Docket:
IMM-11690-12
Citation: 2013 FC 1285
Ottawa, Ontario, December 23, 2013
PRESENT: The Honourable Mr. Justice Annis
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BETWEEN:
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MOHAMMAD SHABIR QURESHI
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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
INTRODUCTION
[1]
This is an application, pursuant to s 72.1 of
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA],
for judicial review of a decision of a visa officer (“the Officer”) dated May
24, 2012, and received October 5, 2012, refusing the applicant’s application
for permanent residence in Canada as a federal skilled worker. The applicant
asks that the decision be set aside and remitted for reconsideration.
[2]
For the following reasons, the application is
denied.
BACKGROUND
[3]
The applicant, Mr Mohammad Shabir Qureshi, made
an application for permanent residence in Canada from Pakistan under the
Federal Skilled Worker Class [FSWC] in 2010 stating that he had at least one
year of continuous full-time or equivalent paid work experience in the 10 years
prior to his application under NOC 4131 (College and Other Vocational
Instructors).
[4]
NOC 4131 did not contain any essential duties.
It described the main duties of College and Other Vocational Instructors as
follows:
College and other
vocational instructors perform some or all of the following duties:
•
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.
[Emphasis in original]
[5]
Attached to his application on the Schedule 3,
Economic Classes - Federal Skilled Workers form, the applicant indicated for
the NOC 4131 requirement that he had more than one year but less than two years
of experience. He described the main duties of his experience as follows:
“Worked as a Lecturer with Government Post Graduate College, Kohat, Pakistan & taught Political Science to Bachelor of Arts degree students according to University
syllabus using lectures, discussion& [sic] seminars.”
[6]
The applicant submitted with his application a
Service Certificate from the Government Post Graduate College, Kohat. The
Certificate indicated that the applicant was a lecturer in Political Science
for the 2007-2008 session and that he was “delivering lectures of Political
Science to inter and Degree classes respectively”.
[7]
The Officer’s notes on the applicant’s
application are recorded in the Global Case Management System [GCMS] as
follows:
Although the NOC Code
4131 corresponds to an occupation specified in the instructions, I am not
satisfied that client actually has experience in this occupation: none of the
reference letters on file satisfied me that client performed the main duties
for this occupation. Subj stated he had 1 yr of experience in NOC4131 on
Schedule 3. Work reference letter from post grad college Kohat states that
client worked as lecturer, however no other duties provided. I am
therefore, not satisfied that he is a college teacher as per the national
occupation classification’s definition. Application refused.
[Emphasis added]
[8]
The letter sent to the applicant denying his
application stated the following:
Although the NOC code
corresponds to the occupations specified in the Instructions, the main duties
that you listed do not indicate that you performed all of the essential
duties and a substantial number of the main duties, as set out in the
occupational descriptions of the NOC.
[Emphasis added]
ISSUES
[9]
The issues that arise are the following:
a.
Is the decision of the Officer that the
applicant failed to demonstrate that he met the requirements of NOC 4131 for
performance of the main duties reasonable?
b.
Should the applicant have received a fairness
letter?
STANDARD OF
REVIEW
[10]
The respondent submits that factual
determinations by an officer and findings of fact are reviewable on a standard
of reasonableness. I agree. See, for example, Kniazeva
v Canada (Minister of Citizenship and Immigration), 2006 FC 268 at
para 15.
ANALYSIS
Issue
#1: Is the decision of the Officer that the
applicant failed to demonstrate that he met the requirements of NOC 4131 for
performance of the main duties reasonable?
[11]
The applicant raised the issue that the Officer
changed the criteria applicable to him midstream and without notice. First, he
submitted that the refusal letter applied the wrong test because the
Officer stated that he did not perform “all of the essential duties,” while the
NOC only speaks of indications that “some or all of the main duties” be
performed. I find this to be an error of inadvertence in the letter, which
misstated the Officer’s decision by referring to “essential duties,” and not
“main duties.” Moreover, NOC 4131 does not contain any essential duties.
[12]
The applicant further argues that the Officer
also applied the wrong test for main duties when stating in his refusal letter
that the applicant had not indicated that he had performed a “substantial
number of the main duties”. As described above, the NOC only refers to the requirement
that the applicant perform “some or all of the main duties”.
[13]
The Officer appears to rely upon Regulation
80(3)(b) of the Immigration and Refugee Protection Regulations [IRPR],
SOR/93-22
which states that a skilled worker is considered to have experience if
he or she performed at least a substantial number of the main duties of the
occupation as set out in the NOC:
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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
(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.
[Emphasis added]
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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 :
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.
[Nous soulignons]
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[14]
Jurisprudence of this Court has interpreted “some or
all of the main duties” of the NOC as a minimum threshold of “some”. This has
been further interpreted to mean more than one duty, i.e. two main duties. See,
for example A’Bed v Canada (Minister of Citizenship and Immigration),
2002 FCT 1027 and the cases cited therein (Chen v Canada
(Minister of Citizenship and Immigration), [2000] FCJ No 422 (TD); Bhutto
v Canada (Minister of Citizenship and Immigration), [1999] FCJ No
1411 (TD); and Agrawal v Canada (Minister of Citizenship and
Immigration), [1999] FCJ No 930)). It does not appear that these cases
considered whether the requirement of Regulation 80(3)(b) described above of
performing a “substantial number” of the main duties of the occupation should
have priority over the NOC requirement of “some or all”.
[15]
However, it is worth noting the relationship
between the IRPR and the NOC requirements. NOC descriptions are
developed by the Department of Human Resources and Skills Development Canada [HRSDC]
pursuant to the IRPR. Section 2 of the IRPR states:
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“National Occupational Classification” means the
National Occupational Classification developed by the Department
of Human Resources and Skills Development and Statistics Canada, as amended
from time to time.
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« Classification nationale des professions » Le document
intitulé Classification nationale des professions élaboré par le
ministère des Ressources humaines et du Développement des compétences et
Statistique Canada, avec ses modifications successives.
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As a result, while
the language of the NOC descriptions provides guidance to officers selecting
qualified candidates, the IRPR would normally be thought to take
precedence over the descriptions. If the Regulations use the language of
“substantial number” while the NOC description uses the language of “some or
all,” one would think that the Regulations would supersede the NOC description.
[16]
Sullivan on the Constructions of Statutes, 5th ed (Ottawa: LexisNexis Canada Inc, 2008) at 623-624
has stated:
When an authority to
make interpretive guidelines is conferred by statute, the resulting directives
are not necessarily legislation. In Canada (Minister of Citizenship and
Immigration v. Thamorem, for example, the Federal Court of Appeal ruled
that directives made under s. 159 of the Immigration and Refugee Protection
Act, providing that the Chairperson of the Immigration and Refugee Board
“may issue guidelines in writing to the members of the Board…to assist members
in carrying out their duties,” were merely administrative in character and
lacked the status of law. In his majority judgment, Evans J.A. pointed out the
advantages achieved through reliance on guidelines and other “soft law.”
[17]
In any case, the applicant raised the issue of
the “substantial number” requirement as described in the Officer’s refusal letter
for the first time at the hearing over the objections of the respondent. Were I
not satisfied that the applicant failed in his application to provide
information that he had performed two of the main duties listed, I would have
adjourned the matter to permit submissions on the point of whether the
requirement in the NOC should have priority over that stated in the Regulation.
As mentioned, it does not seem to have come up in the previous jurisprudence
and it is not clear that given the normal hierarchy in legislative schemes the
substantial number requirement in the Regulation should not prevail.
[18]
However, I agree with the respondent that the
only reference contained in the materials before the Officer (the Service
Certificate from the Government Post Graduate College, Kohat) identifies that
the applicant performed only the one duty of lecturing, and none of the other
main duties described in the NOC.
[19]
Additionally, while not determinative, but contributing
to the reasonableness of the decision, I note that the statement at the end of
the list of main duties indicates that instructors targeted by the NOC should
teach vocational skills “such as visual arts, dental hygiene, welding,
engineering technology, policing, computer software, management and early
childhood education.” The employment information provided by the applicant was
that he taught general academic knowledge courses such as political science.
[20]
I conclude therefore that the decision of the
Officer that the applicant failed to demonstrate that he met the requirements
of NOC 4131 for performance of some or all of the main duties was reasonable.
Issue #2: Should the Applicant have
received a fairness letter?
[21]
The applicant also argues that he should have
received a “fairness letter.”
[22]
I disagree. There is no requirement to issue a
fairness letter or otherwise advise an applicant of the deficiencies in his
application before rejecting it on the grounds of mere insufficiency of evidence
(see Kamchibekov v Canada (Minister of Citizenship and Immigration),
2011 FC 1411). A duty of fairness may require officials to inform applicants of
their concerns where a visa officer forms a negative impression of evidence
tendered by the applicant (see, for example, Hassani
v Canada (Minister of Citizenship and Immigration), 2006 FC 1283, [2007] 3
FCR 501 and Rukmangathan v Canada (Minister of Citizenship and Immigration), 2004
FC 284 at paras 22-23). Those are not the facts herein.
CONCLUSION
[23]
For the reasons given above, this application
for judicial review is denied.
[24]
There is no question requiring certification.
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