Ottawa, Ontario, November 4, 2008
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1] This judicial review is in respect of a decision by an immigration officer denying Ms. Sklyar’s application for permanent residence as a skilled worker pursuant to section 75 of the Immigration and Refugee Protection Regulations, S.O.R./2002-227 (Regulations). The issues in this judicial review include both the reasonableness of the decision as well as the natural justice and fairness of the procedures. For the reasons outlined, the Respondent’s decision must be quashed and the judicial review is granted.
II. FACTS
[2] As indicated above, the Applicant made an application under section 75 of the Regulations, the pertinent provisions of which are as follows:
Subsection 80(7) of the Regulations specifies that full-time employment for purposes of the above is considered to be at least 37.5 hours per week.
[3] There is some confusion in the Record as to whether the Applicant applied under three or under five different job categories. The parties seem to have accepted that the proper number is five and, for purposes of this judicial review, the Court will accept that conclusion.
[4] The categories of occupation set forth in an affidavit filed by the responsible immigration officer (Officer) were Economist, Financial Analyst, Economic Development Officer, Economic Analyst and Other Financial Officers.
[5] In October 2007, the Officer informed the Applicant that her application was denied because the Officer was not satisfied that the Applicant had provided sufficient evidence to establish that she had had at least one year of relevant, continuous, full-time experience. The letter is extremely brief in respect of the reasons for the decision at issue.
[6] In addition to the October 2007 letter, the CAIPS notes show that a similar conclusion with respect to the absence of evidence of continuous, full-time experience was reached on October 5, 2006. Subsequently in May 2007 a request was made to the Applicant for updated employment information and for a letter of reference. The CAIPS notes also include a notation of October 9, 2007 that the Applicant’s “offshore experience cannot be confirmed is questionable” [sic].
[7] The Applicant filed for leave for judicial review and raised as one of the central issues the failure of the Officer, as evidenced by the decision letter and CAIPS notes, to consider all five categories of occupation which the Applicant had listed. In response, the Officer filed an affidavit in which she attested that she had considered the submitted materials, had noted the five categories the Applicant allegedly applied for, and discussed in detail the Applicant’s qualifications regarding only one occupation – that of Economist.
III. LEGAL ANALYSIS
[8] In the post-Dunsmuir era (Dunsmuir v. New Brunswick, 2008 SCC 9), the appropriate standard of review is reasonableness. However, in considering previous analysis of standard of review in this Court, there is authority for a proposition that a decision in respect of the federal skilled worker class is one which is deserving of a high degree of deference (Oladipo v. Canada (Minister of Citizenship and Immigration), 2008 FC 366). There is a considerable degree of experience and expertise involved in this consideration. It is one for which deference is owed and therefore the range of reasonable outcomes which the Officer could reach is broad.
[9] Having said this, there is an important issue of procedural fairness raised in this matter for which the standard of review is correctness.
IV. ASSESSMENT OF OCCUPATIONS
[10] The issue raised is whether the Officer’s assessment of the Applicant’s work experience was reasonable. In this regard, the Respondent attempted to buttress the decision letter and CAIPS notes with an affidavit attesting to consideration of five occupational categories.
[11] While there may be instances where the reasons for the decision are properly contained in not only the decision letter and the CAIPS notes but also in an affidavit (see Hayama v. Canada (Minister of Citizenship and Immigration), 2003 FC 1305), the Court is concerned when the evidence submitted post-filing of an application for judicial review attempts to fill in gaps in the record of decision on the very points in issue and does so by adding major elements to the Record. The attempt to supplement the Record must be approached with caution when attempted by either an applicant or a respondent. If admissible, the Court must assess its weight. In this case, greater weight is given to the pre-application record than to the affidavit.
[12] A central issue in this case was whether the Officer had in fact considered all five occupational categories. It is central because there is a positive obligation on the Officer to assess an applicant’s qualifications under all the occupational categories indicated by an applicant (Hajariwala v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 79 (F.C.T.D.)). It is evident from the Record that the Officer focused virtually all of her attention on the occupation of Economist.
[13] In argument before this Court, the Respondent’s counsel outlined a far better assessment of the merits of each of these categories than appears anywhere in the Record. The Record suggests that the Officer based her conclusion with respect to the Economist occupation largely on the fact that the employer’s letter of reference, which outlined the tasks actually performed, did not mirror the National Occupational Classification code for Economist. However, there is no indication that the Officer did a detailed analysis or balancing of the evidence of the tasks performed to determine into which of the other four occupational classifications the Applicant may have fallen.
[14] It is my conclusion that the Officer failed to properly assess, or to assess at all, the other occupations relied upon by the Applicant. For that reason alone, this judicial review should be granted.
[15] The Applicant also raised, as a matter of procedural fairness, the absence of any notice of the Officer’s concern about the Applicant’s work experience. It is well established law that where a visa officer’s concern relates to the requirements set out in the legislation, the officer is under no obligation to apprise an applicant of those concerns (Parmar v. Canada (Minister of Citizenship and Immigration) (1997), 139 F.T.R. 203 (T.D.); Ramos-Frances v. Canada (Minister of Citizenship and Immigration), 2007 FC 142). However, in this case, it was the Respondent’s position that the letter requesting the Applicant to update her employment information and to file a letter of reference was in fact notice to her of concerns with respect to the evidence both as to experience and occupational classifications.
[16] I am unable to find how this Applicant or any applicant would have been put on notice of deficiencies as to experience and occupational classification by receiving a letter simply requesting updated information. The letter was sufficiently vague to have misled the Applicant and the Applicant’s counsel, and would have, in my view, misled any other reasonable person. In this instance, the Officer having elected to give notice, that notice was insufficient.
V. CONCLUSION
[17] For all these reasons, this judicial review will be granted, the decision of the immigration officer quashed and the matter is to be referred back to another officer for a new determination. There is no question for certification.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that this application for judicial review is granted, the decision of the immigration officer is quashed, and the matter is to be referred back to another officer for a new determination.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-322-08
STYLE OF CAUSE: LIUDMILA SKLYAR
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 15, 2008
APPEARANCES:
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Mr. Mario Bellissimo
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Mr. Tamrat Gebeyehu
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SOLICITORS OF RECORD:
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MS. INNA KOGAN Barrister & Solicitor Toronto, Ontario
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MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario |