Pinto v. Canada (Minister of Citizenship and Immigration), (2013) 430 F.T.R. 168 (FC)

• Judge: Gleason, J.
• Court: Federal Court (Canada)
• Case Date: February 27, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 430 F.T.R. 168 (FC);2013 FC 349

Pinto v. Can. (M.C.I.) (2013), 430 F.T.R. 168 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] F.T.R. TBEd. AP.008

Julius Francis Pinto (applicant) v. The Minister of Citizenship and Immigration (respondent)

(IMM-4585-12; 2013 FC 349; 2013 CF 349)

Indexed As: Pinto v. Canada (Minister of Citizenship and Immigration)

Federal Court

Gleason, J.

April 8, 2013.

Summary:

Pinto, a citizen of India and the United Arab Emirates, sought permanent residence in Canada under the Federal Skilled Worker program. He claimed to satisfy the category of Financial Managers, National Occupation Code 0111, primarily through his work at HSBC Bank in Dubai. An immigration officer rejected the application. Pinto applied for judicial review.

The Federal Court dismissed the application. The reasons given were adequate; the result reached was reasonable; and there was no requirement for the officer to have conducted an interview of Pinto or otherwise given him the opportunity to provide further information or clarification prior to rejecting his application.

Aliens - Topic 1230

Admission - Immigrants - Application for admission - Immigrant visa - Duty of officer (incl. duty of fairness) - [See both Aliens - Topic 1230.4 ].

Aliens - Topic 1230.4

Admission - Immigrants - Application for admission - Immigrant visa - Skilled workers - The applicant, a citizen of India and the United Arab Emirates, sought permanent residence in Canada under the Federal Skilled Worker program and claimed to satisfy the category of Financial Managers - National Occupation Code (NOC) 0111, primarily through his work at HSBC Bank in Dubai as a Manager, Corporate Banking - An immigration officer rejected the application - The officer's decision, in terms of reasons, noted only that "the main duties [listed by the applicant] do not indicate that [the applicant] performed the actions described in the lead statement for the occupation, as set out in the occupational descriptions of the NOC or that he performed all of the essential duties and a substantial number of the main duties, as set out in the occupational descriptions of the NOC." - The Federal Court dismissed the judicial review application - With respect to the adequacy of the officer's reasons, because the officer did provide some reasons for her decision, the claim that there was violation of procedural fairness failed - As for the claim that the paucity of the reasons rendered the decision unreasonable, a review of the evidence submitted by the applicant and NOC-0111 made it clear that the applicant was not a financial manager within the meaning of the NOC - Given the readily apparent nature of that conclusion, it was not necessary for the officer to provide more detailed reasons - The officer's conclusion was within the range of reasonable outcomes - See paragraphs 11 to 30.

Aliens - Topic 1230.4

Admission - Immigrants - Application for admission - Immigrant visa - Skilled workers - An immigration officer rejected the applicant's application for permanent residence - The officer reviewed the applicant's job history and concluded that he did not satisfy the category of Financial Managers - National Occupation Code (NOC) 0111 - The applicant sought judicial review - He argued that as a matter of procedural fairness he was entitled to an interview to address any concerns the officer might have had - The Federal Court held that this was not a case where a duty to make further inquiries arose - "This Court has held that where a visa officer's concerns arise directly from the legislative or regulatory requirements, and there are no concerns about credibility or the authenticity of an application, an interview or opportunity to provide further information is not necessary. ... Here, the Officer reviewed the applicant's job history and simply concluded that he did not satisfy the requirements of NOC-0111. Such conclusion does not necessitate further inquiry." - See paragraphs 31 and 32.

Aliens - Topic 1305

Admission - Immigrants - Judicial review - Evidence - An immigration officer rejected the applicant's application for permanent residence - The applicant sought judicial review - The officer filed an affidavit - The bulk of the affidavit elaborated on the reasons why the officer made the decision - The applicant argued that the immigration officer's affidavit impermissibly sought to bolster the decision rejecting his application and therefore was inadmissible - The Federal Court determined that the portions of the officer's affidavit that provided additional reasons for her decision were inadmissible and that any answer given by her on her cross-examination that provided additional reasons for the decision was likewise inadmissible - "[T]he case law establishes that visa officers may file affidavits in applications to review their decisions so long as the affidavits merely provide background context or contain facts relevant to allegations of a violation of procedural fairness or bias. In contrast, affidavits which seek to bolster the decision by providing new or expanded reasons for the decision are not admissible" - See paragraphs 7 to 10.

Aliens - Topic 4521

Evidence - Affidavits - General - [See Aliens - Topic 1305 ].

Cases Noticed:

Sellathurai v. Canada (Minister of Public Safety and Emergency Preparedness) (2008), 382 N.R. 2; 2008 FCA 255, refd to. [para. 8].

Kalra v. Canada (Minister of Citizenship and Immigration), [2003] F.T.R. Uned. 512; 2003 FC 941, refd to. [para. 8].

Qin v. Canada (Minister of Citizenship and Immigration) (2013), 427 F.T.R. 163; 2013 FC 147, refd to. [para. 8].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 11].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 12].

LeBon v. Canada (Minister of Public Safety and Emergency Preparedness) (2012), 433 N.R. 310; 2012 FCA 132, refd to. [para. 16].

United States of America v. Johnstone (2013), 333 B.C.A.C. 107; 571 W.A.C. 107; 2013 BCCA 2, refd to. [para. 16].

Canadian Property Holdings Inc. et al. v. Winnipeg City Assessor et al. (2012), 288 Man.R.(2d) 66; 564 W.A.C. 66; 2012 MBCA 118, refd to. [para. 16].

2127423 Manitoba Ltd. v. Unicity Taxi Ltd. et al. (2012), 280 Man.R.(2d) 292; 548 W.A.C. 292; 2012 MBCA 75, refd to. [para. 16].

Creelman v. Workers' Compensation Appeals Tribunal (N.S.) et al. (2012), 314 N.S.R.(2d) 245; 994 A.P.R. 245; 2012 NSCA 26, refd to. [para. 16].

Guild Contracting Specialties (2005) Inc. v. Occupational Health and Safety Appeal Panel Nova Scotia et al. (2012), 321 N.S.R.(2d) 95; 1018 A.P.R. 95; 2012 NSCA 94, refd to. [para. 16].

Khosa v. Canada (Minister of Citizenship and Immigration) (2009), 385 N.R. 206; 2009 SCC 12, refd to. [para. 17].

Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297; 265 N.R. 121 (F.C.A.), refd to. [para. 19].

Patel v. Canada (Minister of Citizenship and Immigration) (2002), 288 N.R. 48; 2002 FCA 55, refd to. [para. 19].

Li (J.) v. Canada (Minister of Citizenship and Immigration) (2001), 208 F.T.R. 294; 2001 FCT 791, refd to. [para. 19].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al. (2008), 283 Nfld. & P.E.I.R. 170; 873 A.P.R. 170; 2008 NLTD 200, refd to. [para. 28].

Talpur et al. v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 13; 2012 FC 25, refd to. [para. 31].

Hassani v. Canada (Minister of Citizenship and Immigration) (2006), 302 F.T.R. 39; 2006 FC 1283, refd to. [para. 31].

Nagulathas v. Canada (Minister of Citizenship and Immigration), [2012] F.T.R. Uned. 584; 2012 FC 1159, refd to. [para. 32].

Torres v. Canada (Minister of Citizenship and Immigration), [2011] F.T.R. Uned. 649; 2011 FC 818, refd to. [para. 32].

Rohm and Haas Canada Ltd. v. Anti-Dumping Tribunal (1978), 22 N.R. 175 (F.C.A.), refd to. [para. 33].

Buttar v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 729; 2006 FC 1281, refd to. [para. 33].

Counsel:

Hilete Stein and Kelly Goldthorpe, for the applicant;

Stephen Jarvis, for the respondent.

Solicitors of Record:

Green and Spiegel LLP, Toronto, Ontario, for the applicant;

William F. Pentney, Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application was heard at Toronto, Ontario, on February 27, 2013, before Gleason, J., of the Federal Court, who delivered the following reasons for judgment and judgment, dated April 8, 2013, at Ottawa, Ontario.