2022 FC, 2022 FC 1588

Date: 20221121 Docket: IMM-5950-21 Citation: 2022 FC 1588 St. John’s, Newfoundland and Labrador, November 21, 2022 PRESENT: The Honourable Madam Justice Heneghan BETWEEN: JUNGWOO SHIN Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent REASONS AND JUDGMENT [ 1 ] Mr.

Jungwoo Shin (the “Applicant”) seeks judicial review of the decision of an immigration officer (the “Officer”) who refused his application for a permanent resident visa as a member of the Canadian Experience Class (“CEC”), pursuant to subsection 87.1(2) of the Immigration and Refugee Protection Regulations , SOR/2002-227 (the “ Regulations ”). [ 2 ] The Applicant is a citizen of South Korea. He arrived in Canada upon a study permit in 2006. He completed his secondary education in Canada between 2006 and 2009.

After a two-year period in South Korea for compulsory military service, he returned to Canada upon another study permit and pursued studies at the University of Toronto. He earned an undergraduate degree and a Master’s degree between 2016 and 2021. [ 3 ] After completing the Master’s degree, the Applicant was granted a Post Graduate Work Permit that was valid until October 2020. [ 4 ] The Applicant obtained two part-time employments between September 2017 and April 2019.

In April 2019, he began a full-time position as a Business Development Specialist with the Korea Trade Investment Promotion Agency, Toronto (“KOTRA”), the Commercial

Section of the Consulate General of the Republic of Korea. [ 5 ] Between 2018 and 2020, the Applicant submitted three applications for permanent residence as a member of the CEC. The first refusal was based upon his error in selecting the correct code in the National Occupational Classification (the “NOC”). The second refusal was based upon an officer’s finding that he had not performed the duties consistent with one of his part-time jobs.

The third refusal was based upon the failure to provide a letter of employment from KOTRA which was due to delays related to the COVID-19 pandemic. [ 6 ] The Applicant applied for permanent residence in November 2020, upon the basis of his employment with KOTRA as a Business Development Specialist, matching to NOC 4163 – Business development officers and marketing researchers and consultants. [ 7 ] The Officer refused the application on the grounds that the Applicant did not perform the duties set out in the NOC 4163.

In particular, the Officer found that the Applicant did not meet the requirements set out in paragraphs 87.1(2) (

b) and (

c) of the Regulations , as follows: Member of the class Qualité

(2) A foreign national is a member of the Canadian experience class if

(2) Fait

partie de la catégorie de l’expérience canadienne l’étranger qui satisfait aux exigences suivantes : … […]

(

b) during thatperiod ofemployment theyperformed theactions described inthe lead statementfor the occupation asset out in theoccupationaldescriptions of theNationalOccupationalClassification;

b) pendant cettepériode d’emploi, ila accomplil’ensemble destâches figurant dansl’énoncé principalétabli pour laprofession dans lesdescriptions desprofessions de laClassificationnationale desprofessions; (

c) during thatperiod ofemployment theyperformed asubstantial numberof the main duties ofthe occupation as setout in theoccupationaldescriptions of theNationalOccupationalClassification,including all of theessential duties;

c) pendant cettepériode d’emploi, ila exercé une partieappréciable desfonctions principalesde la professionfigurant dans lesdescriptions desprofessions de laClassificationnationale desprofessions,notamment toutes lesfonctionsessentielles; … […] [8] The Applicant now argues that the Officer made a credibility finding without giving him the opportunity to respond to any concerns.He submits that this is a breach of procedural fairness. [9] The Applicant also argues that the decision is unreasonable on the grounds that the Officer did not engage with the evidenceprovided. [10] The Minister of Citizenship and Immigration (the “Respondent”) submits that there was no breach of procedural fairness and thedecision is reasonable. [11] Issues of procedural fairness are reviewable on the standard of correctness; see the decision in Canada (Minister of Citizenship andImmigration) v.

Khosa, 2009 SCC 12 , [2009] 1 S.C.R. 339 (S.C.C.). [12] The merits of the decision are reviewable on the standard of reasonableness, following the decision of the Supreme Court of Canadain Canada (Minister of Citizenship and Immigration) v.

Vavilov, 2019 SCC 65 , [2019] 4 S.C.R. 653. [13] In considering reasonableness, the Court is to ask if the decision under review ""bears the hallmarks of reasonableness —justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bearon that decision""; see Vavilov, supra at paragraph 99. [14] It is not necessary for me to address the arguments about procedural fairness since I am not persuaded that the decision meets theapplicable standard of reasonableness. [15] The Applicant submitted evidence about his duties in his employment at KOTRA.

The Officer made a general statement, expressingdissatisfaction that the Applicant had performed […] the actions described in the lead statement for the occupation as set out in the occupational descriptions of the NOC4163, as well as a substantial number of the main duties, including all essential duties, as set out in the NOC 4163. [16] In my opinion, this is a conclusion with no explanation, contrary to the teachings in Vavilov, supra at paragraph 102. The decisiondoes not disclose a line of analysis.

Without analysis, the decision cannot be reasonable. [17] In the result, the application for judicial review will be allowed, the decision will be set aside and the matter remitted to a differentofficer for redetermination. There is no question for certification. JUDGMENT in IMM-5950-21 THIS COURT’S JUDGMENT is that the application for judicial review is allowed, the decision is set aside and the matter is remittedto a different officer for redetermination. There is no question for certification.

"E. Heneghan" Judge FEDERAL COURT SOLICITORS OF RECORD Docket: IMM-5950-21 STYLE OF CAUSE: JUNGWOO SHIN v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: HELD BY WAY OF VIDEOCONFERENCE BETWEEN ST. JOHN’S, NEWFOUNDLAND AND LABRADOR and toronto, ontario DATE OF HEARING: november 1, 2022 REASONS AND JUDGMENT: HENEGHAN J. DATED: November 21, 2022 APPEARANCES : Jungwoo Shin For The Applicant (ON HIS OWN BEHALF) Stephen Jarvis For The Respondent SOLICITORS OF RECORD : Attorney General of Canada Toronto, Ontario For The Respondent