Qin v. Canada (Minister of
Citizenship and Immigration)
Between
Qin Qin, Applicant, and
The Minister of Citizenship and Immigration, Respondent
The Minister of Citizenship and Immigration, Respondent
[2013] F.C.J. No. 167
2013 FC 147
Docket IMM-1543-12
Federal Court
Toronto, Ontario
Gleason J.
Heard: December 5, 2012.
Judgment: February 8, 2013.
Docket IMM-1543-12
Federal Court
Toronto, Ontario
Gleason J.
Heard: December 5, 2012.
Judgment: February 8, 2013.
(47 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 GLEASON J.:-- The applicant is a citizen of
China, who earned a Bachelor of Arts degree from York University. Following her
graduation, she obtained a three-year temporary resident permit and was
employed by a small law firm in Toronto, where she carried out administrative
duties and assisted with translation and interpretation for the firm's Chinese
clientele. She applied for permanent resident status as a member of the new
graduate category of the Canadian Experience Class, a relatively new
immigration category provided for in section 87.1 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [the Regulations].
2 In
a decision dated January 31, 2012, a Case Officer of Citizenship and
Immigration Canada refused the applicant's application for a permanent resident
visa, holding that she lacked the requisite experience to qualify for
admission. The officer based this determination on two points. First, he found
that the applicant's salary was significantly lower than the minimum salary
applicable in Toronto to the two occupations the applicant sought to qualify
under, namely legal administrative assistants (National Occupational
Classification [NOC] Code 1242) and translators, terminologists and interpreters
(NOC Code 5125). In an affidavit he filed in connection with this application
for judicial review, the officer explained that he obtained the comparator wage
data for legal assistants and translators/interpreters from the Human Resources
and Skills Development Canada [HRSDC] website, which contains extensive data on
the hourly wages earned in each NOC Code. Secondly, the officer held that the
applicant did not demonstrate that she carried out more than one of the main
duties of the NOC Code 1242 position and thus lacked experience in that
position. The NOC descriptions state that an incumbent must perform "some
or all" of the listed duties.
The Issues
3 This
application for judicial review raises for the first time the issue of what
data an officer may consider in making assessments under the new graduate
portions of the Regulations. It also raises interesting questions surrounding
the standard of review applicable to the officer's decision.
4 More
specifically, the applicant asserts that the officer committed a reviewable
error in considering the HRSDC wage data because this criterion is not listed
in the portions of the Regulations dealing with the Canadian Experience Class
(as opposed to the Federal Skilled Worker Class, which specifically references
salary). Alternatively, if it was permissible for the Officer to have
considered the wage data, the applicant argues that the officer violated the
principles of procedural fairness in failing to disclose to her that he was
doing so, thereby depriving her of the ability to respond. The applicant notes
in this regard that there could well have been additional information that she
could have provided (such as further details of the work she was doing or wage
surveys specific to law firms, segmented by firm size and type of law
practiced, which might have shown that the applicant's salary was not
inordinately low for an employee in training at a very small firm doing a
considerable amount of legal aid work). The applicant further argues that the
officer's determination that she performed only one of the main duties listed
in an NOC Code 1242 is unreasonable, because the letter of reference the
applicant submitted indicated that she performed at least two of the listed
duties, which under the jurisprudence must lead to the conclusion that an
applicant's job experience complies with the requirements of the NOC. Finally,
the applicant asserts that paragraphs 14, 15, 18 and 26 of the officer's
affidavit should be struck as they attempt to impermissibly bolster his
decision.
5 In
response to this last point, the respondent maintains that the impugned
paragraphs in the officer's affidavit constitute merely an explanation of the
background to his decision and are accordingly admissible. Insofar as concerns
the officer's consideration of the HRSDC wage data, the respondent argues that
wages paid to an occupation are relevant to the determination of the type of
work performed and that it was accordingly appropriate for the officer to have
considered the data. With respect to the alleged lack of procedural fairness,
the respondent asserts that there was no need for the officer to disclose to
the applicant that he was considering the HRSDC wage data as it related to the
assessment of the applicant's experience, which clearly was at issue. As
concerns the officer's assessment, the respondent argues that his conclusions
are reasonable, based on the evidence before him. The respondent finally raises
an additional point and argues that the documentation submitted by the applicant
fails to meet the requirements for NOC Code 5125 and that this represents an
additional basis for upholding the officer's decision. The respondent argues in
this regard that the application would be bound to fail if the matter were
remitted for re-determination as the applicant must meet the requirements of
both of the occupations she listed to have worked sufficient hours to qualify
for admission as a member of the Canadian Experience Class and cannot meet the
requirements of NOC Code 5125.
6 As
is more fully discussed below, while the binding authority from the Court of
Appeal mandates that the officer's interpretation of the Regulations be
reviewed on the correctness standard, the jurisprudence from the Supreme Court
of Canada suggests that the reasonableness standard should be applied to the
review of this interpretation. However, nothing turns on the standard of review
in this case as under either the correctness or the reasonableness standard of
review the officer did not err in having regard to HRSDC wage data for purposes
of assessing the applicant's work experience. Procedural fairness, though,
required that the officer disclose the fact he was relying on this data to the
applicant so as to provide her with an opportunity to respond to it. I have
accordingly determined that the officer's decision must be set aside and the
application remitted to another visa officer for re-determination, following
provision of an opportunity to the applicant to make submissions regarding the
HRSDC wage data. I have also determined that the standard of review applicable
to the officer's assessment of the applicant's experience against the NOC Code
descriptions is reasonableness and that it is accordingly not necessary or
appropriate for me to rule on the reasonableness of the officer's assessment of
the applicant's experience under NOC Code 1242 nor to decide whether the
applicant would meet the NOC Code 5125 requirements as that is a matter which
should be assessed by a visa officer and not the Court in the first instance.
7 As
is evident from the foregoing, the following issues are considered in this
decision:
What standard of review
is applicable to the various errors alleged;
Should portions of the
officer's affidavit should be struck;
Was the officer
entitled to consider comparable wage information from the HRSDC website in his
assessment;
Was the officer
required to disclose to the applicant that he was considering the HRSDC wage
data; and
Should I rule on the
reasonableness of the officer's assessment of the applicant's experience or on
whether the applicant meets the requirements of NOC 5125?
Each of these issues is discussed below.
What standard of review is applicable to the
various errors alleged?
8 The
question of what portions of the officer's affidavit are properly before the
Court on this application is evidently not part of the decision being reviewed
and thus no standard of review applies to this question. In terms of the fourth
issue, it is well-established that no deference is owed to decision-makers on
questions of procedural fairness (Khosa v Canada
(Minister of Citizenship and Immigration), 2009 SCC 12,
[2009] 1 SCR 229 at para 43; Zhao v Canada (Minister of
Citizenship and Immigration), 2013 FC 75 at para 5).
Thus, it is for me to settle issues 2 and 4.
9 The
situation is less clear with respect to issue 3, which involves determination
of the standard of review applicable to visa officers' decisions and, more
particularly, to the interpretation of the Regulations implicit in the
officer's having chosen to consider the HRSDC wage data in assessing the
applicant's experience. The parties disagree regarding the applicable standard,
with the applicant arguing that it is correctness and the respondent arguing
that the reasonableness standard applies.
10 The
recent jurisprudence of the Supreme Court of Canada suggests that the
reasonableness standard should apply to the review of this determination as the
officer is interpreting and applying his home statute (or regulation) and
normally deference is accorded in such circumstances (see Dunsmuir v New Brunswick, 2008 SCC 9 at para
54 [Dunsmuir]; Nolan v Kerry (Canada) Inc, 2009 SCC 39 at
para 34 [2009] 2 SCR 678; Celgene Corp v Canada
(Attorney General), 2011 SCC 1 at para 34, [2011] 1 SCR
3 [Celgene]; Alliance Pipeline Ltd v Smith, 2011 SCC 7 at
para 28, [2011] 1 SCR 160 [Smith]; Canada (Attorney General) v Mowat, 2011 SCC 53 at paras 15-27, [2011] 3 SCR 471; ATA v Alberta (Information and Privacy Commissioner), 2011 SCC 61 at para 30, 339 DLR (4th) 428). Certain recent
decisions from this Court endorse the application of the reasonableness
standard to the review of a visa officer's interpretation of the requirements
of the Regulations (Grusas v Canada (Minister of
Citizenship and Immigration), 2012 FC 733 at para 12; Nabizadeh v Canada (Minister of Citizenship and Immigration), 2012 FC 365 at para 27).
11 The
Federal Court of Appeal, however, has indicated otherwise, holding in Khan v Canada (Minister of Citizenship and Immigration), 2011 FCA 339 [Khan]
at para 26 and Patel v Canada (Minister of Citizenship
and Immigration, 2011 FCA 187 [Patel] at para 27 that the correctness standard of review applies to
interpretations of the Regulations by visa officers. (See also Takeda Canada Inc v Canada (Minister of Health), 2013 FCA 13 at para 116, where Justice Dawson, writing for the
majority, endorses the application of the correctness standard to visa
officers' interpretations of the Regulations in the context of discussing other
issues.) The reasoning underlying these decisions, expressly noted in Patel at para 26, relies on statements from
the Supreme Court in Dunsmuir
at para 62, which instruct that the first step in determining the applicable
standard of review is to "ascertain whether the jurisprudence has already
determined in a satisfactory manner the degree of deference to be accorded with
regard to a particular category of question". The Court of Appeal applied
this instruction and held that the jurisprudence had previously determined that
the correctness standard applied to the review of visa officers'
interpretations of the Regulations (relying on the pre-Dunsmuir decisions in Hilewitz v Canada (Minister of
Citizenship and Immigration), 2005 SCC 57, [2005] 2 SCR
706; dela Fuente v Canada (Minister of Citizenship and
Immigration), 2006 FCA 186, [2007] 1 FCR 387 and Shahid v Canada (Minister of Citizenship and Immigration), 2011 FCA 40). The Court of Appeal thus concluded that the
correctness standard continues to apply subsequent to Dunsmuir (see Patel at paras
26-28).
12 Given
the decisions of the Supreme Court issued subsequent to Patel, it is arguable whether the
application of the correctness standard to visa officers' interpretations of
the Regulations can still be said to be "satisfactory" as its application
appears to conflict with recent guidance from the Supreme Court of Canada
establishing that deference should be afforded to an administrative
decision-maker's interpretation of its home statute.
13 If
the happenstance of whether the case law had determined prior to Dunsmuir that the correctness standard of
review applies to a provision in the Immigration and
Refugee Protection Act, S.C. 2001, c. 27, [the IRPA] requires that the correctness standard
continue to apply to that provision, the result may well be that there will be
a patchwork applicable to judicial review in immigration law, with those
provisions in the IRPA and the Regulations that previously had been held to
be subject to the correctness standard continuing to be subject to full curial
review and new provisions or those which had not previously been analysed
presumably being accorded defence, as required by the Supreme Court of Canada.
It is difficult to see how this could be said to be satisfactory. Indeed, both
Justice Stratas in Toussaint v Canada (Attorney
General), 2011 FCA 213 at paras 17-20 and Chief Justice
Crampton in Lukaj v Canada (Minister of Citizenship and
Immigration), 2013 FC 8 at para 12 have commented to
this effect.1 Be that as it may, the rulings of the Court of Appeal in Khan and Patel are directly on point and thus binding on me so I am required to
apply the correctness standard of review to the officer's interpretation of the
Regulations. Happily nothing turns on this point, as the same result pertains
under either standard.
14 The
fifth issue that arises in this case also requires consideration of the
standard of review applicable to the officer's assessment of the experience
possessed by a candidate when compared to the descriptions in the NOC matrix, because
determination of the applicable standard informs whether it is appropriate for
me to decide if the applicant possessed the experience required for issuance of
the visa or whether her file should be remitted back to another visa officer
for a re-determination. Such assessments involve either factual determinations
or findings of mixed fact and law. Normally, the reasonableness standard of
review applies to findings of fact or of mixed fact and law (Dunsmuir at para 51; Patel at paras 36-37; Thiruguanasambandamurthy v Canada (Minister of Citizenship and
Immigration), 2012 FC 1518 at para 27 [Thiruguanasambandamurthy]; Talpur v Canada (Minister of Citizenship and Immigration), 2012 FC 25 at para 19 [Talpur]).
15 There
are, however, certain statements in Khan that could be read as mandating a correctness standard for all
aspects of a visa officer's decision, but these statements are premised on the
Court's earlier ruling in Patel.
In Khan, Justice Pelletier,
writing for the Court, stated as follows: "This Court has held that the
standard of review to be applied to a visa officer's decision is correctness:
see Patel v. Canada (Minister of Citizenship &
Immigration), 2011 FCA 187, [2011] F.C.J. No. 843
(F.C.A.) at para. 27 [...]." Patel, however, did not
mandate application of the correctness standard to all aspects of a visa
officer's decision, but, rather, only to the officer's interpretation of the
Regulation. In terms of the review of the officer's actual assessment of the
applicant's file, the Court of Appeal in Patel applied a reasonableness standard.
16 As
Khan relies on Patel and as the jurisprudence in other
contexts overwhelmingly requires application of the reasonableness standard to
an inferior tribunals' determinations of fact and of mixed fact and law, I
believe the authorities support the application of the reasonableness standard
to the officer's assessment of the applicant's job experience - as set out in
the documents she filed - and comparison of that experience to the descriptors
contained in the NOC matrix. Accordingly, deference must be afforded to such
determinations. As is discussed below, this conclusion has important
implications for the alternative argument advanced by the respondent.
Should portions of the officer's affidavit be struck?
17 Turning,
then, to the request to strike portions of the officer's affidavit, there are
several propositions that may be drawn from the authorities. First is the
recognition that the "decision" subject to review in a case such as
this is the letter sent to the applicant, advising of the rejection of her
application, and the Computer Assisted Immigration Process System [CAIPS] notes
of the officer, which were created before the formal letter was signed and
record the officer's reasoning for the determination (Kalra
v Canada (Minister of Citizenship and Immigration),
2003 FC 941 at para 15 [Kalra]).
Second, the materials before the Court in a judicial review application are
normally the tribunal's decision and the record before the tribunal. Third, the
case law teaches that decision-makers will be allowed to make submissions in an
application for judicial review of their decisions only to the extent that may
be required to provide needed context to the reviewing court, and will not be
allowed to make submissions on the merits of the application as this is
unseemly (Northwestern Utilities et al v The City of
Edmonton, [1979] 1 SCR 684 at 708-709 [Northwestern Utilities]; Vancouver Wharves Ltd v ILWU, Local 514, 60
NR 118 at paras 5-8, [1985] BCWLD 1701 (FCA)). Indeed, in Northwestern Utilities at p 710, Justice
Estey, writing for the Supreme Court, stated, "To allow an administrative
board the opportunity to justify its action and indeed to vindicate itself
would produce a spectacle not ordinarily contemplated in our judicial
traditions".
18 The
foregoing principles have been applied in the context of visa officers to
permit affidavits from them to be filed in applications to review their
decisions so long as the affidavits merely provide background context or facts
relevant to allegations of violation of procedural fairness or bias.
Conversely, affidavits which seek to bolster the decision by providing new or
expanded reasons for the decision are not admissible (Sellathurai
v Canada (Minister of Public Safety and Emergency Preparedness), 2008 FCA 255 at paras 45-47; Kalra at para 15).
19 Application
of the foregoing principles results in the impugned paragraphs in the officer's
affidavit being struck. They fall on the impermissible side of the line as each
constitutes further and expanded argument setting forth additional reasons why
the decision was made. In many instances, the content of the officer's
affidavit goes well beyond what was contained in the CAIPS notes. As Justice
Martineau said in Kalra at para
15, "[I]f I compare the visa officer's CAIPS notes and affidavit, it is
obvious that the latter incorporates a lot more information than the former
which raises the question: upon what documents, information or notes did the
visa officer base [the] affidavit, which was executed [well] after the
decision." This reasoning applies with full force and effect to the
impugned paragraphs in the officer's affidavit. Accordingly, paragraphs 14, 15,
18 and 26 of the officer's affidavit shall be struck and have not been
considered by me in making this decision.
Was it improper for the officer to have considered
the HRSDC data on wage rates payable to NOC Codes 1242 and 5125?
20 Turning
next to the central issue in this case - the propriety of considering
comparator salary data - it is useful to reproduce the regulatory provisions
applicable to the Canadian Experience Class because this is the first time this
issue has been considered by this Court. Section 87.1 of the Regulations
provides:
Canadian Experience Class
Class
·
87.1 (1) For the purposes of
subsection 12(2) of the Act, the Canadian experience class is prescribed as a
class of persons who may become permanent residents on the basis of their
experience in Canada and who intend to reside in a province other than the Province
of Quebec.
·
Member of the class
A foreign national is a
member of the Canadian experience class if
they
have acquired in
Canada within the 24 months before the day on which their application for
permanent residence is made 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, and have acquired that work
experience after having obtained
a diploma, degree or
trade or apprenticeship credential issued on the completion of a program of
full-time study or training of at least two years' duration at a public,
provincially recognized post-secondary educational or training institution in
Canada,
a diploma or trade or
apprenticeship credential issued on the completion of a program of full-time
study or training of at least two years' duration at a private, Quebec
post-secondary institution that operates under the same rules and regulations
as public Quebec post-secondary institutions and that receives at least 50 per
cent of its financing for its overall operations from government grants,
subsidies or other assistance,
a degree from a
private, provincially recognized post-secondary educational institution in
Canada issued on the completion of a program of full-time study of at least two
years' duration, or
a graduate degree from
a provincially recognized post-secondary educational institution in Canada
issued on the completion of a program of full-time study of at least one year's
duration and within two years after obtaining a degree or diploma from an institution
referred to in clause (A) or (C), or
have acquired in
Canada within the 36 months before the day on which their application for
permanent residence is made at least 24 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; and
they have had their
proficiency in the English or French language assessed by an organization or
institution designated under subsection (4) and have obtained proficiencies for
their abilities to speak, listen, read and write that correspond to benchmarks,
as referred to in Canadian Language Benchmarks 2000 for the English language
and Niveaux de compétence linguistique canadiens 2006 for the French language,
of
in the case of a
foreign national who has acquired work experience in one or more occupations
that are listed in Skill Type 0 Management Occupations or Skill Level A of the
National Occupational Classification matrix,
7 or higher for each
of those abilities, or
6 for any one of those
abilities, 7 or higher for any other two of those abilities and 8 or higher for
the remaining ability, and
in the case of a
foreign national who has acquired work experience in one or more occupations
that are listed in Skill Level B of the National Occupational Classification
matrix,
5 or higher for each
of those abilities, or
4 for any one of those
abilities, 5 or higher for any other two of those abilities and 6 or higher for
the remaining ability.
Application
For the purposes of
subsection (2),
full-time work is
equivalent to at least 37.5 hours of work per week;
any period of
self-employment or unauthorized work shall not be included in calculating a
period of work experience;
the foreign national
must have had temporary resident status during their period of work experience
and any period of full-time study or training;
the foreign national
must have been physically present in Canada for at least two years of their
full-time study or training;
any period during which
the foreign national was engaged in a full-time program of study or training in
English or French as a second language -- and any period of full-time study or
training in respect of which study or training in English or French as a second
language amounted to most of the full-time study or training -- shall not be
included in calculating the period of full-time study or training;
any period of study or
training during which the foreign national was a recipient of a Government of
Canada scholarship or bursary, or participated in an exchange program sponsored
by the Government of Canada, a purpose or condition of which was that the
foreign national return to their country of origin or nationality on completion
of their studies or training shall not be included in calculating the period of
full-time study or training; and
in the case of a
foreign national whose work experience is referred to in both subparagraphs
(2)(b)(i) and (ii), the foreign national must obtain a proficiency in the
English or French language that corresponds to the benchmarks required for the
skill type, as set out in subparagraph (2)(b)(i) or (ii), in which the foreign
national has acquired most of their work experience.
·
Designated organization
The Minister may
designate organizations or institutions to assess language proficiency for the
purposes of this section and shall, for the purpose of correlating the results
of such an assessment by a particular designated organization or institution with
the benchmarks referred to in subsection (2), establish the minimum test result
required to be awarded for each ability and each level of proficiency in the
course of an assessment of language proficiency by that organization or
institution in order to meet those benchmarks.
·
Conclusive evidence
The results of an
assessment of the language proficiency of a foreign national by a designated
organization or institution and the correlation of those results with the
benchmarks in accordance with subsection (4) are conclusive evidence of the
foreign national's proficiency in an official language of Canada for the
purposes of this section.
* * *
Catégorie de l'expérience canadienne
Catégorie
·
87.1 (1) Pour l'application du
paragraphe 12(2) de la Loi, la catégorie de l'expérience canadienne est une
catégorie réglementaire de personnes qui peuvent devenir résidents permanents
du fait de leur expérience au Canada et qui cherchent à s'établir dans une
province autre que le Québec.
·
Qualité
Fait partie de la
catégorie de l'expérience canadienne l'étranger qui satisfait aux exigences
suivantes :
l'étranger, selon le
cas :
a accumulé au Canada
au moins douze mois d'expérience de travail à temps plein ou l'équivalent s'il
travaille à temps partiel 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 au cours des vingt-quatre mois
précédant la date de la présentation de sa demande de résidence permanente et,
antérieurement à cette expérience de travail, a obtenu au Canada, selon le cas
:
un diplôme, certificat
de compétence ou certificat d'apprentissage après avoir réussi un programme
d'études ou un cours de formation nécessitant au moins deux ans d'études à
temps plein et offert par un établissement d'enseignement ou de formation
postsecondaire public reconnu par une province,
un diplôme, certificat
de compétence ou certificat d'apprentissage après avoir réussi un programme
d'études ou un cours de formation nécessitant au moins deux ans d'études à
temps plein et offert par un établissement d'enseignement postsecondaire privé
au Québec qui est régi par les mêmes règles et règlements que les
établissements d'enseignement publics et dont les activités sont financées,
pour au moins 50 %, par le gouvernement notamment, au moyen de
subventions,
un diplôme
universitaire après avoir réussi un programme d'études nécessitant au moins
deux ans d'études à temps plein et offert par un établissement d'enseignement
postsecondaire privé reconnu par une province,
un diplôme d'études
supérieures après avoir réussi un programme d'études à temps plein d'une durée
d'au moins un an, offert par un établissement d'enseignement postsecondaire
reconnu par une province, au plus tard deux ans après avoir obtenu un diplôme
d'un établissement visé aux divisions (A) ou (C),
a accumulé au Canada
au moins vingt-quatre mois d'expérience de travail à temps plein ou
l'équivalent s'il travaille à temps partiel 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 au cours des
trente-six mois précédant la date de la présentation de sa demande de résidence
permanente;
il a fait évaluer sa
compétence en français ou en anglais par une institution ou organisation
désignée aux termes du paragraphe (4) et obtenu, pour les aptitudes à parler, à
écouter, à lire et à écrire, selon le document intitulé Niveaux de compétence
linguistique canadiens 2006, pour le français, et le Canadian Language Benchmarks
2000, pour l'anglais, les niveaux de compétence suivants :
s'il a une expérience
de travail dans une ou plusieurs professions appartenant aux genre de
compétence 0 Gestion ou niveaux de compétences A de la matrice de la
Classification nationale des professions:
7 ou plus pour chacune
des aptitudes,
6 pour l'une des
aptitudes, 7 ou plus pour deux des aptitudes et 8 ou plus pour l'aptitude
restante,
s'il a une expérience
de travail dans une ou plusieurs professions appartenant au niveau de
compétences B de la matrice de la Classification nationale des
professions:
5 ou plus pour chacune
des aptitudes,
4 pour l'une des
aptitudes, 5 ou plus pour deux aptitudes et 6 ou plus pour l'aptitude
restante.
Application
Pour l'application du
paragraphe (2) :
le travail à temps
plein équivaut à au moins trente-sept heures et demie de travail par
semaine;
les périodes de travail
non autorisées ou celles accumulées à titre de travailleur autonome ne peuvent
être comptabilisées pour le calcul de l'expérience de travail;
l'étranger doit détenir
le statut de résident temporaire durant les périodes de travail et durant
toutes périodes d'études ou de formation à temps plein;
l'étranger doit être
effectivement présent au Canada pendant au moins deux de ses années d'études ou
de formation à temps plein;
les périodes d'études
ou de formation acquises par l'étranger dans le cadre d'un programme d'anglais
ou de français langue seconde à temps plein, et les périodes d'études ou de
formation à temps plein consacrées principalement à l'étude de ces langues ne
peuvent être comptabilisées pour le calcul de la période d'études ou de
formation à temps plein;
les périodes d'études
ou de formation acquises pendant que l'étranger était détenteur d'une bourse
d'études offerte par le gouvernement du Canada ou participait à un programme
d'échange parrainé par ce dernier, dans le cas où la bourse ou le programme a
pour but ou condition le retour de l'étranger dans le pays dont il a la
nationalité ou celui de sa résidence habituelle à la fin de ses études, ne
peuvent être comptabilisées pour le calcul de la période d'études ou de
formation à temps plein;
l'étranger qui a
l'expérience de travail dans les professions visées aux sous-alinéas (2)b)(i)
et (ii) doit obtenir le niveau de compétence en anglais ou en français qui est
exigé aux sous-alinéas (2)b)(i) ou (ii) selon la profession pour laquelle il a
le plus d'expérience.
·
Organisme désigné
Le ministre peut
désigner les institutions ou organisations chargées d'évaluer la compétence
linguistique pour l'application du présent article et, en vue d'établir des
équivalences entre les résultats de l'évaluation fournis par une institution ou
organisation désignée et les niveaux de compétence mentionnés au paragraphe
(2), il fixe le résultat de test minimal qui doit être attribué pour chaque
aptitude et chaque niveau de compétence lors de l'évaluation de la compétence
linguistique par cette institution ou organisation pour satisfaire aux niveaux
mentionnés à ce paragraphe.
·
Preuve concluante
Les résultats de
l'examen de langue administré par une institution ou organisation désignée et
les équivalences établies en vertu du paragraphe (4) constituent une preuve
concluante de la compétence de l'étranger dans l'une des langues officielles du
Canada pour l'application du présent article.
21 These
provisions may be contrasted with the provisions in the Regulations on the
Federal Skilled Worker [FSW] Class, which specifically contemplate review of
salary as part of the eligibility determination. More specifically, the
Regulations require that, in the case of an FSW application, an applicant's
prospective employer must obtain a Labour Market Opinion from HRSDC, which is
to be premised in part on the determination that the "wages offered to the
skilled worker are consistent with the prevailing wage rate for the
occupation" in Canada (clause 82(1)(c)(ii) of the Regulations).
22 The
applicant argues that in the absence of a similar listing of salary as a
relevant criterion in the evaluation of experience for purposes of the Canadian
Experience Class (in either the Regulations or the NOC Code provisions), an
officer is prohibited from considering salary as one of the factors to be
weighed in assessing whether an applicant has the requisite experience in one
of the listed NOC classes. The applicant asserts that an officer who considers
salary in evaluating the nature of an applicant's Canadian work experience for
purposes of eligibility as a member of the Canadian Experience Class fetters
his or her discretion and imposes criteria that Parliament never intended. In
this regard, the applicant relies on Cheng v Canada
(Secretary of State) (1994), 25 Imm LR (2d) 162, 83 FTR
259 [Cheng] and Tam v Canada (Minister of Citizenship and Immigration) (1997), 38 Imm LR (2d) 116, 130 FTR 237 [Tam], where visa officers were found to have impermissibly fettered
their discretion when they imported a requirement that an applicant be engaged
in overall management and performance of the business in order to meet the
definitions contained in the Investor and Entrepreneur Classes. In Cheng, Justice Cullen summarised the
finding upon which the applicant relies, in the following way:
·
9 This strict reading of the
definition of investor is not consistent with the policies of Immigration
Canada, as set out in the Regulations or expressed in the guidelines. It is not
intended that the applicant operate a wholly-owned business or a wholly-owned
undertaking. That interpretation is clearly wrong and the addition of such a
criterion does amount to an error of law which adversely affected the exercise
of her jurisdiction and which warrants referring the matter back to a different
immigration officer for redetermination. Essentially, by imposing her own
criteria for the definition of investor on the circumstances of the applicant,
the officer has fettered her discretion. Further, unless and until some new
guidelines are introduced, the parties affected by the policy are entitled to
be treated in a consistent manner, not to the arbitrary addition of criteria by
each particular immigration officer.
The applicant urges that similar reasoning be
applied here.
23 I
do not believe it should be. In the first place, it is debatable whether there
remains any place for the concept of the fettering of discretion as an
independent ground of review, in light of the recent developments in
administrative law, commencing with the decision of the Supreme Court of Canada
in Dunsmuir. In Dunsmuir and the cases that follow it, the
Supreme Court has traced a single basis for the evaluation by reviewing courts
of the content of administrative tribunals' decisions, namely, the evaluation
of whether or not they are reasonable or correct. As Justice Stratus recently
noted in Stemijon Investments Ltd v Canada (Attorney
General), 2011 FCA 299 at para 23, the concept of
fettering discretion lives "uncomfortably" with the approach to
judicial review that has been endorsed by the Supreme Court since Dunsmuir.
24 It
is not necessary in this case to decide whether the concept of fettering
discretion remains a stand-alone ground of review as, even if it does, I do not
believe that the officer in this case improperly fettered his discretion. There
is an important distinction between what occurred here and what happened in Cheng and Tam. There, the relevant provisions in the Regulations and applicable
departmental guidelines outlined to a far greater extent than here the
parameters of what could be permissibly considered by the officer in
determining eligibility.
25 In
Cheng, the Immigration Regulations, SOR/78-172 provided
that to be considered as an investor an applicant was required, amongst other
things, to meet the criterion of "successful operation, control or
direction of a business or a commercial undertaking" (ss 2(1)).
Immigration Canada had issued Guidelines, indicating that the investor class
was "not limited to owners, presidents or vice presidents, but [was]
intended to extend to persons who have held a post of significant
responsibility, such as a manager of a particular division or section of a
larger company" (Cheng at
para 5). These provisions provide much more direction to an officer as to the
scope of permissible inquiry than does section 87.1 of Regulations in respect
of the evaluation of experience for purposes of the Federal Experience Class.
26 Likewise,
in Tam, the relevant regulatory
provision stipulated that an "entrepreneur" meant an immigrant,
who intends and has the
ability to establish, purchase or make a substantial investment in a business
or commercial venture in Canada that will make a significant contribution to
the economy and whereby employment opportunities will be created or continued
in Canada for one or more Canadian citizens or permanent residents, other than
the entrepreneur and his dependants, and
who intends and has the
ability to provide active and ongoing participation in the management of the
business or commercial venture
27 In
face of these provisions, Justices Cullen and Pinard concluded that the
officers in question had fettered their discretion in requiring the applicants
to demonstrate that they were responsible for the overall management and
performance of the company that employed them. Effectively, such a definition
would have limited the classes only to those in a presidential or
vice-presidential position, which Parliament never intended, and, at least in Tam, added criteria that were completely
different from those in the Regulations.
28 Here,
on the other hand, section 87.1 of the Regulations requires an officer to
evaluate whether a candidate has experience in one of the listed NOC
occupations, but provides no guidance as to how such experience is to be
evaluated, other than by reference to the listing of duties contained in the
NOC matrix.
29 Significantly,
only the more senior and complex jobs in the administrative category qualify as
occupations for the Canadian Experience Class. Thus, for example, work in a
purely clerical position (at Skill Level C in the NOC matrix) would not qualify
but work in the more skilled occupation of legal assistant (at Class B) does.
30 In
evaluating whether or not an applicant's experience falls within a permissible
NOC Code, an officer is required to understand the nature of the work performed
and the degree of complexity of the tasks undertaken, to determine whether or
not they fall within the duties listed in the relevant NOC Code descriptors.
The requisite analysis necessitates much more than a rote comparison of the
duties listed in the NOC Code with those described in a letter of reference or
job description. Rather, what is required is a qualitative assessment of the
nature of the work done and comparison of it with the NOC Code descriptor.
Indeed, there is a line of authority which indicates that, in the context of
Federal Skilled Workers (where an officer is similarly required to assess
duties performed against the NOC Code descriptors), the officer may legitimately
question whether the applicant possesses the relevant experience if all that he
or she does is repeat the duties from the NOC descriptor in a letter of
reference. In such cases, this Court has sometimes held that an officer is
required to hold an interview or pose additional questions in writing to an
applicant, in order to obtain more detail about the actual nature of the work
performed (see e.g. Talpur and Patel v Canada (Minister of Citizenship & Immigration), 2011 FC 571). Thus, it is beyond debate that the officer must
undertake a substantive analysis of the work actually done by an applicant.
31 As
the respondent correctly notes, salary paid is typically one indicator of the
complexity of the work performed, as the more complex the task, generally, the
higher the wages paid for it. During the argument of this application, counsel
for the applicant candidly conceded that there may well be a rational
connection between the nature of the work performed and wages paid, which,
indeed, is a fairly self-evident proposition. The connection between wages and
job complexity is recognized in other spheres. For example, pay equity and
employment standards legislation require payment of equal wages for work of
equal or equivalent value performed by men and women, thereby confirming that
compensation should follow complexity of the work performed (see e.g. Canadian Human Rights Act, RSC 1985, c H-6
at s 11; Equal Wages Guidelines,
SOR/8-1082; Ontario's Pay Equity Act, RSO 1990, c P-7 and Ontario's Employment
Standards Act, SO 2000, c 41 at s 42). Thus, average
wages paid in the Toronto area (where the applicant worked) for jobs within the
applicable NOC Codes is certainly relevant to the assessment of the nature of
the applicant's experience.
32 Moreover,
as part of the application process, the applicant was required to have her
employer attest to her salary in the letter of reference; this is required by
point 6 in the respondent's Document Checklist. While this is certainly not
determinative of the interpretation to be afforded to the Regulations, as was
the case with the Departmental Guidelines in Cheng, the requirement to provide salary data is indicative of the
respondent's view of the factors which are relevant to the assessment of
experience. (The request for salary information is not only required in order
to verify the full-time status of an employee, as the applicant claims. If all
that was relevant was verifying full-time status, it would be far simpler and
less invasive of candidates' privacy interests to merely have the employer
confirm the hours worked by an applicant.) Thus, the documents furnished by the
respondent to applicants contemplate that salary information must be provided
and therefore presumably will be considered in the assessment of the application.
33 Contrary
to what the applicant asserts, the officer did not use salary as a preliminary
disqualifying factor or to perform a "gatekeeper function" to
disqualify the applicant's application. Had the officer done so - as the
respondent conceded - he may well have engaged in an unreasonable and incorrect
interpretation of the Regulations. In this regard, there is a significant
difference between requiring a minimum salary as the starting point for
consideration - and weeding out those who do not earn the minimum salary - as
compared to examining the salary paid as but one of the data points relevant to
determining if an applicant possesses the requisite experience to qualify as a
member of the Canadian Experience Class.
34 In
this case, the officer did not use salary as a preliminary disqualifying
factor. Rather, the officer considered the salary information as one fact
relevant to the evaluation of the nature and degree of the applicant's
experience. The fact that the officer did not use the salary information as a
preliminary disqualifying factor is evident from his letter to the applicant
and the CAIPS notes. Both contain a comparison of the applicant's duties as
detailed in the letter of reference to those listed in NOC Code 1242. Had the
officer used the salary analysis as a preliminary disqualifying factor, it
would not have been necessary for him to have gone on to discuss and analyze
the nature of the duties performed by the applicant - as listed in her letter
of reference - and compare them to the duties listed in the NOC Code 1242.
35 Moreover,
given the brevity of the letter of reference and the ambiguity of certain of
the statements contained in it regarding the nature of the duties performed by
the applicant, the officer reasonably required additional data beyond that set
out in the letter of reference for a more complete assessment. It was open to
him to consider the salary paid to the applicant and to compare it to the
salaries typically paid to those working as legal assistants and
translators/interpreters in the Toronto area, where the applicant worked, as
one piece of information relevant to determining if the applicant possessed the
requisite experience to obtain a visa under section 87.1 of the Regulations. In
this regard, it is to be recalled that this Class applies only to higher
skilled administrative occupations; a relevant factor in assessing whether the
applicant actually possesses the requisite experience is consideration of the
wages paid. If they are far lower than those typically paid for comparable
work, and if the documentation otherwise submitted detailing the nature of the
work performed does not definitively establish the requisite experience, an
officer may reasonably reject a visa application for permanent residence as a
member of the Canadian Experience Class.
36 Thus,
in ascertaining whether the applicant performed the work of NOC Codes 1242 and
1525, it was both permissible and reasonable for the officer to have considered
the salary paid to the applicant in comparison to that paid in Toronto for
similar work as a fact relevant to the assessment of the applicant's job
experience.
Did the officer violate procedural fairness in
failing to disclose to the applicant that he was considering the HRSDC wage
data?
37 However,
while it was permissible and reasonable for the officer to have considered the
HRSDC wage data, his failure to disclose to the applicant the fact that he was
doing so and to provide her an opportunity to make submissions to him regarding
the data was a violation of procedural fairness.
38 This
Court has made clear that where officers have questions regarding the
credibility or authenticity of an application, they have a duty to go back to
the applicant and give the applicant an opportunity to make further
submissions, normally through an interview (Talpur at para 21; Hassani v Canada (Minister of
Citizenship and Immigration), 2006 FC 1283 at para 24).
It is similarly well established that a decision-maker's failure to disclose
extrinsic information upon which he or she relies, and that the applicant could
not reasonably anticipate would be consulted, violates procedural fairness (see
e.g. Shah v Canada (Minister of Employment and
Immigration) (1994), 81 FTR 320, 170 NR 238 (FCA); Qureshi v Canada (Minister of Citizenship and Immigration), 2009 FC 1081 at para 32; Tariku v Canada
(Minister of Citizenship and Immigration), 2007 FC 474
at para 15; and Toma v Canada (Minister of Citizenship
and Immigration), 2006 FC 780 at para 18; Amoateng v Canada (Minister of Citizenship and Immigration) (1994), 90 FTR 51, 26 Imm LR (2d) 317).
39 Here,
the officer had doubts as to whether the applicant had actually fulfilled the
requirements of the legal assistant NOC category, and considered average wages
applicable to that category to resolve those doubts. The difference between the
wages earned by the applicant and the average wages thus played an important
part in the officer's conclusion that the applicant was not acting as a legal
assistant. Had the applicant been informed of the officer's concerns vis-à-vis her wage and been provided with
notice that the officer was considering the HRSDC average wage data, she could
have provided additional submissions in response, such as evidence relating to
average wages paid in small law firms to people of similar experience.
Likewise, had she been aware of the officer's concerns, she might have provided
more detail about the kind of work she was performing for the firm. Not knowing
that the officer was relying on average wage data, the applicant had no reason
to submit such information.
40 The
failure of the officer to inform the applicant of his consideration of average
wage data thus amounts to a violation of procedural fairness. The consideration
of the data was a key step in the officer's reasoning and was not something
that the applicant could reasonably have anticipated might be an issue.
41 As
a result, this matter must be remitted to another visa officer to allow the
applicant to make additional submissions related to the complexity of her
duties and salary paid in respect of them.
42 In
light of this, it is not necessary or appropriate to address whether this
officer's evaluation of the duties performed by the applicant was reasonable as
the new officer will have additional information to consider on the
re-determination by reason of the opportunity that the applicant will have to
file additional evidence. Thus, any comments I might make on the reasonableness
of the officer's assessment would be at best superfluous and at worst
prejudicial to one or the other of the parties as they might well influence the
re-determination but would not be based on the full record that will be
considered on re-determination.
Should this application be dismissed due to the
applicant's ineligibility under NOC Code 5125?
43 The
same may also be said of the respondent's alternative argument that requests I
rule on the applicant's alleged ineligibility under NOC Code 5125. More
specifically, these same concerns indicate that I ought not rule on the applicant's
alternative argument as additional evidence will possibly be placed before the
officer on re-determination related to whether the applicant has experience
within NOC Code 5125. Thus, my commenting on the issue would be superfluous and
potentially prejudicial.
44 In
addition, there is an important institutional reason why I should not consider
whether the applicant would meet the experience requirements under NOC Code
5125: doing so would have me usurp the role of a visa officer. As already
discussed, the reasonableness standard of review applies to the review of visa
officers' assessments of evidence and comparison of that evidence to the
requirements of the NOC matrix to determine if an applicant possesses the
requisite experience for admission as a member of the Canadian Experience
Class. This means that it is outside the proper scope of review for this Court
to substitute its views for those of a visa officer in matters of candidate
suitability (see e.g. Thiruguanasambandamurthy at paras 27-28, Talpur at para 19; Khan v Canada (Minister of
Citizenship and Immigration), 2009 FC 302 at para 9; Arora v Canada (Minister of Citizenship and Immigration), 2011 FC 241 at para 23). In light of this, I believe I should not
grant the respondent's request to dismiss this application by reason of the
applicant's alleged ineligibility under NOC Code 5125. The officer did not
address whether the details of the applicant's duties fell within the list of
duties contained in NOC Code 1525 in his decision, and it is far from
self-evident what the conclusion would be on this point. It is not for this
Court to address this issue as this would require that I act as a visa officer
and make a finding that is squarely within the jurisdiction and scope of
expertise of an officer (see Canada (Attorney General)
v Kane, 2012 SCC 64 at para 9 [Kane]; Szabo v Canada (Citizenship and
Immigration), 2012 FC 1422 at para 11). Indeed, as the
Supreme Court held in Kane (at
para 9), to do this would fall into the error of "undertaking [my] own
assessment of the record", which a reviewing court ought not do.
45 Thus,
it is not appropriate for me to rule on the respondent's alternative argument.
Should a question be certified under sub-section
74(1) of the Immigration and Refugee Protection Act?
46 Finally,
consideration must be given to whether I should certify a question under
section 74 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] to allow for an appeal. Both parties
concurred that in the event I address the propriety of the officer's
considering the HRSDC wage data in my decision, a question should be certified
on this issue under subsection 74(1) of the IRPA as this is the first time the
issue has arisen in the case law and is an issue which will apply broadly to
future applicants. I agree. I accordingly certify the following question:
·
"Is it permissible or
reasonable for a visa officer to consider HRSDC comparator salary data when
assessing the nature of the work experience of an applicant who wishes to
qualify as a member of the Canadian Experience Class, as described in section
87.1 of Immigration and Refugee Protection Regulations, SOR/2002-227?"
47 In
addition, because my decision to decline to deal with the request that I
evaluate the applicant's experience under NOC Code 5125 rests in considerable
part on my assessment of the standard of review applicable to visa officers'
decisions, and in recognition of the tension between the case law from the
Supreme Court of Canada and the Federal Court of Appeal on this issue, I have
determined it appropriate to certify the following additional question:
·
"What standard of review
is applicable to a visa officer's interpretation of the Immigration and Refugee
Protection Regulations, SOR/2002-227 and to an officer's assessment of an
application under the Immigration and Refugee Protection Regulations,
SOR/2002-227?"
JUDGMENT
·
THIS COURT'S JUDGMENT is that:
Paragraphs 14, 15, 18
and 26 of the Affidavit of Charles Fiola are struck;
This application for
judicial review of the March 12, 2012 decision of the officer is granted;
The officer's decision
is set aside;
The applicant's
application for permanent residence as a member of the Canadian Experience
Class is remitted to the respondent for re-determination by a different
officer;
In connection with that
re-determination, the applicant shall be afforded an opportunity to file
additional evidence and make additional submissions regarding the nature of her
work experience and salary earned during the applicable reference period;
The following serious
questions of general importance are certified under section 74 of the
IRPA:
·
"Is it permissible for a
visa officer to consider comparator salary data when assessing the nature of
the work experience of an applicant who wishes to qualify as a member of the
Canadian Experience Class, as described in section 87.1 of the Immigration and Refugee Protection Regulations, SOR/2002-227?"; and
·
"What standard of review
is applicable to a visa officer's interpretation of the Immigration and Refugee Protection Regulations, SOR/2002-227 and to the officer's assessment of an application
under the Immigration and Refugee Protection
Regulations, SOR/2002-227?" and
There is no order as to
costs.
GLEASON J.
