Work Experience Under the FSWP and the CEC

Meurrens LawSkilled Immigration (Express Entry, CEC, FSWC, Etc.)

In both the Federal Skilled Worker Program, the Canadian Experience Class, and indeed most economic immigration programs, the government of Canada relies on Service Canada’s National Occupational Classification (“NOC“) system to determine eligibility.

In the Canadian Experience Class, for example, subsections 87.1(2)(b) and (c) of the Immigration and Refugee Protection Regulations (the “IRPR“) set out the job duties that applicants to the Canadian Experience Class must perform in order to meet the requirements of having experience in an eligible NOC.

Subsection 87.1(2)(b) provides that an applicant must have performed the “actions described in the lead statement for the occupation as set out [in the NOC]”, while subsection 87.1(2)(c) provides that an applicant also must have performed a “substantial number of the main duties of the occupation as set out in the NOC, including all of the essential duties.”

In the Federal Skilled Worker Program, meanwhile, s. 75(2)(a)-(c) of the IRPR states:

A foreign national is a skilled worker if

(a) within the 10 years before the date on which their application for a permanent resident visa is made, they have accumulated, over a continuous period, at least one year of full-time work experience, or the equivalent in part-time work, in the occupation identified by the foreign national in their application as their primary occupation, other than a restricted occupation, that is listed in Skill Type 0 Management Occupations or Skill Level A or B of the National Occupational Classificationmatrix;

(b) during that period of employment they performed the actions described in the lead statement for the occupation as set out in the occupational descriptions of the National Occupational Classification;

(c) during that period of employment they performed a substantial number of the main duties of the occupation as set out in the occupational descriptions of the National Occupational Classification, including all of the essential duties;

The issue that applicants face is determining whether their experience falls within the parameters of a given NOC.

Jurisprudence

In Benoit v. Canada (Citizenship and Immigration), 2013 FC 185, the Federal Court of Canada allowed a judicial review where an officer rejected a Canadian Experience Class application because the applicant did not perform two of the eight main duties for NOC 6211 – Retail Sales Supervisors.  NOC6211 states:

The Federal Court stated:

The officer was therefore required to determine if Ms. Benoit “performed a substantial number of the main duties.”  However, the officer’s decision as disclosed by the CAIPS notes is merely the following:  “Duties listed in job letter do not match duties in NOC description; ordering and scheduling is done by manager with PA’s assistance.”  “Ordering” and “scheduling” are no more than mere components of the main duties listed in NOC 6211.  Thus, it is not clear if the officer at any point turned his or her mind to the real question, which was whether – on the whole – the duties were a substantial match.

Another case worth noting is Ye v. Canada (Citizenship and Immigration Canada), 2012 FC 652.  There, an officer refused an application by a Technical Support Specialist under NOC 6221 because the officer felt that NOC 6421 was more appropriate. The officer did this not withstanding that NOC 6221 contained the following example titles “technical support specialist”, “telecommunications sales representative”, and “telecommunications salesperson.”  Accordingly, the Federal Court of Canada noted that the Officer erred by failing to address the evidence before her that the Applicant’s responsibilities and work experience were described in terms of one of the example titles in the NOC 6221 category.

The 2017 decision of Kapasi v. Canada (Citizenship and Immigration), perhaps summarizes the jurisprudence on how officers are to determine whether an applicant’s employment is encompassed by a NOC.  There, Madam Justice McDonald stated that:

While s.75 of the IRPR, to some extent, incorporates the NOC as the standard by which an applicant’s experience is measured, it clearly does not mandate a microscopic analysis of an applicant’s experience according to the exact terminology of the titles or duties listed in the NOC.

In this case, the lead statement for NOC 1113 provides that securities agents and investment dealers buy and sell certain financial instruments for individual investors, pension fund managers, banks, trust companies, insurance firms and other establishments. Brokers trade these instruments on behalf of investment firms and other groups. The main duties for each position generally track the lead statement. The NOC also includes a list of example titles which qualify under the NOC.

However, instead of using the NOC as a guide in his assessment of whether the Applicant qualified under s.75 of the IRPR, as required by the legislation, the Officer applied the exact wording of the non-binding NOC, measuring the Applicant’s listed titles and duties against the words of the NOC. This is unreasonable because the Officer should have considered whether the Applicant’s job titles and duties met the substantive requirements of s.75 of the IRPR, which do not incorporate the NOC in whole.

In Odufodunrin v. Canada (Citizenship and Immigration), 2021 FC 736, Justice Fuhrer stated that it was reasonable for a visa officer to determine that the following list of duties was unsatisfactory to demonstrate that someone performed the lead statement and a substantial number of the main duties of a graphic designer.

  • Interpretation of product briefs in visual form for press and online platforms;
  • Working with Human Resources, Legal, Compliance and other internal stakeholders to create engaging content for internal communication;
  • Content and visual strategy for social media platforms;
  • Physical product design;
  • Ensuring strict adherence to brand guidelines as well as providing support where necessary.

Finally, it should be noted that while there is flexibility in the number of duties that must be performed, it is essential that an applicant have performed the lead statement of a NOC. In Potla v. Canada (Citizenship and Immigration), 2020 FC 646, Justice Norris stated that the following duties in a Scotia Bank letter did not reflect the lead statement for NOC 6235, which is to sell basic deposit, investment and loan products and services to individuals and businesses:

  1. Champions a customer focused culture to deepen relationships and leverage broader Bank relationships, systems and knowledge.
  2. Processing instructions given by Agents on participations and Customers on direct deals including verification of limit available, accuracy of calculations, and disbursement/application of funds.
  3. Ensuring that terms and conditions of authorizations and/or loan documentation are being adhered to including pricing, term, and amount.
  4. Communicating effectively with various contacts including Agent Banks to resolve issues on a timely basis.
  5. Recognizing and bringing exceptions to policies and procedures to the attention of management for resolution when required.

Other Jurisprudence

Hussain v. Canada (Citizenship and Immigration), 2013 FC 636 was a case involving an officer who refused an applicant’s application because the officer determined that the applicant’s work experience was equivalent to “computer and information systems administrator” rather than “computer and information systems manager”.  In overturning the decision, the Court determined that the question is not which National Occupational Classification most resembles an applicant’s experience, but rather the applicant can demonstrate that he/she has one year of skilled work experience in a specific NOC.

The following three paragraphs are the relevant part of the decision:

With respect to its comments regarding the similarities between the Applicant’s experience and NOC 2281, the Respondent falls into the same trap as the Visa Officer – the question is not whether the Applicant’s duties bear more of a resemblance to another category than to the one sought, but whether the Applicant has satisfied the requirements of the category in question.

Although it is not for this Court to re-weigh the Visa Officer’s conclusions in this regard, the Applicant is correct to assert that the similarity with NOC 2281 is the sole explanation offered by the Visa Officer in support of his conclusion that the information submitted was insufficient to show that the Applicant satisfied the requirements of NOC 0213.

This Court is not an expert in the technological terms connected with the various NOC codes and cannot be required to assess the sufficiency of the Applicant’s application where the Visa Officer has provided no relevant comments or reasons in that regard.  The Applicant is correct in his assertion that the fact that duties may “bear more resemblance” to another category is irrelevant where an officer has failed to assess the relevance of the duties in relation to the particular category in question and has provided no analysis comparing the requirements of the two codes mentioned.

The Court also noted that while great deference is owed to visa officers, decisions still require justification, transparency and intelligibility so that courts can understand why the decision was made or to assess whether the conclusion is within the range of acceptable outcomes.

Iqbal v. Canada (Citizenship and Immigration), 2013 FC 630 is a reminder of how important it is to have clear reference letters which state job duties even if the job title obviously implies what the duties are.  The relevant paragraphs are:

The applicant submitted the following to demonstrate his work experience as a cook:

    • an “Apprenticeship Certificate” from the Days Inn Karachi stating that from October 15, 2003 to October 14, 2005 he completed an apprenticeship program as a cook for Pakistani and Indian food and that at the end of his apprenticeship, the executive chef found him to be fully qualified in the preparation of a variety of Pakistani and Indian snacks, dishes, breads, and desserts;
    • a letter from the Days Inn Karachi restaurant dated October 18, 2007, attesting to his employment as a cook from November 2005 to September 2007;
    • documentation from the Creek-Inn dated November 16, 2010 attesting to the fact that he was employed as a cook in the restaurant since November 2007 and prepared a variety of Pakistani and Indian cuisines, different types of desserts, etc.;
    •  photographs of himself at work.

The applicant submits the evidence before the officer showed that he performed eight out of the nine main duties listed under NOC 6242. In addition to the letters from the Days Inn and Creek-Inn, the applicant bases this assertion on the photographs he says were before the officer, as well as his statements in his application form and assumptions that can be made about the tasks of a cook. However, I agree with the following statement 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 obvious and that the immigration officer is expected to know what they are. 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 should not determine whether an applicant’s work experience corresponds to the lead statement and main duties set out in the NOC for an occupation based on his personal knowledge of an occupation or on the personal knowledge that an applicant imputes to the immigration officer. Immigration officers must assess applications based on the evidence that applicants put forward and not on their own personal knowledge or assumptions. In my view, this is the only rigorous, fair, cohesive and coherent approach to assessing whether an applicant has performed the main duties of any position described in the NOC.

The relevant documentary evidence the applicant put forward in the present case only mentioned work experience for one of the main duties listed in the occupational description for NOC 6242: the preparation and cooking of “complete meals or individual dishes and foods”. I cannot agree with the applicant that it was unreasonable based on the minimal evidence submitted that the officer found the applicant had not established that he had work experience in some or all of the duties listed in the occupational description. As noted by the respondent, subsection 16(1) of the Act requires that when making an application, an applicant must produce all relevant evidence and documents that the officer reasonably requires.