This is a very unusual set of facts and a very interesting decision. The court rejected the argument that the requirement to pass a language test was discriminatory against applicants who were deaf. and scored poorly in the test.
Smirnov v. Canada (Minister of Citizenship and
Immigration)
Between
Dmitri Alexandrovich Smirnov, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2013] F.C.J. No. 585
2013 FC 554
Docket IMM-12568-12
Federal Court
Ottawa, Ontario
Boivin J.
Heard: May 15, 2013.
Judgment: May 27, 2013.
(37 paras.)
REASONS FOR JUDGMENT AND JUDGMENT
1 BOIVIN J.:-- This is an application for
judicial review pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (the Act) of
a decision of a Citizenship and Immigration Canada case officer (the officer),
dated November 29, 2012, wherein the applicant's application for a permanent
resident visa as a member of the Canadian experience class was refused. The
officer was not satisfied that the applicant met the official language
proficiency requirements prescribed in the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the
Regulations). For the following reasons, the application for judicial review
will be dismissed.
Facts
2 Mr.
Dmitri Smirnov (the applicant) is a citizen of Russia and is deaf since birth.
He primarily uses sign language to communicate (Application Record, Affidavit
of the Applicant, p 8). According to the applicant, primary and secondary
education for the deaf in Russia was not adequately adapted to deaf students'
needs, and the applicant left high school at what he deems to be the equivalent
of grade ten (10) in Canada, but perceives that the materials learned are
equivalent to that of grade eight (8) in Canada (Application Record, Affidavit
of the Applicant, pp 9-10). The applicant is now fluent in American Sign
Language (ASL), which he learned upon his arrival in the United States
(Application Record, Affidavit of the Applicant, p 10). The applicant lived in
the United States as a permanent resident prior to moving to Canada in February
2006 (Respondent's Record, Affidavit of Jennifer Carlile, Tab 2, para 6;
Tribunal Record, p 95). The applicant has worked in Canada as a painter since
his arrival in 2006 (Tribunal Record, pp 81-83). His current work permit in
Canada is valid until June 2014 (Respondent's Record, Affidavit of Jennifer
Carlile, Tab 2, para 5).
3 The
applicant submitted a Generic Application Form (IMM 0008) for permanent
residence on December 3, 2011 (Tribunal Record, pp 81-92). The applicant
indicated he was applying as a "skilled worker" (Tribunal Record, p
81), a Division in the Regulations that encompasses both the federal skilled
workers and Canadian experience classes, amongst others. The applicant
submitted a Schedule 8 form for the Canadian experience class, where he
indicated having more than two (2) years of experience working full-time in
Canada under the National Occupational Classification (NOC) code 7294,
"Painter", since February 2006 (Tribunal Record, pp 99-101). He did
not submit a Schedule 3 form for the federal skilled worker class. He was
assessed under the Canadian experience class.
4 Along
with his application, the applicant submitted a report from the International
English Language Testing System (IELTS), indicating test results of 3.5 on both
reading and writing abilities (Tribunal Record, p 107). A test result of 3.5 in
reading converts to a Canadian Language Benchmark (CLB) score of less than 4,
while a test result of 3.5 in writing converts to a CLB score of 4
(Respondent's Book of Authorities, Tab 4, p 14, Operational Manual 25: Canadian
Experience Class). The IELTS report included comments to the effect that due to
the applicant's extreme speaking and hearing difficulties, he was exempt from
the speaking and listening tests. The applicant was nonetheless given scores of
3.5 on both speaking and listening abilities, scores which were
"notionalized on the basis of the average of the other two
bandscores" (Tribunal Record, p 107).
5 The
applicant also included test results from the Canadian Hearing Society for his
abilities in American Sign Language (ASL), for which the applicant scored 9.2
out of 10 for Expressive skills (analogous to "speaking") and 9 out
of 10 for Receptive skills (analogous to "listening") (Tribunal
Record, pp 116-17). The applicant also submitted a letter from his representative
explaining that he was deaf since birth and commenting on his ability to
communicate in a very detailed manner using ASL (Tribunal Record, pp 109-10).
Impugned decision
6 In
a decision dated November 29, 2012, the officer refused the applicant's
application for a permanent resident visa as a member of the Canadian
experience class. The officer explained that applicants in the Canadian
experience class are assessed on a pass/fail basis as set out in paragraph
87.1(2) of the Regulations. The officer assessed the applicant's application
based on his work experience as a painter (NOC 7294).
7 The
officer's notes indicate that the supporting documents submitted by the applicant
were sufficient to demonstrate his experience under his declared NOC 7294
Painter category. The notes also reveal that the officer was aware that the
applicant is deaf, and obtained scores of 9.2 and 9.0 on ASL proficiency
assessments for Expressive and Receptive tests, respectively (Tribunal Record,
p 2).
8 However,
the officer was not satisfied that the applicant met the official language
proficiency requirement, having received IELTS scores of 3.5 on both reading
and writing, equivalent to Canadian Language Benchmarks (CLB) of 4 or less. The
officer explained that, based on his occupation and his application in the
Canadian experience class, the applicant was required to obtain either CLBs of
5 in each ability (reading, writing, speaking and listening), or the following
combination: a CLB of 4 in one (1) ability, 5 or more in two (2) abilities, and
6 or more in the remaining ability. Since the applicant has two (2) CLBs of 4
or less, he did not meet the official language requirement and his application
was refused.
Issues
9 The
Court is of the view that the issues raised in this application for judicial
review are as follows :
·
a.
Did the officer err by
not taking into account the applicant's ASL scores?
·
b.
Did the officer err by
not assessing the applicant's application under the federal skilled workers
class, but only under the Canadian experience class?
·
c.
Did the officer's
decision refusing the applicant's application for permanent residence and the
Regulations violate the right to equality guaranteed by subsection 15(1) of the
Charter?
Relevant legislation
10 The
relevant dispositions from the Act and its Regulations are set out in the Annex
to this judgment. The Regulations have been modified since the officer's
November 29, 2012 decision. The Regulations in force at the time specifically
provided that a foreign national who acquired work experience in an occupation
listed in Skill Level B of the National Occupational Classification matrix, as
is the applicant's case, had to have their abilities to speak, listen, read and
write assessed by a designated organization or institution and meet the
following benchmarks: i) either a CLB score of 5 or higher on each of the four
(4) abilities, or ii) a CLB score of 4 for any one (1) ability, a CLB score of
5 or higher for any other two (2) abilities, and a CLB score of 6 or higher for
the remaining ability. These are the benchmarks the officer used to evaluate
the applicant.
11 The
Regulations now provide, through section 74 which was not in force at the time
the impugned decision was rendered, that the Minister shall fix, by class or by
occupation, minimum language proficiency thresholds on the basis of the number
of applications processed in all classes, the number of immigrants who are
projected to become permanent residents, and the potential for the
establishment in Canada of applicants in the federal skilled worker class, the
Canadian experience class, and the federal skilled trades class, taking into
account their linguistic profiles, economic factors and other relevant factors.
Standard of review
12 The
applicant contends that the applicable standard of review in the present case
is correctness. The respondent, on the other hand, submits that an officer's
determination under the Canadian experience class involves findings of fact and
law, and is therefore reviewable on a standard of reasonableness (Anabtawi v Canada (Minister of Citizenship and Immigration), 2012 FC 856 at para 28, 11 Imm LR (4th) 302; Arachchige v Canada (Minister of Citizenship and Immigration), 2012 FC 1068 at para 8, [2012] F.C.J. No. 1150 (QL)).
13 The
Court agrees with the respondent that the issues pertaining to the officer's
determination of the applicant's application for permanent residency are
subject to the deferential standard of reasonableness. The Court should
therefore not intervene unless the officer's decision in that regard is not
transparent, justifiable and intelligible and within the range of acceptable outcomes
based on the evidence (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 SCR 190 [Dunsmuir]).
14 Issues
of procedural fairness, on the other hand, do not require deference from this
Court with regards to the approach adopted by the officer (Dunsmuir, above at para 50; Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12 at para 43, [2009] 1 SCR 339).
15 The
Court notes that the approach put forth by the Supreme Court of Canada in Doré v Barreau du Québec, 2012 SCC 12, [2012]
1 SCR 395 [Doré], states that
questions involving the Canadian Charter of Rights and
Freedoms, Part I of the Constitution
Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter], do not necessarily automatically
mandate for the application of the correctness standard. Such an approach would
result in applying the correctness standard to, and in effect retrying, every
case that involves Charter
values. The Supreme Court of Canada indicated the following in Doré, above at paras 36, 43:
·
[36] As explained by Chief
Justice McLachlin in Alberta v. Hutterian Brethren of
Wilson Colony, 2009 SCC 37, [2009] 2 SCR 567, the
approach used when reviewing the constitutionality of a law should be distinguished from the approach used for reviewing an administrative
decision that is said to violate the rights of a particular individual (see also Bernatchez).
When Charter values are applied
to an individual administrative decision, they are being applied in relation to
a particular set of facts. Dunsmuir tells us this should attract deference (para. 53; see also Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 SCR 3, at para. 39). When
a particular "law" is being assessed for Charter compliance, on the other hand, we are dealing with principles of
general application.
·
...
·
[43] What is the impact of this
approach on the standard of review that applies when assessing the compliance
of an administrative decision with Charter values? There is no doubt that when a tribunal is determining the
constitutionality of a law, the standard of review is correctness (Dunsmuir, at para. 58). It is not at all
clear to me, however, based on this Court's jurisprudence, that correctness
should be used to determine whether an administrative decision-maker has taken
sufficient account of Charter
values in making a discretionary decision.
16 The
issue of whether or not the Regulations violate the applicant's rights to
equality pursuant to subsection 15(1) of the Charter was not before the officer, and is therefore not being
"reviewed" by this Court. It also concerns a general application of
the law, an analysis the Court can undertake without deference.
Arguments
Applicant's arguments
17 The
applicant submits that the officer erred by ignoring significant evidence;
namely, his ASL scores, which he submitted along with his application. According
to the applicant, the officer failed to consider this important evidence, and
failed to explain how she dealt with the speaking and listening abilities in
her decision. According to the applicant, this is problematic in the
application of subparagraph 87.1(2)(b)(ii) of the Regulations in force at the time, which requires a
score of 5 on all four (4) abilities, or a score of 4 for any one (1) ability,
a score of 5 or higher for any other two (2) abilities, and a score of 6 or
higher for the remaining ability.
18 The
applicant also argues that the officer erred by not considering him under the
federal skilled workers class. Although he acknowledges having submitted only a
Schedule 8 form for the Canadian experience class, he contends that the officer
should have followed up with him and clarified under which class he wanted to
be assessed. The applicant contends that this is particularly the case because
of the ambiguity on his Generic Application Form IMM 0008, where he simply
indicated "skilled worker" (a Division in the Regulations which
encompasses both the federal skilled workers class and the Canadian experience
class, amongst others). The applicant submits that he could have benefited from
the more nuanced evaluation provided in the legislative framework for federal
skilled workers, along with subsection 76(3) of the Regulations which provides
for a substituted evaluation when the points are an insufficient indicator of
the likelihood of economic establishment. The applicant claims this constitutes
a breach in procedural fairness.
19 With
regards to the Charter issue,
the applicant contends that both the officer's decision applying the
Regulations, as well as the Regulations themselves as they are drafted, violate
his subsection 15(1) Charter rights
to equality:
·
EQUALITY RIGHTS
·
Equality before and under law
and equal protection and benefit of law
·
15. (1)
Every individual is equal before and under the law and has the right to the
equal protection and equal benefit of the law without discrimination and, in
particular, without discrimination based on race, national or ethnic origin,
colour, religion, sex, age or mental or physical disability.
* * *
·
DROITS A L'ÉGALITÉ
·
Égalité devant la loi, égalité
de bénéfice et protection égale de la loi
·
15. (1)
La loi ne fait acception de personne et s'applique également à tous, et tous
ont droit à la même protection et au même bénéfice de la loi, indépendamment de
toute discrimination, notamment des discriminations fondées sur la race,
l'origine nationale ou ethnique, la couleur, la religion, le sexe, l'âge ou les
déficiences mentales ou physiques.
20 The
applicant argues that the officer violated his section 15 rights by not
subsuming his ASL results into the official language proficiency required by
the Regulations and that the requirements to read, listen, speak and write
contained in paragraph section 87.1(2)(b) of the Regulations in force at the time of the decision violate
his subsection 15(1) Charter
rights.
21 The
applicant argues that deaf persons have been repeatedly recognized by the
courts as a disadvantaged minority in Canada (citing Eldridge
v British Columbia (Attorney General), [1997] 3 SCR
624, 151 DLR (4th) 577). He claims that the law creates a distinction based on
disability due to the requirement to speak and listen in former paragraph
87.1(2)(b) of the Regulations,
and that no deaf person could ever succeed in obtaining permanent residency
under the Canadian experience class as the Regulations are drafted. The
applicant claims that the other two (2) assessed abilities, "read"
and "write", are also necessarily impaired by the inability to speak
and listen in a society predominantly disposed towards hearing persons,
particularly when learning a second language. The applicant also indicates that
the respondent has failed to designate any institution or organization such as
the Canadian Hearing Society, which could assess a deaf person's expressive and
receptive ASL abilities. According to the applicant, the respondent has
infringed his Charter rights by
failing to draft or interpret legislation that treats his fluency in ASL as
equivalent to fluency in English.
22 The
applicant finally raises Charter
issues with regards to sections of the Act relating to the federal skilled
workers class, under which he was not assessed because he did not apply under
that class (sections 75 to 83 of the Regulations).
Respondent's arguments
23 According
to the respondent, the sole issue in this case is whether the officer's
decision was reasonable. The respondent argues that the applicant's application
contained a clear indication of which class he wished to be considered for
since it included a Schedule 8, mandatory for the Canadian experience class,
and not a Schedule 3, which is mandatory for the federal skilled workers class.
According to the respondent, it is CIC's policy to accept applications for
processing despite minor errors, and the officer was therefore required to
accept the application as a complete Canadian experience class application.
24 The
respondent argues that the officer did not consider the applicant's ASL results
because they were irrelevant since he had already failed the language
requirements on the basis of the reading and writing tests. Since the
Regulations do not provide a points scheme whereby two (2) scores below a CLB
of 5 can result in a successful application, it was not necessary to consider
the ASL results. Because the applicant's failure to meet the reading and
writing standards were fatal to his claim, the respondent contends that it was
reasonable for the officer to reject the claim on that basis.
25 Relying
on the observations of this Court in Worthington v
Canada (Minister of Citizenship and Immigration), 2004
FC 1546, 258 FTR 102, aff'd 2006 FCA 30, 346 NR 312 [Worthington]), the respondent submits that this application does not raise a Charter issue because there was no evidence
before the officer that the applicant's abilities to read and write were
negatively impacted by his deafness. Indeed, the respondent argues that the
applicant's argument is predicated on the notion that he was treated adversely
as a result of being deaf, but that the evidentiary basis for this argument was
not established. Since no evidence was placed before the officer that his
inability to meet the standards in reading and writing was due to his deafness,
the respondent submits that there was no need for the officer to consider how
to accommodate the applicant, and no need for this Court to evaluate whether
the officer failed in doing so.
26 The
respondent contends that the officer had no discretion to ignore the
requirements imposed by the Regulations, and that the applicant did not request
consideration on humanitarian and compassionate (H&C) grounds before the
officer. Because the applicant did not provide information regarding Russian schooling
to the officer, but only in his affidavit before this Court, the officer was
not required to consider H&C grounds and was without evidence that the
applicant would suffer unusual, undeserved or disproportionate hardship if
required to return to Russia. According to the respondent, it is not open to
the applicant to raise this argument now in his application for judicial
review.
Analysis
Administrative law issues
27 The
Court will first examine the administrative law issues raised by the applicant.
The applicant's argument according to which the officer did not take into
consideration an important element of evidence - namely, his ASL scores - must
fail. Indeed, the officer's notes clearly show that she was aware of the
applicant's deafness and of his high ASL scores (Tribunal Record, p 2). The
officer's notes are part of her reasons for decision (Baker
v Canada (Minister of Citizenship and Immigration),
[1999] 2 SCR 817, 174 DLR (4th) 193). The officer considered the ASL scores, as
well as the reading and writing scores, which were equal to and lower than the
prescribed CLB of 4, respectively. It was reasonable for the officer to come to
the conclusion that the applicant did not meet the language requirements based
on these two (2) results alone. Indeed, given the points system prescribed by
the regulatory framework at the time, and the absence of discretion under the
Canadian experience class, it was impossible for the officer to accept the
applicant's application with the scores he obtained on the reading and writing
tests, regardless of his score on speaking/expressive and listening/receptive
abilities. The record also shows that the applicant's representative's letter
enclosed with the application acknowledges that the ASL results are equivalent
to spoken and comprehended English (Tribunal Record, p 109).
28 The
Court notes that the applicant only submitted a Schedule 8 form for an
application under the Canadian experience class, and no Schedule 3 form for the
federal skilled workers class. The Court can therefore find no error in the
officer's decision to assess the applicant under the Canadian experience class
- the only class for which the applicant provided a complete application. It
would be imposing a heavy administrative burden on immigration officers to
require them to assess applicants not only under the class for which they
applied, but also under possible other classes to determine if the outcome
there would be more successful. Contrary to the applicant's assertion, the
officer did not engage in "cherry picking" of a class under which to
evaluate the applicant, but evaluated the applicant in the only class for which
his application was complete.
29 The
Court finds that the officer did not err by assessing the applicant under the Canadian
experience class, and only under the Canadian experience class, since this was
the only form submitted by the applicant (Tribunal Record, Schedule 8, pp
99-101). The presence of this form, and the absence of the mandatory Schedule 3
for the federal skilled workers class, dispelled any ambiguity that might have
arisen from the applicant's use of imprecise wording on his general application
form. The applicant has not convinced this Court that the officer had a duty to
contact him to perfect his application. There is no breach in procedural
fairness.
Subsection 15(1) Charter violation
30 A
subsection 15(1) claim involves a two-part test established by jurisprudence as
follows: i) Does the law create a distinction based on an enumerated or
analogous ground? and ii) Does the distinction create a disadvantage by
perpetuating prejudice or stereotyping? (Withler v
Canada (Attorney General), 2011 SCC 12 at para 30,
[2011] 1 SCR 396 [Withler]; R v Kapp, 2008 SCC 41 at para 17, [2008] 2
SCR 483). The Supreme Court of Canada in Withler, above at para 2, also stated that "[a]t the end of the day
there is only one question: Does the challenged law violate the norm of
substantive equality in s. 15(1) of the Charter?"
31 The
Court first recalls the importance of a strong factual background for
allegations of Charter
violations, as illustrated by the following comment set forth by Justice
Layden-Stevenson in Worthington,
above at paras 24-25 :
·
[24] The mere existence of a
constitutional question does not mean that the court is obliged to determine
it. It is an established practice in Canadian law that, if a judge can decide a case without dealing with a constitutional
issue, he or she should do so: R.J. Sharpe, K.E.
Swinton and K. Roach, The Charter of Rights and Freedoms, 2nd ed. (Toronto: Irwin Law, 2002) at p. 97. It is incumbent on
the court to ensure that a proper factual foundation exists before measuring
legislation against the provisions of the Charter, particularly
where the effects of impugned legislation are the subject of the attack: Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086 at 1099. Adjudicative facts are those that
concern the immediate parties. They are specific and must be proved by
admissible evidence: ibid.
Charter decisions should not and must not be made in a factual vacuum. To do so
would trivialize the Charter and inevitably result in ill-considered opinions.
The absence of a factual base is not just a technicality that can be
overlooked, it is a flaw that is fatal: MacKay v.
Manitoba, [1989] 2 S.C.R. 357 at 361.
·
[25] This application is
fraught with difficulties, the nature of judicial review being one of them.
Judicial review proceedings are narrow in scope. Their essential purpose is the
review of decisions for the purpose of assessing their legality. The reviewing
court [absent exceptional circumstances not applicable here] is bound by the
record that was before the judge or the board. Fairness to the parties and the
court or tribunal under review dictates such a limitation: Bekker v. Canada (2004), 323 N.R. 195
(F.C.A.) (Bekker). The reviewing
court must proceed on the record as it exists, confining itself to the criteria
for judicial review: McKenna, supra, at paragraph 6.
32 In
MacKay v Manitoba, [1989] 2 SCR
357, [1989] S.C.J. No. 88 (QL) at para 9, referred to in the excerpt above, the
Supreme Court of Canada had indicated the following:
·
[9] Charter decisions should
not and must not be made in a factual vacuum. To attempt to do so would
trivialize the Charter and inevitably result in ill-considered opinions. The
presentation of facts is not, as stated by the respondent, a mere technicality;
rather, it is essential to a proper consideration of Charter issues. A
respondent cannot, by simply consenting to dispense with the factual
background, require or expect a court to deal with an issue such as this in a
factual void. Charter decisions cannot be based upon the unsupported hypotheses
of enthusiastic counsel.
33 In
the present case, the Court is of the view that the evidence in support of the
applicant's Charter argument is
insufficient.
34 For
instance, the applicant presented this Court with no evidence as to why the ASL
scores should replace, or have more weight than the reading and writing
abilities. Also, the applicant argues that the Regulations do not "take
into account the impairment on written language skills suffered by some Deaf
persons due to an education system that disadvantages them due to attitudinal
barriers" (Application Record, Applicant's Memorandum of Fact and Law, p
25, para 23). However, there is no evidence that deaf persons would have
greater difficulty reading and writing than non-deaf persons, other than the
applicant's personal experience with the primary school system in Russia.
35 Accordingly,
the Court will not examine the applicant's arguments in that regard since the
officer did not apply these provisions to him. Arguments of Charter violations will not be examined in a
legal and factual vacuum (Worthington, above).
36 Given
the factual pattern of this case and the lack of evidence adduced by the
applicant with regard to the alleged violation of his section 15 Charter right to equality, the Court must
decline to address the Charter
question raised by the applicant.
37 The
parties did not propose any question of general importance to be certified.
JUDGMENT
THIS COURT'S JUDGMENT is that the application for judicial review is dismissed. No question of
general importance is certified.
BOIVIN J.
* * * * *
Annex
Immigration and Refugee Protection Act, SC 2001, c 27:
Selection of Permanent Residents
...
Economic immigration
·
12. (2)
A foreign national may be selected as a member of the economic class on the
basis of their ability to become economically established in Canada.
* * *
Sélection des résidents permanents
[...]
Immigration économique
·
12. (2)
La sélection des étrangers de la catégorie "immigration économique"
se fait en fonction de leur capacité à réussir leur établissement économique au
Canada.
Immigration and Refugee Protection Regulations, SOR/2002-227 in force at the time of the decision:
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
·
(2)
A foreign national is a
member of the Canadian experience class if
·
...
·
(b) 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
·
(i)
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,
·
(A)
7 or higher for each
of those abilities, or
·
(B)
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
·
(ii)
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,
·
(A)
5 or higher for each
of those abilities, or
·
(B)
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.
...
Designated organization
·
(4)
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.
* * *
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
·
(2)
Fait partie de la
catégorie de l'expérience canadienne l'étranger qui satisfait aux exigences
suivantes :
·
[...]
·
b) 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 :
·
(i)
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:
·
(A)
7 ou plus pour chacune
des aptitudes,
·
(B)
6 pour l'une des
aptitudes, 7 ou plus pour deux des aptitudes et 8 ou plus pour l'aptitude
restante,
·
(ii)
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:
·
(A)
5 ou plus pour chacune
des aptitudes,
·
(B)
4 pour l'une des
aptitudes, 5 ou plus pour deux aptitudes et 6 ou plus pour l'aptitude
restante.
[...]
Organisme désigné
·
(4)
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.
Immigration and Refugee Protection Regulations, SOR/2002-227, currently in force:
General
Criteria
·
74. (1)
For the purposes of paragraphs 75(2)(d), 79(3)(a), 87.1(2)(d) and (e) and 87.2(3)(a), the
Minister shall fix, by class prescribed by these Regulations or by occupation,
and make available to the public, minimum language proficiency thresholds on
the basis of
·
(a) the number of applications in all classes under this Part that are
being processed;
·
(b) the number of immigrants who are projected to become permanent
residents according to the report to Parliament referred to in section 94 of
the Act; and
·
(c) the potential, taking into account the applicants' linguistic
profiles and economic and other relevant factors, for the establishment in
Canada of applicants under the federal skilled worker class, the Canadian
experience class and the federal skilled trades class.
·
Minimum language proficiency
thresholds
·
(2)
The minimum language
proficiency thresholds fixed by the Minister shall be established in reference
to the benchmarks described in the Canadian Language
Benchmarks and the Niveaux de
compétence linguistique canadiens.
·
Designation for evaluating
language proficiency
·
(3)
The Minister may
designate, for any period specified by the Minister, any organization or
institution to be responsible for evaluating language proficiency if the
organization or institution has expertise in evaluating language proficiency
and if the organization or institution has provided a correlation of its
evaluation results to the benchmarks set out in the Canadian
Language Benchmarks and the Niveaux
de compétence linguistique canadiens.
...
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 ability to become economically established in Canada, their
experience in Canada, and their intention to reside in a province other than
the Province of Quebec.
·
Member of the class
·
(2)
A foreign national is a
member of the Canadian experience class if
·
(a) they have acquired in Canada, within the three years before the
date on which their application for permanent residence is made, at least one
year 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, exclusive of restricted occupations; and
·
(b) during that period of employment they performed the actions
described in the lead statement for the occupation as set out in the
occupational descriptions of the National Occupational Classification;
·
(c) during that period of employment they performed a substantial
number of the main duties of the occupation as set out in the occupational
descriptions of the National Occupational Classification, including all of the
essential duties;
·
(d) they have had their proficiency in the English or French language
evaluated by an organization or institution designated under subsection 74(3)
and have met the applicable threshold fixed by the Minister under subsection
74(1) for each of the four language skill areas; and
·
(e) in the case where they have acquired the work experience referred
to in paragraph (a) in more than
one occupation, they meet the threshold for proficiency in the English or
French language, fixed by the Minister under subsection 74(1), for the
occupation in which they have acquired the greater amount of work experience in
the three years referred to in paragraph (a).
* * *
Dispositions générales
Critères
·
74. (1)
Pour l'application des alinéas 75(2)d), 79(3)a), 87.1(2)d) et e) et 87.2(3)a), le
ministre établit, par catégorie réglementaire ou par profession, les niveaux de
compétence linguistique minimaux en se fondant sur les éléments ci-après et en
informe le public :
·
a) le
nombre de demandes en cours de traitement au titre de toutes les catégories
prévues à la présente partie;
·
b) le
nombre d'immigrants qui devraient devenir résidents permanents selon le rapport
présenté au Parlement conformément à l'article 94 de la Loi;
·
c) les
perspectives d'établissement au Canada des demandeurs au titre de la catégorie
des travailleurs qualifiés (fédéral), de la catégorie de l'expérience
canadienne et de la catégorie des travailleurs de métiers spécialisés
(fédéral), compte tenu de leur profil linguistique, des facteurs économiques et
d'autres facteurs pertinents.
·
Niveaux de compétence
linguistique minimaux
·
(2)
Les niveaux de
compétence linguistique minimaux établis par le ministre sont fixés d'après les
normes prévues dans les Niveaux de compétence
linguistique canadiens et dans le Canadian Language Benchmarks.
·
Désignation pour l'évaluation
de la compétence linguistique
·
(3)
Le ministre peut
désigner, pour la durée qu'il précise, toute institution ou organisation
chargée d'évaluer la compétence linguistique si l'institution ou l'organisation
possède de l'expertise en la matière et si elle a fourni une équivalence des
résultats de ses tests d'évaluation linguistique avec les normes prévues dans
les Niveaux de compétence linguistique canadiens et dans le Canadian Language Benchmarks.
[...]
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 capacité à réussir leur établissement
économique au Canada et de leur expérience au Canada et qui cherchent à
s'établir dans une province autre que le Québec.
·
Qualité
·
(2)
Fait partie de la
catégorie de l'expérience canadienne l'étranger qui satisfait aux exigences
suivantes :
·
a)
l'étranger a accumulé au Canada au moins une année d'expérience de travail à
temps plein, ou l'équivalent temps plein pour un travail à temps partiel, dans
au moins une des professions, autre qu'une profession d'accès limité,
appartenant au genre de compétence 0 Gestion ou aux niveaux de compétence A ou
B de la matrice de la Classification nationale des professions au cours des
trois ans précédant la date de présentation de sa demande de résidence
permanente;
·
b)
pendant cette période d'emploi, il a accompli l'ensemble des tâches figurant
dans l'énoncé principal établi pour la profession dans les descriptions des
professions de la Classification nationale des professions;
·
c)
pendant cette période d'emploi, il a exercé une partie appréciable des
fonctions principales de la profession figurant dans les descriptions des
professions de la Classification nationale des professions, notamment toutes
les fonctions essentielles;
·
d) il a
fait évaluer sa compétence en français ou en anglais par une institution ou
organisation désignée en vertu du paragraphe 74(3) et obtenu, pour chacune des
quatre habiletés langagières, le niveau de compétence applicable établi par le
ministre en vertu du paragraphe 74(1);
·
e) s'il
a acquis l'expérience de travail visée à l'alinéa a) dans le cadre de plus
d'une profession, il a obtenu le niveau de compétence en anglais ou en français
établi par le ministre en vertu du paragraphe 74(1) à l'égard de la profession
pour laquelle il a acquis le plus d'expérience au cours des trois années visées
à l'alinéa a).
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
GUARANTEE OF RIGHTS AND FREEDOMS
Rights and freedoms in Canada
·
1. The Canadian Charter of Rights and Freedoms
guarantees the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably justified in a free
and democratic society.
·
...
·
EQUALITY RIGHTS
·
Equality before and under law
and equal protection and benefit of law
·
15. (1)
Every individual is equal before and under the law and has the right to the
equal protection and equal benefit of the law without discrimination and, in
particular, without discrimination based on race, national or ethnic origin,
colour, religion, sex, age or mental or physical disability.
·
...
* * *
GARANTIE DES DROITS ET LIBERTÉS
Droits et libertés au Canada
·
1. La Charte canadienne des droits et libertés
garantit les droits et libertés qui y sont énoncés. Ils ne peuvent être
restreints que par une règle de droit, dans des limites qui soient raisonnables
et dont la justification puisse se démontrer dans le cadre d'une société libre
et démocratique.
·
[...]
·
DROITS A L'ÉGALITÉ
·
Égalité devant la loi, égalité
de bénéfice et protection égale de la loi
·
15. (1)
La loi ne fait acception de personne et s'applique également à tous, et tous
ont droit à la même protection et au même bénéfice de la loi, indépendamment de
toute discrimination, notamment des discriminations fondées sur la race,
l'origine nationale ou ethnique, la couleur, la religion, le sexe, l'âge ou les
déficiences mentales ou physiques.
cp/e/qlaim/qlrdp
