Judicial Review of Skilled Worker Cases at Sydney Nova Scotia

By Author: Admin | August 4, 2010

The gatekeeper to the Federal Skilled Worker program for Canadian immigration is the Centralized Intake Office at Sydney Nova Scotia.  The reputation of the CIO amongst Canadian immigration lawyers is not stellar.  There are complaints to the effect that the CIO’s decisions are not reasonable (e.g. sending back a file for not specifying a specific visa office, or because the duties performed in an occupation are not in extremely close accordance with the National Occupational Classification).  In the case of the latter reason, the CIO at Sydney will send a substantive letter to the effect that the applicant for Canadian immigration has not shown that his work experience contains evidence of one year of employment as an accountant, for example.

A typical refusal letter from Sydney would be as follows:

Although the NOC code(s) correspond(s) to the occupations specified in the Instructions, the main duties that you listed do not indicate that you performed the actions described in the lead statement for the occupation, as set out in the occupational descriptions of the NOC or that you performed all of the essential duties and a substantial number of the main duties, as set out in the occupational descriptions of the NOC. As such, I am not satisfied that you are an Accountant (NOC 1111)

One solution in response to the above would be to simply re-file the application with better evidence.  However, the Canadian immigration department advises its immigration officers to record the reason for refusal.  This would normally entail describing the evidence of work experience submitted, and then giving a rationale as to why the work experience presented did not comply with the in-demand occupation within the National Occupational Classification.

Such a set of reasons, recorded in the officer`s CAIPS notes, would likely have an adverse affect on any future application, including refusing a subsequent re-filed application.  Can you take a Sydney refusal to the Federal Court?

The Immigration Refugee Protection Act at 87.3(5) is an attempt to say that a refusal from Sydney, like the one described above, is  not a refusal and cannot be taken to Federal Court:

(5) The fact that an application or request is retained, returned or otherwise disposed of does not constitute a decision not to issue the visa or other document, or grant the status or exemption, in relation to which the application or request is made.

There does not appear to be any Federal Court cases where an applicant has asserted that a rejection from Sydney Nova Scotia is a `decision` upon which a federal Court case can be launched.  To the extent that the sample decision I cited above is substantially the same as many decisions that are already taken to the Federal Court, I`d assert that one can take their refused skilled worker application from Sydney to the Federal Court.

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