Gao v. Canada (Citizenship and Immigration), 2014 FC 821 : CEC Refusal Overturned Because Officer Applied the Wrong NOC Standard

The Federal Court reviewed the refusal of a Canadian Experience Class application by an applicant who claimed work experience as a Retail Sales Supervisor under NOC 6211.

The Court overturned the refusal because the officer applied an incorrect standard by referring to “essential duties,” even though NOC 6211 did not identify any essential duties. The officer also unreasonably excluded duties performed by the applicant because they involved helping or assisting others.

Key Principle

For CEC applications, an applicant must demonstrate that they performed a substantial number of the main duties of the claimed NOC.

An officer cannot impose an additional requirement that does not exist in the applicable NOC. Where the NOC does not identify “essential duties,” an officer cannot rely on an essential-duty requirement when assessing the application.

The Court also confirmed that performing a duty together with or alongside other employees does not necessarily mean that the applicant did not perform that duty.

Background

The applicant applied for permanent residence under the Canadian Experience Class based on work experience as a Retail Sales Supervisor under NOC 6211.

The officer found that the applicant had not demonstrated that he supervised and coordinated sales staff and cashiers or assigned sales workers to duties.

The applicant’s employer provided a letter describing his duties. However, the officer focused on the fact that three of the five duties used terms such as “helping,” “assisting” and “aiding.”

The officer concluded that the applicant had not performed a substantial number of the main duties of NOC 6211, including all of the essential duties, and refused the application.

Court Findings

The Federal Court found that the decision was unreasonable for two main reasons.

First, NOC 6211 did not contain any “essential duties.” It listed main duties only. The applicable CEC requirement was that the applicant perform a substantial number of those main duties.

The officer’s decision nevertheless stated that the applicant had failed to perform the “essential duties.” The Court found that the record could not simply be used to override this patent error in the decision letter. The Court cannot create or supply reasoning that the decision-maker did not provide.

Second, the officer unreasonably treated duties described using words such as “helping,” “assisting” and “aiding” as evidence that the applicant did not perform those duties.

The Court found that employees commonly perform functions in concert with or alongside other employees, particularly in a team-based workplace. Without further context or evidence, the officer could not reasonably conclude that assisting with a function meant the applicant did not perform that function.

The officer had therefore excluded evidence of three of the eight main duties without adequate justification.

Outcome

The Federal Court allowed the application for judicial review and remitted the CEC application to a different immigration officer for reconsideration.

Case Citation:

Gao v. Canada (Citizenship and Immigration), 2014 FC 821 CanLII