In Potla v. Immigration (2020 FC 646), rendered on May 27th, 2020, Applicant was refused under the Canadian Experience Class (CEC) because her Canadian work experience did not meet the statutory requirements.
Applicant was born in April, 1991 in India. She completed her undergraduate and graduate studies in India and worked there for a few years before coming to Canada. She came to Canada in June, 2016 on an open work permit that was dependent on her spouse‘s status in Canada. In August, 2016, she got a job at Scotiabank as a Customer Service Consultant. Then, on October 2, 2017, her job title changed to “Corporate Credit Services – Loan Specialist“, even though there was no clarity as to how her job responsibilities (or duties) were changed. Then, on January 14, 2018, she got a new job as an “Analyst“.
In order to qualify her work experience under CEC, she had to establish that she had performed the job duties in the lead statement for the occupation as set out on the occupational descriptions in the National Occupation Classification (NOC) AND that she performed “a substantial number of the main duties of that occupation.
She chose “Financial Sales Representative” (NOC6235) as her occupation to establish her Canadian work experience under CEC. Its lead statement states “sell basic deposit, investment and loan products and services to individuals and businesses”. Its duties include opening new personal or business accounts, interviewing applicants for loans; promoting the sale of deposit, and so on.
In order to establish her Canadian work experience, she submitted various letters of employment. Her employment letter for “Analyst” states – Champions a customer focused culture; Processing instructions given by Agents on participations and Customers on direct deals including verification of limit available; ensuring loan documentation is being adhered to including pricing, term and amount; communicating effectively with various contacts including Agent Banks to resolve issues; and recognizing and bringing exemptions to policies and procedures to the attention of management for resolution when required.
In other words, her letter of employment as “Analyst” at Scotiabank did not include the nature of the duties she performed as an Analyst found under NOC6235. In fact, the assessing immigration officer found that the job description in her employment letter appears to be closer to NOC6551 Customer and Information services representative, which is a lower skilled occupation (Skill Level C), whereas NOC6235 (Skilled B) has a higher skilled level.
Upon receiving the refusal, Applicant went to Federal Court for judicial review upon the officer‘s decision, based on two reasons: (1) she did not get a procedural fairness; and (2) the decision was unreasonable.
For the procedural fairness, the Court disagreed with Applicant, as per Lazar v. Canada (2017 FC 16): (1) Applicant has the onus to provide sufficient evidence; (2) the degree of procedural fairness owed to an application under CEC is at the low end of the spectrum; (3) there is no obligation on a decision maker to notify an applicant of any deficiency in the application or supporting documentation; and (4) there is no obligation on the decision maker to give any opportunity to fix her application for deficiency, incompleteness, or insufficiency.
However, if the decision maker had concerns relating to the credibility of the information submitted, or to the accuracy or genuineness of that information, procedural fairness is often required.
In this case, the Court noted that the officer was not satisfied with the duties of employment as indicated under the submitted employment letter, but the officer had no issue with credibility, accuracy or genuineness of the fact that she worked at Scotia Bank as an Analyst.
For her second argument whether the decision was reasonable, she argued that the officer did not review all the evidence she submitted, just the employment letter from Scotiabank re Analyst. Again, the Court disagreed with her argument because the officer was clear on relying on the statutory requirement for the occupation she chose.
Furthermore, the officer‘s notes are clear that all employment letters were reviewed, along with all other supporting documents such as educational credentials and language. However, Applicant did not meet the job responsibilities. In addition, her employment letter did not indicate whether she actually performed a substantial number of duties, which is the second requirement, along with the requirement to match NOC lead statements and job responsibilities.
Notes:
The CEC application is fairly a simple way to become a permanent resident in Canada – the only item for subjective assessment is the assessment of Canadian work experience. As a result, we have worked on a number of refused CEC applications, due to the insufficient employment letters to support Canadian work experience. In addition, it is important to discuss and to make sure that employers work with applicants to make sure that NOC requirements are met sufficiently.
Finally, due to the Express Entry system being so “fast”, it is much better to investigate the refusal letter carefully to re–apply, rather than to access the Federal Court for judicial review in general.
If you require further assistance or review of your own case, please seek assistance from qualified professionals for your success. Please note that this article is for general information ONLY.