Docket: IMM-513-23
Citation: 2023 FC 1544
Ottawa, Ontario, November 21, 2023
PRESENT: Madam Justice Azmudeh
BETWEEN: |
TAJI KESHMIAN |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
Respondent |
JUDGMENT AND REASONS
I. Decision
[1] The Applicant, Taji Keshmian [the “Applicant”
], is seeking a Judicial Review under section 72(1) of the Immigration and Refugee Protection Act [IRPA] concerning the rejection of their application for permanent residence [“PR”
] in Canada under the Federal Skilled Trades [“FST”
] class.
[2] The Judicial Review is dismissed for the following reasons.
II. Overview
[3] The Applicant, Taji Keshmian is a 41-year-old citizen of Iran and is seeking a judicial review of the refusal of her application for permanent residence in Canada under the FST class, with the intention of working as a Construction Supervisor for Jaswant Framing [the “Employer”
] in British-Columbia.
[4] The FST permanent resident application relied on the Applicant’s job offer with a letter from the Employer for the position of Construction Supervisor that referred to two National Occupation Classification ["NOC"] codes: NOC 7217 (as per NOC 2006) and NOC 7302 (as per NOC 2011).
[5] Prior to applying for permanent residence, as she was required, the Applicant had obtained a favourable Labour Market Impact Assessment [“LMIA”
] issued by Employment and Social Development Canada [“ESDC”
] for the same job offer. The favourable LMIA was issued on July 13, 2016 and stated that it was for the position identified with the NOC Code "7217 – Construction Supervisor." This was consistent with the 2006 version of the NOC.
[6] The parties agree that the two NOC versions mentioned in the job offer, 2011 NOC 7302 which replaced the 2006 NOC 7217 have nearly identical job titles, main duties, and job requirements, as also demonstrated by the Respondent’s materials:
[7] The Applicant submitted her application under the FST on or about October 31, 2016 with the supporting documents that included the Employer’s job offer and the LMIA. Finally, after multiple inquiries as to the status of the application and filing of a Mandamus application at this Court, an officer from Immigration Refugee Citizenship Canada [(the “Officer”
] rejects the application on July 15, 2022. The basis for the Officer’s refusal was that the Applicant did not meet the requirements under ss. 87.2(3) of the Immigration and Refugee Protection Regulations SOR 2002-227 [“IRPR”
].
[8] The Officer assessed the Applicant’s application materials against NOC 7302 and found that she did not have the requisite experience as a Construction Supervisor. The Officer analyzed the offer of arranged employment from the Employer which they deemed to be lacking in specificity and did not clearly indicate alignment with the description found in NOC 7302.
[9] In their written memorandums, both parties limited their argument to the NOC version used by the Officer. The Applicant argues that the Officer should have contacted the Employer, the ESDC or the Applicant to clarify which NOC code they had used. By contrast, the Respondent submits that because the job offer letter specifically referenced both codes and that the Officer had relied on a nearly identical version of the NOC most recent at the locked in time of the application, their decision to assess the application without seeking further clarifications was reasonable. In a further reply, the Applicant’s counsel referred to a more recent NOC update in 2021 without disclosing its content and making submissions on it. In short, counsel had not applied to the Court for leave to disclose the relevant NOC and submits that the Officer should have mentioned the updated version.
[10] At the oral hearing of the Judicial Review, I invited the parties to advise of their positions on whether or how they wished to make submission on the reasonableness of the substance of the Officer's decision. This is because the jurisprudence is clear that a party cannot raise a new argument at a hearing on the basis that it would prejudice the other party: Kabir v Canada (Citizenship and Immigration), 2023 FC 1123 at para 19, Ali v Canada (Citizenship and Immigration), 2021 FC 731, at para 51; Riboul v Canada (Citizenship and Immigration), 2020 FC 263, at para 43; Abdulkadir v Canada (Citizenship and Immigration), 2018 FC 318, at para 81; Del Mundo v Canada (Citizenship and Immigration), 2017 FC 754, at para 14; Dave v Canada (Minister of Citizenship and Immigration), 2005 FC 510 at para 5; and Coomaraswamy v Canada (Minister of Citizenship and Immigration), 2002 FCA 153, para 39.
[11] Both parties continued to limit their submission on the issue of the version of the NOC used by the Officer. Counsel for the Applicant referred to the various parts of the GCMS notes to in the context of arguing that clarification in the specific NOC version was required.
III. Statutory Framework
[12] The FST class is a prescribed class for the purposes of economic immigration as a permanent resident, and is governed by s 87.2 of the IRPR:
|
|
IV. Issues and Standard of Review
[13] This application for Judicial Review raises the following issue:
A. Was the Officer’s decision to reasonable?
[14] There is no dispute between the parties that the standard of review in this case is reasonableness, is a deferential and disciplined evaluation of whether an administrative decision is transparent, intelligible and justified: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, [2019] 4 SCR 653, at paras 12-13 and 15; Mason v. Canada (Citizenship and Immigration), 2023 SCC 21, at paras 8, 63.
V. Analysis
[15] The only issue before me is whether it was reasonable for the Officer to review the application under the 2011 NOC version (NOC 7302) without seeking further clarification from the Employer, the ESDC or the Applicant and to never mentioning a more recent update in 2021.
[16] The Applicant filed her permanent resident application in 2016, i.e. when the 2011 NOC version was in force. The Officer referred to 2016 as the “application lock-in”
and decided the application on the basis of NOC 7302, i.e., the 2011 version. The Employer’s job offer letter itself had requested the application to be assessed for the position of Construction Supervisor that referred to the two NOCs: 7217 (as per NOC 2006) and 7302 (as per NOC 2011). It was the Officer’s duty to engage in an independent assessment of the application notwithstanding the positive LMIA.
[17] The two NOC versions are virtually identical, and the Applicant does not raise how she was prejudiced by having the officer assess her file under the 2011 version without seeking further clarification. Nor did the Applicant’s counsel argued what, if any facts, needed clarification without which the decision reached was unreasonable. There is no argument before me to suggest how an assessment under the 2006 NOC version could have been different. Without explaining the nature of the prejudice, the Applicant is seeking this Court to favour form over substance.
[18] I agree with the Respondent that the Officer reasonably used NOC 7302 to assess the application. NOC 7302 replaced NOC 7217 in 2011, and it was reasonable for the Officer to use the NOC code that was in force at the time of the application. As already stated, NOC 7217 and NOC 7302 are almost identical, and assessing under NOC 7217 would not have made a difference to the outcome of the Applicant’s application.
[19] The Applicant also does not argue how the Officer’s decision not to consider the 2021 NOC, when that NOC did not even exist when the Applicant filed her application, was unreasonable.
VI. Conclusion
[20] The Officer’s decision is reasonable, as it does exhibit the requisite degree of justification, intelligibility, and transparency. The application for judicial review is therefore dismissed.
[21] Neither party proposed a question for certification and I agree that none arises in this matter.
JUDGMENT in IMM-513-23
THIS COURT’S JUDGMENT is that
The Judicial Review is dismissed.
"Negar Azmudeh"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
Docket:
|
IMM-513-23 |
STYLE OF CAUSE: |
TAJI KESHMIAN v THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
PLACE OF HEARING: |
held by videoconference
|
DATE OF HEARING: |
november 7, 2023
|
REASONS FOR JUDGMENT AND JUDGMENT:
|
AZMUDEH J.
|
DATED: |
november 21, 2023
|
APPEARANCES:
Richard Kurland |
For The Applicant |
Devi Ramachandran |
For The Responden |
SOLICITORS OF RECORD:
Kurland, Tobe Vancouver, BC |
For The Applicant |
Department of Justice Canada Vancouver, BC |
For The Respondent |