Qureshi v. Canada (Minister of Citizenship and
Immigration)
Between
Mohammad Shabir Qureshi, Applicant, and
The Minister of Citizenship and Immigration, Respondent
Mohammad Shabir Qureshi, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2013] F.C.J. No.
1395
2013 FC 1285
Docket IMM-11690-12
Federal Court
Toronto, Ontario
Annis J.
Heard: December 9, 2013.
Judgment: December 23, 2013.
Docket IMM-11690-12
Federal Court
Toronto, Ontario
Annis J.
Heard: December 9, 2013.
Judgment: December 23, 2013.
(24 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
ANNIS J.:--
INTRODUCTION
1 This
is an application, pursuant to s 72.1 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA], for judicial review of a decision of a
visa officer ("the Officer") dated May 24, 2012, and received October
5, 2012, refusing the applicant's application for permanent residence in Canada
as a federal skilled worker. The applicant asks that the decision be set aside
and remitted for reconsideration.
2 For
the following reasons, the application is denied.
BACKGROUND
3 The
applicant, Mr Mohammad Shabir Qureshi, made an application for permanent
residence in Canada from Pakistan under the Federal Skilled Worker Class [FSWC]
in 2010 stating that he had at least one year of continuous full-time or
equivalent paid work experience in the 10 years prior to his application under
NOC 4131 (College and Other Vocational Instructors).
4 NOC
4131 did not contain any essential duties. It described the main duties of
College and Other Vocational Instructors as follows:
· College and other vocational instructors perform some or all of the following duties:
Teach students using a
systematic plan of lectures, demonstrations, discussion groups, laboratory
work, shop sessions, seminars, case studies, field assignments and independent
or group projects
Develop curriculum and
prepare teaching materials and outlines for courses
Prepare, administer and
mark tests and papers to evaluate students' progress
Advise students on
program curricula and career decisions
Provide individualized
tutorial/remedial instructions
Supervise independent
or group projects, field placements, laboratory work or hands-on training
Supervise teaching
assistants
May provide
consultation services to government, business and other organizations
May serve on committees
concerned with matters such as budgets, curriculum revision and course and
diploma requirements.
· These instructors specialize in particular fields or areas of study
such as visual arts, dental hygiene, welding, engineering technology, policing,
computer software, management and early childhood education.
· [Emphasis in original]
5 Attached
to his application on the Schedule 3, Economic Classes - Federal Skilled
Workers form, the applicant indicated for the NOC 4131 requirement that he had
more than one year but less than two years of experience. He described the main
duties of his experience as follows: "Worked as a Lecturer with Government
Post Graduate College, Kohat, Pakistan & taught Political Science to
Bachelor of Arts degree students according to University syllabus using
lectures, discussion & [sic] seminars."
6 The
applicant submitted with his application a Service Certificate from the
Government Post Graduate College, Kohat. The Certificate indicated that the
applicant was a lecturer in Political Science for the 2007-2008 session and
that he was "delivering lectures of Political Science to inter and Degree
classes respectively".
7 The
Officer's notes on the applicant's application are recorded in the Global Case
Management System [GCMS] as follows:
· Although the NOC Code 4131 corresponds to an occupation specified in
the instructions, I am not satisfied that client actually has experience in
this occupation: none of the reference letters on file satisfied me that client
performed the main duties for this occupation. Subj stated he had 1 yr of
experience in NOC4131 on Schedule 3. Work reference letter from post grad
college Kohat states that client worked as lecturer, however no other duties provided. I am therefore, not satisfied that he is a college teacher as per
the national occupation classification's definition. Application refused.
· [Emphasis added]
8 The
letter sent to the applicant denying his application stated the following:
· Although the NOC code corresponds to the occupations specified in
the Instructions, the main duties that you listed do not indicate that you
performed all of the essential
duties and a substantial number
of the main duties, as set out in the occupational descriptions of the
NOC.
· [Emphasis added]
ISSUES
9 The
issues that arise are the following:
Is the decision of the Officer
that the applicant failed to demonstrate that he met the requirements of NOC
4131 for performance of the main duties reasonable?
Should the applicant
have received a fairness letter?
STANDARD OF REVIEW
10 The
respondent submits that factual determinations by an officer and findings of
fact are reviewable on a standard of reasonableness. I agree. See, for example,
Kniazeva v Canada (Minister of Citizenship and
Immigration), 2006 FC 268 at para 15.
ANALYSIS
Issue #1: Is the decision
of the Officer that the applicant failed to demonstrate that he met the
requirements of NOC 4131 for performance of the main duties reasonable?
11 The
applicant raised the issue that the Officer changed the criteria applicable to
him midstream and without notice. First, he submitted that the refusal letter
applied the wrong test because the Officer stated that he did not perform
"all of the essential duties," while the NOC only speaks of
indications that "some or all of the main duties" be performed. I
find this to be an error of inadvertence in the letter, which misstated the
Officer's decision by referring to "essential duties," and not
"main duties." Moreover, NOC 4131 does not contain any essential
duties.
12 The
applicant further argues that the Officer also applied the wrong test for main
duties when stating in his refusal letter that the applicant had not indicated
that he had performed a "substantial number of the main duties". As
described above, the NOC only refers to the requirement that the applicant
perform "some or all of the main duties".
13 The
Officer appears to rely upon Regulation 80(3)(b) of the Immigration
and Refugee Protection Regulations [IRPR], SOR/ 93-22 which states that a skilled worker is considered to have
experience if he or she performed at least a substantial number of the main
duties of the occupation as set out in the NOC:
(3) For the purposes of
subsection (1), a skilled worker is considered to have experience in an
occupation, regardless of whether they meet the employment requirements of the
occupation as set out in the occupational descriptions of the National Occupational Classification, if they
performed
· (b) at least a substantial number of the main duties of the
occupation as set out in the occupational descriptions of the National Occupational Classification,
including all the essential duties.
|
[Emphasis added]
|
|
* * *
(3) Pour l'application
du paragraphe (1), le travailleur qualifié, indépendamment du fait qu'il
satisfait ou non aux conditions d'accès établies à l'égard d'une profession ou
d'un métier figurant dans les description des professions de la Classification nationale des professions, est
considéré comme ayant acquis de l'expérience dans la profession ou le métier
:
· b) s'il a exercé une
partie appréciable des fonctions principales de la
profession ou du métier figurant dans les descriptions des professions de cette
classification, notamment toutes les fonctions essentielles.
|
[Nous soulignons]
|
|
14 Jurisprudence
of this Court has interpreted "some or all of the main duties" of the
NOC as a minimum threshold of "some". This has been further interpreted
to mean more than one duty, i.e. two main duties. See, for example A'Bed v Canada (Minister of Citizenship and Immigration), 2002 FCT 1027 and the cases cited therein (Chen v Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 422 (TD); Bhutto v Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1411 (TD); and Agrawal v Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 930)). It does not appear that these cases
considered whether the requirement of Regulation 80(3)(b) described above of
performing a "substantial number" of the main duties of the
occupation should have priority over the NOC requirement of "some or
all".
15 However,
it is worth noting the relationship between the IRPR and the NOC requirements. NOC descriptions are developed by the
Department of Human Resources and Skills Development Canada [HRSDC] pursuant to
the IRPR. Section 2 of the IRPR states:
· "National Occupational Classification" means the National Occupational
Classification developed by the Department of Human
Resources and Skills Development and Statistics Canada, as amended from time to
time.
* * *
· "Classification nationale des
professions" Le document intitulé Classification nationale des professions
élaboré par le ministère des Ressources humaines et du Développement des
compétences et Statistique Canada, avec ses modifications successives.
As a result, while the language of the NOC
descriptions provides guidance to officers selecting qualified candidates, the IRPR would normally be thought to take
precedence over the descriptions. If the Regulations use the language of
"substantial number" while the NOC description uses the language of
"some or all," one would think that the Regulations would supersede
the NOC description.
16 Sullivan on the Constructions of Statutes,
5th ed (Ottawa: LexisNexis Canada Inc, 2008) at 623-624 has stated:
· When an authority to make interpretive guidelines is conferred by
statute, the resulting directives are not necessarily legislation. In Canada (Minister of Citizenship and Immigration v. Thamorem, for example, the Federal Court of Appeal ruled that directives
made under s. 159 of the Immigration and Refugee
Protection Act, providing that the Chairperson of the
Immigration and Refugee Board "may issue guidelines in writing to the
members of the Board...to assist members in carrying out their duties,"
were merely administrative in character and lacked the status of law. In his majority
judgment, Evans J.A. pointed out the advantages achieved through reliance on
guidelines and other "soft law."
17 In
any case, the applicant raised the issue of the "substantial number"
requirement as described in the Officer's refusal letter for the first time at
the hearing over the objections of the respondent. Were I not satisfied that
the applicant failed in his application to provide information that he had
performed two of the main duties listed, I would have adjourned the matter to
permit submissions on the point of whether the requirement in the NOC should
have priority over that stated in the Regulation. As mentioned, it does not
seem to have come up in the previous jurisprudence and it is not clear that
given the normal hierarchy in legislative schemes the substantial number
requirement in the Regulation should not prevail.
18 However,
I agree with the respondent that the only reference contained in the materials
before the Officer (the Service Certificate from the Government Post Graduate
College, Kohat) identifies that the applicant performed only the one duty of
lecturing, and none of the other main duties described in the NOC.
19 Additionally,
while not determinative, but contributing to the reasonableness of the
decision, I note that the statement at the end of the list of main duties
indicates that instructors targeted by the NOC should teach vocational skills
"such as visual arts, dental hygiene, welding, engineering technology,
policing, computer software, management and early childhood education."
The employment information provided by the applicant was that he taught general
academic knowledge courses such as political science.
20 I
conclude therefore that the decision of the Officer that the applicant failed
to demonstrate that he met the requirements of NOC 4131 for performance of some
or all of the main duties was reasonable.
Issue #2: Should the
Applicant have received a fairness letter?
21 The
applicant also argues that he should have received a "fairness letter."
22 I
disagree. There is no requirement to issue a fairness letter or otherwise
advise an applicant of the deficiencies in his application before rejecting it
on the grounds of mere insufficiency of evidence (see Kamchibekov
v Canada (Minister of Citizenship and Immigration),
2011 FC 1411). A duty of fairness may require officials to inform applicants of
their concerns where a visa officer forms a negative impression of evidence
tendered by the applicant (see, for example, Hassani v
Canada (Minister of Citizenship and Immigration), 2006
FC 1283, [2007] 3 F.C.R. 501 and Rukmangathan v Canada
(Minister of Citizenship and Immigration), 2004 FC 284
at paras 22-23). Those are not the facts herein.
CONCLUSION
23 For
the reasons given above, this application for judicial review is denied.
24 There
is no question requiring certification.
JUDGMENT
THIS COURT'S JUDGMENT is that this application for judicial review is denied.
ANNIS J.
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