Zadeh v. Canada (Minister of Citizenship and Immigration)
Between
Roya Nik Zadeh, Applicant, and
The Minister of Citizenship and Immigration, Respondent
The Minister of Citizenship and Immigration, Respondent
[2013] F.C.J. No. 574
2013 FC 516
Docket IMM-8549-12
Federal Court
Toronto, Ontario
Phelan J.
Heard: May 6, 2013.
Judgment: May 17, 2013.
Docket IMM-8549-12
Federal Court
Toronto, Ontario
Phelan J.
Heard: May 6, 2013.
Judgment: May 17, 2013.
(17 paras.)
Counsel:
REASONS FOR JUDGMENT AND JUDGMENT
PHELAN J.:--
INTRODUCTION
1 This
is a judicial review of a Visa Officer's [Officer] decision to deny the
application for a permanent resident visa under the Federal Skilled Worker
Class.
BACKGROUND
2 The
Applicant claimed that she qualified under National Occupation Classification
[NOC] Code as a Financial Manager. She is a resident of Iran and works as a
financial manager for Hugel Co., Hugugan Queshm Trading Co. in Iran. She holds
a Bachelor Degree in Business Management and the university certificates
suggest that she had a Masters degree. Nothing seems to turn on this
distinction.
3 The
Applicant's file was transferred from Damascus to Ankara, Turkey for
processing. Despite the Applicant's argument that she did not know this and
that it is somehow unfair, I see no prejudice to the Applicant nor any
infringement of her rights.
4 The
Officer's decision turned on the Applicant's failure to provide sufficient
evidence to support her claim. The duties described in the employment letters
did match the occupational description of the NOC Code.
The Officer's Notes detail the deficiencies more
precisely by referring to the specific activities performed at each of her
current and prior employers.
The Officer found that the Applicant was more
like a Bookkeeper than a Financial Manager.
ANALYSIS
5 The
Applicant argued (a) that the Officer erred in assessing the Applicant's
experience as it related to NOC - Financial Manager; and (b) breached natural
justice/procedural fairness by not providing the Applicant with an opportunity
to address the Officer's concerns about her application.
6 It
is well settled that the standard of review for the evaluation of eligibility
within the Federal Skilled Workers Category is reasonableness (Chadha v Canada (Minister of Citizenship and Immigration), 2013 FC 105, 225 ACWS (3d) 202). This includes the issue of
sufficiency of reasons (Newfoundland and Labrador
Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708).
The issue of procedural fairness is subject to a
correctness standard of review (Chadha, above).
A. Procedural Fairness
Officer's Evaluation
7 This
Court has confirmed, in cases such as Farooqui v Canada
(Minister of Citizenship and Immigration), [2000]
F.C.J. No. 714, 182 FTR 306 (FCTD), that a visa officer can give greater weight
to certain duties within the NOC description. This Court's role is to review
the reasonableness of the Officer's conclusion.
8 A
comparison between the Applicant's experience and the NOC description provides
a sound basis for assessing the reasonableness of the Officer's evaluation.
Applicant's Experience
programming,
organizing, guidance, control and accounting operations assessment and studding
other financial department activities [sic in original translated
letter];
employment, organizing,
educating and managing employees of financial department;
providing financial
report to directing management;
to prepare and provide
financial lists and analyzing the final cost and other financial reports;
to assess financial
reporting system, accounting process and investment activities and to provide
proposal regard to modify operating procedure, budgeting to company directing
management and other related departments.
codified programming in
order to registration of company books;
being assured of
optimum registration of financial activities in system and presenting reports
of balance sheet;
optimum usages of tax
regulations;
preparing financial
reports for related organs including Ministry of Finance, insurance and etc.,
under the control of the manager of the company;
determining competent
personnel in financial affairs;
closing fiscal year
accounts and preparing financial reports appropriate to them; and,
presenting financial
consulting services.
NOC Description
plan, organize, direct,
control and evaluate the operation of an accounting, audit or other financial
department;
recruit, organize,
train and manage staff;
prepare or co-ordinate
the preparation of financial statements, summaries, and other cost-benefit
analyses and financial management reports;
develop and implement
the financial policies, systems and procedures of an establishment;
evaluate financial
reporting systems, accounting procedures and investment activities and make
recommendations for changes to procedures, operating systems, budgets and other
financial control functions to senior managers and other department or regional
managers;
co-ordinate the
financial planning and budget process, and analyze and correct estimates;
supervise the
development and implementation of financial simulation models;
act as liaison between
the organization and its shareholders, the investing public and external
financial analysts;
establish profitability
standards for investment activities and handle mergers and/or acquisitions;
and,
notify and report to
senior management concerning any trends that are critical to the organization's
financial performance.
9 There
are a number of areas in which there is no evidence of the Applicant meeting
the job description. These include:
developing policies or
procedures;
supervising the
development or implementation of financial simulation models;
liaising between the
organization and shareholders, the public or other analysts;
establishing
profitability standards;
handling mergers or
acquisitions; and
reporting trends that
are critical to the organization's financial performance.
10 While
the Officer concluded that the Applicant had no experience in "recruiting,
organizing or training staff", there was in fact evidence that she had
experience in this area. Despite this questionable finding, reviewed as a
whole, the Officer's conclusions were reasonable.
11 I
can find no relevant evidence that was ignored. Contrary to the Applicant's
submissions, the Cooperation Contracts were specifically noted by the Officer
and therefore were considered.
12 Further,
I can find no basis for concluding that the reasons were not sufficient. The
Applicant seeks to expand Newfoundland Nurses, above, to formalize decisions of visa officers along the lines of
court decisions. I do not interpret Newfoundland Nurses to impose that requirement. It is sufficient if the record,
including notes, shows the reasons behind the administrative decision. The
Officer's decision satisfies that requirement and is reasonable when examined
in totality.
13 The
Applicant contends that the Officer should have accorded her an opportunity to
address the Officer's concerns about her application.
14 As
Justice Rennie held in Chen v Canada (Minister of
Citizenship and Immigration), 2011 FC 1279, 209 ACWS
(3d) 668, the visa officer is to focus on relevant experience, training or
education and certification. The officer is not expected to engage in a
dialogue.
15 The
decision under review is one of adequacy of the evidence where the onus is on
the Applicant. The decision is not one where true credibility is at issue or
accuracy and genuineness of documents are questioned where cases such as Ma v Canada (Minister of Public Safety and Emergency Preparedness), 2009 FC 1042, 84 Imm LR (3d) 280, and Hassani
v Canada (Minister of Citizenship and Immigration),
2006 FC 1283, [2007] 3 FCR 501, indicate that fairness dictates that an
applicant be able to address those matters.
16 Therefore,
there was no breach of procedural fairness.
CONCLUSION
17 This
judicial review will be dismissed. There is no question for certification.
JUDGMENT
THIS COURT'S JUDGMENT is that the application for judicial review is dismissed.
PHELAN J.
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