Date: 20010129
Docket: IMM-3023-00
BETWEEN:
DR. AMRIK S. SEKHON
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This application is for judicial review of a decision of Martin Israel Levine, Immigration Officer formerly at the Canadian Embassy in Seattle, Washington (hereinafter "the Immigration Officer"), dated May 16, 2000, wherein he refused Dr. Amirk S. Sekhon's (hereinafter "the Applicant") application for permanent residence on the basis that he did not obtain sufficient units of assessment to qualify for immigration to Canada under the requirements for National Occupational Classification 1471.0 (hereinafter "NOC 1471.0") and was inadmissible under paragraph 19(2)d) of the Immigration Act, R.S.C. 1976-77, ch. 52 (hereinafter "the Act").
[2] In 1999, the Applicant applied and was refused permanent residency under the Entrepreneur Category.
[3] On June 21, 1999, the Applicant submitted an application for permanent residence under the Independent Category with arranged employment under the Family Business Program. The Applicant did not identify any recognized classification under the National Occupation Classification for which he wanted to be assessed. He did identify "Businessman" as his intended occupation in Canada.
[4] On April 27, 2000, the Applicant attended the Canadian Embassy in Seattle, Washington for an interview. The Immigration Officer assessed the Applicant's application under NOC 1471.0 - "Shippers and Receivers".
[5] The Applicant was awarded the following units of assessment:
[6] On May 16, 2000, the Immigration Officer informed the Applicant that he had obtained insufficient units of assessment in order to qualify for immigration to Canada.
[7] Whether the Immigration Officer erred in assessing the Applicant under NOC 1471.0 - Shippers and Receivers.
[8] Whether the Immigration Officer erred in awarding the Applicant "0" units of assessment under the Occupational Factor.
[9] The Applicant submits that the Immigration Officer erred in selecting NOC 1471.0. The classification is not one that reasonably accords with the job description under which he applied. Rather, the Immigration Officer ought to have applied NOC 0721-Facility Operations Manager for which the Applicant's job description with Euro Asia accords exactly.
[10] The Applicant submits that the Immigration Officer also erred in not providing him with a coherent explanation for the choice of "Shippers and Receivers" over that of "Facility Operations Manager".
[11] The Applicant further submits that the Immigration Officer erred in awarding zero units of assessment under the Occupational Factor. The Applicant contends that the Immigration Officer in not awarding any units of assessment made the following determinations:
| a) he did not meet the employment requirements for a Shipper and Receiver as set out in NOC 1471.0; or |
| b) he had not performed a substantial number of the main duties of a Shipper and Receiver as set out in NOC 147.0; or |
| c) he would not follow the duties of NOC 1471.0 in his employment in Canada. |
[12] The Applicant submits that these determinations are inconsistent with the determinations made under the Arranged Employment Factor and the Experience Factor and amount to an error on the face of the record. The Visa Officer allowing 10 points under the Arranged Employment Factor had to conclude that the Applicant had the experience and aptitudes to perform the job and the finding under the Experience Factor and an allocation of 4 points agreed that he had two years of experience in that job. However, the allocation of 0 point under the Occupation Factor contradicts the other determinations since one must conclude that he did not have the experience nor the aptitudes to perform the job. The Applicant submits that it cannot logically be concluded, under the Arranged Employment Factor, that the Applicant "has in his work experience and aptitudes sufficient abilities" to "successfully fill the position" under which he applies while, on the other hand, determining under the Occupation Factor that he either does not meet the employment qualifications or has not performed a substantial number of the job's main duties or that he will not follow those duties.
[13] The Respondent submits that the Applicant has provided no evidentiary basis for the argument that the Immigration Officer's selection of NOC 1471.0 was unreasonable. The Immigration officer, in his affidavit, states that he selected this classification after a careful assessment of the information presented by the Applicant. The Applicant had the opportunity, but chose not to cross-examine the Visa Officer on his affidavit and therefore the statements are uncontested and the Applicant's argument has no foundation.
[14] Further, the Respondent argues that the Applicant had not indicated under which NOC classification he wished to be assessed. On a review of the application and based upon the information presented by the Applicant at the interview, the Immigration Officer determined that the Applicant's work experience best fit the occupation of Shippers and Receivers (NOC 1471.0). The Applicant's own evidence was that he would assist his relatives with an export company-dealing with lumber/pulp and grain. At the interview, the Applicant stated that "the business in Canada transloads raw materials for export and also imports. Would work as co-manager, director and co-ordinator between different operations managers. Maintain inventory of spare parts". He also stated that he would "easily assimilate into the operation... be working alongside my sister-in-law and brother-in-law and will not find it hard to grasp Canadian business practices and the nuances of bulk export shipments, with the help of ... family members". The Immigration Officer accepted that the Applicant "has fairly large-scale inventory management experience as well as experience operating his own farm". As such, the Applicant was assessed under the NOC classification that was appropriate in light of the evidence presented regarding his work and experience and proposed duties at the Company.
[15] The Respondent further submits that there is no evidence in the Applicant's Record to support the assertion that NOC 0721 was even applicable to the Applicant's experience or duties he was to undertake at the company. The Respondent argues that a review of NOC 0721 reveals that this classification does not apply to the duties the Applicant stated he would be performing at the Company.
[16] Finally, the Respondent states that the Immigration Officer reasonably awarded zero units of assessment to the Applicant under the Occupational Factor as NOC 1471.0 does not appear on the General Occupations List as is required for units of assessment to be awarded.
[17] The Applicant seeks an order setting aside the decision of the Immigration Officer and referring the matter back to a different immigration officer for reconsideration with a direction that it be based upon NOC Classification 0721-Facility Operation Manager.
[18] In To v. Canada (Minister of Employment and Immigration), [1996] F.C.J. No. 696 (unedited), the Federal Court of Appeal held that the appropriate standard of review of the discretionary decisions of visa officers with respect to immigrant applications was the same as that enunciated in Maple Lodge Farms Ltd. v.Canada, [1982] 2 S.C.R. 2, where MacIntyre, J., stated the following:
| 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, were 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. |
[19] This has been confirmed by this Court in Tajammul v.Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 259. In light of the Supreme Court of Canada's decision in Baker v.Canada (Minister of Citizenship and Immigration), [1999] 2 R.C.S. 817, it would seem that the appropriate standard of review should be reasonableness simpliciter.
[20] Upon reviewing the evidence, I am of the view that the Applicant has failed to show a basis for interfering with the decision. The discretion exercised by the Immigration Officer met with the required standard. The statutory discretion has been exercised in good faith and, in accordance with the principles of natural justice. Irrelevant or extraneous considerations were not relied on.
[21] In the case at bar, the Applicant identified "Businessman" in his application as his intended occupation. "Businessman" is not a recognized occupation under the NOC. From a review of the record, the Applicant did not identify during the interview any occupation or alternative occupation for which he wanted to be assessed. Given this fact, I agree with the Respondent that the Immigration Officer was not under any obligation to continue his assessment as the application was incomplete. The fact that the Immigration Officer selected an occupation that, according to his evaluation of the evidence, was appropriate does not render the Immigration Officer responsible for making a choice that would allow the Applicant to meet the requirements for the issuance of a visa.
[22] It is trite law that the burden falls on the Applicant to satisfy the Immigration Officer that he meets the requirements of the Immigration Act and the Immigration Regulations, 1978. As discussed by Pelletier J. in Wahid v.Canada (Minister of Citizenship and Immigration) [2000] F.C.J. No. 1949 (QL), the fact that a visa officer selects an occupation can not have the effect of shifting this burden:
| One could make the argument that since the Visa Officer effectively selected the applicant's occupation it was incumbent upon her to select one in which his chances of selection were the highest. But that has the effect of shifting the onus from the applicant to the Visa Officer. It is the applicant who must satisfy the Visa Officer that he satisfies all the requirements of the Immigration Act and Regulations. His failure to designate an occupation might well have been treated as a barrier to the further processing of his application. The fact that an assessment was carried out in spite of the defect cannot have the effect of making the Visa Officer responsible for not making a choice for the applicant but also making the perfect choice. |
[23] Under classification 1471 - Shippers and Receivers, we find the following:
| Examples of titles classified in this group |
| Freight receiver, Freight shipper, Import-freight clerk, Receiver, Shipper, Shipper/receiver, Shipping agent, Shipping and receiving clerk. |
Shippers and Receivers perform some or all of the following duties:
| - Determine method of shipment and prepare bills of lading, invoices and other shipping documents |
| Evidence - ... he will not find it hard to grasp Canadian business practices and the nuances of bulk export shipments... |
| - Assemble containers and crates, pack goods to be shipped and affix identifying information and shipping instructions |
| Evidence - ... duties included ordering, handling deliveries... |
| - Oversee loading and unloading of goods from trucks or other conveyances |
| Evidence - ...Mr. Sekhon will supervise unloading of railcars and make sure the right product is loaded into the right containers. Also, all paperwork is complete and no damaged product leaves our terminal to avoid claims, and products reaches destination on time... |
| - Inspect and verify incoming goods against invoices or other documents, record shortages and reject damaged goods |
| Evidence - ...Also, all paperwork is complete and no damaged product leaves our terminal to avoid claims, and products reaches destination on time... |
| - Unpack and route goods to appropriate storage areas |
| Evidence - ...Duties include ordering, handling deliveries, making bank deposits, staff management, paying accounts, dealing with customs... |
| - Maintain internal record-keeping systems |
| Evidence - ...Duties include ordering, handling deliveries, making bank deposits, staff management, paying accounts, dealing with customs, marketing, and dealing with customers... |
| - May operate forklift, hand truck or other equipment to load, unload, transport and store goods |
| This is optional, not obligatory. |
[24] The letter sponsoring and offering this Applicant employment indicates "Euro-Asia Terminals Inc. which has a bulk shipping terminal in Vancouver. The company deals in the export of pulp, lumber, lead, zinc and grain.
[25] Under classification 0721 - Facility Operation Managers, we find the following:
| Examples of titles classified in this group |
| Airport manager, Arena manager, Canal superintendent, Convention centre manager, Facility operation manager, harbour master, Marina manager, Recreational facility manager, Shopping mall manager, Warehouse manager |
| Facility Operation Managers perform some or all of the following duties: |
| - Plan, organize, direct and control the operations of commercial, transportation and recreational facilities |
| - Oversee the leasing of facility space and the development of marketing strategies |
| - Plan, organize and direct administrative services such as signage, cleaning, maintenance, parking, safety inspections, security and snow removal |
| - Oversee the maintenance and repair of machinery, equipment and electrical and mechanical systems |
| - Plan and manage the facility's operation and maintenance budget |
| - Prepare or oversee the preparation of reports and statistics related to area of responsibility |
| - Recruit personnel and oversee their training |
[26] When comparing the two categories, I am convinced that the Immigration Officer acted reasonably in selecting the occupation for which to assess his application. He took into consideration the material submitted by the Applicant and the answers provided during the interview. As such, the selection of NOC 1471.0 instead of NOC 0721, for which the Applicant now submits was more appropriate, does not, in my opinion, amount to a reviewable error.
[27] As submitted by the Respondent, occupations which are not on the General Occupations List receive no units of assessment. NOC 1471.0 does not appear on the list and therefore the Immigration Officer did not err in awarding the Applicant zero units of assessment.
[28] In light of the foregoing, this application is dismissed.
JUDGE
OTTAWA, Ontario
January 29, 2001