Date: 20101208
Docket: IMM-1587-10
Citation: 2010 FC 1255
Ottawa, Ontario, December 8,
2010
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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JUANITA ALICIA PENELOPE DASH
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for a judicial review of the decision of a designated
immigration officer dated December 11, 2009, to refuse the Applicant’s
application for permanent residence under the Skilled Worker category. The
officer determined that the Applicant did not have the equivalent of one year
of full-time experience within the ten years preceding her application date.
[2]
Based
on the reasons below the application is dismissed.
I.
Background
A.
Factual
Background
[3]
Juanita
Alicia Penelope Dash (the Applicant) is a citizen of Guyana resident in
the British Virgin Islands. In January 2007 she applied for permanent resident
status under the Skilled Worker category, including her husband as a
dependent. The application was received by the Immigration Section of the High
Commission of Canada in Port-of-Spain, Trinidad and
Tobago
on January 19, 2007.
[4]
The
Applicant received a letter on March 24, 2009 advising her that her application
had been brought forward for review and requesting information, including an
updated application form, employment letters and evidence of funds. The
visa office received this information on May 12, 2009.
[5]
The
Computer Assisted Immigration Processing System (CAIPS) notes include the
following:
PA HAS TWO YEARS OF EXPERIENCE
AS AN ADMINISTRATIVE OFFICER – NOC: 1221 – SKILL LEVEL B
…
EXPERIENCE:
APR2000 – MAY2000 – OMAI GOLD MINES – SAMPLER
TRAINEE/GEOLOGICAL TECHNICIAN
JUL2000 – DEC2001 – BANK OF
NOVA SCOTIA – STATEMENT CLERK, TELLER
JAN2007 – MAY2009 – JGS
TELECOM –ADMINISTRATIVE OFFICER
[6]
The
Applicant then received a refusal letter dated December 11, 2009. This is the
decision that is now under review.
B. Impugned
Decision
[7]
The
visa officer found that the Applicant did not meet the minimum work experience
required by paragraph 75(2)(a) of the Immigration and Refugee Protection
Regulations, SOR/2002-227 (IRPR). This rule requires an applicant to have
at least one year of continuous full-time employment experience, or the
equivalent in part-time employment, within the ten years preceding the date of
their application for a permanent resident visa.
C. Legislative
Scheme
[8]
Section
75 of the IRPR describes the class of federal skilled workers. Subsection
75(2) sets out the minimum requirements that an applicant must meet in order to
qualify as a skilled worker. Paragraph 75(2)(a) specifies:
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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.
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Qualité
(2)
Est un travailleur qualifié l’étranger qui satisfait aux exigences suivantes
:
a)
il a accumulé au moins une année continue d’expérience de travail à temps
plein au sens du paragraphe 80(7), ou l’équivalent s’il travaille à temps
partiel de façon continue, au cours des dix années qui ont précédé la date de
présentation de la demande de visa de résident permanent, 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 — exception faite des professions d’accès limité;
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 cette classification;
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 cette classification, notamment toutes les fonctions
essentielles.
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[9]
Subsection
75(3) provides that the application for a permanent resident visa will be
refused and not further assessed if the foreign national fails to meet the
minimal requirements of subsection 75(2).
[10]
Subsection
76(1) sets out the selection criteria for the purpose of determining whether a
skilled worker will be able to become economically established in Canada.
[11]
Section
77 explains that the requirements and criteria set out in sections 75 and 76
must be met at the time an application for a permanent resident visa is made as
well as at the time the visa is issued.
II. Issues
[12]
The
issues raised in this application are:
(a) Was the Applicant denied procedural
fairness in that she had a legitimate expectation that her post-application
work experience would be considered to meet the requirement under paragraph
75(2)(a)?
(b) Did
the visa officer breach a duty of procedural fairness by failing to adequately
explain why the Applicant’s pre-application work was not considered
satisfactory to meet the paragraph 75(2)(a) requirement?
III. Standard of Review
[13]
Both
issues are questions related to natural justice and procedural fairness. These
are questions of law and warrant review on a standard of correctness. As a
result the decision maker is owed no deference (Malik v. Canada (Minister of
Citizenship and Immigration), 2009 FC 1283, at para. 23). As
explained in Skechley v. Canada (Attorney General), 2005 FCA 404,
[2006] 3 F.C.R. 392 at para. 53:
The decision-maker has either
complied with the content of the duty of fairness appropriate for the
particular circumstances, or has breached this duty.
IV. Argument
and Analysis
A. The
Applicant Was Not Denied Procedural Fairness
[14]
The
Applicant submits that she had a legitimate expectation that the work
experience she acquired between the time of her initial application and the
assessment of her file by the visa officer would be considered when making a
decision. When the Applicant’s application was initially filed in January 2007
her work experience consisted of a one-month stint as a geological technician
between April and May 2000, and a position at the Bank of Nova Scotia as a
teller between July 2000 and December 2001 that was mostly part-time.
However, after submitting her application the Applicant began working as a
full-time administrative officer and still held that job when she updated her
application in May 2009. The Applicant contends that the visa officer ignored
this employment experience when determining that she did not meet the one-year
requirement set out in paragraph 75(2)(a).
[15]
This
argument counters the clear language of paragraph 75(2)(a) which requires that
applicants have at least one year of continuous full-time employment experience
within the 10 years preceding the date of their application (emphasis
added). To make this argument, the Applicant relies on two things: the
Citizenship and Immigration Canada (CIC) operational manual, “OP 6 Federal
Skilled Workers” which guides CIC employees in the exercise of their functions
and is publicly available on the CIC website; and the doctrine of legitimate
expectations which, so far in its judicial evolution, affects the content of
the duty of fairness owed to the individual if the individual has a legitimate
expectation that a certain procedure will be followed (see Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R.
(4th) 193 at para. 26).
[16]
The
Applicant submits that since OP 6 instructs officers to “take into account any
years of work experience that occur between application and assessment, and for
which the applicant has submitted the necessary documentation” (found in
section 10.13 of the 2009 version) when assessing the experience of applicants,
the visa officer failed to meet the Applicant’s legitimate expectation that her
post-application work experience would count towards fulfilling the subsection 75(2)
requirements.
[17]
I
fully agree with the Respondent’s submissions that, in essence, the Applicant
misunderstands the applicable regulations. Subsection 75(2) sets out the
minimal requirements a foreign national must meet in order to be considered a
skilled worker. According to subsection 75(3) if the applicant fails to
meet the requirements of subsection (2), “the application for a permanent
resident visa shall be refused and no further assessment is required”. This is
what happened to the Applicant’s application in the present matter – her
application failed to meet the minimal requirements and was rejected at the
earliest stage.
[18]
I
have reviewed OP 6, version 2009-05-08, and the phrase on which the Applicant
rests her legitimate expectation argument applies not to a subsection 75(2)
assessment but rather to the subsequent stage in processing, an assessment of
experience under subsection 76(1). In fact, preceding the statement relied
upon by the Applicant in section 10.12, one finds chapter 9, entitled, “Procedure:
Minimum requirements of a Federal Skilled Worker”. This chapter breaks down
section 75 into bullet points, notably one of which is:
[19]
The
work experience which will be assessed for all skilled worker applicants must:
• have
occurred within the 10 years preceding the date of application;
[20]
There
are also helpful tables which clarify the regulations for visual learners --
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If…
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Then
the officer will…
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The
applicant meets the minimal requirements
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Proceed to
Section 9.2
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The
applicant does not meet the minimal requirements
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Refuse
the application
(R75(3)); and
Not
assess the application against the selection criteria.
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Note:
Substituted evaluation (Section 11.3), cannot be used to overcome a failure
to meet the minimum
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(Found
on page 17 of the 2009 version, emphasis added)
[21]
So
a visa officer following the protocol of OP 6 in the Applicant’s case would
have determined that she did not have the requisite amount of work experience.
Only if the Applicant had met the minimum requirement set out in paragraph
75(2)(a) would the officer proceed to chapter 10 of OP 6. Chapter 10 is where
he or she would find the instruction to consider post-application work
experience as per section 77 of the IRPR. As the Respondent ably explained,
post-application experience is not relevant until an applicant meets the minimum
requirements which require pre-application experience. Section 77 applies to
both sections 75 and 76, and thus its directive that the requirements set out
in those sections must be met at the time the application is made as well as
the time that the visa is issued does not serve to cure an application that
does not meet the minimum requirements.
[22]
Giving
sections 75 and 76 of the IRPR their ordinary meaning it is quite clear that
the pre-application experience required under paragraph 75(2)(a) of IRPR does
not include post-application experience. As Deputy Justice Maurice Lagacé
stated in Khan v. Canada (Minister of
Citizenship and Immigration), 2009 FC 302 at para. 14, “It follows from
these provisions that an applicant who cannot meet the requirements of subsection
75(2) will invariably see his application refused under subsection 75(3)”. If
the Applicant had any legitimate expectation from reading the regulations and
the processing manual, it was that her application would be rejected.
[23]
The
Applicant suggests that given the long delays in processing applications it
would be more fair to consider the application date under paragraph 75(2)(a) to
be the date of assessment rather than the date of initial receipt at the visa
office. Though I am cognizant of the fact that applicants may have to endure a
lengthy waiting period, it is quite clear that applicants are meant to submit
their application after they have met the minimum requirements. The Applicant
had no legitimate expectations that were denied.
B. The
Reasons Were Adequate
[24]
The
Applicant further submits that the visa officer’s decision is also unfair
because she failed to provide any basis for finding that the Applicant’s work
experience at the Bank of Nova Scotia between July 2000 and December 2001 was
not skilled.
[25]
On
her application, the Applicant described her position at the bank as
“Teller/Customer Service” and listed it as falling under National Occupational
Classification (NOC) code 1212, which is a skilled occupation as required by subsection
75(2)(a). NOC 1212 describes “Supervisors, Finance and Insurance Clerks”. The
Applicant listed her main duties as “prepare customer bank statements, perform
cash transactions, open new accounts and cross-sell bank products, occasionally
lead a team of (4) sellers.” The Applicant explained that she was unable to
acquire a current letter of reference and job description from her employer, so
in lieu included old documents that were in her possession. These consisted of
a temporary employment contract and a letter confirming that the Applicant’s
status changed from part-time to full-time in October 2001. However, these
documents do not describe her work experience or duties performed.
[26]
In
the CAIPS notes, the visa officer assessed the Applicant’s experience at the
bank and concluded:
No proof that she performed
duties described in NOC 1212 (Skill level B). Between JUL00 to DEC01 subject
performed duties in NOC 1413 and NOC 1433 – both Skill Level C.
[27]
I
must disagree with the Applicant who finds these reasons to be inadequate. It
is settled law that visa applicants are owed a degree of procedural fairness
which falls at the low end of the spectrum (Pan v. Canada (Minister of
Citizenship and Immigration), 2010 FC 838 at para. 26, Chiau v.
Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297, [2000]
F.C.J. No. 2043 (QL) (C.A.) at para. 41). CAIPS notes have been held
to constitute sufficient reasons if they provide detail sufficient enough to
allow the applicant to know why their application was rejected (Bhandal v.
Canada (Minister of Citizenship and Immigration), 2006 FC 427, 147 A.C.W.S.
(3d) 474 at para. 18).
[28]
In
the present case, there was no proof provided by the Applicant to show that
that her experience was that which would be required to be classified as NOC
1212. The visa officer, who has experience in these matters, determined that
her position at Scotia Bank was better classified as NOC 1413 and NOC 1433,
neither of which are of skill type 0, or skill level A or B as required. In Khan,
above, the applicant argued that his work experience should have been listed as
NOC 1231 (even though he had applied under NOC 1431). The visa officer,
however, determined that the main duties listed by the applicant corresponded
more closely to NOC 1431 (“Accounting and related clerks”) which was not an O,
A or B level occupation. The Court held at para. 17 that, “The visa officer
had the expertise to make this assessment and the Court sees no valid reasons
to reverse the opinion of the decision maker…”. Clearly, visa officers are
recognized as having the experience to come to these conclusions.
[29]
As
the Respondent notes in the present matter, the visa officer pointed to
evidence, or a dearth thereof, assessed the requirements in light of the evidence,
and came to a conclusion. The Applicant cannot ask for anything more than a
discussion of the evidence which lays out the reasoning for the visa officer’s
conclusion. I am of the view that this “line of inquiry” is more than was
undertaken by the visa officer in Olorunshola v. Canada (Minister of
Citizenship and Immigration), 2007 FC 1056, 66 Imm. L.R. (3d) 192. In
this case, cited by the Applicant, a reviewable error was found because the
visa officer did not assess the occupation under the NOC code which the applicant
wished to be assessed, and for which the applicant provided supporting
documentation. At para. 24, the visa officer indicated in the CAIPS notes only
that the applicant, “[s]tated he worked as 4162 […] but clearly he has not.”
The other case law cited by the Applicant is also unhelpful to her case – Khan,
above, dismisses the applicant’s application for judicial review, because the
visa officer’s decision was determined to be reasonable, and Kumar v. Canada (Minister of
Citizenship and Immigration), 2010 FC 306, 88 Imm. L.R. (3d) 299 is a
case in which the applicant had a letter supporting her application, but, the
visa officer had credibility concerns which, in violation of the applicant’s
right to procedural fairness, were not put to her. Adu v. Canada (Minister of
Citizenship and Immigration), 2005 FC 565, 139 A.C.W.S. (3d) 164 is
case relating to a humanitarian and compassionate claim.
[30]
In
the present case, it cannot be said that the Applicant was not properly
assessed under her chosen NOC code, nor were the reasons of the visa officer
deficient in any way. Accordingly, this application for judicial review must
fail.
V. Conclusion
[31]
No
question to be certified was proposed and none arises.
[32]
In
consideration of the above conclusions, this application for judicial review is
dismissed.
JUDGMENT
THIS COURT’S JUDGMENT
is that
this application for judicial review is dismissed.
“ D.
G. Near ”
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