Last updated on April 27th, 2020
Last Updated on April 27, 2020 by Steven Meurrens
Many applicants often ask whether low salaries can result in Canadian Experience Class refusals.
Qin v. Canada
The leading case on the issue of whether low salaries can result in Canadian Experience Class (“CEC“) refusals is Qin v. Canada (Citizenship and Immigration Canada), 2013 FCA 263. There, the Federal Court certified a question regarding whether immigration officers can consider a position’s prevailing wage rate when determining whether an applicant meets the requirements of the CEC.
Neither the Immigration and Refugee Protection Regulations (the “Regulations“) nor the Immigration, Refugees and Citizenship Canada Processing Manuals state that officers should consider salary when assessing whether an applicant has the requisite experience in a skilled position for the CEC. Section 87.1 of the Regulations simply require an officer to evaluate whether a candidate has experience in an eligible occupation. On this point, Madam Justice Gleason wrote that:
In evaluating whether or not an applicant’s experience falls within a permissible [occupation], 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 [occupation]. The requisite analysis necessitates much more than a rote comparison of the duties listed in the [occupation] 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 [National Occupational Classification Code (“NOC“)] descriptor. Indeed, there is a line of authority which indicates that, in the context of Federal Skilled Workers (where an officer is similarly required to assess duties performed against the NOC Code descriptors), the officer may legitimately question whether the applicant possesses the relevant experience if all that he or she does is repeat the duties from the NOC descriptor in a letter of reference. In such cases, this Court has sometimes held that an officer is required to hold an interview or pose additional questions in writing to an applicant, in order to obtain more detail about the actual nature of the work performed (see e.g. Talpur and Patel v Canada (Minister of Citizenship & Immigration), 2011 FC 571). Thus, it is beyond debate that the officer must undertake a substantive analysis of the work actually done by an applicant.
The Federal Court then went on to note that the salary paid to an employee is typically one indicator of the complexity of the work performed. The more complex the task, the higher the wages paid for it. As such, the average wage for a position in general is relevant to the assessment of the nature of a CEC applicant’s experience. Madam Justice Gleason also noted, however, that while it is reasonable for immigration officers to consider salary as one factor of the analysis, it would be unreasonable to “weed out” or disqualify applicants who did not earn a position’s minimum salary.
The Court did certify the following question:
Is it permissible or reasonable for a visa officer to consider HRSDC comparator salary data when assessing the nature of the work experience of an applicant who wishes to qualify as a member of the Canadian Experience Class, as described in section 87.1 ofImmigration and Refugee Protection Regulations, SOR/2002-227?
On November 19, 2013, the Federal Court of Appeal has released its decision in Qin v. Canada (Citizenship and Immigration Canada), 2013 FCA 263. There, the Court confirmed that it is not a statutory criterion that an applicant for permanent residence as a member of the CEC be paid wages that are consistent with the Ministry of Economic and Social Development’s prevailing wage rates for a position. While immigration officers may consider wages as a factor in determining what duties applicants performed, if there is satisfactory evidence from an employer that a CEC applicant has the required Canadian work experience, the applicant may be granted a permanent resident visa even though her wages are below prevailing wage rates.
In Patil v. Canada (Citizenship and Immigration), 2020 FC 495, an officer determined that an applicant who stated that he was a supervisor did not meet the skilled work experience requirement of the CEC because his pay stubs showed that he was continuously making minimum wage. The officer reasoned that the salary or wage rates would be higher in a supervisor role. In setting aside the decision, Justice Ahmed found that this breached procedural fairness, stating:
It is undisputed that the Applicant submitted a letter of employment, which stated that he was a gas station supervisor and listed both the Applicant’s wages and his duties. As noted in Hamza, “There is no rule that requires an applicant to provide more than one employment letter to establish sufficient work experience. An application can be deemed complete even if the work experience is supported by a single employment letter, as long as the employment letter accurately and completely lists the main duties performed by the applicant,” (Hamza at para 39). In the case at bar, although there was no suggestion in the Officer’s reasons that the Applicant’s letter of employment did not accurately or sufficiently list the required duties of his claimed position, the Officer refused the application on the basis that the Applicant earned minimum wage.
By focusing on the Applicant’s wage as the determinative issue, the Officer’s decision gives the impression that the letter of employment was not a reliable or credible source of information. Despite a letter from the Applicant’s employer stating that the Applicant made $14/hour and that he worked as a gas station supervisor with the accompanying duties, the Officer—in effect—impugned the credibility of the employment letter by concluding that a gas station supervisor would not be earning the minimum wage rate at $14/hour.
Although Patil did not cite Qin, the two decisions are similar in that both stand for the proposition that a low wage in of itself it not determinative of whether someone performed the duties of a position.