APPLICANTS MUST PROVIDE COMPLETE APPLICATIONS

Applicants  must remember that it is their responsibility to provide complete applications,, as noted by the recent decision below.

Rezvani v. Canada (Minister of Citizenship and Immigration)

Between
Amir Rezvani, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2015] F.C.J. No. 948

2015 FC 951

Docket: IMM-6394-14

 Federal Court
Toronto, Ontario

Southcott J.

Heard: July 21, 2015.
Judgment: August 6, 2015.

(32 paras.)

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JUDGMENT AND REASONS

1     SOUTHCOTT J.:-- This is an application for judicial review of the June 8, 2012 decision (the Decision) of a Visa Officer (the Officer), which refused the applicant's application for permanent residence under the Federal Skilled Worker (FSW) program. The applicant claims that this decision should be quashed because the Officer breached procedural fairness, by not providing him with an opportunity to respond to credibility concerns, and on the basis that the decision is unreasonable because the Officer did not adequately assess the evidence.

2     For the reasons set out below, the application for judicial review is dismissed.

I. Background

3     The applicant, Mr. Amir Rezvani, is a citizen of Iran. He applied for permanent residence in Canada in 2010 based on his experience as a Financial Manager and an Accountant, being occupations with National Occupational Classification (NOC) codes NOC 0111 and NOC 1111, respectively. Based on a review of the application, the Centralized Intake Office in Sydney, Nova Scotia recommended that it be referred to the overseas visa office for a final determination of eligibility. A full application, including copies of employment letters and educational degrees, was submitted to the visa office on or around February 12, 2011.

4     Although the Decision was initially made on June 8, 2012, the record shows that the applicant did not receive the letter advising him of the Decision. In 2014, the applicant sent an updated application to add his new-born son. The visa office then sent him the Decision that had been made in 2012, which he received on July 4, 2014. Counsel for the applicant requested to have the file reopened to provide additional evidence. This was refused by the visa office. The applicant then filed an application for leave and judicial review on September 2, 2014.

II. Officer's Decision

5     The Officer found that the applicant had not provided sufficient evidence that he performed the actions described in the lead statement of the relevant occupations, as set out in the occupation descriptions of the NOC. The Decision stated that the employment documents submitted by the applicant only contained a vague description of his job duties and that the applicant's own descriptions of his duties were often copied directly out of the NOC, which diminished the overall credibility of the employment. Therefore, based on the information before the Officer, the Officer was not satisfied that the application fit within the categories of Financial Manager or Accountant.

6     The Global Case Management System (GCMS) notes also stated that the employment documents submitted by the applicant contained a lot of jargon related to the companies and that it was not always clear what was meant by the duties described. The notes stated that no explanation was provided by the applicant or the companies, and it appeared to the Officer that the applicant's experience matched that of a bookkeeper rather than an Accountant or Financial Manager. Therefore, the application was refused.

III. Submissions of the Parties

·       A. Applicant's Submissions

7     The applicant submits that where a visa officer's concerns relate to the credibility of the evidence, as opposed to the sufficiency of the evidence, the applicant must be given an opportunity to respond to the concerns (Fang v Canada (MCI), 2014 FC 196, at para 19 [Fang]; Rukmangathan v Canada (MCI), 2004 FC 284, at para 22, 38 [Rukmangathan]; Talpur v Canada (MCI), 2012 FC 25, at para 21 [Talpur]; Madadi v Canada (MCI), 2013 FC 716, at para 6 [Madadi]). This duty extends even where a visa officer is conducting an initial assessment of a case (Kumar v Canada (MCI), 2010 FC 1072, at para 29 [Kumar]).

8     The applicant's position is that the Officer clearly indicated that there were credibility concerns with the applicant's description of his job duties. Therefore, the Officer was obliged to inform the applicant of any concerns related to the credibility of the information contained within his application (Patel v Canada (MCI), 2011 FC 571, at paras 20, 22 [Patel]; Liao v Canada, [2000] F.C.J. No 1926, at para 17). In addition to the information that had been copied from the NOC, the applicant had submitted employment letters from his current and former employers, detailing his duties, and there was no reason for the Officer to consider the evidence to be insufficient or lacking in credibility. The applicant argues that the Officer's failure to provide him with an opportunity to respond to concerns related to the credibility of the evidence represents a breach of procedural fairness (Hassani v Canada (MCI), 2006 FC 1283, at para 24 [Hassani]).

9     The applicant further submits that where a decision-maker does not mention relevant evidence, this leads to a conclusion that the evidence in question was overlooked or ignored (Cepeda-Gutierrez v Canada (1998), 157 FTR 35, at para 17). The applicant contends that the Officer ignored the information in the employment letters, which contained relevant details about the duties he performed in his positions, as well as his educational degrees. The Officer accordingly failed to consider evidence that would have disabused him of concerns relating to the applicant's duties in his positions. The applicant also submits that the respondent's written argument represents an impermissible attempt to supplement the Officer's reasons by conducting his own analysis of the employment letters (Qi v Canada (MCI), 2009 FC 195, at para 35).

10     The applicant also argues for a time extension in his Memorandum of Arguments, given that he only received the refusal letter on July 4, 2014 and filed within 60 days of receiving it. However, given his evidence that he only became aware of the refusal letter on July 4, 2014, and that he filed his application for leave and judicial review within 60 days of being made aware of the decision, on September 2, 2014, there appears to be no need for a time extension according to the legislation (Immigration and Refugee Protection Act, SC 2001, c 27, ss. 72(2)(b)). In any event, the Respondent's counsel advised at the hearing that, given that leave for this application has been granted, the Respondent does not raise an issue with the timeliness of the application.

·       B. Respondent's Submissions

11     The respondent first submits that there was no breach of procedural fairness. The Officer's role is to assess the visa application on the basis of the information and evidence provided, and there is no general duty for visa officers to ask for clarification or additional information if the evidence is insufficient (Madan v Canada (MCI) (1999), 172 FTR 262, at para 6). The respondent contends that, contrary to the applicant's arguments, there were no credibility findings by the Officer. Rather, the Officer determined that the applicant repeated the terms used in the NOC instead of describing his position in his own words. The Officer took this into account and felt the applicant's evidence was insufficient, which is not a credibility finding (Kamchibekov v Canada (MCI), 2011 FC 1411 [Kamchibekov]).

12     Similarly, the respondent's position is that the Officer did not take issue with the credibility or the authenticity of the employment letters, but rather with their lack of specificity. There was therefore no need for additional procedural fairness (Obeta v Canada (MCI), 2012 FC 1542, at para 25 [Obeta]; Singh v Canada (MCI), 2009 FC 620, at para 7; Dhillon v Canada (MCI), 2009 FC 614, at para 30; Qin v Canada (MCI), 2002 FCT 815, at para 7). The respondent also argues that, even where an officer makes a reference to credibility, the duty of fairness may not be engaged where it appears that the officer's concerns were more about the adequacy of evidence provided by the applicant (Gharialia v Canada (MCI), 2013 FC 745, at paras 21-22 [Gharialia]). Relevant work experience is a concern that arises directly from the requirements in the legislation (Kamchibekov, at paras 25-27; Rukmangathan, at para 23).

13     The respondent argues that the duty of fairness for visa applicants is at the low end of the spectrum and that the burden is on the applicant to provide a complete application (Tahereh v Canada (MCI), 2008 FC 90, at para 12 [Tahereh]; Khan v Canada (MCI), 2001 FCA 345, at paras 31-32 [Khan]; Chiau v Canada (MCI), [2001] 2 FC 297, at para 41 (FCA); Obeta, at para 25). No further procedural fairness was required in this case, especially given that this application was refused at the eligibility stage of processing (Chadha v Canada (MCI), 2013 FC 105, at para 38; Kamchibekov, at paras 17-18, 26).

14     Overall, the respondent' position is that the Officer properly took into account all the evidence. The Officer considered the employment letters submitted by the applicant and reasonably determined that there was insufficient evidence that the applicant had performed the actions described in the lead statement of his stated occupations of Financial Manager and Accountant. The duties contained within the employment letters were closer to those of bookkeeper. The respondent also submits that the applicant's education is not determinative of the required work experience. Rather the Officer had to look at the duties performed. The Officer has expertise in evaluating whether the applicant has the necessary job experience, and the applicant did not provide sufficient evidence to satisfy the Officer (Buttar v Canada (MCI), 2010 FC 984 [Buttar]; Bhatia v Canada (MCI), 2012 FC 1278; Bighashi v Canada (MCI), 2013 FC 1110).

IV. Standard of Review

15     The applicant submits that the standard of review for issues of procedural fairness is correctness (Canada (MCI) v Khosa, 2009 SCC 12, at para 43 [Khosa]) and that the standard of review for questions involving an exercise of discretion and questions of mixed law and fact is reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir]). The applicant submitted in his Memorandum of Fact and Law that failure to consider important evidence is a legal error and is subject to the correctness standard of review (Ozdemir v Canada (MCI), 2001 FCA 331, at para 7; Uluk v Canada (MCI), 2009 FC 122, at para 16). However, I understood his counsel to confirm at the hearing that the standard of review in assessing whether the Decision properly took the evidence into account is one of reasonableness.

16     The respondent submits that the applicable standard of review is reasonableness, because the determination of whether or not an applicant has performed the required duties for an occupation in the context of a skilled worker application is largely a matter of fact (Dunsmuir, at para 47; Tiwana v Canada (MCI), 2008 FC 100, at para 12 [Tiwana]; Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, at paras 17-18).

17     In my view, the issue of procedural fairness raised by the applicant is reviewable on the standard of correctness (Khosa, at para 43) and the issue whether the Decision properly took into account all the evidence is reviewable on the standard of reasonableness (Dunsmuir, at para 47; Kamchibekov, at para 12-13; Obeta, at paras 13-14).

V. Issues

18     Based on the parties' submissions, this application raises the following issues:

·       1. 

Was there a breach of procedural fairness? 

·       2. 

Was the Officer's decision reasonable? 

VI. Analysis

·       A. Was there a breach of procedural fairness?

19     The applicable jurisprudence establishes that, in cases dealing with visa officers' decisions on applications for permanent residence, the duty of fairness is generally at the low end of the spectrum. This is due to the absence of a legal right to permanent residence, the burden being on the applicant to establish eligibility, the impact on the applicant being less serious than in cases of the removal of a benefit, and the public interest in containing administrative costs (Tahereh, at para 12; Khan, at paras 39-40).

20     I agree with the applicant that, as part of the required procedural fairness in permanent residence applications, it has also been established in the jurisprudence that visa officers have a duty to inform the applicant of concerns relating to something other than the sufficiency of the evidence, such as the credibility or authenticity of the evidence presented (Fang, at para 19; Rukmangathan, at paras 22, 28; Talpur, at para 21; Madadi, at para 6; Kumar, at para 29; Hassani, at para 24).

21     However, it is also true that the burden is on the applicant to provide a complete application. Concerns arising out of sufficiency of the evidence do not have to be communicated to the applicant, given that this is part of the initial burden of providing a complete application. In Obeta, a case in which the visa officer noted that the tasks listed in employment letters had been copied directly from the relevant NOC codes, Justice Boivin stated as follows, at para 25:

·       ... The applicant has the burden to put together an application that is not only "complete" but relevant, convincing and unambiguous (Singh v. Canada (Minister of Citizenship & Immigration), 2012 FC 526, [2012] F.C.J. No. 548 (F.C.); Kamchibekov, above, at para 26). Despite the distinction that the applicant attempts to make between sufficiency and authenticity, the fact of the matter is that a complete application is in fact insufficient if the information it includes is irrelevant, unconvincing or ambiguous. [emphasis added] 

22     In the case at hand, the Officer determined that the applicant had not provided sufficient evidence that he had performed the actions described in the lead statement for the occupation, as set out in the occupational descriptions of the NOC. The Officer came to this conclusion based on the employment documents submitted by the applicant, which he considered to contain only vague descriptions of the job duties, and the applicant's own descriptions of the duties performed, which were often copied directly out of the NOC. This precise situation arose in Kamchibekov where Justice Pinard stated at para 15:

·       According to Operational Bulletin 120 - June 15, 2009, Federal Skilled Worker (FSW) Applications -- Procedures for Visa Offices, descriptions of duties taken verbatim from the NOC are to be regarded as self-serving. When presented with such documents, visa officers are entitled to wonder whether they accurately describe the applicant's work experience. Where a document lacks sufficient detail to permit its verification and ensure a credible description, the applicant will not have produced sufficient evidence to establish eligibility: the visa officer must proceed to a final determination and if the evidence is insufficient, a negative determination of eligibility should be rendered. 

23     In Kamchibekov, the applicant's description of the tasks he claimed to have performed were a verbatim copy of tasks listed in the NOC. Justice Pinard's analysis of whether procedural fairness requirements arose is set out as follows at paragraphs 25-28:

·       [25] Alternatively, the applicant claims that even if the officer's reasons are sufficient, the latter breached his duty of fairness in not conducting an interview, denying the applicant the right to respond to the officer's concerns as to the veracity of the application, which is the reason his application was rejected. As defined by the applicant, the officer's duty of fairness required the applicant be given the opportunity to respond to the officer's concerns (Olorunshola v. Minister of Citizenship and Immigration, 2007 FC 1056 [Olorunshola]). Inversely, the respondent emphasizes the context of the decision: at this eligibility stage, notification is not a requirement of procedural fairness and the applicant was not entitled to a running tally or an interview to correct his deficient application (Kaur v. Minister of Citizenship and Immigration, 2010 FC 442 [Kaur]). 

·       [26] In Kaur, procedural fairness did not require the visa officer to notify the applicant of the inadequacies in the materials she had provided: the onus is on an applicant to submit sufficient evidence in support of his application (Kaur at para 9). Therefore, in such cases, the applicant is not entitled to an interview to remedy his own shortcomings (Kaur at para 9). Moreover, where the visa officer's concerns arise directly from the requirements of the legislation or regulations, he is under no duty to notify the applicant (Kaur at para 11; Rukmangathan v. Minister of Citizenship and Immigration, 2004 FC 284 at para 23). Relevant work experience is a concern that arises from the regulations: a visa officer is under no duty to mention his concerns as to the applicant's work experience (Kaur at para 12). Ultimately, the visa officer has no obligation to make inquiries where the applicant's application is ambiguous: "there is no entitlement to an interview if the application is ambiguous or supporting material is not included" (Kaur at para 10; Sharma v. Minister of Citizenship and Immigration, 2009 FC 786 at para 8 [Sharma]; Lam v. Canada (Minister of Citizenship and Immigration) (1998), 152 F.T.R. 316 at para 4). To hold otherwise would impose on visa officers an obligation to give advance notice of a negative finding of eligibility (Sharma at para 8). 

·       [27] In the case at hand, the officer did not have the obligation to hold an interview or to inform the applicant of his concerns with regards to the duplication of the NOC listed duties, much like in Kaur. In the words of Justice Danièle Tremblay-Lamer at paragraph 14: 

·       ... It did not help that the Applicant's own description of her duties appeared to be copied from the National Occupational Classification. Thus, it was open to the visa officer, on the basis of the scant evidence before him, to find that the Applicant had not established that she had sufficient work experience in her stated occupation, and to reject her application on that basis. 

·       [28] Therefore, the officer did not breach his duty of procedural fairness. 

24     Therefore, where descriptions of duties are copied from the NOC, the visa officer is entitled to find that there is insufficient evidence to establish eligibility. In this case, although the visa officer used the word "credibility" in the Decision, the Officer appears to have been making a finding on the sufficiency of the evidence, given that it is supporting the overall finding that the applicant had not provided sufficient evidence that he performed the actions described in the lead statement for the occupation. As in Gharialia, at paras 21-22, I agree with the respondent that, notwithstanding that the Officer used the term "credibility", the Officer's findings were not actually credibility findings, but rather a finding of insufficiency of evidence. There was no breach of procedural fairness given that the burden is on the applicant to provide a complete application.

25     Relevant work experience is a concern that arises directly from the requirements in the legislation, and the Officer therefore was not required to put concerns relating to this aspect of the application directly to the applicant (Kamchibekov, at paras 25-27; Rukmangathan, at para 23).

26     I find the decision in Patel, on which the applicant relies, to be distinguishable. It is clear from Justice O'Keefe's reasons, at paragraphs 26-27, that he concluded the visa officer to have regarded the employment letter in that case, into which the duties had been copied directly from the NOC description, to be fraudulent. That case therefore did involve an issue of credibility or authenticity rather than one of sufficiency of the evidence. At the hearing, the Applicant also emphasized the decision in Madadi. That case, however, also involved a situation where the Court found that the visa officer had rejected an application based on the credibility of the employer's letter.

27     I therefore find that there was no breach of procedural fairness in the Officer's processing of the applicant's application for permanent residence.

·       B. Was the Officer's decision reasonable?

28     I do not regard the assessment of the evidence by the Officer as unreasonable. First, it is clear from the Officer's letter to the Applicant rejecting his application, and from the GCMS notes, that the Officer did consider the employment letters submitted by the applicant. He refers to the "employment documents" and "letters" from the companies for which the applicant worked, which demonstrates that they were considered in the assessment of the application.

29     The Officer stated that the employment documents contained "jargon related to the companies", that it was "not always clear what the duties described mean", and that the "employment documents only contain a vague description of [the applicant's] job duties". From what the Officer understood from the letters, he determined that the applicant's "experience matches more that of a bookkeeper rather than an accountant or financial manager". When considering the employment letters, it was open to the Officer to come to the conclusion that the duties described were closer to that of a bookkeeper than an accountant or financial manager.

30     At the hearing of this application, the Applicant's counsel also referred the Court to the Applicant's resume that formed part of the material submitted to the Officer. The Applicant argues that the Officer took into account only the applicant's application form, which the Officer found contained descriptions of his duties that were often copied directly from the NOC. The Officer failed to refer to the resume, which represents an explanation of the "jargon" contained in the employments letters, for which the GCMS notes say no explanation was provided. However, having reviewed the resume, I see that it contains essentially the same information as the application form, including substantial portions that match the language in the NOC. I accordingly find no merit in this argument.

31     A visa officer has the expertise to evaluate the applicant's job experience, and deference is owed to this evaluation (Buttar, at para 9; Tiwana, at para 12). The Officer found in this case that the evidence was insufficient to support a conclusion that the applicant's duties matched those of a Financial Manager or Accountant This was a reasonable conclusion that falls within the "range of possible, acceptable outcomes which are defensible in respect of the facts and law" (Dunsmuir, at para 47).

VII. Conclusions

32     For the reasons above, the application for judicial review is dismissed. Counsel were consulted on whether either party wished to raise an issue to be certified for appeal for the Court's consideration. No such issue was raised.

JUDGMENT

THIS COURT'S JUDGMENT is that the application for judicial review is dismissed. No question is certified for appeal.

SOUTHCOTT J.

"ASSISTANT MANAGER" OR "MANAGER'S ASSISTANT"? RESIDENCE APPLICATION DENIED

The question may appear to be only semantics, but in fact it is essential to the outcome of the case. Note that the officer met with the employer, a somewhat usual move, no doubt sparked by concerns over the nature of the appellation.  In the end, the Federal Court heals that the refusal was reasonable.

Kotanyan v. Canada (Minister of Citizenship and Immigration)

Between
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.

(28 paras.)

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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

CREDENTIAL EVALUATION FOR IMMIGRANTS TO BE OUTSOURCED

In a recent speech, the Minister of Citizenship and indicated that a third party will evaluate education credentials before potential immigrants can apply,. this seems to be the right move.

Immigration minister plans reforms to foreign credential recognition

By Tobi Cohen, Postmedia News

March 28, 2012

OTTAWA — Immigration Minister Jason Kenney announced plans to hire an outside company to assess the educational credentials of newcomers before they arrive in Canada in a bid to keep foreign physicians from having to drive cabs when they arrive.

On the eve of an anticipated austerity budget, Kenney said the government will issue a request for proposals within the next two months in the hopes of selecting a third-party organization that can begin conducting these overseas assessments by the end of the year.

"The overall goal here is to better select and better support potential immigrants before they come to Canada so they can hit the ground running once they arrive by integrating quickly into our labour market," he told a business audience of professional regulators Wednesday.

"Once this process is in place, we think this will result in a significant improvement in the points grid system we use to assess applicants to the foreign skilled worker program."

Kenney said the idea is to "be more up front and honest" with would-be newcomers by giving them a sense of how their credentials stack up against someone with a similar Canadian education. It would also help screen out those without adequate levels of education.

In other words, simply having a degree in a particular field will no longer be enough to garner an individual points toward acceptance as a skilled worker.

While this is the sort of thing that ought to be part of visa officers' jobs, Kenney suggested it's an impossible task for them.

"Our visa offices simply don't have the time or expertise to do a qualitative assessment of every single applicant," he said.

"This is an opportunity for specialized assessment of their credentials and their education by going to the experts . . . Unlike immigration officers, they know what the standards are to be licensed as an engineer or as a physician in Canada."

That said, the pre-arrival assessment does not guarantee applicants will find work in Canada commensurate with their skills, nor does it guarantee they'd become licensed in their field.

That lies with the professional regulatory bodies in the jurisdiction in which the individual intends to settle — and that, Kenney suggested, is a whole other problem.

In many ways credential recognition is a provincial responsibility, outside of Citizenship and Immigration's jurisdiction, he said. Kenney also cited the case of an Iranian couple — a radiologist and orthopedic surgeon — who have struggled to get their skills recognized and have resolved to return to Iran.

He suggested some regulatory bodies have been overly protectionist and ought to "do a lot more" to streamline their processes.

"We want to maintain our high Canadian standards, but certainly there has been a lot of criticism," he said.

"We have a moral obligation at all levels of government, all professional licensing bodies, to move forward with deliberation, and haste and urgency to do whatever we can to open the opportunity for people like this to practice."

NDP immigration critic Don Davies suggested the government's been touting this idea for ages and while it's a good start, it still doesn't do anything to actually get a person's credentials recognized in Canada.

He agrees the provinces and particularly the regulatory bodies have put up barriers, for instance to protect their members' earnings potential, but suggested there are ways the federal government can get around it.

While he has yet to table it in this Parliament, Davies has previously put forward a motion urging the federal government to enter into "nation-to-nation treaty discussions" to mutually recognize certain credentials, for example, from a particular university.

Kenney also used the opportunity to release the government's progress report on foreign credential recognition. It highlights a number of initiatives that have been taken, including a program that offers pre-arrival orientation sessions in up to 25 countries, a bridging program to help internationally trained nurses meet Canadian licensing requirements and a website where stakeholders can share information.

Kenney offered few details about what to expect in the budget, but noted the government would be making "fundamental improvements" to immigration programs starting Wednesday and continuing throughout the year.

The policy reforms, he said, are meant to attract skilled immigrants who can fill gaps in the Canadian labour market.

He would not say whether the budget would include a plan to legislate away a massive backlog in applications for immigration, an idea put forward for discussion earlier this month.

VISA OFFICER MUST PROVIDE CLEAR REASONS ON LACK OF APPLICANT WORK EXPERIENCE

Experience is one of the factors to be assessed by a visa officer in a Skilled Worker application. Many applicants provide letters of experience that re short or somewhat unclear, but may be sufficient to prompt further inquiry,. In the case below, the officer failed to explain specifically which duties of the occupation the applicant did not perform.

Shirazi v. Canada (Minister of Citizenship and Immigration)
Between

Farha Farook Shirazi, Applicant, and

The Minister of Citizenship and Immigration, Respondent

[2012] F.C.J. No. 343

2012 FC 306


Docket IMM-2817-11


Federal Court

Montréal, Quebec


Scott J.
Heard: January 10, 2012.

Judgment: March 14, 2012.

(33 paras.)
________________________________________
REASONS FOR JUDGMENT AND JUDGMENT

SCOTT J.:--

I. Introduction

1 This is an application by Farha Farook Shirazi (Ms. Shirazi), pursuant to subsection 72(1) of the Immigration and refugee Protection Act, SC 2001, c 27 [IRPA], for judicial review of a decision of M. Pendleton, Case Officer at Citizenship and Immigration Canada (the officer) rendered April 14, 2011, denying Ms. Shirazi's application for permanent residence as a member of the Federal Skilled Worker [FSW] class.

2 For the reasons that follow, this application for judicial review is granted.

II. Background

A. Facts

3 Ms. Shirazi is a citizen of India, born in Surat, on September 10, 1975.

4 Ms. Shirazi is married with two children. She holds a Bachelor of Commerce and a diploma in Computer Education from the D.R.K. College of Commerce, in India and a diploma in International Trade from Mumbai.

5 Her resume reveals that she held several positions in the secretarial field. From October 1999 to September 2001 she worked as a secretary for Al-Rods est., in Sharjah, U.A.E. From November 2002 to February 2006, she worked as an Executive Secretary for Avon Appliances in Mumbai. Ms. Shirazi then worked for Standard Carpets in Sharjah until April 2007. Finally, she joined the "Happy Home English School" in Sharjah from September 2008 to this date (see paras 7 to 15 of the Affidavit of Farha Farook Shirazi).

6 In July 2007, she filed an application under the FSW class.

7 On October 9, 2007, Ms. Shirazi received an acknowledgement of application from the Canadian High Commission in London, England.

8 On March 11, 2010, Ms. Shirazi was informed that her application was sent to the Case Processing Pilot in Ottawa.

9 The Officer concluded that Ms. Shirazi did not satisfy the requirements of the IRPA and the Immigration and Refugee Protection Regulations, SOR/2002-227 [IRPR]. Therefore, she was inadmissible under de FSW class, more particularly under the secretary category.

B. Officer's decision







Points assessed

Maximum





Age 10 10

Education 22 25

Experience 19 21

Arranged employment 0 10

Official language

proficiency 14 24

Adaptability 0 10




TOTAL

65

100



10 The Officer assessed Ms. Shirazi's application and awarded points as follows:

11 In order to be accepted under the FSW class, Ms. Shirazi needed a minimum of 67 points. However, as the table above indicates, Ms. Shirazi only scored 65 points out of a maximum of 100 points.

12 The portion of the decision that is at issue, in this case, relates to the Officer's rating in the "Experience" category.

13 As evidence of her experience in the secretarial field, Ms. Shirazi provided several letters from past employers. According to the Officer, of all the documents submitted, only two contained details of her duties (see pages 49 to 59 of the Applicant's Record). The Officer assessed Ms. Shirazi's work experience using these two letters. The Officer compared the duties listed in these letters to the description in the National Occupational Classification [NOC] and found that only one letter (see the letter from Avon Appliances, pages 49 to 57) demonstrated that Ms. Shirazi had performed a number of the duties listed in the NOC code 1241 [NOC 1241]. The Officer writes: "that letter, from Avon Appliances, covers a period of employment of three years, but less than 4 years" (see page 2 of the Tribunal Record).

14 Ms. Shirazi was awarded 19 points instead of 21 points in the experience category because of the length of her tenure at Avon. The Officer calculated Work Experience points "based upon the dates of employment as provided by the letter from Avon Appliances. The dates of [employment] are indicated as 5 November 2002 to 28 February 2006. This is a total of 39 months of employment, or three (3) years but less than four (4) years. As per section 80(1) of the [IRPR], [the Officer] awarded 19 points for work experience based on this assessment" (see para 16 of the Affidavit of Meghan Pendleton dated November 18, 2011).

III. Issue and standard of review

A. Issue



• * Did the officer err in finding that Ms. Shirazi failed to satisfy the requirements found in subsection 75(2) of the IRPR?

B. Standard of Review

15 "The assessment of an application for permanent residence under the [FSW] class is an exercise of discretion that should be given a high degree of deference" (see Ali v Canada (Minister of Citizenship and Immigration), 2011 FC 1247, [2011] FCJ No 1536 at para 26; Kniazeva v Canada (Minister of Citizenship and Immigration), 2006 FC 268). The present issue raises a question of fact or of mixed fact and law. It is therefore reviewable on a standard of reasonableness (see Gulati v Canada (Minister of Citizenship and Immigration), 2010 FC 451, [2010] FCJ No 771 at para 19 [Gulati]).

16 When reviewing a decision on a standard of reasonableness, the Court must be concerned "with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law" (see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at para 47 [Dunsmuir]).

IV. Parties' submissions

A. Ms. Shirazi's submissions

17 Ms. Shirazi claims the Officer's decision is unreasonable because she failed to take in consideration her letter of employment from the "Happy Home English School". She also submits that an applicant does not need to perform all of the duties set out in the NOC 1241. In Sandhu v Canada (Minister of Citizenship and Immigration), 2010 FC 759 at para 27, Justice Mandamin wrote that "the Applicant's last employer listed her responsibilities. This list included two tasks which would qualify the Applicant as a secretary as understood by the NOC 1241 standard: namely, making travel arrangements and training new staff".

18 Ms. Shirazi underlines that she occupied the position of school secretary at the "Happy Home English School". She alleges that her duties at the school which were listed in her letter dated May 2, 2010 (see page 59 of the Applicant's record) shows that she did perform a number of the main tasks listed in the NOC 1241. She submits that, in comparing the NOC 1241 to her letter of employment from the school, similarities of the duties are apparent.

19 The Officer disregarded Ms Shirazi's experience at the school because it failed to show that she had performed a number of the main duties described in the NOC. Ms. Shirazi contends that the main duties listed in the NOC 1241 must be applied to various contexts.

B. Respondent's submissions

20 The Respondent submits that, although Ms. Shirazi had performed the main duties of a secretary in the lead statement of the NOC 1241, she only met the requirements of two criteria for one of her former positions.

21 The Respondent alleges that the evaluation of an applicant's work experience is a matter that belongs to each visa officer. The decision at hand is discretionary and is reasonable in its entirety. This Court's intervention is therefore not warranted.

22 The Respondent refers to Justice Jerome's decision in Hajariwala v Canada (Minister of Employment and Immigration), [1989] 2 FC 79 at para 7, where he held that "it is clearly, therefore, the responsibility of the applicant to produce all relevant information which may assist his application". Since Ms. Shirazi did not provide sufficient information in support of her application, the Officer was unable to conclude that she had performed a substantial number of the main duties listed in NOC 1241 when working for the "Happy Home English School". Consequently, The Officer's decision is reasonable.

V. Analysis



• *

Did the officer err in finding that Ms. Shirazi failed to satisfy the requirements found in subsection 75(2) of the IRPR?

23 On April 14, 2011, the Officer rendered her decision. She wrote:



• ...you provided several letters of employment, letters of offers and contracts. Of these documents, two (2) contained details of your duties. I assessed your work experience using these two documents. I compared the duties listed in these letters to the description in the National Occupational Classification (NOC) and found that only one letter demonstrated that you had performed a number of the main duties. That letter, from Avon Appliances, covers a period of employment of three years, but less than 4 years.

24 The Officer concluded that her letter of employment from the "Happy Home English School" failed to demonstrate that she had performed a substantial number of the main duties set out in the NOC 1241.

25 Pursuant to subsection 11(1) of the IRPA, "the visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act".

26 Subsection 12(2) of the IRPA governs the application under the economic class. Its purpose is to determine whether a foreign national has the ability to become economically established in Canada.

27 Furthermore, subsection 75(1) of the IRPR provides that, "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". Pursuant to subsections 75(2) and (3) of the IRPR:



• (2)

a foreign national is a skilled worker if



• (a) 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;



• (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; and



• (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.



• Minimal requirements



• (3)

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.

* * *



• (2)

Est un travailleur qualifié l'étranger qui satisfait aux exigences suivantes :



• a) 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;



• 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.



• Exigences



• (3)

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.

28 In reading subsection 75(3) of the IRPR it is clear that a foreign national must meet the requirements found in subsection 75(2) in order to be considered a skilled worker.

29 The Officer held that Ms. Shirazi did not meet subsection 75(2) paragraph (c) of the IRPR. However, as Justice Mosley wrote, in paragraph 41 of Gulati cited above, "it is impossible to assess the officer's conclusion, that the applicant had not performed a substantial number of the main duties of NOC ... without knowing which duties the officer thought had not been performed and why". A review of the Computer Assisted Immigration Processing System notes [CAIPS notes] does not shed additional light on the issue since they merely reiterate the Officer's reasons for her decision but do not provide any clear indication of the reasoning behind the rejection of the letter from the Happy Home English School provided by Ms. Shirazi.

30 Certain clarifications were given in the Officer's affidavit dated November 18, 2011 where she wrote that "[i]n comparing the details of the Applicant's duties as provided by letter from Happy Home English School to the NOC code provided by the Applicant for this position (1241), I was not satisfied that the Applicant had performed a substantial number of the main duties provided in the description. I was satisfied that the Applicant had performed some of the main duties listed, but not a substantial number" (see para 14 of the Affidavit of Meghan Pendleton). Again, the affidavit failed to provide sufficient details to explain the basis for the Officer's conclusion that she was not satisfied that Ms. Shirazi had performed a substantial number of the main duties as set out in the NOC 1241.

31 The Officer's decision is a discretionary one. However, the reasonableness of a decision stands on its transparency and intelligibility.

32 According to Dunsmuir cited above "the transparency and intelligibility of a decision are important elements of a reasonableness analysis" (see Gulati at para 42). There absence renders the decision unreasonable.

VI. Conclusion

33 The Officer's decision is unreasonable, it lacked in transparency and intelligibility. The application for judicial review is hereby granted and the matter is remitted to the Case Processing Pilot in Ottawa for reconsideration by another Officer.

JUDGMENT


• THIS COURT'S JUDGMENT is that


• 1. This application for judicial review is granted and the matter is remitted to the Case Processing Pilot in Ottawa for reconsideration by another Officer; and

• 2. There is no question of general interest to certify.

SCOTT J.