Docket: IMM-4242-11
Citation: 2012 FC 856
Ottawa, Ontario, July 5, 2012
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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TAREK ANABTAWI
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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 pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the Act) for judicial review of a
decision of an officer of the visa section of the Canadian Consulate in
Detroit, USA (the officer), dated June 7, 2011, wherein the applicant was
denied permanent residence under the Canadian experience
class of subsection 12(2) of the Act and subsection 87.1 of the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the Regulations). This
decision was based on the officer’s finding that the applicant did not meet the
statutory skilled work experience requirement.
[2]
The applicant requests that the officer’s decision be quashed and the
matter be remitted for redetermination by a different officer.
Background
[3]
The
applicant, Tarek Anabtawi, is a citizen of Jordan.
[4]
The
applicant entered Canada in 2004 as a student.
He completed a Bachelor of Arts degree at the University of Toronto in June 2008. After
graduation, the applicant obtained a post-graduate work permit, valid between
January 2009 and March 2010. During that time, he was employed with Prime Force
Inc. (Prime Force), a recruitment company located in Mississauga, Ontario.
[5]
In
May 2010, the applicant submitted an application for permanent residence under
the Canadian experience class of skilled workers. This class was introduced in
2008 for temporary foreign workers or graduates with Canadian work experience.
Applications for permanent residence under this class are assessed based on
official Canadian language proficiency, Canadian skilled work experience and
Canadian educational credentials (section 87.1 of the Regulations). Further
details on this program are provided in Citizenship and Immigration Canada’s
Overseas Processing Manual, OP-25.
[6]
In
his application, the applicant included an employment letter from Mr. Fadek
Zighmi, the president of Prime Force. This letter indicated that the applicant
had worked as a full time human resources officer from January 2009 through
March 2010 and listed the applicant’s main duties. The applicant stated that
his work duties corresponded to those listed for human resources officers,
referred to as “Personnel and Recruitment Officer”, under National Occupation
Classification (NOC) 1223.
[7]
On
March 19, 2011, the officer reviewing the application called Mr. Zighmi to
confirm the details of the applicant’s employment. Mr. Zighmi’s description of
the applicant’s role at Prime Force differed significantly from that provided
in his employment letter. For example, according to Mr. Zighmi, the applicant
was a customer service representative and his duties included answering
telephones, receiving applications from candidates and opening files. In addition,
rather than forty employees, there were only three employees working in Prime
Force’s office.
[8]
Based
on these inconsistencies, the officer emailed the applicant on March 29, 2011
and notified him that there was a concern that his main duties at Prime Force
were not those of a human resources officer. The applicant was given 45 days to
provide additional information and/or documentation to disabuse the officer of
his concerns.
[9]
The
applicant sent an email response to the officer on May 12, 2011. The applicant
explained the different tasks he undertook while working for Prime Force which
he believed fulfilled the duties of a human resources officer. He also
explained that while only three employees worked in Prime Force’s office, the
company sent more than forty temporary workers to other companies. The
applicant stated that both he and his employer would be willing to submit an
affidavit attesting to these facts.
Officer’s Decision
[10]
In a
letter dated June 7, 2011, the officer denied the applicant’s application. The
Global Case Management System (GCMS) notes that form part of the officer’s
decision explain the reasons for the denial.
[11]
The
officer was not satisfied that the applicant met the skilled work experience
requirement. The officer explained that he reviewed the documentation submitted
with the application, including the applicant’s reply from May 12, 2011.
However, based on these submissions and the officer’s verification with the
applicant’s employer (Mr. Zighmi), the officer was not satisfied that the
applicant performed all of the essential duties and a substantial number of the
main duties of a human resources officer, as described under NOC 1223. As such,
the officer was not satisfied that the applicant met the statutory requirements
and therefore refused the applicant’s application.
Issues
[12]
The
applicant submits the following points at issue:
1. What is the standard of
review?
2. Did the officer err by
importing irrelevant criteria when assessing work experience?
3. Was the officer’s decision
that the applicant did not have relevant work experience unreasonable?
4. Are the reasons for
decision deficient?
5. Should costs be awarded
to the applicant?
[13]
I
would rephrase the issues as follows:
1. What is the appropriate
standard of review?
2. Did the officer apply the
correct legal test for assessing the applicant’s work experience?
3. Did the officer err in
assessing the applicant’s work experience?
4. Did the officer deny the
applicant procedural fairness?
Applicant’s Written Submissions
[14]
The
applicant submits that the officer’s finding that the applicant did not have
the required work experience is reviewable on a reasonableness standard.
Conversely, the question of whether the officer imported irrelevant criteria
when assessing work experience is reviewable on a correctness standard.
Similarly, the adequacy of reasons is reviewable on a correctness standard.
[15]
The
applicant submits that the Regulations only require applicants to have full
time or full time equivalent work experience in an occupation defined as
skilled under the NOC. The Regulations do not state how work experience should
otherwise be assessed. The applicant submits that the officer erred by
importing criteria listed in the Regulations for the federal skilled worker class
when assessing the applicant’s work experience under the Canadian experience class.
Specifically, the officer required the applicant to have “performed all of the
essential duties and a substantial number of main duties”. However, this is a
requirement under subsection 80(3) of the Regulations which applies to the
federal skilled worker class; a different type of application pertaining to a
different subject matter. The applicant submits that as this rigid criteria was
not included under section 87.1 of the Regulations, it must be presumed that
Parliament intended that a more lenient or flexible approach be taken towards
the Canadian experience class as compared to the federal skilled worker class.
The officer therefore erred in importing this criterion from the federal skilled
worker class and applying it to his assessment of the applicant’s Canadian experience
class application.
[16]
In
the alternative, the applicant submits that the officer erred in not
appreciating that the applicant did meet the criteria applied to the assessment
of his application. A comparison of the duties set out in the applicant’s
submissions (including his employment letter and subsequent email response) and
those listed under NOC 1223 shows that the applicant met all of the duties set
out in the main statement for the occupation and met a substantial number of
the other main duties. The officer did not provide any explanation as to why
the evidence submitted by the applicant did not satisfy the officer’s concerns.
[17]
Finally,
the applicant submits that the officer did not provide any reasoning or
explanation in the decision for his findings. In addition, if the officer
disbelieved the applicant’s submissions on his work experience, he questioned
the applicant’s credibility in so doing. The applicant submits that it is trite
law that the officer should then have provided the applicant with an
opportunity to respond to his concerns. Although the officer provided the
applicant with an opportunity to respond to his concerns by email, he erred in
law by not explaining to the applicant why he disbelieved him or granting him
an interview and providing him with a proper opportunity to disabuse him of his
concerns.
[18]
The
applicant submits that the officer’s errors in this case were egregious and
justify the awarding of costs.
Respondent’s Written Submissions
[19]
The
respondent agrees with the applicant that the officer’s decision on whether the
applicant had the required work experience is reviewable on a reasonableness
standard. However, contrary to the applicant’s submissions, the respondent
submits that the issue of whether the officer applied the wrong legal test to
his finding on the applicant’s work experience is reviewable on a
reasonableness standard. Nevertheless, even on a correctness standard, the
officer did not err in applying the legal test.
[20]
The
respondent submits that as section 87.1 of the Regulations does not provide a
specific test for determining the “12 months of full-time equivalent Canadian
skilled-work experience” requirement, the officer had to look elsewhere in the
Regulations for direction on how to evaluate the applicant’s work experience.
[21]
The
respondent submits that the application of the federal skilled worker class to
the Canadian experience class is confirmed by paragraph 15(2)(b) of the Interpretation
Act, RSC, 1985, c I-21, which provides that:
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15. (2) Where
an enactment contains an interpretation section or provision, it shall be
read and construed
. . .
(b) as
being applicable to all other enactments relating to the same subject-matter
unless a contrary intention appears.
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15. (2) Les
dispositions définitoires ou interprétatives d’un texte :
. .
.
b) s’appliquent,
sauf indication contraire, aux autres textes portant sur un domaine
identique.
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[22]
The
respondent submits that the definition of work experience under subsection
80(3) and section 87.1 of the Regulations relate to identical subject matter
and the two provisions are found under the same general heading. Further, no
contrary intention appears in the legislation. If Parliament had intended a
more flexible approach for the Canadian experience class, the respondent
submits that a separate definition would have been provided so that section 15
of the Interpretation Act would not apply. The officer therefore applied
the correct test in evaluating the applicant’s work experience. The officer’s
ultimate finding was within the range of reasonable outcomes based on the
contradictory evidence before him, for which no explanation was provided.
[23]
The
respondent also submits that the officer’s reasons were adequate and there was
no breach of procedural fairness. It is inappropriate to require an administrative
officer to give as detailed reasons as those that would be expected of
administrative tribunals that render decisions after adjudicative hearings.
Nevertheless, the officer’s reasons and his earlier email clearly explain why
the applicant’s application was rejected. The fact that the officer did not
repeat these concerns in his decision does not render his reasons deficient. As
there was no doubt as to why the application was rejected, there was no breach
of procedural fairness.
[24]
Further,
the respondent submits that the officer was not under any obligation to conduct
an interview to confront the applicant with his concerns. The officer’s email
was sufficient for notifying the applicant of the officer’s concerns and for
granting him an opportunity to respond. The fact that the applicant’s response
was inadequate did not impose a positive obligation on the officer to inquire further.
As such, there was no breach of procedural fairness.
[25]
Finally,
the respondent submits that as the applicant has not demonstrated any special
reasons warranting costs, none should be awarded in this case.
[26]
In
the respondent’s further memorandum of argument, the respondent also submits
that the letter from Mr. Zighmi that was included in the applicant’s record
should not be considered in this application. In his letter, Mr. Zighmi
asserted that there was no contradiction between the letter of employment
initially submitted and the phone conversation he had with the officer in March
2011. However, Mr. Zighmi’s letter is dated July 22, 2011; over a month after
the officer’s decision letter was issued. As reviewing Courts are bound on
judicial review to the record that was before the decision maker, the
respondent submits that Mr. Zighmi’s letter should not be considered by this
Court on this application.
Analysis and Decision
[27]
Issue
1
What is the
appropriate standard of review?
Where previous jurisprudence has
determined the standard of review applicable to a particular issue before the
court, the reviewing court may adopt that standard (see Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1
SCR 190 at paragraph 57).
[28]
This application pertains to the Canadian experience class under
the skilled workers division (Division 1) of the permanent residence economic
classes (Part 6) of the Regulations. As this class was only recently introduced,
no jurisprudence has yet developed on the related statutory provisions. However,
significant jurisprudence has developed on the older federal skilled worker class,
also contained under Division 1 of Part 6 of the Regulations. Officer’s
determinations under this latter class have been held to involve findings of
fact and law that are reviewable on a standard of reasonableness (see Malik
v Canada (Minister of Citizenship and Immigration), 2009 FC 1283, [2009]
FCJ No 1643 at paragraph 22; and Khan v Canada (Minister of Citizenship and
Immigration), 2009 FC 302, [2009] FCJ No 676 at paragraph 9). Officer’s
determinations under the Canadian experience class also involve findings of
fact and law and are therefore also reviewable on a standard of reasonableness.
[29]
Further, as stated by the respondent, it is well established
jurisprudence that the standard of review for questions pertaining to the
interpretation of a decision maker’s enabling statute or statutes that are
closely connected to its function is reasonableness (see Smith v Alliance
Pipeline Ltd, 2011 SCC 7, [2011] 1 S.C.R. 160 at paragraph 26). Therefore, the
question of whether the officer applied the correct legal test for assessing
the applicant’s work experience is also reviewable on a standard of
reasonableness.
[30]
In
reviewing the officer’s decision on a standard of reasonableness, the Court
should not intervene unless the officer came to a conclusion that is not
transparent, justifiable and intelligible and within the range of acceptable
outcomes based on the evidence before it (see Dunsmuir above, at
paragraph 47; and Canada (Citizenship and Immigration) v Khosa, 2009
SCC 12, [2009] SCJ No 12 at paragraph 59). As the Supreme Court held in Khosa
above, it is not up to a reviewing court to substitute its own view of a
preferable outcome, nor is it the function of the reviewing court to reweigh
the evidence (at paragraphs 59 and 61).
[31]
Conversely,
the appropriate standard of review for issues of procedural fairness and
natural justice is correctness (see Malik above, at paragraph 23; Khan
above, at paragraph 11; and Khosa above, at paragraph 43). No deference is owed to officers
on this issue (see Dunsmuir above, at paragraph 50).
[32]
Issue
2
Did the officer apply the correct
legal test for assessing the applicant’s work experience?
The applicant submits that the
officer erred by requiring that he perform “all of the essential duties and a
substantial number of the main duties of a human resources officer” when
employed with Prime Force. The requirement to perform all essential duties and
a substantial number of the main duties of a NOC category is the mandated work
experience requirement for federal skilled worker class applicants under
subsection 80(3) of the Regulations. Conversely, the statutory provisions for
Canadian experience class applicants, under paragraph 87.1(2)(a) of the
Regulations, require applicants to have acquired “at least 12 months 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”. The
applicant submits that this latter statutory requirement is less rigid than the
former and it must therefore be presumed that Parliament intended a more
lenient approach be taken towards the Canadian experience class compared to the
federal skilled worker class.
[33]
Parliament’s
intent in enacting the new skilled worker class thus lies at the centre of this
analysis. According to the Canadian Gazette, Parliament created the new class
in recognition of challenges with the federal skilled worker class process.
These challenges included: long wait times due to backlogs; limited
responsiveness to labour market demand for skilled tradespersons due to the
emphasis on formal education; and a failure to meet the labour market needs of
communities outside major metropolitan areas due to highly concentrated
settlement patterns. By enacting the new class, Parliament therefore sought to
“[a]ttract more temporary foreign workers and foreign students to Canada and retain them as
permanent residents, thereby enhancing Canada’s ability to compete against
countries like Australia that have similar
programs”. As such, the new class would be selected on a pass/fail model rather
than a points system as applied under the existing federal skilled worker class.
Further, the stated rationale for the weekly work experience requirement of
37.5 hours was that it was consistent with other sections of the Regulations,
specifically subsection 80(7) and paragraph 88(1)(a).
[34]
Admittedly,
the NOC work experience requirements under subsection 80(3) (federal skilled
worker class) and paragraph 87.1(2)(a) (Canadian experience class) are quite
similar. Although the former provision specifically states to what extent the
duties listed in the NOC classification must have been performed, the latter
provision also requires applicants to have the work experience associated with
a NOC listed occupation. Nothing emerges in either the legislation or the
Canada Gazette to suggest that Parliament intended the work experience
requirements to differ between these two classes.
[35]
Further,
as highlighted by the respondent, paragraph 15(2)(b) of the Interpretation
Act provides that an interpretive provision shall apply to all other
provisions relating to the same subject matter unless a contrary intention
appears. As mentioned above, the two contentious provisions are both contained
under Division 1 of Part 6 of the Regulations and no
contrary intention appears in the legislation. In addition, the rationale
for the hourly work experience requirement under the Canadian experience class
was that it was consistent with other sections of the Regulations, specifically
provisions associated with other categories of the economic classes.
[36]
For
these reasons, I do not find that the officer erred by incorporating the language
of subsection 80(3) into the analysis under paragraph 87.1(2)(a) of the
Regulations. The officer therefore applied the correct legal test for assessing
the applicant’s work experience.
[37]
Issue
3
Did the officer err in
assessing the applicant’s work experience?
Turning to the officer’s actual assessment
of the applicant’s work experience, the applicant submits that the officer
erred by not appreciating that he did meet all the duties set out in the main
statement for the occupation and a substantial number of the other main duties.
[38]
The
NOC 1223 requirements specify the following:
Main
Statement: Personnel and
recruitment officers identify and advertise job vacancies, recruit candidates,
and assist in the selection and reassignment of employees. They are employed
throughout the private and public sectors.
Main
duties: Personnel and
recruitment officers perform some or all of the following duties:
Identify
current and prospective staffing requirements, prepare and post notices and
advertisements, and collect and screen applications;
Advise
job applicants on employment requirements and on terms and conditions of
employment;
Review
candidate inventories and contact potential applicants to arrange interviews
and arrange transfers, redeployment and placement of personnel;
Recruit
graduates of colleges, universities and other educational institutions;
Co-ordinate
and participate in selection and examination boards to evaluate candidates;
Notify
applicants of results of selection process and prepare job offers;
Advise
managers and employees on staffing policies and procedures;
Organize
and administer staff consultation and grievance procedures;
Negotiate
settlements of appeals and disputes and co-ordinate termination of employment
process;
Determine
the eligibility to entitlements, arrange staff training and provide information
or services such as employee assistance, counselling and recognition programs;
and
May
supervise personnel clerks performing filing and record keeping duties.
[39]
The
following duties were listed in the applicant’s employment letter:
Plan,
develop and implement recruitment strategies;
Ensure
that the business is adhering to best practice and complying with employment
legislation;
Work
closely with the operational business team, providing guidance on how to
approach different employment issues which may arise;
Manage
training and development strategy;
Provide
steps for disciplinary actions; and
Maintain
and update the human resources database.
[40]
The
applicant’s duties listed above do appear similar to those mandated under NOC
1223. However, in the decision, the officer noted that he was not satisfied
that the applicant performed the required duties. This finding was largely
based on the concerns raised by the officer’s verification with the applicant’s
former employer. The GCMS notes for this conversation indicate that Mr. Zighmi
stated that the applicant was a customer service representative and his duties
included answering the phone, taking applications from job-seekers and opening
files. Further, as the company is small, all employees had to be ready to do
any type of work.
[41]
In
response to the officer’s email regarding the discrepancy between the
applicant’s duties as described by Mr. Zighmi and those listed in the
applicant’s submissions, the applicant explained that his duties included:
Plan, develop and implement
recruitment strategies by posting of ads and job openings in local newspapers
and on the internet;
Screening of job applicants to
identify the most appropriate candidate;
Advising the company on implications
of the increased minimum wage on business;
Review and update the candidate
inventory;
Reassign employees based on
available work; and
Advise job applicants on employment
requirements and compliance with Canadian workplace health and safety
regulations.
[42]
As
noted by the respondent, no explanation was provided to explain the discrepancy
between the verification call and the written submissions. Although the
applicant offered to file an affidavit from both himself and Mr. Zighmi, none
was filed.
[43]
Admittedly,
the duties listed in the applicant’s written submissions are similar to those
listed under NOC 1223. However, deference is warranted to officers in this
decision making process and their decisions should only be overturned where
they are not within the range of acceptable outcomes based on the evidence
before them (see Dunsmuir above, at paragraph 47). In this case, there
was sufficient evidence before the officer to support his questioning of the
applicant’s actual duties while employed at Prime Force. The applicant’s email
response to the officer’s concerns did not provide new information to alleviate
those concerns. Further, as stated by the respondent, Mr. Zighmi’s letter that
was dated after the application was denied cannot be considered by this Court
as it was not before the officer. As such, I find that the officer came to a
reasonable decision based on the evidence before him.
[44]
Issue
4
Did the officer deny the applicant
procedural fairness?
Finally, the applicant submits that
the officer erred by not explaining why the evidence that he filed did not
satisfy the officer’s concerns. Further, if the officer disbelieved the
applicant’s statement, thereby questioning his credibility, he should have
provided the applicant with a proper opportunity to respond.
[45]
Although
limited jurisprudence has developed on the Canadian experience class, there is extensive
jurisprudence available on the federal skilled worker class. Both of these
classes fall under the same skilled workers division
of the permanent residence economic classes of the Regulations. The
nature of the regulatory scheme, the role of the decision of the officer in the
overall scheme and the choice of procedure are also similar. As such,
applicants under the two classes are entitled to similar limited procedural
safeguards (see Malik above, at paragraph 26).
[46]
In this case, the officer referred in his decision to the concerns
raised in his March 29, 2011 email, namely, the inconsistencies between the
duties listed in the applicant’s employment letter and those stated by his
former employer during the verification call. The applicant was granted 45 days
to respond to these concerns with “any information or documentation”. The sole
response the applicant provided was an email in which he largely reiterated the
duties included in his former submission. Aside from a clarification on the
number of employees that the company had, no explanation was provided for the
discrepancies noted by the officer.
[47]
Bearing
in mind the limited procedural safeguards that permanent residence applicants
are entitled to under the Canadian experience class, I do not find that the
officer erred by not providing further explanations for his decision. As the
applicant’s email did not differ significantly from the information contained
in his employment letter, the officer’s concerns stated in his March 29, 2011 email clearly remained unsatisfied. As such,
I find that the decision adequately shows why the officer made his decision and
permits this Court to determine whether the conclusion is within the
range of acceptable outcomes (see Newfoundland and Labrador Nurses’ Union v
Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 at
paragraph 16).
[48]
The applicant also submits that he was entitled to a proper
opportunity, by way of an interview, to disabuse the officer of his credibility
concerns. However, as stated by the respondent, visa officers are under no
obligation to alert applicants of concerns where they pertain to matters that
arose directly from the applicant’s own evidence and from statutory
requirements. As stated by Mr. Justice Yves de Montigny in Liu v Canada (Minister
of Citizenship and Immigration), 2006 FC 1025, [2006] FCJ No 1289
(at paragraph 16):
[…] An applicant's failure to provide adequate, sufficient or
credible proof with respect to his visa application does not trigger a duty to
inform the applicant in order for him to submit further proof to address the finding
of the officer with respect to the inadequacy, deficiency or lack of
credibility. […]
[49]
In
summary, I find the applicant has failed to show any reviewable error. The
officer applied the correct legal test in assessing the applicant’s work
experience and was under no obligation to explain his findings in greater
detail or to grant the applicant an interview. As such, I would dismiss this
judicial review. The applicant requested an order for costs. I am not prepared
to make an order for costs to the applicant as the applicant did not succeed in
the application and special reasons do not exist to justify an award of costs.
[50]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review is dismissed.
“John
A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
Interpretation
Act, RSC, 1985, c I-21
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15. (1) Definitions
or rules of interpretation in an enactment apply to all the provisions of the
enactment, including the provisions that contain those definitions or rules
of interpretation.
(2) Where
an enactment contains an interpretation section or provision, it shall be
read and construed
(a) as
being applicable only if a contrary intention does not appear; and
(b) as
being applicable to all other enactments relating to the same subject-matter
unless a contrary intention appears.
|
15. (1) Les
définitions ou les règles d’interprétation d’un texte s’appliquent tant aux
dispositions où elles figurent qu’au reste du texte.
(2) Les
dispositions définitoires ou interprétatives d’un texte :
a) n’ont
d’application qu’à défaut d’indication contraire;
b) s’appliquent,
sauf indication contraire, aux autres textes portant sur un domaine
identique.
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Immigration
and Refugee Protection Act,
SC 2001, c 27
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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.
72. (1) Judicial
review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
|
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.
72. (1) Le
contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
|
Immigration
and Refugee Protection Regulations,
SOR/2002-227
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80.
(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
(a) the
actions described in the lead statement for the occupation as set out in the
occupational descriptions of the National Occupational Classification; and
(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.
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.
(2) A
foreign national is a member of the Canadian experience class if
(a) they
(i) have
acquired in Canada within the 24 months before the day on which their
application for permanent residence is made at least 12 months 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, and have
acquired that work experience after having obtained
(A) a
diploma, degree or trade or apprenticeship credential issued on the
completion of a program of full-time study or training of at least two years’
duration at a public, provincially recognized post-secondary educational or
training institution in Canada,
(B) a
diploma or trade or apprenticeship credential issued on the completion of a
program of full-time study or training of at least two years’ duration at a
private, Quebec post-secondary institution that operates under the same rules
and regulations as public Quebec post-secondary institutions and that
receives at least 50 per cent of its financing for its overall operations
from government grants, subsidies or other assistance,
(C) a
degree from a private, provincially recognized post-secondary educational
institution in Canada issued on the completion of a program of full-time
study of at least two years’ duration, or
(D) a
graduate degree from a provincially recognized post-secondary educational
institution in Canada issued on the completion of a program of full-time
study of at least one year’s duration and within two years after obtaining a
degree or diploma from an institution referred to in clause (A) or (C), or
(ii) have
acquired in Canada within the 36 months before the day on which their
application for permanent residence is made at least 24 months 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; and
(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.
(3) For
the purposes of subsection (2),
(a) full-time
work is equivalent to at least 37.5 hours of work per week;
(b) any
period of self-employment or unauthorized work shall not be included in
calculating a period of work experience;
(c) the
foreign national must have had temporary resident status during their period
of work experience and any period of full-time study or training;
(d) the
foreign national must have been physically present in Canada for at least two years of their full-time study or
training;
(e) any
period during which the foreign national was engaged in a full-time program
of study or training in English or French as a second language — and any
period of full-time study or training in respect of which study or training
in English or French as a second language amounted to most of the full-time
study or training — shall not be included in calculating the period of
full-time study or training;
(f) any
period of study or training during which the foreign national was a recipient
of a Government of Canada scholarship or bursary, or participated in an
exchange program sponsored by the Government of Canada, a purpose or
condition of which was that the foreign national return to their country of
origin or nationality on completion of their studies or training shall not be
included in calculating the period of full-time study or training; and
(g) in
the case of a foreign national whose work experience is referred to in both
subparagraphs (2)(b)(i) and (ii), the foreign national must obtain a
proficiency in the English or French language that corresponds to the
benchmarks required for the skill type, as set out in subparagraph (2)(b)(i)
or (ii), in which the foreign national has acquired most of their work
experience.
(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.
(5) The
results of an assessment of the language proficiency of a foreign national by
a designated organization or institution and the correlation of those results
with the benchmarks in accordance with subsection (4) are conclusive evidence
of the foreign national’s proficiency in an official language of Canada for the purposes of this section.
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80.(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 :
a) s’il a
accompli l’ensemble des tâches figurant dans l’énoncé principal établi pour
la profession ou le métier dans les descriptions des professions de cette
classification;
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.
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.
(2) Fait
partie de la catégorie de l’expérience canadienne l’étranger qui satisfait
aux exigences suivantes :
a)
l’étranger, selon le cas :
(i) a
accumulé au Canada au moins douze mois d’expérience de travail à temps plein
ou l’équivalent s’il travaille à temps partiel 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 au cours
des vingt-quatre mois précédant la date de la présentation de sa demande de
résidence permanente et, antérieurement à cette expérience de travail, a
obtenu au Canada, selon le cas :
(A) un
diplôme, certificat de compétence ou certificat d’apprentissage après avoir
réussi un programme d’études ou un cours de formation nécessitant au moins
deux ans d’études à temps plein et offert par un établissement d’enseignement
ou de formation postsecondaire public reconnu par une province,
(B) un
diplôme, certificat de compétence ou certificat d’apprentissage après avoir
réussi un programme d’études ou un cours de formation nécessitant au moins
deux ans d’études à temps plein et offert par un établissement d’enseignement
postsecondaire privé au Québec qui est régi par les mêmes règles et
règlements que les établissements d’enseignement publics et dont les
activités sont financées, pour au moins 50 %, par le gouvernement notamment,
au moyen de subventions,
(C) un
diplôme universitaire après avoir réussi un programme d’études nécessitant au
moins deux ans d’études à temps plein et offert par un établissement
d’enseignement postsecondaire privé reconnu par une province,
(D) un
diplôme d’études supérieures après avoir réussi un programme d’études à temps
plein d’une durée d’au moins un an, offert par un établissement
d’enseignement postsecondaire reconnu par une province, au plus tard deux ans
après avoir obtenu un diplôme d’un établissement visé aux divisions (A) ou
(C),
(ii) a
accumulé au Canada au moins vingt-quatre mois d’expérience de travail à temps
plein ou l’équivalent s’il travaille à temps partiel 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 au cours des trente-six mois précédant la date de la présentation
de sa demande de résidence permanente;
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.
(3) Pour
l’application du paragraphe (2) :
a) le
travail à temps plein équivaut à au moins trente-sept heures et demie de
travail par semaine;
b) les
périodes de travail non autorisées ou celles accumulées à titre de
travailleur autonome ne peuvent être comptabilisées pour le calcul de
l’expérience de travail;
c)
l’étranger doit détenir le statut de résident temporaire durant les
périodes de travail et durant toutes périodes d’études ou de formation à
temps plein;
d)
l’étranger doit être effectivement présent au Canada pendant au moins deux de ses années d’études ou de
formation à temps plein;
e) les
périodes d’études ou de formation acquises par l’étranger dans le cadre d’un
programme d’anglais ou de français langue seconde à temps plein, et les périodes
d’études ou de formation à temps plein consacrées principalement à l’étude de
ces langues ne peuvent être comptabilisées pour le calcul de la période
d’études ou de formation à temps plein;
f)
les périodes d’études ou de formation acquises pendant que l’étranger
était détenteur d’une bourse d’études offerte par le gouvernement du Canada
ou participait à un programme d’échange parrainé par ce dernier, dans le cas
où la bourse ou le programme a pour but ou condition le retour de l’étranger
dans le pays dont il a la nationalité ou celui de sa résidence habituelle à
la fin de ses études, ne peuvent être comptabilisées pour le calcul de la
période d’études ou de formation à temps plein;
g)
l’étranger qui a l’expérience de travail dans les professions visées
aux sous-alinéas (2)b)(i) et (ii) doit obtenir le niveau de compétence en
anglais ou en français qui est exigé aux sous-alinéas (2)b)(i) ou (ii) selon
la profession pour laquelle il a le plus d’expérience.
(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.
(5) Les
résultats de l’examen de langue administré par une institution ou
organisation désignée et les équivalences établies en vertu du paragraphe (4)
constituent une preuve concluante de la compétence de l’étranger dans l’une
des langues officielles du Canada pour l’application du présent article.
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