Date: 20030516
Docket: IMM-2188-01
Citation: 2003 FCT 615
OTTAWA, ONTARIO, this 16th day of May 2003
PRESENT: The Honourable Mr. Justice James Russell
BETWEEN:
MOHSEN YAGHOUBIAN
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application under subsection 18.1(1) of the Federal Court Act, R.S.C. 1985, c. F-7, for judicial review of a decision of a Canadian visa officer in Vienna, Austria ("Visa Officer") dated March 8, 2001 and communicated to Moshen Yaghoubian ("the Applicant") on April 4, 2001, wherein the Visa Officer refused his application for permanent residence. The Applicant seeks an order in the nature of certiorari quashing the decision and an order in the nature of mandamus requiring the Respondent's officials to continue with the processing of the permanent residence application of the Applicant in accordance with law.
FACTS
[2] The Applicant is a citizen of Iran. He is married to Sedigheh Yaghoubian and they have two sons. He applied for landing as an independent applicant under the category of Mechanical Engineer in September 1999.
[3] The Visa Officer interviewed the Applicant and his wife on February 20, 2001. On March 8, 2001, the Visa Officer denied the Applicant's permanent residence application.
THE VISA OFFICER'S DECISION:
[4] The Visa Officer refused the application for the following reasons:
Pursuant to subsection 8(1) of the Immigration Regulations, 1978, Independent applicants, the category in which you have applied, are assessed on the basis of education, vocational preparation, experience, occupational demand, arranged employment or designated occupation, demographic factors, age, knowledge of English and French languages and personal suitability. You asked to be assessed in the occupation Mechanical Engineer and were assessed based on the requirements for Mechanical Engineer (NOC 2132.0) and Marine Engineer (NOC 2148.1).
The units were allocated as follows:
Mechanical Engineer (NOC 2132.0)
Age: 10 Occupational factor 00 Specific vocational preparation: 17 Experience: 00 Arranged employment: 00 Demographic factor: 08 Education: 15 English: 09 French: 00 Bonus: 00 Suitability: 04
TOTAL: 63
Marine Engineer (NOC 2148.1)
Age: 10 Occupational Factor: 00 Specific Vocational Training: 17 Experience: 00 Arranged Employment: 00 Demographic Factor: 08 Education: 15 English: 09 French: 00 Bonus: 00 Personal Suitability: 04
TOTAL: 63
Applicants are required to achieve al least 70 points to be accepted. You therefore come within the inadmissible Class of persons described in Paragraph 19(2)(d) of the Immigration Act, and your application must be refused.
You asked to be assessed as a Mechanical Engineer. However, you have not performed a substantial number of the main duties required of a Mechanical Engineer or Marine Engineer.
I consider the units of assessment that you have earned are an accurate assessment of your ability to successfully establish in Canada.
Your application is therefore refused.
ARGUMENTS
Applicant's Submissions
[5] The Applicant submits that the appropriate standard of review for visa officer's decisions is reasonableness because they involve questions of mixed fact and law (Lu v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1907 (T.D.)).
[6] The Applicant submits that the issue in the case is the Visa Officer's assessment of the Applicant's Occupational Factor for which the Applicant was given 0 units and the Experience Factor for which the Applicant was given 0 units.
[7] Units of assessment should be awarded in these areas as per the Immigration Regulations, 1978, Schedule 1 under which points are awarded on the basis that the applicant meets the employment requirements for Canada and has performed a substantial number of the main duties as set out in the National Occupational Classifications ("NOC").
[8] In this case the Visa Officer refused the Applicant because he had not performed a substantial number of the main duties for his occupation. The NOC job description for Mechanical Engineers requires that they perform "some or all" of the main duties. This is logical given the specialization in many broad technical fields such as engineering. The reality of specializing within a particular occupation has also been recognized in Patel v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1983 (T.D.)(QL) and Bhatia v. Minister of Citizenship and Immigration), [2000] F.C.J. No. 98 (T.D.)(QL).
[9] The Visa Officer concluded that, because the Applicant's experience is in maintenance and repair, as opposed to design and research, he had not performed a substantial number of the duties. The Applicant submits that this was an error and was also internally inconsistent because the Visa Officer recognized that the Applicant met the Education and Training Factor, which requires two years work as a Mechanical Engineer for registration. Second, the requirement of experience in "some" of the main duties means only experience "in more than one" and does not require experience in "most", especially in the context of specialized professions such as engineering. Furthermore, the assessment ignores the Applicant's cumulative employment record. He has been working in the field since 1975.
[10] In addition, the Applicant submits that the Visa Officer erred in law in failing to take into consideration the positive informal Canadian Council of Professional Engineers ("CCPE") assessment. The Visa Officer makes no mention of the CCPE assessment in her reasons. This Court has recognized that the CCPE forms a part of the entire application package and must be considered (Wang v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 320 (T.D.); Patel, supra; Yang v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 324 (T.D.); Yao v. Canada (Minister of Citizenship and Immigration), [2000]_F.C.J. No. 325).
[11] The Visa Officer also erred in her assessment of the Applicant's personal suitability. She gave no reasons for considering the Applicant below average in personal suitability. The Applicant is highly skilled, educated in North America, fluent in English, and has a track record of job promotions and increasing responsibilities. It was an error to award him so few points.
Respondent's submissions
[12] The Respondent submits that the Court should only intervene in the statutory exercise of discretion if it is patently unreasonable or has not been exercised in good faith in accordance with the principles of natural justice, and where reliance has been placed upon considerations irrelevant or extraneous to the statutory purpose (Tanveer v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No.177 (T.D.)(QL); Tang v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 7 (T.D.)(QL); Singh v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 524 (T.D.)(QL)).
[13] It is the Respondent's position that the Visa Officer did not err in evaluating the Applicant's occupational experience. The Applicant bears the responsibility of convincing the Visa Officer that the issuance of a visa to him will not be in violation of the Immigration Act, R.S.C. 1985, c. I-2. The Visa Officer is entitled to determine that some of the duties for a NOC description are essential to an occupational assessment. Visa officers have discretion to interpret the NOC by giving greater weight to certain duties and responsibilities (Farooqui v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 714 (T.D.)(QL); Wu v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 4 (T.D.)(QL); Zhang v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 507 (T.D.)(QL); Madan v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1198 (T.D.)(QL)).
[14] The Respondent submits that, in this case, the Visa Officer noted that the Applicant was mostly engaged in maintenance and repair rather than the duties listed under Mechanical Engineer. Based on the evidence before her, this was a reasonable conclusion. The Visa Officer determined that certain of the NOC duties were essential and that the Applicant did not perform them and only performed a small segment of the duties required.
[15] The Respondent further submits that the Visa Officer did not err by failing to give weight to the CCPE package. This package is only an opinion that the Applicant might meet the requirements. The Visa Officer considered it but did not find that it assisted her in proving that he had the requisite experience necessary.
[16] Finally, the Respondent submits that the Visa Officer also did not err in her points assessment of the Applicant's personal suitability. She considered that he had not contacted employer's in Canada. This was a relevant consideration. His wife spoke little English and knew little about her career in Canada. The Applicant did not submit any information about his knowledge of Canada. The Visa Officer's decision in this respect was not unreasonable.
ISSUES
1. Did the Visa Officer err in her assessment of the Applicant's occupational experience?
2. Did the Visa Officer err in failing to take into account the informal positive assessment of the Applicant's occupation by the CCPE?
3. Did the Visa Officer err with respect to her conclusion in her assessment of the Applicant's personal suitability?
ANALYSIS:
Statutory Framework
[17] The relevant portions of section 8 of the Regulations read:
| 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
[...]
(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;
[...]
(2) A visa officer shall award to an immigrant who is assessed on the basis of factors listed in column I of Schedule I the appropriate number of units of assessment for each factor in accordance with the criteria set out in column II thereof opposite that factor, but he shall not award for any factors more units of assessment that the maximum number set out in column II thereof opposite that fact.
[...]
(4) Where a visa officer assesses an immigrant who intends to be a self-employed person in Canada, he shall, in addition to any other units of assessment awarded to that immigrant, award 30 units of assessment to the immigrant if, in the opinion of the visa officer, the immigrant will be able to become successfully established in his occupation or business in Canada. |
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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
[...]
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;
[...]
(2) Un agent des visas doit donner à l'immigrant qui est apprécié suivant les facteurs énumérés dans la colonne I de l'annexe I le nombre voulu de points d'appréciation pour chaque facteur, en s'en tenant au maximum fixé à la colonne III, conformément aux critères visés dans la colonne II de cette annexe vis-à-vis de ce facteur.
[...]
(4) Lorsqu'un agent des visas apprécie un immigrant qui compte devenir un travailleur autonome au Canada, il doit, outre tout autre point d'appréciation accordé à l'immigrant, lui attribuer 30 points supplémentaires s'il est d'avis que l'immigrant sera en mesure d'exercer sa profession ou d'exploiter son entreprise avec succès au Canada. |
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[18] Subsection 9(1) of the Regulations states:
| 9.(1) Subject to subsection (1.01) and section 11, where an immigrant other than a member fo the family class, an assisted relative or a Convention refugee seeking resettlement makes an application for a visa, a visa officer may issue an immigrant visa to him and his accompanying dependants if
(a) [...]
(b) where the immigrant and the immigrant's accompanying dependants intend to reside in a place in Canada other than the Province of Quebec, on the basis of the assessment of the immigrant or the spouse of that immigrant in accordance with section 8, and
(i) in the case of an immigrant other than an entrepreneur, an investor or a provincial nominee, he is awarded at least 70 units of assessment. |
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9. (1) Sous réserve du paragraphe (1.01) et de l'article 11, lorsqu'un immigrant, autre qu'une personne et appartenant à la catégorie de la famille, qu'un parent aidé ou qu'un réfugié au sens de la Convention cherchant à se réétablir, présente une demande de visa d'immigrant, l'agent des visas peut lui en délivrer un ainsi qu'à toute personne à charge qui l'accompagne si :
a) [...]
b) lorsqu'ils entendent résider au Canada ailleurs qu'au Québec, suivant son appréciation de l'immigrant ou du conjoint de celui-ci selon l'article 8 :
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Section 11 of the Regulations provides, in part, as follows:
| 11. (1) Subject to subsections (3) and (5), a visa officer shall not issue an immigrant visa pursuant to subsection 9(1) or 10(1) or (1.1) to an immigrant who is assessed on the basis of factors listed in column I of Schedule I and is not awarded any units of assessment for the factor set out in item 3 thereof unless the immigrant
(a) has arranged employment in Canada and has a written statement from the proposed employer verifying that he is willing to employ an inexperienced person in the position in which the person is to be employed, and the visa officer is satisfied that the person can perform the work required without experience; or
(b) is qualified for and is prepared to engage in employment in a designated occupation.
(2) Subject to subsections (3) and (4), a visa officer shall not issue an immigrant visa pursuant to section 9 or 10 to an immigrant other than an entrepreneur, an investor, a provincial nominee or a self-employed person unless
(a) the units of assessment awarded to that immigrant include at least one unit of assessment for the factor set out in item 4 of Column I of Schedule I;
(b) the immigrant has arranged employment in Canada; or
(c) the immigrant is prepared to engage in employment in a designated occupation. |
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11. (1) Sous réserve des paragraphes (3) et (5), l'agent des visas ne peut délivrer un visa d'immigrant selon les paragraphes 9(1) ou 10(1) ou (1.1) à l'immigrant qui est apprécié suivant les facteurs énumérés à la colonne I de l'annexe I et qui n'obtient aucun point d'appréciation pour le facteur visé à l'article 3 de cette annexe, à moins que l'immigrant :
a) n'ait un emploi réservé au Canada et ne possède une attestation écrite de l'employeur éventuel confirmant qu'il est disposé à engager une personne inexpérimentée pour occuper ce poste, et que l'agent des visas ne soit convaincu que l'intéressé accomplira le travail voulu sans avoir nécessairement de l'expérience; ou
b) ne possède les compétences voulues pour exercer un emploi dans une profession désignée, et ne soit disposé à le faire
(2) Sous réserve des paragraphes (3) et (4), l'agent des visas ne délivre un visa en vertu des articles 9 ou 10 à un immigrant autre qu'un entrepreneur, un investisseur, un candidat d'une province ou un travailleur autonome, que si l'immigrant :
a) a obtenu au moins un point d'appréciation pour le facteur visé à l'article 4 de la colonne I de l'annexe I;
b) a un emploi réservé au Canada; ou
c) est disposé à exercer une profession désignée. |
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[20] In essence, subsections 11(1) and (2) provide for the minimum awards of "1" in the occupational and experience factors, as set out in Schedule 1 to the Regulations. Sections 9 and 10, referred to in section 11, detail the minimum number of assessment points required overall. Here the Applicant needed 70 points overall to qualify for an immigrant visa.
[21] Schedule 1 to the Regulations sets out the basic criteria for each of the factors. The points under the experience factor are assessed at 2 points for every year of relevant experience the applicant is able to demonstrate, up to a maximum of 8. Therefore, a minimum of 1 year experience in the relevant area or industry would be required to meet the minimum standard required by the Regulations.
[22] Points in the occupation factor are awarded where the intended occupation of the Applicant appears on the relevant Occupation list, in addition to complying with the relevant requirements as listed in the NOC under that occupation. There is a maximum of 10 units possible for this factor; the maximum is only awarded where the Applicant has arranged employment. In order to meet the regulated minimum, the Applicant must demonstrate to the Visa Officer that he meets the requirements of the NOC and that he intends to practise in the indicated occupation when in Canada.
Standard of Review
[23] In this case, with respect to the points assessment and the personal suitability issue, the Applicant submits that the standard of review should be reasonableness and the Respondent submits that the standard of review should be patently unreasonable.
[24] There would appear to be some debate in this Court as to the appropriate standard of review to apply to decisions of visa officers.
[25] Some judges have applied a reasonableness simpliciter approach following Reed J. in Hoa, supra. In Hao, supra, Reed J. applied the pragmatic and functional approach set out in Baker and concluded that, because there is no privative clause and there is a statutory right of appeal, the balance is tipped towards reasonableness simpliciter.
[26] In Yin v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 985 (T.D.), O'Keefe J. analysed the standard of review of visa officer decisions using the pragmatic or functional approach as follows:
1. There is no privative clause and there is no requirement that leave be granted before a judicial review can proceed [...]. These facts suggest a lower level of deference.
2. The decision maker in this case is an immigration officer, as designated by the Minister pursuant to subsection 109(2) of the Act. Because this immigration officer is stationed outside of Canada, she is referred to as a visa officer. A visa officer processes visa applications on a regular basis, and has considerable expertise in this area. These factors suggest greater deference to a visa officer's decision.
3. Under section 11 and Schedule I of the Immigration Regulations, 1978, the visa officer must determine whether or not the applicant qualifies to obtain a visa to enter Canada. A visa officer has considerable discretion but he or she must be guided by Schedule I. In my view, this suggests that the visa officer's decision is entitled to greater deference by the Court, but not total deference.
4. The nature of the problem in this case is the determination of facts and the application of these facts to the regulatory guidelines. Thus, the question is one of mixed fact and law and as such, a level of deference akin to reasonableness simpliciter is appropriate.
[27] O'Keefe J. thus determined that the standard of review for visa officer's decision of applications for permanent residence status is reasonableness simpliciter.
[28] There is another line of reasoning, however, that applies the much more stringent standard of review as set out in Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2. In Kalia v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 998 (T.D), MacKay J. applied Maple Lodge Farms, supra. He wrote the following at paragraph 8:
In my view the standard of review of a discretionary decision of a visa officer in assessing experience of an intended immigrant in relation to a particular occupation is well settled. In accord with the decision of the Supreme Court of Canada in Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2, a court will not intervene in regard to the exercise of discretion vested by statute merely because the court might have exercised the discretion differently if it had been charged with the responsibility. Where it has been exercised in good faith, without reliance on irrelevant or extraneous considerations the courts should not interfere. Moreover, the decision in this case is essentially one of fact (see Mahoney J.A. for the Court of Appeal in Lim v. Canada (Minister of Employment and Immigration), (1991) 121 N.R. 241, 12 Imm L.R. (2d) 161, [1991] F.C.J. No. 8 (QL)(C.A.)). Where the decision in question is one of fact this Court will intervene only if it concludes the decision is patently unreasonable or in other words, as provided in s-s. 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7 as amended, where the decision is based on an erroneous finding of fact made in a perverse or capricious manner. (See: McKeown J. in Sharma v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1131, [2001]_F.C.J. No. 1562 (QL)(T.D.).
[29] The Federal Court of Appeal has also applied Maple Lodge Farms, surpa, as the appropriate standard of review in visa officer's decisions. It stated in To, supra, at paragraph 3:
Here the immigration officer was not satisfied that the appellant had either the business ability or the personal financial resources to establish a business in Canada. We agree with Jerome A.C.J. that the case does not justify judicial intervention. In Maple Lodge Farms Limited v. Government of Canada et al., [1982] 2 S.C.R. 2, at pages 7-8, McIntyre J. stated for the Court:
It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.
[30] In addition, the Court has the power to review the decision by the authority of the Federal Court Act, supra, paragraph 18.1(4)(a) which states:
| The Trial Division may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;
(d) based its decision or order on a erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
[...] |
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Les mesures prévues au paragraphe (3) sont prises par la Section de première instance si elle est convaincue que l'office fédéral, selon le cas:
a) a agi sans compétence, outrepassé celle-ci ou refusé de l'exercer;
b) n'a pas observé un principe de justice naturelle ou d'équité procédurale ou toute autre procédure qu'il était légalement tenu de respecter;
c) a rendu une décision ou une ordonnance entachée d'une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier;
d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose;
[...] |
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[31] In particular, paragraph 18.1(4)(d) allows the Federal Court to intervene if the determination was made in a perverse or capricious manner or without regard for the material before it.
[32] Another factor relevant to the consideration of the appropriate standard of review in this case is the nature of the question before the Court. In this regard, the Court is asked to review whether the Visa Officer properly applied the statutory NOC requirement to the Applicant's case. This is a question of mixed fact and law and weighs in favour of a standard of review of reasonableness simpliciter for the issue of the proper interpretation of the NOC requirements and their application to the Applicant. Muldoon J. discussed this in the case of Lu, supra, at paragraph 20:
The need to use a definition or meaning signals that the decision no longer concerns merely a question of fact but concerns the application of facts to statutory law. In Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, Iacobucci J. wrote:
Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.
The Applicant has asked the Court to review whether the visa officer erred in finding first, that her courses fail the educational standard set out under NOC chapter 2121 and second, that the degree in medicine is not included in the definition of the phrase "related discipline". The findings in respect to these issues are, therefore, ones of mixed fact and law.
The standard of review in Lim, supra was adopted solely in the context of finding of fact and does not bind this Court when dealing with questions of mixed fact and law. The appropriate standard may be determined, however, using the pragmatic and functional test; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 (hereinafter Pushpanathan). Pursuant to this test, the Court notes that the question is one of mixed fact and law and notes that there is no privative clause relevant to visa officer decisions. These facts militate against the Court showing deference to the visa officer's decision. Subsection 9(2) of the Immigration Act show clearly that the expertise of a visa officer lies in determining whether an applicant for permanent residence has satisfied the criteria set out in the NOC, and suggests that this Court should show deference to the visa officer's finding. That the visa officer is determining the rights of the applicant as opposed to dealing with a polycentric issue also favours deference being shown by this Court. On carefully balancing these factors this Court considers that the proper standard of review is that of unreasonableness.
[33] In my view, therefore, the appropriate standard of review with respect to the application of the NOC requirements in this case is reasonableness simpliciter.
Issue 1: Was the Visa Officer's decision with respect to the NOC criteria reasonable?
[34] The NOC describes the occupations of Marine Engineer (NOC 2148.1) and Mechanical Engineer (NOC 2132.0):
a) Mechanical Engineers must have a bachelor's degree in mechanical engineering and for senior positions must have experience. This occupation covers a variety of engineering jobs, including mechanical maintenance engineers. They may be involved in research, design and development of engines, and may perform duties relating to the evaluation, installation, operation and maintenance of mechanical systems. They may be employed by consulting firms, power generating utilities, and a range of manufacturing, processing and transportation industries. Job duties may include "some or all" of the following: research into feasibility, design, operation and performance of mechanisms, components and systems; preparation of material, costs and timing estimates, reports and design specifications for machinery and systems; design of plants, machines and components; supervision and inspection of installation, modification, and commissioning of mechanical systems; development of maintenance standards, schedules and programs and guidance to maintenance crews; investigation of mechanical failure or other problems; preparation of contract documents and tender evaluations; supervision of technicians, technologists and other engineers, review and approval of designs, calculations and costs estimates.
b) Marine Engineers are placed within the occupational category of "other engineers". A bachelor's degree in engineering is required. Marine and naval engineers design and develop marine vessels, propulsion systems, and related systems and equipment and oversee the building, maintenance and repair of vessels and marine systems.
[35] The evidence before the Visa Officer with respect to the Applicant's experience was as follows:
· The Applicant graduated in 1982 with a Bachelor of Science in Mechanical Engineering from Texas A & M University.
· The Applicant was employed with the Iranian Naval Force from 1982 to 1988 as a marine engineer where he supervised a crew of men responsible for maintenance of diesel engines, including diagnosis of problems and engine repair.
· From 1989 to 1996 the Applicant worked at a naval shipyard as a project technical manager. He indicated that he was responsible for removing engines from ships, transporting them to the shop for repair and maintenance, disassembling, overhauling and reassembling the engines, and then testing and returning them to the ships.
· In 1998 the Applicant began working for the Persian Gulf Shipbuilding Company where he continues to work today. He is responsible for 110-120 employees, overseeing the repair, installation and maintenance of ships.
[36] Based on this experience, the Visa Officer determined that the Applicant did not qualify as either a mechanical or a naval engineer. The Visa Officer determined that "essential" duties of either category involve research, design and development of mechanical systems. The Applicant's description of his employment experience lacked these duties, focussing on maintenance and repair.
[37] The Applicant submits that the Visa Officer erred by requiring specific duties as set out in the NOC when the NOC states that only a substantial number of some of the duties are required. The Applicant argues that the very nature of engineering involves inevitable specialization and therefore requires a flexible and broad interpretation of the NOC requirements.
[38] There is case law to support the Applicant's position. Tremblay- Lamer J. held in Patel, supra, that a visa officer cannot require all the duties specified in the NOC and that flexibility is required. Similarly, in Bhatia, supra, Culen J. stated that a candidate does not have to perform the full range of duties listed in the NOC. This is especially the case where the job is a specialized one such as engineering. Muldoon J. discussed specialized professions in Lu, supra, at paragraph 34:
It is unrealistic for a biologist, microbiologist, immunologist or bacteriologist to be expected to perform a majority of the enumerated duties. It is also unrealistic to expect every scientist to perform more than a small portion of the duties that which are listed in any of the chapters. The nature of specialisation which comes with a scientist's work precludes this. For all these reasons, the visa officer's error in interpreting the requirements set out in NOC chapter 2121 is fatal to his decision.
[39] Furthermore, the Applicant position is buttressed by the specific language of the NOC requirements. It states that engineers "may" have been involved in research, design and development and that the duties "may" involve "some" of those listed. The language of the NOC specifically indicates the high degree of variation in the duties and responsibilities of engineers.
[40] But the Respondent also cites convincing case law that counters the Applicant's submissions. The Respondent indicates that visa officer's are entitled to determine the essential duties under the NOC requirements and that this is a matter of judgement and discretion. Reed J. found in Wu, supra, that "the fact that not all duties in a CCDO description need be performed does not mean that the ability to perform some are not essential to an occupation"(paragraph 3). In Zhang, supra, Rouleau J. upheld a decision of a visa officer that decided that the Applicant did not have the necessary occupational experience because he was not involved in design. He stated at paragraph 14:
Given the nature of the Applicant's responses during the interview, it was not unreasonable for the Immigration Officer to conclude that the Applicant did not have the requisite experience described in the NOC. It is clear from the CAIPS notes that the Applicant confirmed that he was in charge of maintenance and repair of ships and supervised ship building; that, although he made some alterations for equipment installation, he did not design ships or equipment.
The Immigration Officer did not mechanically adhere to the NOC description or require the Applicant to perform all of the tasks in the description to qualify (See Muntean v. Minister of Citizenship and Immigration (1995), 31 Imm. L.R. (2d) 18 (F.C.T.D.). Rather, as discussed in Wu v. Canada (Minister of Citizenship and Immigration)_[1999] F.C.J. No. 4, the Immigration Officer exercised her discretion to determine that some skills were essential to the occupation [of marine engineer].
[41] One distinction between Zhang, supra, and the case at bar is that Zhang, supra, only focussed on the Marine Engineer job description and not the Mechanical Engineer category where the language of the description is much more flexible. Furthermore, Zhang, supra, adopted a standard of review of patent unreasonableness as opposed to reasonableness simpliciter.
[42] It has to be admitted, however, that the case law is not entirely clear on this issue. We appear to have a situation where professional specialization suggests that an applicant cannot be expected to have done everything in the range of possible duties but a visa officer is, nevertheless, allowed a discretion to determine that some skills are essential to an occupation. On the facts of the present case, the question then becomes whether the Visa Officer's decision that the absence of research, design and development in the Applicant's background, and his focus instead upon maintenance and repair, meant that it was unreasonable for the Visa Officer to conclude that the Applicant lacked essential qualifications under the legislation.
[43] Looking at the facts of the present case (the Applicant has been a senior mechanical engineer for over 19 years with significant cumulative experience in his field), to accept the Visa Officer's decision would be tantamount to accepting that design, research and development must always be present in an engineer applicant's background. Given the nature of the engineering profession, and the flexible wording of the NOC description, this is not a reasonable position to take. Indeed, it is patently unreasonable. And if a Visa Officer decides to assert that some activities are "essential" and some are not in a particular category and on a particular set of facts, some justification and rationale needs to be offered for such a distinction. Otherwise, we will never know whether the officer is appropriately exercising a discretion, or merely succumbing to the temptations of arbitrary choice.
Issue 2: Did the Visa Officer err in failing to take into consideration the positive CCPE assessment.
[44] The Visa Officer stated in her affidavit:
In response to the Applicant's Affidavit, at paragraph 8, the assessment obtained by the Applicant from the Canadian Council of Professional Engineers (CCPE) is an opinion from the registered body of engineers in Canada that the Applicant might meet the requirements. This assessment was not a factor in forming my opinion that the Applicant has not performed a substantial number of the main duties of a Mechanical or a Marine Engineer [Emphasis added].
[45] Counsel for the Respondent invited me to take a restrictive interpretation of these words in the context of the whole decision. I cannot agree.
[46] Federal Court case law establishes that a positive CCPE assessment is a relevant factor in determining whether a candidate meets the NOC criteria for engineers. Lutfy A.C.J. stated in Wang, supra, at paragraph 15:
The applicant is correct, however, in asserting that the CCPE assessment forms a part of the information, together with the applicant's curriculum vitae, description of employment tasks and letter of reference, which must be considered by the visa officer in determining whether the candidate meets the NOC criteria for engineers. Put differently, the visa officer's negative decision concerning the applicant's classification as an engineer must have been made with due regard for the information supplied by applicant, including the CCPE assessment.
[47] It may well be the case that the precise weight given to the assessment is up to the visa officer, but in the case at bar the Visa Officer specifically stated in her affidavit that the CCPE assessment was not a factor in her decision. She did not make her decision with due regard to the relevant evidence before her. This was a reviewable error.
Issue 3: Did the Visa Officer err in her assessment of the Applicant's personal suitability?
[48] The Visa Officer did not err in this respect. The assessment of an applicant's personal suitability is highly discretionary. While a visa officer cannot take into account irrelevant factors in this assessment, the precise point score awarded in this area is highly fact specific and should not be interfered with except in the most egregious of circumstances.
[49] Mackay J. stated in Kompanets v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 726 (T.D.)(QL) at paragraph 11:
The factor of personal suitability and the points awarded for it is within the discretion on the part of the visa officer...There is nothing in the record or in the argument raised on this application to lead to a conclusion that there was no reasonable basis for the visa officer to assess the applicant as he did. Reasonable people may disagree on the points awarded, but significant deference must be accorded to the visa officer's discretionary finding of fact. No error of law or of jurisdiction has been shown and the finding on personal suitability should not be interfered with.
[50] Applying this analysis to the case at bar, I do not believe that the Visa Officer made an unreasonable decision with respect to personal suitability.
Conclusion
[51] For the above reasons, this application for judicial review is granted and the matter shall be returned for reconsideration.
ORDER
THE COURT HEREBY ORDERS THAT:
1. The application for judicial review is allowed, the March 8, 2001, decision is set aside and the matter is remitted for reconsideration by a different Visa Officer.
2. No question will be certified.
"James Russell"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-2188-01
STYLE OF CAUSE: MOHSEN YAGHOUBIAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: APRIL 9, 2003
REASONS FOR ORDER BY: RUSSELL, J.
DATED: MAY 16, 2003
APPEARANCES BY: Ms. Barbara Jackman
For the Applicant
Ms. Mary Matthews
For the Respondent
SOLICITORS OF RECORD: Barbara Jackman
Barrister and Solicitor
596 St. Clair Avenue West, Unit 3 Toronto, Ontario
M6C 1A6
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date:20030506
Docket: IMM-2188-01
BETWEEN:
MOHSEN YAGHOUBIAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER