The recent Federal Court decision of Anabtawi v. Canada (Citizenship and Immigration), 2012 FC 856 (CanLII), demonstrates the difficulty in satisfying the statutory skilled work experience requirement for a Canadian experience class visa.
The Canadian experience class was introduced in 2008 as an avenue for certain temporary foreign workers, and foreign student graduates with professional, managerial, and skilled work experience to apply for permanent residence in Canada.
Applicants need to have at least two years of full-time (or equivalent) skilled work experience in Canada, or graduate from a Canadian post-secondary educational institution with no less than one year of full-time (or equivalent) skilled work experience in Canada. Applications should be made whilst working in Canada, or within one year of leaving a job in Canada.
The applicant in Anabtawi, a citizen of Jordan, completed a Bachelor of Arts degree at the University of Toronto, and was then issued a post-graduate work permit, valid from January 2009 to March 2010. During that time, he was in the employ of a recruitment company in Mississauga, Ontario, named Prime Force Inc.
In May 2010, the applicant sought permanent residence as a skilled worked under the Canadian experience class. He included an employment letter from the president of Prime Force with the application. The letter listed the applicant’s main duties at the company and indicated that he worked as a full time human resources officer during the period January 2009 to March 2010.
The applicant claimed that his work duties at Prime Force matched those of a “Personnel and Recruitment Officer” under the National Occupational Classification (“NOC”) 1223.
In March 2011, the officer reviewing the application obtained information from the president of Prime Force, differing from the employment letter’s description of the applicant’s role with the company. According to the company president, the applicant worked as a customer service representative with duties such as answering telephone calls, receiving candidates’ applications, and opening files.
Due to the inconsistencies, the officer notified the applicant that his main duties at Prime Force did not correspond to those of a human resources officer, and gave the applicant 45 days to provide additional information or documentation to dispel the concerns.
The applicant responded by email, stating that he believed the various tasks he carried out at Prime Force coincided with the duties of a human resources officer. He also said that both he and his employer were prepared to submit an affidavit attesting to these facts. But no such affidavit was provided.
The officer rejected the application for failing to meet the statutory criteria. Based on the applicant’s documentation, and the information of his employer, the officer was not satisfied the applicant fulfilled the skilled work experience requirement. He had not performed all of the essential duties and a substantial number of the main duties ascribed a human resources officer under NOC 1223.
On appeal, the Federal Court considered that an officer’s decision should not be overturned unless it is outside the range of acceptable outcomes that can be reached on the presented evidence.
In reviewing an officer’s decision on the standard of reasonableness, the Court ought only intervene if the decision making is not transparent, justifiable and intelligible, and within the range of acceptable outcomes based on available evidence.
In this case, there was no probative evidence to support a finding that the applicant had fulfilled all the duties of the occupation in question, and the officer’s refusal was reasonable on the material before him.
The officer’s decision adequately showed why it was made, and there was no need for additional or more detailed reasons, or granting an interview to the applicant.
Visa officers are not obliged to request additional documentation to address inadequacies, deficiencies, or lack of credibility in applications, or alert applicants of concerns that arise directly from their evidence and from statutory requirements.
In the result, the application for judicial review failed.
The case shows the importance of acquiring sufficient work experience when applying for a Canadian experience class visa under the skilled worker division. It also demonstrates that a proper explanation, requisite information, or probative evidence must be provided to dispel a visa officer’s doubts with respect to an applicant’s work experience.
