Date: 20000609
Docket: IMM-760-99
BETWEEN:
GANESH KRISHNAMURTHY
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
DAWSON J.
[1] In February of 1997 Ganesh Krishnamurthy applied for permanent residence in Canada. He applied as an independent applicant so that subsection 8(1) of the Immigration Regulations, 1978, SOR/78-172 as amended (the "Regulations"), required that a number of factors be assessed by a visa officer.
[2] The result of the assessment of Mr. Krishnamurthy"s application was communicated to Mr. Krishnamurthy by a letter dated December 21, 1998. The visa officer determined that Mr. Krishnamurthy failed to obtain the number of assessment units (60) required to qualify for a personal interview. Therefore, the visa officer decided that Mr. Krishnamurthy did not meet the requirements for immigration to Canada.
[3] Mr. Krishnamurthy seeks an order quashing that decision of the visa officer. Mr. Krishnamurthy alleges, among other things, that the visa officer failed to assess his application in accordance with the duty imposed by section 6 of the Immigration Act, R.S.C. 1985, c. I-2, as amended (the "Act").
THE FACTS
[4] Mr. Krishnamurthy"s application for permanent residence was forwarded under cover of a letter dated February 8, 1997. The letter"s reference was:
| RE: KRISHNAMURTHY, Ganesh (Principal Applicant) |
| D.O.B.: 11/09/72 |
Independent Applicant Classified under
CCDO 4111 - 111 Executive Secretary
Or
CCDO 4111 - 110 Secretary
[5] The application form signed by the applicant listed his intended occupation in Canada to be "Executive Secretary/Secretary".
[6] The decision of the visa officer stated in material parts as follows:
| I have now completed the assessment of your application and regret to inform you that it has been determined that you do not meet the requirements for immigration to Canada. |
| Pursuant to section 8(1) of the Immigration Regulations, 1978, independent applicants, in the class in which you have applied, are assessed on the basis of age, education, occupational demand, vocational preparation, experience, arranged employment or designated occupation, Canadian demographic factors and knowledge of the English and French languages. Based on the information provided in your application form, you were assessed against the requirements for Secretarial Stenographer (CCDO: 4111-110 and NOC: 1241.0) and Stenographer (CCDO: 4111-118 and NOC: 1241.0). The units of assessment you have been awarded for each of the selection criteria are: |
| ... |
| Pursuant to section 11.1(a)(i) of the Immigration Regulations, 1978, you have failed to obtain at least 60 units of assessment, the minimum number required to qualify for an interview. |
[7] Mr. Krishnamurthy"s application was received at the Canadian High Commission, New Delhi on February 11, 1997.
[8] In the affidavit sworn by the visa officer in opposition to this proceeding, he swore that:
| Since the Application was received when Canadian Classification and Dictionary of Occupations (CCDO) was in force and was assessed after National Occupational Classification (NOC) was introduced, it was assessed both under CCDO and NOC. |
[9] The visa officer also swore that he assessed the applicant as both a secretarial stenographer and a stenographer.
[10] Under the CCDO classification, Mr. Krishnamurthy was awarded 59 units as a secretarial stenographer and 48 units as a stenographer. Under the NOC classification, Mr. Krishnamurthy received 53 units as a secretarial stenographer and 53 units as a stenographer.
STATUTORY FRAMEWORK
[11] Subsection 6(1) of the Act sets out the general principle that:
| 6. (1) Subject to this Act and the regulations, any immigrant, including a Convention refugee, and all dependants, if any, may be granted landing if it is established to the satisfaction of an immigration officer that the immigrant meets the selection standards established by the regulations for the purpose of determining whether or not and the degree to which the immigrant will be able to become successfully established in Canada, as determined in accordance with the regulations. |
6. (1) Sous réserve des autres dispositions de la présente loi et de ses règlements, tout immigrant, notamment tout réfugié au sens de la Convention, ainsi que toutes les personnes à sa charge peuvent obtenir le droit d'établissement si l'agent d'immigration est convaincu que l'immigrant satisfait aux normes réglementaires de sélection visant à déterminer s'il pourra ou non réussir son installation au Canada, au sens des règlements, et si oui, dans quelle mesure. |
| [12] Subsection 8(1) of the Regulations provides: |
| 8. (1) Subject to section 11.1, for the purpose of determining whether an immigrant and the immigrant's dependants, other than a member of the family class, a Convention refugee seeking resettlement or an immigrant who intends to reside in the Province of Quebec, will be able to become successfully established in Canada, a visa officer shall assess that immigrant or, at the option of the immigrant, the spouse of that immigrant (a) in the case of an immigrant, other than an immigrant described in paragraph (b) or (c), on the basis of each of the factors listed in column I of Schedule I; (b) in the case of an immigrant who intends to be a self-employed person in Canada, on the basis of each of the factors listed in Column I of Schedule I, other than the factor set out in item 5 thereof; (c) in the case of an entrepreneur, an investor or a provincial nominee, on the basis of each of the factors listed in Column I of Schedule I, other than the factors set out in items 4 and 5 thereof. |
| 8. (1) Sous réserve de l'article 11.1, afin de déterminer si un immigrant et les personnes à sa charge, à l'exception d'un parent, d'un réfugié au sens de la Convention cherchant à se réinstaller et d'un immigrant qui entend résider au Québec, pourront réussir leur installation au Canada, l'agent des visas apprécie l'immigrant ou, au choix de ce dernier, son conjoint : a) dans le cas d'un immigrant qui n'est pas visé aux alinéas b) ou c), suivant chacun des facteurs énumérés dans la colonne I de l'annexe I; b) dans le cas d'un immigrant qui compte devenir un travailleur autonome au Canada, suivant chacun des facteurs énumérés dans la colonne I de l'annexe I, autre que le facteur visé à l'article 5 de cette annexe; c) dans le cas d'un entrepreneur, d'un investisseur ou d'un candidat d'une province, suivant chacun des facteurs énumérés dans la colonne I de l'annexe I, sauf ceux visés aux articles 4 et 5 de cette annexe. |
[13] The items in Schedule I of the Regulations upon which applicants such as Mr. Krishnamurthy are assessed include factors such as Education, Education and Training, Experience, Occupational factor and the like. The CCDO or NOC classification is made relevant by the Occupational factor which provides that units of assessment are awarded on the basis of employment opportunities in Canada in the occupation in which an applicant has performed a substantial number of the main duties as set out in the CCDO or NOC.
ISSUES
[14] Mr. Krishnamurthy raised three issues in this application. He asserted that:
| (i) The visa officer failed to assess his application in accordance with the duty imposed by section 6 of the Act; |
| (ii) The visa officer breached a duty of procedural fairness in that he failed to advise Mr. Krishnamurthy of any concerns which he had; |
| (iii) The visa officer erred in his interpretation of what constituted specific vocational training. |
ANALYSIS
[15] I find it to be clear, both from the application for permanent residence itself and its covering correspondence, that Mr. Krishnamurthy submitted his application for permanent residence under the categories of both executive secretary and secretary. That is expressed in the covering letter (where reference was specifically made to both of the CCDO classification numbers) and may reasonably be inferred by the expression "Executive Secretary/Secretary" found in the application.
[16] Pursuant to subsection 2.03(1) of the Regulations, Mr. Krishnamurthy"s application was to be assessed using the CCDO because it was made before May 1, 1997.
[17] The relevant CCDO employment descriptions referenced by Mr. Krishnamurthy in his covering letter are as follows:
| 4111-111 EXECUTIVE SECRETARY (clerical) |
| Performs secretarial and administrative duties for office executive: |
| Performs duties similar to those of 4111-110 SECRETARY (clerical) utilizing secretarial experience and knowledge of office administration and public relations. Arranges conferences and other meetings and researches and compiles information for employer. Acts on routine matters affecting day to day operations of organization, in employer"s absence. May perform other duties including supervising office workers. |
| ... |
| 4111-110 SECRETARY (clerical) |
| secretarial stenographer |
| Schedules appointments, gives information to callers, takes dictation and relieves employer of clerical work and minor administrative and business details, performing any of the following duties: |
| Reads and routes incoming mail. Locates and attaches appropriate file to correspondence to be answered by employer. Takes dictation in shorthand or on stenotype machine, and transcribes on typewriter from notes or voice recordings. Composes and types correspondence. Files correspondence and other records. Answers telephone and gives information to caller, or routes call to appropriate official, and places outgoing calls. Schedules appointments for employer and reminds him when they are due. Greets visitors, ascertains nature of business and conducts visitors to employer or to appropriate person. Compiles and types statistical reports. Records minutes of meetings. |
| May keep confidential personnel records. May arrange travel schedules and reservations. May be designated according to type of work performed; for example, |
| Appointments Secretary |
| Legal Secretary |
| Medical Secretary |
| Social Secretary |
[18] A review of each occupation description indicates that there are differences between the duties of each occupation.
[19] The jurisprudence establishes that an applicant has the right to have his or her application evaluated under the applicant"s stated intended occupation. This was stated in the following terms by the Federal Court of Appeal in Uy v. Canada, [1991] 2 F.C. 201 (F.C.A.) at page 204:
| In my opinion, section 6 of the Act requires a visa officer to assess any immigrant who applies for landing in the manner prescribed by the Act and Regulations. Subsection 8(1) of the Regulations imposes, in mandatory terms, a duty to assess and I find nothing in either the Act or Regulations which would permit a visa officer to refuse to assess in respect of the occupation or alternative occupations which the immigrant (or his or her spouse) states it is intended be pursued in Canada. The visa officer erred in law and exceeded his jurisdiction by refusing to assess the appellant for admission to Canada as a medical technologist. [underlining added] |
To similar effect, see also: Issaeva v. Canada, [1996] F.C.J. No. 1679.
[20] The respondent argued that the visa officer assessed the application in accordance with the education and employment experience provided on the application. The respondent also argued that the assertion that the applicant was not assessed as an "Executive Secretary" was without foundation because an examination of NOC: 1241.0 includes in the category "Secretaries" reference to Executive Secretary.
[21] I do not find either submission persuasive.
[22] As stated above, the visa officer"s obligation was to assess the applicant under his stated intended occupation. As the applicable classification system was the CCDO which treats the occupations of Secretary and Executive Secretary separately, I do not conclude that the respondent can rely on the provisions of NOC: 1241.0 to say that an assessment under the NOC category is sufficient because it includes reference to Executive Secretary.
[23] In oral argument before me, the respondent asserted that the effect of the use of the slash in the application form in the phrase "Executive Secretary/Secretary" was to give the visa officer a choice as to which category to apply. Given that the visa officer had a choice, and picked one, the respondent submitted that no reviewable error occurred.
[24] Applicants are permitted to name more than one occupation. In Olajuwon v. Canada, [1998] F.C.J. No. 967, Court File No. IMM-3874-97, Justice MacKay of this Court considered an application for judicial review where, in the applicant"s covering letter, the applicant specifically requested assessment in the occupations of travel agent and tour operator. The application for judicial review was allowed because nowhere in the record was there any reference to an assessment of the applicant in relation to his specific request to be considered under the occupation of a tour operator.
[25] Accordingly, I do not find that the visa officer in the circumstances now before the Court had the option suggested by the respondent of choosing which occupation to assess.
[26] I have therefore concluded that on the basis of the failure to assess the applicant under the category "Executive Secretary", the decision of the visa officer must be set aside. It is therefore unnecessary for me to consider the alternate submissions advanced on the applicant"s behalf.
[27] The application for judicial review is allowed, and Mr. Krishnamurthy"s application for permanent residence is to be referred for redetermination by a different visa officer who should take no account of the record developed in relation to the decision now set aside.
[28] Neither party suggested the certification of a serious question.
"Eleanor R. Dawson"
Judge
Ottawa, Ontario
June 9, 2000