Federal Court Decisions

 

 

Date: 20130307

Docket: IMM-3724-12

Citation: 2013 FC 248

Ottawa, Ontario, March 7, 2013

PRESENT:    The Honourable Mr. Justice Russell

 

 

BETWEEN:

	TALAT ZEESHAN MUHAMMAD ZEESHAN MAHNOOR ZEESHAN
		Applicants
	and
	THE MINISTER OF CITIZENSHIP AND IMMIGRATION
		Respondent

 

           REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               This is an application under subsection 72(1) of the Immigration and Refugee Protection Act, SC­ 2001, c. 27 (Act) for judicial review of the decision of a Visa Officer (Officer) of the High Commission of Canada in London, United Kingdom, dated 29 February 2012 (Decision), which refused the Principle Applicant’s application for permanent residence in Canada as a member of the Federal Skilled Worker class.

 

 

BACKGROUND

 

[2]               Mahnoor Zeeshan, the Principle Applicant, is a 33-year-old citizen of Pakistan. The Secondary Applicants are her husband and daughter. She submitted an application for Permanent Residence as a Federal Skilled Worker on 08 March 2010 under National Occupation Classification code (NOC) 4121 – University Professor.

 

[3]               NOC 4121 states that University Professors perform some or all of the following main duties:

a.                   Teach one or more university subjects to undergraduate and graduate students;

b.                  Prepare and deliver lectures to students and conduct laboratory sessions or discussion groups;

c.                   Prepare, administer and grade examinations, laboratory assignments and reports;

d.                  Advise students on course and academic matters and career decisions;

e.                   Direct research programs of graduate students and advise on research matters;

f.                   Conduct research in field of specialization and publish findings in scholarly journals or books;

g.                  May serve on faculty committees dealing with such matters as curriculum planning and degree requirements, and perform a variety of administrative duties;

h.                  May represent their universities as speakers and guest lecturers;

i.                    May provide professional consultative services to government, industry and private individuals.

 

[4]               Along with her application, the Applicant submitted a Schedule 3 listing her work experience. She said that she had four years or more of work experience as a university lecturer, and listed her main duties as “teaching physics to undergraduate and graduate students, prepar[ing] and deliver[ing] lectures to students and conduct[ing] laboratory sessions, prepar[ing], administer[ing], and grad[ing] examinations.”

 

[5]               The Applicant also submitted a letter from the Lahore College for Women University dated 06 March 2010. The letter said that the Applicant has been employed in the college’s Physics departments as a lecturer since October, 2004. It said “She is a well qualified and experienced teacher. Her performance is up to the mark.” There was no other discussion of the duties she performs there. She also included documents verifying her educational background.

 

[6]               By letter dated 29 February 2012, the Officer informed the Applicant that she had not provided satisfactory evidence that she had the required work experience for NOC 4121, and thus her application was not eligible for processing.

 

DECISION UNDER REVIEW

 

[7]               The Decision in this case consists of the letter dated 29 February 2012 (Refusal Letter), as well as the Computer Assisted Immigration Processing System (CAIPS) Notes made by the Officer.

 

[8]               The Officer completed an assessment of the application and found that it was not eligible because the Applicant had provided insufficient evidence that she met the work experience requirements in the Ministerial Instructions. The Applicant provided a reference letter, but it did not satisfy the Officer that she had carried out the described role of University Professor. The reference letter did not list the details of her role. 

 

[9]               The Officer found that since the Applicant had not provided satisfactory evidence that she had work experience in the listed occupation, her application was not eligible for processing.

 

ISSUES

 

[10]           The Applicant raises the following issue in this application:

a.                   Whether the Officer erred in law by concluding that the Applicant did not meet the requirements of NOC 4121, when on the face of it it is clear she did;

b.                  Whether the Officer breached the duty of fairness owed to the Applicant by failing to give her an opportunity to respond to the Officer’s concerns.

 

STANDARD OF REVIEW

 

[11]           The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 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 well-settled by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis.

[12]           The first issue involves an evaluation of the Officer’s conclusion that the Applicant was ineligible under the Federal Skilled Worker category. The case law has established that this is reviewable on a reasonableness standard (Zhong v Canada (Minister of Citizenship and Immigration), 2011 FC 980 at paragraph 11; Malik v Canada (Minister of Citizenship and Immigration), 2009 FC 1283 at paragraph 22).

 

[13]           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 paragraph 47, and Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at paragraph 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.”

 

[14]           In her arguments, the Applicant takes issue with the adequacy of the Officer’s reasons. She submits that this is a matter of procedural fairness. However in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 [Newfoundland Nurses], the Supreme Court of Canada held at paragraph 14 that the adequacy of reasons is not a stand-alone basis for quashing a decision. Rather, “the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes.” Thus, the adequacy of the reasons will be analysed along with the reasonableness of the Decision as a whole.

[15]           The second issue is a matter of procedural fairness (Kuhathasan v Canada (Minister of Citizenship and Immigration), 2008 FC 457 [Kuhathasan] at paragraph 18). As stated by the Supreme Court in Canadian Union of Public Employees (C.U.P.E.) v. Ontario (Minister of Labour), [2003] 1 SCR 539 at paragraph 100, “it is for the courts, not the Minister, to provide the legal answer to procedural fairness questions.” Accordingly, the standard of review applicable to the second issue is correctness.

 

STATUTORY PROVISIONS

 

[16]           The following provisions of the Act are applicable in these proceedings:

 

[17]           The following provisions of the Regulations are applicable in this proceeding:

 

ARGUMENTS

The Applicant

            The Reasonableness of the Decision

 

[18]           The Applicant submits that the letter she submitted from Lahore College for Women University indicates that from October, 2004 to the present she has been performing the necessary job duties to meet the requirements of NOC 4121. Having worked for five years as a lecturer in the Physics Department, she submits that she would have performed the duties of the profession of University Professor in order to maintain her employment. Additionally, the Applicant included numerous certificates and degrees with her application that clearly outline her qualifications. The Applicant also points out that she detailed the duties she performed in her Schedule 3.

[19]           The Applicant states that there is no explanation offered in the Decision as to why the Officer did not think she met the requirements of NOC 4121, considering that on the face of the evidence she did. In order to have maintained her profession for a period of five years, it is evident the Applicant would have had to perform the main duties listed on NOC 4121.

[20]           The Applicant also submits that the Officer failed to provide adequate reasons for the Decision, and this is a reviewable error (Canada (Minister of Citizenship and Immigration) v Jeizan, 2010 FC 323). The Officer did not properly explain why the Applicant did not meet the requirements of NOC 4121. Also, there was no factual foundation for the Officer’s conclusions.

 

 

Procedural Fairness

[21]           The Applicant further submits that the Officer was under a duty to give her an opportunity to respond to any concerns with her application. This was not a case where the Applicant should have been aware there was a problem with her documentation, nor was it a case where the Applicant did not adduce evidence.

[22]           The Applicant says that the Officer breached principles of procedural fairness by failing to provide her with an opportunity to address his or her concerns. As Justice Richard Mosley said at paragraph 22 of Rukmangathan v Canada (Minister of Citizenship and Immigration), 2004 FC 284:

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]           The Applicant submits that an analogy can be made between her case and Kuhathasan, above, at paragraphs 39-41:

In considering procedural fairness issues in the present case, I think it has to be borne in mind that the Applicants were dealt with under somewhat exceptional circumstances and that normal procedures had to be adjusted. I see no real evidence that the Applicants had access to the information they needed to satisfy all of the requirements under the Act. The Respondent’s web-site instructions were published to tell applicants and those helping them how to apply. Those instructions told the Applicants to use the Federal Skilled Worker application form and also asked for a letter from a family member in Canada offering financial assistance.

 

The fact is that the Applicants did all they were asked to do and complied with the instructions that were posted on the web-site. The Officer's principal concern, as shown in the Decision, was general financial viability, although the documentation suggests that there were also peripheral credibility issues regarding the financial capabilities of the Canadian relative.

 

Under the specific facts in this case, I cannot see how the Applicants could have anticipated and addressed either the financial viability issue, the peripheral credibility issues, or possible language problems in advance. They did what they were told to do in accordance with the instructions on the web-site. General financial viability was obviously a crucial issue in the Decision. On these facts, fairness required the Officer to give the Applicants some kind of opportunity to address her concerns. There is no evidence before me to suggest that, had the Applicants been given such an opportunity, they could not have satisfied the Officer’s concerns. The Principal Applicant is an established professional and he has also indicated various other connections and resources he can tap into for financial support.

 

 

[24]           The Applicant states that paragraphs 12-14 of Sekhon v Canada (Minister of Citizenship and Immigration), 2012 FC 700 is equally applicable to her situation, as the applicant in that case argued that it was unfair for the officer to rely on concerns not disclosed to her. The applicant in that case also argued that the officer’s decision was unreasonable because she discounted evidence without justification:

Mr. Sekhon’s submissions were directed to the officer’s concerns about whether the school was carrying on business at the stated address. The parents’ letters and photographs were aimed at meeting those concerns, and further documentation was provided regarding the school’s finances. But Mr. Sekhon could not have met the officer’s other unstated concerns because he was not made aware of them.

 

Accordingly, I find that Mr. Sekhon was not given a fair opportunity to meet the officer’s concerns about the shortcomings of his application.

 

The officer did not give Mr. Sekhon a chance to meet her real concerns about his application. Therefore, he was not treated fairly. Accordingly, I must allow this application for judicial review and order a reassessment of Mr. Sekhon’s application by another officer…

 

 

[25]           The Applicant submits that, based on the above, the Officer had a duty to advise the Applicant of any of concerns, and in not doing so the Applicant’s rights of procedural fairness were breached.

The Respondent

            Reasonableness of the Decision

 

[26]           The Respondent submits the Officer’s conclusion that the Applicant had not established that she possessed the requisite work experience for NOC 4121 was reasonable given the regulatory requirements and the minimal documentary evidence provided by the Applicant. The Applicant only submitted one reference letter, and it did not include a list of duties performed by her.

[27]           The Respondent points out that the reference letter from the Lahore College for Women University was very brief, and did not give any details of the work she performs there. With respect to this letter, the Decision says “PA has provided a copy of a reference letter but it does not satisfy me that she carried out this role or a role. There is no further evidence on file relating to NOC – the reference letter lists no detail of her role and does not show that PA fulfils NOC reqs.”

[28]           Neither the Applicant’s bare assertion that she had performed the NOC 4121 duties nor the brief reference letter were capable of establishing that the Applicant performed any or all of the required duties in the course of her employment. Similarly, the Applicant’s academic certificates and degrees do not establish that she performed any of the enumerated duties upon completion of her studies.

[29]           The Officer was not required to speculate as to the Applicant’s experience in an occupation. It was not sufficient for the Applicant to provide evidence that she has the academic qualifications or that she bears a specific job title (Tabanag v Canada (Minister of Citizenship and Immigration), 2011 FC 1293 at paragraph 22). Without sufficient evidence before her, the Officer was entitled to make the finding that she did (Wankhede v Canada (Minister of Citizenship and Immigration), [2000] FCJ 968). There was simply no evidence adduced by the Applicant to establish that she had performed the required duties, and thus the Decision was reasonable. 

[30]           The Respondent also submits that there is no merit to the Applicant’s argument that the Officer failed to provide sufficient reasons. The Supreme Court of Canada made clear in Newfoundland Nurses that an allegation questioning the “adequacy” of reasons is neither a stand-alone basis for quashing a decision, nor is it properly characterized as an issue of procedural fairness.

[31]           The Respondent states that there was limited evidence and a correspondingly straightforward decision. The Decision is very clear about why the application was refused – the Applicant failed to provide sufficient evidence that she had performed the requisite duties. The Decision makes explicit reference to the only relevant document – the brief reference letter – and says that it fell short of providing the details of the duties she performed in the course of her employment. This is sufficient explanation for the Applicant and this Court to understand how the ultimate conclusion was reached (Pirzadeh v Canada (Minister of Citizenship and Immigration), 2011 FC 461).

Procedural Fairness

[32]           The Respondent further submits that there is no merit to the Applicant’s argument that her right to procedural fairness was breached. It is well established that procedural fairness in the context of a permanent residence application is at the low end of the spectrum (Patel v Canada (Minister of Citizenship and Immigration), 2002 FCA 55 at paragraph 10).

[33]           The jurisprudence has established that where a concern arises directly from the requirements of the relevant legislation or regulations, a visa officer will not be under a duty to provide an opportunity for the applicant to address his or her concerns (Talpur v Canada (Minister of Citizenship and Immigration), 2012 FC 25). That is the case here because the application was refused based on the Applicant’s failure to meet the relevant regulations and requirements for NOC code 4121.

[34]           An officer is not required to give notice of a concern that the applicant lacks the work experience (and therefore does not fall within a certain NOC) because that concern arises directly from the Regulations (Shah v Canada (Minister of Citizenship and Immigration), 2011 FC 697 at paragraph 31; Gulati v Canada (Minister of Citizenship and Immigration), 2010 FC 451 at paragraphs 43-44; Hassani v Canada (Minister of Citizenship and Immigration), 2006 FC 1283 at paragraphs 23-24). The Applicant bore the onus of submitting sufficient evidence; fairness does not require the Officer to advise her of the inadequacy of her materials.

[35]           An applicant is also not entitled to an interview to correct her own failings (Kaur v Canada (Minister of Citizenship and Immigration), 2010 FC 442 at paragraph 9). As stated in Rukmangathan, above, 2004 FC 284 at paragraph 23, there is no obligation to provide an applicant with a “running score” of her application. The Respondent submits that given the above, there was no violation of procedural fairness.

The Applicant’s Reply

[36]           The Applicant maintains that the deficiency in the Officer’s reasons constitutes a breach of procedural fairness. The Applicant states that the Newfoundland Nurses decision is not relevant because it is a labour law case and thus not applicable in an immigration context. Labour boards are specialized tribunals and are often required to make speedy decisions (International Longshoremen’s and Warehousemen’s Union, Ship and Dock Foremen, Local 514 v Prince Rupert Grain Ltd., [1996] 2 SCR 432 at paragraphs 24-27). Labour decisions can be revisited in the negotiation process, unlike the case at bar. The Applicant submits that the Newfoundland Nurses decision was made in this specialized context, and should not be read to take away from the standard of “justification, transparency, and intelligibility” put forward in Dunsmuir, above.

[37]           In response to the Respondent’s submission that there was no duty on the officer to put forward any concerns to the Applicant, she replies that this is not a case where she did put forward sufficient evidence and the Officer had concerns with it. The fact that none of these concerns were put to the Applicant when she had made a prima facie case was a breach of natural justice.

 

The Respondent’s Further Memorandum of Argument

[38]           The Respondent submits that the Applicant’s assertion in her Reply that the Newfoundland Nurses decision does not apply in an immigration context is incorrect. Although that decision arose in a labour law context, it applies to tribunal decisions generally and has been applied frequently by this Court in an immigration context since the decision was rendered in 2011.

ANALYSIS

[39]           Newfoundland Nurses is applicable, and the reasons were obviously sufficient in this case. The Principal Applicant simply did not provide satisfactory evidence that she had work experience for NOC 4121.

[40]           The record reveals that the Officer found the evidence unsatisfactory because the Principal Applicant only submitted one reference letter, and that letter did not include the list of all or a substantial number of the main duties of the occupation.

[41]           IRPA Regulations 75(2)(c) says that an applicant is a skilled worker if

 

[42]           The instructions for NOC 4121 describe the relevant main duties as above, in paragraph 3.

[43]           The letter from Lahore College submitted by the Principal Applicant reads as follows:

I, in the capacity of registrar had been known Ms. Talat Zeeshan since Oct 2004. She is presently a lecturer in Physics Department LCWU, Lahore in BPS-18. She is a well qualified and experienced teacher. Her performance is up to the mark. Her total experience at LCWU is five years to date.

 

Her annual salary is PKR 2,50,000/-only. I wish her success in every field of life.

 

[44]           At best, this letter tells us that the Principal Applicant teaches physics and, by inference, that she prepares and delivers lectures to students. I do not think the letter can be said to provide evidence that the Principal Applicant has performed a substantial number of the main duties, including all of the essential duties in the NOC 4121 description, and it was not unreasonable for the Officer to come to this conclusion. These deficiencies in the Principal Applicant’s submissions cannot be rectified by her assertion that she has performed the NOC 4121 duties, or by listing her academic certificates and degrees. The application was simply deficient in a fundamental requirement that the guidelines say is necessary.

[45]           There are no procedural fairness issues on these facts. The deficiencies here arose from the requirements of the relevant legislation and not for any of the reasons that would require the Officer to alert the Principal Applicant and give her an opportunity to respond. See Talpur, above.

[46]           The jurisprudence makes it 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. That is the precise nature of this case. The application was refused due to the Applicant’s failure to provide the requisite evidence as set out in the relevant regulations and requirements for an NOC 4121 — namely, establishing that she had performed some or all of the listed duties. See Hassani, above.

[47]           I can find no reviewable error with this Decision.

[48]           Counsel agree there is no question for certification and the Court concurs.

JUDGMENT

 

THIS COURT’S JUDGMENT is that

 

1.                  The application for judicial review is dismissed.

2.                  There is no question for certification.

 

 

“James Russell”

FEDERAL COURT

 

NAME OF COUNSEL AND SOLICITORS OF RECORD

 

 

DOCKET:                                         IMM-3724-12

 

STYLE OF CAUSE:                        TALAT ZEESHAN; MUHAMMAD ZEESHAN; MAHNOOR ZEESHAN

 

                                                            -   and   -

 

                                                              MINISTER OF CITIZENSHIP AND IMMIGRATION                                                                                   

                                                          

PLACE OF HEARING:                  Toronto, Ontario

 

DATE OF HEARING:                    February 6, 2013

                                                           

 

REASONS FOR JUDGMENT

AND JUDGMENT:                         HON. MR. JUSTICE RUSSELL

 

DATED:                                            March 7, 2013

 

 

APPEARANCES:   

 

Sherif R. Ashamalla                                                                            APPLICANTS

                                                                                                                    

Kevin Doyle                                                                                        RESPONDENT                                 

                              

                                                                                                                                                                                                                                                                                                                                                                                                                                         SOLICITORS OF RECORD:    

 

Sherif R. Ashamalla                                                                            APPLICANTS

Barrister & Solicitor

Toronto, Ontario                                                                                

 

William F. Pentney                                                                             RESPONDENT

Deputy Attorney General of Canada