Adu-Daako v. Canada (Citizenship and Immigration), 2023 FC 520 : Express Entry Refusal Upheld Where Applicant Failed to Meet the Work Experience Requirement in the Primary NOC Declared in Her PR Application

The Federal Court dismissed judicial review of an Express Entry Federal Skilled Worker refusal. The Applicant’s Express Entry profile identified NOC 4164 as her primary occupation, but her subsequent permanent residence application identified NOC 4163. The Officer assessed her work experience based on the NOC declared in the PR application and found that she lacked the required one year of continuous work experience. The Court found the refusal reasonable.

Key Principle

Under the Federal Skilled Worker Class, an applicant must establish the required qualifying work experience in the occupation identified as their primary occupation in the permanent residence application. Where the applicant identifies a particular NOC in the PR application and does not meet the minimum work-experience requirement for that NOC, the Officer is not required to guess the applicant’s intended NOC, conduct further inquiries, or substitute a different NOC based on other evidence.

Background

The Applicant, a citizen of Ghana, created an Express Entry profile in December 2019 identifying NOC 4164, Social Policy Researchers, Consultants and Program Officers, as her primary occupation. She was accepted into the Express Entry pool and invited to apply under the Federal Skilled Worker Class.

When she submitted her permanent residence application on February 15, 2020, however, her primary occupation was identified as NOC 4163, Business Development Officers and Marketing Researchers and Consultants. Her work history included positions under several different NOCs, including NOC 4163 and NOC 4164.

IRCC subsequently determined that she had not demonstrated at least one year of continuous full-time paid work experience, or equivalent part-time experience, in NOC 4163. The Officer refused the application under s 75 of the IRPR and also concluded that the Applicant no longer met the requirements under IRPA s 11.2 relating to the validity of the information underlying her Express Entry invitation.

Court Findings

• The PR Application Controlled the NOC Assessment: The Court found that the Applicant herself had identified NOC 4163 as her primary occupation when submitting the PR application. GCMS evidence showed that the NOC information was automatically populated from the Applicant’s submitted information, and the record indicated that the relevant change occurred on the date she submitted the PR application.

• Applicant Could Not Rely on Another NOC: Although the Applicant maintained that she had sufficient qualifying experience under NOC 4164, the Court held that s 75(2)(a) required the Officer to assess the work experience in the primary occupation identified in the application. The Officer was not required to determine which NOC the Applicant should have selected or to guess at her intended occupation.

• Speculation About a Clerical or Technical Error Was Insufficient: The Applicant argued that the change from NOC 4164 to 4163 may have resulted from a typo, clerical error, or technical problem. The Court rejected this as speculation. The Applicant provided no evidence establishing that IRCC had altered her NOC, and the Officer’s affidavit explained how the information entered by the Applicant was incorporated into GCMS.

• No Further Assessment Was Required: Section 75(3) provides that where the Federal Skilled Worker minimum requirements are not met, the application must be refused and no further assessment is required. The Court therefore rejected the argument that the Officer should have considered a substituted evaluation under s 76(3). That provision concerns whether an applicant who is already a member of the Federal Skilled Worker Class is likely to become economically established; it does not cure failure to meet the basic class requirements.

• Processing Delay Did Not Establish Procedural Unfairness: The Applicant also argued that the approximately two-year processing period caused prejudice because she could have corrected the NOC and reapplied earlier. The Court declined to consider the delay argument because it was raised too late. In any event, the Applicant failed to demonstrate inordinate delay and direct, significant prejudice as required by Blencoe and Abrametz.

Outcome

The Court found the Officer’s decision reasonable and dismissed the application for judicial review. There was no order as to costs and no question was certified.

Case Citation:

Adu-Daako v. Canada (Citizenship and Immigration), 2023 FC 520 (CanLII)