Docket: A-97-13
Citation: 2013 FCA 263
CORAM: EVANS J.A.
GAUTHIER J.A.
NEAR J.A.
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BETWEEN:
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QIN QIN
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Appellant
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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
EVANS J.A.
[1]
Foreign nationals who are in Canada on a temporary basis may apply for
permanent residence as a member of the Canadian Experience Class (CEC). Applicants
must satisfy a visa officer that, among other things, they have had at least 12
months work experience in Canada in the preceding 24 months. The program is
limited to those who have worked in occupations requiring a relatively high
level of skill.
[2]
The principal issue raised in this case concerns the evidence that a
visa officer may consider in determining if a CEC applicant meets the Canadian
work experience requirement. In particular, when deciding whether an applicant
was employed to perform duties of the requisite level of skill, may the officer
take into account the fact that the applicant’s wages are below those
prevailing for the occupation in which the applicant was assessed?
[3]
This is an appeal from a decision of the Federal Court in which Justice
Gleason (Judge) allowed an application for judicial review by Qin Qin, a
national of China, to set aside an officer’s rejection of her application for
permanent residence as a member of the CEC. The officer found that Ms Qin had
not demonstrated that she met the Canadian work experience requirement set out
in section 87.1 of the Immigration and Refugee Protection Regulations,
SOR/2002-227 (Regulations)
[4]
The visa officer based his decision in part on the disparity between Ms
Qin’s wages and the relatively higher minimum wage rates prevailing locally for
legal secretaries and translators/interpreters, the occupational categories in
which her application was assessed. In addition, the description of Ms Qin’s
job provided by her employer did not match the duties of Legal Secretaries as
described in the National Occupational Classification (NOC).
[5]
In a decision reported as Qin v. Canada (Minister of Citizenship and
Immigration), 2013 FC 147, the Judge allowed the application for judicial
review on the ground that the visa officer had breached the duty of procedural
fairness. He had failed to inform Ms Qin that he proposed to consult
comparative wage data compiled by Human Resources and Skills Development Canada
(HRSDC) as an indicator of whether her employment duties were consistent with
those of legal secretaries, and to give her an opportunity to respond. In this
appeal, the Minister of Citizenship and Immigration does not challenge the
Judge’s finding of procedural unfairness.
[6]
The Judge remitted Ms Qin’s application for a permanent resident visa as
a member of the CEC for redetermination by a different officer. She left it to
that officer to decide if Ms Qin met the Canadian work experience requirement
on the basis of the NOC codes for Translators, Terminologists and Interpreters
(Translators/Interpreters) or Legal Secretaries.
[7]
The Judge also held that if the officer had observed the duty of
procedural fairness it would have been open to him to take into account HRSDC
comparator wage data as an indicator of whether the employment duties performed
by Ms Qin were consistent with those in the relevant NOC codes.
[8]
The Judge certified the following two questions of general importance
under paragraph 74(d) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (IRPA):
Question 1: 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?
Question 2: 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?
[9]
The parties agree that Ms Qin’s CEC application must be redetermined by
another visa officer because of the breach of procedural fairness. However, it
is clear from the Judge’s reasons that her Order implicitly permits the officer
redetermining Ms Qin’s visa application to take comparator wage data into
account. Hence, the questions of general importance certified by the Judge
respecting the interpretation of section 87.1, and the standard of review
applicable to the visa officer’s implicit interpretation of it, were properly
certified under paragraph 74(d).
[10]
Strictly, however, the second part of the second certified question,
namely, the standard of review to be applied to a visa officer’s assessment of
a CEC application, does not arise for decision in this appeal. The officer’s
refusal of Ms Qin’s application has been set aside on procedural grounds. The
standard of review applicable to the assessment of the application will only
arise after it has been redetermined. Nonetheless, because the other questions
were properly certified, I propose to answer it.
Factual background
[11]
Ms Qin has been in Canada since 2002. After graduating from York University in 2009 with a Bachelor of Arts degree she obtained a three-year temporary
resident permit that enabled her to take employment. In 2010 she started to
work full-time for a small Toronto law firm, K D Associates, as an
administrative assistant, and a translator/interpreter for the firm’s Chinese
clients.
[12]
Subparagraph 87.1(2)(a)(i) of the Regulations provides that, in
order to qualify for permanent residence as a member of the CEC, an applicant’s
Canadian work experience must be in one or more of the occupations of Skill
Type O Management Occupations or Skill Level A or B in the NOC matrix. These
occupations are relatively highly skilled and include Translators/Interpreters
(NOC Code 5125) and Legal
Secretaries (NOC Code 1242). The NOC sets out a range of tasks that comprise
listed occupations, but does not include any wage information.
[13]
K D Associates provided a letter of reference, dated September 20, 2011,
in support of Ms Qin’s application for permanent residence in Canada. The letter stated that she was employed by the firm as a legal secretary/translator,
described her duties, and stated her hourly wage rate and annual salary.
[14]
In October 2011, more than a year after she had started working for K D
Associates, Ms Qin applied for permanent resident status as a member of the
CEC. She requested an assessment of her application on the basis that she had
been employed full-time for more than 12 months as a Legal Secretary and
Translator/Interpreter.
[15]
The officer was not satisfied that the reference letter’s statement of
Ms Qin’s work duties adequately matched those contained in NOC Code 1242 (Legal
Secretaries). His search of the HRSDC database of local average and minimum
wage rates for legal secretaries, and translators/interpreters (NOC Code 5125)
revealed that Ms Qin’s hourly wage and annual salary were below the minimum
prevailing local wage rate and annual salary for these occupations.
[16]
A letter from Citizenship and Immigration Canada, dated March 12, 2012,
advised Ms Qin that her application had been rejected. The reasons given for
the decision were that she had not met the skilled work experience requirement
because her salary was not consistent with NOC Codes 5125 or 1242, and the
employment duties listed in the letter of reference were not consistent with
NOC Code 1242.
Federal Court’s decision
[17]
I need only describe the two elements of the Judge’s decision that are
in contention in this appeal.
[18]
The first is the standard of review applicable to the officer’s
interpretation of the Regulations. The second is whether a visa officer may
compare a CEC applicant’s wages with prevailing local wage rates for the
occupational categories in which the applicant was assessed as an aid to
determining if the applicant has satisfied the Canadian work experience
requirement in section 87.1 of the Regulations. This issue has two parts.
First, is comparator salary level factually relevant to whether applicants have
performed the employment duties of the NOC codes in which they are assessed?
Second, if it is, does the visa officer have the legal authority to take it
into account?
[19]
On the standard of review, the Judge noted that decisions of this Court
(Khan v. Canada (Minister of Citizenship and Immigration), 2011 FCA 339
(Khan) and Patel v. Canada (Minister of Citizenship and Immigration),
2011 FCA 187, [2013] 1 F.C.R. 340 (Patel)) had applied the correctness
standard to visa officers’ interpretations of provisions in the Regulations
relating to the work study program and educational requirements.
[20]
However, the Judge also stated (at para. 10) that the Supreme Court of
Canada had interpreted Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190 (Dunsmuir) as deciding that reasonableness is the standard of
review presumptively applicable to a tribunal’s interpretation of its home
statute: see, in particular, Alberta (Information and Privacy Commissioner)
v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654 at para.
39.
[21]
The Judge asked herself (at para. 16) whether Khan and Patel
should still be regarded as having “satisfactorily” resolved the applicable
standard of review issue in light of the Supreme Court’s post-Dunsmuir
jurisprudence. Without deciding this question, she applied the correctness
standard because Khan and Patel were directly on point: at para.
13. Moreover, she added, nothing turned on it because the officer’s
interpretation of the legislation satisfied both standards.
[22]
On the substantive issue, the Judge stated that the significant
disparity between Ms Qin’s wages and the prevailing local minimum wage for
legal secretaries and translators/interpreters was relevant to determining the
largely factual question of whether she was in fact performing the duties of
these occupations as described in the applicable NOC codes. The Judge also held
that the visa officer had the legal authority under the Regulations to take
wages into account when deciding if a CEC applicant’s employment duties were
within the applicable NOC code.
Statutory framework
[23]
I set out below the material provisions of section 87.1 of the
Regulations that were in force at the time relevant to this appeal.
Canadian Experience Class Catégorie
de l’expérience canadienne
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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
…
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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
[…]
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Issues and analysis
(i) Standard
of review
[24]
As I have already noted, the standard of review of the visa officer’s
assessment of Ms Qin’s application does not strictly arise in this appeal
because his decision has been set aside for procedural unfairness. However,
since other questions have been properly certified and the issue is not in
dispute between the parties, I can deal with it briefly.
[25]
A visa officer’s refusal of an application for permanent residence on
the ground that an applicant’s employment was not consistent with an occupation
in an NOC code of the required skill level is a question of mixed fact and law
at the factual end of the spectrum. Accordingly, it is reviewable on the
standard of reasonableness: Dunsmuir at para. 53.
[26]
Whether comparator wage data are factually relevant to determining if an
applicant was employed in the NOC occupation in which she was assessed is a
question of fact. Hence, it, too, is reviewable on the reasonableness standard:
ibid.
[27]
The more contentious issue is whether the standard of correctness or
reasonableness is applicable to a review of visa officers’ interpretations of
the Regulations. The question of interpretation at issue is whether section
87.1 of the Regulations permits officers to consult HRSDC prevailing wage data
as an aid to determining if a CEC applicant was performing employment duties
that correspond to those of the NOC code in which she or he was assessed.
[28]
This Court has recently reaffirmed in obiter dicta that a visa
officer’s interpretation of the enabling legislation is reviewable on the
correctness standard: Takeda Canada Inc. v. Canada (Minister of Health),
2013 FCA 13 at para. 116 (per Dawson J.A.).
[29]
After the Judge rendered her decision in the present proceeding, the
Supreme Court of Canada held in Agraira v. Canada (Public Safety and
Emergency Preparedness), 2013 SCC 36 (Agraira) that a Minister’s
implied interpretation of the term “national interest” in IRPA, subsection
34(2) is reviewable on the reasonableness standard. Thus, the Court reasoned,
when a Minister’s decision made under that provision is challenged on the basis
of the legal relevance of the factors taken into account, a reviewing court may
only set the decision aside if it can be inferred from those factors that the
Minister had proceeded on the basis of an unreasonable interpretation of
“national interest”.
[30]
Had it been available to her, Agraira might have strengthened the
Judge’s doubts as to whether, in a post-Dunsmuir world, Khan and Patel
should any longer be regarded as having satisfactorily decided that visa
officers’ interpretations of the statutory provisions that they administer are
reviewable for correctness.
[31]
For the reasons that I develop below, section 87.1 of the Regulations
clearly authorizes a visa officer to take comparator wage information into
account when assessing whether a CEC applicant’s employment duties match those
described in the relevant NOC code so as to satisfy the Canadian work
experience requirement. Since the interpretation of section 87.1 implicit in
the visa officer’s consideration of the wage information in his assessment of
Ms Qin’s visa application is correct it cannot be unreasonable.
[32]
Indeed, unreasonableness as a possible standard of review of an
administrative interpretation of legislation only arises when the statutory
provision in question is ambiguous and “there is no one interpretation which
can be said to be ‘right’”: CUPE, Local 963 v. New Brunswick Liquor
Corporation, [1979] 2 S.C.R. 227 at 237.
[33]
Hence, if a reviewing court concludes that one interpretation is
“right”, after conducting a textual, contextual, and purposive interpretative
analysis of the legislation, and giving careful and respectful consideration to
the tribunal’s reasons, correctness is the standard of review. In these
circumstances, if a tribunal has interpreted the statute in some other way, the
court may intervene to ensure administrative compliance with the legislature’s
clearly expressed intention. The rule of law requires nothing less.
[34]
Although not necessary to determine the standard of review in this case
because section 87.1 is not ambiguous, I would also note that deference is only
due to administrative decision-makers on questions within their statutory power
to decide. Adjudicative tribunals, such as labour relations boards, human
rights tribunals, and professional disciplinary bodies, normally have express
or implied statutory authority to decide any questions of law or fact necessary
to dispose of a matter properly before them.
[35]
However, not all those entrusted with the exercise of statutory power
necessarily have the delegated power to decide questions of law, including the
interpretation of their enabling statute. Of course, from time to time all
statutory delegates may have to form an opinion on whether the law permits them
to take some particular administrative action, including enacting subordinate
legislation. But this is not the same as a statutory power to decide
definitively the meaning of a provision in an enabling statute, subject only to
judicial review on the presumptive standard of reasonableness.
[36]
Whether the delegated statutory powers of any given public official or
body include the power to decide question of law, including the interpretation
of their enabling legislation, may be determined by reference to the factors
identified in Nova Scotia (Workers’ Compensation Board) v. Martin, 2003
SCC 54, [2003] 2 S.C.R. 504 at para. 48: and see Covarrubias v. Canada (Minister of Citizenship and Immigration), 2006 FCA 365, [2007] 3 F.C.R. 169 at
paras. 47-56 (Covarrubias); Shpati v. Canada (Public Safety and
Emergency Preparedness), 2011 FCA 286, [2012] 2 F.C.R. 133 at para. 27 (Shpati);
Georgia Strait Alliance v. Canada (Fisheries and Oceans), 2012
FCA 40 at para. 99.
[37]
These factors include the terms of the delegate’s statutory mandate, the
delegate’s relationship with other decision-makers in the statutory scheme,
practicality, capacity, and procedure. On this basis, it must be inferred from
the reasoning in Agraira that the Court was of the view that the
Minister had the delegated power to interpret the term “national interest” in
IRPA, subsection 34(2).
[38]
Because I have already decided for other reasons that correctness is the
applicable standard of review in this case, it is not necessary for the
disposition of this appeal to decide if post-Dunsmuir jurisprudence,
including Agraira, requires this Court to revisit its decisions holding
that immigration officials are not entitled to curial deference on issues of
statutory interpretation: see, for example, Khan and Patel (visa
officers); Shpati (enforcement officers), and Covarrubias (pre-removal
risk assessment officers).
(ii) May
wage rate data be considered in the determination of a CEC application?
(a) Factual relevance
[39]
As I have already indicated, whether an applicant is performing the
employment tasks listed in an NOC code is largely a question of fact. Whether
evidence is relevant to determining what duties the applicant was performing
and, if it is, how much weight should be given to it, are also factual
questions. Hence, reasonableness is the standard of review applicable to these
aspects of a visa officer’s rejection of a CEC application.
[40]
I agree with the Judge that it was not clear from Ms Qin’s reference
letter that her employment duties fell within the applicable NOC codes.
Accordingly, it was reasonable for the visa officer to consult the extensive
prevailing minimum and average wage data for these occupations compiled by
HRSDC and available on its website. Wages generally increase with the
complexity of a job. Wage rates may be particularly relevant in assessing a CEC
application because the program is limited to those with higher skill levels.
[41]
It is not a statutory criterion that an applicant for permanent
residence as a member of the CEC must be paid wages that are consistent with
prevailing wage rates for the occupation in which the application was assessed.
Hence, it will be open to Ms Qin in her representations to show why, in her
particular situation, the officer should attach little probative value, if any,
to her wages and to the HRSDC wage data when determining whether her employment
duties satisfy the Canadian work experience requirement.
(b) The legal issue
[42]
Having found that it was reasonable for the visa officer to compare Ms
Qin’s hourly wage rate and annual salary with the HRSDC data as an indicator of
whether she was engaged in the NOC occupations in which she was assessed, I now
consider if the Regulations preclude the officer from undertaking this
comparison. I share the Judge’s view that they do not.
[43]
Express statutory authority is not required to enable administrative
decision-makers to consider evidence that has probative value to determining a
question entrusted to them. It is normally implicit in the grant of legal
authority to decide a question of fact that the decision-maker may take into
account evidence relevant to making that decision.
[44]
The text of section 87.1 of the Regulations is silent on the evidence
that visa officers may take into account when deciding a CEC application.
Hence, considered alone, it does not rebut the presumption that they have the
implied power to consider any evidence relevant to determining whether an
applicant meets the skilled work experience requirement.
[45]
However, Ms Qin argues that to permit visa officers to take wage
information into account when assessing a CEC application would be inconsistent
with the statutory scheme. She points to provisions in the Regulations
governing the issuance of temporary work permits (TWP), and permanent resident
visas to members of the federal skilled worker (FSW) class.
[46]
The provisions of the Regulations governing the FSW and TWP programs
expressly direct visa officers to approve an offer of employment on the basis
of an opinion of an HRSDC officer that, among other things, the wages offered
to the applicant by a prospective employer are consistent with prevailing wage
rates for the occupation in question: see Regulations, subparagraph 82(2)(c)(ii)(C)
(federal skilled workers) and paragraph 203(3)(d) (temporary work
permits). Ms Qin makes two arguments based on these provisions.
[47]
First, when Parliament intends comparator wage data to be taken into
account in assessing an employment-based application to reside in Canada, it does so expressly. The absence of any such provision in section 87.1, or in the
policy manuals, indicates that wages are not a criterion for assessing the work
experience of an applicant for a permanent residence visa as a member of the
CEC.
[48]
I disagree. Under the FSW and TWP programs an opinion is required on the
impact on the labour market of granting a visa or work permit. Determining
whether an applicant’s wages are consistent with those prevailing in the
relevant occupation is one of the statutory components of a labour market
opinion. In contrast, it is not a statutory condition to the grant of a visa
under the CEC program that an applicant’s wages must be consistent with the
prevailing local wage rates for the occupation in which the applicant is being
assessed. Wages are simply one of the many considerations that may be relevant
to determining whether a CEC applicant satisfies the prescribed work experience
requirement.
[49]
In my view, the visa officer did not treat Ms Qin’s low salary as a
disqualification in itself, because he also found that the description of her
duties in the letter of reference was not consistent with NOC Code 1242: see
also paragraph 25 of the affidavit of the visa officer at Appeal Book, p. 171.
[50]
On the other hand, if there is satisfactory evidence from an employer
that a CEC applicant has the required Canadian work experience, she may be
granted a visa even though her wages are below the prevailing wage rates.
Indeed, when other evidence is available, the officer may be satisfied that an
applicant meets the work experience requirement without having to consider
comparator wage information at all. Much depends on the particular facts of an
application.
[51]
I would not expect the Regulations to attempt to identify the different
kinds of evidence that a visa officer may consider in determining if a CEC
applicant’s work experience falls within a particular NOC code. However, the
requirement in the CEC application process for an employer to provide an
applicant’s wage information may be some indication that wages are relevant to
a determination of whether an applicant has satisfied the Canadian work
requirement.
[52]
Ms Qin’s second argument based on the FSW and TWP programs is that it
would unduly complicate and confuse the administration of the CEC program if
visa officers could take wages into account in assessing an application.
[53]
She noted that under the FSW and TWP programs HRSDC officers, not visa
officers, give a labour market opinion based on, among other things, whether
the individual’s wages are consistent with prevailing rates. This is because
assessing labour market impact is within the expertise of HRSDC officers.
Consequently, she argues, section 87.1 should not be interpreted as authorizing
visa officers to make a similar determination with respect to CEC applications
because they lack the necessary expertise.
[54]
I am not persuaded that permitting visa officers merely to take wage
data into account when assessing a CEC applicant’s work experience would so
disrupt the fair and effective administration of the program as to warrant
reading into the Regulations a limit on the power of visa officers to take
relevant evidence into account.
[55]
Considering comparator wage rates as one indication of whether a CEC
applicant’s employment duties are consistent with those described in the
relevant NOC code is not so complex a task that a visa officer could not
perform it, especially with the benefit of applicants’ representations.
Permitting a visa officer to take account of wage information for this limited
purpose is not the equivalent of authorizing a visa officer to prepare a labour
market opinion such as that required in connection with FSW and TWP
applications.
[56]
There is nothing in the record before us to suggest that the use of wage
data as an indicator of whether a CEC applicant has the requisite Canadian work
experience has caused administrative problems. In any event, visa officers do
not work in a vacuum; advice from more experienced colleagues may be available
to them if it is required.
Conclusions
[57]
For these reasons, I would dismiss the appeal and answer the certified
questions as follows:
Question
1: 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?
Answer: Yes
Question
2: 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?
Answer: Correctness
is the applicable standard in this case for reviewing the visa officer’s
interpretation of section 87.1 of the Regulations, and reasonableness is the
standard of review of a visa officer’s findings of fact and application of
section 87.1 to the facts of a CEC application.
"John M. Evans"
“I agree
Johanne Gauthier J.A.”
“I agree
D.G. Near J.A.”
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