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Federal Skilled Worker Class

and Canadian Experience Class

Steven Meurrens

May 11, 2013

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Overview

Topics:

The new FSW selection factors

Language Requirements

Occupation Quotas

CEC program changes

Program Management

International Competiveness

Jurisprudence

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Senadheera v. Canada (MCI), 2012 FC

704

This case involved a FSW application which was refused because of insufficient evidence over work experience and adaptability.

In dismissing the JR, Justice Pinard noted that the case shouldn’t have even made it to the points analysis because the applicant did not meet the requirements of s. 75(2).

IRPR 75(3) – “If the foreign national fails to meet the requirements of subsection (2), the application for a permanent resident visa shall be refused and no further assessment is required.”

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IRPR s. 75(2)

Someone is a skilled worker if:

Within 10 years before application date they have one year continuous full-time work experience in an NOC 0, A, or B occupation

During that period they performed the actions described in lead statement of NOC and a substantial number of main duties, including all essential duties

Have submitted language results meeting IRPR 74(1)

Have submitted Canadian education credential or their foreign education credential with equivalency assessment

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Plus Ministerial Instructions

IRPR 74(1) – The Minister shall fix by class or occupation minimum language proficiency thresholds.

CIC has indicated that a minimum of CLB 7 is required

As well, CIC has indicated that the program will have an overall cap and be limited to certain occupations

The Eligible Occupations List

0211 Engineering managers

1112 Financial and investment analysts

2113 Geoscientists and oceanographers

2131 Civil engineers

2132 Mechanical engineers

2134 Chemical engineers

2143 Mining engineers

2144 Geological engineers

2145 Petroleum engineers

2146 Aerospace engineers

2147 Computer engineers (except software engineers/designers)

2154 Land surveyors

2174 Computer programmers and interactive media developers

2243 Industrial instrument technicians and mechanics

2263 Inspectors in public and environmental health and occupational health and safety

3141 Audiologists and speech-language pathologists

3142 Physiotherapists

3143 Occupational Therapists

3211 Medical laboratory technologists

3212 Medical laboratory technicians and pathologists' assistants

3214 Respiratory therapists, clinical perfusionists and cardiopulmonary technologists

3215 Medical radiation technologists

3216 Medical sonographers

3217 Cardiology technicians and electrophysiological diagnostic technologists, n.e.c. (not elsewhere classified)

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New Federal Skilled Worker Class –

The Grid

Comparison of Previous and Current Programs

SELECTION

FACTORS

PREVIOUS POINT

SCALE

CURRENT POINT

SCALE

1. English / French

Ability

Maximum 24 points Maximum 28 points

2. Education Maximum 25 points Maximum 25 points

3. Experience Maximum 21 points Maximum 15 points

4. Age Maximum 10 points Maximum 12 points

5. Arranged

Employment

Maximum 10 points Maximum 10 points

6. Adaptability Maximum 10 points Maximum 10 points

Total Maximum 100 Points Maximum 100 Points

Pass Mark 67 points 67 points

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Federal Skilled Worker Class -

Education

Education Points

Doctoral 25

Master’s Level or Professional Degree 23

Two or more post-secondary credentials (one of which is

greater than 2 years)

22

Three-year or longer post-secondary credential 21

Two-year post-secondary credential 19

One-year post secondary credential 15

Secondary school 5

Educational Credential Assessment

As of April 17, 2013, four organizations have been designated by the Minister to provide ECA reports for purposes of immigrating to Canada under the FSWP. Additional organizations may be designated by CIC in the future. The designated organizations are:

Comparative Education Service; International Credential Assessment

Service of Canada; World Education Services; and, Medical Council of Canada.

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Federal Skilled Worker Class

Language

First Official Language

POINTS

(PER

ABILITY)

TEST RESULTS FOR EACH ABILITY

(Based on current language requirements)

6 9.0 9.0 9.0 9.0

5 8.0 8.0 8.0 8.0

4 7.0 7.0 7.0 7.0

0 Less than

7.0

Less than

7.0

Less than

7.0

Less than

7.0

Second official language

Four points shall be awarded if the skilled worker’s proficiency in

the second official language meets or exceeds CLB 5 in each of the

four language skill areas.

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Federal Skilled Worker Program

Experience

Experience Previous

Program

Current

Program

1 year 15 9

2 years 17 11

3 years 19 11

4 years 21 13

5 years 21 13

6 + years 21 15

Federal Skilled Worker Program - Age

Previous Program Current Program

Age Points Age Points

16 or under 0 17 or under 0

17 2 18-35 12

18 4 36 11

19 6 37 10

20 8 38 9

21-49 10 39 8

50 8 40 7

51 6 41 6

52 4 42 5

53 2 43 4

54 and older 0 44 3

45 2

46 1

47 and over 0

Federal Skilled Worker Program

Arranged Employment

Scenarios Constituting Arranged Employment

Applicant is in Canada and holds a LMO based skilled work

permit valid on the date PR application is made, and, on the date

that PR is issued, holds a work permit or is authorized to work in

Canada under 186.

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Applicant is in Canada and holds an IRPR 204(a) [international

agreement] or 204(c) [agreement with province] based work

permit valid on the date PR application is made, and, on the date

that PR is issued, holds a work permit or is authorized to work in

Canada under 186.

10

Applicant is not authorized to work in Canada on the date PR

application is made but HRSDC has approved (at the request of

the officer) the offer of employment based on the LMO factors.

10

Applicant is in Canada under a work permit or is authorized to

work in Canada under IRPR 186 on the date that application is

made and when PR is issued and HRSDC has approved (at the

request of the officer) the job offer based on the LMO factors.

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Federal Skilled Worker - Adaptability

Factor Points

Applicant has one year of full-time previous work in

Canada in a NOC 0, A, or B position

10

Applicant has Arranged Employment points 5

Any relatives in Canada who are a Canadian citizen or

permanent resident over the age of 18

5

Applicant has previous study of 2 or more years in Canada 5

Applicant’s spouse has previous study of 2 or more years

in Canada

5

Applicant’s spouse scores 4 on all language abilities 5

Applicant’s spouse has previous work in a skilled position

in Canada

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Canadian Experience Class

A person is qualified for the CEC if:

They have acquired within the 3 years before the date

of application, at least 1 year of full-time work

experience in a NOC 0/A/or B occupation

During that period they performed the actions

described in the lead statement of the NOC as well as

a substantial number of main duties and all of

essential duties

Meet the language requirements in 74(1) of the Regs

If work experience is from more than one NOC, the

language requirement threshold is the higher NOC

1) Does the Program Have a Cap?

CEC – No

FSWC – Yes. In the eligible occupation stream, there is an overall cap of 5,000 new applications. As well, each eligible occupation has a cap of 300.

Agama v. Canada (MCI), 2012 FC 121

This was a JR involving the following set of facts:

On September 28, CIC website said 209/500 applications received

On November 8, CIC website said 335/500

On November 14, applicant filed

On December 1, CIC website said 458/500

On January 13, 2012, CIC informed the applicant that her application was rejected because the cap of 500 applications for NOC 0631 had been reached on September 19, 2011.

This clearly contradicted what was on the CIC website.

Court dismissed the JR, saying that the CIC website did not give rise to a legitimate expectation.

2) How much Work Experience Is

Required?

Canadian Experience Class Federal Skilled Worker Class

1 year of full-time work

experience in a NOC 0/A/B

occupation in Canada.

One year work in NOC 0/A/B

during the past 10 years in a

specific occupation.

Most FSWC and CEC jurisprudence involves issues over adequacy of

evidence in demonstrating one year full-time work experience.

Perez Enriquez v. Canada (CIC), 2012 FC 1091

• Applicant submitted copies of three work permits, and a 2010 letter

stating that he had worked for the employer as a management

consultant since 2008, and a letter from another employer stating that

he had worked as an Administrative Assistant from 2002-2005.

• Court held in part that because letters didn’t say “full-time” it was

reasonable for officer to determine insufficient evidence.

Proving Work Experience

Elisha v. Canada (CIC), 2012 FC 520

If an officer asks for specific documents, it may be reasonable for an officer to rule that there was insufficient evidence if applicant tries to provide other documents, especially if these documents are not on the checklist.

Singh v. Canada (CIC), 2012 FC 855 - Document checklist provides applicants prior notice as to what is required

Afolabi v. Canada (CIC), 2012 FC 1364

Applicant submitted an employment letter from a bank stating hours worked, job title, and pay. It did not state job duties. Applicant also submitted promotion letter.

Court determined that he did not satisfy that he performed lead statement and a substantial number of duties for a NOC.

Rasheed v. Canada (CIC), 2013 FC

175

NOC 0311 – Managers in Health Care

This unit group includes managers who plan, organize, direct, control and evaluate the delivery of health care services, such as diagnosis and treatment, nursing and therapy, within institutions, and in other settings, that provide health care services. They are employed in hospitals, medical clinics, nursing homes and other health care organizations.

Applicant was Manager in Health Care at a major pharmaceutical company.

Court held that could not comply with lead statement because of place of employment.

Zeeshan v. Canada (CIC), 2013 FC

248

Job letter said:

I, in the capacity of registrar had been known Ms. Talat Zeeshan since Oct 2004. She is presently a lecturer in Physics Department LCWU, Lahore in BPS-18. She is a well qualified and experienced teacher. Her performance is up to the mark. Her total experience at LCWU is five years to date.

Her annual salary is PKR 2,50,000/-only. I wish her success in

every field of life.

NOC4121 Teach 1 or more university subjects, prepare and deliver

lectures, prepare administer and grade exams, direct research programs of graduate students, conduct research in field of specialization, may serve on faculty committee, may represent university as speaker, my provide professional services to government and industry

Court – at best showed she was a lecturer

Pinto v. Canada (MCI), 2013 FC 349

NOC - 0111 Financial Manager • Plan, organize, direct,

etc.. Operations of financial and accounting departments.

• Recruit organize train staff

• Act as liaison • Notify senior

management of trends

Manager Corporate Banking • Manage corporate

lending at HSBC • Making and approve

loans • Develop budgets. • Train, recruit staff • Act as liaison • Notify senior

management of trends

Substantial Number of Main Duties

Benoit v. Canada (CIC), 2013 FC 185

Officer rejected an application because applicant did not perform two of eight main duties for NOC 6211.

Court held unreasonable.

4) Does self-employment count?

CEC – No, and CIC defines “self-employment” as including ownership in the employer

FSWC – Yes.

In both categories currently self-employed individuals can apply.

5) Is there a minimum necessary

income?

FSWC - If the applicant is relying on Arranged Employment, and a LMO is involved, the rules for LMO will apply. If not relying on Arranged Employment, minimum funds are required.

CEC – Qin v. Canada – salary can be demonstrative of whether applicant performed NOC duties

7) Can applicants maintain TR during

processing?

Yes, through bridging open work permits they are now able to maintain temporary resident status during processing.

CIC has told me in an e-mail that an Open Bridging Work Permit will not negate an AEO

8) What procedural fairness do I get?

Hassani v. Canada (Minizter of Citizenship and Immigration), 2006 FC 1283

“It is clear that where a concern arises directly from the requirements of the legislation or related regulations, a visa officer will not be under a duty to provide an opportunity for the applicant to address his or her concerns. Where however the issue is not one that arises in this context, such a duty may arise. This is often the case where the credibility, accuracy or genuine nature of information submitted by the applicant in support of their application is the basis of the visa officer’s concern.”

Obeta v. Canada (CIC), 2012 FC 1542

Court ruled that concerns over credibility, accuracy, or genuineness do not necessarily result in a duty to provide an opportunity for visa officers to provide applicants with opportunities to address their concern. Justice Bovin ruled that the credibility issues were so obvious that the Officer was under no duty to provide the applicant with an opportunity to address his concerns.

Questions & Discussions

Steven Meurrens, B.A., LL.B.

Larlee Rosenberg, Barristers & Solicitors

600-555 West Georgia Street

Vancouver, British Columbia

Tel: 604-681-9887

Steven.meurrens@larlee.com

www.larlee.com

www.stevenmeurrens.com