Date: 20010129
Docket: IMM-38-00
BETWEEN:
ABHA VINOD NAMBIAR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY A.C.J.
[1] The applicant, a 31-year old citizen of India who resides in New Delhi, seeks judicial review of the visa officer's refusal of her application for permanent residence in Canada under the intended occupation of Educational Policy Researcher, Consultant and Program Officer (NOC 4166).
[2] In 1991, the applicant worked as a stenographer-secretary.
[3] In 1992, she joined her current employer, the Federation of AOTS Alumni Associations of India. Her initial duties were described as follows: "To co-ordinate the activities of FAAAI in co-operation with AOTS, New Delhi Office. Perform any other job as may be assigned by the President of FAAAI."
[4] In 1996, the applicant was promoted to the position of assistant manager (administration). At that time, the president of the FAAAI described the applicant's responsibilities:
| 1. JMAM's Correspondence Course Project: She has independently handled coordination of JMAM's Correspondence Courses in India. She is responsible for managing all activities related with this Project including translation and printing of new course material, assisting in organizing training of Instructors, registration of students, dispatch of course material, receiving and getting assignments evaluated, issuing certificates, liaison with JMAM, Japan and related activities. |
| 2. Japanese Language School: She is responsible for coordination of running of Japanese Language School on day to day basis in close liaison with AOTS, Japan Announcing new Programs, registration of students and assisting students to choose specific course with the help of Japanese teachers and related activities. |
| 3. Overseas Technical Training Programs and Seminars by Japanese Experts: She has been responsible for organizing and coordinating all the activities related to Overseas Technical Training Programs and Seminars on Japanese Management by Japanese Experts. |
[5] The visa officer concluded that the application did not have the required minimum of one-year experience in her intended occupation because her work duties fell far short of those required by the National Occupational Classification for an Education Policy Researcher. The main duties for this occupation are set out in NOC 4166:
| Education Policy Researchers, Consultants and Program Officers perform some or all of the following duties: |
| - Conduct research, produce reports and administer education policies and programs |
| - Evaluate curriculum programs and recommend improvements |
| - Develop the structure, content and objectives of new programs |
| - Conduct statistical analyses to determine cost and effectiveness of education policies and programs |
| - Provide on-going professional development, training and consultative services to teachers |
| - Develop teaching materials and other resources for program delivery |
| - May supervise the work of other education policy researchers, consultants or program officers. |
[6] I have not been persuaded by the applicant that her duties come within one or more of those described in the National Occupational Classification, including the ones set out in the first, fifth and sixth bullets which were emphasized by counsel. Furthermore, as correctly noted by the respondent, the regulation concerning the occupational factor requires that the applicant perform a substantial number of the NOC main duties, including the essential ones. It is in this context that the words "some or all" in NOC 4166 must be read.
[7] In my view, it was open to the visa officer to conclude that the applicant's work responsibilities did not meet the occupational requirements for an Educational Policy Researcher. The applicant's functions with the FAAAI appear to be those of an administrative assistant to other persons who might qualify as Education Policy Researchers.
[8] The applicant raised a second substantive issue in this proceeding.
[9] The National Occupational Classification for the applicant's intended occupation requires a bachelor's degree in education.
[10] In 1989, after three years of study, the applicant received a Bachelor of Science (Home Science) degree. This program included courses in textiles, clothing and food services but apparently none related to a degree in education.
[11] In December 1992, while she was working with the FAAAI, the applicant received a Bachelor of Education degree, with English and Natural Science as special subjects. This was a degree obtained by correspondence over a period of one year, with perhaps two weeks of classroom attendance. The visa officer refused to accept the applicant's Bachelor of Education degree as meeting the NOC 4166 requirement. In her words: "Schedule 1 of the Regulations indicates `a first-level university degree that requires three years of full-time study has been completed'."
[12] The applicant's counsel argues that the visa officer erred in linking the regulation concerning the education factor under Schedule 1 with the NOC requirement of a bachelor's degree. The NOC requirement makes no reference to the number of years of study for the bachelor's degree.
| [13] In Azim v. Canada (Minister of Citizenship and Immigration) (1999), 49 Imm.L.R. (2d) 127, Justice Reed ruled that the "three years of full-time study" requirement for a first-level university degree under the education factor is separate and distinct from the requirement of "a university degree at the bachelor's level" under subsection 1(f) of the education and training factor: |
| [13] ... In addition, as noted, while the reference under the occupational factor to the NOC only indirectly brings in a reference to a bachelor's degree, subsection (1)(f), the education and training factor of Schedule I of the Regulations refers directly to "a university degree at the bachelor's level", not as under the education factor to "a first-level university degree that requires at least three years of full-time study." When different terminology is used in the same legislative document, one usually assumes that the difference has been noticed by the drafters, that there is a reason for the two different formulations, and that they are not intended to carry the identical meaning. |
| [14] I agree that the term "bachelor's degree" in both the NOC and the Regulations means a Canadian degree or equivalent. ... the text of Schedule 1 to the Regulations leaves the impression that whatever equivalence to a Canadian degree may be, it is not based on the number of years required to obtain the degree. [Emphasis added.] |
| [14] In this proceeding, I have chosen to decline to exercise my discretion to grant this application for judicial review notwithstanding this apparent error of the visa officer: Canadian Cable Television Assn. v. American College Sports Collective of Canada, Inc., [1991] 3 F.C. 626 (C.A.) at 651. |
| [15] First, after a careful review of the applicant's certificate and statement of courses with respect to her education degree (tribunal record, pp. 73 and 74), I am satisfied that this correspondence course is not the equivalent of a Canadian bachelor's degree, regardless of the number of years of study. Second, according to the CAIPS notes, the visa officer considered the correspondence aspect of the applicant's degree and the nature of the subjects studies in concluding that this bachelor's degree did not meet Canadian standards. Third, in Azim, the visa officer's decision appears to have focussed principally on the issue of the years of study required for a bachelor's degree. In this case, the visa officer first explained her refusal in the context of the applicant's work duties not meeting the requirements as defined under the National Occupational Classification for her intended employment. |
[16] For these reasons, this application for judicial review will be dismissed. Neither party suggested the certificate of a serious question.
"Allan Lutfy"
A.C.J.
Ottawa, Ontario
January 29, 2001