OFFICER ASSESSED JOB DUTIES INCORRECTLY IN CEC APPLICATION

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

Song v. Canada (Minister of Citizenship and Immigration)

Between
Seho Song, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2015] F.C.J. No. 94

2015 FC 141

Docket: IMM-4550-13

 Federal Court
Toronto, Ontario

Russell J.

Heard: November 12, 2014.
Judgment: February 4, 2015.

(31 paras.)

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JUDGMENT AND REASONS

·       RUSSELL J.:-- 

I. INTRODUCTION

1     This is an application under s. 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 for judicial review of the decision of a visa officer [Officer], dated May 29, 2013 [Decision], which refused the Applicant's application for permanent residence in Canada as a member of the Canadian Experience class.

II. BACKGROUND

2     The Applicant submitted his application for permanent residence in September 2012. The Applicant applied under National Occupational Classification [NOC] 0621 (Retail and Wholesale Trade Manager) and NOC 3219 (Pharmacy Technician).

3     At the time of his application, the Applicant says that he had been working as a Front Store Manager for more than one year at a pharmacy in Toronto. He also says that he worked from October 2009 to December 2010 as a Pharmacy Technician at the same pharmacy.

III. DECISION UNDER REVIEW

4     The Applicant's application for permanent residence was denied in a letter dated May 29, 2013.

5     The Officer said that the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations] require that an applicant under the Canadian Experience class demonstrate: knowledge of English or French; Canadian skilled work experience; and, Canadian educational credentials (if applying under the Post-Graduation Stream). The Officer found that the Applicant did not meet the skilled work experience requirement. The Officer said that the Applicant's letter of employment detailing his responsibilities as a Front Store Manager did not satisfy him or her that the Applicant had performed the functions listed under NOC 0621. As a result, the Officer concluded that the Applicant had failed to demonstrate that he had "acquired twelve months of full-time skilled work experience in Canada at a National Occupational Classification skill of type O or level A or B in the last twenty-four months prior to the submission of [his] application and after having obtained [his] Canadian educational credential" (Certified Tribunal Record [CTR] at 34).

6     The Global Case Management System [GCMS] notes, dated May 29, 2013, provide further explanation of the Officer's Decision (CTR at 36):

·       Work: Qualifying period: 2/10/10-2/10/12. According to application, PA worked as a Front Shop Manager (NOC 0621) for Bloor Park Pharmacy from JAN11 to present. Letter confirms employment, salary and lists duties which do not match those under NOC 0621. Specifically, according to the letter, the PA does not: Plan, organize direct control and evaluate the operations of establishments engaged in wholesale and retail sales or of departments in such establishments Does not: Study market research and trends to determine consumer demand, potential sales volumes and effect of competitors' operations on sales implement price and credit policies Plan budgets and authorize expenditures As the PA's experience does not include the above, I cannot count this experience. PA also requested assessment for as a Pharmacy Technician (NOC 3219) at the same employer from OCT09 to DEC10. However, work experience is outside of qualifying period with exception of two months. I am not satisfied that the PA has 12 months of full-time skilled work experience. Eligibility failed. 

IV. ISSUES

7     The Applicant raises three issues in this application:

·       1. 

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

·       2. 

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

·       3. 

Did the Officer breach the duty of procedural fairness in failing to provide the Applicant with an opportunity to respond to his or her concerns? 

V. STANDARD OF REVIEW

8     The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is settled in a satisfactory manner by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless, or where the relevant precedents appear to be inconsistent with new developments in the common law principles of judicial review, must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis: Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 48.

9     The Applicant says that the standard of review for decisions involving the exercise of discretion and questions of mixed fact and law is reasonableness: Kastrati v Canada (Citizenship and Immigration), 2008 FC 1141 at paras 9-10. The standard of review for questions of law and natural justice is correctness: Restrepo Benitez v Canada (Minister of Citizenship and Immigration), 2006 FC 461 at para 44.

10     The Respondent says that visa officers are experts in assessing permanent residence applications, and this Court has held that visa officers are owed deference due to their expertise: Onyeka v Canada (Citizenship and Immigration), 2009 FC 336 at para 17; Pacheco Silva v Canada (Citizenship and Immigration), 2007 FC 733 at para 6; Kniazeva v Canada (Minister of Citizenship and Immigration), 2006 FC 268; Hassani v Canada (Citizenship and Immigration), 2006 FC 1283 [Hassani].

11     This Court has held that an officer's determination under the Canadian Experience class involves questions of mixed fact and law and is reviewed on a standard of reasonableness: Anabtawi v Canada (Citizenship and Immigration), 2012 FC 856 at para 28. The jurisprudence is clear that questions of procedural fairness are reviewed on a standard of correctness: Mission Institution v Khela, 2014 SCC 24 at para 79; Exeter v Canada (Attorney General), 2014 FCA 251 at para 31.

12     When reviewing a decision on the standard of reasonableness, the analysis will be concerned with "the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law": see Dunsmuir, above, at para 47; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the "range of possible, acceptable outcomes which are defensible in respect of the facts and law."

VI. STATUTORY PROVISIONS

13     The following provisions of the Regulations were in force at the time the Applicant's application was assessed and are applicable to this proceeding:

·       Canadian Experience Class

·       Class

·       87.1 (1) For the purposes of subsection 12(2) of the Act, the Canadian experience class is prescribed as a class of persons who may become permanent residents on the basis of their experience in Canada and who intend to reside in a province other than the Province of Quebec. 

·       Member of the class

·       (2) 

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

·       (a) 

they 

·       (i) 

have acquired in Canada within the 24 months before the day on which their application for permanent residence is made at least 12 months of full-time work experience, or the equivalent in part-time work experience, in one or more occupations that are listed in Skill Type 0 Management Occupations or Skill Level A or B of the National Occupational Classification matrix, and have acquired that work experience after having obtained 

·       (A) 

a diploma, degree or trade or apprenticeship credential issued on the completion of a program of full-time study or training of at least two years' duration at a public, provincially recognized post-secondary educational or training institution in Canada, 

·       (B) 

a diploma or trade or apprenticeship credential issued on the completion of a program of full-time study or training of at least two years' duration at a private, Quebec post-secondary institution that operates under the same rules and regulations as public Quebec post-secondary institutions and that receives at least 50 per cent of its financing for its overall operations from government grants, subsidies or other assistance, 

·       (C) 

a degree from a private, provincially recognized post-secondary educational institution in Canada issued on the completion of a program of full-time study of at least two years' duration, or 

·       (D) 

a graduate degree from a provincially recognized post-secondary educational institution in Canada issued on the completion of a program of full-time study of at least one year's duration and within two years after obtaining a degree or diploma from an institution referred to in clause (A) or (C), or 

·       (ii) 

have acquired in Canada within the 36 months before the day on which their application for permanent residence is made at least 24 months of full-time work experience, or the equivalent in part-time work experience, in one or more occupations that are listed in Skill Type 0 Management Occupations or Skill Level A or B of the National Occupational Classification matrix; and 

·       [...] 

* * *

·       Catégorie de l'expérience canadienne

·       Catégorie

·       87.1 (1) Pour l'application du paragraphe 12(2) de la Loi, la catégorie de l'expérience canadienne est une catégorie réglementaire de personnes qui peuvent devenir résidents permanents du fait de leur expérience au Canada et qui cherchent à s'établir dans une province autre que le Québec. 

·       Qualité

·       (2) 

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

·       a) 

l'étranger, selon le cas: 

·       (i) 

a accumulé au Canada au moins douze mois d'expérience de travail à temps plein ou l'équivalent s'il travaille à temps partiel dans au moins une des professions appartenant aux genre de compétence 0 Gestion ou niveaux de compétences A ou B de la matrice de la Classification nationale des professions au cours des vingt-quatre mois précédant la date de la présentation de sa demande de résidence permanente et, antérieurement à cette expérience de travail, a obtenu au Canada, selon le cas: 

·       (A) 

un diplôme, certificat de compétence ou certificat d'apprentissage après avoir réussi un programme d'études ou un cours de formation nécessitant au moins deux ans d'études à temps plein et offert par un établissement d'enseignement ou de formation postsecondaire public reconnu par une province, 

·       (B) 

un diplôme, certificat de compétence ou certificat d'apprentissage après avoir réussi un programme d'études ou un cours de formation nécessitant au moins deux ans d'études à temps plein et offert par un établissement d'enseignement postsecondaire privé au Québec qui est régi par les mêmes règles et règlements que les établissements d'enseignement publics et dont les activités sont financées, pour au moins 50 %, par le gouvernement notamment, au moyen de subventions, 

·       (C) 

un diplôme universitaire après avoir réussi un programme d'études nécessitant au moins deux ans d'études à temps plein et offert par un établissement d'enseignement postsecondaire privé reconnu par une province, 

·       (D) 

un diplôme d'études supérieures après avoir réussi un programme d'études à temps plein d'une durée d'au moins un an, offert par un établissement d'enseignement postsecondaire reconnu par une province, au plus tard deux ans après avoir obtenu un diplôme d'un établissement visé aux divisions (A) ou (C), 

·       (ii) 

a accumulé au Canada au moins vingt-quatre mois d'expérience de travail à temps plein ou l'équivalent s'il travaille à temps partiel dans au moins une des professions appartenant aux genre de compétence 0 Gestion ou niveaux de compétences A ou B de la matrice de la Classification nationale des professions au cours des trente-six mois précédant la date de la présentation de sa demande de résidence permanente; 

·       [...] 

VII. ARGUMENT

·       A. 

Applicant

·       (1) 

Reasonableness 

14     The Applicant says that he submitted an employment letter with his application which outlined his performance of the duties required by NOC 0621. The letter outlined the Applicant's duties as Front Store Manager (Applicant's Record at 82-84):

·       * 

Determine merchandise (over-the-counter products) and services to be sold 

·       * 

Take charge of refunds and exchanges 

·       * 

Manage staff and assign duties (also train new staff) 

·       * 

Resolve customer complaints 

·       * 

Organize and locate merchandise to promote sales in two ways 

·       * 

Locate and select merchandise for resale 

·       * 

Organize special promotions, displays and events (implementing marketing strategies) 

·       * 

Decide merchandise to carry on the basis of customer's demands, which indicates analyzing and interpreting trends to facilitate future planning of merchandise certain products 

·       * 

Determine staffing requirements and hire or oversee hiring of staff for the retail section 

·       * 

Manage the team to increase sales and ensure efficiency 

·       * 

Work alongside the pharmacist and technicians to balance stock levels and making decisions about stock control 

·       * 

Touring the sales floor regularly, talking to colleagues and customers, and identifying or resolving urgent issues 

15     The Applicant says that a comparison of the duties outlined in the employment letter with the duties described under NOC 0621 shows that the Officer's finding that he had not performed all of the duties is unreasonable. NOC 0621 provides that Retail Managers perform some or all of the following main duties (CTR at 26-27):

·       * 

Plan, direct and evaluate the operations of establishments engaged in wholesale and retail sales or of departments in such establishments 

·       * 

Manage staff and assign duties 

·       * 

Study market research and trends to determine consumer demand, potential sales volumes and effect of competitors' operations on sales 

·       * 

Determine merchandise and services to be sold, and implement price and credit policies 

·       * 

Locate, select and procure merchandise for resale 

·       * 

Develop and implement marketing strategies 

·       * 

Plan budgets and authorize expenditures 

·       * 

Resolve customer complaints 

·       * 

Determine staffing requirements and hire or oversee hiring of staff 

16     The Applicant says that the duties provided in the employment letter are specific to employment in pharmacy and encompass the general statements that the Officer made regarding the requirements under NOC 0621. The Applicant says that "either the officer erred in law in misconstruing or ignoring evidence, or the reasons as expressed are inadequate to meet the requirements of fairness" (Applicant's Record at 129).

17     The Applicant further submits that the Officer erred in calculating the qualifying period for the Applicant's experience in relation to NOC 3219. The Applicant says that his application detailed his experience as a Pharmacy Technician from October 2009 to December 2010. The Citizenship and Immigration Canada website provides that an applicant "must have had at least 12 months of full time skilled work experience in Canada in the three year period prior to application" in order to be eligible. The Applicant says that his application was submitted in September 2012 and so should include all full-time employment dating back to September 2009. The Officer erred in not taking his experience as a Pharmacy Technician into consideration.

18     The Applicant also says that the reasons are deficient because the reason that NOC 3219 was not considered has not been communicated to the Applicant. The provision of insufficient reasons is a breach of the duty of fairness: Canada (Citizenship and Immigration) v Jeizan, 2010 FC 323 at paras 17-22.

·       (2) 

Procedural Fairness 

19     The Applicant says that the Officer breached the duty of procedural fairness by failing to provide the Applicant with an opportunity to address the Officer's concerns. The Applicant says that visa officers have a duty to not consider extraneous information and may have a duty to alert applicants about particular concerns: Rukmangathan v Canada (Minister of Citizenship and Immigration), 2004 FC 284 at para 22 [Rukmangathan].

20     The Applicant agrees that the duty does not require that an applicant be provided a "running score" of deficiencies: Rukmangathan, above. However, the duty exists to allow an applicant an opportunity to reply where the visa officer's concern is with the "credibility, accuracy or genuine nature of the information submitted by the applicant": Hassani, above, at para 24. In Gedeon v Canada (Minister of Citizenship and Immigration), 2004 FC 1245 at paras 101-102, the Court said that it was a reviewable error when the visa officer failed to provide reasons for rejecting evidence of the applicant's work experience and did not give the applicant an opportunity to address his concerns.

21     The Applicant says that this is not a case where the Applicant failed to adduce any evidence to support the facts. Rather, the Applicant adduced evidence which the Officer has raised concerns about. The Applicant should have been given an opportunity to respond: Liao v Canada (Minister of Citizenship and Immigration), [2000] F.C.J. no 1926 at paras 15, 17 (TD)(QL); Kuhathasan v Canada (Citizenship and Immigration), 2008 FC 457 at paras 39-41; Singh Sekhon v Canada (Citizenship and Immigration), 2012 FC 700 at paras 12-14.

·       B. 

Respondent

22     The Respondent says the Officer reasonably found that the Applicant's evidence was insufficient to establish that he held the required experience under NOC 0621. This assessment of the evidence falls within the Officer's jurisdiction: Wang v Canada (Minister of Citizenship and Immigration), 2006 FC 1298 at para 13 [Wang].

23     The Respondent acknowledges that the current Regulations require qualifying work experience to have been acquired in the three years preceding an application. However, the Regulations that were in force when the Applicant submitted his application provided that the qualifying work experience had to be acquired in the twenty-four months preceding an application. As a result, the Officer correctly identified the qualifying period as October 2010 to October 2012. The Applicant had only two months of experience working as a Pharmacy Technician in this time period.

24     The Respondent says that the reasons detail the deficiencies in the Applicant's evidence and set out the appropriate time period. The Officer's reasons are supported by the record and the Regulations. There is no merit to the Applicant's claim that the reasons are insufficient: Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paras 14-17.

25     The Respondent further submits that this Court has discussed the low level of procedural fairness that is owed to visa applicants: Malik v Canada (Citizenship and Immigration), 2009 FC 1283 at paras 26, 29. An officer is not required to alert an applicant to concerns that arise from legislative requirements or from their own evidence: Dhillon v Canada (Citizenship and Immigration), 2009 FC 614 at para 30; Liu v Canada (Minister of Citizenship and Immigration), 2006 FC 1025 at para 16; Qin v Canada (Minister of Citizenship and Immigration), 2002 FCT 815 at para 7. Whether the Applicant had the requisite experience was directly related to the regulatory requirements. The onus is on the applicant to submit all necessary information and the onus does not shift to the visa officer to seek more information: see Singh v Canada (Citizenship and Immigration), 2010 FC 212 at para 11; Arango v Canada (Citizenship and Immigration), 2010 FC 424 at para 15.

VIII. ANALYSIS

26     The Applicant now concedes that the Officer did not err in the calculation of the qualifying period for NOC 3219. This leaves the Court to deal with unreasonableness and breach of procedural fairness with regard to the Decision on NOC 0621 -- Front Store Manager. There is no need to address the procedural fairness issues raised because I have concluded that the Decision is unreasonable with regards to the Applicant's application under NOC 0621.

27     I say this because a comparison between the duties that Human Resources and Skills Development Canada sets out for NOC 0621 and the employer's letter submitted with the application, which describes in detail what the Applicant does as a Front Store Manager at Mary Gergis Pharmacy Inc O/A Bloor Park Pharmacy, leaves me in no doubt that the Applicant's duties satisfy the lead statement for NOC 0621 and nearly all of the main duties listed in NOC 0621. The only one that I cannot say is immediately apparent is any reference to "competitors' operations" which appears in the third bullet under Main Duties:

·       * 

Study market research and trends to determine consumer demand, potential sales volumes and effect of competitors' operations on sales 

The employer's letter covers everything else.

28     I agree with the Respondent that the Officer has a broad discretion to weigh the evidence submitted in making a decision, and that the Court should be very reluctant to interfere with that discretion: see Wang, above, at para 13. However, the present case requires interference because the evidence before me shows that the Decision is simply incomprehensible.

29     It is clear that the duties listed in the employer's letter do not use the same words that appear in NOC 0621. But this will inevitably be the case because applications have been refused when an employer simply reiterates the wording of a NOC. So employers are obliged to describe in their own words exactly what applicants do. This requires officers to examine applications carefully and not to reject them because the same words are not used.

30     In the present case, the Respondent conceded before me that, given the details in the employer's letter, it would not have been unreasonable for the Officer to have concluded that the Applicant did fulfill the requirements of NOC 0621. The Respondent correctly points out that just because a positive decision would have been reasonable does not mean that a negative decision is unreasonable. In this case, however, there are, in my view, no grounds for the Officer's finding that the Applicant did not meet the requirements of NOC 0621. In other words, the Decision lacks justification and intelligibility and falls outside the range of possible, acceptable outcomes which are defensible in respect of the facts and law: see Dunsmuir, above, at para 47. This means the Decision must be quashed and retuned for reconsideration in accordance with these reasons.

31     Counsel agree there is no question for certification and the Court concurs.

JUDGMENT

·       THIS COURT'S JUDGMENT is that

·       1. 

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

·       2. 

There is no question for certification. 

RUSSELL J.

CONCERN OVER "COPIED" JOB DUTIES STILL REQUIRES FAIRNESS BY OFFICER

An applicant who appears to have "copied" the job duties in the NOC description for his reference letter still deserves an opportunity to explain that issue.

Hamza v. Canada (Minister of Citizenship and Immigration)

Between Abu Asim Hamza, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2013] F.C.J. No. 284

2013 FC 264

Docket IMM-3693-12

 Federal Court
Montréal, Quebec

Bédard J.

Heard: January 30, 2013.
Judgment: March 12, 2013.

(45 paras.)

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REASONS FOR JUDGMENT AND JUDGMENT

1     BÉDARD J.:-- Mr Hamza (the applicant or Mr Hamza) is a citizen of Pakistan. He submitted an application for permanent residence in Canada in the Federal Skilled Worker class as a family physician. On January 27, 2012, his application was refused at the screening stage by the Canadian High Commission in London because the visa officer (the Officer) found that the applicant had not provided sufficient independent documentation demonstrating his experience as a general practitioner or family physician.

2     This application seeks judicial review of that decision pursuant to section 72 of the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act]. For the following reasons the application is allowed.

 

·       I. 

Background

3     On June 22, 2009, the applicant submitted an application for permanent residence in Canada as a member of the Federal Skilled Worker class. He included his wife and three children in his application.

4     The requirements that foreign nationals applying for permanent residence as Federal Skilled Workers must satisfy are set out in the Act and in the Immigration and Refugee Protection Regulations, SOR 2002-227 [the Regulations]. Subsection 12(2) of the Act states that foreign nationals may be selected as members of the economic class "on the basis of their ability to become economically established in Canada." Subsection 75(1) of the Regulations specifies that the Federal Skilled Worker class refers to a class of persons who are skilled, and who have the ability to become economically established in Canada. Subsection 75(2) of the Regulations defines the skilled worker as a person who has at least one year of continuous full-time employment experience in one of the listed occupations of the National Occupational Classification (NOC) within the last 10 years. In order to be recognized as a skilled worker, a person must establish that during that period of employment, he or she performed the actions described in the lead statement of the NOC for the relevant position and a substantial number of the main duties as set out in the NOC, including all of the essential duties (paragraphs 75(2)(b) and (c)). The occupation of "general practitioner and family physician" is described in NOC 3112.

5     In schedule 1 of his application form, the applicant indicated that he has been working as a family physician, both at his privately owned clinic and at the Sindh Governmental Hospital in Karachi since 1988. To establish his work experience, he provided a self-declared certificate, attesting that he had been practicing as a family physician at his clinic since 1988 and setting out his main duties and responsibilities. He also filed a letter, dated November 14, 2009, from Dr Imtiaz Haroon, Medical Superintendent of the Sindh Government Hospital of Liaquatabad in Karachi (the employment letter), attesting that the applicant has been working in their organization as a family physician since 1988. Dr Haroon also listed the applicant's major responsibilities, which mirror several duties listed in the NOC 3112. The employment letter ends with a comment from the Superintendent stating that the applicant is "very co-operative, hard working and a dedicated doctor". In addition, the Superintendent noted that the certificate was being issued at the applicant's request.

 

·       II. 

Decision under review

6     The Officer determined that Mr Hamza's application was not eligible for processing. In her letter refusing eligibility, the Officer indicated that she was not satisfied that the applicant was a general practitioner or family physician because he failed to provide sufficient independent documentation demonstrating his experience. The refusal letter further states as follows:

 

·       You have indicated that you have work experience in (an) occupation(s) with the following NOC (National Occupational Classification) code(s) 3112: General Practitioners and Family Physicians. 

 

·       Although the NOC code(s) correspond(s) to the occupations specified in the Instructions, the main duties that you listed do not indicate that you performed the actions described in the lead statement for the occupation, as set out in the occupational descriptions of the NOC, or that you performed all of the essential duties and a substantial number of the main duties, as set out in the occupational descriptions of the NOC. 

 

·       You have not provided sufficient independent documentation to demonstrate your experience in NOC code 3112. I am therefore not satisfied that you are a General Practitioner or Family Physician. 

 

·       Since you did not provide satisfactory evidence that you have work experience in any of the listed occupations, you do not meet the requirements of the Ministerial Instructions and your application is not eligible for processing. 

 

·       [Emphasis added] 

7     The Officer's Computerized Assisted Immigration Processing System (CAIPS) notes, which form part of the Officer's decision (Taleb v Canada (Minister of Citizenship and Immigration), 2012 FC 384 at para 25, 407 FTR 185), capture in more detail the reasoning that led the Officer to reject Mr Hamza's application at the selection stage:

 

·       Applicant has provided only two references to demonstrate his experience. One is prepared by himself and the other is prepared by the office of the medical Sup. Karachi dated 14/11/9 which is covering experience from June 1988 to date and the Job duties mirror NOC description. This reference appears to be prepared for this application and therefore is self serving. There are no other supporting documents to demonstrate his employment as a physician and therefore his application is refused at screening. 

 

·       [Emphasis added] 

 

·       III. 

The issues

8     This application raises two issues.

9     The first issue relates to procedural fairness: Did the Officer breach her duty of procedural fairness by not providing the applicant with an opportunity to address her concerns regarding the applicant's employment letter?

10     This issue requires the Court to determine, first, if the Officer's concerns were related to the credibility of the employment letter provided by the applicant, or to the sufficiency of the evidence provided. Second, if the Court is satisfied that the Officer's concerns were related to the veracity of the employment letter, it must determine whether, in the circumstances of this case, the Officer should have provided the applicant with an opportunity to address her concerns.

11     The second issue raised by this application is whether it was reasonably open for the Officer to conclude, on the basis of the evidence submitted by the applicant, that he had not satisfactorily established his work experience as a family physician.

 

·       IV. 

The standards of review

12     The parties are in agreement as to the appropriate standards of review.

13     No deference is accorded to the Officer's decision regarding issues of procedural fairness and, therefore, the first issue is reviewable on a correctness standard of review (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43, [2009] 1 SCR 339; Sketchley v Canada (Attorney General), 2005 FCA 404 at para 53, [2006] 3 FCR 392; Zhu v Canada (Minister of Citizenship and Immigration), 2013 FC 155 at para 22 (available on CanLII) [Zhu]; Enriquez v Canada (Minister of Citizenship and Immigration), 2012 FC 1091 at para 6 (available on CanLII)[Enriquez]; Sandhu v Canada (Minister of Citizenship and Immigration), 2010 FC 759 at para 23, 371 FTR 239 [Sandhu]; Singh v Canada (Minister of Citizenship and Immigration), 2010 FC 1306 at para 36, 95 Imm. L.R. (3d) 83; Talpur v Canada (Minister of Citizenship and Immigration), 2012 FC 25 at para 20, 210 ACWS (3d) 765 [Talpur]).

14     However, the Officer's analysis of the applicant's eligibility for permanent residence as a Federal Skilled Worker involves an assessment of the evidence and the exercise of discretion and is reviewable on the reasonableness standard of review (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190; Zhu, above at para 23; Rashed v Canada (Minister of Citizenship and Immigration), 2013 FC 175 at para 44 (available on CanLII); Enriquez, above at para 4; Ismaili v Canada (Minister of Citizenship and Immigration), 2012 FC 351 at para 10 (available on CanLII)[Ismaili]; Torres v Canada (Minister of Citizenship and Immigration), 2011 FC 818 at para 26, 2 Imm. L.R. (4th) 57 [Torres]).

 

·       V. 

Arguments of the parties

A. The applicant's submissions

15     In his written representations, the applicant attacked the Officer's decision on different fronts. It included an allegation that the Officer had blindly and unreasonably relied on a check-list to reject the applicant's certificate where he listed his duties when working at his own clinic because it was not corroborated by third-party documentation. However, at the hearing, counsel for the applicant informed me that the applicant was no longer pursuing this argument and was relying solely on the remaining arguments presented in his written submissions relating to the employment letter.

16     Essentially, the applicant argues that it was unreasonable and an abuse of process for the Officer not to give any weight to the employment letter from the applicant's supervisor for the simple fact that it mirrors the NOC description.

17     Further, the applicant contends that the CAIPS notes reveal that the Officer's concerns were related to the credibility and veracity of the employment letter, as opposed to the sufficiency of the documentation that he provided. In this regard, the applicant insists that it is normal that the employment letter was "prepared for this application" and was "self-serving" since it was specifically provided to comply with the requirements set out in the check-list. He also insists that the letter is both independent and objective, as it was prepared by a government officer. In addition, the applicant contends that the CAIPS notes clearly suggest that the Officer was not questioning the sufficiency of the evidence provided, but rather, its credibility. Therefore, the applicant argues that the Officer should have provided him with an opportunity to address her concerns. By failing to do so, the Officer breached her duty of procedural fairness. The applicant contends that this principle has been recognized in the jurisprudence and he relies mainly on Patel v Canada (Minister of Citizenship and Immigration), 2011 FC 571 at paras 20-27 (available on CanLII) [Patel] and on Hassani v Canada (Citizenship and Immigration), 2006 FC 1283 at paras 23-24, [2007] 3 FCR 501 [Hassani]. At the hearing, counsel for the applicant stated that he acknowledged that in Obeta v Canada (Minister of Citizenship and Immigration), 2012 FC 1542 (available on CanLII) [Obeta], Justice Boivin departed from this principle, but he insisted that the circumstances in Obeta were totally different from those in this case.

B. The respondent's submissions

18     The respondent argues that the Officer's decision is reasonable, and that the Officer did not breach the applicant's right to procedural fairness. The respondent contends that the Officer did not question the credibility of the evidence provided by the applicant, but was concerned with the sufficiency of that evidence. The respondent submits that one could not infer from the indication that the employment letter was "self-serving", that the Officer thought that the letter was fraudulent. In the respondent's view, the employment letter was clearly insufficient and should have contained a detailed description of the applicant's duties and responsibilities.

19     Further, the respondent submits that the letter is not disinterested evidence as it advocates for a particular position by copying elements from the NOC, instead of providing a detailed description of the applicant's tasks. The respondent argues that it was reasonable, in the circumstances, for the Officer to give little weight to a letter merely mirroring the NOC. Further, the respondent submits that when the evidence provided in support of an application is insufficient, a visa officer is not required to inform the applicant of his or her concerns before making a negative determination. The respondent suggests that the circumstances in Patel, above, are distinguishable as it was clear in that case that the officer's concerns were related to the authenticity of the evidence, which is not the case here.

20     In the alternative, the respondent relies on Obeta, above, to establish that even if the Court is of the view that the Officer's concerns were related to the credibility of the employment letter, it does not establish that the Officer had an obligation to provide the applicant with an opportunity to address these concerns. The respondent also relied on Kamchibekov v Canada (Minister of Citizenship and Immigration), 2011 FC 1411 (available on CanLII) [Kamchibekov].

 

·       VI. 

Analysis

Did the Officer breach her duty of procedural fairness by not providing the applicant with an opportunity to address her concerns regarding the applicant's employment letter?

21     This Court has had numerous occasions to discuss the issue of the sufficiency of evidence that applicants for permanent residence must provide in support of their applications. The following principles have been reiterated on several occasions.

22     First, the onus clearly falls on the applicant to establish that he or she meets the requirements of the Regulations by providing sufficient evidence in support of his or her application (El Sherbiny v Canada (Minister of Citizenship and Immigration), 2013 FC 69 at para 6 (available on CanLII) [El Sherbiny]; Enriquez, above at para 8; Torres, above at paras 37-40; Kaur v Canada (Minister of Citizenship and Immigration), 2010 FC 758 at para 30 (available on CanLII) [Kaur]; Oladipo v Canada (Minister of Citizenship and Immigration), 2008 FC 366 at para 24, 166 ACWS (3d) 355; Ismaili, above, at para 18.

23     Second, the duty of procedural fairness owed by visa officers is on the low end of the spectrum (Farooq v Canada (Minister of Citizenship and Immigration), 2013 FC 164 at para 10 (available on CanLII) [Farooq]; Sandhu, above at para 25; Trivedi v Canada (Minister of Citizenship and Immigration, 2010 FC 422 at para 39 (available on CanLII) [Trivedi]; Khan v Canada (Minister of Citizenship and Immigration), 2001 FCA 345 at paras 30-32, [2002] 2 FC 413; Patel v Canada (Minister of Citizenship and Immigration), 2002 FCA 55 at para 10, 288 NR 48; Chiau v Canada (Minister of Citizenship and Immigration) (2000), [2001] 2 FC 297 at para 41 (available on CanLII) (CA), leave to appeal to SCC refused, 28418 (August 16, 2001).

24     Third, a visa officer has neither an obligation to notify an applicant of inadequacies in his or her application nor in the material provided in support of the application. Furthermore, a visa officer has no obligation to seek clarification or additional documentation, or to provide an applicant with an opportunity to address his or her concerns, when the material provided in support of an application is unclear, incomplete or insufficient to convince the officer that the applicant meets all the requirements that stem from the Regulations (Hassani, above at paras 23-24; Patel, above at para 21; El Sherbiny, above at para 6; Sandhu, above at para, 25; Luongo v Canada (Minister of Citizenship and Immigration), 2011 FC 618 at para 18 (available on CanLII); Ismaili, above at para 18; Triveldi, above at para 42; Singh, above at para 40; Sharma v Canada (Minister of Citizenship and Immigration), 2009 FC 786 at para 8, 179 ACWS (3d) 912 [Sharma]).

25     Nevertheless, a duty to provide an applicant with the opportunity to respond to an officer's concerns may arise when the officer is concerned with the credibility, the veracity, or the authenticity of the documentation provided by an applicant as opposed to the sufficiency of the evidence provided.

26     The judgments rendered by Justice Mosley in Rukmangathan v Canada (Minister of Citizenship and Immigration), 2004 FC 284, 247 FTR 147 [Rukmangathan] and Hassani, above, are often cited as being authoritative on this issue. In Rukmangathan, Justice Mosley enunciated the principle and its limits:

 

·       [22] It is well established that in the context of visa officer decisions procedural fairness requires that an applicant be given an opportunity to respond to extrinsic evidence relied upon by the visa officer and to be apprised of the officer's concerns arising therefrom: Muliadi, supra. In my view, the Federal Court of Appeal's endorsement in Muliadi, supra, of Lord Parker's comments in In re H.K. (An Infant), [1967] 2 Q.B. 617, indicates that the duty of fairness may require immigration officials to inform applicants of their concerns with applications so that an applicant may have a chance to "disabuse" an officer of such concerns, even where such concerns arise from evidence tendered by the applicant. Other decisions of this court support this interpretation of Muliadi, supra. See, for example, Fong v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 705 (T.D.), John v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 350 (T.D.)(QL) and Cornea v. Canada (Minister of Citizenship and Immigration) (2003), 30 Imm. L.R. (3d) 38 (F.C.T.D.), where it had been held that a visa officer should apprise an applicant at an interview of her negative impressions of evidence tendered by the applicant. 

 

·       [23] However, this principle of procedural fairness does not stretch to the point of requiring that a visa officer has an obligation to provide an applicant with a "running score" of the weaknesses in their application: Asghar v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1091 (T.D.)(QL) at para. 21 and Liao v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1926 (T.D.)(QL) at para. 23. And there is no obligation on the part of a visa officer to apprise an applicant of her concerns that arise directly from the requirements of the former Act or Regulations: Yu v. Canada (Minister of Employment and Immigration) (1990), 36 F.T.R. 296, Ali v. Canada (Minister of Citizenship and Immigration) (1998), 151 F.T.R. 1 and Bakhtiania v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1023 (T.D.)(QL). 

27     Two years later, he reiterated the principle in Hassani, in the following terms:

 

·       [24] Having reviewed the factual context of the cases cited above, it is clear that where a concern arises directly from the requirements of the legislation or related regulations, a visa officer will not be under a duty to provide an opportunity for the applicant to address his or her concerns. Where however the issue is not one that arises in this context, such a duty may arise. This is often the case where the credibility, accuracy or genuine nature of information submitted by the applicant in support of their application is the basis of the visa officer's concern, as was the case in Rukmangathan, and in John and Cornea cited by the Court in Rukmangathan, above. 

28     Justice Snider provided a good summary of the applicable principles in Enriquez, above, and insisted that to trigger a duty to provide an opportunity to respond to an officer's concerns, the applicant must first provide an application that is complete:

 

·       [26] The first duty raised by the Applicant is the duty to seek clarification. When an Applicant puts his or her best foot forward by submitting complete evidence and a visa officer doubts that evidence, the officer has a duty to seek clarification (Sandhu, above at paras 32-33). Although this duty is not triggered in situations where an applicant simply presents insufficient evidence, it will arise if the officer entertains concerns regarding the veracity of evidence; for example, if the officer questions the credibility, accuracy or genuine nature of the information provided (Olorunshola, above at paras 32-35). On the facts of this case, a duty to clarify may have arisen but was discharged by the Officer's questions to the Applicant during the interview. There was no breach of fairness. 

 

·       [27] The second duty raised by the Applicant is a duty to provide an opportunity to respond. When an applicant submits information that, if accepted, supports the application, he or she should be given an opportunity to respond to the officer's concerns if the officer wishes to make a decision based on those concerns (Kumar, above at paras 30-31). Procedural fairness may require an interview; for example, if a visa officer believes an applicant's documents may be fraudulent (Patel, above at paras 24-27). (...) 

 

·       [See also Sandhu, above, at paras 27-32; Farooq, above, at para 12; Patel, above, at paras 22-26, Singh, above, at paras 41-42; Talpur, above, at para 21; Baybazarov c Canada (Minister of Citizenship and Immigration), 2010 FC 665 at para 12 (available on CanLII); Kumar v Canada (Minister of Citizenship), 2010 FC 306 at paras 29-30 (available on CanLII) [Kumar]; Nabin v Canada (Minister of Citizenship and Immigration), 2008 FC 200 at para 8, 165 ACWS (3d) 341] 

29     In this case, the first issue to be determined is whether the Officer's concerns were related to the sufficiency or to the credibility of the evidence submitted by the applicant to establish his work experience.

30     A visa officer may have raised concerns about the credibility of an applicant's documentary evidence even though he or she did not express an explicit credibility finding. Visa officers' decisions must be analysed as a whole and in the context of the specific facts of each case. As stated by Justice Mosley in Adeoye v Canada (Minister of Citizenship and Immigration), 2012 FC 680 at para 8, 216 ACWS (3d) 191: "Although the officer did not make any explicit credibility findings, his scepticism about the applicant's claim and supporting documents is apparent from the decision." The same may apply in this case,

31     The context of the case at bar is somewhat similar to that in Patel, above, where the applicant provided only a single employment document in which the job duties were largely copied from the NOC. This situation concerned the visa officer. Justice O'Keefe found that the officer's concerns were related to the veracity of the employment letter and that the officer should have offered the applicant an opportunity to address his concerns. In this regard, Justice O'Keefe expressed the following:

 

·       [23] The onus is always on the principal applicant to satisfy the visa officer of all parts of his application. The officer is under no obligation to ask for additional information where the principal applicant's material is insufficient (see Madan v. Canada (Minister of Citizenship and Immigration) (1999), 172 FTR 262, [1999] F.C.J. No. 1198 (FCTD) (QL) at paragraph 6). 

 

·       [24] Regulation 75 clearly indicates that a foreign national is only a skilled worker if he can show one year of full time employment where he performed the actions in the lead statement of the NOC and a substantial number of the main duties. 

 

·       [25] As such, if the visa officer were concerned only that the employment letter was insufficient proof that the prinicipal [sic] applicant met the requirements of Regulation 75, then she would not have been required to conduct an interview. 

 

·       [26] However, the officer states that her concern is that the duties in the employment letter have been copied directly from the NOC description and that the duties in the experience letter are identical to the letter of employment. I agree with the principal applicant that the officer's reasons are inadequate to explain why this was problematic. I find that the implication from these concerns is that the officer considered the experience letter to be fraudulent.

 

·       [27] Consequently, by viewing the letter as fraudulent, the officer ought to have convoked an interview of the principal applicant based on the jurisprudence above. As such, the officer denied the principal applicant procedural fairness and the judicial review must be allowed. 

 

·       [Emphasis added] 

32     In Talpur, above, the visa officer also expressed concerns about an employment attestation that mirrored the duties set out in the NOC. The officer's concerns were clearly stated as relating to the credibility of the letter, but the applicant had been invited to reply to the officer's concerns during an interview. Therefore, the Court concluded that the officer had not breached the principles of natural justice given that the applicant was "afforded a reasonable opportunity to make her case or to demonstrate the genuineness of her application" (at para 22).

33     In the case at bar, the applicant provided two documents to establish his work experience: a self-declared certificate describing the duties that he performs when he works at his own clinic and an employment letter from Dr Harroon, the Medical Superintendent of the hospital. As previously stated, the certificate was not corroborated by third-party evidence as requested in the check-list and the applicant has abandoned his argument regarding that certificate. Therefore, the only evidence left in support of the applicant's allegation that he performed the responsibilities and duties of a family physician, is the employment letter signed by the hospital's Medical Superintendent.

34     The NOC for general practitioners and family physicians (3112) contains the following description:

 

·       General practitioners and family physicians diagnose and treat the diseases, physiological disorders and injuries of patients. They provide primary contact and continuous care toward the management of patients' health. They usually work in private practice, including group or team practices, hospitals and clinics. Residents in training to be general practitioners and family physicians are included in this unit group. 

 

·       (...) 

 

·       Main duties 

 

·       General practitioners and family physicians perform some or all of the following duties: 

 

·       * 

Examine patients and take their histories, order laboratory tests, X-rays and other diagnostic procedures and consult with other medical practitioners to evaluate patients' physical and mental health 

·       * 

Prescribe and administer medications and treatments 

·       * 

Perform and assist in routine surgery 

·       * 

Provide emergency care 

·       * 

Provide acute care management 

·       * 

Vaccinate patients to prevent and treat diseases 

·       * 

Deliver babies and provide pre-natal and post-natal care 

·       * 

Advise patients and their families on health care including health promotion, disease, illness and accident prevention 

·       * 

Provide counselling and support to patients and their families on a wide range of health and lifestyle issues 

·       * 

Perform patient advocacy role 

·       * 

Co-ordinate or manage primary patient care 

·       * 

Provide continuous care to patients 

·       * 

Supervise home care services 

·       * 

Report births, deaths, and contagious and other diseases to governmental authorities. 

35     The employment letter states that the applicant has been performing the following duties:

 

·       * 

Prescribe and administer medications and treatments. 

·       * 

Provide emergency care. 

·       * 

Inoculate and vaccinate patients. 

·       * 

Provide acute care management. 

·       * 

Provide emergency care. 

·       * 

Advise patients and their families on health care including health promotion, disease, illness and accident prevention. 

·       * 

Examine patients and take their histories, order laboratory tests, X-rays and other diagnostic procedures and consult with other medical practitioners to evaluate patients' physical and mental health. 

36     It is worth quoting again the Officer's notes in the CAIPS:

 

·       Applicant has provided only two references to demonstrate his experience. One is prepared by himself and the other is prepared by the office of the medical Sup. Karachi dated 14/11/9 which is covering experience from June 1988 to date and the Job duties mirror NOC description. This reference appears to be prepared for this application and therefore is self serving. There are no other supporting documents to demonstrate his employment as a physician and therefore his application is refused at screening. 

 

·       [Emphasis added] 

37     There is no doubt that the letter of reference lists duties performed by the applicant that are identical to several of the duties set out in NOC 3112. However, it is also clear from the letter that the Medical Superintendent is attesting that the applicant has been performing these duties.

38     I find it difficult to conclude that the Officer's concerns did not relate to the credibility of the employment letter. My understanding of her reasoning is as follows: (1) the letter mirrors the NOC description; (2) the letter appears to have been prepared for the purpose of the applicant's application and, therefore, because it also mirrors the NOC description, it is self-serving. In my view, by stating that the employment letter is self-serving, the Officer is saying that she doubts the veracity of its content. I fail to see what other interpretation can be given to this finding that the letter is self-serving on the facts of this case.

39     In the employment letter, the Medical Superintendent unequivocally indicated that the applicant has been working at the Government Hospital of Karachi as a family physician, and that he has been performing the duties listed in the letter. By saying that this letter is self-serving and by finding this letter to be insufficient in the absence of other supporting documents to establish the applicant's work experience, the Officer questions the independence of Dr Haroon and the veracity of his account of the applicant's duties. Had the Officer been satisfied that the duties listed in the employment letter were actually the duties performed by the applicant, then, there would be no reason, considering that these duties correspond to the main duties set out in the NOC, for the Officer to find this evidence to be insufficient. There is no rule that requires an applicant to provide more than one employment letter to establish sufficient work experience. An application can be deemed complete even if the work experience is supported by a single employment letter, as long as the employment letter accurately and completely lists the main duties performed by the applicant. I cannot say that it was unreasonable for the Officer to wonder whether the employment letter accurately reflected the applicant's duties and responsibilities. However, in my view, she should have allowed the applicant an opportunity to address her concerns before rendering her decision.

40     This case is distinguishable from the case in Kaur v Canada (Minister of Citizenship and Immigration), 2010 FC 442 (available on CanLII), where the employment letter failed to include any information regarding the duties performed by the applicant and was limited to stating that the applicant was "a good worker and had learned to cook many types of Indian meals" (at para 3). In that case, the Court found that the applicant failed to provide sufficient evidence in support of her application and that, in light of this insufficient evidence, the visa officer was not required to advise her of the inadequacy of her material. In this case, the employment letter did list the duties performed by the applicant.

41     In Kamchibekov, above, Justice Pinard found that there was no duty on the visa officer to offer the applicant an opportunity to disabuse him of his concerns because the employment letter mirrored the duties set out in the NOC. Justice Pinard was of the view that the evidence provided by the applicant was ambiguous and insufficient. One must keep in mind that every case is fact-driven. In Kamchibekov, the applicant had applied to be accepted in the category of Restaurant and Food Service Manager. The NOC for that position provided very generic duties and the letter of employment mirrored those generic duties. Furthermore, there was no indication in the officer's letter that his concerns were related to the veracity of the letter and the decision was limited to stating that the applicant had not provided satisfactory evidence of his work experience. In this case, the Officer was not satisfied with the employment letter because she found it to be self-serving and the job duties described mirrored the NOC description.

42     This case can also be distinguished from Obeta, above. In that case, the Court concluded that there was no absolute obligation on the officer to allow the applicant an opportunity to respond to credibility concerns that he had in a context where the application was, on its face, void of credibility because the employment letter was likely fabricated. This is not the case here. It cannot be said that the employment letter is, on its face, fabricated or otherwise void of any credibility.

43     Therefore, for the reasons set out above, I am of the view that the Officer had a duty to provide the applicant with an opportunity to address her concerns and that, by failing to do so, she breached the applicant's right to procedural fairness.

44     This conclusion is sufficient to dispose of the application, and there is no need for me to determine whether the Officer's decision is reasonable.

45     The parties did not submit questions for certification, and this case does not raise serious questions of general importance.

JUDGMENT

THIS COURT'S JUDGMENT is that this application for judicial review is allowed. The Officer's decision is overturned and the application is returned for re-determination (de novo) before a different visa officer.

BÉDARD J.

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