Tuesday, April 30, 2013

SERGIO R. KARAS QUOTED IN GLOBE AND MAIL FOREIGN WORKER PROGRAM CHANGES

Employers fear red-tape snarl from foreign worker rule changes - The Globe and Mail

April 30, 2013

Employers fear red-tape snarl from foreign worker rule changes

By TAVIA GRANT, RICHARD BLACKWELL AND BERTRAND MAROTTE

Some employers feel delays and difficulties bringing in workers and higher costs will hamper the ability to fill positions

The federal government's changes to its temporary worker program have sparked concern that red tape will lead to missed business opportunities.
The worry among some employers and immigration experts is that delays and difficulties bringing in workers along with higher costs will hamper the ability of firms to fill positions, particularly in areas where workers are hard to find such as remote locations in the Prairies. That in turn will stunt the ability for businesses to grow, which could eventually jeopardize Canadian jobs, they say.
"Simply asking employers to spend more time looking for non-existent workers in Canada before approving their use of temporary foreign workers is not only short-sighted, but could have disastrous economic consequences," said Michael Atkinson, president of the Canadian Construction Association in a release.
Still, not all employers are hitting the panic button. Some who use temporary foreign workers say the reforms will have little impact on their businesses.
The government reversed course on its expanded temporary worker program on Monday, announcing it will suspend the accelerated labour market opinion, which had sped up the process of bringing in workers, crack down on abuses, add a fee and end the 15-per-cent wage rule, which allowed employers to pay foreign workers less than the average under some circumstances.
The program had been expanded, with nearly half a million foreign workers coming to Canada in 2011, more than double levels of a decade earlier and is now being used in a range of sectors, from restaurants and hotels to factories and banks. Employers say its use is essential to fill positions Canadians can't or won't do, while some economists and labour groups say it has displaced some Canadian workers, hurt wage growth and dampened efforts to train workers.
Some immigration experts are concerned a one-size-fits-all will harm aspects of the program that were working well.
"They should use a scalpel and not a sledge hammer," said Sergio Karas, a Toronto-based immigration lawyer. Employers that were abusing the system should be penalized, and introducing a fee is fair. However, "it's a blunt instrument."
He's particularly concerned about the impact on multinational companies doing work in Canada, who rely on the expertise of foreign workers to do short-term projects. Without the ability to bring in those workers, some may decide it's not worth the hassle of bidding on contracts.
Not all employers who used the program are concerned. Charles Dutil, president of semitrailer manufacturer Manac Inc. in St-Georges, Que. says the changes won't make much difference to his operations.
The elimination of the measure allowing employers to pay foreign workers up to 15 per cent less than the prevailing wage doesn't change things for him because the 15 welders – mostly from Costa Rica – he employs earn the same pay as permanent workers doing the same work, said Mr. Dutil.
The foreign employees at Manac were hired to work the less desirable shifts on Friday evenings and weekends, he said.
Claude Breton, spokesman for National Bank of Canada said it sees "no impact" because they recruit via provincial agency Montreal International in IT area and pay the foreign people with the skills they can't find here the same as their regular employees. The bank has only hired about 20 over the past 5 years or so.
In Calgary, Howard Lutley, CEO of oil sands developer SilverWillow Energy Corp., said his company does not directly use the foreign worker program, but it is used by the outside construction contractors that fill positions on SilverWillow's projects.
For those contractors, the new rules will likely make recruiting a little more difficult "but I don't think it is a show stopper," Mr. Lutley said.
He said the oil sands industry already works very hard to hire and train Canadians whenever possible, and companies try to hire foreign workers only when there is a short-term skills gap.
Some professional groups welcomed the reforms. The Air Canada Pilots Association, which has long been worried about the impact of program on workers in its sector, said it applauds the changes.
"The temporary foreign worker program cannot and should not be used by airlines as an ongoing subsidy from government used to gain a commercial advantage over their competitors through the avoidance of training costs," said president Craig Blandford . "These operators must be required to make more extensive efforts to hire Canadians before they bring in foreign-licenced pilots."
The Canadian Federation of Independent Business said it will fight the changes. Smaller businesses could face "devastating consequences" from the government clampdown on the program, said Mr. Kelly.
"Small restaurants and hotels in rural Alberta and Saskatchewan are going to pay the price for problems that are at the large corporate level, and that seems deeply unfair," he said.
He's blunt about the impact stricter rules would bring: hindering the ability of some businesses to operate (especially those in Saskatchewan and Alberta, where worker shortages are most acute) that would ultimately cause some firms to close and axe Canadian jobs.
A survey this month found half of its members in Western Canada have had to ignore new business opportunities because they don't have the staff to take advantage of growth opportunities. He calls it a "short-sighted" and "very disappointing" move.
By his estimates, it already costs employers between $5,000 and $10,000 to bring in one temporary foreign worker (including return air fare). Rather than raise fees or make hiring a TFW more difficult, he suggests changes to make it easier for a temporary foreign worker to become a permanent resident.

Friday, April 19, 2013

FEDERAL COURT UPHOLDS SKILLED WORKER BACKLOG TERMINATION

Federal Court backs government in immigration suit

Federal Court backs government in immigration suit

OTTAWA - The rights of would-be immigrants were not trampled when the Conservative government closed their files and refunded their application fees to get rid of a massive backlog, the Federal Court has ruled.
The court's decision came out as the Tories pushed ahead with plans to reopen the federal skilled-worker program to a select group of in-demand occupations that includes engineers of all stripes, medical professionals and computer programmers.
Eight applicants from places as diverse as the Philippines, Syria, Pakistan and China — who in turn represented about 1,400 potential immigrants — went to court over the Conservatives' move, announced in last year's federal budget, to wipe out an existing backlog in the skilled-workers program by returning and refunding thousands of applications.
In a decision released Thursday, Federal Court Justice Donald Rennie said the move did not break any rules or violate the applicants' charter rights.
However, he sympathized with the plight of those who had their applications tossed.
"As noted earlier, the applicants have waited in the queue for many years only to find the entrance door closed," Rennie wrote in his decision.
"They see the termination of their hope for a new life in Canada to be an unfair, arbitrary and unnecessary measure."
The government stopped accepting new applications under the federal skilled-worker program last July in advance of rejigging the system.
On Thursday, Citizenship and Immigration Canada unveiled its list of the 24 occupations that qualify under the revamped federal skilled-worker program, which is set to re-open May 4.
The department also named four organizations that will assess the credentials of applicants who studied outside of Canada. These assessments are now mandatory and must be done before applications to the skilled-worker program are submitted.
Ottawa is also limiting the total number of applications to 5,000 — including caps in each of the 24 eligible occupations.
A different kind of foreign-worker flap has lately been a thorn in the side of Stephen Harper's Conservatives.
The opposition parties have raised questions about temporary foreign workers replacing Canadian workers in jobs for which there appears to be no labour shortage, such as cashiers at fast-food restaurants.
But the Conservatives say their rivals are hypocrites, and released several letters written by New Democrat and Liberal MPs — including a 2009 letter from newly minted Liberal Leader Justin Trudeau — seeking approval for temporary foreign-worker permits on behalf of their constituents.

Thursday, April 18, 2013

NEW FEDERAL SKILLED WORKER PROGRAM ANNOUNCED


Backgrounder — Information for Applicants to the New Federal Skilled Worker Program

The Federal Skilled Worker Program (FSWP) selects immigrants based on their ability to succeed economically in Canada. After meeting eligibility requirements, applicants are assessed against selection criteria, also known as the “points grid.” There are 100 points available to applicants, with points awarded for official language abilities, age, education, work experience, employment already arranged in Canada, and adaptability. The current pass mark is 67.
After a thorough review of relevant research, an extensive program evaluation, stakeholder and public consultations, research and study of best practices in other immigrant-receiving countries, improvements to the FSWP were announced in December 2012. These improvements will come into force on May 4, 2013.
A pause on the intake of most new FSWP applications has been in place since July 1, 2012, except for those with a qualifying job offer and those who applying under the PhD stream. The pause will be lifted and an eligible occupations stream re-established on May 4, 2013.
While Citizenship and Immigration Canada (CIC) will not be accepting applications for the 24 eligible occupations until May 4, 2013, there are some new requirements that applicants can start preparing for, such as language tests and foreign educational credential assessments. The complete application process, featuring the new selection criteria, will be available on CIC’s website by May 4, 2013.
All individuals who are considering applying on or after May 4 should be aware that if their application does not meet the new criteria, it will not be processed. A prospective applicant should ensure they meet at least one of the following requirements:
  • They have at least one year of continuous work experience in one of the 24 eligible occupations;
  • They have a qualifying offer of arranged employment (*note changes to the arranged employment process were previously published in this web notice); or
  • They are eligible to apply through the PhD stream.
If prospective applicants are confident that they meet at least one of the above requirements, they must also meet the minimum language threshold and obtain an educational credential assessment (if submitting a foreign educational credential).
Eligible Occupations List
The eligible occupations stream will have an overall cap of 5,000 new applications and sub-caps of 300 applications in each of the 24 occupations on the list.
Eligible occupations (with their corresponding 2011 National Occupation Classification code):
  • 0211 Engineering managers
  • 1112 Financial and investment analysts
  • 2113 Geoscientists and oceanographers
  • 2131 Civil engineers
  • 2132 Mechanical engineers
  • 2134 Chemical engineers
  • 2143 Mining engineers
  • 2144 Geological engineers
  • 2145 Petroleum engineers
  • 2146 Aerospace engineers
  • 2147 Computer engineers (except software engineers/designers)
  • 2154 Land surveyors
  • 2174 Computer programmers and interactive media developers
  • 2243 Industrial instrument technicians and mechanics
  • 2263 Inspectors in public and environmental health and occupational health and safety
  • 3141 Audiologists and speech-language pathologists
  • 3142 Physiotherapists
  • 3143 Occupational Therapists
  • 3211 Medical laboratory technologists
  • 3212 Medical laboratory technicians and pathologists' assistants
  • 3214 Respiratory therapists, clinical perfusionists and cardiopulmonary technologists
  • 3215 Medical radiation technologists
  • 3216 Medical sonographers
  • 3217 Cardiology technicians and electrophysiological diagnostic technologists, n.e.c. (not elsewhere classified)
Minimum Language Threshold
All prospective applicants to the FSWP should first determine whether they meet the new minimum language threshold: Canadian Language Benchmark (CLB) 7 or Niveaux de compétence linguistique canadiens (NCLC) 7 in all four skills (listening, speaking, reading, and writing). To prove language proficiency, a prospective applicant must take a third-party language test from an organization designated by the Minister and submit their test report along with their application to CIC.
Language test results will be accepted by CIC for two years from the date that they were issued by the designated organization.
CIC-designated language testing organizations include: Canadian English Language Proficiency Index Program (CELPIP), International English Language Testing System (IELTS), and Test d’évaluation de français (TEF).
Third-party language tests are scored differently by each of the three organizations. Here are the scores on each of the tests that correspond to Canadian Language Benchmark (CLB) 7 or Niveaux de compétence linguistique canadiens (NCLC) 7 or higher:
English
An FSWP applicant must score at least 4L on the CELPIP-General test in each of the four skills to meet the minimum language threshold.
A score of 4L on the CELPIP-General test corresponds to CLB 7. A score of 4H corresponds to CLB 8, and a score of 5 or higher corresponds to CLB 9 or higher.
An FSWP applicant must score at least 6.0 on the IELTS General Training test in each of the four skills to meet the minimum language threshold of CLB 7.
French
An FSWP applicant must score at least 206 in reading, 248 in listening, and 309 in both speaking and writing on the TEF to meet the minimum language threshold of NCLC 7.
Arranged Employment
Previously, employers have applied for an Arranged Employment Opinion (AEO) from Human Resources Skills Development Canada when they wished to hire a foreign national on a permanent, full-time basis and support their employee’s application for permanent residence through the FSWP.
Starting on May 4, 2013, CIC will no longer accept AEOs in support of an FSWP application. Instead, most offers of arranged employment will require a Labour Market Opinion.
Educational Credential Assessment (ECA)
Another important change that takes effect on May 4, 2013, is the introduction of the educational credential assessment (ECA). Prospective applicants may start the process of getting an ECA before May 4 if they are planning to submit a foreign educational credential. However, applicants should keep in mind the other program eligibility requirements listed above, i.e. whether they have a qualifying offer of arranged employment or are applying under the PhD stream or eligible occupations stream; and if they meet the minimum language threshold through a designated third-party test. Applicants who have Canadian educational credentials do not need to get an ECA, unless they are also submitting a foreign educational credential in support of their application.
The ECA process will help determine if the foreign educational credential is authentic and equivalent to a completed credential in Canada. For prospective applicants, the ECA can provide a realistic understanding of how their foreign educational credentials are likely to be recognized in Canada.
As of April 17, 2013, four organizations have been designated by the Minister to provide ECA reports for purposes of immigrating to Canada under the FSWP. Additional organizations may be designated by CIC in the future. The designated organizations are:
The Medical Council of Canada has been designated only for those principal applicants who intend to apply with specialist physician (2011 National Occupation Classification [NOC] code 3111) or general practitioner/family physician (2011 NOC code 3112) as their primary occupation in their FSWP application. Neither NOC code 3111 nor 3112 is on the eligible occupations list that takes effect on May 4, so this will only affect those applying under the PhD stream or with a qualifying job offer based on those NOC codes.
Applicants should contact the designated organizations directly for further information on their documentation requirements, processing times and fees.
CIC will only accept ECA reports issued after the date the organization was designated by CIC to provide ECA reports for immigration purposes (i.e. April 17, 2013). An ECA report will be valid for immigration purposes for 5 years from the date that it was issued by the designated organization.

OPPOSITION ASKED FOR FOREIGN WORKERS, LETTERS SHOW

Opposition criticism of foreign workers program hypocritical: Tories | canada.com

Friday, April 12, 2013

RESIDENCY INVESTIGATION IN B.C. CONTINUES

B.C. firm faces fraud charges

 

Company accused of making fake jobs for immigrants

 
 

A Vancouver immigration consulting firm is alleged to have created fake jobs for foreigners to help them gain permanent resident status, a B.C. Supreme Court ruling reveals.
The Canada Border Service Agency executed search warrants in October 2012 on the Richmond home of Xun Wang, his Vancouver-based business called New Can Consultants and his Richmond-based business, called Wellong International Investments, Ltd.
The Canada Revenue Agency then went to court seeking the documents seized last year by the CBSA.
The April 8 court decision reveals that between Jan. 15, 2007, and Aug. 14, 2012, Wang, New Can and Wellong are alleged to have improperly provided immigration consulting services.
"These allegations involve, among other things, misrepresentations as to the employment status of New Can and Wellong clients so they could maintain their residency status in Canada," the court decision states.
Ninety boxes of documents and 18 computers were seized after investigators with the CBSA executed search warrants under the Criminal Code and for alleged violations of the Immigration and Refugee Protection Act, an investigator with the Canada Revenue Agency told Judge A.F. Cullen.
She told Cullen that one of Wang's corporations would "hire" a client so the client would appear to be an employee of a Canadian corporation working outside of Canada.
The client would allegedly pay Wang or his corporations and this money would then be used to pay the client's "salary."
During that time period, Wang reported taxable income averaging $14,337 and between 1997 and 2011 the T4 slips issued to employees of New Can and Wellong showed salaries to employees in the $15,000 to $30,000 range: "low enough to enable the taxpayer to receive a refund of most or all of the taxes remitted by the corporate employer."
Cullen granted Canada Revenue's application for access to the material.
 

Thursday, April 11, 2013

VISA OFFICER ERRED IN CONSIDERING CONSTRUCTION MANAGER OCCUPATION

A very interesting case that highlights the nuance's of considering occupations in the NOC.


Mansour v. Canada (Minister of Citizenship and Immigration)
 
Between Emad Ageeb Ekladious Mansour, Engy Fikry Boles Salamon, Sandy
Emad Ageeb Ekladious Mansour, Jolly Emad Ageeb Ekladious
Mansour, Applicants, and
The Minister of Citizenship and Immigration, Respondent

[2013] F.C.J. No. 365

2013 FC 343

Docket IMM-4492-12

 Federal Court
Toronto, Ontario

Strickland J.


Heard: March 20, 2013.
Judgment: April 5, 2013.

(35 paras.)



REASONS FOR JUDGMENT AND JUDGMENT

1     STRICKLAND J.:-- This is an application for judicial review commenced pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA). It seeks review of a decision made by a visa officer (Visa Officer) refusing an application for permanent residence in Canada as a federal skilled worker made pursuant to subsection 12(2) of the IRPA and section 75 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (IRP Regulations).

Facts

2     The Applicant and his family, the co-applicants, are Egyptian citizens. The Applicant holds a Bachelor's Degree in Civil Engineering and a Diploma in Metallic Structures Engineering, both from Cairo University. He also completed an American Society of Civil Engineering one year Construction Project Management - Certified Program offered in Cairo.

3     In October 2010, the Applicant applied for permanent residence in Canada under the skilled worker category as a Construction Manager, National Occupational Classification Code: 0711 (NOC 0711). On December 13, 2011, the Canadian Embassy in Cairo requested updated information which the Applicant submitted on December 27, 2011. On February 29, 2012, the Applicant received a letter from the Visa Officer refusing his application on the basis that he did not provide satisfactory evidence that he had performed the actions described in the lead statement for the subject occupation as set out in NOC 0711 (Decision).

4     Upon review of the Decision, the Applicant formed the opinion that the Visa Officer did not consider an employment letter that he had included in his application. He submits that he resubmitted the letter on April 24, 2012 and, having received no response, did so again on May 9, 2012. As he still received no response, he commenced this application for judicial review.

Decision under Review

5     The Decision states that the Visa Officer had completed his assessment of the Applicant's application for permanent residence in Canada as a federal skilled worker and determined that the Applicant is not eligible for processing in the category of NOC 0711, Construction Manager. The Visa Officer states that the Applicant did not provide satisfactory evidence that he had performed the actions described in the lead statement for the occupation as set out in the occupational descriptions. He was therefore not satisfied that the Applicant is a Construction Manager NOC 0711.

6     Further, as the Applicant did not provide satisfactory evidence that he had the necessary work experience, he did not meet the requirements of the Ministerial Instructions. These were published in the Canada Gazette on November 28, 2008 and specify that only certain applicants, including those who have work experience in certain listed occupations, are eligible to be processed in the federal skilled worker class.

7     Computer Assisted Immigration Processing System notes (CAIPS Notes) accompany the Decision. The CAIPS Notes original file assessment entry on August 9, 2010 by the service delivery agent states the following:

 

·        Assessed Eligible NOC 0711. Duties performed by PA correspond to Lead Statement and/or Main Duties for this NOC. 

 

·        PA has a minimum of one year of work experience within the past 10 years in eligible NOC Code 0711. 

 

·        PA is therefore recommended to the visa office for a final determination of eligibility for processing 

 

·        Letter emailed to address(es) above requesting PA to submit full application to CAIRO within 120 days. 

This was followed by a February 27, 2012 entry, presumably by the Visa Officer:

 

·        PI IS A GRADUATE ENGINEER. ALL PROVIDED DOCUMENTAION INDICATE THAT HE IS REGISTERED AND HAS WORKED AS AN ENGINEER. PI HAS NOT PRESENTED ANY LETTERS FROM HIS EMPLOYERS TO SHOW THAT HE HAS WORKED AS A CONSTRUCTION MANAGER. 

 

·        I AM NOT SATISFIED THAT PI MEETS THE REQUIREMENTS OF NOC 0711. ACCORDINGLY TO AVAILABLE INFORMATION, PI DOES NOT MEET REQUIREMENTS OF NOC 0711 NO OTHER WORK EXPERIENCE OR OCCUPATIONS PRESENTED THAT COULD BE CONSIDERED AS ELIGIBLE. THEREFORE PI IS INELIGIBLE FOR PROCESSING UNDER THIS PROGRAM. 

Issues

8     The Applicant submits that there are two issues for consideration in the present application, did the Visa Officer err when he concluded that the Applicant did not meet the requirements of Construction Manager NOC 0711, and, did the Visa Officer breach the duty of fairness by failing to provide the Applicant with an opportunity to respond to the Visa Officer's concerns?

9     I would phrase the issues as follows:

 

·        a) 

Was the Decision reasonable? 

·        b) 

Did the Visa Officer breach the duty of fairness? 

Standard of Review

10     A standard of review analysis need not be conducted in every instance if the jurisprudence already establishes which standard is to apply (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 [Dunsmuir]. Apart from any question of law or natural justice, when a decision is factual in nature and deference is owed to the decision maker, the standard of review for decisions concerning permanent residence under the federal skilled worker class is reasonableness (Tabanag v Canada (Minister of Citizenship and Immigration), 2011 FC 1293 [Tabanag] at paras 11-12).

11     Thus, the first issue in this case is reviewed on a standard of reasonableness. Reasonableness is concerned with the existence of justification, transparency and intelligibility, and with whether the decision falls within a range of possible, acceptable outcomes (Dunsmuir, above, at para 47; Brown v Canada (Minister of Citizenship and Immigration), 2012 FC 1305 at para 16; Kaur Barm v Canada (Minister of Citizenship and Immigration), 2008 FC 893 at para 12).

12     As breach of a duty of fairness is an error in law, the second issue is reviewable on the standard of correctness (Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 SCR 708 at para 22 [Newfoundland and Labrador Nurses' Union]).

Arguments of the Parties

Applicant's Submissions

13     The Applicant submits that the Visa Officer erred in finding that the Applicant does not meet the requirements for Construction Manager NOC 0711. The Applicant submitted documentation which confirms that he had worked as a construction manager for seven years with Orascom Construction Industries (Orascom). The Applicant submits that the Visa Officer either misunderstood or ignored the letter from Orascom; either event being a reviewable error. The Applicant submits that the Visa Officer's reasons fail to explain the basis for his conclusion that the Applicant did not meet the requirements and that the Decision is unreasonable.

14     In addition, the Applicant submits that the Visa Officer breached the duty of fairness because he failed to provide the Applicant with an opportunity to respond to the Visa Officer's concern that he had not been employed as a construction manager. The Applicant relies on Gedeon v Canada (Minister of Citizenship and Immigration), 2004 FC 1245, for the proposition that a visa officer commits a reviewable error when he or she does not provide reasons for rejecting evidence of an applicant's work experience and does not provide an applicant with an opportunity to address those concerns.

Respondent's Submissions

15     In its written submissions, the Respondent states that the Applicant failed to discharge his onus to demonstrate that during the relevant period of employment he performed the actions described in the lead statement for the occupation of Construction Manager as set out in the occupational description for NOC 0711 (IRP Regulations, above, subsection 75(2)(b)). As a result of this failure, the Visa Officer is obliged to refuse the application without further assessment (IRP Regulations, above, subsection 75(3)). The Respondent argues that the Applicant did not provide sufficient evidence that he had performed the actions in the lead statement on NOC 0711 and, in particular, did not provide any evidence to demonstrate that he had worked as a construction manager.

16     The Respondent also argued in its written submissions that it was reasonable for the Visa Officer to only make a determination that the Applicant had not performed the actions of this occupation pursuant to subsection 75(2)(b) of the IRP Regulations. He did not make a determination under subsection 75(2)(c) of the IRP Regulations regarding the main duties for this occupation which the Applicant argues that he performed. Furthermore, visa officers do not have a duty to contact an applicant to seek clarification when an applicant files insufficient or ambiguous evidence (Lam v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1239 at paras 3- 4 (TD); Kaur v Canada, 2010 FC 442 at para 10-11 [Kaur]).

17     However, when appearing before me, the Respondent acknowledged that the certified tribunal record (CTR) did contain a copy of the letter from Orascom as part of the Applicant's application seeking permanent residence status as a federal skilled worker. This had been overlooked when the Respondent's written submissions were prepared. Accordingly, the Respondent made no submissions when appearing before me.

Analysis

18     The IRP Regulations state as follows regarding skilled workers:

 

·        Class

 

·        75. (1) For the purposes of subsection 12(2) of the Act, the federal skilled worker class is hereby prescribed as a class of persons who are skilled workers and who may become permanent residents on the basis of their ability to become economically established in Canada and who intend to reside in a province other than the Province of Quebec. 

 

·        Skilled workers

 

·        (2) 

A foreign national is a skilled worker if 

 

·        (a) within the 10 years preceding the date of their application for a permanent resident visa, they have at least one year of continuous full-time employment experience, as described in subsection 80(7), or the equivalent in continuous part-time employment in one or more occupations, other than a restricted occupation, that are listed in Skill Type 0 Management Occupations or Skill Level A or B of the National Occupational Classification matrix; 

 

·        (b) during that period of employment they performed the actions described in the lead statement for the occupation as set out in the occupational descriptions of the National Occupational Classification; and 

 

·        (c) during that period of employment they performed a substantial number of the main duties of the occupation as set out in the occupational descriptions of the National Occupational Classification, including all of the essential duties. 

* * *

 

·        Catégorie

 

·        75. (1) Pour l'application du paragraphe 12(2) de la Loi, la catégorie des travailleurs qualifiés (fédéral) est une catégorie réglementaire de personnes qui peuvent devenir résidents permanents du fait de leur capacité à réussir leur établissement économique au Canada, qui sont des travailleurs qualifiés et qui cherchent à s'établir dans une province autre que le Québec. 

 

·        Qualité

 

·        (2) 

Est un travailleur qualifié l'étranger qui satisfait aux exigences suivantes : 

 

·        a) il a accumulé au moins une année continue d'expérience de travail à temps plein au sens du paragraphe 80(7), ou l'équivalent s'il travaille à temps partiel de façon continue, au cours des dix années qui ont précédé la date de présentation de la demande de visa de résident permanent, dans au moins une des professions appartenant aux genre de compétence 0 Gestion ou niveaux de compétences A ou B de la matrice de la Classification nationale des professions -- exception faite des professions d'accès limité; 

 

·        b) pendant cette période d'emploi, il a accompli l'ensemble des tâches figurant dans l'énoncé principal établi pour la profession dans les descriptions des professions de cette classification; 

 

·        c) pendant cette période d'emploi, il a exercé une partie appréciable des fonctions principales de la profession figurant dans les descriptions des professions de cette classification, notamment toutes les fonctions essentielles. 

19     The onus was on the Applicant to establish that he had performed the actions described in the lead statement as set out in NOC 0711 and a substantial number of the main duties of this occupation (Mihura Torres v Canada (Minister of Citizenship and Immigration), 2011 FC 818 at para 37; Kaur, above, at para 30).

20     The lead statement, or job description, for NOC 0711 is found on the Human Resources and Skills Development Canada website and it states the following:

 

·        0711 Construction managers

 

·        Construction managers plan, organize, direct, control and evaluate the activities of a construction company or a construction department within a company, under the direction of a general manager or other senior manager. They are employed by residential, commercial and industrial construction companies and by construction departments of companies outside the construction industry. 

Example Titles

commercial construction manager

construction manager

construction superintendent

general contractor

housing construction manager

industrial construction manager

pipeline construction manager

project manager, construction

residential construction manager

Main duties

 

·        Construction managers perform some or all of the following duties: 

 

·        * 

Plan, organize, direct, control and evaluate construction projects from start to finish according to schedule, specifications and budget 

·        * 

Prepare and submit construction project budget estimates 

·        * 

Plan and prepare construction schedules and milestones and monitor progress against established schedules 

·        * 

Prepare contracts and negotiate revisions, changes and additions to contractual agreements with architects, consultants, clients, suppliers and subcontractors 

·        * 

Develop and implement quality control programs 

·        * 

Represent company on matters such as business services and union contracts negotiation 

·        * 

Prepare progress reports and issue progress schedules to clients 

·        * 

Direct the purchase of building materials and land acquisitions 

·        * 

Hire and supervise the activities of subcontractors and subordinate staff. 

21     It should be noted that the Respondent originally argued that the Applicant did not provide "any" evidence to demonstrate that he has worked as a Construction Manager and referred to the CAIPS Notes entry which states that the Applicant "has not presented any letters from his employers to show that he has worked as a construction manager".

22     On an application for judicial review, the courts "should not substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome" (Newfoundland and Labrador Nurses' Union, above at para 15).

23     Having reviewed the record that was before the Visa Officer, it appears to me that there was evidence that the Applicant was employed as a construction manager in Egypt.

24     In his visa application package, the Applicant provided a Certificate of Experience and Recommendation from his employer of more than a decade, Orascom. This letter indicates that the Applicant was employed as a full time civil engineer from October 1, 1995 to December 31, 2002, and then as a construction manager from January 1, 2003 to March 30, 2010.

25     The letter includes his job description and I have underlined those areas that overlap with the main duties of Construction Managers as set out in NOC 0711.

 

·        * 

Supervising civil work at site such as surveying, earth work, levelling, and constructing concrete buildings and foundations 

·        * 

Erecting steel structures at site 

·        * 

Adjusting and solving problems of networks at site 

·        * 

Designing and preparing of shop drawing of steel structures using different codes 

·        * 

Designing concrete structures 

·        * 

Organizing, planning, and evaluating construction projects

·        * 

Preparing construction schedules

·        * 

Representing the company on business services and union contracts negotiation

·        * 

Preparing contracts, changing orders, and negotiating revisions with consultants, clients, and subcontractors

·        * 

Preparing progress reports

·        * 

Hiring and supervising activities of subcontractors and staff

26     As the foregoing indicates, there is a significant overlap between what the Applicant did in his position as a construction manager and what is required of a Construction Manager by NOC 0711.

27     While the Visa Officer need not mention every piece of evidence in his Decision, the Federal Court has stated that, "the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact 'without regard to the evidence'" Cepeda-Gutierrez v Canada, [1998] 157 FTR 35 at para 17 citing Bains v Canada (Minister of Employment and Immigration), [1993] 63 FTR 312.)

28     The letter from the Applicant's employer goes right to the heart of the matter. It states that the Applicant worked as a civil engineer, then as a construction manager from January 1, 2003 to March 30, 2010 and lists his duties in those positions. Those duties clearly overlap with the Construction Manager NOC 0711 duties, yet the Visa Officer did not mention the letter in his reasons and denied the application on the basis that the Applicant "did not provide satisfactory evidence that [he] performed the actions described in the lead statement for the occupation, as set out in the occupational descriptions of the NOC."

29     The Respondent originally argued that this overlap pertains only to the main duties and that the Visa Officer determined that the Applicant failed to establish that he met the requirements of the lead statement of NOC 0711. The lead statement is, in effect, a job description. It generally describes the duties of construction managers.

30     I have set out the lead statement below and have underlined the "actions" which are common to the Applicant's role as a construction manager as described in the letter from Orascom:

 

·        Construction managers plan, organize, direct, contro l and evaluate the activities of a construction company or a construction department within a company, under the direction of a general manager or other senior manager. They are employed by residential, commercial and industrial construction companies and by construction departments of companies outside the construction industry. 

31     In my view, the Respondent's original position was one of form and not of substance. The letter from Orascom Construction Industries clearly establishes that the Applicant was employed by a construction company, as a construction manager, and that his job description included planning, organizing, controlling and directing the activities of that company. It addresses the requirements of the lead statement of NOC 0711.

32     In Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR 339 at para 72, the Supreme Court of Canada stated the following while addressing a judicial review commenced pursuant to section 18.1 of the Federal Courts Act, RSC, 1985, c F7:

 

·        [72] The language of s. 18.1(4)(d) makes clear that findings of fact are to be reviewed on a highly deferential standard. Courts are only to interfere with a decision based on erroneous findings of fact where the federal board, commission or other tribunal's factual finding was 'made in a perverse or capricious manner or without regard for the material before it'. [...] 

33     In this case, however, I am satisfied that the Visa Officer ignored or overlooked critical evidence on the record before him, the Orascom letter, pertaining to the Applicant's employment as a construction manager. Accordingly, his finding of fact as to the Applicant's employment experience was made in a perverse or capricious manner. The Decision was therefore, not justified, transparent and intelligible, nor did it fall within the range of possible, acceptable outcomes.

34     As this finding alone is sufficient to allow the appeal, it is not necessary to address the issue of the breach of the duty of fairness.

Conclusion

35     The Application for judicial review is allowed and the matter is returned for reconsideration by a different visa officer.

JUDGMENT

THIS COURT'S JUDGMENT is that this application for judicial review is allowed and the matter is returned for reconsideration by a different visa officer. No question of general importance for certification has been proposed and none arises.

STRICKLAND J.
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