Qin v. Canada (Minister of Citizenship and Immigration), (2013) 451 N.R. 336 (FCA)

• Judge: Evans, Gauthier and Near, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: October 17, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 451 N.R. 336 (FCA);2013 FCA 263

Qin v. Can. (M.C.I.) (2013), 451 N.R. 336 (FCA)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

Temp. Cite: [2013] N.R. TBEd. NO.010

Qin Qin (appellant) v. The Minister of Citizenship and Immigration (respondent)

(A-97-13; 2013 FCA 263; 2013 CAF 263)

Indexed As: Qin v. Canada (Minister of Citizenship and Immigration)

Federal Court of Appeal

Evans, Gauthier and Near, JJ.A.

November 19, 2013.

Summary:

Qin, a citizen of China, graduated from a Canadian university and began working for a law firm in Toronto. She carried out administrative duties and assisted with translation and interpretation for the firm's Chinese clientele. She applied for permanent residence as a member of the Canadian Experience Class (Immigration and Refugee Protection Regulations, s. 87.1). She sought to qualify under National Occupational Classification (NOC) Codes 1242 (legal administrative assistants) and 5125 (translators, terminologists and interpreters). An officer denied her application. He concluded that Qin lacked the requisite experience because (1) her salary was significantly lower than the minimum salary applicable to the two NOC Codes, and (2) she had not shown that she carried out more than one of the main duties of NOC Code 1242. In making the assessment respecting Qin's salary, the officer had relied on wage data from the Human Resources and Skills Development Canada (HRSDC) website. Qin applied for judicial review, arguing, inter alia, that it was improper for the officer to have considered the HRSDC data.

The Federal Court, in a decision reported at 427 F.T.R. 163, held that the officer had the legal authority to consider the HRSDC wage data in evaluating whether Qin's experience fell within the applicable NOC Codes. However, he had violated procedural fairness by failing to disclose to Qin that he was considering the data and not providing her with an opportunity to make submissions. The court set aside the officer's decision and remitted the matter for redetermination by a different officer. The court directed that Qin be given an opportunity to file additional evidence and make additional submissions regarding her salary and the nature of her work experience. The court certified two questions. Qin appealed.

The Federal Court of Appeal dismissed the appeal and answered the certified questions.

Aliens - Topic 1230.5

Admission - Immigrants - Application for admission - Immigrant visa - Canadian Experience Class - At issue on this appeal was whether it was permissible for a visa officer to consider comparator wage data when assessing the nature of the work experience of an applicant who wished to qualify as a member of the Canadian Experience Class (CEC), as described in s. 87.1 of the Immigration and Refugee Protection Regulations - The Federal Court of Appeal held that it was permissible - Section 87.1 was silent on the evidence that an officer could consider when deciding CEC applications - Express statutory authority was not required to enable administrative decision-makers to consider evidence that had probative value to determining a question entrusted to them - It was normally implicit in the grant of legal authority to decide a question of fact that the decision-maker could consider evidence relevant to making that decision - Wages generally increased with the complexity of a job - Wage rates might be particularly relevant in assessing CEC applications because the program was limited to those with higher skill levels - It was not a statutory criterion that a CEC applicant be paid wages that were consistent with prevailing wage rates for a given occupation - Hence, it was open to applicants to show why, in their particular situation, an officer should attach little or no probative value to their wages and to comparator wage data - See paragraphs 39 to 44.

Aliens - Topic 1230.5

Admission - Immigrants - Application for admission - Immigrant visa - Canadian Experience Class - A visa officer denied Qin's application for permanent residence as a member of the Canadian Experience Class (CEC) - He found that Qin lacked the requisite experience because, inter alia, her salary was significantly lower than the minimum salary applicable to the National Occupational Classification (NOC) codes under which she had applied - In making that assessment, the visa officer relied on wage data from the Human Resources and Skills Development Canada website - On judicial review, Gleason, J., held that the s. 87.1 of the Immigration and Refugee Protection Regulations permitted the visa officer to consider comparator wage data in evaluating whether Qin's experience fell within the applicable NOC codes - Qin appealed - She argued that when Parliament intended for comparator wage data to be taken into account in assessing an employment-based application to reside in Canada, it did so expressly - She pointed to provisions in the Regulations governing the issuance of temporary work permits (TWP) and permanent resident visas to members of the federal skilled worker (FSW) class - The Federal Court of Appeal rejected this argument - Under the FSW and TWP programs, an opinion was required respecting what impact the granting of a visa or work permit would have on the labour market - Determining whether an applicant's wages were consistent with those prevailing in the relevant occupation was a statutory component of a labour market opinion - In contrast, it was not a statutory condition to the grant of a CEC visa than an applicant's wages had to be consistent with the prevailing local wage rates for the applicable occupation - Wages were simply one of many considerations that might be relevant in determining whether an applicant had the requisite work experience - See paragraphs 45 to 51.

Aliens - Topic 1230.5

Admission - Immigrants - Application for admission - Immigrant visa - Canadian Experience Class - A visa officer denied Qin's application for permanent residence as a member of the Canadian Experience Class (CEC) - He found that Qin lacked the requisite experience because, inter alia, her salary was significantly lower than the minimum salary applicable to the National Occupational Classification (NOC) codes under which she had applied - In making that assessment, the visa officer relied on wage data from the Human Resources and Skills Development Canada (HRSDC) website - On judicial review, Gleason, J., held that the s. 87.1 of the Immigration and Refugee Protection Regulations permitted the visa officer to consider comparator wage data in evaluating whether Qin's experience fell within the applicable NOC codes - Qin appealed - She argued that it would unduly complicate and confuse the administration of the CEC program if visa officers could take wages into account in assessing an application - She noted that under the programs for temporary work permits (TWP) and federal skilled workers (FSW), it was HRSDC officers, not visa officers, who gave labour market opinions based on, inter alia, whether an applicant's wages were consistent with prevailing rates - That was because assessing labour market impact was within the expertise of HRSDC officers - Because visa officers lacked the necessary expertise, s. 87.1 should not be interpreted as authorizing them to make similar determinations respecting CEC applications - The Federal Court of Appeal rejected this argument - Considering comparator wage data as one indication of whether a CEC applicant's employment duties were consistent with those described in the relevant NOC code was not so complex a task that a visa officer could not perform it, especially with the benefit of an applicant's representations - Permitting a visa officer to take account of wage information for this limited purpose was not the equivalent of authorizing a visa officer to prepare a labour market opinion such as that required for FSW and TWP applications - Advice from more experienced colleagues might be available to visa officers if it was required - See paragraphs 52 to 56.

Aliens - Topic 1230.5

Admission - Immigrants - Application for admission - Immigrant visa - Canadian Experience Class - [See both Aliens - Topic 1304 ].

Aliens - Topic 1304

Admission - Immigrants - Judicial review - Scope or standard of - A visa officer denied Qin's application for permanent residence as a member of the Canadian Experience Class (CEC) - The visa officer determined that s. 87.1 of the Immigration and Refugee Protection Regulations permitted him to consult comparator wage data to determine if Qin was performing employment duties that corresponded to those of the National Occupational Classification code under which she had applied - The Federal Court of Appeal held that correctness was the standard of review applicable to the visa officer's interpretation of s. 87.1 - See paragraphs 27 to 33.

Aliens - Topic 1304

Admission - Immigrants - Judicial review - Scope or standard of - A visa officer denied Qin's application for permanent residence as a member of the Canadian Experience Class (CEC) - The visa officer determined that s. 87.1 of the Immigration and Refugee Protection Regulations permitted him to consult comparator wage data to determine if Qin was performing employment duties that corresponded to those of the National Occupational Classification (NOC) code under which she had applied - He concluded that Qin lacked the requisite experience because, inter alia, her salary was significantly lower than the minimum salary applicable to the NOC occupations in question - The Federal Court of Appeal held that whether comparator wage data was factually relevant to determining if an applicant was employed in a particular NOC occupation was a question of fact - Finding that an applicant's employment was not consistent with an NOC occupation was a question of mixed fact and law at the factual end of the spectrum - Both of these issues involved a visa officer's findings of fact and application of s. 87.1 to the facts - The applicable standard of review was therefore reasonableness - See paragraphs 25 and 26.

Cases Noticed:

Khan v. Canada (Minister of Citizenship and Immigration) (2011), 426 N.R. 12; 2011 FCA 339, refd to. [para. 19].

Patel v. Canada (Minister of Citizenship and Immigration), [2013] 1 F.C.R. 340; 419 N.R. 321; 2011 FCA 187, refd to. [para. 19].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 20].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 20].

Takeda Canada Inc. v. Canada (Minister of Health) et al. (2013), 440 N.R. 346; 2013 FCA 13, refd to. [para. 28].

Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) et al. (2013), 446 N.R. 65; 2013 SCC 36, refd to. [para. 29].

Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; 26 N.R. 341; 25 N.B.R.(2d) 237; 51 A.P.R. 237; 97 D.L.R.(3d) 417, refd to. [para. 32].

Workers' Compensation Board (N.S.) v. Martin et al., [2003] 2 S.C.R. 504; 310 N.R. 22; 217 N.S.R.(2d) 301; 683 A.P.R. 301; 2003 SCC 54, refd to. [para. 36].

Covarrubias et al. v. Canada (Minister of Citizenship and Immigration) et al., [2007] 3 F.C.R. 169; 354 N.R. 367; 2006 FCA 365, refd to. [para. 36].

Shpati v. Canada (Minister of Public Safety and Emergency Preparedness), [2012] 2 F.C.R. 133; 423 N.R. 309; 2011 FCA 286, refd to. [para. 36].

Georgia Strait Alliance et al. v. Canada (Minister of Fisheries and Oceans) et al. (2012), 427 N.R. 110; 2012 FCA 40, dist. [para. 36].

Statutes Noticed:

Immigration and Refugee Protection Act Regulations (Can.), Immigration and Refugee Protection Regulations, SOR/2002-227, sect. 87.1 [para. 23].

Immigration and Refugee Protection Regulations - see Immigration and Refugee Protection Act Regulations (Can.).

Counsel:

Mario D. Bellissimo and Erin C. Roth, for the appellant;

Lorne McClenaghan and Prathima Prasad, for the respondent.

Solicitors of Record:

Bellissimo Law Group, Toronto, Ontario, for the appellant;

William F. Pentney, Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This appeal was heard at Toronto, Ontario, on October 17, 2013, before Evans, Gauthier and Near, JJ.A., of the Federal Court of Appeal. Evans, J.A., delivered the following judgment for the court at Ottawa, Ontario, on November 19, 2013.