Date: 20040109
Docket: IMM-565-02
Citation: 2004 FC 20
Ottawa, Ontario, this 9th day of January, 2004
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
YURIY KHNYKIN
Applicant
and
THE MINISTER OF CITIZENSHIP OF IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Yuriy Khnykin, a citizen of Ukraine, applied to become a permanent resident of Canada on the strength of his qualifications as an electrical engineer. A visa officer reviewed his file and interviewed him in Kiev. The officer found that Mr. Khnykin lacked experience in that particular job category and turned him down. Mr. Khnykin argues that the officer made serious errors when he evaluated his application and asks me to order another officer to reconsider it.
[2] I can find no error on the part of the officer that would warrant the Court's intervention. I must, therefore, dismiss this application for judicial review.
Issues
[3] Mr. Khnykin raised numerous issues that I have consolidated into the following:
1. Did the officer fail to treat Mr. Khnykin fairly?
2. Did the officer make a legal error by failing to credit Mr. Khnykin's previous experience or by applying the wrong standard?
3. Did the officer arrive at a conclusion that was at odds with the evidence?
1. Did the officer fail to treat Mr. Khnykin fairly?
[4] Mr. Khnykin accuses the officer of having behaved in a manner that suggested he was biased. He says that the officer failed to consider relevant documents, made inaccurate notes of the interview, wrongly concluded that he was evasive in his testimony and prevented him from giving full answers to questions put to him. The officer denies all of Mr. Khnykin's charges.
[5] On a judicial review, it is not for me to sort out the disagreements between two individuals. I must simply determine whether the applicant has satisfied me that a serious error was made in the handling of his application: Ghandi v. Canada (Minister of Citizenship and Immigration), 2003 FCT 422, [2003] F.C.J. No. 597 (QL) (T.D.), at paras. 9-10. It appears to me from the record that the officer considered and accurately recorded the evidence put before him, and conducted the interview fairly. I cannot find any basis on which a reasonable person would perceive bias on the officer's part.
2. Did the officer make a legal error in failing to credit Mr. Khnykin's previous experience or by applying the wrong standard?
[6] Mr. Khnykin argues that the officer failed to credit him for his previous work experience. True, the officer never mentions his earlier employment experience specifically in his notes, but he seems to have reviewed all of the documentation supplied by Mr. Khnykin, including job descriptions and letters of reference. The officer's decision was based on the nature of the responsibilities Mr. Khnykin claimed to discharge, not solely on one particular job title. Further, the officer gave Mr. Khnykin every opportunity to relate all of his experience and qualifications at the interview. I see no basis on which to fault his analysis.
[7] Mr. Khnykin also argues that the officer erred in relying on sources other than the full, official description of an electrical engineer in the National Occupational Classification (NOC 2133). In particular, the officer cited a document called the Career Handbook. He also quoted from the opening statement in the NOC description, giving the impression, perhaps, that he did not consider other parts of the definition of an electrical engineer.
[8] The officer cited the opening statement in the NOC classification in his letter of refusal. He said: "NOC states that electrical engineers 'design, plan, research, evaluate and test electrical and electronic equipment and systems'". I do not take from this that the officer failed to look at the rest of the official description. This passage simply summarizes the main basis on which Mr. Khnykin's application was denied.
[9] As for the Career Handbook, the officer admits that he based his assessment on the description of electrical engineers in that document. He did not consider the official job description set out in the National Occupational Classification - 2133. In some cases, a visa officer's failure to cite the National Occupational Classification directly could be problematic. But there is nothing inherently wrong with visa officers' referring to the Career Handbook, since it does actually form part of the definition of the National Occupational Classification: Immigration Regulations, 1978, SOR/78-172, s. 2(1) (see the attached Annex). Further, in this case, the Career Handbook's description of the tasks of electrical engineers is very similar to that set out in the National Occupational Classification. If anything, the latter description is more demanding. The officer's reliance on the Career Handbook could not have prejudiced Mr. Khnykin's application.
3. Did the officer arrive at a conclusion that was at odds with the evidence?
[10] The visa officer had two forms of evidence to consider: (1) documentary evidence in the form of a résumé, letters of reference and job descriptions; and (2) Mr. Khnykin's oral testimony at the interview. The officer reviewed the documents and questioned Mr. Khnykin about his duties. In the end, the officer concluded that Mr. Khnykin's experience did not correspond with that of an electrical engineer.
[11] One of the officer's main concerns was that Mr. Khnykin had told him that he did not design anything. Yet, one of the main elements in the official description of electrical engineers is the design of electrical or electronic equipment. In fact, "design" figures largely in the official descriptions of various categories of engineers: Ahmad v. Canada (Minister of Citizenship and Immigration), 2003 FCT 700, [2003] F.C.J. No. 899 (QL) (T.D.), at para. 8. After the interview, Mr. Khnykin's representative sent the officer a letter stating that the applicant had experience in designing electrical networks. The officer discounted this information because it directly contradicted Mr. Khnykin's evidence at the interview.
[12] I cannot conclude that the visa officer's evaluation of Mr. Khnykin's file contained any serious factual errors. The officer reviewed the relevant materials, afforded Mr. Khnykin a full opportunity to present his credentials and considered the entire factual record. His conclusion is consistent with the evidence before him.
[13] I must, therefore, dismiss this application for judicial review. Neither party proposed a question of general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is dismissed;
2. No question of general importance is stated.
"James W. O'Reilly"
Judge
Annex
| Immigration Regulations, 1978, SOR/78-172
2. (1) In these Regulations,
"National Occupational Classification" means the National Occupational Classification, including the Career Handbook and all other component publications, published by the Minister of Human Resources Development, as amended from time to time;
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FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-565-02
STYLE OF CAUSE: YURIY KHNYKIN v.THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: October 16, 2003
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HONOURABLE MR. JUSTICE O'REILLY
DATED: JANUARY 09, 2004
APPEARANCES:
Mr. Igor V. Bersenev FOR THE APPLICANT
Ms. Tracy King FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Igor V. Bersenev FOR THE APPLICANT
Barrister & Solicitor
# 300, 10209 - 97th St.
Edmonton, AB T5L 0L6
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Règlement sur l'immigration de 1978, DORS/78-172
2. (1) Dans le présent règlement,
"Classification nationale des professions" Le document intitulé Classification nationale des professions - le Guide sur les carrières et autres publications accessoires étant compris - publié par le ministre du Développement des ressources humaines, avec ses modifications éventuelles.