Dinani v. Canada (Citizenship and Immigration), 2014 FC 141 : Skilled Worker Refusal Overturned Because Officer Applied an Unreasonable NOC Requirement

The Federal Court reviewed the refusal of a skilled worker visa application by a PhD student who worked as a graduate teaching and research assistant at the University of British Columbia.

The Court overturned the refusal because the visa officer failed to reasonably assess the applicant’s actual employment duties against the applicable NOC and later attempted to justify the refusal through an explanation that was not contained in the original decision.

Key Principle

A visa officer must assess an applicant’s actual job duties against the applicable NOC requirements in a reasonable and common-sense manner.

An officer cannot impose an additional requirement that is not properly reflected in the NOC description and then rely on an after-the-fact affidavit to explain or supplement inadequate reasons for the original decision.

Where an applicant’s employment references closely correspond to the NOC duties, the officer must provide a rational explanation for concluding otherwise.

Background

The applicant was a PhD student in Electrical and Computer Engineering at the University of British Columbia. He applied for a skilled worker visa under the Post-Secondary Teaching and Research Assistants category, NOC 4012.

He submitted reference letters from members of the Engineering faculty confirming his employment as a graduate research assistant and graduate teaching assistant.

His research duties included conducting literature reviews, developing algorithms, conducting mathematical analysis, compiling research results and preparing journal articles and conference papers. His teaching duties included supervising examinations, marking and holding office hours.

The visa officer nevertheless refused the application, stating in the GCMS notes that the reference letters did not list duties matching the actions described in the NOC 4012 lead statement.

Court Findings

The Federal Court found that the applicant’s reference letters closely corresponded to the duties listed under NOC 4012.

The officer later attempted to explain the refusal through an affidavit, stating that the reference letters did not expressly say that the applicant was “assisting” other members of the faculty.

The Court rejected this explanation because it was not the reasoning given in the original decision. A decision-maker cannot improve or supplement inadequate reasons after the fact through an affidavit filed during judicial review proceedings.

The Court also found that the officer failed to apply sufficient common sense when assessing the applicant’s employment duties. The reference letters described the applicant as a graduate teaching and research assistant, and his actual duties involved teaching, supervising examinations, marking and conducting research under faculty supervision.

The Court found it obvious that these duties constituted assistance to faculty members. The officer’s additional requirement that the references expressly use particular wording was therefore unreasonable.

Because the original reasons did not adequately justify the refusal and the later explanation could not cure the deficiency, the decision was unreasonable.

Outcome

The Federal Court allowed the application for judicial review and returned the skilled worker application to a different decision-maker for reconsideration. The applicant was also permitted to submit current employment references.

Case Citation:

Dinani v. Canada (Citizenship and Immigration), 2014 FC 141 CanLII