Date:
20130220
Docket:
IMM-5814-12
Citation:
2013 FC 174
Montreal,
Quebec, February 20, 2013
PRESENT: The
Honourable Mr. Justice Shore
BETWEEN:
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SHERIF MOHAMED RASHED
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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
I. Introduction
[1]
The
Applicant seeks judicial review of a refusal to process his application for
permanent residence [PR Application] as a federal skilled worker under National
Occupation Classification 0311 – Managers in Health Care [NOC 0311 class]. The
Applicant challenges the finding that he did not establish that he performed
the actions described in the lead statement set out in the occupational
description for the NOC 0311 class [NOC 0311 Lead Statement], or that he
performed all of the essential duties and a substantial number of the main
duties set out in the occupational description for the NOC 0311 class [NOC 0311
Occupational Description].
II. Judicial
Procedure
[2]
This
is an application under subsection 72(1) of the Immigration and Refugee
Protection Act, SC
2001, c 27 [IRPA]
for judicial review of the decision of an immigration officer [Officer], dated
March 30, 2012.
III. Background
[3]
The
Applicant, a citizen of Egypt, was born in 1966.
[4]
In
June 1991, the Applicant received a medical degree from Cairo University. He
completed his residency training at Cairo University Hospitals in August 1992.
[5]
Since
July 1998, the Applicant has been employed with Eli Lilly & Company [Eli
Lilly], a well-known global pharmaceutical company, as Manager in Health Care
(May 2008 to present); Sales, Marketing and Advertising Manager (November 2008
to May 2009); Manager in Health Care – Area Brand Leader (May 2006 to April
2008); Manager in Health Care – Senior Brand Manager (May 2001 to April 2006);
and Manager in Health Care – District Manager (July 1998 to April 2001).
[6]
In
Schedule 3 of the PR Application, the Applicant identified his main employment
duties for each of his positions. A letter of employment from Eli Lilly, dated July 21, 2010 [Employment Letter], also sets out his employment history and
duties.
[7]
In
Schedule 3 of his PR Application, the Applicant identified his duties as
Manager of Health Care: (i) planning, organizing, directly controlling, and
evaluating the delivery of health care services; (ii) planning and controlling
departmental budgets; (iii) developing and implementing plans for new programs;
(iv) assisting decision-making of affiliates; and (v) following-up on the
implementation of programs and projects with health-care providers and the
medical community.
[8]
The
Employment Letter also identifies the Applicant’s duties as Manager in Health
Care: (i) leading improvement in different processes within departments at
the organization; (ii) improving productivity and speed of processes with
different business implications; (iii) deploying the Six Sigma program to
achieve organization and area-wide priorities and objectives; (iv) assisting
affiliates in making sound decisions as a member of the senior management
board; and, (v) leading transformation of the organization to achieve business
objectives.
[9]
In
Schedule 3 of his PR Application, the Applicant identified his duties as Sales,
Marketing and Advertising Manager: (i) advertising and planning marketing
activities; (ii) developing market strategy; and, (iii) supervising and
coaching brand managers.
[10]
The
Employment Letter also identifies the Applicant’s duties as Sales, Marketing
and Advertising Manager: (i) supervising and coaching brand managers; (ii)
developing brand managers training curriculum; (ii) coaching brand managers in
marketing strategy development, tactics, and program design and implementation;
and, (iii) following up on the implementation of programs and projects with
health care providers and the medical community.
[11]
In
Schedule 3 of his PR Application, the Applicant identified his duties as
Manager in Health Care – Area Brand Leader: (i) monitoring performance of
affiliates and helping management fix issues; (ii) developing communication strategy
with medical community; and, (iii) planning, organizing, directly controlling,
and evaluating the delivery of health care services.
[12]
The
Employment Letter also identifies the Applicant’s duties as Manager in Health
Care – Area Brand Leader: (i) coordinating activities and brand strategy across
various affiliates; (ii) developing communication strategy with the
medical community and patients, and, (iii) planning and administering
projects across various affiliates to provide patient services.
[13]
In
Schedule 3 of his PR Application, the Applicant identified his duties as
Manager in Health Care – Senior Brand Manager: (i) developing and implementing
new programs, special projects, new material, and equipment acquisitions; (ii)
assessing communication vehicles and activities; (iii) developing tactics and
an action plan for communications with medical and health care community; and,
(iv) developing strategy for communication with medical community and patients.
[14]
The
Employment Letter also identifies the Applicant’s duties as Manager of Health
Care – Senior Brand Manager: (i) developing and implementing plans for new
programs, special projects, new material, and equipment acquisitions; (ii)
managing staffing levels; and, (iii) developing strategy, information plans,
and different communication vehicles with the medical community and patients.
[15]
In
Schedule 3 of his PR Application, the Applicant identified his duties as
Manager in Health Care – District Manager: (i) coordinating and developing
tactics for medical representatives with medical health community; and, (ii)
formulating policies and programs in accordance with the applicable laws and
regulations.
[16]
The
Employment Letter also identifies the Applicant’s duties as Manager in Health
Care – District Manager: (i) supervising and managing the business of a
regional operation; (ii) developing tactics and an action plan for
communication with the medical health care community; and, (iii) ensuring
that medical information and disease and therapy areas is conveyed to the health
care community in accordance with the applicable laws and regulations of the
company and its code of ethical interaction with health care professionals.
[17]
In
an affidavit filed before this Court, the Applicant alleges that his employment
duties consist of planning, organization, control, evaluation, and delivering
health care services including diagnosis and treatment.
[18]
On
September 26, 2009, the Applicant submitted his PR Application.
[19]
On
March 19, 2010, a decision-maker assessed the PR Application [March 19, 2010
Assessment], finding that the Applicant performed the actions described in the
NOC 0311 Lead Statement, or all of the essential duties and a substantial
number of the main duties in the NOC 0311 Occupational Description and
recommending the PR Application to the visa office for a final determination on
eligibility for processing.
[20]
On
March 30, 2012, however, the Officer found the PR Application ineligible for
processing because the Applicant had not performed the actions described in the
NOC 0311 Lead Statement, or all of the essential duties and a substantial
number of the main duties in the NOC 0311 Occupational Description.
IV. Decision
under Review
[21]
The
Officer determined that the PR Application was ineligible for processing under
the federal skilled worker category pursuant to subsection 12(2) of the IRPA
and subsection 75(1) of the Immigration and Refugee Protection Regulations,
SOR/2002-227. The Officer took the position that the Applicant did not meet the
criteria specified in the Ministerial Instructions [MI-1] established under
subsection 87.3(3) of the IRPA and published in the Canada Gazette, Part
I on November 29, 2008.
[22]
The
Officer reasoned that MI-1 provides that applications under the federal skilled
worker category are only eligible for processing if the applicant (i) has an
arranged employment offer [AEO]; (ii) is legally residing in Canada and has
been in Canada for one year as a Temporary Foreign Worker or International
Student; or (iii) has at least one year of continuous full-time or equivalence
paid work experience in the last ten years in a listed occupation class.
[23]
The
Officer accepted that the NOC 0311 class is a listed occupation class under
MI-1 but found that the Applicant did not establish that he performed the
actions described in the NOC 0311 Lead Statement, or all of the essential
duties and a substantial number of the main duties in the NOC 0311 Occupational
Description.
[24]
The
Officer found that a description of the duties provided by the Applicant in
Schedule 3 of his PR Application and by the Employment Letter did not
correspond to the actions described in the NOC 0311 Lead Statement or the
essential duties and main duties in the NOC 0311 Occupational Description. The
Officer further reasoned that, within the meaning of the NOC 0311 Lead
Statement and NOC 0311 Occupational Description, the NOC 0311 class refers to
health care managers who work in institutions that provide health care services
such as hospitals, medical clinics, nursing homes, and other health care
establishments. The Officer took the position that, since the Applicant’s
employer was a pharmaceutical company, it did not provide health care services
within the meaning of the NOC 0311 Lead Statement and NOC 0311 Occupational
Description. Consequently, the Officer was not persuaded that the Applicant
participated in the delivery of health care. Rather, the descriptions of his
duties better corresponded to those of the NOC 0611 – Sales/Marketing Manager
occupation class [NOC 0611 class].
[25]
The
Officer also found that the Applicant was ineligible to have his PR Application
processed under the NOC 0611 class, which was not a listed occupation under
MI-1.
V. Issues
[26]
(1)
Was it reasonable to find that the Applicant did not establish that he
performed the actions described in the NOC 0311 Lead Statement, or all of the
essential duties and a substantial number of the main duties in the NOC 0311
Occupational Description?
(2)
Did the Officer breach the duty of procedural fairness in failing to provide
the Applicant with an opportunity to make further submissions?
VI. Relevant Legislative
Provisions
[27]
Reference
is made to Annex “A” for the relevant legislative provisions of the IRPA.
[28]
Reference
is also made to Annex “B” for the relevant provisions of Ministerial Instructions
MI-1.
[29]
In
addition, the Court refers to Annex “C” for the relevant sections of the NOC
0311 Lead Statement and the NOC 0311 Occupational Description.
VII. Position of
the Parties
[30]
The
Applicant submits that it was unreasonable to find that he did not perform the
actions in the NOC 0311 Lead Statement. According to the Applicant, the
difference between the March 19, 2010 Assessment (which found him eligible to
have his PR Application processed) and the final determination on March 30,
2012 (which found him ineligible) was not adequately explained in the Officer’s
reasons. The Applicant argues that inadequate reasons do not meet the
transparency and intelligibility criteria in Dunsmuir v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190. The Applicant also argues that the objectives of
the IRPA (set out in subsection 3(1)) militate in his favor.
[31]
The
Applicant further submits that it was unreasonable to find that he did not
perform all of the essential duties and a substantial number of the main duties
in the NOC 0311 Occupational Description. The Applicant complains that a list
of essential duties does not appear in the NOC 0311 Occupational Description
and contends that duties described in Schedule 3 of his PR Application and in
the Employment Letter correspond to the main duties listed in the NOC 0311
Occupational Description. The Applicant adds that his employer (as a global
researcher, developer, and supplier of pharmaceutical products) is intimately
tied to administering the provision of laboratory medicine, that his medical
training places him in the NOC 0311 class, and that a positive inference should
be drawn from the fact that his description of his duties in Schedule 3
corresponds to the language of the NOC 0311 Occupational Description without simply
reiterating it. Finally, the Applicant argues that, since they do not explain
why the Officer found that he did not perform all of the essential and a
substantial number of the main duties in the NOC 0311 Occupational Description,
the reasons are inadequate and unreasonable.
[32]
The
Respondent counters that the main duties outlined in the NOC 0311 Lead
Statement and the NOC 0311 Occupational Description do not correspond to the
Applicant’s employment duties, as identified in Schedule 3 of his PR Application
and the Employment letter. The Respondent submits that the duties specified in
the latter are not similar to those identified in the former, which are of a
medical nature. According to the Respondent, the question before the Officer
was whether the Applicant performed the main duties of a NOC 0311 class
position – not his academic qualifications or job title. The Respondent also
takes the position that the Officer’s reasons do not lack transparency and
intelligibility.
[33]
The
Applicant also submits that the Officer took an unreasonably narrow approach to
the scope of the terms “delivery of health care” and “health care
establishments” in the NOC 0311 Lead Statement. In the Applicant’s view, his
employer’s pharmaceutical activities are inextricable from delivering health
care in contemporary Canada. The Applicant argues that the Officer’s
construction of these terms is based on personal knowledge and assumptions
about Eli Lilly rather than the evidence submitted.
[34]
In
the Respondent’s view, however, the Applicant did not establish that he was
employed by a health care establishment. The Respondent argues that the Officer
came to this conclusion not on the basis of his or her personal knowledge or
assumptions about the occupation but rather on the Applicant’s insufficient
evidence. The Respondent further submits that this Court cannot consider the
Applicant’s explanations in his affidavit since this information was not before
the Officer.
[35]
The
Applicant submits that procedural fairness required the Officer to request
further submissions because the fundamental issue in the decision was the scope
and meaning of the NOC 0311 Lead Statement and the NOC 0311 Occupational
Description. Principles of natural justice, according to the Applicant,
required the Officer to allow the Applicant to make submissions clarifying his
work at Eli Lilly. The Applicant supports this argument by reference to
Immigration Manual OP 1, Overseas Processing: Procedures, which, according to
the Applicant, states that applicants must have an opportunity to disabuse
officers of any concerns and be allowed to bring evidence and to make an
argument.
[36]
In
the Respondent’s view, the Officer had no obligation to seek further
submissions from the Applicant where the evidence filed is insufficient or does
not meet the requirements of the legislation. The Respondent supports this
argument by reference to OP 6A – Federal Skilled Workers – Applications
received on or after February 27, 2008 and before June 26, 2010, which provides
that: “The visa office assesses the applicant’s submissions as is ... No follow
up request for missing documents related to selection is required ... If the
applicant’s submission is insufficient to determine that the application is
eligible for processing, a negative determination of eligibility should be
rendered” (Respondent’s Record at Annex D p 64).
VIII. Analysis
Standard
of review
[37]
The
parties agree that decisions on eligibility for permanent residence as a member
of the federal skilled worker class are exercises of discretion that attract
the standard of reasonableness (Ismaili v Canada (Minister of Citizenship
and Immigration), 2012 FC 351) and questions of procedural fairness are
reviewable on the standard of correctness (Talpur v Canada (Minister of
Citizenship and Immigration), 2012 FC 25).
[38]
Where
the standard of reasonableness applies, the Court may only intervene if the
Board’s reasoning is not “justified, transparent or intelligible”. To meet this
standard, the decision must also fall in the “range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir,
above, at para 47).
[39]
The
Applicant submits that the Officer’s reasons are inadequate. According to the
Supreme Court of Canada in Newfoundland and Labrador Nurses’ Union v Newfoundland
and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, however, if
reasons are given, a challenge to the reasoning or result is addressed in the
reasonability analysis. Newfoundland Nurses directs that “reasons must
be read together with the outcome and serve the purpose of showing whether the
result falls within a range of possible outcomes” (at para 14). A reviewing
court may not “substitute [its] own reasons” but may “look to the record for
the purpose of assessing the reasonableness of the outcome” (at para 15).
(1) Was it
reasonable to find that the Applicant did not establish that he performed the
actions described in the NOC 0311 Lead Statement, or all of the essential tasks
and a substantial number of the main duties in the NOC 0311 Occupational
Description?
[40]
It
was reasonable to find that the Applicant did not establish that he performed
the actions described in the NOC 0311 Lead Statement, or all of the essential
tasks and a substantial number of the main duties in the NOC 0311 Occupational
Description. The decision to refuse to process the PR Application is
sustainable on this ground.
[41]
Under
subsection 87.3(2) of the IRPA, the processing of permanent residence
applications must be conducted in a manner that, in the opinion of the Minister,
will best support the attainment of the immigration goals established by the
federal government. Paragraph 87.3(3)(d) of the IRPA permits the
Minister to give instructions on processing applications, including
instructions providing for their disposition. Such instructions, under
subsection 87.3(6) of the IRPA, must be published in the Canada Gazette.
[42]
Pursuant
to 87.3(6) of the IRPA, MI-1 was published in the Canada Gazette, Part I
on November 28, 2008 and came into force on its date of publication.
[43]
According
to MI-1, federal skilled worker applications shall be placed into processing
immediately upon receipt if they: (i) are submitted with an AEO; (ii) are
submitted by foreign nationals residing legally in Canada for at least one year
as Temporary Foreign Workers or International Students; or, (iii) are submitted
by skilled workers with at least one year of continuous full-time or equivalent
paid work experience in the last ten (10) years under a listed National
Occupation Classification category [NOC category]. The NOC 0311 class is a
listed NOC category under MI-1.
[44]
The
NOC 0311 Lead Statement states that the NOC 0311 class includes managers who
plan, organize, direct, control, and evaluate the delivery of health care
services, such as diagnosis and treatment, nursing and therapy, within
institutions that provide health care services. The NOC 0311 Lead Statement
states that managers in health care are persons employed in hospitals, medical
clinics, nursing homes and other health care establishments. This contradicts
the Applicant’s assertion that the NOC 0311 Lead Statement “does not require
that [an applicant] be employed by [a health care] establishment” (Affidavit of
the Applicant at para 34).
[45]
The
NOC 0331 Occupational Description does not list any essential tasks but does
outline the following main duties, some or all of which managers in health care
perform: (i) planning, organizing, directing, controlling, and evaluating the
delivery of health care services within a department or establishment; (ii)
consulting with boards of directors and senior managers to maintain and
establish standards for the provision of health care services; (iii) developing
evaluation systems to monitor the quality of heath care given to patients; (iv)
monitoring the use of diagnostic services, in-patient beds and facilities to
ensure effective use of resources; (v) developing and implementing plans for
new programs, special projects, new material and equipment acquisitions and
future staffing levels in their department or establishment; (vi) planning and
controlling a departmental or establishment budget; (vii) representing the
department or establishment at meetings with government officials, the public,
the media, and other organizations; (viii) supervising health care supervisors
and professionals, and, (ix) recruiting health care staff of the department of
establishment.
[46]
The
NOC 0311 Occupational Description also states that managers in health
specialize in administering the provision of specific health care services such
as dietetics, clinical medicine, laboratory medicine, nursing, physiotherapy or
surgery.
[47]
The
Applicant’s employment duties (according to Schedule 3 of his PR Application
and the Employment Letter) resemble some of the main duties listed in the NOC
0311 Occupational Description. The Applicant’s evidence suggests that he (i)
planned, organized, and directly controlled the delivery of some sort of health
care service at Eli Lilly; (ii) developed and implemented plans for new
programs, special projects, new material and equipment acquisitions and future
staffing levels at Eli Lilly; and, (iii) planned and controlled a budget, and
(iv) represented Eli Lilly at meetings with medical community organizations.
[48]
In
finding that the Applicant did not satisfy MI-1, the Officer essentially
inferred the character of his employment duties from the place of his
employment, Eli Lilly. Contrary to the Applicant’s submissions, it was open to
the Officer to draw inferences from a matter of common knowledge – that Eli Lilly is a global researcher, developer, and supplier of pharmaceutical products. In Canepa
v Canada (Minister of Employment and Immigration), [1992] 3 FC 270, the
Federal Court of Appeal held that an administrative decision-maker may draw
inferences from matters that do not go beyond common knowledge without giving
notice (at para 27). In Obot v Canada (Minister of Citizenship and
Immigration), 2012 FC 208, Justice Richard Mosley also addressed extension
of the concept of judicial notice to administrative decision-makers, finding
that it “would only arise where the facts are beyond dispute” (at para 24).
There might have been dispute as to the inferences that the Officer drew from
the fact that Eli Lilly is a pharmaceutical company but whether Eli Lilly is a pharmaceutical company is itself a fact beyond reasonable dispute.
[49]
Ismaili,
above, a decision by Justice Marie-Josée Bédard cited by the Applicant, is
distinguishable on this point. Ismaili stands for the proposition that
applicants cannot expect decision-makers to substitute gaps in their evidence
with the decision-maker’s own personal knowledge and assumptions (at para 23). Ismaili
does not prevent the Officer from drawing inferences from matters of common
knowledge.
[50]
It
would be reasonable to find that the scope of the terms “delivery of health
care services” and “health care establishments”, as used in the NOC 0311 Lead
Statement and NOC 0311 Occupational Description, did not include the
Applicant’s activities.
[50]
[51]
It
would not be unreasonable to conclude that planning, organizing, directing,
controlling, and evaluating the “delivery of health care services” occurs in a
context where there is some sort of direct patient contact. The NOC 0311 Lead
Statement identifies some of the activities constituting a “delivery of health
care services”: (i) diagnosis; (ii) treatment; (iii) nursing; and, (iv)
therapy. The common thread of these activities is administering some kind of
direct interaction with patients. The main duties in the NOC 0311 Occupational
Description confirm this analysis. The common thread of these main duties is
administering an environment where there is direct interaction between a
provider of health care services and a patient.
[52]
It
would also be reasonable to infer the meaning of “other health care
establishments” in the NOC 0311 Occupational Description from the terms
preceding it. In National Bank of Greece (Canada) v Katsikonouris,
[1990] 2 S.C.R. 1029, the Supreme Court of Canada stated that “[w]hatever the
particular document one is construing, when one finds a clause that sets out a
list of specific words followed by a general term, it will normally be
appropriate to limit the general term to the genus of the narrow enumeration
that precedes it” (at para 12). The scope of the general term “health care
establishments” is narrowed by those establishments preceding it in the NOC
0311 Lead Statement (hospitals, medical clinics, nursing homes). These are
settings where there is direct interaction with patients in delivering health
care. It would be reasonable to find that a “health care establishment”
described in the NOC 0311 Lead Statement is a setting where health care
services are directly provided to a patient.
[53]
The
Applicant did not present evidence that he worked in a health care
establishment or delivered health care services within the meaning of the NOC
0311 Lead Statement or Occupational Description. Nothing on the record shows
that he was administering a setting in which health care services were being
directly provided to patients. Indeed, many of the Applicant’s employment
duties suggest that he was supervising interaction with members of the medical
community rather than with patients. Only one of the Applicant’s employment
duties seems to have involved any direct interaction with patients. As Manager
in Health Care – Area Brand Leader and Manager in Health Care – Senior Brand
Manager, the Applicant developed communication strategies for the medical
community and patients. Even this weak evidence does not lead to the conclusion
that he worked in a health care establishment or administered the provision of
health care services because the precise nature of these ambiguous
communications is unspecified in the evidence.
[54]
It
falls, moreover, within the realm of possible and acceptable outcomes to infer
that the Applicant did not perform the actions and duties outlined in the NOC
0311 Lead Statement and the NOC 0311 Occupational Description from the fact of
his employment at Eli Lilly, a commonly-known pharmaceutical company. There was
no evidence before the Officer to undermine this inference. An applicant under
the foreign skilled worker class has the burden of presenting evidence of their
previous employment duties; this required the Applicant to supply sufficient
documentation and to “put his best case forward” (Ismaili, above, at para
18).
[55]
This
Court does not necessarily find that an employee of a pharmaceutical company
can never work for a health care establishment or administer the provision of
health care services for the purposes of the NOC 0311 Lead Statement or the NOC
0311 Occupational Description. It finds that, given the evidence presented, the
Officer was reasonable to find that the Applicant had not established that he
performed the actions described in the NOC 0311 Lead Statement because he did
not establish that his employment was within the scope of the terms “delivery
of health care services” and “health care establishments”. Since the main
duties described in the NOC 0311 Occupational Description all involve either
administering the delivery of health care services or health care
establishments, it follows that it would also be reasonable to find that the Applicant
had not performed a substantial number of these main duties.
[56]
The
Applicant’s education was a neutral factor in determining if he satisfied MI-1
because the NOC 0311 Lead Statement and NOC 0311 Occupational Description focus
on an applicant’s employment duties rather than academic training (Tabañag v
Canada (Minister of Citizenship and Immigration), 2011 FC 1293 at para 22).
(2) Did the
Officer breach the duty of procedural fairness in failing to provide the
Applicant with an opportunity to make further submissions?
[57]
It
is a well-established principle of this Court that “where a concern arises
directly from the requirements of the legislation or related regulations, a
visa officer will not be under a duty to provide an opportunity for the
applicant to address his or her concerns” (Hassani v Canada (Minister of
Citizenship and Immigration), 2006 FC 1283, [2007] 3 FCR 501 at para 24).
The Officer’s decision is also sustainable on this ground.
IX. Conclusion
[58]
The
undersigned member of this Court also wishes to thank the Applicant and
Respondent for the very high quality of their written submissions in this
Application.
[59]
For
all of the above reasons, the Applicant’s application for judicial review is
dismissed.
JUDGMENT
THIS
COURT ORDERS that that
the Applicant’s application for judicial review be dismissed. No question of general
importance for certification.
“Michel M.J. Shore”
ANNEX “A”
The following are the relevant
legislative provisions of the Immigration and Refugee Protection Act, SC
2001, c 27:
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87.3 (1) This
section applies to applications for visas or other documents made under
subsection 11(1), other than those made by persons referred to in subsection
99(2), to sponsorship applications made by persons referred to in subsection
13(1), to applications for permanent resident status under subsection 21(1)
or temporary resident status under subsection 22(1) made by foreign nationals
in Canada, to applications for work or study permits and to requests under
subsection 25(1) made by foreign nationals outside Canada.
(2) The processing of
applications and requests is to be conducted in a manner that, in the opinion
of the Minister, will best support the attainment of the immigration goals
established by the Government of Canada.
(3) For the purposes of
subsection (2), the Minister may give instructions with respect to the
processing of applications and requests, including instructions
(a) establishing
categories of applications or requests to which the instructions apply;
(a.1) establishing
conditions, by category or otherwise, that must be met before or during the
processing of an application or request;
(b) establishing an
order, by category or otherwise, for the processing of applications or
requests;
(c) setting the number
of applications or requests, by category or otherwise, to be processed in any
year; and
(d) providing for the
disposition of applications and requests, including those made subsequent to
the first application or request.
(3.1) An instruction may, if it
so provides, apply in respect of pending applications or requests that are
made before the day on which the instruction takes effect.
(3.2) For greater certainty, an
instruction given under paragraph (3)(c) may provide that the number of
applications or requests, by category or otherwise, to be processed in any
year be set at zero.
(4) Officers and persons
authorized to exercise the powers of the Minister under section 25 shall
comply with any instructions before processing an application or request or
when processing one. If an application or request is not processed, it may be
retained, returned or otherwise disposed of in accordance with the
instructions of the Minister.
(5) The fact that an
application or request is retained, returned or otherwise disposed of does
not constitute a decision not to issue the visa or other document, or grant
the status or exemption, in relation to which the application or request is
made.
(6) Instructions shall be
published in the Canada Gazette.
(7) Nothing in this section in
any way limits the power of the Minister to otherwise determine the most
efficient manner in which to administer this Act.
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87.3 (1) Le présent
article s’applique aux demandes de visa et autres documents visées au
paragraphe 11(1) — sauf à celle faite par la personne visée au paragraphe
99(2) —, aux demandes de parrainage faites par une personne visée au
paragraphe 13(1), aux demandes de statut de résident permanent visées au
paragraphe 21(1) ou de résident temporaire visées au paragraphe 22(1) faites
par un étranger se trouvant au Canada, aux demandes de permis de travail ou
d’études ainsi qu’aux demandes prévues au paragraphe 25(1) faites par un
étranger se trouvant hors du Canada.
(2) Le traitement des demandes
se fait de la manière qui, selon le ministre, est la plus susceptible d’aider
l’atteinte des objectifs fixés pour l’immigration par le gouvernement
fédéral.
(3) Pour l’application du
paragraphe (2), le ministre peut donner des instructions sur le traitement
des demandes, notamment des instructions :
a) prévoyant les groupes de
demandes à l’égard desquels s’appliquent les instructions;
a.1) prévoyant des conditions,
notamment par groupe, à remplir en vue du traitement des demandes ou lors de
celui-ci;
b) prévoyant l’ordre de
traitement des demandes, notamment par groupe;
c) précisant le nombre de
demandes à traiter par an, notamment par groupe;
d) régissant la disposition des
demandes dont celles faites de nouveau.
(3.1) Les instructions peuvent,
lorsqu’elles le prévoient, s’appliquer à l’égard des demandes pendantes
faites avant la date où elles prennent effet.
(3.2) Il est entendu que les
instructions données en vertu de l’alinéa (3)c) peuvent préciser que le
nombre de demandes à traiter par an, notamment par groupe, est de zéro.
(4) L’agent — ou la personne
habilitée à exercer les pouvoirs du ministre prévus à l’article 25 — est tenu
de se conformer aux instructions avant et pendant le traitement de la
demande; s’il ne procède pas au traitement de la demande, il peut,
conformément aux instructions du ministre, la retenir, la retourner ou en
disposer.
(5) Le fait de retenir ou de
retourner une demande ou d’en disposer ne constitue pas un refus de délivrer
les visa ou autres documents, d’octroyer le statut ou de lever tout ou partie
des critères et obligations applicables.
(6) Les instructions sont
publiées dans la Gazette du Canada.
(7) Le présent article n’a pas
pour effet de porter atteinte au pouvoir du ministre de déterminer de toute
autre façon la manière la plus efficace d’assurer l’application de la loi.
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ANNEX “B”
The following are the relevant
provisions of the Ministerial Instructions [MI-I]:
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Federal
Skilled Worker applications submitted on or after February 27, 2008, meeting
the following criteria shall be placed into processing immediately upon
receipt:
-
Applications submitted with an offer of Arranged Employment and applications
submitted by foreign nationals residing legally in Canada for at least one
year as Temporary Foreign Workers or International Students;
-
Applications from skilled workers with evidence of experience (see footnote
1) under one or more of the following National Occupation Classification
(NOC) categories:
...
0311
Managers in Health Care
Footnote
1
At
least one year of continuous full-time or equivalent paid work experience in
the last ten years.
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Les
demandes présentées par des travailleurs qualifiés (fédéral) à partir du 27
février 2008 et qui répondent aux critères suivants doivent être traitées en
priorité dès leur réception :
-
Demandes présentées avec une offre d’emploi réservé et demandes présentées
par des étrangers vivant légalement au Canada depuis au moins une année à
titre de travailleurs étrangers temporaires ou d’étudiants étrangers;
-
Demandes présentées par des travailleurs qualifiés (fédéral) accompagnées
d’une preuve d’expérience (voir référence 1) dans l’une ou plusieurs des
catégories suivantes de la Classification nationale des professions (CNP) :
[...]
0311
Directeurs/directrices des soins de santé
Référence
1
Au
moins une année d’expérience professionnelle continue à temps plein ou
l’équivalent rémunéré, au cours des dix dernières années.
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ANNEX “C”
The following are the relevant
sections of the National Occupation Classification [NOC] 0311 Lead Statement
and NOC 0311 Occupational Description:
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This
unit group includes managers who plan, organize, direct, control and evaluate
the delivery of health care services, such as diagnosis and treatment,
nursing and therapy, within institutions, and in other settings, that provide
health care services. They are employed in hospitals, medical clinics,
nursing homes and other health care organizations.
...
Managers
in health care perform some or all of the following duties:
•Plan,
organize, direct, control and evaluate the delivery of health care services
within a department of a health care institution, or in other settings where
health care services are provided
•Consult
with boards of directors and senior managers to maintain and establish
standards for the provision of health care services
•Develop
evaluation systems to monitor the quality of health care given to patients
•Monitor
the use of diagnostic services, in-patient beds and facilities to ensure
effective use of resources
•Develop
and implement plans for new programs, special projects, new material and
equipment acquisitions and future staffing levels in their department or
establishment
•Plan
and control departmental or establishment budget
•Represent
the department or establishment at meetings with government officials, the
public, the media and other organizations
•Supervise
health care supervisors and professionals
•Recruit
health care staff of the department or establishment.
Managers
in health care specialize in administering the provision of specific health
care services such as dietetics, clinical medicine, laboratory medicine,
nursing, physiotherapy or surgery.
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Les
directeurs des soins de santé planifient, organisent, dirigent, contrôlent et
évaluent la prestation des services des soins de santé tels que le diagnostic
et le traitement et les soins infirmiers et thérapeutiques dans des établissements
assurant la prestation des soins de santé et d'autres établissements. Ils
travaillent dans des centres hospitaliers, des cliniques médicales, des
centres de soins de longue durée et d'autres organismes en soins de santé.
[...]
Les
directeurs des soins de santé exercent une partie ou l'ensemble des fonctions
suivantes :
•planifier,
organiser, diriger, contrôler et évaluer la prestation des services des soins
de santé au sein d'un service dans un établissement de santé, ou dans
d'autres milieux de soins de santé;
•consulter
les conseils d'administration et les cadres supérieurs afin de maintenir et
de formuler des normes pour la prestation des soins de santé;
•élaborer
des systèmes d'évaluation afin de surveiller la qualité des soins de santé
donnés aux patients;
•surveiller
l'utilisation des services diagnostiques, des lits pour les patients
hospitalisés et des autres installations afin de s'assurer que les ressources
sont utilisées avec efficacité et efficience;
•préparer
et mettre en application des plans pour des nouveaux programmes, des projets
spéciaux, des projets d'acquisition de matériel et d'appareils ainsi que des
projets de dotation dans leur service ou entreprise;
•planifier
et contrôler le budget du service ou de l'établissement;
•représenter
le service ou l'établissement lors de réunions avec des représentants du
gouvernement, le grand public, les médias et autres organismes;
•surveiller
les activités des superviseurs en soins de santé et des autres
professionnels;
•recruter
le personnel médical du service ou de l'établissement.
Les
directeurs des soins de santé se spécialisent dans l'administration de soins
de santé particuliers tels que la diététique, la médecine cli-nique, la
médecine de labora- toire, les soins infirmiers, la physiothérapie ou la
chirurgie.
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