Date: 20110627
Docket: IMM-4136-10
Citation: 2011
FC 783
Ottawa, Ontario, June 27, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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RIMA NASR
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Applicant
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and
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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 a service delivery specialist of the Immigration Section, Case
Processing Centre, Sydney, Nova Scotia (the service delivery specialist or
specialist), dated July 6, 2010, wherein the service delivery specialist found
that the application for permanent residence was not eligible for processing.
[2]
The
applicant requests an order quashing the decision and remitting the matter
back for redetermination by a different decision maker in accordance with the
law.
Background
[3]
Rima
Nasr (the applicant) applied for permanent residence in Canada under the Federal
Skilled Worker Class on March 23, 2010.
Service Delivery
Specialist’s Decision
[4]
The
service delivery specialist assessed the applicant’s application on the basis
of whether she had the necessary work experience under the NOC 4131 – College
and Other Vocational Instructors.
[5]
The
service delivery specialist was not satisfied that the applicant’s experience
corresponds to the NOC 4131. The specialist found that the applicant did not
indicate that she performed a substantial number of the main duties listed
under the NOC description.
[6]
The
specialist determined that the application did not meet the requirements of the
Ministerial Instructions on Federal Skilled Worker Class applications issued in
November 29, 2008 and therefore was not eligible for processing.
Issues
[7]
The
applicant submitted the following issues for consideration:
1. What is the
appropriate standard of review?
2. Did the service delivery
specialist act without jurisdiction?
3. Did the service delivery
specialist err in finding that the applicant lacked the requisite experience?
Applicant’s Written Submissions
[8]
The
applicant submits that the service delivery specialist acted without
jurisdiction in making the decision that the application was not eligible for
processing. The specialist should only have reviewed the file for an initial
screening to ensure the required forms and supporting documents were present
and that an immigration officer should have made the final determination based
on a complete application. The applicant argues that the service delivery
specialist was not authorized by the Minister of Citizenship and Immigration
(the Minister) under subsection 6(1) of the Act to make such a decision.
[9]
The
applicant further argues that the service delivery specialist erred in the
assessment of her experience. The applicant submits that she listed in IMM0008
Schedule 3, six out of seven of the main duties in the NOC description,
contrary to the specialist’s finding that she did not provide evidence of
experience.
Respondent’s Written Submissions
[10]
The
respondent submits that the service delivery specialist acted within his or her
jurisdiction in finding that the applicant was not eligible for processing
under the Federal Skilled Worker Class category. The “Instrument of Designation
and Delegation” executed by the Minister clearly provides that service delivery
agents or specialists at Citizenship and Immigration Canada Centralized
Processing Region have that delegated authority. Further, the Budget
Implementation Act, SC 2008, c 28, amended the Act to permit Ministerial
Instructions to establish orders. The Minister issued instructions on November
29, 2008 that Federal Skilled Worker Class applications will be sent to the
Centralized Intake Office (CIO) in Sydney, Nova Scotia, to assess whether the applications should
be processed at a visa office. If an application does not correspond with the
instructions, the CIO will send a letter informing the applicant that he or she
is not eligible for processing.
[11]
The
respondent also submits that the applicant failed to meet the required
experience for the NOC 4131. The applicant was required to show that she had at
least one year of continuous full time or equivalent paid work experience in
the last ten years in the NOC. Schedule 3, completed by the applicant, showed
that in the past ten years, she worked on one occasion for a continuous period
of one year as an English teacher. Under main duties, the applicant merely
indicated that she taught “IELTS academic & general, English preparatory
program, general English”. She did not include a description of duties that
would satisfy the criteria for NOC 4131.
Analysis and Decision
[12]
Issue
1
What is the
appropriate standard of review?
As a visa
officer’s determination of eligibility for permanent residence under the
Federal Skilled Worker Class involves findings of fact and law, so too does
that of a service delivery specialist, and as such, the decision is reviewable
on a standard of reasonableness (see Malik v Canada (Minister of Citizenship
and Immigration), 2009 FC 1283 at paragraph 22). This Court
will not intervene on judicial review unless the decision maker 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 v
New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph
47).
[13]
However, the question of whether the service delivery specialist
acted without jurisdiction in finding the applicant ineligible for processing
is subject to review on the correctness standard (see Dunsmuir above, at
paragraph 50).
[14]
Issue 2
Did the
service delivery specialist act without jurisdiction?
At the
hearing of this matter, this issue was not advanced to any great degree, with
the exception that the officer’s title was not exactly the same as it was in
the “Instrument
of Designation and Delegation.” I am satisfied that the service delivery
specialist did not act without jurisdiction.
[15]
Issue
3
Did the service delivery
specialist err in finding that the applicant lacked the requisite experience?
The applicant applied
for permanent residence as a Federal Skilled Worker under the NOC – 4131.
[16]
The
Ministerial Instructions of November 29, 2008, published in the Canada
Gazette and relied on by the applicant, state that:
Federal Skilled Worker applications
…meeting the following criteria shall be placed into processing immediately
upon receipt:
[…]
Applications from skilled workers with
evidence of experience under one or more of the following National Occupation
Classification (NOC) categories:
[…]
4131 College and Other Vocational
Instructors
[17]
The
Ministerial Instructions define experience as: “[a]t least one year of
continuous full-time or equivalent paid work experience in the last ten years.”
[18]
In
Schedule 3 of Form IMM0008, the applicant was required to list her full or
equivalent part time occupations of the past ten years and a description of the
main duties.
[19]
The
three occupations and the main duties that the applicant listed that were over
one year were:
English Teacher – Taught IELTS academic
& general. English preparatory program, general English
Teacher – Taught English to Latin
American doctors to be able to write the medical exam boards, & other
freelance work
English teacher – Taught general English,
taught ECCE & ECPE certificates English 102, 301, 401 & 402
[20]
The
service delivery specialist determined that the applicant was not eligible for
processing because she did not indicate that she performed a substantial number
of the main duties listed under the NOC 4131 description.
[21]
The
main duties of the NOC 4131 are:
- Teach
students using a systematic plan of lectures, demonstrations, discussion
groups, laboratory work, shop sessions, seminars, case studies, field
assignments and independent or group projects
- Develop
curriculum and prepare teaching materials and outlines for courses
- Prepare,
administer and mark tests and papers to evaluate students' progress
- Advise
students on program curricula and career decisions
- Provide
individualized tutorial/remedial instructions
- Supervise
independent or group projects, field placements, laboratory work or
hands-on training
- Supervise
teaching assistants
- May
provide consultation services to government, business and other
organizations
- May
serve on committees concerned with matters such as budgets, curriculum
revision, and course and diploma requirements.
- These
instructors specialize in particular fields or areas of study such as
visual arts, dental hygiene, welding, engineering technology, policing,
computer software, management and early childhood education.
[22]
I
agree with the respondent that it appears that the applicant’s experience has
consisted primarily of preparing students for international English language
testing. It was not outside the range of reasonable acceptable outcomes for the
service delivery specialist to determine that the applicant had not
demonstrated that she had one year of continuous full time or equivalent
experience in the occupation of NOC 4131.
[23]
As a
result, I would dismiss the application for judicial review.
[24]
Neither
party wished to submit a proposed serious question of general importance for my
consideration for certification.
JUDGMENT
[25]
IT IS ORDERED
that the
application for judicial review is dismissed.
“John
A. O’Keefe”
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