Federal Court Decisions

 

Date: 20081023

Docket: IMM-1165-08

Citation: 2008 FC 1189

Toronto, Ontario, October 23, 2008

PRESENT:     The Honourable Mr. Justice Russell

 

 

BETWEEN:

HARPREET KAUR

Applicant

 

 

and

 

 

MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               This is an application pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review of a decision of the Second Secretary (Immigration) at the High Commission of Canada in New Delhi (Officer), dated November 14, 2007 (Decision) refusing the Applicant’s application for permanent residence in Canada under the skilled worker category in the occupation of Cook (National Occupational Classification (NOC) 6242).

 

 

 

BACKGROUND

[2]               The Applicant is a 34-year-old married mother of two children. She has a B.A. (Arts) and a diploma from the Amita Hoteling and Cookery Centre in Kapurthala, India. She has a brother who lives in Canada. She currently works as a cook at Shenai Place in Kapurthala, India and has an HRSDC confirmed arranged employment offer in Canada.

 

[3]               The Applicant worked as a cook at the Mahagan Sweet and Hotel in Kapurthala, India for approximately nine years and was primarily responsible for preparing Punjabi dishes and gravies, checking hygiene, preparing vegetables and placing food orders.

 

[4]               The Applicant is currently employed at Shenai Palace as a cook, with the primary duties of preparing north-Indian vegetarian dishes and gravies (occasionally non-vegetarian dishes), cleaning, washing dishes and cutting vegetables. She has worked at the Shenai Palace since April 2005.

 

[5]               The Applicant was interviewed at the High Commission in New Delhi on October 10, 2007 by the Officer, who later rejected her application for permanent residence.

 

DECISION UNDER REVIEW

[6]               The Officer examined the Applicant’s application both under the Immigration Regulations 1978, SOR/78-172 (1978 Regulations) and the Immigration and Refugee Protection Regulations SOR/2002-227 (2002 Regulations).

 

[7]               The Officer identified the following negative factors in her CAIPS notes:

1)      On the Applicant’s certificate to Amita Hoteling and Cookery Centre, “cookery” was misspelled as “cookrey”;

2)      The Applicant has no mark cards from the Amita institution and had difficulty describing the courses she took there, nor did she know the address of the school or the last name of the owner or teachers of the school, or who the director was at the time of her graduation;

3)      The Applicant reads, writes, and speaks English with difficulty;

4)      The evidence provided by the Applicant at her interview was not credible for the following reasons:

                                                               i.       She was unable to explain any of her functions with any level of detail;

                                                             ii.      Her evidence concerning her duties at the banquet hall and the restaurant was unclear;

                                                            iii.      She was unable to explain how she determined the amount of food needed to be ordered when placing food orders at Mahagan Sweets;

                                                           iv.      She did not know the names of any of her colleagues;

                                                             v.      She did not provide credible information about the last employee hired at the Shenai Palace;

                                                           vi.      She could not describe the physical appearance of the kitchen at Shenai Palace with any level of detail;

                                                          vii.      She indicated she had worked a wedding at Shenai Palace that, in fact, did not take place when she said it did;

                                                        viii.      The Officer was not satisfied that the Applicant would have the ability to carry out her HRSDC arranged employment offer in Canada.

 

[8]               The Applicant was assessed under the 1978 Regulations pertaining to future economic establishment in Canada regarding her education, education and training, experience, occupational factors, arranged employment or designated occupation, demographic factors, age, knowledge of English and French and personal suitability. The Officer found that the Applicant would not be able to fulfill the requirements of her arranged employment in Canada and that she had not satisfied the Officer that she had at least one year of experience as a Cook. The Officer gave the Applicant a score of 51 out of 105 possible points.

 

[9]               The Applicant was also assessed under the 2002 Regulations against the federal skilled worker criteria. She was evaluated on age, education, proficiency in the official languages of Canada, experience, arranged employment and adaptability. The Officer found that the Applicant had not performed a substantial number of the main duties of a Cook, including all of the essential duties for the Cook occupation as set out in the relevant NOC. The Applicant received a score of 43 out of a possible 100 points under the skilled worker criteria.

 

[10]           Overall, the Officer did not feel the Applicant had the required skills and experience to be a Cook in Canada and that she failed to qualify under the 1978 Regulations and the 2002 Regulations.

 

 

ISSUES

[11]           The Applicant raises the following issues for review:

1)      Did the Officer base her Decision on erroneous findings of fact made in a perverse or capricious manner?

2)      Were the Officer’s findings that the Applicant was not occupationally qualified to serve as a Cook reasonably open to her on the evidence?

3)      Did the Officer err in ignoring the evidence she obtained from the Applicant’s previous employer via a telephone call which corroborated the Applicant’s job duties as a Cook in India?

 

STATUTORY PROVISIONS

[12]           The following provisions of the Act are relevant to this application:

[13]           The following provisions of the 1978 Regulations are also applicable:

 

[14]           The following provisions of the 2002 Regulations are also applicable:

 

STANDARD OF REVIEW

Issues: Work Experience & Arranged Employment

[15]           In Dunsmuir v. New Brunswick, 2008 SCC 9, the Supreme Court of Canada recognized that, although the reasonableness simpliciter and patent unreasonableness standards are theoretically different, “the analytical problems that arise in trying to apply the different standards undercut any conceptual usefulness created by the inherently greater flexibility of having multiple standards of review” (Dunsmuir at para. 44). Consequently, the Court held that the two reasonableness standards should be collapsed into a single form of “reasonableness” review.

 

[16]           The Supreme Court of Canada in Dunsmuir also held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to the 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.

 

[17]           Thus, in light of the Supreme Court of Canada’s decision in Dunsmuir and the previous jurisprudence of this Court in Silva v. Canada (Minister of Citizenship and Immigration), [2007] F.C.J. No. 981 (F.C.) which cites Svetlana Vladimirovna Kniazeva v. Canada (Minister of Citizenship and Immigration) 2006 FC 268 and which established that the standard of review for the issues raised by the Applicant in this kind of application is patent unreasonableness, the Court concludes that the standard of review on applications for permanent residence under the skilled worker category is reasonableness and that the Decision in this case is entitled to a higher degree of deference.. 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” (Dunsmuir at para. 47). Put another way, the Court should only intervene 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.”

Issue: Not Advising the Applicant of Concerns

 

[18]           The issue of whether the Officer should have advised the Applicant of her concerns raises a question regarding the duty of procedural fairness to which a standard of correctness applies: Suresh v. Canada (Minister of Citizenship and Immigration) 2002 SCC 1.

 

ARGUMENTS

 

 

The Applicant

 

Work Experience

 

[19]           The Applicant submits that the Officer’s finding that she did not have at least one year of work experience as a Cook was a reviewable error because:

1)      The Applicant provided uncontradicted credible evidence that she had been employed as a Cook for more than one year, during which time she had performed a substantial number of the main duties of the occupation of Cook as found in the relevant NOC;

2)      The Applicant provided uncontradicted credible evidence of the kitchen layout at the establishment of her current employer and the Officer does not question the credibility of that evidence;

3)      The Applicant’s current employer confirmed by telephone that the Applicant was employed as a Cook. The Officer erred in law by not taking this evidence into account as the purpose of the call was to corroborate the Applicant’s employment experience.

4)       

[20]           The Applicant also argues that the Officer exceeded her jurisdiction by not adhering to the definition of “Cook” as found in the NOC. The Applicant says that an officer cannot import his or her own criteria into the requirements for a specific position: (Haughton v. Minister of Citizenship and Immigration, (1995), 34 Imm. L.R. (2d) 284 (Fed. T.D.).

 

[21]           The criteria under the NOC definition of “Cook” are as follows:

6242 Cooks

Cooks prepare and cook a wide variety of foods. They are employed in restaurants, hotels, hospitals and other health care institutions, central food commissaries, educational institutions and other establishments. Cooks are also employed aboard ships and at construction and logging campsites. Apprentice cooks are included in this unit group.

Example Titles

apprentice cook
cook
dietary cook
first cook
grill cook
hospital cook
institutional cook
journeyman/woman cook
licensed cook
line cook
second cook
short order cook

Main duties

Cooks perform some or all of the following duties:

       Prepare and cook complete meals or individual dishes and foods

       Prepare and cook special meals for patients as instructed by dietitian or chef

       Schedule and supervise kitchen helpers

       Oversee kitchen operations

       Maintain inventory and records of food, supplies and equipment

       May set up and oversee buffets

       May clean kitchen and work area

       May plan menus, determine size of food portions, estimate food requirements and costs, and monitor and order supplies.

       May hire and train kitchen staff

       Cooks may specialize in preparing and cooking ethnic cuisine or special dishes.

Employment requirements

       Completion of secondary school is usually required.

       Completion of a three-year apprenticeship program for cooks or Completion of college or other program in cooking or several years of commercial cooking experience are required.

       Trade certification is available but voluntary in all provinces and Territories.

Interprovincial trade certification (Red Seal) is also available to qualified cooks.

 

[22]           The Applicant feels that she provided evidence that satisfied the above criteria to a significant degree. However, the Officer had credibility concerns about the Applicant’s evidence that led the Officer to the conclusion that the Applicant had not, in fact, had the experience she claimed to have.

 

Arranged Employment

 

[23]           The Applicant submits that she had an HRSDC arranged employment offer in Canada. She says that the Officer’s failure to award her points based upon this offer was a reviewable error.

 

Not Advising the Applicant of Concerns

 

[24]           Relying upon Fong v. Canada (Minister of Employment and Immigration) (1990), 11 Imm. L.R. (2d) 205 (Fed.T.D.), Dhaliwal v. Canada (Minister of Employment and Immigration) (1992), 16 Imm. L.R. (2d) 212 (Fed. T.D.), and Nicolae v. Canada (Secretary of State) 29 Imm. L.R. (2d) 148 (Fed. T.D.), the Applicant submits that the Officer should have advised her of her concerns with regards to the responses that the Applicant provided to the questions posed at the interview.

 

The Respondent

Work Experience

[25]           The Respondent submits that the Applicant provided the Officer with answers that were inaccurate, superficial or just not credible. The Respondent specifically points to the following examples:

1.                  The Applicant provided information about the last banquet held at the Shenai Palace where she described the number of people who attended and what was served. However, upon consultation with the owner of the Shenai Palace, it was discovered that no banquets had been held during the period of time referred to by the Applicant;

2.                  The Applicant provided information concerning her duties as a Cook, but she could not provide answers that were sufficiently substantive;

3.                  The lack of documentation to support the Applicant’s attendance at the Amita Hoteling and Cookery Centre, as well as the lack of information the Applicant could provide in relation to the courses she had taken, the last name of the owner of the school or the director of the school, as well as the misspelled school name on the certificate.

 

[26]           The Respondent points out that an officer is entitled to weigh an Applicant’s responses at an interview with the documentary evidence provided: Zhang v. Canada (Minister of Citizenship and Immigration) 2003 FCT 163. The Respondent cites and relies upon paragraph 15 of Dizon v. Canada (Minister of Citizenship and Immigration) 2002 FCT 115 which states as follows:

Once the visa officer concluded that Ms. Dizon had not been forthcoming and had not performed the duties of a travel counselor, the two certificates from Ms. Dizon’s employer carried little or no evidentiary value. Therefore, it cannot be said that there was meaningful evidence before the visa officer of relevant experience.

 

Not Advising the Applicant of Concerns

 

[27]           The Respondent points out that the Officer did advise the Applicant of her concerns with the responses given at the interview and the Applicant had a full opportunity to “disabuse” the Officer of any misconceptions concerning her work experience.

 

ANALYSIS

            Work Experience

 

[28]           It is well established that credibility issues and the weight to be given to evidence are matters for the officer concerned and must be given significant deference by a reviewing court: Sarkissian v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 489 (F.C.) at para. 9; Oladipo v. Canada (Minister of Citizenship and Immigration) 2008 FC 366.

 

[29]           While I agree with the Respondent that the Court should be slow to interfere with credibility findings and that it is the Officer’s role to weigh evidence, I have to find the Decision deficient and unreasonable in one crucial respect.

 

[30]           A review of the record reveals that the Officer had justifiable concerns about the Applicant’s credibility regarding her work experience and qualifications as a cook. However, the Officer took it upon herself to contact Mr. Singh, the Applicant’s employer, in order to seek further evidence material to those concerns. Mr. Singh provided confirmation that the Applicant worked for him as a cook. In fact, he confirmed what the Applicant had told the Officer, except for the timing of the banquet.

 

[31]           The Officer does not question Mr. Singh’s credibility. In fact, she relies upon what Mr. Singh told her about the timing of the banquet to bolster the concerns she had concerning the Applicant’s credibility.

 

[32]           But the Officer leaves out of account the crucial fact that Mr. Singh confirmed most of what the Applicant had said. He provided reliable evidence (not questioned by the Officer) that the Applicant worked for him in the role of cook. The Officer remains silent on evidence that points away from the conclusion she came to regarding the Applicant’s credibility. She took that part of Mr. Singh’s evidence which she felt supported her conclusions but ignored the confirmatory evidence he gave regarding the Applicant’s experience as a cook. The Officer does not explain in her Decision why she ignored evidence that was directly material to the decision she had to make and which undermined her own conclusions on credibility.

 

[33]           In other words, on this important issue, the Officer failed to have regard for the evidence as a whole and fell into the error that Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 warns against:

 

…

 

14     It is well established that section 18.1(4)(d) of the Federal Court Act does not authorize the Court to substitute its view of the facts for that of the Board, which has the benefit not only of seeing and hearing the witnesses, but also of the expertise of its members in assessing evidence relating to facts that are within their area of specialized expertise. In addition, and more generally, considerations of the efficient allocation of decision-making resources between administrative agencies and the courts strongly indicate that the role to be played in fact-finding by the Court on an application for judicial review should be merely residual. Thus, in order to attract judicial intervention under section 18.1(4)(d), the applicant must satisfy the Court, not only that the Board made a palpably erroneous finding of material fact, but also that the finding was made “without regard to the evidence”: see, for example, Rajapakse v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 649 (F.C.T.D.); Sivasamboo v. Canada (Minister of Employment and Immigration), [1995] 1 F.C. 741 (F.C.T.D.).

15     The Court may infer that the administrative agency under review made the erroneous finding of fact “without regard to the evidence” from the agency’s failure to mention in its reasons some evidence before it that was relevant to the finding, and pointed to a different conclusion from that reached by the agency. Just as a court will only defer to an agency’s interpretation of its constituent statute if it provides reasons for its conclusion, so a court will be reluctant to defer to an agency’s factual determinations in the absence of express findings, and an analysis of the evidence that shows how the agency reached its result.

 

16     On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact.

 

17     However, the more important the evidence that is not mentioned specifically and analyzed in the agency’s reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact “without regard to the evidence”: Bains v. Canada (Minister of Employment and Immigration) (1993), a63, F.T.R. 312 (F.C.T.D.). In other words, the agency’s burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency’s finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.

 

 

[34]           Mr. Singh’s confirmatory evidence was so important in this case that I have to infer from the Officer’s silence on this matter that she made an erroneous finding of fact without regard to the evidence, which error renders the Decision as a whole unreasonable within the meaning of Dunsmuir. This matter requires reconsideration.

 

Arranged Employment

 

[35]           At page two of the Officer’s letter dated November 14, 2007, she says that the Applicant did not have arranged employment in Canada. However, in the CAIPS notes, it is clear that the Officer was aware of this arranged employment but did not feel the Applicant could fulfill the requirements needed for it.

 

[36]           If the Applicant had received points for her work experience, as well as points for her arranged employment, she may have received sufficient points to qualify. Therefore, I find that it was unreasonable for the Officer to conclude that the Applicant could not meet the requirements of the Cook category, nor carry out her arranged employment arrangement given that there was evidence that she had in fact been working as a cook. This matter needs to be reconsidered.

 

Not Advising the Applicant of Concerns

 

[37]           I agree with the Respondent on this issue. It is clear from the record that the Officer asked the Applicant many questions and gave her many opportunities to describe her work experience, job duties etc. It is also well established that an officer has no obligation to notify an applicant about concerns or to allow an applicant the opportunity to respond to those concerns: Ahmed v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 940 (F.C.T.D.). The onus is on an applicant to provide all of the information required for an application of this nature. The Court in Aqeel v. Canada (Minister of Citizenship and Immigration) 2006 FC 1498 confirmed as follows:

12.     The onus is also on the applicant to set out the relevant factors that must be considered on the assessment in order for the officer to find that relevant humanitarian and compassionate grounds exist (IP 5 Manual: Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds (the Manual), Citizenship and Immigration Canada, 5.29). In Owusu v. Minister of Citizenship and Immigration, 2004 FCA 38, Mr. Justice Evans, for the Federal Court of Appeal, wrote at paragraph 8:

 

... And, since applicants have the onus of establishing the facts on which their claim rests, they omit pertinent information from their written submissions at their peril.

 

[38]           I find that by granting an interview and, as the Officer’s CAIPS notes make clear, by explaining the purpose of the interview and how the application would be assessed, and as a result of the Officer’s extensive questioning, the Applicant was given a full opportunity to respond and make her case before the Officer. I cannot find a reviewable error on this issue.

 

 

 

JUDGMENT

 

THIS COURT ORDERS AND ADJUDGES that:

 

1.                  The Application is allowed and the matter is referred back for reconsideration by a different officer;

2.                  There is no question for certification.

 

 

“James Russell”

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

 

DOCKET:                                          IMM-1165-08

 

STYLE OF CAUSE:                          HARPREET KAUR v. MCI

 

 

PLACE OF HEARING:                    TORONTO, ONTARIO

 

DATE OF HEARING:                      September 9, 2008

 

REASONS FOR JUDGMENT

AND JUDGMENT:                          JUSTICE RUSSELL   

 

DATED:                                             October 23, 2008

 

APPEARANCES:

 

Ian R.J. Wong	FOR THE APPLICANT
Michael Butterfield	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Ian R.J. Wong BARRISTER AND SOLICITOR TORONTO, ONTARIO	FOR THE APPLICANT
JOHN H.SIMS, Q.C. DEPUTY ATTORNEY GENERAL OF CANADA TORONTO, ONTARIO	FOR THE RESPONDENT