In each the Federal Expert Employee Program, the Canadian Expertise Class, and certainly most financial immigration packages, the federal government of Canada depends on Service Canada’s Nationwide Occupational Classification (“NOC“) system to find out eligibility.
Within the Canadian Expertise Class, for instance, subsections 87.1(2)(b) and (c) of the Immigration and Refugee Safety Laws (the “IRPR“) set out the job duties that candidates to the Canadian Expertise Class should carry out so as to meet the necessities of getting expertise in an eligible NOC.
Subsection 87.1(2)(b) gives that an applicant will need to have carried out the “actions described within the lead assertion for the occupation as set out [in the NOC]”, whereas subsection 87.1(2)(c) gives that an applicant additionally will need to have carried out a “substantial variety of the principle duties of the occupation as set out within the NOC, together with the entire important duties.”
Within the Federal Expert Employee Program, in the meantime, s. 75(2)(a)-(c) of the IRPR states:
A overseas nationwide is a talented employee if
(a) inside the 10 years earlier than the date on which their software for a everlasting resident visa is made, they’ve amassed, over a steady interval, at the very least one yr of full-time work expertise, or the equal in part-time work, within the occupation recognized by the overseas nationwide of their software as their main occupation, aside from a restricted occupation, that’s listed in Talent Kind 0 Administration Occupations or Talent Stage A or B of the Nationwide Occupational Classificationmatrix;
(b) throughout that interval of employment they carried out the actions described within the lead assertion for the occupation as set out within the occupational descriptions of the Nationwide Occupational Classification;
(c) throughout that interval of employment they carried out a considerable variety of the principle duties of the occupation as set out within the occupational descriptions of the Nationwide Occupational Classification, together with the entire important duties;
The difficulty that candidates face is figuring out whether or not their expertise falls inside the parameters of a given NOC.
Jurisprudence
In Benoit v. Canada (Citizenship and Immigration), 2013 FC 185, the Federal Courtroom of Canada allowed a judicial assessment the place an officer rejected a Canadian Expertise Class software as a result of the applicant didn’t carry out two of the eight primary duties for NOC 6211 – Retail Gross sales Supervisors. NOC6211 states:
The Federal Courtroom said:
The officer was subsequently required to find out if Ms. Benoit “carried out a considerable variety of the principle duties.” Nevertheless, the officer’s resolution as disclosed by the CAIPS notes is merely the next: “Duties listed in job letter don’t match duties in NOC description; ordering and scheduling is finished by supervisor with PA’s help.” “Ordering” and “scheduling” are not more than mere elements of the principle duties listed in NOC 6211. Thus, it isn’t clear if the officer at any level turned his or her thoughts to the actual query, which was whether or not – on the entire – the duties had been a considerable match.
One other case price noting is Ye v. Canada (Citizenship and Immigration Canada), 2012 FC 652. There, an officer refused an software by a Technical Help Specialist underneath NOC 6221 as a result of the officer felt that NOC 6421 was extra acceptable. The officer did this not withstanding that NOC 6221 contained the next instance titles “technical assist specialist”, “telecommunications gross sales consultant”, and “telecommunications salesperson.” Accordingly, the Federal Courtroom of Canada famous that the Officer erred by failing to handle the proof earlier than her that the Applicant’s duties and work expertise had been described when it comes to one of many instance titles within the NOC 6221 class.
The 2017 resolution of Kapasi v. Canada (Citizenship and Immigration), maybe summarizes the jurisprudence on how officers are to find out whether or not an applicant’s employment is encompassed by a NOC. There, Madam Justice McDonald said that:
Whereas s.75 of the IRPR, to some extent, incorporates the NOC as the usual by which an applicant’s expertise is measured, it clearly doesn’t mandate a microscopic evaluation of an applicant’s expertise in line with the precise terminology of the titles or duties listed within the NOC.
On this case, the lead assertion for NOC 1113 gives that securities brokers and funding sellers purchase and promote sure monetary devices for particular person buyers, pension fund managers, banks, belief corporations, insurance coverage corporations and different institutions. Brokers commerce these devices on behalf of funding corporations and different teams. The primary duties for every place typically observe the lead assertion. The NOC additionally features a checklist of instance titles which qualify underneath the NOC.
Nevertheless, as a substitute of utilizing the NOC as a information in his evaluation of whether or not the Applicant certified underneath s.75 of the IRPR, as required by the laws, the Officer utilized the precise wording of the non-binding NOC, measuring the Applicant’s listed titles and duties towards the phrases of the NOC. That is unreasonable as a result of the Officer ought to have thought of whether or not the Applicant’s job titles and duties met the substantive necessities of s.75 of the IRPR, which don’t incorporate the NOC in complete.
In Odufodunrin v. Canada (Citizenship and Immigration), 2021 FC 736, Justice Fuhrer said that it was affordable for a visa officer to find out that the next checklist of duties was unsatisfactory to show that somebody carried out the lead assertion and a considerable variety of the principle duties of a graphic designer.
- Interpretation of product briefs in visible kind for press and on-line platforms;
- Working with Human Assets, Authorized, Compliance and different inner stakeholders to create partaking content material for inner communication;
- Content material and visible technique for social media platforms;
- Bodily product design;
- Guaranteeing strict adherence to model tips in addition to offering assist the place essential.
Lastly, it must be famous that whereas there’s flexibility within the variety of duties that should be carried out, it’s important that an applicant have carried out the lead assertion of a NOC. In Potla v. Canada (Citizenship and Immigration), 2020 FC 646, Justice Norris said that the next duties in a Scotia Financial institution letter didn’t mirror the lead assertion for NOC 6235, which is to promote primary deposit, funding and mortgage services to people and companies:
- Champions a buyer targeted tradition to deepen relationships and leverage broader Financial institution relationships, techniques and data.
- Processing directions given by Brokers on participations and Clients on direct offers together with verification of restrict accessible, accuracy of calculations, and disbursement/software of funds.
- Guaranteeing that phrases and situations of authorizations and/or mortgage documentation are being adhered to together with pricing, time period, and quantity.
- Speaking successfully with numerous contacts together with Agent Banks to resolve points on a well timed foundation.
- Recognizing and bringing exceptions to insurance policies and procedures to the eye of administration for decision when required.
Different Jurisprudence
Hussain v. Canada (Citizenship and Immigration), 2013 FC 636 was a case involving an officer who refused an applicant’s software as a result of the officer decided that the applicant’s work expertise was equal to “pc and knowledge techniques administrator” slightly than “pc and knowledge techniques supervisor”. In overturning the choice, the Courtroom decided that the query is just not which Nationwide Occupational Classification most resembles an applicant’s expertise, however slightly the applicant can show that he/she has one yr of expert work expertise in a selected NOC.
The next three paragraphs are the related a part of the choice:
With respect to its feedback concerning the similarities between the Applicant’s expertise and NOC 2281, the Respondent falls into the identical entice because the Visa Officer – the query is just not whether or not the Applicant’s duties bear extra of a resemblance to a different class than to the one sought, however whether or not the Applicant has glad the necessities of the class in query.
Though it isn’t for this Courtroom to re-weigh the Visa Officer’s conclusions on this regard, the Applicant is right to claim that the similarity with NOC 2281 is the only rationalization provided by the Visa Officer in assist of his conclusion that the data submitted was inadequate to indicate that the Applicant glad the necessities of NOC 0213.
This Courtroom is just not an skilled within the technological phrases related with the varied NOC codes and can’t be required to evaluate the sufficiency of the Applicant’s software the place the Visa Officer has supplied no related feedback or causes in that regard. The Applicant is right in his assertion that the truth that duties might “bear extra resemblance” to a different class is irrelevant the place an officer has didn’t assess the relevance of the duties in relation to the actual class in query and has supplied no evaluation evaluating the necessities of the 2 codes talked about.
The Courtroom additionally famous that whereas nice deference is owed to visa officers, choices nonetheless require justification, transparency and intelligibility in order that courts can perceive why the choice was made or to evaluate whether or not the conclusion is inside the vary of acceptable outcomes.
Iqbal v. Canada (Citizenship and Immigration), 2013 FC 630 is a reminder of how necessary it’s to have clear reference letters which state job duties even when the job title clearly implies what the duties are. The related paragraphs are:
The applicant submitted the next to show his work expertise as a prepare dinner:
-
- an “Apprenticeship Certificates” from the Days Inn Karachi stating that from October 15, 2003 to October 14, 2005 he accomplished an apprenticeship program as a prepare dinner for Pakistani and Indian meals and that on the finish of his apprenticeship, the chief chef discovered him to be absolutely certified within the preparation of quite a lot of Pakistani and Indian snacks, dishes, breads, and desserts;
- a letter from the Days Inn Karachi restaurant dated October 18, 2007, testifying to his employment as a prepare dinner from November 2005 to September 2007;
- documentation from the Creek-Inn dated November 16, 2010 testifying to the truth that he was employed as a prepare dinner within the restaurant since November 2007 and ready quite a lot of Pakistani and Indian cuisines, various kinds of desserts, and so on.;
- pictures of himself at work.
The applicant submits the proof earlier than the officer confirmed that he carried out eight out of the 9 primary duties listed underneath NOC 6242. Along with the letters from the Days Inn and Creek-Inn, the applicant bases this assertion on the images he says had been earlier than the officer, in addition to his statements in his software kind and assumptions that may be made concerning the duties of a prepare dinner. Nevertheless, I agree with the next assertion by Justice Marie-Josée Bédard in Ismaili v The Minister of Citizenship and Immigration, 2012 FC 351, at paragraph 23:
The applicant argues that the duties of a pilot are apparent and that the immigration officer is predicted to know what they’re. This argument requires that the immigration officer assume {that a} pilot for Gulf Air performs the duties as described in NOC 2271. With respect, an immigration officer mustn’t decide whether or not an applicant’s work expertise corresponds to the lead assertion and primary duties set out within the NOC for an occupation based mostly on his private data of an occupation or on the private data that an applicant imputes to the immigration officer. Immigration officers should assess purposes based mostly on the proof that candidates put ahead and never on their very own private data or assumptions. In my opinion, that is the one rigorous, honest, cohesive and coherent method to assessing whether or not an applicant has carried out the principle duties of any place described within the NOC.
The related documentary proof the applicant put ahead within the current case solely talked about work expertise for one of many primary duties listed within the occupational description for NOC 6242: the preparation and cooking of “full meals or particular person dishes and meals”. I can’t agree with the applicant that it was unreasonable based mostly on the minimal proof submitted that the officer discovered the applicant had not established that he had work expertise in some or the entire duties listed within the occupational description. As famous by the respondent, subsection 16(1) of the Act requires that when making an software, an applicant should produce all related proof and paperwork that the officer moderately requires.
Technical Gross sales Representatives
In Prajapati v. Canada (Citizenship and Immigration), 2024 FC 1753, Madam Justice Pallotta highlighted the excellence between technical and non-technical work, writing:
The Officer discovered that the duties outlined within the employment letter from Alex Pharma didn’t seem to align with the principle duties and lead assertion for the occupation underneath NOC 6221, and that quite a lot of Mr. Prajapati’s solutions to interview questions on his work at Alex Pharma had been generic and obscure. Based mostly on the outline of his duties and solutions on the interview, Mr. Prajapati’s prior employment expertise appeared to fall underneath different NOC lessons. Whereas he was promoting merchandise to shoppers, resolving points with merchandise, and making ready contracts, the Officer was not glad he was doing so at a technical stage as required by NOC 6221.
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