Toronto, Ontario, October 4, 2006
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] Francia Antoinette McHugh applied for permanent residence in Canada as a skilled worker. A Visa Officer refused her application, finding that there was no comparison between the duties that she had performed in the context of her employment in Jamaica, and the requirements of the occupational categories in question.
[2] Ms. McHugh now seeks judicial review of the Officer’s decision, asserting that the Officer erred in a number of respects. I am satisfied that the Officer committed a reviewable error in her assessment of Ms. McHugh’s eligibility under the Administrative Officer category. As a result, it is not necessary to address the other arguments advanced on her behalf.
Background
[3] After completion of a three year college program, Ms. McHugh received a diploma in Business Administration, with a specialization in Accounts. She then attended university, graduating with a Bachelors of Business Administration, with a major in Finance.
[3]
[4] Since then, Ms. McHugh has received additional training in accounting, including training in asset liabilities and treasury management.
[5] After working as a secretary in the Prime Minister’s office, Ms. McHugh joined the National Commercial Bank of Jamaica in 1993, where she continues to work to this day. She was initially employed by the Bank as an Administrative Officer, a position she held until 1998. She then became a Banking and Accounting Officer, and later became a Banking and Investment Officer.
[6] Ms. McHugh applied for consideration under the National Occupational Classifications (NOC) categories of “Other Financial Officers” (category 1114), and “Administrative Officers” (category 1221). In support of her application, Ms. McHugh provided a detailed description of the duties that she had performed in association with each of the positions that she had held with the National Commercial Bank. In addition, Ms. McHugh provided a letter from the Bank itself, which confirmed Ms. McHugh’s duties over the relevant period.
The Officer’s Decision
[7] The Computer Assisted Immigration Processing System (“CAIPS”) notes indicate that Ms. McHugh was not awarded any points for her work experience. The notes go on to record that the list of Ms. McHugh’s duties provided by the Bank had been compared with the lead statement and main duties of NOC 1114 and NOC 1221.
[8] The Visa Officer concluded that Ms. McHugh had not met the minimum requirements of either type of position as “[Ms. McHugh’s] employment documents do not show that [she] has performed the actions described in the lead statement of NOC 1114 and or NOC 1221. The employment documents also do not show [that she] has performed a substantial number of main duties, including all the essential duties of NOC 1114 and or NOC 1221”.
[9] In her decision letter, the Visa Officer went on to say that she had found “no comparison” between the list of Ms. McHugh’s duties provided by the Bank, and the lead statement and main duties of either of the occupational categories in question. As a result, Ms. McHugh’s application for a visa was rejected.
Analysis
[10] The parties agree that in assessing an application for a permanent residence in the skilled worker class, Visa Officers are required to give the NOC categories a liberal interpretation, and the requirements of the job in question have to be assessed with flexibility: see Patel v. Canada (Minister of Citizenship and Immigration), 2000 F.C.J. No. 1983.
[11] Job requirements also have to be assessed in the operational context in which the individual has actually worked: see Moneim v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1977.
[12] The “lead statement” for Administrative Officers describes their duties in the following terms:
Administrative officers oversee and implement administrative procedures, establish work priorities and co-ordinate the acquisition of administrative services such as office space, supplies and security services. They are employed throughout the private and public sectors.
[13] In addition, Administrative Officers are required to have performed some or all of the following main duties:
∙ Oversee and co-ordinate office administrative procedures and review, evaluate and implement new procedures
∙ Establish work priorities, delegate work to office support staff, and ensure deadlines are met and procedures are followed
∙ Carry out administrative activities associated with admissions to post-secondary educational institutions
∙ Administer policies and procedures related to the release of records in processing requests under government access to information and privacy legislation
∙ Co-ordinate and plan for office services, such as accommodation, relocations, equipment, supplies, forms, disposal of assets, parking, maintenance and security services
∙ Assist in preparation of operating budget and maintain inventory and budgetary controls
∙ Assemble data and prepare periodic and special reports, manuals and correspondence.
[14] In this case, although the Visa Officer found that the evidence did not demonstrate that Ms. McHugh had performed all of the essential duties of an Administrative Officer, NOC 1221 does not identify any essential duties for the position.
[15] It should also be noted that NOC 1221 requires that applicants have performed some or all of the duties in question. This allows a Visa Officer to give greater weight to certain duties contained in the job description over others, but does not require that applicants must have performed all of the duties listed in the NOC: see Farooqui v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 714, 182 F.T.R. 306, and Moneim, previously cited.
[16] With this in mind, a review of Ms. McHugh’s application, and, in particular, the letter describing her responsibilities at the Bank reveals that her responsibilities included the preparation and maintenance of detailed reports, statistics, profiles and financial statements. In addition, she was required to prepare quarterly financial statements, inter-company schedules and monthly cash books. She was also required to maintain bank accounts on a daily basis, amongst other tasks.
[17] From this it is clear that Ms. McHugh’s documented financial management skills demonstrate that she would satisfy several of the criteria for the Administrative Officer category, in particular as they relate to the administration of the internal financial management of the Bank, the preparation of reports, and duties in budgetary administration.
[18] While Visa Officers have considerable discretion in determining whether an applicant satisfies the requirements of a given occupation, and in interpreting the provisions of a NOC, I am nonetheless satisfied that, in this case, the Officer’s conclusion that there was “no comparison” between the list of Ms. McHugh’s duties provided by the Bank, and the duties of Administrative Officers was patently unreasonable. As a consequence, the Officer’s decision cannot stand.
Conclusion
[19] For these reasons, the application for judicial review is allowed.
Certification
[20] Neither party has suggested a question for certification, and none arises here.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. This application for judicial review is allowed, and the matter is remitted to a different visa officer for re-assessment; and
2. No serious question of general importance is certified.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7445-05
STYLE OF CAUSE: FRANCIA ANTOINETTE MCHUGH v.
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 3, 2006
APPEARANCES:
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Boniface Ahunwan |
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Leanne Briscoe
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SOLICITORS OF RECORD:
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Boniface Ahunwan Barrister and Solicitor Toronto, Ontario
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FOR THE APPLICANT |
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John H. Sims Q.C. Deputy Attorney General of Canada Toronto, Ontario |
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