OFFICER FAILED TO ASSESS "PITH AND SUBSTANCE:" OF APPLICANT EXPERIENCE

In a rare victory for Federal Skilled Worker applicants challenging the assessment of a visa officer, the Federal Court held that the officer in the case below failed to assess the applicant's experience and job duties to determine if she could perform the job offered in Canada.  The decision is quite interesting and helpful.

Millik v. Canada (Minister of Citizenship and Immigration)

Between
Amira Lotfy Farwiz Millik, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2015] F.C.J. No. 39

2015 FC 82

Docket: IMM-3773-13

 Federal Court
Toronto, Ontario

Boswell J.

Heard: October 22, 2014.
Judgment: January 22, 2015.

(27 paras.)

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JUDGMENT AND REASONS

·       BOSWELL J.:-- 

I. Nature of the Matter and Background

1     Pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [Act], Ms. Amira Lotfy Farwiz Millik [Applicant] seeks judicial review of the decision of a visa officer [Officer] to deny her application for permanent residence in Canada under the Federal Skilled Worker class. The Officer was not satisfied that the Applicant had met the requirements set forth in subsection 75(2) of the Immigration and Refugee Protection Regulations, SOR/2002-227 [Regulations].

2     The Applicant is a 44 year old citizen of Egypt who received a job offer as an administrative secretary at the Queen's Medical Centre, in Oakville, Ontario, from her sister, Dr Bebawy. Following the issuance of a positive arranged employment opinion from Service Canada dated February 7, 2012, the Applicant applied for permanent residence status in Canada under the Skilled Worker Program in September, 2010. This application was rejected by the Officer in a letter dated April 18, 2013.

II. Decision

3     The Officer was not satisfied that the Applicant had met the requirements set forth in subsection 75(2) of the Regulations. The Officer's decision letter stated, in part, that:

·       [T]he letter you provided from your employer does not list your hours of work and your letter of employment provides insufficient information about your duties to satisfy me that you have performed the actions described in the lead statement or a substantial number of the main duties of the occupations in which you have requested assessment: NOC [National Occupational Classification code] 1243: Medical administrative assistants, and NOC 4031: Secondary school teachers. I have also considered NOC 1241: Administrative assistants. 

4     In the Global Case Management System [the GCMS] notes, the Officer found, amongst other things, that:

·       * 

The duties described in the letter from the Applicant's employer were very vague and referred to "participating in" activities and, thus, were insufficient to assess the Applicant's specific duties; 

·       * 

The duties that the Applicant said that she had as an administrative assistant did not match the main duties of NOC codes 1241 or 1243; 

·       * 

The duties that the Applicant said that she had as a teacher did not match the main duties of NOC code 4031; 

·       * 

The original Arabic copy of the letter from her employer was not supplied and the copy on file had been translated in Ontario; 

·       * 

The employment letter did not list the Applicant's hours of work or confirm that she worked full time; 

·       * 

The employment letter did not state the Applicant's salary and no pay stubs or employment contract were provided in support of the application; 

·       * 

The employment letter did not provide any contact information for the school where the Applicant worked; and 

·       * 

The "[d]uties listed [in the employment letter] do not match any of the NOCs in which assessment is required". 

5     The Officer thus concluded that the Applicant had not proven that she performed the duties of any of the occupations for which assessment had been requested. Accordingly, the Officer refused the application and did not complete a selection assessment.

III. The Parties' Submissions

·       A. 

The Applicant's Arguments

6     The Applicant submits that the Officer's decision is unreasonable. Not only is there a clear factual error concerning the letter from the Applicant's employer, but the Officer misapplied the NOC codes. According to the Applicant, the Officer's decision is not intelligible and lacks transparency.

7     The Applicant criticizes the Officer's statement that the letter from the Applicant's employer did not disclose her hours of work or confirm that she worked full time. The Applicant states that is erroneous as the letter clearly says: "[t]he school certifies that she has excellent organization skills, as she works full time (40 hours per week), and takes full responsibility for her work." The Applicant argues that this failure to register such readily apparent and important information in the letter casts doubt on the Officer's diligence in reviewing that letter as well as on the subsequent analysis. In addition, the Applicant submits that a statement of the salary for the position is not required by the Regulations.

8     The Officer, according to the Applicant, unduly and unreasonably focused upon the words "participating in" in the employer's letter, especially given that it was a translation. Citing the decisions in Rodrigues v Canada (Citizenship and Immigration), 2009 FC 111 at paragraphs 9-10 (available on CanLII), and in Noman v Canada (Minister of Citizenship and Immigration), 2002 FCT 1169 at paragraphs 29, 32-33, 24 Imm LR (3d) 131, the Applicant submits that an applicant does not need to perform all of the duties listed in a NOC and a visa officer needs to assess the "pith and substance" of an applicant's previous employment. The Applicant says there is an element of common sense that needs to be applied in the circumstances of this case, since she clearly is a teacher, an occupation common across the world.

9     Citing the decision in Taleb v Canada (Citizenship and Immigration), 2012 FC 384 at paragraph 36, 407 FTR 185, the Applicant argues that the employer's letter sufficiently lists the Applicant's job duties. She argues that the NOC requirements are broad, and it was not reasonable for the Officer to focus upon the duties in minute detail. The decision in Zeeshan v Canada (Citizenship and Immigration), 2013 FC 248 (available on CanLII), is distinguishable from the circumstances here, the Applicant says, since in that case there was no list of duties in the employer's letter.

10     The Applicant further argues that the Officer's reasons were not intelligible, as the Officer did not sufficiently explain how the decision was reached. Citing Abbasi v Canada (Citizenship and Immigration), 2013 FC 278 at paragraphs 6-9, 16 Imm LR (4th) 323 [Abbasi], and Komolafe v Canada (Citizenship and Immigration), 2013 FC 431 at paragraphs 8-11, 16 Imm LR (4th) 267 [Komolafe], the Applicant says that the reasons are simply not transparent enough.

11     As for the decision in Khowaja v Canada (Citizenship and Immigration), 2013 FC 823, 437 FTR 219 [Khowaja] upon which the Respondent relies, the Applicant submits that that case is distinguishable since the officer's notes in that case were more extensive and better reasoned than is the case here.

·       B. 

The Respondent's Arguments

12     The Respondent states that the onus was upon the Applicant to put her best case forward and to submit an application that was "relevant, convincing and unambiguous" (see: Obeta v Canada (Citizenship and Immigration), 2012 FC 1542 at paragraph 25, 424 FTR 191; Pan v Canada (Citizenship and Immigration), 2010 FC 838 at paragraph 27, 90 Imm LR (3d) 309).

13     The Respondent concedes that the Officer erred in finding that the letter from the Applicant's employer did not confirm her work schedule or full-time status. However, this error, the Respondent says, was a minor one that does not make the decision as a whole unreasonable.

14     The Respondent submits that the Officer's analysis was based on the uncertainty of the duties performed by the Applicant. The employer's letter only refers to the Applicant as a "teacher," not a "secondary school teacher," which was the relevant occupation in respect of which the Applicant had requested assessment. Further, although we can assume what a teacher does in respect of some things, the Applicant also said that she performed a number of administrative duties, which implies a somewhat different role than a teacher in Canada. In the Respondent's view, her role was ambiguous, and the Officer was entitled to expect more detail.

15     The Respondent also states that the NOC comparison made by the Officer was clear. The Respondent argues that there is a presumption of deference to the decision of the Officer and this case is no different than that in Khowaja at paragraph 38.

16     The Respondent concludes that the Officer's decision was a reasonable one.

IV. Issues and Analysis

17     This application for judicial review raises only one central issue for determination by the Court: was the Officer's decision that the Applicant did not meet the requirements set out in subsection 75(2) of the Regulations reasonable?

18     Visa officers render discretionary decisions which are reviewable on the standard of reasonableness: Wang v Canada (Minister of Citizenship and Immigration), 2008 FC 798 at paragraphs 10-11 (available on CanLII). The Supreme Court has stated that reasonableness requires "justification, transparency and intelligibility within the decision-making process" as well as a decision which falls "within a range of possible, acceptable outcomes which are defensible in respect of the facts and law": Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph 47, [2008] 1 SCR 190.

19     The insufficiency of reasons is not "a stand-alone basis for quashing a decision": Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paragraph 14, [2011] 3 SCR 708 [Newfoundland Nurses]; see also Ayanru v Canada (Citizenship and Immigration), 2013 FC 1017 at paragraph 7 (available on CanLII). However, reasons must "allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes": Newfoundland Nurses at paragraph 16. The Court does not have a licence to fill in the gaps in a decision or to speculate as to what the decision-maker was thinking: see Komolafe at paragraph 11; Lemus v Canada (Citizenship and Immigration), 2014 FCA 114 at paragraphs 37-38, 372 DLR (4th) 567.

20     I agree with the Applicant's submission that the Officer's erroneous finding of fact as to her full-time work status, which error the Respondent concedes, casts doubt on the Officer's entire review of the Applicant's application. In my view, this factual error clouded and confused the Officer's analysis of the Applicant's job duties as a teacher. This case is not like that in Khowaja, upon which the Respondent relies, since there was no blatant factual error in the officer's notes in that case.

21     This factual error, in and of itself, does not render the Officer's decision unreasonable. However, it was incumbent upon the Officer here to assess and analyze the "pith and substance" of the Applicant's duties at the Manarat Alexandria Private School and consider those duties with the NOCs being assessed, something which the Officer did not do in the reasons. On the contrary, the Officer simply stated in the GCMS notes that he or she found the description of the duties in the letter from the Applicant's employer "very vague" because they referred merely to "participating in" certain activities. In my view, it was not reasonable for the Officer to microscopically examine the employer's letter in this manner and then to conclude with reference to the duties listed in the letter: "Insufficient for me to assess her specific duties".

22     This Court's decision in Komolafe is instructive in this regard, where my colleague Mr. Justice Donald Rennie stated:

·       [8] ... It is not for this Court to determine whether the applicant has in fact performed the actions described in the lead statement and a substantial number of the main duties. The agent must do so, with some line of reasoning which provides a basis for review. As Justice Richard Mosley found in Gulati v Canada (Citizenship and Immigration), 2010 FC 451, it is impossible to assess the reasonableness of the officer's conclusions without knowing which duties had not been performed. 

·       [9] The decision provides no insight into the agent's reasoning process. The agent merely stated her conclusion, without explanation. It is entirely unclear why the decision was reached. 

23     The Officer's conclusion that the "duties listed [in the employment letter] do not match any of the NOCs in which assessment is required" was made without any apparent evaluation or assessment of the Applicant's duties at the Manarat Alexandria Private School. The Regulations require in paragraph 75(2)(c) that only a "substantial" number of the main duties be performed with respect to the NOC being assessed. It is not clear in this case that the Officer turned or directed his or her mind to the question of whether subsection 75(2) of the Regulations had been met.

24     As to the adequacy or sufficiency of the Officer's reasons in this case, this Court's decision in Abbasi deserves note. In Abbasi, Madam Justice Judith Snider stated as follows:

·       [9] The Officer's reasons did not need to be extensive. However, to be reasonable, the reasons must demonstrate that the Officer had performed his duty. In this regard, I note the words of Justice Mosley in Gulati v Canada (Minister of Citizenship and Immigration), 2010 FC 451 at paras 41-42, 89 Imm LR (3d) 238: 

·       It is impossible to assess the officer's conclusion, that the applicant had not performed a substantial number of the main duties of NOC 6212, without knowing which duties the officer thought had not been performed and why. 

·       According to Dunsmuir, above, at paragraph 47, the transparency and intelligibility of a decision are important elements of a reasonableness analysis. I conclude that their absence in the present decision render it unreasonable. 

25     As in Abbasi, the Officer's decision in this case offers no insight into his or her reasoning process and it is entirely unclear why the decision was reached. The Officer's decision does not provide sufficient grounds for this Court to understand the Officer's reasoning and, thus, is neither intelligible nor transparent.

V. Conclusion

26     In the result, therefore, I find that the Officer's decision is not reasonable as it is not defensible in respect of the facts and law.

27     Accordingly, the application for judicial review is allowed, the decision of the Officer is quashed, and the matter sent back for re-determination by a different visa officer. Neither party raised a question of general importance, and so none is certified.

JUDGMENT

·       THIS COURT'S JUDGMENT is that:

·       1. 

the application for judicial review is allowed; 

·       2. 

the decision of the Officer is quashed and the matter sent back for re-determination by a different visa officer; and 

·       3. 

no question of general importance is certified. 

BOSWELL J.

CANADIAN EXPERIENCE CLASS APPLICANT NOT PROPERLY ASSESSED

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

Gao v. Canada (Minister of Citizenship and Immigration)

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

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

2014 FC 821

Docket: IMM-3457-13

 Federal Court
Calgary, Alberta

Rennie J.

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

(10 paras.)

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JUDGMENT AND REASONS

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

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

·       1. 

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

·       2. 

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

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

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

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

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

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

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

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

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

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

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

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

JUDGMENT

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

RENNIE J.

SKILLED WORKER WORK EXPERIENCE REQUIREMENT IN FOCUS

In the case below, the Federal Court confirmed that it is incumbent upon the applicant to prove that he has at least one year of full time experience in an occupation, despite having obtained an Arranged Employment Offer confirmation.

Senadheera v. Canada (Minister of Citizenship and Immigration)

Between Nihal Tissa Senadheera, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2012] F.C.J. No. 893

2012 FC 704

Docket IMM-6340-11

 Federal Court
Vancouver, British Columbia

Pinard J.

Heard: May 8, 2012.
Judgment: June 12, 2012.

(15 paras.)

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REASONS FOR JUDGMENT AND JUDGMENT

1     PINARD J.:-- This is an application for judicial review by Nihal Tissa Senadheera (the "applicant") of the decision, dated June 24, 2011, of Designated Immigration Officer U. Atukorala (the "officer"), pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act"). The officer refused the applicant's application for a permanent resident visa as a skilled worker pursuant to subsection 12(2) of the Act and section 76 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the "Regulations").

2     The applicant is a citizen of Sri Lanka. He holds a Bachelor of Science and a Masters of Business Administration, and has owned and operated his own company, Fidelity International (Private) Ltd. since 1996.

3     In 2008, the applicant obtained a positive Arranged Employment Opinion ("AEO") for the position of Business Development Manager with North American Tea & Coffee Inc., in Delta, British Columbia. He submitted an application for permanent residence in Canada under the Federal Skilled Worker Program in December 2009. In the application, the applicant requested that the decision-maker consider substituted evaluation under subsection 76(3) of the Regulations if he did not obtain the minimum required points.

4     After submitting all other required documentation in support of his application, the applicant received a letter dated May 23, 2011 advising him that he did not meet the requirements for a skilled worker visa pursuant to subsection 75(2) of the Regulations, specifically because he had not provided sufficient evidence of his employment experience. Counsel for the applicant contacted Citizenship and Immigration Canada Program Manager B. Hudson, requesting reconsideration on the basis that further documentation should have been requested if there was a concern about a lack of work experience. The officer decided that his first decision-letter dated May 23, 2011 was sent in error and that the applicant was entitled to a point assessment under section 76 of the Regulations because he had a positive AEO.

5     The applicant raises the following issues:

·       i. 

Did the officer err in failing to recognize the applicant's work experience? 

·       ii. 

Did the officer err by failing to exercise his or her discretion pursuant to subsection 76(3) of the Regulations? 

·       iii. 

Did the officer err by failing to recognize the applicant's accompanying spouse's post-secondary education documents, or the applicant's AEO? 

·       iv. 

Did the officer fail to observe principles of procedural fairness by providing inadequate reasons? 

6     Decisions regarding applicants' eligibility for permanent residence as skilled workers are based on discretionary findings of fact and are therefore to be reviewed by this Court based on a standard of reasonableness, only to be disturbed if the officer's reasoning was flawed and the resulting decision falls outside the "range of possible, acceptable outcomes which are defensible in respect of the facts and law" (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para 47). Although there may be more than one possible outcome, as long as the officer's decision making process was justified, transparent and intelligible, a reviewing court cannot substitute its own view of a preferable outcome (Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para 59).

7     The officer's obligation to consider whether to exercise his or her discretion under subsection 76(3) of the Regulations is not discretionary, however, and is reviewable on a correctness standard (Miranda v. Minister of Citizenship and Immigration, 2010 FC 424). Questions of procedural fairness are also reviewed on a standard of correctness (Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3).

·       i. 

Did the officer err in failing to recognize the applicant's work experience?

8     The applicant argues that if the officer had concerns about the applicant's work experience, he had a duty to notify the applicant of his concerns and give the applicant an opportunity to respond (Torres v. Minister of Citizenship and Immigration, 2011 FC 818 at paras 37-40).

9     The respondent notes that the Documents Checklist specifies the required documentation to prove work experience, and indicates that: "If you cannot provide a reference from your current employer, provide a written explanation."

10     The respondent is right that the Documents Checklist clearly sets out the required documents to prove work experience, specifically, letters of reference from past and current employers. The Checklist advises those who cannot provide references to provide an explanation. The applicant did not submit the required documents, and he did not provide an explanation for why he could not obtain them. I do not accept the applicant's contention that he had no way of proving his work experience except through his own statements. As the respondent submits, he could, for example, have obtained letters of support from his clients detailing his duties (Bandoo v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 603 (T.D.) (QL)).

11     I also agree with the respondent that the officer was under no obligation to notify the applicant of the deficiencies in his application -- the onus was on the applicant to submit a complete application that established that he met the requirements for a skilled worker visa. Since the applicant failed to submit sufficient evidence of his work experience, it was reasonable for the officer to award no points under this category.

12     I note that, since the applicant did not establish that he had at least one year of continuous full-time employment experience within the preceding ten years, he did not satisfy the minimum requirements of a skilled worker under subsection 75(2) of the Regulations. Therefore, the application should have been refused under subsection 75(3) and no further analysis should have been conducted. The officer appears to have believed that the applicant was entitled to a point assessment under section 76 of the Regulations because he had a positive AEO. However, a positive AEO does not exempt an applicant from the requirements of subsection 75(2) of the Regulations.

13     I can find nothing in the Act, the Regulations or the Ministerial Instructions to suggest that an applicant is exempted from the requirements of subsection 75(2) if he or she has a positive AEO. The Ministerial Instructions state that applications will be immediately processed if an applicant has a positive AEO, but the application must still meet the requirements of the Act and Regulations. Therefore, I cannot understand why the officer determined that this application was entitled to a point assessment, since the officer found that the applicant had not established his work experience, meaning he had not shown he met the requirements of subsection 75(2) of the Regulations. It appears to me that the application was properly refused pursuant to subsection 75(3) the first time, an outcome which remains unaffected.

14     For this reason, the present application for judicial review will be dismissed, since all of the other alleged errors occurred in the point assessment under section 76 of the Regulations. Since the application was not properly considered under section 76, these alleged errors would not alter the outcome.

15     I agree with counsel for the parties that this is not a matter for certification.

JUDGMENT

The application for judicial review of the decision of Designated Immigration Officer U. Atukorala, refusing the applicant's application for a permanent resident visa as a skilled worker pursuant to subsection 12(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, and section 76 of the Immigration and Refugee Protection Regulations, SOR/2002-227, is dismissed.

PINARD J.

CANADIAN EXPERIENCE CLASS APPLICANT FAILED TO PROVE DUTIES, EXPERIENCE

The courts are slowly dealing with cases under the new Canadian Experience Class ( CEC) which was launched in 2008. In this case, the Federal Court reviewed the refusal of an application on the grounds that the applicant failed to prove that he performed a substantial number of the duties in the occupation and that he had the requisite work experience.

A note to all applicants: many people feel tempted to review the duties of the occupation listed under the National Occupational Classification ( NOC) and reproduce them verbatim in employer letters supporting their application. That is transparent to the visa officers and usually prompts further inquiry and eventually refusals. Do not do it. Be honest. Describe your occupation realistically and accurately. Do not embellish your employer letters.

Anabtawi v. Canada (Minister of Citizenship and Immigration)

Between Tarek Anabtawi, Applicant, and
The Minister of Citizenship and Immigration, Respondent

[2012] F.C.J. No. 923

2012 FC 856

Docket IMM-4242-11

 Federal Court
Toronto, Ontario

O'Keefe J.

Heard: January 17, 2012.
Judgment: July 5, 2012.

(50 paras.)

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REASONS FOR JUDGMENT AND JUDGMENT

1     O'KEEFE J.:-- This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a decision of an officer of the visa section of the Canadian Consulate in Detroit, USA (the officer), dated June 7, 2011, wherein the applicant was denied permanent residence under the Canadian experience class of subsection 12(2) of the Act and subsection 87.1 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the Regulations). This decision was based on the officer's finding that the applicant did not meet the statutory skilled work experience requirement.

2     The applicant requests that the officer's decision be quashed and the matter be remitted for redetermination by a different officer.

Background

3     The applicant, Tarek Anabtawi, is a citizen of Jordan.

4     The applicant entered Canada in 2004 as a student. He completed a Bachelor of Arts degree at the University of Toronto in June 2008. After graduation, the applicant obtained a post-graduate work permit, valid between January 2009 and March 2010. During that time, he was employed with Prime Force Inc. (Prime Force), a recruitment company located in Mississauga, Ontario.

5     In May 2010, the applicant submitted an application for permanent residence under the Canadian experience class of skilled workers. This class was introduced in 2008 for temporary foreign workers or graduates with Canadian work experience. Applications for permanent residence under this class are assessed based on official Canadian language proficiency, Canadian skilled work experience and Canadian educational credentials (section 87.1 of the Regulations). Further details on this program are provided in Citizenship and Immigration Canada's Overseas Processing Manual, OP-25.

6     In his application, the applicant included an employment letter from Mr. Fadek Zighmi, the president of Prime Force. This letter indicated that the applicant had worked as a full time human resources officer from January 2009 through March 2010 and listed the applicant's main duties. The applicant stated that his work duties corresponded to those listed for human resources officers, referred to as "Personnel and Recruitment Officer", under National Occupation Classification (NOC) 1223.

7     On March 19, 2011, the officer reviewing the application called Mr. Zighmi to confirm the details of the applicant's employment. Mr. Zighmi's description of the applicant's role at Prime Force differed significantly from that provided in his employment letter. For example, according to Mr. Zighmi, the applicant was a customer service representative and his duties included answering telephones, receiving applications from candidates and opening files. In addition, rather than forty employees, there were only three employees working in Prime Force's office.

8     Based on these inconsistencies, the officer emailed the applicant on March 29, 2011 and notified him that there was a concern that his main duties at Prime Force were not those of a human resources officer. The applicant was given 45 days to provide additional information and/or documentation to disabuse the officer of his concerns.

9     The applicant sent an email response to the officer on May 12, 2011. The applicant explained the different tasks he undertook while working for Prime Force which he believed fulfilled the duties of a human resources officer. He also explained that while only three employees worked in Prime Force's office, the company sent more than forty temporary workers to other companies. The applicant stated that both he and his employer would be willing to submit an affidavit attesting to these facts.

Officer's Decision

10     In a letter dated June 7, 2011, the officer denied the applicant's application. The Global Case Management System (GCMS) notes that form part of the officer's decision explain the reasons for the denial.

11     The officer was not satisfied that the applicant met the skilled work experience requirement. The officer explained that he reviewed the documentation submitted with the application, including the applicant's reply from May 12, 2011. However, based on these submissions and the officer's verification with the applicant's employer (Mr. Zighmi), the officer was not satisfied that the applicant performed all of the essential duties and a substantial number of the main duties of a human resources officer, as described under NOC 1223. As such, the officer was not satisfied that the applicant met the statutory requirements and therefore refused the applicant's application.

Issues

12     The applicant submits the following points at issue:

·       1. 

What is the standard of review? 

·       2. 

Did the officer err by importing irrelevant criteria when assessing work experience? 

·       3. 

Was the officer's decision that the applicant did not have relevant work experience unreasonable? 

·       4. 

Are the reasons for decision deficient? 

·       5. 

Should costs be awarded to the applicant? 

13     I would rephrase the issues as follows:

·       1. 

What is the appropriate standard of review? 

·       2. 

Did the officer apply the correct legal test for assessing the applicant's work experience? 

·       3. 

Did the officer err in assessing the applicant's work experience? 

·       4. 

Did the officer deny the applicant procedural fairness? 

Applicant's Written Submissions

14     The applicant submits that the officer's finding that the applicant did not have the required work experience is reviewable on a reasonableness standard. Conversely, the question of whether the officer imported irrelevant criteria when assessing work experience is reviewable on a correctness standard. Similarly, the adequacy of reasons is reviewable on a correctness standard.

15     The applicant submits that the Regulations only require applicants to have full time or full time equivalent work experience in an occupation defined as skilled under the NOC. The Regulations do not state how work experience should otherwise be assessed. The applicant submits that the officer erred by importing criteria listed in the Regulations for the federal skilled worker class when assessing the applicant's work experience under the Canadian experience class. Specifically, the officer required the applicant to have "performed all of the essential duties and a substantial number of main duties". However, this is a requirement under subsection 80(3) of the Regulations which applies to the federal skilled worker class; a different type of application pertaining to a different subject matter. The applicant submits that as this rigid criteria was not included under section 87.1 of the Regulations, it must be presumed that Parliament intended that a more lenient or flexible approach be taken towards the Canadian experience class as compared to the federal skilled worker class. The officer therefore erred in importing this criterion from the federal skilled worker class and applying it to his assessment of the applicant's Canadian experience class application.

16     In the alternative, the applicant submits that the officer erred in not appreciating that the applicant did meet the criteria applied to the assessment of his application. A comparison of the duties set out in the applicant's submissions (including his employment letter and subsequent email response) and those listed under NOC 1223 shows that the applicant met all of the duties set out in the main statement for the occupation and met a substantial number of the other main duties. The officer did not provide any explanation as to why the evidence submitted by the applicant did not satisfy the officer's concerns.

17     Finally, the applicant submits that the officer did not provide any reasoning or explanation in the decision for his findings. In addition, if the officer disbelieved the applicant's submissions on his work experience, he questioned the applicant's credibility in so doing. The applicant submits that it is trite law that the officer should then have provided the applicant with an opportunity to respond to his concerns. Although the officer provided the applicant with an opportunity to respond to his concerns by email, he erred in law by not explaining to the applicant why he disbelieved him or granting him an interview and providing him with a proper opportunity to disabuse him of his concerns.

18     The applicant submits that the officer's errors in this case were egregious and justify the awarding of costs.

Respondent's Written Submissions

19     The respondent agrees with the applicant that the officer's decision on whether the applicant had the required work experience is reviewable on a reasonableness standard. However, contrary to the applicant's submissions, the respondent submits that the issue of whether the officer applied the wrong legal test to his finding on the applicant's work experience is reviewable on a reasonableness standard. Nevertheless, even on a correctness standard, the officer did not err in applying the legal test.

20     The respondent submits that as section 87.1 of the Regulations does not provide a specific test for determining the "12 months of full-time equivalent Canadian skilled-work experience" requirement, the officer had to look elsewhere in the Regulations for direction on how to evaluate the applicant's work experience.

21     The respondent submits that the application of the federal skilled worker class to the Canadian experience class is confirmed by paragraph 15(2)(b) of the Interpretation Act, RSC, 1985, c I-21, which provides that:

15. (2) Where an enactment contains an interpretation
section or provision, it shall be read and construed

·       ... 

·       (b) 

as being applicable to all other enactments relating to the same subject-matter unless a contrary intention appears. 

* * *

·       15. 

(2) Les dispositions définitoires ou interprétatives d'un texte : 

·       ... 

·       b) 

s'appliquent, sauf indication contraire, aux autres textes portant sur un domaine identique. 

22     The respondent submits that the definition of work experience under subsection 80(3) and section 87.1 of the Regulations relate to identical subject matter and the two provisions are found under the same general heading. Further, no contrary intention appears in the legislation. If Parliament had intended a more flexible approach for the Canadian experience class, the respondent submits that a separate definition would have been provided so that section 15 of the Interpretation Act would not apply. The officer therefore applied the correct test in evaluating the applicant's work experience. The officer's ultimate finding was within the range of reasonable outcomes based on the contradictory evidence before him, for which no explanation was provided.

23     The respondent also submits that the officer's reasons were adequate and there was no breach of procedural fairness. It is inappropriate to require an administrative officer to give as detailed reasons as those that would be expected of administrative tribunals that render decisions after adjudicative hearings. Nevertheless, the officer's reasons and his earlier email clearly explain why the applicant's application was rejected. The fact that the officer did not repeat these concerns in his decision does not render his reasons deficient. As there was no doubt as to why the application was rejected, there was no breach of procedural fairness.

24     Further, the respondent submits that the officer was not under any obligation to conduct an interview to confront the applicant with his concerns. The officer's email was sufficient for notifying the applicant of the officer's concerns and for granting him an opportunity to respond. The fact that the applicant's response was inadequate did not impose a positive obligation on the officer to inquire further. As such, there was no breach of procedural fairness.

25     Finally, the respondent submits that as the applicant has not demonstrated any special reasons warranting costs, none should be awarded in this case.

26     In the respondent's further memorandum of argument, the respondent also submits that the letter from Mr. Zighmi that was included in the applicant's record should not be considered in this application. In his letter, Mr. Zighmi asserted that there was no contradiction between the letter of employment initially submitted and the phone conversation he had with the officer in March 2011. However, Mr. Zighmi's letter is dated July 22, 2011; over a month after the officer's decision letter was issued. As reviewing Courts are bound on judicial review to the record that was before the decision maker, the respondent submits that Mr. Zighmi's letter should not be considered by this Court on this application.

Analysis and Decision

Issue 1

What is the appropriate standard of review?

27     Where previous jurisprudence has determined the standard of review applicable to a particular issue before the court, the reviewing court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at paragraph 57).

28     This application pertains to the Canadian experience class under the skilled workers division (Division 1) of the permanent residence economic classes (Part 6) of the Regulations. As this class was only recently introduced, no jurisprudence has yet developed on the related statutory provisions. However, significant jurisprudence has developed on the older federal skilled worker class, also contained under Division 1 of Part 6 of the Regulations. Officer's determinations under this latter class have been held to involve findings of fact and law that are reviewable on a standard of reasonableness (see Malik v Canada (Minister of Citizenship and Immigration), 2009 FC 1283, [2009] FCJ No 1643 at paragraph 22; and Khan v Canada (Minister of Citizenship and Immigration), 2009 FC 302, [2009] FCJ No 676 at paragraph 9). Officer's determinations under the Canadian experience class also involve findings of fact and law and are therefore also reviewable on a standard of reasonableness.

29     Further, as stated by the respondent, it is well established jurisprudence that the standard of review for questions pertaining to the interpretation of a decision maker's enabling statute or statutes that are closely connected to its function is reasonableness (see Smith v Alliance Pipeline Ltd, 2011 SCC 7, [2011] 1 SCR 160 at paragraph 26). Therefore, the question of whether the officer applied the correct legal test for assessing the applicant's work experience is also reviewable on a standard of reasonableness.

30     In reviewing the officer's decision on a standard of reasonableness, the Court should not intervene unless the officer came to a conclusion that is not transparent, justifiable and intelligible and within the range of acceptable outcomes based on the evidence before it (see Dunsmuir above, at paragraph 47; and Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] SCJ No 12 at paragraph 59). As the Supreme Court held in Khosa above, it is not up to a reviewing court to substitute its own view of a preferable outcome, nor is it the function of the reviewing court to reweigh the evidence (at paragraphs 59 and 61).

31     Conversely, the appropriate standard of review for issues of procedural fairness and natural justice is correctness (see Malik above, at paragraph 23; Khan above, at paragraph 11; and Khosa above, at paragraph 43). No deference is owed to officers on this issue (see Dunsmuir above, at paragraph 50).

Issue 2

Did the officer apply the correct legal test for assessing the applicant's work experience?

32     The applicant submits that the officer erred by requiring that he perform "all of the essential duties and a substantial number of the main duties of a human resources officer" when employed with Prime Force. The requirement to perform all essential duties and a substantial number of the main duties of a NOC category is the mandated work experience requirement for federal skilled worker class applicants under subsection 80(3) of the Regulations. Conversely, the statutory provisions for Canadian experience class applicants, under paragraph 87.1(2)(a) of the Regulations, require applicants to have acquired "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". The applicant submits that this latter statutory requirement is less rigid than the former and it must therefore be presumed that Parliament intended a more lenient approach be taken towards the Canadian experience class compared to the federal skilled worker class.

33     Parliament's intent in enacting the new skilled worker class thus lies at the centre of this analysis. According to the Canadian Gazette, Parliament created the new class in recognition of challenges with the federal skilled worker class process. These challenges included: long wait times due to backlogs; limited responsiveness to labour market demand for skilled tradespersons due to the emphasis on formal education; and a failure to meet the labour market needs of communities outside major metropolitan areas due to highly concentrated settlement patterns. By enacting the new class, Parliament therefore sought to "[a]ttract more temporary foreign workers and foreign students to Canada and retain them as permanent residents, thereby enhancing Canada's ability to compete against countries like Australia that have similar programs". As such, the new class would be selected on a pass/fail model rather than a points system as applied under the existing federal skilled worker class. Further, the stated rationale for the weekly work experience requirement of 37.5 hours was that it was consistent with other sections of the Regulations, specifically subsection 80(7) and paragraph 88(1)(a).

34     Admittedly, the NOC work experience requirements under subsection 80(3) (federal skilled worker class) and paragraph 87.1(2)(a) (Canadian experience class) are quite similar. Although the former provision specifically states to what extent the duties listed in the NOC classification must have been performed, the latter provision also requires applicants to have the work experience associated with a NOC listed occupation. Nothing emerges in either the legislation or the Canada Gazette to suggest that Parliament intended the work experience requirements to differ between these two classes.

35     Further, as highlighted by the respondent, paragraph 15(2)(b) of the Interpretation Act provides that an interpretive provision shall apply to all other provisions relating to the same subject matter unless a contrary intention appears. As mentioned above, the two contentious provisions are both contained under Division 1 of Part 6 of the Regulations and no contrary intention appears in the legislation. In addition, the rationale for the hourly work experience requirement under the Canadian experience class was that it was consistent with other sections of the Regulations, specifically provisions associated with other categories of the economic classes.

36     For these reasons, I do not find that the officer erred by incorporating the language of subsection 80(3) into the analysis under paragraph 87.1(2)(a) of the Regulations. The officer therefore applied the correct legal test for assessing the applicant's work experience.

Issue 3

Did the officer err in assessing the applicant's work experience?

37     Turning to the officer's actual assessment of the applicant's work experience, the applicant submits that the officer erred by not appreciating that he did meet all the duties set out in the main statement for the occupation and a substantial number of the other main duties.

38     The NOC 1223 requirements specify the following:

·       Main Statement: Personnel and recruitment officers identify and advertise job vacancies, recruit candidates, and assist in the selection and reassignment of employees. They are employed throughout the private and public sectors. 

·       Main duties: Personnel and recruitment officers perform some or all of the following duties: 

·       Identify current and prospective staffing requirements, prepare and post notices and advertisements, and collect and screen applications; 

·       Advise job applicants on employment requirements and on terms and conditions of employment; 

·       Review candidate inventories and contact potential applicants to arrange interviews and arrange transfers, redeployment and placement of personnel; 

·       Recruit graduates of colleges, universities and other educational institutions; 

·       Co-ordinate and participate in selection and examination boards to evaluate candidates; 

·       Notify applicants of results of selection process and prepare job offers; 

·       Advise managers and employees on staffing policies and procedures; 

·       Organize and administer staff consultation and grievance procedures; 

·       Negotiate settlements of appeals and disputes and co-ordinate termination of employment process; 

·       Determine the eligibility to entitlements, arrange staff training and provide information or services such as employee assistance, counselling and recognition programs; and 

·       May supervise personnel clerks performing filing and record keeping duties. 

39     The following duties were listed in the applicant's employment letter:

·       Plan, develop and implement recruitment strategies; 

·       Ensure that the business is adhering to best practice and complying with employment legislation; 

·       Work closely with the operational business team, providing guidance on how to approach different employment issues which may arise; 

·       Manage training and development strategy; 

·       Provide steps for disciplinary actions; and 

·       Maintain and update the human resources database. 

40     The applicant's duties listed above do appear similar to those mandated under NOC 1223. However, in the decision, the officer noted that he was not satisfied that the applicant performed the required duties. This finding was largely based on the concerns raised by the officer's verification with the applicant's former employer. The GCMS notes for this conversation indicate that Mr. Zighmi stated that the applicant was a customer service representative and his duties included answering the phone, taking applications from job-seekers and opening files. Further, as the company is small, all employees had to be ready to do any type of work.

41     In response to the officer's email regarding the discrepancy between the applicant's duties as described by Mr. Zighmi and those listed in the applicant's submissions, the applicant explained that his duties included:

·       Plan, develop and implement recruitment strategies by posting of ads and job openings in local newspapers and on the internet; 

·       Screening of job applicants to identify the most appropriate candidate; 

·       Advising the company on implications of the increased minimum wage on business; 

·       Review and update the candidate inventory; 

·       Reassign employees based on available work; and 

·       Advise job applicants on employment requirements and compliance with Canadian workplace health and safety regulations. 

42     As noted by the respondent, no explanation was provided to explain the discrepancy between the verification call and the written submissions. Although the applicant offered to file an affidavit from both himself and Mr. Zighmi, none was filed.

43     Admittedly, the duties listed in the applicant's written submissions are similar to those listed under NOC 1223. However, deference is warranted to officers in this decision making process and their decisions should only be overturned where they are not within the range of acceptable outcomes based on the evidence before them (see Dunsmuir above, at paragraph 47). In this case, there was sufficient evidence before the officer to support his questioning of the applicant's actual duties while employed at Prime Force. The applicant's email response to the officer's concerns did not provide new information to alleviate those concerns. Further, as stated by the respondent, Mr. Zighmi's letter that was dated after the application was denied cannot be considered by this Court as it was not before the officer. As such, I find that the officer came to a reasonable decision based on the evidence before him.

Issue 4

Did the officer deny the applicant procedural fairness?

44     Finally, the applicant submits that the officer erred by not explaining why the evidence that he filed did not satisfy the officer's concerns. Further, if the officer disbelieved the applicant's statement, thereby questioning his credibility, he should have provided the applicant with a proper opportunity to respond.

45     Although limited jurisprudence has developed on the Canadian experience class, there is extensive jurisprudence available on the federal skilled worker class. Both of these classes fall under the same skilled workers division of the permanent residence economic classes of the Regulations. The nature of the regulatory scheme, the role of the decision of the officer in the overall scheme and the choice of procedure are also similar. As such, applicants under the two classes are entitled to similar limited procedural safeguards (see Malik above, at paragraph 26).

46     In this case, the officer referred in his decision to the concerns raised in his March 29, 2011 email, namely, the inconsistencies between the duties listed in the applicant's employment letter and those stated by his former employer during the verification call. The applicant was granted 45 days to respond to these concerns with "any information or documentation". The sole response the applicant provided was an email in which he largely reiterated the duties included in his former submission. Aside from a clarification on the number of employees that the company had, no explanation was provided for the discrepancies noted by the officer.

47     Bearing in mind the limited procedural safeguards that permanent residence applicants are entitled to under the Canadian experience class, I do not find that the officer erred by not providing further explanations for his decision. As the applicant's email did not differ significantly from the information contained in his employment letter, the officer's concerns stated in his March 29, 2011 email clearly remained unsatisfied. As such, I find that the decision adequately shows why the officer made his decision and permits this Court to determine whether the conclusion is within the range of acceptable outcomes (see Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708 at paragraph 16).

48     The applicant also submits that he was entitled to a proper opportunity, by way of an interview, to disabuse the officer of his credibility concerns. However, as stated by the respondent, visa officers are under no obligation to alert applicants of concerns where they pertain to matters that arose directly from the applicant's own evidence and from statutory requirements. As stated by Mr. Justice Yves de Montigny in Liu v Canada (Minister of Citizenship and Immigration), 2006 FC 1025, [2006] FCJ No 1289 (at paragraph 16):

·       [...] An applicant's failure to provide adequate, sufficient or credible proof with respect to his visa application does not trigger a duty to inform the applicant in order for him to submit further proof to address the finding of the officer with respect to the inadequacy, deficiency or lack of credibility. [...] 

49     In summary, I find the applicant has failed to show any reviewable error. The officer applied the correct legal test in assessing the applicant's work experience and was under no obligation to explain his findings in greater detail or to grant the applicant an interview. As such, I would dismiss this judicial review. The applicant requested an order for costs. I am not prepared to make an order for costs to the applicant as the applicant did not succeed in the application and special reasons do not exist to justify an award of costs.

50     Neither party wished to submit a proposed serious question of general importance for my consideration for certification.

JUDGMENT

THIS COURT'S JUDGMENT is that the application for judicial review is dismissed.

O'KEEFE J.