The courts are slowly dealing with cases under the new Canadian Experience Class ( CEC) which was launched in 2008. In this case, the Federal Court reviewed the refusal of an application on the grounds that the applicant failed to prove that he performed a substantial number of the duties in the occupation and that he had the requisite work experience.
A note to all applicants: many people feel tempted to review the duties of the occupation listed under the National Occupational Classification ( NOC) and reproduce them verbatim in employer letters supporting their application. That is transparent to the visa officers and usually prompts further inquiry and eventually refusals. Do not do it. Be honest. Describe your occupation realistically and accurately. Do not embellish your employer letters.
Anabtawi v. Canada (Minister of Citizenship and
Immigration)
Between
Tarek Anabtawi, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2012] F.C.J. No. 923
2012 FC 856
Docket IMM-4242-11
Federal Court
Toronto, Ontario
O'Keefe J.
Heard: January 17, 2012.
Judgment: July 5, 2012.
(50 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 O'KEEFE J.:-- This is an application pursuant
to subsection 72(1) of the Immigration and Refugee
Protection Act, SC 2001, c 27 (the Act) for judicial
review of a decision of an officer of the visa section of the Canadian
Consulate in Detroit, USA (the officer), dated June 7, 2011, wherein the
applicant was denied permanent residence under the Canadian experience class of
subsection 12(2) of the Act and subsection 87.1 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the
Regulations). This decision was based on the officer's finding that the
applicant did not meet the statutory skilled work experience requirement.
2 The
applicant requests that the officer's decision be quashed and the matter be
remitted for redetermination by a different officer.
Background
3 The
applicant, Tarek Anabtawi, is a citizen of Jordan.
4 The
applicant entered Canada in 2004 as a student. He completed a Bachelor of Arts
degree at the University of Toronto in June 2008. After graduation, the
applicant obtained a post-graduate work permit, valid between January 2009 and
March 2010. During that time, he was employed with Prime Force Inc. (Prime
Force), a recruitment company located in Mississauga, Ontario.
5 In
May 2010, the applicant submitted an application for permanent residence under
the Canadian experience class of skilled workers. This class was introduced in
2008 for temporary foreign workers or graduates with Canadian work experience.
Applications for permanent residence under this class are assessed based on
official Canadian language proficiency, Canadian skilled work experience and
Canadian educational credentials (section 87.1 of the Regulations). Further
details on this program are provided in Citizenship and Immigration Canada's
Overseas Processing Manual, OP-25.
6 In
his application, the applicant included an employment letter from Mr. Fadek
Zighmi, the president of Prime Force. This letter indicated that the applicant
had worked as a full time human resources officer from January 2009 through
March 2010 and listed the applicant's main duties. The applicant stated that
his work duties corresponded to those listed for human resources officers,
referred to as "Personnel and Recruitment Officer", under National
Occupation Classification (NOC) 1223.
7 On
March 19, 2011, the officer reviewing the application called Mr. Zighmi to
confirm the details of the applicant's employment. Mr. Zighmi's description of
the applicant's role at Prime Force differed significantly from that provided
in his employment letter. For example, according to Mr. Zighmi, the applicant
was a customer service representative and his duties included answering
telephones, receiving applications from candidates and opening files. In
addition, rather than forty employees, there were only three employees working
in Prime Force's office.
8 Based
on these inconsistencies, the officer emailed the applicant on March 29, 2011
and notified him that there was a concern that his main duties at Prime Force
were not those of a human resources officer. The applicant was given 45 days to
provide additional information and/or documentation to disabuse the officer of
his concerns.
9 The
applicant sent an email response to the officer on May 12, 2011. The applicant
explained the different tasks he undertook while working for Prime Force which
he believed fulfilled the duties of a human resources officer. He also
explained that while only three employees worked in Prime Force's office, the
company sent more than forty temporary workers to other companies. The
applicant stated that both he and his employer would be willing to submit an
affidavit attesting to these facts.
Officer's Decision
10 In
a letter dated June 7, 2011, the officer denied the applicant's application.
The Global Case Management System (GCMS) notes that form part of the officer's
decision explain the reasons for the denial.
11 The
officer was not satisfied that the applicant met the skilled work experience
requirement. The officer explained that he reviewed the documentation submitted
with the application, including the applicant's reply from May 12, 2011.
However, based on these submissions and the officer's verification with the applicant's
employer (Mr. Zighmi), the officer was not satisfied that the applicant
performed all of the essential duties and a substantial number of the main
duties of a human resources officer, as described under NOC 1223. As such, the
officer was not satisfied that the applicant met the statutory requirements and
therefore refused the applicant's application.
Issues
12 The
applicant submits the following points at issue:
· 1.
What is the standard of
review?
· 2.
Did the officer err by
importing irrelevant criteria when assessing work experience?
· 3.
Was the officer's
decision that the applicant did not have relevant work experience
unreasonable?
· 4.
Are the reasons for
decision deficient?
· 5.
Should costs be awarded
to the applicant?
13 I
would rephrase the issues as follows:
· 1.
What is the appropriate
standard of review?
· 2.
Did the officer apply
the correct legal test for assessing the applicant's work experience?
· 3.
Did the officer err in
assessing the applicant's work experience?
· 4.
Did the officer deny
the applicant procedural fairness?
Applicant's Written Submissions
14 The
applicant submits that the officer's finding that the applicant did not have
the required work experience is reviewable on a reasonableness standard.
Conversely, the question of whether the officer imported irrelevant criteria
when assessing work experience is reviewable on a correctness standard.
Similarly, the adequacy of reasons is reviewable on a correctness standard.
15 The
applicant submits that the Regulations only require applicants to have full
time or full time equivalent work experience in an occupation defined as
skilled under the NOC. The Regulations do not state how work experience should
otherwise be assessed. The applicant submits that the officer erred by
importing criteria listed in the Regulations for the federal skilled worker
class when assessing the applicant's work experience under the Canadian
experience class. Specifically, the officer required the applicant to have
"performed all of the essential duties and a substantial number of main
duties". However, this is a requirement under subsection 80(3) of the
Regulations which applies to the federal skilled worker class; a different type
of application pertaining to a different subject matter. The applicant submits
that as this rigid criteria was not included under section 87.1 of the
Regulations, it must be presumed that Parliament intended that a more lenient
or flexible approach be taken towards the Canadian experience class as compared
to the federal skilled worker class. The officer therefore erred in importing
this criterion from the federal skilled worker class and applying it to his
assessment of the applicant's Canadian experience class application.
16 In
the alternative, the applicant submits that the officer erred in not
appreciating that the applicant did meet the criteria applied to the assessment
of his application. A comparison of the duties set out in the applicant's
submissions (including his employment letter and subsequent email response) and
those listed under NOC 1223 shows that the applicant met all of the duties set
out in the main statement for the occupation and met a substantial number of the
other main duties. The officer did not provide any explanation as to why the
evidence submitted by the applicant did not satisfy the officer's concerns.
17 Finally,
the applicant submits that the officer did not provide any reasoning or
explanation in the decision for his findings. In addition, if the officer
disbelieved the applicant's submissions on his work experience, he questioned
the applicant's credibility in so doing. The applicant submits that it is trite
law that the officer should then have provided the applicant with an
opportunity to respond to his concerns. Although the officer provided the
applicant with an opportunity to respond to his concerns by email, he erred in
law by not explaining to the applicant why he disbelieved him or granting him
an interview and providing him with a proper opportunity to disabuse him of his
concerns.
18 The
applicant submits that the officer's errors in this case were egregious and
justify the awarding of costs.
Respondent's Written Submissions
19 The
respondent agrees with the applicant that the officer's decision on whether the
applicant had the required work experience is reviewable on a reasonableness
standard. However, contrary to the applicant's submissions, the respondent
submits that the issue of whether the officer applied the wrong legal test to
his finding on the applicant's work experience is reviewable on a
reasonableness standard. Nevertheless, even on a correctness standard, the
officer did not err in applying the legal test.
20 The
respondent submits that as section 87.1 of the Regulations does not provide a
specific test for determining the "12 months of full-time equivalent
Canadian skilled-work experience" requirement, the officer had to look
elsewhere in the Regulations for direction on how to evaluate the applicant's
work experience.
21 The
respondent submits that the application of the federal skilled worker class to
the Canadian experience class is confirmed by paragraph 15(2)(b) of the Interpretation Act, RSC, 1985, c I-21, which
provides that:
15. (2) Where an enactment contains an
interpretation
section or provision, it shall be read and construed
· ...
· (b)
as being applicable to
all other enactments relating to the same subject-matter unless a contrary
intention appears.
* * *
· 15.
(2) Les dispositions
définitoires ou interprétatives d'un texte :
· ...
· b)
s'appliquent, sauf
indication contraire, aux autres textes portant sur un domaine identique.
22 The
respondent submits that the definition of work experience under subsection
80(3) and section 87.1 of the Regulations relate to identical subject matter
and the two provisions are found under the same general heading. Further, no
contrary intention appears in the legislation. If Parliament had intended a
more flexible approach for the Canadian experience class, the respondent
submits that a separate definition would have been provided so that section 15
of the Interpretation Act would
not apply. The officer therefore applied the correct test in evaluating the
applicant's work experience. The officer's ultimate finding was within the
range of reasonable outcomes based on the contradictory evidence before him,
for which no explanation was provided.
23 The
respondent also submits that the officer's reasons were adequate and there was
no breach of procedural fairness. It is inappropriate to require an
administrative officer to give as detailed reasons as those that would be
expected of administrative tribunals that render decisions after adjudicative
hearings. Nevertheless, the officer's reasons and his earlier email clearly
explain why the applicant's application was rejected. The fact that the officer
did not repeat these concerns in his decision does not render his reasons
deficient. As there was no doubt as to why the application was rejected, there
was no breach of procedural fairness.
24 Further,
the respondent submits that the officer was not under any obligation to conduct
an interview to confront the applicant with his concerns. The officer's email
was sufficient for notifying the applicant of the officer's concerns and for
granting him an opportunity to respond. The fact that the applicant's response
was inadequate did not impose a positive obligation on the officer to inquire
further. As such, there was no breach of procedural fairness.
25 Finally,
the respondent submits that as the applicant has not demonstrated any special
reasons warranting costs, none should be awarded in this case.
26 In
the respondent's further memorandum of argument, the respondent also submits
that the letter from Mr. Zighmi that was included in the applicant's record
should not be considered in this application. In his letter, Mr. Zighmi
asserted that there was no contradiction between the letter of employment
initially submitted and the phone conversation he had with the officer in March
2011. However, Mr. Zighmi's letter is dated July 22, 2011; over a month after
the officer's decision letter was issued. As reviewing Courts are bound on
judicial review to the record that was before the decision maker, the
respondent submits that Mr. Zighmi's letter should not be considered by this
Court on this application.
Analysis and Decision
Issue 1
What is the appropriate standard of review?
27 Where
previous jurisprudence has determined the standard of review applicable to a
particular issue before the court, the reviewing court may adopt that standard
(see Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 SCR 190 at paragraph 57).
28 This
application pertains to the Canadian experience class under the skilled workers
division (Division 1) of the permanent residence economic classes (Part 6) of
the Regulations. As this class was only recently introduced, no jurisprudence
has yet developed on the related statutory provisions. However, significant
jurisprudence has developed on the older federal skilled worker class, also
contained under Division 1 of Part 6 of the Regulations. Officer's
determinations under this latter class have been held to involve findings of
fact and law that are reviewable on a standard of reasonableness (see Malik v Canada (Minister of Citizenship and Immigration), 2009 FC 1283, [2009] FCJ No 1643 at paragraph 22; and Khan v Canada (Minister of Citizenship and Immigration), 2009 FC 302, [2009] FCJ No 676 at paragraph 9). Officer's
determinations under the Canadian experience class also involve findings of
fact and law and are therefore also reviewable on a standard of reasonableness.
29 Further,
as stated by the respondent, it is well established jurisprudence that the
standard of review for questions pertaining to the interpretation of a decision
maker's enabling statute or statutes that are closely connected to its function
is reasonableness (see Smith v Alliance Pipeline Ltd, 2011 SCC 7, [2011] 1 SCR 160 at paragraph 26). Therefore, the
question of whether the officer applied the correct legal test for assessing
the applicant's work experience is also reviewable on a standard of
reasonableness.
30 In
reviewing the officer's decision on a standard of reasonableness, the Court
should not intervene unless the officer came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir above, at paragraph 47; and Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12,
[2009] SCJ No 12 at paragraph 59). As the Supreme Court held in Khosa above, it is not up to a reviewing
court to substitute its own view of a preferable outcome, nor is it the
function of the reviewing court to reweigh the evidence (at paragraphs 59 and
61).
31 Conversely,
the appropriate standard of review for issues of procedural fairness and
natural justice is correctness (see Malik above, at paragraph 23; Khan above, at paragraph 11; and Khosa above, at paragraph 43). No deference is owed to officers on this
issue (see Dunsmuir above, at
paragraph 50).
Issue 2
Did the officer apply the correct legal test for
assessing the applicant's work experience?
32 The
applicant submits that the officer erred by requiring that he perform "all
of the essential duties and a substantial number of the main duties of a human
resources officer" when employed with Prime Force. The requirement to
perform all essential duties and a substantial number of the main duties of a
NOC category is the mandated work experience requirement for federal skilled
worker class applicants under subsection 80(3) of the Regulations. Conversely,
the statutory provisions for Canadian experience class applicants, under
paragraph 87.1(2)(a) of the Regulations, require applicants to have acquired
"at least 12 months of full-time work experience, or the equivalent in
part-time work experience, in one or more occupations that are listed in Skill
Type 0 Management Occupations or Skill Level A or B of the National
Occupational Classification matrix". The applicant submits that this
latter statutory requirement is less rigid than the former and it must
therefore be presumed that Parliament intended a more lenient approach be taken
towards the Canadian experience class compared to the federal skilled worker
class.
33 Parliament's
intent in enacting the new skilled worker class thus lies at the centre of this
analysis. According to the Canadian Gazette, Parliament created the new class
in recognition of challenges with the federal skilled worker class process.
These challenges included: long wait times due to backlogs; limited
responsiveness to labour market demand for skilled tradespersons due to the
emphasis on formal education; and a failure to meet the labour market needs of
communities outside major metropolitan areas due to highly concentrated
settlement patterns. By enacting the new class, Parliament therefore sought to
"[a]ttract more temporary foreign workers and foreign students to Canada
and retain them as permanent residents, thereby enhancing Canada's ability to
compete against countries like Australia that have similar programs". As
such, the new class would be selected on a pass/fail model rather than a points
system as applied under the existing federal skilled worker class. Further, the
stated rationale for the weekly work experience requirement of 37.5 hours was
that it was consistent with other sections of the Regulations, specifically
subsection 80(7) and paragraph 88(1)(a).
34 Admittedly,
the NOC work experience requirements under subsection 80(3) (federal skilled
worker class) and paragraph 87.1(2)(a) (Canadian experience class) are quite
similar. Although the former provision specifically states to what extent the
duties listed in the NOC classification must have been performed, the latter
provision also requires applicants to have the work experience associated with
a NOC listed occupation. Nothing emerges in either the legislation or the
Canada Gazette to suggest that Parliament intended the work experience
requirements to differ between these two classes.
35 Further,
as highlighted by the respondent, paragraph 15(2)(b) of the Interpretation Act provides that an interpretive
provision shall apply to all other provisions relating to the same subject
matter unless a contrary intention appears. As mentioned above, the two
contentious provisions are both contained under Division 1 of Part 6 of the
Regulations and no contrary intention appears in the legislation. In addition,
the rationale for the hourly work experience requirement under the Canadian
experience class was that it was consistent with other sections of the
Regulations, specifically provisions associated with other categories of the
economic classes.
36 For
these reasons, I do not find that the officer erred by incorporating the
language of subsection 80(3) into the analysis under paragraph 87.1(2)(a) of
the Regulations. The officer therefore applied the correct legal test for
assessing the applicant's work experience.
Issue 3
Did the officer err in assessing the applicant's
work experience?
37 Turning
to the officer's actual assessment of the applicant's work experience, the
applicant submits that the officer erred by not appreciating that he did meet
all the duties set out in the main statement for the occupation and a
substantial number of the other main duties.
38 The
NOC 1223 requirements specify the following:
· Main Statement: Personnel and recruitment
officers identify and advertise job vacancies, recruit candidates, and assist
in the selection and reassignment of employees. They are employed throughout
the private and public sectors.
· Main duties: Personnel and recruitment
officers perform some or all of the following duties:
· Identify current and prospective staffing requirements, prepare and
post notices and advertisements, and collect and screen applications;
· Advise job applicants on employment requirements and on terms and
conditions of employment;
· Review candidate inventories and contact potential applicants to
arrange interviews and arrange transfers, redeployment and placement of
personnel;
· Recruit graduates of colleges, universities and other educational
institutions;
· Co-ordinate and participate in selection and examination boards to
evaluate candidates;
· Notify applicants of results of selection process and prepare job
offers;
· Advise managers and employees on staffing policies and
procedures;
· Organize and administer staff consultation and grievance
procedures;
· Negotiate settlements of appeals and disputes and co-ordinate
termination of employment process;
· Determine the eligibility to entitlements, arrange staff training
and provide information or services such as employee assistance, counselling
and recognition programs; and
· May supervise personnel clerks performing filing and record keeping
duties.
39 The
following duties were listed in the applicant's employment letter:
· Plan, develop and implement recruitment strategies;
· Ensure that the business is adhering to best practice and complying
with employment legislation;
· Work closely with the operational business team, providing guidance
on how to approach different employment issues which may arise;
· Manage training and development strategy;
· Provide steps for disciplinary actions; and
· Maintain and update the human resources database.
40 The
applicant's duties listed above do appear similar to those mandated under NOC
1223. However, in the decision, the officer noted that he was not satisfied
that the applicant performed the required duties. This finding was largely
based on the concerns raised by the officer's verification with the applicant's
former employer. The GCMS notes for this conversation indicate that Mr. Zighmi
stated that the applicant was a customer service representative and his duties
included answering the phone, taking applications from job-seekers and opening
files. Further, as the company is small, all employees had to be ready to do
any type of work.
41 In
response to the officer's email regarding the discrepancy between the
applicant's duties as described by Mr. Zighmi and those listed in the
applicant's submissions, the applicant explained that his duties included:
· Plan, develop and implement recruitment strategies by posting of ads
and job openings in local newspapers and on the internet;
· Screening of job applicants to identify the most appropriate
candidate;
· Advising the company on implications of the increased minimum wage
on business;
· Review and update the candidate inventory;
· Reassign employees based on available work; and
· Advise job applicants on employment requirements and compliance with
Canadian workplace health and safety regulations.
42 As
noted by the respondent, no explanation was provided to explain the discrepancy
between the verification call and the written submissions. Although the
applicant offered to file an affidavit from both himself and Mr. Zighmi, none
was filed.
43 Admittedly,
the duties listed in the applicant's written submissions are similar to those
listed under NOC 1223. However, deference is warranted to officers in this
decision making process and their decisions should only be overturned where
they are not within the range of acceptable outcomes based on the evidence
before them (see Dunsmuir above,
at paragraph 47). In this case, there was sufficient evidence before the
officer to support his questioning of the applicant's actual duties while
employed at Prime Force. The applicant's email response to the officer's
concerns did not provide new information to alleviate those concerns. Further,
as stated by the respondent, Mr. Zighmi's letter that was dated after the
application was denied cannot be considered by this Court as it was not before
the officer. As such, I find that the officer came to a reasonable decision
based on the evidence before him.
Issue 4
Did the officer deny the applicant procedural
fairness?
44 Finally,
the applicant submits that the officer erred by not explaining why the evidence
that he filed did not satisfy the officer's concerns. Further, if the officer
disbelieved the applicant's statement, thereby questioning his credibility, he
should have provided the applicant with a proper opportunity to respond.
45 Although
limited jurisprudence has developed on the Canadian experience class, there is
extensive jurisprudence available on the federal skilled worker class. Both of
these classes fall under the same skilled workers division of the permanent
residence economic classes of the Regulations. The nature of the regulatory
scheme, the role of the decision of the officer in the overall scheme and the
choice of procedure are also similar. As such, applicants under the two classes
are entitled to similar limited procedural safeguards (see Malik above, at paragraph 26).
46 In
this case, the officer referred in his decision to the concerns raised in his
March 29, 2011 email, namely, the inconsistencies between the duties listed in
the applicant's employment letter and those stated by his former employer
during the verification call. The applicant was granted 45 days to respond to
these concerns with "any information or documentation". The sole
response the applicant provided was an email in which he largely reiterated the
duties included in his former submission. Aside from a clarification on the
number of employees that the company had, no explanation was provided for the
discrepancies noted by the officer.
47 Bearing
in mind the limited procedural safeguards that permanent residence applicants
are entitled to under the Canadian experience class, I do not find that the
officer erred by not providing further explanations for his decision. As the
applicant's email did not differ significantly from the information contained
in his employment letter, the officer's concerns stated in his March 29, 2011
email clearly remained unsatisfied. As such, I find that the decision
adequately shows why the officer made his decision and permits this Court to
determine whether the conclusion is within the range of acceptable outcomes (see
Newfoundland and Labrador Nurses' Union v Newfoundland
and Labrador (Treasury Board), 2011 SCC 62, [2011] 3
SCR 708 at paragraph 16).
48 The
applicant also submits that he was entitled to a proper opportunity, by way of
an interview, to disabuse the officer of his credibility concerns. However, as
stated by the respondent, visa officers are under no obligation to alert
applicants of concerns where they pertain to matters that arose directly from
the applicant's own evidence and from statutory requirements. As stated by Mr.
Justice Yves de Montigny in Liu v Canada (Minister of
Citizenship and Immigration), 2006 FC 1025, [2006] FCJ
No 1289 (at paragraph 16):
· [...] An applicant's failure to provide adequate, sufficient or
credible proof with respect to his visa application does not trigger a duty to
inform the applicant in order for him to submit further proof to address the
finding of the officer with respect to the inadequacy, deficiency or lack of
credibility. [...]
49 In
summary, I find the applicant has failed to show any reviewable error. The
officer applied the correct legal test in assessing the applicant's work
experience and was under no obligation to explain his findings in greater
detail or to grant the applicant an interview. As such, I would dismiss this
judicial review. The applicant requested an order for costs. I am not prepared
to make an order for costs to the applicant as the applicant did not succeed in
the application and special reasons do not exist to justify an award of costs.
50 Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
THIS COURT'S JUDGMENT is that the application for judicial review is dismissed.
O'KEEFE J.
