Date: 20031222
Docket: IMM-2328-02
Citation: 2003 FC 1515
OTTAWA, Ontario, this 22nd day of December 2003
BETWEEN:
JAGJIT SINGH LEHAL
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
GAUTHIER J.
[1] Mr. Jagjit Singh Lehal seeks judicial review of the decision of the visa officer who refused his application for permanent residence after assessing him for the occupation of Electrical Engineering Technician (NOC 2241.2) and Knitting Machine Mechanics (NOC 7317.0).
[2] Mr. Lehal had applied for the occupation of electrical engineering technician but the visa officer in her CAIPS' notes, states:
...Experience: 1995 - PRESENT WORKING FOR TUNG KNITTERS - INDIA - STATES ELECTRICAL ENGINEER - MAIN DUTIES ARE TO INSTALL AND MAINTAIN ELECTRICAL EQUIPMENT AND KNITTING MACHINES - APPLICANT APPEARS TO BE MORE OF A REPAIRMAN AND EXPERIENCE DOES NOT INDICATE THAT HE INVOLVED IN ANY DESIGN ASPECT OR DEVELOPMENT...
...APPLICANT HAS THE EDUCATION BUT HAS NOT PERFORMED THE MAIN AND ESSENTIAL DUTIES OF THIS OCCUPATION - 0 POINTS FOR EXPERIENCE....
Thus, she also assessed him under NOC 7317.0.
[3] Mr. Lehal failed to get the number of units required to be scheduled for an interview in both categories.
[4] He argues that the officer speculated about the duties he performed while working at Tung Knitters and should have provided him with an opportunity to disabuse her in that respect.
[5] With respect to this alleged breach of procedural fairness, it is well settled that the applicant must put his best foot forward and that he must present material sufficient to enable the visa officer to make a favourable assessment of his application. (See Madan v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 1198 (QL) at paragraph 6 and Breich v. Canada (Minister of Citizenship and Immigration) [2000] F.C.J. No. 2029 (QL)).
[6] But the applicant also submits that the visa officer misconstrued NOC 2241.2 when she determined that experience in design and development was an essential requirement for this occupation.
[7] With respect to this question of interpretation, I will apply the standard of reasonableness. (See Farooqui v. Canada (Minister of Citizenship and Immigration) [2000] F.C.J. No. 714 (QL) at paragraph 7).
[8] While I agree with the applicant that he did not have to perform each and every one of the main duties under this NOC in order to earn units for his experience, I also agree with the respondent that the officer was entitled to give greater weight to certain duties in the description that she considered essential. (Wu v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 4 (QL)).
[9] I do not believe that the visa officer was under the misapprehension that Mr. Lehal had to perform each of the duties set forth in the NOC. However, she did construe NOC 2241.2 as requiring experience in design and development, as an essential element. Mr. Lehal says that this interpretation is unreasonable given that the job titles for this occupation include among many others:
Electronics Equipment Repairer: Hospital
Physic Department Equipment Maintenance
Medical Laboratory Equipment Repairer
Oil Exploration Test Equipment Repairer
Production Audio Amplifier Repairer
Production Repairer, Electronics
Repairer, Automated Processing Equipment
Repairer, Medical Instruments
Research Laboratory Equipment Repairer
Robotics System Installer and Repairer
Television Repairer, Production
Test Equipment Repairer, Oil Exploration
[10] In answer, in her affidavit, the visa officer states that there was no evidence that Mr. Lehal has any experience in repairing the types of equipment listed in the job titles of family 2241. Indeed, his letter of reference refers to the installation, operation, maintenance of electrical equipments and knitting machines. However, it appears that the visa officer did not appreciate that the argument raised is not whether the applicant was a repairman whose job title was listed under NOC 2241.2 but whether those job titles should be considered in assessing the "essential duties" of that NOC.
[11] In the Career Handbook at page 2 one can read that:
An occupation is a collection of jobs. The NOC list of examples of job titles within each Unit Group provides a frame of reference for the boundaries of that occupation or group. The jobs within the group are characterized by a homogeneity or similarity of skills.
[12] In Prajapati v. Canada (Minister of Citizenship and Immigration) [1995] F.C.J. No. 1463 (QL) at paragraph 12), Gibson J. quashed the decision of a visa officer who misconstrued the occupation described in the NOC by requiring experience in interdepartmental coordination whereas the NOC also referred to coordination within one department.
[13] In the present case, it is indeed difficult to reconcile the job titles referred to above at paragraph 9 with the conclusion that an essential skill required under this occupation, which presumably covers all these repairmen, is the ability to research and develop.
[14] In that respect, the Court finds that the decision of the visa officer was unreasonable.
[15] The application for judicial review is granted.
[16] The parties did not suggest any questions for certification. I find that no question of general interest arises.
ORDER
THIS COURT ORDERS THAT:
1. The application for judicial review is granted.
2. Mr. Lehal's application shall be reassessed by a different visa officer taking into consideration the above Reasons for Order.
"Johanne Gauthier"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2328-02
STYLE OF CAUSE: JAGJIT SINGH LEHAL
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: DECEMBER 2, 2003
REASONS FOR ORDER
AND ORDER BY: GAUTHIER J.
APPEARANCES:
Mr. Jaswant Mangat FOR APPLICANT
Mr. Jeremiah Eastman FOR RESPONDENT
SOLICITORS OF RECORD:
Mangat & Company FOR APPLICANT
Mississauga, Ontario
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR RESPONDENT
FEDERAL COURT
TRIAL DIVISION
Date: 20031218
Docket: IMM-2328-03
BETWEEN:
JAGJIT SINGH LEHAL
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER