Date:
20120913
Docket:
IMM-5222-11
Citation:
2012 FC 1079
Ottawa, Ontario,
September 13, 2012
PRESENT: The
Honourable Mr. Justice O'Keefe
BETWEEN:
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XIAO FENG TAN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION CANADA
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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 immigration officer (the officer), dated June 1, 2011, wherein
the applicant was denied permanent residence under
the federal skilled worker class of subsection 12(2) of the Act and
subsection 76(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 have sufficient English language proficiency
to perform his arranged employment in Canada and to become economically
established.
[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, Xiao Feng Tan, is a citizen of China. His wife, Xiao Wen Huang, is
also a citizen of China. The couple do not have any children.
[4]
The
applicant’s wife was previously an accompanying dependent on her parents’
Canadian permanent residence application. Her parents were granted permanent
residence but she was denied due to her inability to satisfy the requirement of
full time study. The applicant’s wife’s parents now live in Revelstoke, British Columbia, where they own and operate a Chinese restaurant called W.K. Garden
Restaurant.
[5]
The
applicant has been working as a cook in China for almost ten years. On May 15,
2009, Service Canada issued him an arranged employment opinion (AEO) for the
position as a cook at the W.K. Garden Restaurant. In the AEO, the specified
language requirements for the occupation were listed as Cantonese or Mandarin
and basic English (oral) and Chinese (written).
[6]
On
September 3, 2009, the Canadian Consul General in Hong Kong received the
applicant’s application for permanent residence under the federal skilled
worker class. The applicant’s wife was included as an accompanying dependent.
The applicant indicated that he would not be providing a copy of approved test
results but instead opted to provide evidence of proficiency in Canada’s official language. In his application, the applicant indicated that his English
language proficiency was as follows: speak – basic; listen – basic; read – moderate;
and write – basic.
[7]
In
a letter dated March 11, 2011 (the procedural fairness letter), the officer
noted the levels of English language proficiency that the applicant claimed on
his permanent residence application and the college transcript indicating that
he took one English course in college. However, the officer observed that the
applicant had failed to submit any written evidence of his English language
proficiency. The officer was therefore concerned that the applicant had not
established his claimed English proficiency in accordance with the Canadian
Language Benchmark Standards for English speaking, listening, reading and
writing. The officer therefore stated that she was unable to accurately assess
the applicant’s English language proficiency for immigration selection.
[8]
The
officer also acknowledged that the applicant’s employment offer from W.K.
Garden Restaurant did not specifically require that he possess any English
language proficiency. However, the officer was not satisfied that the
applicant’s employer in Canada would be able to ensure that there was always
someone in the kitchen that could help him read and understand safety equipment
instructions. She was also not satisfied that the applicant would be able to
communicate with Canadian authorities and services in case of emergencies or
accidents in the kitchen environment. The officer noted that the fact that the
applicant’s offer of employment was at a restaurant owned by his relatives did
not alleviate these concerns.
[9]
The
officer therefore concluded that she had concerns with the applicant’s ability
to become economically established in Canada. The officer granted the applicant
sixty days to submit any information or documents that might disabuse the
officer of her stated concerns.
[10]
In
response, the applicant submitted a short video (2 minutes and 46 seconds long)
showing:
1. The applicant
speaking in Mandarin (46 seconds);
2. The applicant
speaking in English stating his name, age and home town and briefly discussing
his schooling, employment and family status (43 seconds);
3. The applicant’s
English tutor explaining that the applicant has learned basic English skills
(17 seconds); and
4. The applicant
displaying English writing skills by writing three short sentences: “I am Tang
Xiao Feng. I am 35 years old. I am learning English now.” (60 seconds).
[11]
The
applicant also submitted an English handwritten note drafted by him and a
transcript from the Guangdong University of Business Studies indicating his
mark of 85 in an English course. These additional submissions were received by
the Hong Kong Consul on May 18, 2011.
Officer’s Decision
[12]
In
a letter dated June 1, 2011, the officer denied the applicant’s application.
The Computer-Assisted Immigration Processing System (CAIPS) notes that form
part of the officer’s decision also explain the reasons for the denial.
[13]
The
officer assessed a total of 56 points for the
applicant’s application for permanent residence:
Age: 10 points
Education: 20 points
Official language
proficiency: 0 points
Experience: 21 points
Arrangement employment: 0
points
Adaptability: 5 points
[14]
The
officer explained that according to his AEO, the applicant was required to
speak and write in Cantonese or Mandarin and also basic English. In the CAIPS
notes, the officer noted that the applicant had not filed any language test
results. Based on the applicant’s college transcript, the officer was not
satisfied that she could accurately assess the applicant’s claimed level of English
language proficiency. The officer also acknowledged the applicant’s additional
submissions and his claim that he was taking English language lessons with a
private teacher. However, based on the record before her and the applicant’s
education and employment history, the officer was not satisfied with the
applicant’s alleged levels of English proficiency without confirmation by a
third party language test.
[15]
In
her decision, the officer repeated her previous concerns about the applicant’s
ability to read and understand safety equipment instructions and to communicate
with Canadian authorities in case of emergencies or accidents in the kitchen.
Based on the evidence before her, including the applicant’s additional
submissions, the officer was not satisfied that she would be able to accurately
assess the applicant’s claimed levels of English language proficiency in terms
of speaking, listening, reading and writing against the Canadian Language
Benchmark Standards for immigration selection purposes.
[16]
As
a result, the officer was not satisfied of the applicant’s English proficiency
and assigned him zero points under the official language proficiency factor. In
addition, the officer was not satisfied that the applicant’s Canadian employer
would be able to ensure there was always someone close by in the kitchen to
assist the applicant with English safety instructions and communicating with
Canadian authorities in case of emergencies. Thus, the officer was not
satisfied that the applicant could perform the arranged employment in Canada. The officer therefore also assigned the applicant zero points under the arranged employment
factor and stated the same in her letter under the adaptability factor for
having employment in Canada.
[17]
In
summary, the officer was not satisfied that the applicant would be able to
become economically established in Canada. The applicant’s permanent residence
application was therefore denied.
Issues
[18]
The
applicant submits the following points at issue:
1. Did the officer
err in law by using the wrong legal test in assessing the applicant on the
arranged employment factor, pursuant to section 82 of the Regulations?
2. Did the officer
err in law by failing to consider material evidence on the central issue of the
case?
3. Did the officer
err in law by double-counting the applicant’s alleged lack of English language
abilities by penalizing him on the language proficiency factor and the arranged
employment factor for the same reason?
4. Did the officer’s
errors result in a miscarriage of justice?
[19]
I
would rephrase the issues as follows:
1. What is the
appropriate standard of review?
2. Did the officer
err in assessing the applicant’s language proficiency on a higher standard than
that specified in the AEO?
3. Did the officer
err by not specifying what evidence the applicant should submit to establish
his language proficiency?
4. Did the officer
err by not considering the evidence before her?
5. Did the officer
err by double-counting the applicant’s level of English proficiency?
Applicant’s Written Submissions
[20]
The
applicant submits that the officer made three errors of law in refusing the
applicant’s permanent residence application. The standard of review for
questions of law is correctness.
[21]
First,
the officer applied the wrong legal test in assessing the applicant on the
arranged employment factor pursuant to section 82 of the Regulations. The
applicant submits that his AEO identified the specific language requirements
for the position as the ability to speak and write in Chinese and the ability
to speak English at a basic level. No other language requirements are set out
in section 82 of the Regulations. However, rather than assessing the
applicant’s language proficiency according to the AEO requirements, the officer
assessed the applicant’s language abilities on an elevated standard. The
applicant submits that in doing so, the officer erred in law as she did not
have the jurisdiction to require language proficiency above those required by
Service Canada in the AEO.
[22]
Moreover,
the applicant submits that even if the officer had such jurisdiction, she did
not advise him of what level of language he would have to demonstrate to prove
that he could accomplish the tasks as a cook. In so doing, the officer
committed a procedural fairness violation.
[23]
Second,
the applicant submits that the officer ignored material evidence adduced by the
applicant on a central issue of the case. This too was an error of law. Upon
receipt of the applicant’s permanent residence application, the officer
requested that the applicant submit “any information or documents” relevant to
his language abilities within 60 days. The applicant submits that the officer
did not specify that an English language test was required, nor what evidence
of language abilities she was looking for. The applicant also notes that a
language test is not required to prove language ability under the arranged employment
factor.
[24]
In
response to the officer’s request, the applicant submitted: a video of him
speaking in English and of a tutor providing further detail on the applicant’s
English abilities; a handwritten letter that he drafted in English; and a
transcript from the Guangdong University of Business Studies indicating that he
received a mark of 85 in an English course. This evidence proves that the
applicant can speak, read, write and understand English. The applicant submits
that the officer erred by ignoring this compelling evidence without providing a
proper explanation on why the evidence was deficient.
[25]
Third,
the applicant submits that the officer erred by double penalizing him for an
alleged lack of English abilities. The applicant highlights the officer’s
awarding of zero points under both the official language proficiency factor and
the arranged employment factor based on the applicant’s alleged lack of English
proficiency. This was a case of double-counting which also constitutes an error
of law. Although this argument relies on jurisprudence that developed on the
previous Immigration Regulations, 1978, the applicant submits that this
principle still applies today.
[26]
The
applicant submits that had the officer not made these errors, he would have been
awarded ten points under the arranged employment factor and five points under
the adaptability factor. The applicant would thereby have qualified for a
permanent resident visa under the federal skilled worker class.
Respondent’s Written Submissions
[27]
The
respondent submits that the reasonableness standard of review applies to the
merits of the officer’s decision, but no deference is warranted on questions of
procedural fairness.
[28]
The
respondent notes that the officer provided the applicant with an opportunity to
allay her concerns about his English proficiency. The respondent also notes
that the AEO explicitly states that it is but one step in the process. The
respondent submits that based on the evidence before her, the officer’s
decision was well within the range of reasonable outcomes.
[29]
The
respondent notes that it was the applicant’s responsibility to put his best
case forward. This onus did not shift to the officer if the application or
supporting material was ambiguous or insufficient. The respondent submits that
the short video of the applicant’s language skills was insufficient to
alleviate the officer’s concerns. The respondent also notes that this video
does not show the applicant’s ability to speak, listen to, read and write
English. It only shows the applicant writing fifteen words, three of which were
his name and does not show him listening to and responding to questions or
demonstrate his reading skills.
[30]
In
addition, the applicant’s unverifiable letters and writing sample were
inadequate proof that he wrote them and did not demonstrate his claimed level
of English proficiency. It was thus reasonable for the officer to find that this
evidence was insufficient to determine whether the applicant met the requisite
benchmarks.
[31]
Finally,
with regards to the applicant’s double counting argument, the respondent notes
that he relies in support on a 1998 case. That case is not applicable as it
pertained to the previous immigration regulations and not the current
Regulations. The respondent submits that the visa officer was required to
determine whether the applicant was capable of performing the employment
contemplated. In the case of a cook working in a commercial kitchen, the
officer reasonably determined that some English language proficiency was
necessary to operate equipment safely and to communicate with authorities in
emergency situations. Concurrently, the officer was required to make a separate
assessment of language proficiency. The respondent submits that the officer did
not err in her assessment of the applicant’s visa application.
Analysis and Decision
[32]
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 S.C.R. 190 at paragraph 57).
[33]
An officer’s determination of eligibility for permanent residence
under the federal skilled worker class involves findings of fact and law and is
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). In reviewing the officer’s decision
on the reasonableness standard, the Court should not intervene unless she 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).
[34]
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; Wang v Canada (Minister of Citizenship and
Immigration), 2008 FC 798, [2008] FCJ No 995 at paragraph 13; and Khosa above,
at paragraph 43). No deference is owed to officers on these issues (see Dunsmuir
above, at paragraph 50).
[35]
Issue
2
Did the officer err in
assessing the applicant’s language proficiency on a higher standard than that
specified in the AEO?
In this case,
the applicant submits that the officer erred by assessing the applicant’s
language proficiency on a higher standard than that specified in the AEO.
Points awarded on AEOs are regulated under paragraph 82(2)(c) of the
Regulations.
[36]
As
indicated, where an applicant does not intend to work in Canada before being issued a permanent resident visa and does not yet hold a work permit, the
officer must assess whether the applicant is able to perform and likely to
accept and carry out the employment described in an approved offer of
employment (i.e., the AEO). An offer of employment is prepared by the
prospective employer. The approval of the offer of employment then depends on
an opinion provided by the Department of Human Resources and Skills Development
(i.e., Service Canada). This opinion must be based on the genuineness of the
offer of employment, the nature of the employment (i.e., not part-time or
seasonal) and the wages offered.
[37]
Thus,
the statutory regime leaves the description of the specific employment duties
and requirements up to the employer, subject only to the limitations that the
employment not be part-time or seasonal and that the wages meet Canadian
standards. In fact, in its guidance document to employers preparing job
descriptions, Service Canada highlights the importance of clearly defining
health or safety hazards associated with the employment. As such, the
specification of these types of requirements is left to the employer.
[38]
Nevertheless,
recognizing the significant deference owed to visa officers on their exercise
of discretion under paragraph 82(2)(c) of the Regulations, the jurisprudence
has clearly established that an approved offer of employment, or AEO, from
Service Canada does not eliminate the officer’s duty to assess whether the
applicant is able to perform the work outlined therein. For example, in Bellido
v Canada (Minister of Citizenship and Immigration), 2005 FC 452, [2005] FCJ
No 572 at paragraph 21, Madam Justice Judith Snider stated:
HRDC
validation is not, as the Applicant submits, sufficient evidence of arranged
employment. Such validation does not remove the obligation of the Visa
Officer to assess whether the Applicant is able to perform the job described in
the validation. [emphasis added]
[39]
Similarly,
in Garcia Porfirio v Canada (Minister of Citizenship and Immigration),
2011 FC 794, [2011] FCJ No 997, Mr. Justice David Near explained (at paragraph
33):
I
agree that HRSDC and Citizenship and Immigration Canada (CIC) have different
goals and benchmarks to meet, and it is equally clear that they each have a
different realm of expertise. In this regard, CIC has chosen to use the
specialized knowledge of HRSDC to help to streamline the processing of skilled
workers. However, the immigration or visa officer is still the final check
and balance in the system. Although an officer might be directed to take
the HRSDC AEO at face value, they are instructed and required to consider
whether the applicant is able and likely to carry out the offer of employment
by section 82 of the Regulations. [emphasis added]
[40]
Thus,
officers play an important role in independently assessing federal skilled
worker permanent residence applications. Reliance on AEOs can help streamline
the application review process, however, officers remain responsible for the
final decision on whether applicants can and will be able to carry out the
arranged employment described therein.
[41]
This
brings us to the crux of the matter in this case. Here, the AEO merely specified
that the applicant needed to have basic English oral proficiency to complete
the employment. No English writing or reading skills were specified.
Nevertheless, the officer found that the applicant’s proposed employer would
not be able to ensure that an English speaking person was always present while
the applicant was working. The officer therefore concluded that in addition to
the basic English oral proficiency, the applicant would require sufficient
English proficiency to be able to read English safety equipment instructions in
the kitchen and to communicate with Canadian authorities in case of accidents
or emergencies. The officer found that these requirements were important in
assessing whether the applicant could perform and carry out the proposed
employment and thereby become economically established in Canada.
[42]
In
finding that the applicant required English reading to perform and carry out
the employment, the officer incorporated a requirement not specified in the
AEO. Although the ability to read and understand safety instructions and the
ability to communicate with authorities in case of emergencies is clearly
important and arguably applicable to most jobs, these requirements were not
included in the AEO, the relevant statutory provisions or the policy
guidelines. The officer therefore erred by incorporating requirements that
exceeded those specifically listed in the AEO and by denying the applicant’s
permanent residence application in part on this basis.
[43]
The
existence of this error will have an effect on the number of points to be
awarded to the applicant, hence, the application for judicial review must be
allowed and the matter referred to a different officer for redetermination.
[44]
Because
of my finding on Issue 2, I need not deal with the remaining issues.
[45]
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
allowed and the matter is referred to a different officer for redetermination.
“John A. O’Keefe”
ANNEX
Relevant
Statutory Provisions
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.
14. (2) The
regulations may prescribe, and govern any matter relating to, classes of
permanent residents or foreign nationals, including the classes referred to
in section 12, and may include provisions respecting
(a) selection
criteria, the weight, if any, to be given to all or some of those criteria,
the procedures to be followed in evaluating all or some of those criteria and
the circumstances in which an officer may substitute for those criteria their
evaluation of the likelihood of a foreign national’s 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.
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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.
14.
(2) Ils établissent et régissent les catégories de résidents permanents
ou d’étrangers, dont celles visées à l’article 12, et portent notamment sur :
a) les
critères applicables aux diverses catégories, et les méthodes ou, le cas
échéant, les grilles d’appréciation et de pondération de tout ou partie de
ces critères, ainsi que les cas où l’agent peut substituer aux critères son
appréciation de la capacité de l’étranger à réussir son 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.
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Immigration
and Refugee Protection Regulations, SOR/2002-227
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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.
(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.
(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.
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).
82. (1) In
this section, “arranged employment” means an offer of indeterminate
employment in Canada.
Marginal
note: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 and Skills 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.
83. (1) A
maximum of 10 points for adaptability shall be awarded to a skilled worker on
the basis of any combination of the following elements:
(a) for
the educational credentials of the skilled worker's accompanying spouse or
accompanying common-law partner, 3, 4 or 5 points determined in accordance
with subsection (2);
(b) for
any previous period of study in Canada by the skilled worker or the skilled
worker's spouse or common-law partner, 5 points;
(c) for
any previous period of work in Canada by the skilled worker or the skilled
worker's spouse or common-law partner, 5 points;
(d) for
being related to a person living in Canada who is described in subsection
(5), 5 points; and
(e) for
being awarded points for arranged employment in Canada under subsection
82(2), 5 points.
(5) For
the purposes of paragraph (1)(d), a skilled worker shall be awarded 5 points
if
(a) the
skilled worker or the skilled worker's accompanying spouse or accompanying
common-law partner is related by blood, marriage, common-law partnership or
adoption to a person who is a Canadian citizen or permanent resident living
in Canada and who is
(i) their
father or mother,
(ii) the
father or mother of their father or mother,
(iii) their
child,
(iv) a
child of their child,
(v) a
child of their father or mother,
(vi) a
child of the father or mother of their father or mother, other than their
father or mother, or
(vii) a
child of the child of their father or mother; or
(b) the
skilled worker has a spouse or common-law partner who is not accompanying the
skilled worker and is a Canadian citizen or permanent resident living in Canada.
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75.
(1) Pour l’application du paragraphe 12(2) de la Loi, la catégorie des
travailleurs qualifiés (fédéral) est une catégorie réglementaire de personnes
qui peuvent devenir résidents permanents du fait de leur capacité à réussir
leur établissement économique au Canada, qui sont des travailleurs qualifiés
et qui cherchent à s’établir dans une province autre que le Québec.
(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.
(3) Si
l’étranger ne satisfait pas aux exigences prévues au paragraphe (2), l’agent
met fin à l’examen de la demande de visa de résident permanent et la refuse.
76. (1) Les
critères ci-après indiquent que le travailleur qualifié peut réussir son
établissement économique au Canada à titre de membre de la catégorie des
travailleurs qualifiés (fédéral) :
a) le
travailleur qualifié accumule le nombre minimum de points visé au paragraphe
(2), au titre des facteurs suivants :
(i) les
études, aux termes de l’article 78,
(ii) la
compétence dans les langues officielles du Canada, aux termes de l’article
79,
(iii) l’expérience,
aux termes de l’article 80,
(iv) l’âge,
aux termes de l’article 81,
(v) l’exercice
d’un emploi réservé, aux termes de l’article 82,
(vi) la
capacité d’adaptation, aux termes de l’article 83;
b) le
travailleur qualifié :
(i) soit
dispose de fonds transférables — non grevés de dettes ou d’autres obligations
financières — d’un montant égal à la moitié du revenu vital minimum qui lui
permettrait de subvenir à ses propres besoins et à ceux des membres de sa
famille,
(ii) soit
s’est vu attribuer le nombre de points prévu au paragraphe 82(2) pour un
emploi réservé au Canada au sens du paragraphe 82(1).
82. (1) Pour
l’application du présent article, constitue un emploi réservé toute offre
d’emploi au Canada à durée indéterminée.
Note
marginale :Emploi réservé (10 points)
(2) Dix
points sont attribués au travailleur qualifié pour un emploi réservé
appartenant aux genre de compétence 0 Gestion ou niveaux de
compétences A ou B de la matrice de la Classification nationale des
professions, s’il est en mesure d’exercer les fonctions de l’emploi et s’il
est vraisemblable qu’il acceptera de les exercer, et que l’un des alinéas
suivants s’applique :
a) le
travailleur qualifié se trouve au Canada, il est titulaire d’un permis de
travail et les conditions suivantes sont réunies :
(i) l’agent
a conclu, au titre de l’article 203, que l’exécution du travail par le
travailleur qualifié est susceptible d’entraîner des effets positifs ou
neutres sur le marché du travail canadien,
(ii) le
travailleur qualifié occupe actuellement cet emploi réservé,
(iii) le
permis de travail est valide au moment de la présentation de la demande de
visa de résident permanent et au moment de la délivrance du visa de résident
permanent, le cas échéant,
(iv) l’employeur
a présenté au travailleur qualifié une offre d’emploi d’une durée
indéterminée sous réserve de la délivrance du visa de résident permanent;
b) le
travailleur qualifié se trouve au Canada, il est titulaire du permis de
travail visé aux alinéas 204a) ou 205a) ou au sous-alinéa 205c)(ii)
et les conditions visées aux sous-alinéas a)(ii) à (iv) sont réunies;
c) le
travailleur qualifié n’a pas l’intention de travailler au Canada avant qu’un visa de résident permanent ne lui soit octroyé, il n’est pas titulaire d’un
permis de travail et les conditions suivantes sont réunies :
(i) l’employeur
a présenté au travailleur qualifié une offre d’emploi d’une durée
indéterminée sous réserve de la délivrance du visa de résident permanent,
(ii) un
agent a approuvé cette offre sur le fondement d’un avis émis par le ministère
des Ressources humaines et du Développement des compétences, à la demande de
l’employeur, à sa demande ou à celle d’un autre agent, où il est affirmé
que :
(A) l’offre
d’emploi est véritable,
(B) l’emploi
n’est pas saisonnier ou à temps partiel,
(C) la
rémunération offerte au travailleur qualifié est conforme au taux de
rémunération en vigueur pour la profession et les conditions de l’emploi
satisfont aux normes canadiennes généralement acceptées;
d) le
travailleur qualifié est titulaire d’un permis de travail et, à la
fois :
(i) les
conditions visées aux sous-alinéas a)(i) à (iv) et à l’alinéa b) ne sont
pas remplies,
(ii) les
conditions visées aux sous-alinéas c)(i) et (ii) sont réunies.
83. (1) Un
maximum de 10 points d’appréciation sont attribués au travailleur
qualifié au titre de la capacité d’adaptation pour toute combinaison des
éléments ci-après, selon le nombre indiqué :
a) pour
les diplômes de l’époux ou du conjoint de fait, 3, 4 ou 5 points
conformément au paragraphe (2);
b) pour
des études antérieures faites par le travailleur qualifié ou son époux ou
conjoint de fait au Canada, 5 points;
c) pour
du travail antérieur effectué par le travailleur qualifié ou son époux ou
conjoint de fait au Canada, 5 points;
d) pour
la présence au Canada de l’une ou l’autre des personnes visées au
paragraphe (5), 5 points;
e) pour
avoir obtenu des points pour un emploi réservé au Canada en vertu du
paragraphe 82(2), 5 points.
(5) Pour
l’application de l’alinéa (1)d), le travailleur qualifié obtient
5 points dans les cas suivants :
a) l’une
des personnes ci-après qui est un citoyen canadien ou un résident permanent
et qui vit au Canada lui est unie par les liens du sang ou de l’adoption ou
par mariage ou union de fait ou, dans le cas où il l’accompagne, est ainsi
unie à son époux ou conjoint de fait :
(i) l’un
de leurs parents,
(ii) l’un
des parents de leurs parents,
(iii) leur
enfant,
(iv) un
enfant de leur enfant,
(v) un
enfant de l’un de leurs parents,
(vi) un
enfant de l’un des parents de l’un de leurs parents, autre que l’un de leurs
parents,
(vii) un
enfant de l’enfant de l’un de leurs parents;
b) son
époux ou conjoint de fait ne l’accompagne pas et est citoyen canadien ou un
résident permanent qui vit au Canada.
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