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Case Comment: “Usually Required”

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Applicants who apply for a Canadian Permanent Resident Visa under the “Skilled Worker” category are assessed under a “points” system. Under current Federal Selection Criteria, applicants are awarded “units of assessment” for a number of objective factors, such as age, education, occupational background and language ability.

In addition, applicants must satisfy the employment requirements associated with their intended occupation in Canada, as set forth in the National Occupation Classification (NOC). The NOC will stipulate, for example, whether a particular occupation requires the applicant to have completed a certain level of education at a university or post-secondary level.

It is then up to visa officers to determine, on a case by case basis, whether a given Skilled Worker applicant satisfies all of the NOC requirements applicable to his or her intended job occupation. Thus, even though an applicant may have good English or French language skills, a high level of education, and several years of work experience, if the particular NOC requirements are not met, the applicant will most likely be unsuccessful.

In many cases, the NOC’s wording leaves room for interpretation with respect to the exact educational and work experience requirements associated with many job occupations. One of the most controversial phrases often employed by the NOC is that of “usually required.” For example, it is relatively common for the NOC to provide that a certain type of university degree is “usually required” for qualification under a particular occupation. Given the importance of satisfying the NOC requirements, it is not surprising that a visa officer’s interpretation of “usually required” can be the deciding factor in determining whether a Skilled Worker’s application will be accepted or rejected.

Of late, many Skilled Worker applicants have found that wherever the NOC stipulates that a particular degree is “usually required,” visa officers have interpreted this to mean “always required.” In some cases, applicants have been rejected for the sole reason of not having the degree that was “usually required.”

In the recent case of Razavi v. Canada (Minister of Citizenship & Immigration), the applicant was refused on the sole ground that he did not have a B.A. or college degree. In this case, the applicant’s intended occupation was that of “Purchasing Agent.” The NOC stipulates that in the case of purchasing agents “a bachelors degree or college diploma in business administration, commerce or economics is usually required.”

In overturning the decision of the visa officer, the Judge held that the visa officer had misinterpreted the applicable legal standard as set out in the NOC. In essence, the visa officer treated the educational requirement as an absolute requirement, and the judge held that this was an improper interpretation of the NOC wording.

There is no doubt that this case represents a strong grounds upon which Skilled Worker applicants can now argue that, in certain situations, they should not be refused on the sole grounds that they do not meet an NOC requirement which is not an absolute one.

Unfortunately, not all Judges are as liberal in their interpretation of the phrase “usually required.” In another recent case (Wen Hai Li v. Canada (Minister of Citizenship & Immigration)), the applicant had applied as a computer programmer. The NOC stipulates that, for computer programmers, a bachelor’s degree in computer science or in another discipline with a significant programming component, or a college program in computer programming, is “usually required.”

In this case, the applicant was refused on the grounds that, although he had a bachelor’s degree in engineering – which included two computer courses – his education did not include a “significant programming component.” The applicant appealed the visa officer’s decision, arguing that in addition to the computer courses he had taken as part of his engineering degree, he had also taken other short courses in computer programming and had studied computer programming on his own.

Despite all of the evidence presented as to the applicant’s computer programming education, the Federal Court Judge still held that the NOC educational requirements had not been met. In refusing the applicant’s appeal, the Judge effectively confirmed the view held by many visa officers: that the NOC requirements should be interpreted as strictly as possible. Even though the NOC only required a “significant programming component” – with the meaning of “significant” left undefined – and even though this requirement was only “usually required,” the Judge nonetheless found that the applicant had not satisfied the educational element.

To further complicate this already confusing issue, another recent case heard at the Federal Court elaborated upon the circumstances in which a visa officer should accept an applicant who does not possess a degree which is “usually required.” In Nooshin Nemati v. Canada (Minister of Citizenship & Immigration)), the applicant had applied as a advertising and marketing consultant. The NOC stipulates that, for advertising and marketing consultants, a degree or diploma in business administration or commerce is “usually required.” In this case, the applicant had a social science degree and three years’ relevant work experience.

In refusing the application for permanent residence, the visa officer referred to the interpretative provisions of the NOC which state that where an educational level is “usually required,” an applicant must meet it unless the visa officer is satisfied that there are “significant and substantial” factors in the file which make it likely that the applicant could overcome the absence of the usual requirement. In this case, the visa officer found that after examining the applicant’s university transcript and work experience, he was not satisfied that they compensated for the lack of a degree in business administration or commerce.

The Judge supported the visa officer’s decision and rejected the applicant’s appeal. In so doing, the judge confirmed that the assessment of “significant and substantial” factors is essentially a finding of fact that is within the discretionary power of the visa officer. Provided that the visa officer does not make such assessment in a “perverse or capricious manner,” the Courts will not overrule the findings of the visa officer.

In conclusion, then, it appears that the view that “usually required” means “always required” should no longer be adhered to by visa officers when interpreting NOC educational requirements. On the other hand, it is difficult to predict how various Federal Court Judges will rule on the question as to whether there are “significant and substantial” factors in the file which make it likely that the applicant could overcome the absence of the usual requirement. As we have seen, some Judges will apply a more liberal interpretation, others will apply a more strict interpretation, while yet others will defer to the reasonable judgment of the visa officer. Perhaps the most important lesson for potential Skilled Worker applicants is that where the “usual” requirement cannot be met, the file must be presented in as clear and convincing manner as possible so as to stand any chance of success.

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