Date: 20001025
Docket: IMM-5363-99
Ottawa, Ontario, this 25th day of October, 2000
| PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE |
BETWEEN:
PINKY H. MIRCHANDANI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
BACKGROUND FACTS
[1] This is an application for judicial review of the decision of visa officer, Ms. Margaret Kingsley, rendered September 30, 1999, wherein the application for an immigrant visa was refused.
[2] The applicant is a citizen of India and a resident of Kuwait, currently employed by Kuwait Oil Tanker Company. She had previously obtained a Bachelor of Commerce degree from Bombay University, specializing in accounting and auditing. She had worked for 14 years as a "market researcher" for the Kuwait Oil Tanker Company. She apparently began employment as a secretary and "worked her way up" to her current position.
[3] In her affidavit, the applicant indicates that her duties at Kuwait Oil Tanker Company were as follows:
[ · ] research into international petroleum markets to determine distribution networks;
[ · ] analyzing current international demands for Kuwaiti crude oil and by-products;
[ · ] analyzing research findings;
[ · ] assessing potential growth areas;
[ · ] liaising with shipping agents, port authorities and government ministries to ensure all documentation for oil shipments are in order
[1] On March 9, 1997, the applicant applied for an immigrant visa in the independent category. The applicant's husband and two daughters were also listed as immigrants on the application. The applicant sought assessment as an Economic Development Officer and Marketing Researcher and Consultant: NOC 4163.
[2] As there was some question as to what exactly the applicant's employment and job responsibilities were, a personal interview was thought to be necessary. The applicant attended a personal interview in Kuwait on September 14, 1999.
[3] At the interview, the applicant reiterated her desire to be assessed under NOC 4163 and not 4162 -- which had been indicated on her application through a typographical error. The visa officer questioned the applicant about her duties, asking, inter alia, on what basis the company did market research studies. According to paragraph 12 of the applicant's affidavit, she responded:
| I work with a team which does market research and as part of that team I do market studies based on the latest trends in tank design, rates governing the hire rates of the tankers and the movement of tankers given their age and capacity. I also assess the possibilities of carrying other hydrocarbons besides the crude oil, gas and byproducts which we already transport. |
The applicant further indicated that she prepared memoranda and reports to company management relating to the market studies. The visa officer asked the applicant if she worked with "statistical formulae". According to the affidavit of the applicant, the visa officer indicated at the end of the interview that the applicant's experience was not compatible with the category in which she had applied for assessment, but that she would "find a suitable category".
[4] The visa officer refused the application for immigrant visas. The applicant was assessed under NOC 4163 as follows:
| Age 10 |
| Occupational Demand 01 |
| Specific Vocational Preparation 17 |
| Experience 00 |
| Arranged Employment 00 |
| Demographic Factor 08 |
| Education 15 |
| English 09 |
| French 00 |
| Bonus 00 |
| Personal Suitability 05 |
| TOTAL 65 |
As the applicant had received zero units of assessment for "Experience" in her intended occupation, an immigrant visa was refused. The applicant also had received only 65 units of assessment in total.
[5] The affidavit of the visa officer at paragraph 10 indicates that the visa officer understood the applicant's work as:
| . . . preparing reports for various departments of Kuwait Oil Tankers. These departments would request information on a certain proposed project or some aspect of the shipping industry, and the information would be gathered and presented by the Applicant's section. The Applicant's input was strictly narrative after reading various reports and publications. Other members of the team with more technical expertise provided the more technical information and analysis. |
[6] The refusal letter of the visa officer stated in part as follows:
| Your qualifications and experience were reviewed with you at your interview. You stated that you are one of five persons in the planning and projects section of Kuwait Oil Tankers -- a branch of Kuwait Petroleum Company which owns 32 tankers used to transport oil to end users. Your section is responsible for providing information on various aspects of the shipping industry in response to requests from other departments within Kuwait Oil Tankers. You confirmed that the reports prepared by your department are a team effort, and that your input, including any comparisons made, is narrative, based on information you glean from reading various resource material. From the information provided at your interview and on your application, some aspects of the duties of your current position relate to some areas of the occupation of marketing researchers and consultants. However in your experience to date, you have not performed the majority of duties of this occupation. Consequently, you cannot be awarded units for experience in this occupation. |
APPLICANT'S ARGUMENTS
[7] The applicant argues that the visa officer made an unreasonable finding in deciding that the applicant did not have experience sufficient to award units of assessment under NOC 4163. The applicant argues that the visa officer imported her own criteria of what was required and went beyond that which was indicated on the NOC classification, specifically, that the visa officer negatively viewed the "team effort" that was inherent in the applicant's work. The applicant further argues that the visa officer erred in law by seeming to require that the applicant perform a "majority" of the duties of a marketing analyst in order to receive assessment for experience in the occupation.
[8] The applicant also argues that the visa officer was in fact under the impression during the interview that the applicant was applying under NOC 4162 (which classification was indicated on the application through typographical error) and therefore did not properly assess the applicant under NOC 4163.
[9] The applicant further argues that the visa officer breached a duty of fairness owed to the applicant by not informing her of her concerns about the applicant's experience and giving her an opportunity to respond to these concerns.
RESPONDENT'S ARGUMENTS
[10] The respondent argues that the visa officer correctly concluded that the applicant did not perform sufficient duties of NOC 4163 to achieve any units of assessment in this occupation.
[11] The respondent is apparently also arguing that the decision of the visa officer was "discretionary" and therefore subject to a reasonableness simpliciter standard of review.
[12] The respondent finally argues that the visa officer met the requirements of procedural fairness by indicating to her that she did not appear to meet the requirements of NOC 4163. There is not a requirement to inform the applicant that the officer is not convinced, but if there are specific concerns, these should be indicated.
[16] ISSUES
1. What is the standard of review to be applied to the decision of the visa officer?
2. Did the visa officer make a reviewable error in her process of assessing the applicant?
3. Did the visa officer err in law in misinterpreting the requirements for a Market Researcher under NOC 4163 or by failing to consider relevant facts about the applicant's work experience and by taking into account irrelevant considerations about the applicant's work experience?
4. Did the visa officer breach a duty of fairness owed to the applicant by failing to inform her of the concerns about the applicant's market research being part of a team effort and the manner in which the applicant conducted her market research and by failing to give the applicant an opportunity to respond to any concerns which she had about these aspects of the applicant's work experience.
APPLICABLE LAW
| [17] The National Occupation Classification ("NOC") has been adopted as the |
standard to apply to assessing various occupations. NOC 4163 (Economic Development Officers and Marketing Researchers and Consultants). NOC 4163 provides in part as follows:
· . Economic Development Officers and Marketing Researchers and Consultants perform some or all of the following duties:
· . Develop policies and administer programs to promote industrial and commercial business investment in urban and rural areas
· . Conduct social or economic surveys on local, regional or national areas to assess development potential and future trends
· . Plan development projects with representatives of a wide variety of industrial and commercial enterprises, business associations and government agencies
· . Respond to enquiries from members of the business community concerning development opportunities
· . Review commercial or industrial development proposals and provide advice on procedures and requirements for government approval
· . Conduct surveys and analyze data on the buying habits and preferences of wholesale or retail consumers
· . Conduct comparative research on marketing strategies for industrial and commercial products
· . Develop social and economic profiles of urban and rural areas to encourage industrial and commercial investment.
A portion of NOC 4162 (Economists and Economic Policy Researchers and Analysts) states as follows:
· . study mathematical formulae and statistical techniques and apply them to the testing and quantifying of economic theories and the solution of economic problems
· . examine statistical data on the exchange of goods among nations
| [18] Issue 1 |
What is the standard of review to be applied to the decision of the visa officer?
I am of the opinion that the standard of review that should be applied to the visa officer's decision in this case should be reasonableness simpliciter (see Baker v. Canada (M.C.I.) (1999) 174 D.L.R. (4th) 193 (S.C.C.).
| [19] Issue 2 |
Did the visa officer make a reviewable error in her process of assessing the applicant?
I have reviewed the CAIPS notes of the visa officer, the affidavits filed in the application and the decision letter of the visa officer and I am of the opinion that the visa officer did make a reviewable error in her processing of the application. I disagree with the applicant that the visa officer did make an error by processing the applicant under NOC 4162 instead of NOC 4163. I am of the opinion that the visa officer assessed the applicant under NOC 4163 as she was requested to do. Further, I am in agreement that the onus is on the applicant to establish that she fulfilled the requirements of the legislation (Immigration Act, R.S.C. 1985, c. I-2, subsection 8(1)).
| [20] That, in my opinion, is not the end of the matter. The visa officer, according to |
the applicant, stated at the end of the interview that she would:
| . . . find a suitable category for me when she was reviewing my application after the interview. |
There is no duty on a visa officer to find a suitable category for an applicant, and a visa officer need not "provide the applicant with a running score, or to make the applicant's presentation for him" (Li v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1269, Docket IMM-4710-98 (August 11, 1999) (F.C.T.D.)). I am of the view that once the visa officer informed the applicant that she would find a suitable category for the applicant, she was at the very minimum, required to look for this suitable category. This is not because she was required to so do but because she undertook to the applicant to find a suitable category for her. The visa officer must follow the through on her promise. I have reviewed the CAIPS notes and the decision letter of the visa officer to the applicant and I cannot find any evidence that any attempt was made to find such a suitable category for the applicant. In my opinion, this is a breach of procedural fairness and the application for judicial review must be allowed.
| [21] Because of my disposition of the second issue, it is not necessary for me to deal |
with the remaining issues raised in the application.
| [22] I have reviewed the question submitted for certification and I do not find that it is |
a serious question of general importance, therefore I am not prepared to certify a question.
ORDER
| [23] IT IS ORDERED that the application for judicial review is allowed. |
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
October 25, 2000