Date: 19990609
Docket: IMM-3024-98
Between :
MAHENDRA K. AGRAWAL
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] This is an application for judicial review of the decision of Norman J. Barnes, a visa officer at the Canadian Consulate General in Seattle, Washington, dated May 15, 1998 wherein the said officer refused the applicant's application for permanent residence in the independent category as an Electrical Engineer, General (CCDO 2144-118) and Electrical Engineering Technologist (CCDO 2165-126)1.
[2] The CCDO description for Electrical Engineer states as follows:
| Studies design proposals and supervises the manufacture, installation, testing, maintenance, modification, and repair of electrical equipment used for generation, transmission, distribution and utilization of electrical energy by performing any combination of the following duties: |
| Develops products and systems: such as, domestic electrical appliances, ignition systems, electro-magnets for motors and circuits for power-driven industrial machinery or components. Prepares preliminary cost estimates for construction of facilities: such as, generating, sub-and relay-stations for transmitting power from distribution points to consumers. Determines type and arrangement of circuits, transformers, switches and lighting arresters, using mathematical formulae, and performing complex computations. Supervises installation and lay-out of machinery and equipment to ensure that adequate power supply and protection methods are provided. Directs modification and repair of electrical power systems and of complicated and sensitive automatic controls and components that govern production processes. Prepares working drawings and specifications indicating materials to be used and method of manufacture. Supervises technical aspects of manufacturing processes, and compilation of estimates of labour required and other costs of manufacture, installation, maintenance and repair. Compiles, evaluates and interprets and writes reports. Evaluates technical specifications, examines installed electrical equipment to ensure compliance with safety standards, and recommends modification, maintenance and repair procedures. Supervises and co-ordinates the work of technologists and technicians in various aspects of technical assignments: such as, preparation of schematics, wiring and diagrams and equipment layouts. |
| May collaborate with engineers in other disciplines and act as a consultant and advise clients for a fee. |
| (Emphasis is mine.) |
[3] In paragraph 9 of his affidavit, the visa officer states that he advised the applicant that since he had not demonstrated that he had performed "a substantial number" of the duties of an Electrical Engineer that he could not award him any units of assessment for occupational experience and his application would likely be refused. The refusal letter itself indicates:
| . . . You do not meet these requirements because you have not demonstrated that you have performed a substantive number of the duties of either occupation as set out in the Canadian Classification and Dictionary of Occupations (CCDO) and the National Occupation Classification (NOC). |
| (Emphasis is mine.) |
[4] It appears, therefore, that the visa officer refused the applicant's application on the basis that the applicant had not performed a substantial number of the duties for an Electrical Engineer as is set out in the CCDO. However, the definition of the CCDO specifically states that an applicant meets the required duties of an Electrical Engineer by "performing any combination of the following duties". In my view, the visa officer erred by applying an improper test as to whether or not the applicant met the qualifications for an Electrical Engineer. In Haughton v. Canada (M.C.I.) (1996), 111 F.T.R. 226, Rothstein J. held that visa officers are bound by the definition set out in the CCDO at page 230:
| The wording of the Visa Officer's decision indicates that the criteria outside of the CCDO which were considered were dominant in his decision. The skills he considered were not unreasonable in that they probably are skills required in the contemporary Canadian office environment. However, the Visa Officer is bound by the CCDO definitions. While it may be that there is a problem with outdated definitions provided in the CCDO, a Visa Officer is nonetheless not permitted to substitute his/her own criteria for a given occupation. Under the scheme of the Immigration Act and Regulations, that is for Parliament or the Governor-in-Council to address. |
| (My emphasis.) |
[5] In the case at bar, I am of the opinion that by requiring the performance of a substantial number of the duties of an Electrical Engineer, the visa officer substituted his own criteria for that occupation as it is described in the CCDO.
[6] Consequently, the application for judicial review is granted, the visa officer's decision dated May 15, 1998 is quashed and the matter remitted for reconsideration by a different visa officer.
JUDGE
OTTAWA, ONTARIO
June 9, 1999
__________________
1 CCDO: Canadian Classification and Dictionary of Occupations.