Docket: IMM-3728-13
Citation:
2014 FC 1064
Ottawa, Ontario, November
12, 2014
PRESENT: The
Honourable Mr. Justice Annis
|
BETWEEN:
|
|
WENQI HUANG
|
|
Applicant
|
|
and
|
|
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
This is an application for judicial review
pursuant to section 72(1) of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA or the Act] of a decision by an Immigration Case Officer [the
Officer] rejecting the applicant’s application for permanent resident visa as a
member of the Canadian Experience Class [CEC]. The applicant is seeking to have
the decision quashed and an order of mandamus directing the respondent to
process the applicant’s application within 60 days of the order.
[2]
I am prepared to allow the application because I
find that there are simply too many anomalies in the decision to be satisfied
that the Officer properly addressed the applicant’s application.
[3]
Most substantively, I find that the specific
formulation of the requirements described by the Officer, and which forms the
basis for the decision, does not sufficiently adhere to the requirements, and
indeed adds to and raises the level of the requirements, in comparison with the
description of the position in the National Occupational Classification [NOC] 1221
(Administrative Officers).
[4]
The introductory description of NOC 1221
describes the position as follows:
Administrative officers oversee and implement
administrative procedures, establish work priorities [insertion point] and
coordinate the acquisition of administrative services such as office space,
supplies and security services…
[5]
The officer quotes this description, but adds to
it at the insertion point referred to in the above passage, the additional
requirement of “conduct analyses of administrative operations”. Thereafter, in
defining the job requirements, the officer makes specific reference to the
requirement added stating “specifically, related to
analyses of administrative operations …”, ultimately rejecting the applicant’s
application concluding “I am not satisfied that this
[applicant’s employment] fulfills the requirement of conducting analyses of
administrative operations …”.
[6]
Even accepting that deferential respect is owed the
Officer’s exercise of discretion regarding a question of mixed fact and law, I do
not see how it extends to circumstances where a visa officer has added a higher
skill requirement to the general NOC description, which is relied on to reject
the application. In doing so, the Officer exceeds his authourity rendering the decision
unreasonable and lacking justification.
[7]
I have additional difficulties with the Officer’s
decision in this case, including: (1) incorrectly basing the decision on
the applicant having worked for less than the required 12 months at the
time of the application, which was clearly incorrect; (2) concluding that she
did not perform the “essential” duties of NOC
1221, when there were no essential duties in the NOC classification; (3)
concluding that she did not perform the other duties of the NOC on a full-time
basis, when she was a full-time employee at both Joyce Beauty Health Centre
[Joyce Beauty] and Kwok Shing Enterprises Ltd. [Kwok Shing]; (4) referring in
the notes only to the duties while employed with Joyce Beauty, when her employment
at Kwok Shing was more recent and of a longer duration.
[8]
Accordingly, this application is granted and Ms.
Huang’s application for permanent residence is remitted back for decision by a
different officer to decide whether her skilled work experience meets the
requirements listed in NOC 1221. No question was proposed for certification.
Email this Content