Docket : IMM-6251-02
Ottawa, Ontario, this 24th day of March, 2004
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
POPATBHAI S. PATEL
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision made by Virginia Hughes, a Designated Immigration Officer ("Officer"), at the Canadian Consulate General in Seattle on October 4th , 2002 to deny an application for permanent Canadian residence in the "Independent" category.
FACTS
[2] The Applicant is an Indian citizen. He submitted his application for permanent residence with the intended occupation of Textile Chemist as per National Occupational Classification ("NOC") No. 2112 and his application was assessed under the Immigration Act, R.S.C. 1985, C. I-2 ("former Act"). He failed to obtain at least one point for experience as a Textile Chemist because the Officer determined that he had never carried out the duties of this occupation. He was further assessed as a Master Dyer, Textiles, NOC 2211.2 and obtained six points for experience. The Officer entered her notes regarding this interview in the Computerized Assisted Immigration Processing System ("CAIPS")and, in a letter dated October 4th, 2002, notified the Applicant that his application had been rejected because he did not obtain sufficient points in order to qualify for immigration to Canada.
[3] The Officer assessed the Applicant under each of the factors listed in Column 1, Schedule 1 of the Immigration Regulations. The Applicant was awarded a total of 68 points for the Master Dyer, Textiles occupation; the number of points required to qualify for a Visa is 70. As a result, the Officer refused the application.
[4] The Applicant was awarded the following units of assessment for each of the selection criteria:
Age (39) 10
Occupational factor 01
Education and Training Factor / 15
Experience 06
Arranged Employment or designated occupation 00
Demographic factor 08
Education 15
Knowledge of English 08
Knowledge of French 00
Personal suitability 05
Total 68
SUBMISSIONS
Applicant's Submissions
[5] In his application for leave and judicial review, the Applicant essentially submitted three arguments. First, the Applicant argued that the Officer required him to meet a standard not required by the NOC for Textile Chemist, and in so doing committed an error in law. The NOC for textile chemist requires candidates to have performed "some or all" of the duties described in the list of main duties. Pursuant to A'Bed v. Canada (M.C.I.), [2002] F.C.J. No. 1347 (T.D.) (hereinafter "A'Bed"); Qin v. Canada (M.C.I.), [2002] F.C.J. No. 1576 (T.D.) (hereinafter "Qin"); Paracha v. Canada (M.C.I.), [1999] F.C.J. No. 1282 (T.D.) (hereinafter "Paracha"); and Bhutto v. Canada (M.C.I.), [1999] F.C.J. No. 1411 (T.D.) (hereinafter "Bhutto"), the phrase "some or all" means that the candidate must have performed more than one of the main duties described in the NOC. Here, the Officer required the Applicant to perform a "substantial number of the main duties of a textile chemist, including the essential ones". By requiring the Applicant to perform a "substantial number of the main duties" rather than "more than one" the Officer erred.;
[6] In the alternative, the Applicant submits that he did provide evidence of having performed "some or all" of the main duties of a textile chemist, which the Officer ignored. The Applicant provided evidence that he had experience and knowledge in various textile machines involved in bleaching, dying, printing, steaming, backing and finishing of all kinds of fabrics, was engaged in quality control of the products, supervised other technical staff, and engaged in research. These duties are found in the NOC description, and therefore, the Applicant did engage in one or more of the listed duties. The Officer, having concluded that the Applicant did not perform the duties, erred; and
[7] Thirdly, the Applicant also submits that the Officer based her refusal on his interview statements regarding his duties. By only basing her decision on the statements obtained in the interview, the Officer came to her decision without regard to the totality of the evidence and erred. The Applicant relies on Singh v. Canada,[2002] F.C.J. No. 154 (T.D.) in support of his submission.
Respondent's Submissions
[8] The Respondent submits that the Officer, in stating in her refusal letter to the Applicant that he had not performed a substantial number of the main duties as set out in the NOC, including the essential ones, simply used the language of Factor 4, Schedule I. In fact, in the CAIPS notes the Officer stated that the Applicant had never carried out the duties of a Textile Chemist. The Respondent further argues that the cases cited by the Applicant which interpret the phrase "some or all" indicate that an applicant must show that he has performed more than one of the specified tasks of the NOC. In this case, the Applicant did not carry out any of the specified tasks. As such, the cases referred to by the Applicant are distinguishable from the case at bar.
[9] The Respondent also argues that the Officer did not ignore the Applicant's evidence establishing his experience, as the Officer assessed the Applicant for the occupation of Master Dyer, and awarded him six out of the possible eight points for experience in this occupation.
STANDARD OF REVIEW
[10] Teitlebaum J. in Liu v. Canada (Minister of Citizenship of Immigration), [2001] F.C.J. No. 1125, 2001 FCT 751 (F.C.T.D.), wrote:
The applicable standard of review for this type of decision - a discretionary one by a visa officer - is the same as that enunciated by McIntyre J. in the Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2 at pp. 7-8 :
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 on considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.
In Wang v. Canada (M.C.I.), [2001] F.C.J. No. 95 (IMM-2813-00, January 25, 2001), Rouleau J., referring to the above cited passage as well as to Supreme Court of Canada's decision in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, help that the appropriate standard of review should be reasonableness simpliciter.
Accordingly, reasonableness simpliciter is the appropriate standard to review of the Officer's decision in this case. The Court will not set aside a discretionary decision of an immigration Officer, nor substitute its decision for an officer's, unless that decision was unreasonable or clearly wrong.
ISSUES
A. Did the Officer provide adequate reasons for awarding the Applicant "0" points for the experience factor for the occupation of Textile Chemist?
B. Did the Officer apply the correct test when she determined that the Applicant did not meet the experience requirement for the occupation of textile chemist?
C. Did the Officer err by not having regard to all the evidence submitted by the Applicant?
A. Did the Officer provide adequate reasons for awarding the Applicant "0" points for the experience factor for the occupation of textile chemist?
[11] The Applicant submits that he performed the following duties during his career: experience and knowledge in various textile machines involved in bleaching, dying, printing, steaming, backing and finishing all kinds of fabrics, quality control of the products; supervision of other technical staff; research.
[12] The CAIPS notes confirm that the Applicant described duties that involved experience and knowledge of textile machines that performed various functions; supervisory duties including supervision of "masters" and quality control duties. The CAIPS notes, however, do not state that the Applicant described conducting research, nor do the letters of employment. This duty only appears in the Applicant's affidavit prepared for this hearing. Given that the CAIPS notes were taken during the interview with the Applicant, it seems likely that if the Applicant had stated that he had conducted research it would have been written down by the Officer at the time. As this experience is not found in the CAIPS notes, I conclude that it was not mentioned by the Applicant and will accordingly disregard it in my analysis.
[13] My reading of the submissions and the Record leads me to conclude that the Applicant did not have the educational degree, nor the experience necessary to be recognized as a Textile Chemist. The NOC 2112 description of "chemists" , which refers to "textile chemist" as an example, indicates that a research and analysis background is essential in order to be recognized as such. It also informs that the educational degrees required for qualification are a Bachelor's degree in Chemistry and Masters or Doctorate degree as a Research Chemist. On this last point, the documentation shows that the Applicant has a Technical Diploma in Textile Chemistry, not a University Degree. Furthermore, the documentation filed by the Applicant refers to working experience of a technical nature and the summary of the interview made by the Visa Officer comes to the same conclusion. Therefore, I can only find in the same manner as did the Visa Officer when she said in her CAIPS note that the Applicant "... has never carried out the duties of a Textile Chemist - NOC 2112, so does not qualify under that NOC." Based on my reading of the Officer's notes, I have determined that this finding is fully supported by the written observations and I am satisfied that this conclusion is justified.
B. Did the Officer apply the correct test when she determined that the Applicant did not meet the experience requirement for the occupation of textile chemist?
[14] In accordance with the case law set out in A'Bed, Qin, Paracha and Bhutto (Supra), the Officer did not apply the appropriate test when she stated that the Applicant had not demonstrated that he had performed "all or substantially all" of the duties of a Textile Chemist. Nonetheless, I do not think that this is a fatal error since the Officer concluded that the Applicant had not performed any of the NOC 2112 - Textile Chemist duties. I also am of the opinion that the Officer kept an open mind referring to "substantially all" of the duties since it is obvious from reviewing the documentation that the Applicant did not assume any of the duties of textile chemist, nor did he earn any University degrees that could support such a conclusion.
C. Did the Officer err by not having regard to all the evidence submitted by the Applicant?
[15] Once again, I have to agree with the submissions of the Respondent. The Officer did assess the Applicant under an alternate occupation, and awarded him six points for experience. It is difficult to imagine that the Officer could have made this assessment without having regard to all of the Applicant's submissions regarding his experience and, in any event, in the CAIPS notes, the Officer mentions the documentation that was presented such as "letters of reference, letters of employment etc..."
[16] For these reasons, I find that the Officer's determination that the Applicant failed to satisfy the requirements of the Immigration Regulations, 1978 and her decision to refuse the application were reasonable.
[17] Counsel did not propose any question for certification.
ORDER
THIS COURT ORDERS THAT:
- This application for judicial review be dismissed and no question will be certified.
"Simon Noël" Judge
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-6251-02
STYLE OF CAUSE: POPATHBHAI S. PATEL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, MARCH 18, 2004
REASONS FOR ORDER BY: NOËL S. J.
APPEARANCES BY:
Mr. Harvey Savage For the Applicant
Mr. Tamrat Gebeyehu For the Respondent
SOLICITORS OF RECORD:
Mr. Harvey Savgage
Barrister & Solicitor
393 University Avenue, Suite 2000
Toronto, Ontario
M5G 1E6 For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada For the Respondent
FEDERAL COURT OF CANADA
Date: 20040324
Docket: IMM-6251-02
BETWEEN:
POPATHBHAI S. PATEL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER