Date: 20070501
Docket: IMM-2561-06
Citation: 2007 FC 441
BETWEEN:
MAHENDRAKUMAR
MANILAL PATEL
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
Pinard
J.
[1]
This
is a judicial review of a decision of Jyotsana Sethi, an immigration officer (the
“Officer”), dated March 2, 2006, refusing Mahendrakumar Manilal Patel’s
application for permanent residency in the skilled worker category on the basis
that he did not meet the requirements under subsection 11(2) the Immigration
Regulations 1978, SOR/78-172 (the Former Regulations) or the requirements under paragraphs
75(2)(a),
(b) and (c) of the Immigration and Refugee Protection
Regulations, SOR/2002-227 (the IRP Regulations).
[2]
On
July 12, 2000, Mahendrakumar Manilal Patel, the applicant, submitted an
application for permanent residence in Canada under the
skilled worker category with an intended occupation of Librarian, Code 5111 of
the National Occupational Classification (NOC).
[3]
In
a letter dated December 5, 2003, the applicant was informed that his
application would be assessed under the selection criteria of either the Former
Regulations or the IRP Regulations, whichever was more favourable to him.
[4]
On
March 1, 2006, the applicant attended an interview at the High Commission in New Delhi, India. The
applicant brought a variety of documents with him, including a letter from the
head master of the school the applicant had worked at which stated that the
applicant had served as a librarian there from December 15, 1994 to June 9,
2002. He also brought a letter from his current employer confirming his duties
as the librarian at a high school.
[5]
In
a letter dated March 2, 2006, the applicant was informed that the Officer had
determined that he did not meet the requirements under the Former Regulations
nor under the IRP Regulations.
* * * * * * *
*
[6]
The
relevant portions of the Former Regulations read:
|
11. (2) Subject to
subsections (3) and (4), a visa officer shall not issue an immigrant visa
pursuant to section 9 or 19 to an immigrant other than an entrepreneur, an
investor, a provincial nominee, a retired person or a self-employed person
unless
(a) the units of assessment
awarded to that immigrant include at least one unit of assessment for the
factor set out in item 4 of column I of Schedule I;
|
11. (2) Sous réserve
des paragraphes (3) and (4), l’agent des visas ne délivre un visa en vertu de
l’article 9 ou 10 à un immigrant autre qu’un entrepreneur, un investisseur,
un candidat d’une province, un retraité ou un travailleur autonome, que si
l’immigrant :
a) a obtenu au moins un point
d’appréciation pour le facteur visé à l’article 4 de la colonne I de l’annexe
I;
|
Item 4 of column I of Schedule I reads:
(1) Units of assessment shall be
awarded on the basis of employment opportunities in Canada in the occupation
(a) for which the applicant meets
the employment requirements for Canada
set out in the National Occupational Classification;
…
[7]
The
relevant provisions of the IRP Regulations follow:
|
75. (2)
A foreign national is a skilled worker if
(a) within the 10 years preceding the date of their
application for a permanent resident visa, they have at least one year of
continuous full-time employment experience, as described in subsection 80(7),
or the equivalent in continuous part-time employment in one or more
occupations, other than a restricted occupation, that are listed in Skill
Type 0 Management Occupations or Skill Level A or B of the National
Occupational Classification matrix;
(b) during that period of employment they performed the
actions described in the lead statement for the occupation as set out in the
occupational descriptions of the National Occupational Classification;
and
(c) during that period of employment they performed a
substantial number of the main duties of the occupation as set out in the
occupational descriptions of the National Occupational Classification,
including all of the essential duties.
(3) If the foreign national
fails to meet the requirements of subsection (2), the application for a
permanent resident visa shall be refused and no further assessment is
required.
80. (1)
Up to a maximum of 21 points shall be awarded to a skilled worker for
full-time work experience, or the full-time equivalent for part-time work
experience, within the 10 years preceding the date of their application, as
follows:
(a)
for one year of work experience, 15 points;
(b)
for two years of work experience, 17 points;
(c)
for three years of work experience, 19 points; and
(d)
for four or more years of work experience, 21 points.
…
(3) For
the purposes of subsection (1), a skilled worker is considered to have
experience in an occupation, regardless of whether they meet the occupation's
employment requirements of the occupation as set out in the occupational
descriptions of the National Occupational Classification, if they
performed
(a)
the actions described in the lead statement for the occupation as set out in
the National Occupational Classification; and
(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.
|
75.
(2) Est un travailleur qualifié l’étranger qui satisfait aux
exigences suivantes :
a) il a accumulé au moins une année continue d’expérience de
travail à temps plein au sens du paragraphe 80(7), ou l’équivalent s’il
travaille à temps partiel de façon continue, au cours des dix années qui ont
précédé la date de présentation de la demande de visa de résident permanent,
dans au moins une des professions appartenant aux genre de compétence 0
Gestion ou niveaux de compétences A ou B de la matrice de la Classification
nationale des professions — exception faite des professions d’accès
limité;
b) pendant cette période d’emploi, il a accompli l’ensemble des
tâches figurant dans l’énoncé principal établi pour la profession dans les
descriptions des professions de cette classification;
c) pendant cette période d’emploi, il a exercé une partie
appréciable des fonctions principales de la profession figurant dans les
descriptions des professions de cette classification, notamment toutes les
fonctions essentielles.
(3) Si
l’étranger ne satisfait pas aux exigences prévues au paragraphe (2), l’agent
met fin à l’examen de la demande de visa de résident permanent et la refuse.
80. (1) Un maximum de 21 points
d’appréciation sont attribués au travailleur qualifié en fonction du nombre
d’années d’expérience de travail à temps plein, ou l’équivalent temps plein
du nombre d’années d’expérience de travail à temps partiel, au cours des dix
années qui ont précédé la date de présentation de la demande, selon la grille
suivante :
a) pour une année de travail,
15 points;
b) pour deux années de
travail, 17 points;
c) pour trois années de
travail, 19 points;
d) pour quatre années de
travail, 21 points.
…
(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
dans la Classification nationale des professions est considéré comme
ayant acquis de l’expérience dans la profession ou le métier :
a) s’il a accompli l’ensemble
des tâches figurant dans l’énoncé principal établi pour la profession ou le
métier dans les descriptions des professions de cette classification;
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.
|
[8]
The
National Occupation Classification for code 5111 – Librarians states that the
employment requirement for this occupation is a master’s degree in library
science.
* * * * * * *
*
[9]
The
applicant’s primary argument is that the Officer erred in her analysis under
the IRP Regulations by failing to award the applicant occupational experience
points on the ground that he couldn’t be awarded any occupational experience
points unless he met the employment requirements set out in the NOC of
Librarians.
[10]
Although
not framed as such by the applicant, in my view, the alleged error is that the
Officer prematurely ended her analysis under the IRP Regulations because she
mistakenly imported a criterion from the Former Regulations into the IRP
Regulations.
[11]
It
is a reviewable error to rely on extraneous criteria (Maple Lodge Farms
Limited v. Government of Canada et al., [1982] 2 S.C.R. 2).
[12]
In
order to immigrate to Canada as a skilled worker, an applicant must meet the
definition of skilled worker set out in subsection 75(2) of the IRP Regulations
and be awarded the required number of points. Once it has been
determined that an applicant does not meet the definition of a skilled worker,
the application is refused and no further assessment is required.
[13]
The
applicant claims that the Officer erred by bringing an extraneous criterion
into the assessment for awarding occupational experience points under
subsection 80(1) and as a result erroneously failed to award the applicant
points under subsection 81(3).
[14]
It
is clear from the Computer Assisted Immigration Processing System (CAIPS) notes
that the Officer didn’t even consider awarding the applicant points for
experience because she stopped her analysis under the IRP Regulations once she
had concluded that the applicant did not meet the definition of a skilled
worker in subsection 75(2) of the Regulations. The CAIPS notes state “PA does
not meet the employment requirements for NOC 5111 Librarians since he does not
have a Master s degree in Library Science. Cannot assess the PA as a
Librarian.”
[15]
The
Officer’s affidavit supports this conclusion. She states, at paragraph 21, “I
explained to the applicant at the end of the interview, that since he did not
make the qualifying pass mark under the Immigration Act and did not meet the
definition of a skilled worker under IRPA, he did not meet the requirements
for immigration to Canada.”
[16]
Therefore,
the issue before the Court is whether the Officer’s determination that the
applicant did not meet the definition of a skilled worker was based on an
extraneous criterion.
[17]
Both
parties agree that whether or not an applicant meets the employment
requirements in the NOC is not relevant to an assessment under the IRP Regulations
although it was a relevant consideration under the Former Regulations.
[18]
The
letter from the Officer informing the applicant of the decision referred to
subsection 75(2) of the IRP Regulations and concludes:
I am not satisfied that you meet part:
(a), (b) and (c) of these requirements, since you do not meet the requirements
of NOC 5111, Librarian in that you do not have a Master’s degree in Library
Sciences and therefore cannot be assessed under this NOC.
[19]
In
her CAIPS notes under the section assessing the applicant under IRP Regulations
the Officer wrote:
PA does not meet the employment
requirements for NOC 5111 Librarians since he does not have a Master s degree
in Library Science. Cannot assess the PA as a Librarian.
[20]
In
my opinion, both the decision letter and the CAIPS notes indicate that the
Officer determined that the applicant could not even be assessed under the IRP
Regulations because he did not meet the employment requirement under the
occupational category Librarians, i.e. have a Master’s in Library Sciences.
[21]
Moreover,
the Officer’s affidavit supports this conclusion. She states at paragraphs 19
and 20:
In addition to the above, I noted in my
CAIPS notes that the applicant does not meet the employment requirements of NOC
5111 since he does not have a Master’s degree in Library Science.
I considered the above two factors in my
assessment of this applicant’s eligibility under IRPA. I note that the fact that
this applicant does not meet the employment requirements is not relevant under
IRPA, however, in addition to not meeting the employment requirements, the
applicant did not satisfy me that he had performed a substantial number of the
main duties of NOC 5111. [Emphasis added.]
[22]
The
respondent submits that the fact that the Officer referred to the lack of a
Master’s degree is not sufficient to overturn the decision given that at
another part of the CAIPS notes the Officer found that the applicant did not
meet paragraph 75(2)(a) when she stated that the applicant does not meet
the definition of skilled worker under IRPA since he does not have a minimum of
one year’s experience in a 0, A or B occupation and because she found that he
did not performed a substantial number of the main duties of NOC 5111.
[23]
In
my opinion, this is not sufficient to save the Officer’s decision. The
Officer’s determination that the applicant did not have a minimum one year’s
experience is entirely unsupported by the reasons. Such a conclusion by the
Officer would require an explanation given that the applicant submitted
evidence that he has worked as a librarian since 1994.
[24]
I
am of the opinion that the Officer made a reviewable error by finding that the
applicant was ineligible to be assessed under the IRP Regulations as a skilled
worker in the occupational group, Librarians, because he did not satisfy a
criteria in the employment requirements in the NOC of that occupation.
[25]
Consequently,
the application for judicial review is allowed and the matter is sent back to a
different immigration officer for reconsideration.
“Yvon
Pinard”
Ottawa,
Ontario
May
1, 2007
Email this Content