Date: 20061219
Docket: IMM-957-06
Citation: 2006 FC 1527
OTTAWA, ONTARIO, December 19, 2006
PRESENT: The Honourable Mr. Justice von Finckenstein
BETWEEN:
RAUL
REYNA MERCADO
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Background
[1]
This is an application for judicial review
of the December 8, 2005, decision of a Designated Immigration Officer
(“Immigration Officer”) wherein the Applicant’s application for permanent
residence as a member of the Federal Skilled Worker Class was refused pursuant
to subsections 75(2) and 76(1) of the Immigration and Refugee Protection
Regulations (“IRPR”), SOR/2002-227.
[2]
Raul Reyna Mercado (the
“Applicant”) made an application dated April 25, 2004, for permanent residence
in Canada as a Federal Skilled Worker under the IRPR.
He submitted evidence of his education, his basic knowledge of English with
approved test results, documents detailing his work experience as a Landscape Maintenance
Contract manager, an HRSDC confirmed indeterminate offer of arranged employment
as a Landscape Designer, and the fact that he has a family member in Canada. In his application for permanent residence, the
Applicant requested to be assessed as a Landscaping and Grounds Maintenance
Contractor and Manager (“Landscape Contractor”). The National Occupational
Classification code for Landscape Contractors is 8255 (“NOC 8255”).
Decision
[3]
The Immigration Officer
assessed the Applicant based on the selection criteria set out in subsections 75(2) and 76(1) of the IRPR.
The Immigration Officer found
that the Applicant was not able to meet the selection criteria of subsection
75(2). In addition, the
Applicant’s score was 43 rather than the required minimum score of 67 under s.
85.3(b). Accordingly, the application was denied.
Issues
[4]
The Applicant made four
points, namely, that the Immigration Officer:
a) erred in finding the Applicant did not meet s. 75(2) of the IRPR;
b) erred in not awarding 15 points for arranged employment under s. 82(2)(c)
of the IRPR;
c) failed to award the Applicant 5 points under s. 83(1)(e) of the IRPR;
and
d) failed to utilize the substituted evaluation methodology under s. 76(3)
of the IRPR.
Standard of Review
[5]
The standard of
review to be applied in the context of
an Immigration Officer's general decision is patent unreasonableness (see Hua v. Canada (Minister of
Citizenship and Immigration), 2004 FC
1647.
Statutory framework
[6]
The relevant statutory
provisions can be found in ss. 75, 76 and 82 of the IRPR which are
reproduced in the attached Annex 1.
Analysis
[7]
The scheme of the IRPR
is quite straight forward and is succinctly summarized in the Respondent’s
Further Memorandum of Argument. For simplicity, I will restate it here:
A. OVERVIEW OF THE FEDERAL SKILLED WORKER PROCESS
7.
In order to obtain a permanent residence visa,
an applicant must meet the two broad requirements set out by the Regulations,
namely that he i. qualifies as a federal skilled worker and ii. has the ability
to become economically established.
For the purposes of subsection 12(2) of the Act, the federal skilled
worker class is hereby prescribed as a class of persons who are skilled workers
and who may become permanent residents on the basis of their ability to become
economically established in Canada and who intend to reside in a province other than the Province of Quebec.
Immigration and Refugee Protection Regulations (“IRPR”) 75(1)
8.
An applicant will be considered a skilled worker
if:
(a)
within the 10 years preceding the date of their
application for a permanent resident visa, they have at least one year of
continuous full-time employment experience, as described in subsection 80(7),
or the equivalent in continuous part-time employment in one or more
occupations, other than a restricted occupation, that are listed in Skill Type
0 Management Occupations or Skill Level A or B of the National Occupational
Classification matrix;
(b)
during that period of employment they performed
the actions described in the lead statement for the occupation as set out in
the occupational description of the National Occupational Classification; and
(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.
IRPR, R. 75(2) (a-c)
9.
In other words, to be considered a skilled
worker, the applicant must demonstrate that he or she meets both the
qualitative (one year or equivalent work experience in requested NOCs) and
quantitative aspects (performed the required actions listed in the NOC during
that employment) of the regulatory definition.
10.
The Visa Officer need only consider whether an
applicant is likely to become economically established after the applicant has
demonstrated that he is a skilled worker.
IRPR, R. 75(3)
11.
To demonstrate that he has the ability to become
economically established in Canada, a skilled worker must meet the two broad requirements set out in
Regulation 76.
76(1) For the purpose of determining whether a skilled worker, as a
member of the federal skilled worker class, will be able to become economically
established in Canada, they
must be assessed on the basis of the following criteria:
(a)
the skilled worker must be awarded not less than
the minimum number of required points referred to in subsection (2) on the
basis of the following factors, namely,
(i)
education, in accordance with section 78,
(ii)
proficiency in the official languages of Canada, in accordance with section 79,
(iii)
experience, in accordance with section 80,
(iv)
age, in accordance with section 81,
(v)
arranged employment, in accordance with section
82, and
(vi)
adaptability, in accordance with section 83; and
(b)
the skilled worker must
(i)
have in the form of transferable and available
funds, unencumbered by debts or other obligations, an amount equal to half the
minimum necessary income applicable in respect of the group of persons
consisting of the skilled worker and their family members, or
(ii)
be awarded the number of points referred to in
subsection 82(2) for arranged employment in Canada within the meaning of subsection 82(1).
IRPR, R. 76(1)(a-b)
Issue a)
[8]
The Applicant argues
that the Immigration Officer incorrectly assessed his experience under s. 75(1)
and 8(1). He argues that he presented evidence of employment with Iberia Landscaping.
The Applicant contends that the evidence establishes that he meets the
requirements for Landscape Contractor as set out in NOC 8255. Accordingly, the Immigration
Officer incorrectly rejected such evidence as it was evidence of contracting
for services and not evidence of employment.
[9]
The letter from Iberia
Landscaping is quite short and states:
This letter is to confirm that Mr. Raul Reyna is working with our
organization as a landscape designer. He has held this position for 6 years. In
this position he is responsible for design, construction and garden
maintenance. He earns a yearly salary of $42,000.00.
(A.R. at 121.)
[10]
This letter seems to
clearly suggest that the Applicant is an employee as it uses the term ‘salary’.
During the interview, the Applicant instead argued that he was working as a
contractor for Iberia Landscaping and presented invoices showing that he billed
Iberia Landscaping for more than one year. However, the invoices only showed
that for six months (August 2004 to January 2005) he billed for landscape
maintenance, garden maintenance, grass cutting, and snow ploughing. This seems
more indicative of basic work more properly falling under the category of
Landscape Labourer under NOC 8612 than Landscape Contractor under NOC 8255.
[11]
Under cross-examination,
the Immigration Officer admitted that she applied s. 75 as if it only applied
to employment situations. In my view, this is a questionable interpretation as
s. 75(2) applies to “continuous full time employment experience” which could be
broad enough to cover contracting. However, this is immaterial; the Applicant
has to first establish that he qualifies as a skilled worker.
[12]
The evidence he
presented was contradictory (Iberia Landscaping said he received a salary, but he
stated he was a contractor). The only evidence he produced were self-generated
invoices which did not describe work done by a Landscape Contractor. As the Immigration
Officer summed up in her affidavit:
During the interview, I pointed out that the Applicant did not
produce supporting documents such as T4 slips from Iberia Landscape, Ltd., but
only invoices for services rendered. The Applicant admitted that he was not an
employee, but rather operated a business that provided services to Iberia
Landscape, Ltd. Although he insisted that he was working full time as a
landscape designer for Iberia Landscape, Ltd., the Applicant had no evidence to
support that he was working full time in any capacity for Iberia Landscape,
Ltd. As a result, I could not determine that he had acquired one year full-time
experience or its equivalent for the purposes of the Regulations.
[13]
Under these
circumstances, I find that the Immigration Officer quite reasonably found that the
Applicant had not established that he was a skilled worker.
Issue b)
[14]
The Applicant argues
that his arranged employment should have been assessed under s. 82(2)(c)
instead of 82(2)(a). He made his application from Canada on March 18, 2005, and went back to Mexico for his interview on October 25, 2005. While by his own admission he had
worked illegally in Canada for many years and never paid any taxes, at the time
of the assessment, he was in Mexico. He did not intend to work in Canada before being issued a permanent resident visa. He
thus, should be assessed under s. 82(2)(c). The CAIPS notes however reveal he
was assessed under s. 82(2)(a).
[15]
The Immigration Officer
gave no points for this offer as the arranged employment was for a position of
Landscape Designer (“NOC 2225”), not Landscape Contractor under NOC 8255. This
was not the NOC classification under which he sought to be qualified as a
skilled worker. In my view she was perfectly entitled to so proceed as he had
not applied under that NOC classification. It thus, does not directly support
his application.
[16]
More importantly, this
submission makes a mockery out of the Immigration and Refugee Protection Act
(“IRPA”) and cannot stand. First, it would require the
Immigration Officer to accept the Applicant’s illegal work experience in Canada to establish him as a skilled worker. Then as a
second step, the Immigration Officer has to treat the Applicant as a Mexican resident,
although he made his application while still in Canada. Furthermore as a result of the interview, the Immigration Officer then
needs to accept the Applicant’s assertion (given that the interview took place
in Mexico) that he does not intend to work in Canada before being issued a
permanent resident visa, notwithstanding that he has worked illegally in Canada
for years. The whole scheme of skilled worker is designed to bring skilled
workers to Canada legally. In order for the proposition of
the Applicant to work, the Immigration Officer has to be either wilfully blind
or to actively collaborate with the applicant to defeat the scheme of the IRPA.
It would be contrary to the design of the IRPA to adopt the
interpretation advocated by the Applicant or expect an Immigration Officer to
act in this manner. In my view, given that the Applicant was making the
application while working illegally in Canada, none of the provisions of s. 82(2) are available to him. The
Immigration Officer rightly disqualified him under s. 82(2)(a). She could have
done so equally under s. 82(2)(c).
Issue c)
[17]
Given that I ruled
against the Applicant on issues a) and b) this issue becomes irrelevant. However,
if I am wrong under both issues a) and b) then indeed I don’t see why the
Applicant would not qualify under s. 83(1)(e) for an extra 5 points. Given his
low score, unless he succeeds on issues a) and b) the additional five points
will make no difference to the overall outcome of his application.
Issue d)
[18]
The Applicant argues
that the Immigration Officer erred by not employing a substituted evaluation
scheme under s. 76(3). This reflects a misunderstanding of s. 76(3). Section
76(3) only comes into play once an Immigration Officer has found that an Applicant
qualifies as a skilled worker but does not acquire the requisite minimum number
of points. Here, the Applicant never qualified as a skilled worker, thus the Immigration
Officer could never invoke s. 76(3).
[19]
For all these reasons,
none of the arguments advanced by the Applicant convince the Court that the Immigration
Officer’s decision was patently unreasonable. Accordingly, this application
will not succeed.
ORDER
THIS COURT ORDERS that this application be
dismissed.
“Konrad
W. von Finckenstein”
Annex 1
Federal Skilled Worker Class
Class
75. (1) For the
purposes of subsection 12(2) of the Act, the federal skilled worker class is
hereby prescribed as a class of persons who are skilled workers and who may
become permanent residents on the basis of their ability to become economically
established in Canada and who intend to reside in a province other than the
Province of Quebec.
Skilled workers
(2) A foreign national is a skilled
worker if
(a) within the 10 years preceding the date of their
application for a permanent resident visa, they have at least one year of
continuous full-time employment experience, as described in subsection 80(7),
or the equivalent in continuous part-time employment in one or more
occupations, other than a restricted occupation, that are listed in Skill Type
0 Management Occupations or Skill Level A or B of the National Occupational
Classification matrix;
(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;
and
(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.
Minimal requirements
(3) If the foreign national fails to
meet the requirements of subsection (2), the application for a permanent
resident visa shall be refused and no further assessment is required.
SOR/2004-167, ss. 27, 80(F).
Selection criteria
76. (1) For the
purpose of determining whether a skilled worker, as a member of the federal
skilled worker class, will be able to become economically established in Canada,
they must be assessed on the basis of the following criteria:
(a) the skilled worker must be awarded not less than the
minimum number of required points referred to in subsection (2) on the basis of
the following factors, namely,
(i) education, in accordance with section 78,
(ii) proficiency in the official languages of Canada, in
accordance with section 79,
(iii) experience, in accordance with section 80,
(iv) age, in accordance with section 81,
(v) arranged employment, in accordance with section 82, and
(vi) adaptability, in accordance with section 83; and
(b) the skilled worker must
(i) have in the form of transferable and available funds,
unencumbered by debts or other obligations, an amount equal to half the minimum
necessary income applicable in respect of the group of persons consisting of
the skilled worker and their family members, or
(ii) be awarded the number of points referred to in subsection
82(2) for arranged employment in Canada within the
meaning of subsection 82(1).
Number of points
(2) The Minister shall fix and make
available to the public the minimum number of points required of a skilled
worker, on the basis of
(a) the number of applications by skilled workers as
members of the federal skilled worker class currently being processed;
(b) the number of skilled workers 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 economic and other
relevant factors, for the establishment of skilled workers in Canada.
Circumstances for officer's
substituted evaluation
(3) Whether or not the skilled
worker has been awarded the minimum number of required points referred to in
subsection (2), an officer may substitute for the criteria set out in paragraph
(1)(a) their evaluation of the likelihood of the ability of the skilled
worker to become economically established in Canada if the number of points
awarded is not a sufficient indicator of whether the skilled worker may become
economically established in Canada.
Concurrence
(4) An evaluation made under
subsection (3) requires the concurrence of a second officer.
82. (1) In this
section, “arranged employment” means an offer of indeterminate employment in Canada.
Arranged employment (10 points)
(2) Ten
points shall be awarded to a skilled worker for arranged employment in Canada
in an occupation that is listed in Skill Type 0 Management Occupations or Skill
Level A or B of the National Occupational Classification matrix if they
are able to perform and are likely to accept and carry out the employment and
(a) the skilled worker is in Canada and holds a
work permit and
(i) there has been a determination by an officer under section 203
that the performance of the employment by the skilled worker would be likely to
result in a neutral or positive effect on the labour market in Canada,
(ii) the skilled worker is currently working in that employment,
(iii) the work permit is valid at the time an application is made
by the skilled worker for a permanent resident visa as well as at the time the
permanent resident visa, if any, is issued to the skilled worker, and
(iv) the employer has made an offer to employ the skilled worker
on an indeterminate basis once the permanent resident visa is issued to the
skilled worker;
(b) the skilled worker is in Canada and holds a work permit
referred to in paragraph 204(a) or 205(a) or subparagraph 205(c)(ii)
and the circumstances referred to in subparagraphs (a)(ii) to (iv)
apply;
(c) the skilled worker does not intend to work in Canada before
being issued a permanent resident visa and does not hold a work permit and
(i) the employer has made an offer to employ the skilled worker on
an indeterminate basis once the permanent resident visa is issued to the
skilled worker, and
(ii) an officer has approved that offer of employment based on an
opinion provided to the officer by the Department of Human Resources
Development at the request of the employer or an officer that
(A) the offer of employment is genuine,
(B) the employment is not part-time or seasonal employment, and
(C) the wages offered to the skilled worker are consistent with
the prevailing wage rate for the occupation and the working conditions meet
generally accepted Canadian standards; or
(d) the skilled worker holds a work permit and
(i) the circumstances referred to in subparagraphs (a)(i)
to (iv) and paragraph (b) do not apply, and
(ii) the circumstances referred to in subparagraphs (c)(i)
and (ii) apply.
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