Docket: IMM-2409-15
Citation:
2016 FC 611
Toronto, Ontario, June 1, 2016
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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JIAN CHEN
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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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JUDGMENT AND REASONS
I.
Overview
[1]
This is an application for judicial review under
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c-27 [Act] of a decision dated May 14, 2015 and rendered by an
Immigration Officer [Officer] rejecting the Applicant’s application for
permanent residence under the Canadian Experience Class [CEC]. The Officer
found that the Applicant did not qualify as a member of this class since he had
not acquired a year’s worth of relevant work experience under National
Operation Classification [NOC] unit group 6313, or “Accommodation,
travel, tourism and related services supervisors”. As such, the Officer
found that the Applicant had not satisfied the requirements of subsection
87.1(2) of the Immigration and Refugee Protection Regulations, SOR/2002-227
[the Regulations].
II.
Facts
[2]
The Applicant is a 26-year old citizen of China.
He moved to Canada in November 2007 to study and eventually, in May 2011,
earned a two-year business diploma from Cambrian College in Sudbury, Ontario.
[3]
After graduation, the Applicant obtained a work
permit and found a job with East Link Travel Ltd. [East Link], a company that
arranges visits to Canada for a mostly Chinese clientele.
[4]
Initially, the Applicant worked as a
‘Reservation Operator’, but in 2013 was promoted to ‘Reservation Supervisor’.
The Applicant also states that he is certified by the Travel Industry Council
of Ontario as a “Combined Travel Counsellor and
Supervisor/Manager” (Application Record at 15 [AR]).
[5]
In 2014, the Applicant decided to apply for
permanent resident status as a member of the CEC. When individuals apply for
permanent residence as a member of the CEC, they are evaluated according to the
criteria identified in subsection 87.1(2) of the Regulations.
[6]
Paragraphs 87.1(2)(a), (b), and (c) establish
three underlying requirements, namely that an applicant: (1) has at least one
year of full-time experience in one of the appropriate NOC codes (within Skill
Type 0 or Levels A or B); (2) has performed the actions described in the ‘lead
statement’ of the associated NOC; and (3) has performed a substantial number of
the ‘main duties’ as set out in the NOC.
[7]
The Applicant applied under NOC 6313 (“Accommodation, travel, tourism and related services
supervisors”) one of the unit groups that qualify under subsection 87.1(2)
of the Regulations and under which ‘reservations supervisor’ is listed as an “Example Title”. The lead statement of NOC 6313 is as
follows:
Supervisors in this unit group supervise and
co-ordinate the activities of hotel accommodation service clerks, casino
workers, reservation clerks and other travel and accommodations workers not
elsewhere classified. They are employed by service establishments throughout
the public and private sectors.
(AR at 48)
[8]
The main duties section of NOC 6313 provides
additional detail:
Accommodation, travel, tourism and related
services supervisors perform some or all of the following duties:
• Co-ordinate, assign and
review the work of hotel, motel and other accommodation services clerks, casino
workers, reservation clerks and other travel and accommodations workers not
elsewhere classified
• Establish
work schedules and procedures and co-ordinate activities with other work units
or departments
• Resolve
work-related problems and prepare and submit progress and other reports
• Hire and
train staff in job duties, safety procedures and company policies
• Requisition
supplies and materials
• Ensure
smooth operation of computer systems, equipment and machinery, and arrange for
maintenance and repair work
• May perform
the same duties as workers supervised
(AR at 48)
[9]
Along with his application for permanent
residence, the Applicant submitted a letter from the President of East Link,
who outlined some of the Applicant’s professional experience:
From January 28, 2013 until now [January 27,
2014], [the Applicant’s] position was Reservation Supervisor with the following
job descriptions:
• In charge of
reservation work of hotels, transportation vehicles and restaurants
• Designing
schedules and procedures for each group of visitors with director
• Negotiating
with business partners;
• Training
reservation operators and agents
• Analyzing
all reservations and reporting to director
• Working with
director to control costs in all reservations
(AR at 19)
[10]
In rejecting the Applicant’s application, the
Officer stated that the Applicant was being assessed on the basis of NOC 6313
but that the job description provided in his letter of reference made no
mention of “assigning and reviewing the work of clerks”
under his charge, as outlined in the lead statement of the NOC (AR at 8). As
such, the Officer found that the Applicant was actually working under NOC 6521,
“Travel counselors”, a NOC which does not
qualify for CEC status.
III.
Analysis
[11]
The only issue in this judicial review is
whether the Officer erred in concluding that the Applicant had not acquired a
year of supervisory work experience. There is no dispute as to the fact that
the Applicant must meet all of the duties contained in the lead statement of
the NOC.
[12]
This Court has previously found that an
officer’s assessment of whether an applicant is a member of the CEC involves
questions of mixed fact and law and is reviewed on a standard of reasonableness
(Song v Canada (Citizenship and Immigration), 2015 FC 141 at para 11 [Song];
Anabtawi v Canada (Citizenship and Immigration), 2012 FC 856 at para 28).
Under a reasonableness review, this Court should only intervene if the
officer’s assessment lacks “justification, transparency
and intelligibility” and falls outside “a range
of possible, acceptable outcomes defensible in respect of the facts and law”
(Dunsmuir v New Brunswick, 2008 SCC 9 at para 47). In other words,
deference is owed to the Officer’s findings of fact as applied to the law.
[13]
The Applicant submits that as the primary
evidence (his employer’s reference letter) stated that he was in “in charge of” reservation work, he was, by
definition, in a supervisory role. As the NOC does not define the word “supervise” and/or “supervisors”
(nor do the Act or the Regulations), the Applicant turns to the online
Merriam-Webster dictionary. There, the definition of supervise is “to be in charge of (someone or something)”. The Applicant
was responsible for all of the reservation work regarding hotels,
transportation vehicles and restaurants, according to his Employer’s letter. He
contends that since this, along with designing work schedules and training new
agents, is an inherently supervisory task; he meets the NOC requirements,
despite the fact that his employer’s letter does not specifically use the word “supervise”. To find otherwise, according to the
Applicant, ignores the substance of his position in favour of the strict
language of the NOC. This is particularly true since his job title, “Reservations Supervisor”, is listed in NOC 6313 amongst
the “Example Titles”. As such, the Officer was
unreasonably fixated on the NOC’s exact language, rather than the substance of his
experience.
[14]
The Respondent takes the position that nothing
in the application or the employment letter suggested that the Applicant “supervised staff”. The Officer considered all the
available evidence and found no proof of any supervisory work. Since the
obligation was on the Applicant to provide the necessary documentation to
assist the Officer in determining whether the Applicant adhered to the lead
statement of NOC 6313 and he did not, the Officer’s decision was reasonable. As
noted in Madan v Canada (Minister of Citizenship and Immigration)
(1999), 172 FTR 262 at para 24, “visa officers should
be afforded considerable discretion in determining whether an applicant
satisfies the requirements for a given occupation, including their interpretation
of the provisions of the NOC. They have a familiarity with an understanding of
this document that is at least equal to, and will often exceed, that of a
reviewing court.”
[15]
In Qin v Canada (Minister of Citizenship and
Immigration), 2013 FC 147 at para 30, Justice Gleason set out the process
by which an officer must assess an applicant’s claim to belong to a NOC:
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… Thus, it is beyond
debate that the officer must undertake a substantive analysis of the work
actually done by an applicant.
(Emphasis added)
[16]
In other words, an officer must look to the
substance of the work done and avoid a superficial analysis of the language
used in the job description. In this case, however, the Officer, in stating
that there was “no mention in the letter that you are
assigning and reviewing the work of clerks under your charge, as outlined in
the lead statement” (AR at 8), ignores the substance of the letter in
favour of the specific words used. As the Applicant correctly notes, being “in charge of” something and “supervising”
it are equivalent; this is particularly so when one considers the other duties
outlined in the letter of reference, such as “training
reservation operators and agents”.
[17]
Requiring the Applicant and/or East Link to have
said more amounts to a requirement to repeat the language of the NOC’s lead
statement verbatim. Justice Russell, faced with a similar dispute in Song,
had the following to say:
[29] It is clear that the duties listed
in the employer’s letter do not use the same words that appear in NOC 0621. But
this will inevitably be the case because applications have been refused when an
employer simply reiterates the wording of a NOC. So employers are obliged to
describe in their own words exactly what applicants do. This requires officers
to examine applications carefully and not to reject them because the same words
are not used.
[18]
The Applicant’s submissions reveal that he does,
as a ‘Reservation Supervisor’, “supervise and
co-ordinate the activities of… reservation clerks”, as the lead
statement requires, even if the letter of reference did not use these words.
The Applicant is “[i]n charge of reservation work of
hotels, transportation vehicles and restaurants” and handles the “[t]raining [of] reservation operators and agents”,
per the reference letter of East Link (AR at 19). If he is training workers to
handle reservations, and is also in charge of reservation work, the obvious
inference is that, as a ‘Reservation Supervisor’, he supervises others, who he
has trained, to engage in reservation work. While the onus is on applicants to
establish that they meet the requirements of subsection 87.1(2) of the
Regulations, officers cannot reject them when they meet those requirements
simply for using different language from the NOC in question – especially when
the case law instructs that verbatim use of the wording from the a NOC in a
letter of reference can ground an adverse credibility finding (Kamchibekov v
Canada (Minister of Citizenship and Immigration), 2011 FC 1411 at para 16).
[19]
Ultimately, the Officer rejected the application
at issue, despite the fact that the Applicant had the relevant work experience,
simply because the Applicant’s employer did not use the word “supervise” in his reference letter. This was an
error, and by focusing on whether the language of the NOC and the Applicant’s
submissions matched, rather than examining the substance of the Applicant’s
current position, the Officer reached an unreasonable conclusion. The
application is therefore allowed and the file will be sent back to a different
officer for reassessment.
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