Date: 20061004
Docket: IMM-7445-05
Citation: 2006 FC 1181
Toronto, Ontario, October 4,
2006
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
FRANCIA
ANTOINETTE MCHUGH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Francia
Antoinette McHugh applied for permanent residence in Canada as a skilled
worker. A Visa Officer refused her application, finding that there was no
comparison between the duties that she had performed in the context of her
employment in Jamaica, and the
requirements of the occupational categories in question.
[2]
Ms.
McHugh now seeks judicial review of the Officer’s decision, asserting that the
Officer erred in a number of respects. I am satisfied that the Officer committed
a reviewable error in her assessment of Ms. McHugh’s eligibility under the
Administrative Officer category. As a result, it is not necessary to address
the other arguments advanced on her behalf.
Background
[3]
After
completion of a three year college program, Ms. McHugh received a diploma in
Business Administration, with a specialization in Accounts. She then attended
university, graduating with a Bachelors of Business Administration, with a
major in Finance.
[3]
[4]
Since
then, Ms. McHugh has received additional training in accounting, including
training in asset liabilities and treasury management.
[5]
After
working as a secretary in the Prime Minister’s office, Ms. McHugh joined the
National Commercial Bank of Jamaica in 1993, where she
continues to work to this day. She was initially employed by the Bank as an
Administrative Officer, a position she held until 1998. She then became a
Banking and Accounting Officer, and later became a Banking and Investment
Officer.
[6]
Ms.
McHugh applied for consideration under the National Occupational
Classifications (NOC) categories of “Other Financial Officers” (category
1114), and “Administrative Officers” (category 1221). In support of her
application, Ms. McHugh provided a detailed description of the duties that she
had performed in association with each of the positions that she had held with
the National Commercial Bank. In addition, Ms. McHugh provided a letter from
the Bank itself, which confirmed Ms. McHugh’s duties over the relevant period.
The Officer’s Decision
[7]
The
Computer Assisted Immigration Processing System (“CAIPS”) notes indicate that
Ms. McHugh was not awarded any points for her work experience. The notes go on
to record that the list of Ms. McHugh’s duties provided by the Bank had been
compared with the lead statement and main duties of NOC 1114 and NOC 1221.
[8]
The
Visa Officer concluded that Ms. McHugh had not met the minimum requirements of
either type of position as “[Ms. McHugh’s] employment documents do not show
that [she] has performed the actions described in the lead statement of NOC
1114 and or NOC 1221. The employment documents also do not show [that she] has
performed a substantial number of main duties, including all the essential
duties of NOC 1114 and or NOC 1221”.
[9]
In
her decision letter, the Visa Officer went on to say that she had found “no
comparison” between the list of Ms. McHugh’s duties provided by the Bank, and
the lead statement and main duties of either of the occupational categories in
question. As a result, Ms. McHugh’s application for a visa was rejected.
Analysis
[10]
The
parties agree that in assessing an application for a permanent residence in the
skilled worker class, Visa Officers are required to give the NOC categories a
liberal interpretation, and the requirements of the job in question have to be
assessed with flexibility: see Patel v. Canada (Minister of Citizenship and
Immigration), 2000 F.C.J. No. 1983.
[11]
Job
requirements also have to be assessed in the operational context in which the
individual has actually worked: see Moneim v. Canada (Minister of
Citizenship and Immigration), [2000] F.C.J. No. 1977.
[12]
The
“lead statement” for Administrative Officers describes their duties in the
following terms:
Administrative officers oversee and
implement administrative procedures, establish work priorities and co-ordinate
the acquisition of administrative services such as office space, supplies and
security services. They are employed throughout the private and public
sectors.
[13]
In
addition, Administrative Officers are required to have performed some or all of
the following main duties:
∙ Oversee
and co-ordinate office administrative procedures and review, evaluate and
implement new procedures
∙ Establish
work priorities, delegate work to office support staff, and ensure deadlines
are met and procedures are followed
∙ Carry
out administrative activities associated with admissions to post-secondary
educational institutions
∙ Administer
policies and procedures related to the release of records in processing
requests under government access to information and privacy legislation
∙ Co-ordinate
and plan for office services, such as accommodation, relocations, equipment,
supplies, forms, disposal of assets, parking, maintenance and security services
∙ Assist
in preparation of operating budget and maintain inventory and budgetary
controls
∙ Assemble
data and prepare periodic and special reports, manuals and correspondence.
[14]
In
this case, although the Visa Officer found that the evidence did not
demonstrate that Ms. McHugh had performed all of the essential duties of an
Administrative Officer, NOC 1221 does not identify any essential duties for the
position.
[15]
It
should also be noted that NOC 1221 requires that applicants have performed some
or all of the duties in question. This allows a Visa Officer to give
greater weight to certain duties contained in the job description over others,
but does not require that applicants must have performed all of the duties
listed in the NOC: see Farooqui v. Canada (Minister of Citizenship and
Immigration), [2000] F.C.J. No. 714, 182 F.T.R. 306, and Moneim, previously
cited.
[16]
With
this in mind, a review of Ms. McHugh’s application, and, in particular, the
letter describing her responsibilities at the Bank reveals that her
responsibilities included the preparation and maintenance of detailed reports,
statistics, profiles and financial statements. In addition, she was required
to prepare quarterly financial statements, inter-company schedules and monthly
cash books. She was also required to maintain bank accounts on a daily basis,
amongst other tasks.
[17]
From
this it is clear that Ms. McHugh’s documented financial management skills
demonstrate that she would satisfy several of the criteria for the
Administrative Officer category, in particular as they relate to the
administration of the internal financial management of the Bank, the
preparation of reports, and duties in budgetary administration.
[18]
While
Visa Officers have considerable discretion in determining whether an applicant
satisfies the requirements of a given occupation, and in interpreting the
provisions of a NOC, I am nonetheless satisfied that, in this case, the
Officer’s conclusion that there was “no comparison” between the list of Ms.
McHugh’s duties provided by the Bank, and the duties of Administrative Officers
was patently unreasonable. As a consequence, the Officer’s decision cannot
stand.
Conclusion
[19]
For
these reasons, the application for judicial review is allowed.
Certification
[20]
Neither
party has suggested a question for certification, and none arises here.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. This
application for judicial review is allowed, and the matter is remitted to a
different visa officer for re-assessment; and
2. No
serious question of general importance is certified.
“Anne
Mactavish”
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