Date: 19991213
Docket: IMM-6610-98
OTTAWA, ONTARIO, THIS 13th DAY OF DECEMBER 1999
PRESENT: MR. JUSTICE J.E. DUBÉ
BETWEEN:
NABEEL ABBAS
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
The application is dismissed.
Judge
Date: 19991213
Docket: IMM-6610-98
BETWEEN:
NABEEL ABBAS
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
DUBÉ J.
[1] This application is for the judicial review of a decision made by visa officer Mona Fahmy on September 1, 1998, pursuant to s. 82.1 of the Immigration Act ("the Act").
[2] The applicant, a citizen of Yemen, applied for permanent residence status as an Electrical Engineer under the independent category through the Immigration Regional Program Centre in Buffalo, New York. The application was subsequently transferred to the Canadian Embassy in Cairo, Egypt.
[3] The applicant graduated from the Institute of Mechanical Engineering in Varna, Bulgaria, where he received an M.Sc. in Electrical Engineering. His engineering qualifications have been accepted by the Canadian Council of Professional Engineers. In 1985, he worked for Yemenia Airlines as an engineer in the radio department and progressed to the position of "Foreman" which means supervisor. His work consisted of testing and repairing the communication and navigation equipment of aircraft. In his interview with Ms. Fahmy he mentioned that he supervised mechanics. However, in his affidavit in support of this application he stated that he was supervising three engineers and four technicians.
[4] In the course of the interview the visa officer followed the National Occupational Classification ("NOC") Handbook. She concluded that he did not fulfil most of the work requirements provided in NOC 2133. Instead, she found that the applicant was doing most of the main duties of a technician. According to her notes the applicant agreed that the description and main duties of an Electrical Engineering Technician better described his work duties. Consequently, she assessed him as an Electrical Engineering Technician and he agreed.
[5] The applicant worked for Yemenia Airlines for 10 years, and then went to the United States where he spent 20 months, but he did not work during that period. He has never visited Canada and has never looked into the employment opportunities in this country. His knowledge of Canada is very limited. The visa officer awarded him 67 units of assessment, whereas 70 are needed for admission.
| Age 10 |
| Occupational Factor 01 |
| Specific Vocational Points 15 |
| Experience 06 |
| Arranged Employment/Designated Occupation 00 |
| Demographic Factor 08 |
| Education 16 |
| Knowledge of English and French 06 |
| Bonus 00 |
| Personal Suitability 05 |
| Total points achieved 67 |
[6] The applicant"s counsel submitted that the visa officer committed three errors as follows.
[7] First, in her letter of September 1, 1998, she denied the applicant"s application on the ground that "You are not qualified to work in this occupation in Canada as you do not have the experience of the job requirements as described in the National Occupational Classification code (2133) for Electrical Engineer". Under subsection 8(1) of the Immigration Regulations ("the Regulations") the criteria to be used is whether the immigrant "will be able to become successfully established in Canada" and not whether he has "the experience of the job requirements".
[8] In my view, the visa officer did not commit an error. Paragraph 8(1) of the Regulations goes on to state that "a visa officer shall assess that immigrant ... on the basis of each of the factors listed in column I of Schedule I;" which is precisely what she did.
[9] Second, the applicant was not given the opportunity to respond, especially where she transferred him for classification for Electrical Engineer (2133) to Electrical Engineering Technician (2241.2). Faced with the decision of a dominant person in a position of authority he was not really given the opportunity to express his concerns and provide information.
[10] However, a review of the visa officer"s notes and her own cross-examination do not reveal that he was denied the opportunity to express his concerns, if any. It appears that he agreed with the visa officer. He did not fulfill the criteria for the position of an engineer as "his experience is that of electrical engineering technician". In fact, she decided that he met the criteria for that classification, but there is a very low demand for that occupation in Canada.
[11] Third, the visa officer was confused in her selection criteria for the two classifications, and her interpretation of the applicant"s previous experience. After all, the applicant worked as an engineer for Yemenia Airlines, the national airline of Yemen, in the radio department and continued to be so employed for 10 years as an engineer. He progressed to the position of foreman where he supervises other engineers and technicians. In addition to his supervisory role his duties involved monitoring and reviewing all radio specifications, supervision, installation and testing of new radio systems for aircraft dealing with such sophisticated aircrafts as Boeing 737 and Airbuses. The applicant submits that the visa officer did not understand his duties as an engineer, nor his role as a radio engineer. He argues that the description of an Electrical Engineer Technician does not accurately reflect his duties.
[12] These issues are questions of fact and the visa officer enjoys a large discretion in the matter. The Federal Court of Appeal in Chiu Chee To v. M.C.I.1 has recently confirmed that the appropriate scope of judicial review of the exercise of discretion by a statutory authority is the one enunciated by the Supreme Court of Canada in Maple Lodge Farms Limited v. Government of Canada, et al.2 which stated as follows:
| 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. |
[13] It is clear in the instant case that the visa officer exercised her discretion in good faith. There is no evidence that the principles of natural justice have been violated, or that considerations irrelevant or extraneous to the statutory purpose of the Act have been relied upon. Consequently, this Court cannot intervene.
[14] The application is dismissed.
OTTAWA, Ontario
December 13, 1999
Judge
__________________