Negotiate arrangements
with suppliers for food and other supplies;
Negotiate arrangements
with clients for catering or use of facilities for banquets or
receptions.
19 Contrary
to what is being argued by the Applicant, the Officer did not adopt a selective
approach with regard to the evidence in the present case. In fact, I find that
she appropriately assessed the evidence.
20 On
October 14, 2012, the Officer met with the Applicant's previous employer at the
restaurant where they discussed the Applicant's employment in the business.
During this encounter, the employer stated that the Applicant was a manager's
assistant at the restaurant and he assimilated her duties to those of a
waitress, e.g. greet customers, take orders and to serve food (see GCMS notes,
Certified Tribunal Record [CTR], at page 5). During the October 16, 2012
interview, as reported in the GCMS notes, the Applicant indicated that she had
been hired after seeing an ad for an opening as a manager's assistant (and not
an assistant manager). Also during this interview, the Applicant was questioned
with respect to whether or not, in her opinion, a manager's assistant and an
assistant manager are the same positions, to which she answered: "They are
the same thing in my opinion." (see GCMS notes, CTR, at page 4)
21 The
Applicant claims that during the October 16, 2012 interview, she gave evidence
to the effect that she had been an assistant manager at the restaurant and to
have indicated to the Officer that she planned banquets or private functions.
While this may be the case, it should be noted that the Applicant, who had the
burden of proving her claims (see for example Oladipo v
Canada (Minister of Citizenship and Immigration), 2008
FC 366 at para 24, [2008] FCJ No 468), based her assertions on evidence that
was weak even non-existent, as she submitted only un-sworn affidavits despite
having had over a year to correct the situation. The Applicant did not even
produce an affidavit from herself which would have given her sworn version of
the interview.
22 After
the October 16, 2012 interview, specifically on November 2, 2012, the Applicant
sent to the Officer the Statutory Declaration from her previous employer who
indicated that she was in fact an assistant manager and not a manager's
assistant. This Court notes that the Officer explicitly considered the
Statutory Declaration, as well as the documents submitted along with it, in the
GCMS notes, stating that despite these documents, and keeping in mind the
conversations held with the Applicant herself and the Applicant's previous
employer -- the essence of which is describe above --, the Officer remained
unsatisfied that the Applicant met the NOC 0631 requirements.
23 This
finding is reasonable. Indeed, it is vastly recognized that the assessment and
weighing of the evidence lies at the heart of a visa officer's jurisdiction,
and as stated above it is not open to this Court to reweigh the evidence:
·
[11] The visa officer has the
responsibility of determining whether an applicant has in fact performed the duties
of the NOC. Considerable discretion is afforded to the officer in this respect,
including interpretation of the NOC. The weight to be assigned the various
pieces of evidence is the task of the visa officer and it is not for the court
to reweigh the evidence. The onus is on the applicant to satisfy the visa
officer that she performed the duties contained in the NOC for the intended
application. It is within the visa officer's discretion
to assess an applicant's experience on the basis of the applicant's
representations at the interview and to assign less weight to the written
documents. See Kalia v. Canada
(Minister of Citizenship and Immigration), 2002 FCT
731, [2002] F.C.J. No. 998, Atangan v. Canada (Minister
of Citizenship and Immigration), 2002 FCT 752, [2002]
F.C.J. No. 1017 and Malik v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 1050.
[My emphasis.]
·
[Kianfer
v Canada (Minister of Citizenship and Immigration),
2002 FCT 1061 at para 11, [2002] FCJ No 1439]
24 It
is also established that a visa officer is presumed to have considered all the
evidence with which he or she is presented unless the contrary is proven (Florea v Canada (Minister of Employment and Immigration), [1993] FCJ No 598 (FCA) at para 1; see for example Ahmed v Canada (Minister of Citizenship and Immigration), 2013 FC 1083 at para 34, [2013] FCJ No 1180). What is more, the
Officer had no obligation to refer to every piece of evidence that is contrary
to the decision's finding, and the reasons therein are not to be read
hypercritically (Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration), [1998] FCJ No 1425 at
para 16, 157 FTR 35). In this regard, the Applicant asserts that the Officer
failed to mention the employer's Statutory Declaration and the portion of the
October 16, 2012 interview related to the banquet-planning duties assumed by
the Applicant. However, as stated above, these elements of contradictory proof,
which are indeed crucial to the reasonableness of the decision, were actually
addressed by the Officer, who indicated in the GCMS notes that they did not
suffice to establish that the Applicant was an assistant manager and not a
waitress or manager's assistant.
25 In
a nutshell, while evidence to the contrary was submitted -- and duly addressed
- the Officer's finding as it relates to the fact that the Applicant was more a
manager's assistant or a waitress than an assistant manager in the restaurant
was based on a reasonable assessment and weighing of the evidence which
constitutes the role of the Officer and not that of the Court. As such,
contrary to the Applicant's assertion, the Officer did not have a closed mind
and, by way of consequence, did not commit an error in assessing the
Applicant's duties.
26 As
for the adequacy of the Officer's reasons, this issue must also be considered
under the standard of reasonableness (Newfoundland and
Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 22, [2011] 3 SCR 708; see for example Sidhu v Canada (Minister of Citizenship and Immigration), 2014 FC 176 at para 17, [2014] FCJ No 183 [Sidhu]). In the case at bar, I find that the reasons read along with the
GCMS notes -- which form part of the reasons (see for example Khowaja v Canada (Minister of Citizenship and Immigration), 2013 FC 823 at para 3, [2013] FCJ No 904) -- were well done,
sufficient and adequate as envisioned by case law, as they explain why the
permanent resident application failed:
·
[20] The
test of adequacy of reasons has been articulated by this Court numerous times,
including recently in Canada (Minister of Citizenship
and Immigration) v. Jeizan, 2010 FC 323, 386 F.T.R.
1:
·
[17] Reasons for decisions are
adequate when they are clear, precise and intelligible and when they state why
the decision was reached. Adequate reasons show a grasp of the issues raised by
the evidence, allow the individual to understand why
the decision was made and allow the reviewing court to assess the validity of
the decision: see Lake v. Canada
(Minister of Justice), 2008 SCC 23, [2008] S.C.J. No.
23 at para. 46; Mehterian v. Canada (Minister of
Employment and Immigration), [1992] F.C.J. No. 545
(F.C.A.); VIA Rail Canada Inc. v. National
Transportation Agency, [2001] 2 F.C. 25 (F.C.A.),
[2001] 2 F.C. 25 (C.A.), at para. 22; Arastu, [2008] F.C.J. No. 1561, above, at paras. 35-36. [Emphasis
added.]
·
[21] While there is no question
that an officer's reasons can be brief, they must serve the functions for which
the duty to provide them is imposed -- they must inform the Applicant of the
underlying rationale for the decision (VIA Rail Canada
Inc. v. National Transportation Agency, [2001] 2 F.C.
25 at para 21-22 (CA)).
[Sidhu, above, at paras 20-21]
27 In
the end, it comes down to whether or not the Officer's finding that the
Applicant did not meet the requirements for NOC 0631 falls within the range of
acceptable outcomes based on the evidence, and it does. As such, the Officer's
decision to reject the Applicant's application for permanent residence as a
skilled worker was more than reasonable and this application for judicial
review shall be dismissed.
28 The
parties were invited to submit a question for certification, but none were
proposed.
ORDER
THIS COURT ORDERS that
this application for judicial review is dismissed. No question is certified.
NOËL J
No comments:
Post a Comment