Federal Court Decisions

     IMM-2295-96

B E T W E E N:

     HAFEEZ MOHAMMAD

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

LUTFY J.:

     The applicant, a citizen of Pakistan, applied for permanent residence in October 1995. His application was processed pursuant to section 8 and schedule 1 of the Immigration Regulations, SOR/78-172, by a visa officer in the office of the Canadian consulate general in New York, N.Y. where he was interviewed on May 14, 1996.

     He was awarded sixty-six units of assessment, four short of the required minimum of seventy. The visa officer's decision of May 14, 1996, which is the subject of this judicial review, was stated as follows:

A breakdown of your assessment follows:

OCCUPATION: Mechanical Engineering Technician CCDO:

         2165.246

         FACTOR                          UNIT

         Age                              10

         Occupational Demand                      01

         Specific Vocational Preparation                  11

         Experience                          06

         Arranged Employment                      00

         Demographic Level                      08

         Education                          15

         English                              09

         French                              00

         Assisted Relative Bonus                      00

         Personal Suitability                      06

         Total                              66

You have obtained insufficient units of assessment to qualify for immigration to Canada. You, therefore, come within the inadmissible class of persons described in paragraph 19(2)(d) of the Immigration Act in that you do not fulfil or comply with the provisions of the Act and Regulations and, your application has been refused.

A major factor in this decision was the low units of selection which you received on the Occupational Factor. These units are fixed for each occupation by the Immigration Department in Canada on the basis employment opportunities available in Canada in the occupation that he applicant is qualified for and prepared to follow in Canada, such opportunities being determined by taking into account labour market demand on both an area and national basis. Unfortunately in your case the current units of selection for your occupation are very low and you did not receive sufficient units of selection in the other factors to overcome this.

     The applicant described his intended occupation in Canada as mechanic. He provided documents setting out his experience as a "washing machine mechanic and technician" and "in the repair and maintenance of laundry machines". The visa officer, according to his affidavit, concluded that the applicant did not have the required experience as a Laundry Machine Mechanic by referring to the Canadian Classification Dictionary of Occupations ("CCDO") definition of that occupation under no. 8584-214. However, he then decided to assess the applicant under the alternate occupation of Mechanical Engineering Technician (CCDO-2165-246). The applicant asserts in his affidavit that he was never questioned by the visa officer concerning the occupation of Mechanical Engineering Technician. The visa officer's affidavit and his notes made on the day of the interview do not contradict the applicant's assertion in this regard.

     In Hajariwala v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 79, 6 Imm. L.R. (2d) 222 (F.C.T.D.) at 87 (F.C.), Associate Chief Justice Jerome stated: "I should also add that as a matter of fairness the record should show that the applicant was given the opportunity to provide information in support of his current experience in each included occupation." The record in the present case does not disclose that this was done.

     At no time was the applicant advised that he was disqualified under his intended occupation as a Laundry Machine Mechanic. There is no evidence that he was so informed during his interview with the visa officer. The letter of decision of May 14, 1996 is also silent in this regard. It is not sufficient for the visa officer to disclose his decision and reasons for excluding the applicant from his intended occupation in his affidavit in the judicial review proceeding. (See Reddy v. Canada (Minister of Citizenship and Immigration),[1995] F.C.J. No. 1124 (Q.L.) at paragraph 5.)

     The failure to advise the applicant that he was disqualified under his intended occupation and the failure to provide him an opportunity to submit information on the alternate occupation constitute together a reviewable error in the circumstances of this case. For these reasons, the decision of the visa officer of May 14, 1996 which was communicated to the applicant on June 10, 1996 is set aside and the matter is referred for re-consideration by a different visa officer.

     Counsel for the respondent requested the certification of the following question: "Is there a legal obligation on a visa officer to assess an applicant under all alternative occupations that have not been specifically raised by an applicant?" In the present case, the visa officer's decision is being set aside for his failure to disclose his refusal, with reasons, to assess the applicant's intended occupation as Laundry Machine Mechanic. These reasons also note his failure to question the applicant concerning the occupation of Mechanical Engineering Technician, the one chosen by the visa officer himself for his decision. In my view, the disposition of this application does not raise the issue of the visa officer's obligation "to assess an applicant under all alternative occupations". Accordingly, it would not be appropriate to certify the suggested question in this case.

                         "Allan Lutfy"

                         Judge

Ottawa, Ontario

May 16, 1997