Mercado v. Canada (Minister of Citizenship and Immigration)

[1] This is an application for judicial review of the December 8, 2005, decision of a Designated Immigration Officer (“Immigration Officer”) wherein the Applicant’s application for permanent residence as a member of the Federal Skilled Worker Class was refused pursuant to subsections 75(2) and 76(1) of the Immigration and Refugee Protection Regulations (“IRPR”), SOR/2002-227.

[2] Raul Reyna Mercado (the “Applicant”) made an application dated April 25, 2004, for permanent residence in Canada as a Federal Skilled Worker under the IRPR. He submitted evidence of his education, his basic knowledge of English with approved test results, documents detailing his work experience as a Landscape Maintenance Contract manager, an HRSDC confirmed indeterminate offer of arranged employment as a Landscape Designer, and the fact that he has a family member in Canada. In his application for permanent residence, the Applicant requested to be assessed as a Landscaping and Grounds Maintenance Contractor and Manager (“Landscape Contractor”). The National Occupational Classification code for Landscape Contractors is 8255 (“NOC 8255”).

[3] The Immigration Officer assessed the Applicant based on the selection criteria set out in subsections 75(2) and 76(1) of the IRPR. The Immigration Officer found that the Applicant was not able to meet the selection criteria of subsection 75(2). In addition, the Applicant’s score was 43 rather than the required minimum score of 67 under s. 85.3(b). Accordingly, the application was denied.

b) erred in not awarding 15 points for arranged employment under s. 82(2)(c) of the IRPR;

d) failed to utilize the substituted evaluation methodology under s. 76(3) of the IRPR.

[5] The standard of review to be applied in the context of an Immigration Officer's general decision is patent unreasonableness (see Hua v. Canada (Minister of Citizenship and Immigration), 2004 FC 1647.

[6] The relevant statutory provisions can be found in ss. 75, 76 and 82 of the IRPR which are reproduced in the attached Annex 1.

[7] The scheme of the IRPR is quite straight forward and is succinctly summarized in the Respondent’s Further Memorandum of Argument. For simplicity, I will restate it here:

7. In order to obtain a permanent residence visa, an applicant must meet the two broad requirements set out by the Regulations, namely that he i. qualifies as a federal skilled worker and ii. has the ability to become economically established.

For the purposes of subsection 12(2) of the Act, the federal skilled worker class is hereby prescribed as a class of persons who are skilled workers and who may become permanent residents on the basis of their ability to become economically established in Canada and who intend to reside in a province other than the Province of Quebec.

(a) within the 10 years preceding the date of their application for a permanent resident visa, they have at least one year of continuous full-time employment experience, as described in subsection 80(7), or the equivalent in continuous part-time employment in one or more occupations, other than a restricted occupation, that are listed in Skill Type 0 Management Occupations or Skill Level A or B of the National Occupational Classification matrix;

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

(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.

9. In other words, to be considered a skilled worker, the applicant must demonstrate that he or she meets both the qualitative (one year or equivalent work experience in requested NOCs) and quantitative aspects (performed the required actions listed in the NOC during that employment) of the regulatory definition.

10. The Visa Officer need only consider whether an applicant is likely to become economically established after the applicant has demonstrated that he is a skilled worker.

11. To demonstrate that he has the ability to become economically established in Canada, a skilled worker must meet the two broad requirements set out in Regulation 76.

76(1) For the purpose of determining whether a skilled worker, as a member of the federal skilled worker class, will be able to become economically established in Canada, they must be assessed on the basis of the following criteria:

(a) the skilled worker must be awarded not less than the minimum number of required points referred to in subsection (2) on the basis of the following factors, namely,

(ii) proficiency in the official languages of Canada, in accordance with section 79,

(i) have in the form of transferable and available funds, unencumbered by debts or other obligations, an amount equal to half the minimum necessary income applicable in respect of the group of persons consisting of the skilled worker and their family members, or

(ii) be awarded the number of points referred to in subsection 82(2) for arranged employment in Canada within the meaning of subsection 82(1).

[8] The Applicant argues that the Immigration Officer incorrectly assessed his experience under s. 75(1) and 8(1). He argues that he presented evidence of employment with Iberia Landscaping. The Applicant contends that the evidence establishes that he meets the requirements for Landscape Contractor as set out in NOC 8255. Accordingly, the Immigration Officer incorrectly rejected such evidence as it was evidence of contracting for services and not evidence of employment.

This letter is to confirm that Mr. Raul Reyna is working with our organization as a landscape designer. He has held this position for 6 years. In this position he is responsible for design, construction and garden maintenance. He earns a yearly salary of $42,000.00.

[10] This letter seems to clearly suggest that the Applicant is an employee as it uses the term ‘salary’. During the interview, the Applicant instead argued that he was working as a contractor for Iberia Landscaping and presented invoices showing that he billed Iberia Landscaping for more than one year. However, the invoices only showed that for six months (August 2004 to January 2005) he billed for landscape maintenance, garden maintenance, grass cutting, and snow ploughing. This seems more indicative of basic work more properly falling under the category of Landscape Labourer under NOC 8612 than Landscape Contractor under NOC 8255.

[11] Under cross-examination, the Immigration Officer admitted that she applied s. 75 as if it only applied to employment situations. In my view, this is a questionable interpretation as s. 75(2) applies to “continuous full time employment experience” which could be broad enough to cover contracting. However, this is immaterial; the Applicant has to first establish that he qualifies as a skilled worker.

[12] The evidence he presented was contradictory (Iberia Landscaping said he received a salary, but he stated he was a contractor). The only evidence he produced were self-generated invoices which did not describe work done by a Landscape Contractor. As the Immigration Officer summed up in her affidavit:

During the interview, I pointed out that the Applicant did not produce supporting documents such as T4 slips from Iberia Landscape, Ltd., but only invoices for services rendered. The Applicant admitted that he was not an employee, but rather operated a business that provided services to Iberia Landscape, Ltd. Although he insisted that he was working full time as a landscape designer for Iberia Landscape, Ltd., the Applicant had no evidence to support that he was working full time in any capacity for Iberia Landscape, Ltd. As a result, I could not determine that he had acquired one year full-time experience or its equivalent for the purposes of the Regulations.

[13] Under these circumstances, I find that the Immigration Officer quite reasonably found that the Applicant had not established that he was a skilled worker.

[14] The Applicant argues that his arranged employment should have been assessed under s. 82(2)(c) instead of 82(2)(a). He made his application from Canada on March 18, 2005, and went back to Mexico for his interview on October 25, 2005. While by his own admission he had worked illegally in Canada for many years and never paid any taxes, at the time of the assessment, he was in Mexico. He did not intend to work in Canada before being issued a permanent resident visa. He thus, should be assessed under s. 82(2)(c). The CAIPS notes however reveal he was assessed under s. 82(2)(a).

[15] The Immigration Officer gave no points for this offer as the arranged employment was for a position of Landscape Designer (“NOC 2225”), not Landscape Contractor under NOC 8255. This was not the NOC classification under which he sought to be qualified as a skilled worker. In my view she was perfectly entitled to so proceed as he had not applied under that NOC classification. It thus, does not directly support his application.

[16] More importantly, this submission makes a mockery out of the Immigration and Refugee Protection Act (“IRPA”) and cannot stand. First, it would require the Immigration Officer to accept the Applicant’s illegal work experience in Canada to establish him as a skilled worker. Then as a second step, the Immigration Officer has to treat the Applicant as a Mexican resident, although he made his application while still in Canada. Furthermore as a result of the interview, the Immigration Officer then needs to accept the Applicant’s assertion (given that the interview took place in Mexico) that he does not intend to work in Canada before being issued a permanent resident visa, notwithstanding that he has worked illegally in Canada for years. The whole scheme of skilled worker is designed to bring skilled workers to Canada legally. In order for the proposition of the Applicant to work, the Immigration Officer has to be either wilfully blind or to actively collaborate with the applicant to defeat the scheme of the IRPA. It would be contrary to the design of the IRPA to adopt the interpretation advocated by the Applicant or expect an Immigration Officer to act in this manner. In my view, given that the Applicant was making the application while working illegally in Canada, none of the provisions of s. 82(2) are available to him. The Immigration Officer rightly disqualified him under s. 82(2)(a). She could have done so equally under s. 82(2)(c).

[17] Given that I ruled against the Applicant on issues a) and b) this issue becomes irrelevant. However, if I am wrong under both issues a) and b) then indeed I don’t see why the Applicant would not qualify under s. 83(1)(e) for an extra 5 points. Given his low score, unless he succeeds on issues a) and b) the additional five points will make no difference to the overall outcome of his application.

[18] The Applicant argues that the Immigration Officer erred by not employing a substituted evaluation scheme under s. 76(3). This reflects a misunderstanding of s. 76(3). Section 76(3) only comes into play once an Immigration Officer has found that an Applicant qualifies as a skilled worker but does not acquire the requisite minimum number of points. Here, the Applicant never qualified as a skilled worker, thus the Immigration Officer could never invoke s. 76(3).

[19] For all these reasons, none of the arguments advanced by the Applicant convince the Court that the Immigration Officer’s decision was patently unreasonable. Accordingly, this application will not succeed.

75. (1) For the purposes of subsection 12(2) of the Act, the federal skilled worker class is hereby prescribed as a class of persons who are skilled workers and who may become permanent residents on the basis of their ability to become economically established in Canada and who intend to reside in a province other than the Province of Quebec.

(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; and

(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.

(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.

76. (1) For the purpose of determining whether a skilled worker, as a member of the federal skilled worker class, will be able to become economically established in Canada, they must be assessed on the basis of the following criteria:

(a) the skilled worker must be awarded not less than the minimum number of required points referred to in subsection (2) on the basis of the following factors, namely,

(ii) proficiency in the official languages of Canada, in accordance with section 79,

(ii) be awarded the number of points referred to in subsection 82(2) for arranged employment in Canada within the meaning of subsection 82(1).

(2) The Minister shall fix and make available to the public the minimum number of points required of a skilled worker, on the basis of

(a) the number of applications by skilled workers as members of the federal skilled worker class currently being processed;

(b) the number of skilled workers projected to become permanent residents according to the report to Parliament referred to in section 94 of the Act; and

(c) the potential, taking into account economic and other relevant factors, for the establishment of skilled workers in Canada.

(3) Whether or not the skilled worker has been awarded the minimum number of required points referred to in subsection (2), an officer may substitute for the criteria set out in paragraph (1)(a) their evaluation of the likelihood of the ability of the skilled worker to become economically established in Canada if the number of points awarded is not a sufficient indicator of whether the skilled worker may become economically established in Canada.

(4) An evaluation made under subsection (3) requires the concurrence of a second officer.

82. (1) In this section, “arranged employment” means an offer of indeterminate employment in Canada.

(2) Ten points shall be awarded to a skilled worker for arranged employment in Canada in an occupation that is listed in Skill Type 0 Management Occupations or Skill Level A or B of the National Occupational Classification matrix if they are able to perform and are likely to accept and carry out the employment and

(i) there has been a determination by an officer under section 203 that the performance of the employment by the skilled worker would be likely to result in a neutral or positive effect on the labour market in Canada,

(iii) the work permit is valid at the time an application is made by the skilled worker for a permanent resident visa as well as at the time the permanent resident visa, if any, is issued to the skilled worker, and

(iv) the employer has made an offer to employ the skilled worker on an indeterminate basis once the permanent resident visa is issued to the skilled worker;

(b) the skilled worker is in Canada and holds a work permit referred to in paragraph 204(a) or 205(a) or subparagraph 205(c)(ii) and the circumstances referred to in subparagraphs (a)(ii) to (iv) apply;

(c) the skilled worker does not intend to work in Canada before being issued a permanent resident visa and does not hold a work permit and

(i) the employer has made an offer to employ the skilled worker on an indeterminate basis once the permanent resident visa is issued to the skilled worker, and

(ii) an officer has approved that offer of employment based on an opinion provided to the officer by the Department of Human Resources Development at the request of the employer or an officer that

(C) the wages offered to the skilled worker are consistent with the prevailing wage rate for the occupation and the working conditions meet generally accepted Canadian standards; or

(i) the circumstances referred to in subparagraphs (a)(i) to (iv) and paragraph (b) do not apply, and

Court (s) Database	Federal Court Decisions
Date	2006-12-19
Neutral citation	2006 FC 1527
File numbers	IMM-957-06

Mr. Stephen W. Green	FOR THE APPLICANT

Ms. Lisa Hutt	FOR THE RESPONDENT

Federal Court Decisions

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Mercado v. Canada (Minister of Citizenship and Immigration)

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