Date:
20130208
Docket: IMM-1543-12
Citation: 2013 FC 147
Ottawa, Ontario, February 8, 2013
PRESENT: The Honourable Madam Justice
Gleason
BETWEEN:
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QIN
QIN
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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]
The applicant is a citizen of China, who earned
a Bachelor of Arts degree from York University. Following her graduation, she
obtained a three-year temporary resident permit and was employed by a small law
firm in Toronto, where she carried out administrative duties and assisted with
translation and interpretation for the firm’s Chinese clientele. She applied
for permanent resident status as a member of the new graduate category of the
Canadian Experience Class, a relatively new immigration category provided for
in section 87.1 of the Immigration and Refugee Protection Regulations, SOR/2002-227
[the Regulations].
[2]
In a decision dated January 31, 2012, a Case
Officer of Citizenship and Immigration Canada refused the applicant’s
application for a permanent resident visa, holding that she lacked the
requisite experience to qualify for admission. The officer based this
determination on two points. First, he found that the applicant’s salary was
significantly lower than the minimum salary applicable in Toronto to the two
occupations the applicant sought to qualify under, namely legal administrative
assistants (National Occupational Classification [NOC] Code 1242) and
translators, terminologists and interpreters (NOC Code 5125). In an affidavit
he filed in connection with this application for judicial review, the officer
explained that he obtained the comparator wage data for legal assistants and
translators/interpreters from the Human Resources and Skills Development Canada
[HRSDC] website, which contains extensive data on the hourly wages earned in
each NOC Code. Secondly, the officer held that the applicant did not
demonstrate that she carried out more than one of the main duties of the NOC
Code 1242 position and thus lacked experience in that position. The NOC
descriptions state that an incumbent must perform “some or all” of the listed
duties.
The Issues
[3]
This application for judicial review raises for
the first time the issue of what data an officer may consider in making
assessments under the new graduate portions of the Regulations. It also raises
interesting questions surrounding the standard of review applicable to the
officer’s decision.
[4]
More specifically, the applicant asserts that
the officer committed a reviewable error in considering the HRSDC wage data
because this criterion is not listed in the portions of the Regulations dealing
with the Canadian Experience Class (as opposed to the Federal Skilled Worker
Class, which specifically references salary). Alternatively, if it was
permissible for the Officer to have considered the wage data, the applicant
argues that the officer violated the principles of procedural fairness in
failing to disclose to her that he was doing so, thereby depriving her of the
ability to respond. The applicant notes in this regard that there could well
have been additional information that she could have provided (such as further
details of the work she was doing or wage surveys specific to law firms,
segmented by firm size and type of law practiced, which might have shown that
the applicant’s salary was not inordinately low for an employee in training at
a very small firm doing a considerable amount of legal aid work). The applicant
further argues that the officer’s determination that she performed only one of
the main duties listed in an NOC Code 1242 is unreasonable, because the letter
of reference the applicant submitted indicated that she performed at least two
of the listed duties, which under the jurisprudence must lead to the conclusion
that an applicant’s job experience complies with the requirements of the NOC.
Finally, the applicant asserts that paragraphs 14, 15, 18 and 26 of the
officer’s affidavit should be struck as they attempt to impermissibly bolster
his decision.
[5]
In response to this last point, the respondent
maintains that the impugned paragraphs in the officer's affidavit constitute
merely an explanation of the background to his decision and are accordingly
admissible. Insofar as concerns the officer’s consideration of the HRSDC wage
data, the respondent argues that wages paid to an occupation are relevant to
the determination of the type of work performed and that it was accordingly
appropriate for the officer to have considered the data. With respect to the
alleged lack of procedural fairness, the respondent asserts that there was no
need for the officer to disclose to the applicant that he was considering the
HRSDC wage data as it related to the assessment of the applicant’s experience,
which clearly was at issue. As concerns the officer’s assessment, the
respondent argues that his conclusions are reasonable, based on the evidence
before him. The respondent finally raises an additional point and argues that
the documentation submitted by the applicant fails to meet the requirements for
NOC Code 5125 and that this represents an additional basis for upholding the
officer’s decision. The respondent argues in this regard that the application
would be bound to fail if the matter were remitted for re-determination as the
applicant must meet the requirements of both of the occupations she listed to
have worked sufficient hours to qualify for admission as a member of the
Canadian Experience Class and cannot meet the requirements of NOC Code 5125.
[6]
As is more fully discussed below, while the
binding authority from the Court of Appeal mandates that the officer’s
interpretation of the Regulations be reviewed on the correctness standard, the
jurisprudence from the Supreme Court of Canada suggests that the reasonableness
standard should be applied to the review of this interpretation. However,
nothing turns on the standard of review in this case as under either the
correctness or the reasonableness standard of review the officer did not err in
having regard to HRSDC wage data for purposes of assessing the applicant’s work
experience. Procedural fairness, though, required that the officer disclose the
fact he was relying on this data to the applicant so as to provide her with an
opportunity to respond to it. I have accordingly determined that the officer’s
decision must be set aside and the application remitted to another visa officer
for re-determination, following provision of an opportunity to the applicant to
make submissions regarding the HRSDC wage data. I have also determined that the
standard of review applicable to the officer’s assessment of the applicant’s
experience against the NOC Code descriptions is reasonableness and that it is accordingly
not necessary or appropriate for me to rule on the reasonableness of the
officer’s assessment of the applicant’s experience under NOC Code 1242 nor to
decide whether the applicant would meet the NOC Code 5125 requirements as that
is a matter which should be assessed by a visa officer and not the Court in the
first instance.
[7]
As is evident from the foregoing, the following
issues are considered in this decision:
i.
What standard of review is applicable to the
various errors alleged;
ii.
Should portions of the officer’s affidavit
should be struck;
iii.
Was the officer entitled to consider comparable
wage information from the HRSDC website in his assessment;
iv.
Was the officer required to disclose to the
applicant that he was considering the HRSDC wage data; and
v.
Should I rule on the reasonableness of the
officer’s assessment of the applicant’s experience or on whether the applicant
meets the requirements of NOC 5125?
Each of these
issues is discussed below.
What
standard of review is applicable to the various errors alleged?
[8]
The question of what portions of the officer’s
affidavit are properly before the Court on this application is evidently not
part of the decision being reviewed and thus no standard of review applies to
this question. In terms of the fourth issue, it is well-established that no
deference is owed to decision-makers on questions of procedural fairness (Khosa
v Canada (Minister of Citizenship and Immigration), 2009 SCC 12, [2009] 1
SCR 229 at para 43; Zhao v Canada (Minister of Citizenship and Immigration), 2013
FC 75 at para 5). Thus, it is for me to settle issues 2 and 4.
[9]
The situation is less clear with respect to
issue 3, which involves determination of the standard of review applicable to
visa officers’ decisions and, more particularly, to the interpretation of the
Regulations implicit in the officer’s having chosen to consider the HRSDC wage
data in assessing the applicant’s experience. The parties disagree regarding
the applicable standard, with the applicant arguing that it is correctness and
the respondent arguing that the reasonableness standard applies.
[10]
The recent jurisprudence of the Supreme Court of
Canada suggests that the reasonableness standard should apply to the review of
this determination as the officer is interpreting and applying his home statute
(or regulation) and normally deference is accorded in such circumstances (see Dunsmuir
v New Brunswick, 2008 SCC 9 at para 54 [Dunsmuir]; Nolan v Kerry
(Canada) Inc, 2009 SCC 39 at para 34 [2009] 2 S.C.R. 678; Celgene Corp v
Canada (Attorney General), 2011 SCC 1 at para 34, [2011] 1 S.C.R. 3 [Celgene];
Alliance Pipeline Ltd v Smith, 2011 SCC 7 at para 28, [2011] 1 S.C.R. 160 [Smith];
Canada (Attorney General) v Mowat, 2011 SCC 53 at paras 15-27, [2011] 3
SCR 471; ATA v Alberta (Information and Privacy Commissioner), 2011 SCC
61 at para 30, 339 DLR (4th) 428). Certain recent decisions
from this Court endorse the application of the reasonableness standard to the
review of a visa officer’s interpretation of the requirements of the Regulations
(Grusas v Canada (Minister of
Citizenship and Immigration), 2012 FC
733 at para 12; Nabizadeh v Canada (Minister of Citizenship and Immigration),
2012 FC 365 at para 27).
[11]
The Federal Court of Appeal, however, has indicated otherwise,
holding in Khan v Canada (Minister of Citizenship and Immigration), 2011
FCA 339 [Khan] at para 26 and Patel v Canada (Minister of Citizenship
and Immigration, 2011 FCA 187 [Patel] at para 27 that
the correctness standard of review applies to interpretations of the
Regulations by visa officers. (See also Takeda Canada Inc v Canada (Minister
of Health), 2013 FCA 13 at para 116, where Justice Dawson, writing for the
majority, endorses the application of the correctness standard to visa
officers’ interpretations of the Regulations in the context of discussing other
issues.) The reasoning underlying these decisions, expressly noted in Patel at
para 26, relies on statements from the Supreme Court in Dunsmuir at para
62, which instruct that the first step in determining the applicable standard
of review is to “ascertain whether the jurisprudence has already determined in
a satisfactory manner the degree of deference to be accorded with regard to a
particular category of question”. The Court of Appeal applied this instruction
and held that the jurisprudence had previously determined that the correctness
standard applied to the review of visa officers’ interpretations of the
Regulations (relying on the pre-Dunsmuir decisions in Hilewitz
v Canada (Minister of Citizenship and Immigration), 2005 SCC 57, [2005] 2
SCR 706; dela Fuente v Canada (Minister of Citizenship and Immigration),
2006 FCA 186, [2007] 1 FCR 387 and Shahid v Canada (Minister of Citizenship
and Immigration), 2011 FCA 40). The Court of Appeal thus
concluded that the correctness standard continues to apply subsequent to Dunsmuir
(see Patel at paras 26-28).
[12]
Given the decisions of the Supreme Court issued
subsequent to Patel, it is arguable whether the application of the
correctness standard to visa officers’ interpretations of the Regulations can
still be said to be “satisfactory” as its application appears to conflict with
recent guidance from the Supreme Court of Canada establishing that deference
should be afforded to an administrative decision-maker’s interpretation of its
home statute.
[13]
If the happenstance of whether the case law had
determined prior to Dunsmuir that the correctness standard of review
applies to a provision in the Immigration and Refugee Protection Act,
S.C. 2001, c. 27, [the IRPA] requires that the correctness standard
continue to apply to that provision, the result may well be that there will be
a patchwork applicable to judicial review in immigration law, with those
provisions in the IRPA and the Regulations that previously had
been held to be subject to the correctness standard continuing to be subject to
full curial review and new provisions or those which had not previously been
analysed presumably being accorded defence, as required by the Supreme Court of
Canada. It is difficult to see how this could be said to be satisfactory.
Indeed, both Justice Stratas in Toussaint v Canada (Attorney General),
2011 FCA 213 at paras 17-20 and Chief Justice Crampton in Lukaj v Canada
(Minister of Citizenship and Immigration), 2013 FC 8 at para 12 have
commented to this effect.
Be that as it may, the rulings of the Court of Appeal in Khan and Patel
are directly on point and thus binding on me so I am required to apply the
correctness standard of review to the officer’s interpretation of the
Regulations. Happily nothing turns on this point, as the same result pertains
under either standard.
[14]
The fifth issue that arises in this case also requires
consideration of the standard of review applicable to the officer’s assessment
of the experience possessed by a candidate when compared to the descriptions in
the NOC matrix, because determination of the applicable standard informs
whether it is appropriate for me to decide if the applicant possessed the
experience required for issuance of the visa or whether her file should be
remitted back to another visa officer for a re-determination. Such assessments
involve either factual determinations or findings of mixed fact and law.
Normally, the reasonableness standard of review applies to findings of fact or
of mixed fact and law (Dunsmuir at para 51; Patel at paras 36-37;
Thiruguanasambandamurthy v Canada (Minister of Citizenship and Immigration),
2012 FC 1518 at para 27 [Thiruguanasambandamurthy]; Talpur v Canada (Minister of Citizenship and Immigration), 2012 FC 25 at para 19 [Talpur]).
[15]
There are, however, certain statements in Khan
that could be read as mandating a correctness standard for all aspects of a
visa officer’s decision, but these statements are premised on the Court’s
earlier ruling in Patel. In Khan, Justice Pelletier, writing for
the Court, stated as follows: “This Court has held that the standard of review to
be applied to a visa officer’s decision is correctness: see Patel v. Canada (Minister of Citizenship & Immigration), 2011 FCA 187, [2011] F.C.J. No. 843
(F.C.A.) at para. 27 […].” Patel, however, did not mandate
application of the correctness standard to all aspects of a visa officer’s
decision, but, rather, only to the officer’s interpretation of the Regulation.
In terms of the review of the officer’s actual assessment of the applicant’s
file, the Court of Appeal in Patel applied a reasonableness standard.
[16]
As Khan relies on Patel and as the
jurisprudence in other contexts overwhelmingly requires application of the reasonableness
standard to an inferior tribunals’ determinations of fact and of mixed fact and
law, I believe the authorities support the application of the reasonableness
standard to the officer’s assessment of the applicant’s job experience – as set
out in the documents she filed – and comparison of that experience to the
descriptors contained in the NOC matrix. Accordingly, deference must be afforded
to such determinations. As is discussed below, this conclusion has important
implications for the alternative argument advanced by the respondent.
Should
portions of the officer’s affidavit be struck?
[17]
Turning, then, to the request to strike portions
of the officer’s affidavit, there are several propositions that may be drawn
from the authorities. First is the recognition that the “decision” subject to
review in a case such as this is the letter sent to the applicant, advising of
the rejection of her application, and the Computer Assisted Immigration Process
System [CAIPS] notes of the officer, which were created before the formal
letter was signed and record the officer’s reasoning for the determination (Kalra
v Canada (Minister of Citizenship and Immigration), 2003 FC 941 at para 15
[Kalra]). Second, the materials before the Court in a judicial review
application are normally the tribunal’s decision and the record before the
tribunal. Third, the case law teaches that decision-makers will be allowed to
make submissions in an application for judicial review of their decisions only to
the extent that may be required to provide needed context to the reviewing
court, and will not be allowed to make submissions on the merits of the
application as this is unseemly (Northwestern Utilities et al v The City of
Edmonton, [1979] 1 S.C.R. 684 at 708-709 [Northwestern Utilities]; Vancouver
Wharves Ltd v ILWU, Local 514, 60 NR 118 at paras 5-8, [1985] BCWLD 1701
(FCA)). Indeed, in Northwestern Utilities at p 710, Justice Estey,
writing for the Supreme Court, stated, “To allow an administrative board the
opportunity to justify its action and indeed to vindicate itself would produce
a spectacle not ordinarily contemplated in our judicial traditions”.
[18]
The foregoing principles have been applied in
the context of visa officers to permit affidavits from them to be filed in
applications to review their decisions so long as the affidavits merely provide
background context or facts relevant to allegations of violation of procedural
fairness or bias. Conversely, affidavits which seek to bolster the decision by
providing new or expanded reasons for the decision are not admissible (Sellathurai
v Canada (Minister of Public Safety and Emergency Preparedness), 2008 FCA
255 at paras 45-47; Kalra at para 15).
[19]
Application of the foregoing principles results
in the impugned paragraphs in the officer’s affidavit being struck. They fall
on the impermissible side of the line as each constitutes further and expanded
argument setting forth additional reasons why the decision was made. In many
instances, the content of the officer’s affidavit goes well beyond what was
contained in the CAIPS notes. As Justice Martineau said in Kalra at para
15, “[I]f I compare the visa officer’s CAIPS notes and affidavit, it is obvious
that the latter incorporates a lot more information than the former which
raises the question: upon what documents, information or notes did the visa
officer base [the] affidavit, which was executed [well] after the decision.” This
reasoning applies with full force and effect to the impugned paragraphs in the
officer’s affidavit. Accordingly, paragraphs 14, 15, 18 and 26 of the officer’s
affidavit shall be struck and have not been considered by me in making this
decision.
Was it improper for the officer to
have considered the HRSDC data on wage rates payable to NOC Codes 1242 and
5125?
[20]
Turning next to the central issue in this case –
the propriety of considering comparator salary data – it is useful to reproduce
the regulatory provisions applicable to the Canadian Experience Class because
this is the first time this issue has been considered by this Court. Section
87.1 of the Regulations provides:
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Canadian Experience Class
Class
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.
Member of the class
(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.
Application
(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.
Designated organization
(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.
Conclusive evidence
(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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Catégorie de l’expérience canadienne
Catégorie
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.
Qualité
(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.
Application
(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.
Organisme désigné
(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.
Preuve concluante
(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.
|
[21]
These provisions may be contrasted with the
provisions in the Regulations on the Federal Skilled Worker [FSW] Class, which
specifically contemplate review of salary as part of the eligibility
determination. More specifically, the Regulations require that, in the case of
an FSW application, an applicant’s prospective employer must obtain a Labour
Market Opinion from HRSDC, which is to be premised in part on the determination
that the “wages offered to the skilled worker are consistent with the
prevailing wage rate for the occupation” in Canada (clause 82(1)(c)(ii)(C) of
the Regulations).
[22]
The applicant argues that in the absence of a
similar listing of salary as a relevant criterion in the evaluation of
experience for purposes of the Canadian Experience Class (in either the
Regulations or the NOC Code provisions), an officer is prohibited from
considering salary as one of the factors to be weighed in assessing whether an
applicant has the requisite experience in one of the listed NOC classes. The
applicant asserts that an officer who considers salary in evaluating the nature
of an applicant’s Canadian work experience for purposes of eligibility as a member
of the Canadian Experience Class fetters his or her discretion and imposes
criteria that Parliament never intended. In this regard, the applicant relies
on Cheng v Canada (Secretary of State) (1994), 25 Imm LR (2d) 162, 83
FTR 259 [Cheng] and Tam v Canada (Minister of Citizenship and
Immigration) (1997), 38 Imm LR (2d) 116, 130 FTR 237 [Tam], where
visa officers were found to have impermissibly fettered their discretion when they
imported a requirement that an applicant be engaged in overall management and
performance of the business in order to meet the definitions contained in the
Investor and Entrepreneur Classes. In Cheng, Justice Cullen summarised
the finding upon which the applicant relies, in the following way:
9 This
strict reading of the definition of investor is not consistent with the
policies of Immigration Canada, as set out in the Regulations or expressed in
the guidelines. It is not intended that the applicant operate a wholly-owned
business or a wholly-owned undertaking. That interpretation is clearly wrong
and the addition of such a criterion does amount to an error of law which
adversely affected the exercise of her jurisdiction and which warrants referring
the matter back to a different immigration officer for redetermination.
Essentially, by imposing her own criteria for the definition of investor on the
circumstances of the applicant, the officer has fettered her discretion.
Further, unless and until some new guidelines are introduced, the parties
affected by the policy are entitled to be treated in a consistent manner, not
to the arbitrary addition of criteria by each particular immigration officer.
The applicant
urges that similar reasoning be applied here.
[23]
I do not believe it should be. In the first
place, it is debatable whether there remains any place for the concept of the fettering
of discretion as an independent ground of review, in light of the recent
developments in administrative law, commencing with the decision of the Supreme
Court of Canada in Dunsmuir. In Dunsmuir and the cases that
follow it, the Supreme Court has traced a single basis for the evaluation by
reviewing courts of the content of administrative tribunals’ decisions, namely,
the evaluation of whether or not they are reasonable or correct. As Justice
Stratus recently noted in Stemijon Investments Ltd v Canada (Attorney
General), 2011 FCA 299 at para 23, the concept of fettering discretion
lives “uncomfortably” with the approach to judicial review that has been
endorsed by the Supreme Court since Dunsmuir.
[24]
It is not necessary in this case to decide
whether the concept of fettering discretion remains a stand-alone ground of
review as, even if it does, I do not believe that the officer in this case
improperly fettered his discretion. There is an important distinction between
what occurred here and what happened in Cheng and Tam. There, the
relevant provisions in the Regulations and applicable departmental guidelines
outlined to a far greater extent than here the parameters of what could be
permissibly considered by the officer in determining eligibility.
[25]
In Cheng, the Immigration Regulations,
SOR/78-172 provided that to be considered as an investor an applicant was
required, amongst other things, to meet the criterion of “successful operation,
control or direction of a business or a commercial undertaking” (ss 2(1)).
Immigration Canada had issued Guidelines, indicating that the investor class
was “not limited to owners, presidents or vice presidents, but [was] intended
to extend to persons who have held a post of significant responsibility, such
as a manager of a particular division or section of a larger company” (Cheng
at para 5). These provisions provide much more direction to an officer as
to the scope of permissible inquiry than does section 87.1 of Regulations in
respect of the evaluation of experience for purposes of the Federal Experience
Class.
[26]
Likewise, in Tam, the relevant regulatory
provision stipulated that an “entrepreneur” meant an immigrant,
(a)
who intends and has the ability to establish,
purchase or make a substantial investment in a business or commercial venture
in Canada that will make a significant contribution to the economy and whereby
employment opportunities will be created or continued in Canada for one or more
Canadian citizens or permanent residents, other than the entrepreneur and his
dependants, and
(b)
who intends and has the ability to provide
active and ongoing participation in the management of the business or
commercial venture
[27]
In face of these provisions, Justices Cullen and
Pinard concluded that the officers in question had fettered their discretion in
requiring the applicants to demonstrate that they were responsible for the
overall management and performance of the company that employed them.
Effectively, such a definition would have limited the classes only to those in
a presidential or vice-presidential position, which Parliament never intended,
and, at least in Tam, added criteria that were completely different from
those in the Regulations.
[28]
Here, on the other hand, section 87.1 of the
Regulations requires an officer to evaluate whether a candidate has experience
in one of the listed NOC occupations, but provides no guidance as to how such
experience is to be evaluated, other than by reference to the listing of duties
contained in the NOC matrix.
[29]
Significantly, only the more senior and complex
jobs in the administrative category qualify as occupations for the Canadian
Experience Class. Thus, for example, work in a purely clerical position (at
Skill Level C in the NOC matrix) would not qualify but work in the more skilled
occupation of legal assistant (at Class B) does.
[30]
In evaluating whether or not an applicant’s
experience falls within a permissible NOC Code, an officer is required to
understand the nature of the work performed and the degree of complexity of the
tasks undertaken, to determine whether or not they fall within the duties
listed in the relevant NOC Code descriptors. The requisite analysis
necessitates much more than a rote comparison of the duties listed in the NOC
Code with those described in a letter of reference or job description. Rather,
what is required is a qualitative assessment of the nature of the work done and
comparison of it with the NOC Code descriptor. Indeed, there is a line of
authority which indicates that, in the context of Federal Skilled Workers
(where an officer is similarly required to assess duties performed against the
NOC Code descriptors), the officer may legitimately question whether the
applicant possesses the relevant experience if all that he or she does is
repeat the duties from the NOC descriptor in a letter of reference. In such
cases, this Court has sometimes held that an officer is required to hold an
interview or pose additional questions in writing to an applicant, in order to
obtain more detail about the actual nature of the work performed (see e.g. Talpur
and Patel v Canada (Minister of Citizenship & Immigration), 2011 FC
571). Thus, it is beyond debate that the officer must undertake a substantive
analysis of the work actually done by an applicant.
[31]
As the respondent correctly notes, salary paid is
typically one indicator of the complexity of the work performed, as the more
complex the task, generally, the higher the wages paid for it. During the
argument of this application, counsel for the applicant candidly conceded that
there may well be a rational connection between the nature of the work
performed and wages paid, which, indeed, is a fairly self-evident proposition.
The connection between wages and job complexity is recognized in other spheres.
For example, pay equity and employment standards legislation require payment of
equal wages for work of equal or equivalent value performed by men and women,
thereby confirming that compensation should follow complexity of the work
performed (see e.g. Canadian Human Rights Act, RSC 1985, c H-6 at s 11; Equal
Wages Guidelines, SOR/8-1082; Ontario’s Pay Equity Act, RSO 1990, c
P-7 and Ontario’s Employment Standards Act, SO 2000, c 41 at s 42).
Thus, average wages paid in the Toronto area (where the applicant worked) for
jobs within the applicable NOC Codes is certainly relevant to the assessment of
the nature of the applicant’s experience.
[32]
Moreover, as part of the application process,
the applicant was required to have her employer attest to her salary in the
letter of reference; this is required by point 6 in the respondent’s Document
Checklist. While this is certainly not determinative of the interpretation to
be afforded to the Regulations, as was the case with the Departmental
Guidelines in Cheng, the requirement to provide salary data is
indicative of the respondent’s view of the factors which are relevant to the
assessment of experience. (The request for salary information is not only
required in order to verify the full-time status of an employee, as the
applicant claims. If all that was relevant was verifying full-time status, it
would be far simpler and less invasive of candidates’ privacy interests to
merely have the employer confirm the hours worked by an applicant.) Thus,
the documents furnished by the respondent to applicants contemplate that salary
information must be provided and therefore presumably will be considered in the
assessment of the application.
[33]
Contrary to what the applicant asserts, the
officer did not use salary as a preliminary disqualifying factor or to perform
a “gatekeeper function” to disqualify the applicant’s application. Had the officer
done so – as the respondent conceded – he may well have engaged in an
unreasonable and incorrect interpretation of the Regulations. In this regard,
there is a significant difference between requiring a minimum salary as the starting
point for consideration – and weeding out those who do not earn the minimum
salary – as compared to examining the salary paid as but one of the data points
relevant to determining if an applicant possesses the requisite experience to
qualify as a member of the Canadian Experience Class.
[34]
In this case, the officer did not use salary as
a preliminary disqualifying factor. Rather, the officer considered the salary
information as one fact relevant to the evaluation of the nature and degree of
the applicant’s experience. The fact that the officer did not use the salary information
as a preliminary disqualifying factor is evident from his letter to the
applicant and the CAIPS notes. Both contain a comparison of the applicant’s
duties as detailed in the letter of reference to those listed in NOC Code 1242.
Had the officer used the salary analysis as a preliminary disqualifying factor,
it would not have been necessary for him to have gone on to discuss and analyze
the nature of the duties performed by the applicant – as listed in her letter
of reference – and compare them to the duties listed in the NOC Code 1242.
[35]
Moreover, given the brevity of the letter of
reference and the ambiguity of certain of the statements contained in it
regarding the nature of the duties performed by the applicant, the officer
reasonably required additional data beyond that set out in the letter of
reference for a more complete assessment. It was open to him to consider the
salary paid to the applicant and to compare it to the salaries typically paid
to those working as legal assistants and translators/interpreters in the
Toronto area, where the applicant worked, as one piece of information relevant
to determining if the applicant possessed the requisite experience to obtain a
visa under section 87.1 of the Regulations. In this regard, it is to be recalled
that this Class applies only to higher skilled administrative occupations; a
relevant factor in assessing whether the applicant actually possesses the
requisite experience is consideration of the wages paid. If they are far lower
than those typically paid for comparable work, and if the documentation
otherwise submitted detailing the nature of the work performed does not
definitively establish the requisite experience, an officer may reasonably
reject a visa application for permanent residence as a member of the Canadian
Experience Class.
[36]
Thus, in ascertaining whether the applicant
performed the work of NOC Codes 1242 and 1525, it was both permissible and
reasonable for the officer to have considered the salary paid to the applicant
in comparison to that paid in Toronto for similar work as a fact relevant to
the assessment of the applicant’s job experience.
Did the officer violate procedural
fairness in failing to disclose to the applicant that he was considering the
HRSDC wage data?
[37]
However, while it was permissible and reasonable
for the officer to have considered the HRSDC wage data, his failure to disclose
to the applicant the fact that he was doing so and to provide her an
opportunity to make submissions to him regarding the data was a violation of
procedural fairness.
[38]
This Court has made clear that where officers have
questions regarding the credibility or authenticity of an application, they
have a duty to go back to the applicant and give the applicant an opportunity
to make further submissions, normally through an interview (Talpur at
para 21; Hassani v Canada (Minister of Citizenship and Immigration),
2006 FC 1283 at para 24). It is similarly well established that a
decision-maker’s failure to disclose extrinsic information upon which he or she
relies, and that the applicant could not reasonably anticipate would be
consulted, violates procedural fairness (see e.g. Shah v Canada (Minister of
Employment and Immigration) (1994), 81 FTR 320, 170 NR 238 (FCA); Qureshi
v Canada (Minister of Citizenship and Immigration), 2009 FC 1081 at para 32;
Tariku v Canada (Minister of Citizenship and Immigration), 2007 FC 474 at para 15; and Toma v Canada (Minister of
Citizenship and Immigration), 2006 FC 780 at para 18; Amoateng v Canada
(Minister of Citizenship and Immigration) (1994), 90 FTR 51, 26 Imm LR (2d)
317).
[39]
Here, the officer had doubts as to whether the
applicant had actually fulfilled the requirements of the legal assistant NOC
category, and considered average wages applicable to that category to resolve
those doubts. The difference between the wages earned by the applicant and the
average wages thus played an important part in the officer’s conclusion that
the applicant was not acting as a legal assistant. Had the applicant been
informed of the officer’s concerns vis-à-vis her wage and been provided
with notice that the officer was considering the HRSDC average wage data, she
could have provided additional submissions in response, such as evidence
relating to average wages paid in small law firms to people of similar
experience. Likewise, had she been aware of the officer’s concerns, she might
have provided more detail about the kind of work she was performing for the
firm. Not knowing that the officer was relying on average wage data, the
applicant had no reason to submit such information.
[40]
The failure of the officer to inform the
applicant of his consideration of average wage data thus amounts to a violation
of procedural fairness. The consideration of the data was a key step in the
officer’s reasoning and was not something that the applicant could reasonably
have anticipated might be an issue.
[41]
As a result, this matter must be remitted to
another visa officer to allow the applicant to make additional submissions
related to the complexity of her duties and salary paid in respect of them.
[42]
In light of this, it is not necessary or
appropriate to address whether this officer’s evaluation of the duties
performed by the applicant was reasonable as the new officer will have
additional information to consider on the re-determination by reason of the
opportunity that the applicant will have to file additional evidence. Thus, any
comments I might make on the reasonableness of the officer’s assessment would
be at best superfluous and at worst prejudicial to one or the other of the
parties as they might well influence the re-determination but would not be
based on the full record that will be considered on re-determination.
Should this application be dismissed
due to the applicant's ineligibility under NOC Code 5125?
[43]
The same may also be said of the respondent’s
alternative argument that requests I rule on the applicant’s alleged
ineligibility under NOC Code 5125. More specifically, these same concerns
indicate that I ought not rule on the applicant’s alternative argument as
additional evidence will possibly be placed before the officer on
re-determination related to whether the applicant has experience within NOC
Code 5125. Thus, my commenting on the issue would be superfluous and
potentially prejudicial.
[44]
In addition, there is an important institutional
reason why I should not consider whether the applicant would meet the
experience requirements under NOC Code 5125: doing so would have me usurp the
role of a visa officer. As already discussed, the reasonableness standard of
review applies to the review of visa officers’ assessments of evidence and
comparison of that evidence to the requirements of the NOC matrix to determine
if an applicant possesses the requisite experience for admission as a member of
the Canadian Experience Class. This means that it is outside the proper scope
of review for this Court to substitute its views for those of a visa officer in
matters of candidate suitability (see e.g. Thiruguanasambandamurthy
at paras 27-28, Talpur at para 19; Khan v Canada
(Minister of Citizenship and Immigration), 2009 FC 302 at para 9; Arora
v Canada (Minister of Citizenship and Immigration), 2011 FC 241 at para
23). In light of this, I believe I should not grant the respondent’s request to
dismiss this application by reason of the applicant’s alleged ineligibility
under NOC Code 5125. The officer did not address whether the details of the
applicant’s duties fell within the list of duties contained in NOC Code 1525 in
his decision, and it is far from self-evident what the conclusion would be on
this point. It is not for this Court to address this issue as this would
require that I act as a visa officer and make a finding that is squarely within
the jurisdiction and scope of expertise of an officer (see Canada (Attorney
General) v Kane, 2012 SCC 64 at para 9 [Kane]; Szabo v Canada
(Citizenship and Immigration), 2012 FC 1422 at para 11). Indeed, as the
Supreme Court held in Kane (at para 9), to do this would fall into the
error of “undertaking [my] own assessment of the record”, which a reviewing
court ought not do.
[45]
Thus, it is not appropriate for me to rule on
the respondent’s alternative argument.
Should a question be certified under
sub-section 74(1) of the Immigration and Refugee Protection Act?
[46]
Finally, consideration must be given to whether
I should certify a question under section 74 of the Immigration and Refugee Protection
Act, SC 2001, c 27 [IRPA] to allow for an appeal. Both parties concurred
that in the event I address the propriety of the officer’s considering the
HRSDC wage data in my decision, a question should be certified on this issue
under subsection 74(1) of the IRPA as this is the first time the issue has
arisen in the case law and is an issue which will apply broadly to future
applicants. I agree. I accordingly certify the following question:
“Is it permissible or
reasonable for a visa officer to consider HRSDC comparator salary data when
assessing the nature of the work experience of an applicant who wishes to
qualify as a member of the Canadian Experience Class, as described in section
87.1 of Immigration and Refugee Protection Regulations, SOR/2002-227?”
[47]
In addition, because my decision to decline to
deal with the request that I evaluate the applicant’s experience under NOC Code
5125 rests in considerable part on my assessment of the standard of review
applicable to visa officers’ decisions, and in recognition of the tension
between the case law from the Supreme Court of Canada and the Federal Court of
Appeal on this issue, I have determined it appropriate to certify the following
additional question:
“What standard of
review is applicable to a visa officer’s interpretation of the Immigration and
Refugee Protection Regulations, SOR/2002-227 and to an officer’s assessment of
an application under the Immigration and Refugee Protection Regulations,
SOR/2002-227?”
JUDGMENT
THIS COURT’S JUDGMENT is that:
1.
Paragraphs 14, 15, 18 and 26 of the Affidavit of
Charles Fiola are struck;
2.
This application for judicial review of the March
12, 2012 decision of the officer is granted;
3.
The officer’s decision is set aside;
4.
The applicant’s application for permanent
residence as a member of the Canadian Experience Class is remitted to the
respondent for re-determination by a different officer;
5.
In connection with that re-determination, the applicant shall be
afforded an opportunity to file additional evidence and make additional
submissions regarding the nature of her work experience and salary earned
during the applicable reference period;
6.
The following serious questions of general
importance are certified under section 74 of the IRPA:
“Is it permissible
for a visa officer to consider comparator salary data when assessing the nature
of the work experience of an applicant who wishes to qualify as a member of the
Canadian Experience Class, as described in section 87.1 of the Immigration
and Refugee Protection Regulations, SOR/2002-227?”; and
“What standard of
review is applicable to a visa officer’s interpretation of the Immigration
and Refugee Protection Regulations, SOR/2002-227 and to the
officer’s assessment of an application under the Immigration and Refugee
Protection Regulations, SOR/2002-227?” and
7.
There is no order as to costs.
"Mary J.L. Gleason"
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