Katebi v. Canada (Citizenship and Immigration), 2014 FC 813 : Federal Skilled Worker Refusal Upheld Because Applicant Failed to Provide Sufficient Evidence of His Actual Job Duties

Outcome: Judicial Review Dismissed

➢ Introduction

The Federal Court reviewed the refusal of a Federal Skilled Worker application by an Iranian applicant who claimed work experience as a Construction Manager.

The Court dismissed the application because it was filed significantly late and, in any event, the applicant had not shown that the officer acted unreasonably in finding that the evidence did not establish that he performed the required duties of the claimed NOC.

➢ Key Principle

A Federal Skilled Worker applicant must provide evidence showing that they actually performed the lead statement and a substantial number of the main duties of the claimed NOC.

A job title, educational qualifications or employment with a company in the relevant industry is not enough.

Visa officers are also generally not required to give applicants an opportunity to correct deficiencies in an incomplete or insufficient application where the concern relates to the adequacy of the evidence rather than its credibility or authenticity.

➢ Background

The applicant was an Iranian citizen who applied for permanent residence under the Federal Skilled Worker category as a Construction Manager.

The officer refused the application because the applicant had not provided sufficient evidence demonstrating that he performed the duties of a Construction Manager under the applicable NOC.

The employer’s reference letter did not describe his job duties. The applicant’s own description of his duties largely reproduced the wording of the NOC.

The applicant requested reconsideration and submitted a revised employer letter containing additional details about his duties. The reconsideration request was refused because applications are assessed on the information available when the application is reviewed.

The applicant then sought judicial review.

➢ Court Findings

The Court first found that the judicial review application had been filed approximately five months beyond the statutory deadline. The applicant argued that he had been waiting for a decision on his reconsideration request and was unaware that the judicial review deadline continued to run.

The Court rejected this explanation. A request for reconsideration does not suspend the statutory deadline for judicial review, and ignorance of the law or errors by counsel do not ordinarily provide a sufficient explanation for such a significant delay.

The Court nevertheless considered the merits and found no reviewable error.

The employer’s letter did not actually describe the applicant’s duties. It merely listed projects on which he had worked. The applicant’s own description largely copied the NOC language rather than explaining his actual responsibilities.

The Court held that this was a sufficiency of evidence issue, not a credibility issue. The officer therefore was not required to give the applicant an opportunity to supplement the application before making the decision.

The Court also confirmed that a job title and relevant education do not establish that an applicant qualifies as a skilled worker. The applicant must demonstrate that he actually performed the lead statement and a substantial number of the NOC’s main duties, including the essential duties.

➢ Outcome

The Federal Court dismissed the application for judicial review and upheld the refusal of the Federal Skilled Worker application.

Case Citation:

Katebi v. Canada (Citizenship and Immigration), 2014 FC 813 CanLII