Date: 20010417
Docket: IMM-3419-99
Neutral Citation: 2001 FCT 331
BETWEEN:
GHANISHAM LAL LUTHRA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
HANSEN J.
Introduction
[1] Ghanisham Lal Luthra, a citizen of India, seeks judicial review of the May 21, 1999 decision of a visa officer at the Canadian High Commission in New Delhi, rejecting his application for permanent residence under the independent category.
[2] The applicant asked to be assessed as a Financial Manager under the National Occupation Classification (NOC) code 0111.
[3] According to his application, he received a Bachelor of Commerce degree from Khalsa College in 1979. In June 1980, he began work with the Punjab State Tubewell Corporation ("Tubewell") as a junior assistant. In 1985, he was promoted to the position of divisional accountant. In the letter of application, the applicant's duties in this position are described as "being responsible for preparing pay and allowances of staff, maintaining all account's record, checking and passing the payments of the divisional offices as required under rules etc.". The applicant also successfully completed a three week training and refresher course in accounts in 1984 at the Accounts Training Institute, Finance Department. The applicant also provided with his application a copy of his annual evaluation at Tubewell for 1987 which appears to be the form Tubewell for the evaluation of divisional clerks, stenographers, head assistant, stenotypist and divisional accounts clerk. Hand written at the top of the form, the words "Divisional Accountant" were added
[4] At the initial "paper screening" the visa officer concluded the applicant had neither the required educational qualifications nor the required experience in his intended occupation. Accordingly, the visa officer assessed the applicant in two alternative occupations. As the applicant did not receive the 60 minimum required units of assessment in neither his stated intended occupation nor in the two alternative occupations, he was not called for an interview and his application was rejected.
[5] The applicant submits the visa officer in conducting the assessment of the applicant's experience failed to ascertain and take into account those duties he performed in his occupation which overlapped with the duties in his intended occupation. In particular the applicant points to his supervisory skills which he maintains are transferrable. The applicant relies on the decision in Pinto v. Canada (Minister of Employment and Immigration), [1991] F.C.J. 619 where McKay J. stated:
In his decision, the Associate Chief Justice cited his prior decision, Hajariwala v. Canada (Minister of Employment and Immigration) et al. (1988) 6 Imm. L.R. (2d) 222, which established that a visa officer is required to assess experience relevant to the employment intended to be pursued in Canada. Although these cases concern applications for permanent residence, it is my view that section 20 similarly attracts the principle, stated in Hajariwala at 230, that "[t]here is no reason why the actual experience and time spent in each of the various responsibilities in an occupation cannot be broken down to award units of assessment for experience in intended occupations".
[6] Subsection 8(1) of the Immigration Act, R.S.C. 1985, c. I-2 provides that the burden of proof rests on the applicant to establish that he has the right to come to Canada. Further as stated in Hajariwala v. Canada (Minister of Employment and Immigration) et al. (1988), 6 Imm. L.R. (2d) 222 at 227 it is "the responsibility of the applicant to produce all relevant information which may assist his application".
[7] After reviewing the applicant's submissions, including his work related submissions, the visa officer concluded the applicant's duties did not include planning, organizing, directing and controlling the operation of a financial department. Based on this information, the visa officer found that the applicant did not have the requisite managerial experience contemplated in the NOC definition of Financial Manager.
[8] I can find no fault with the visa officer's decision in this regard. In the applicant's application there is nothing to suggest that he has ever exercised any managerial duties. The act of managing implies more onerous responsibility and work of a broader nature than does the act of supervising. Having regard to the level of the applicant's position at Tubewell and the nature of his supervisory duties, the visa officer's conclusion that the applicant lacked the necessary experience in this intended occupation is reasonable.
[9] The applicant also submits the visa officer erred in interpreting the employment requirement for a Financial Manager in the NOC. The applicant states the visa officer interpreted "completion of company or other management training program as usually required" as required. He relies on the decision in Karatanos v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No.1528 (F.C.T.D.) for the proposition that the visa officer should consider an applicant's education, training and experience in its entirety with a view to determining whether it is equivalent to the "usually required" element. In the present case, the visa officer noted that although the applicant had a university degree in commerce he had not completed a company or other management program. Having regard to the visa officer's conclusion that the applicant lacked the necessary experience in his intended occupation, it is implicit in this finding that the deficiency in the "usually required" training requirement could not be overcome.
[10] The applicant lastly argues that the visa officer's failure to assess him in his intended occupation without giving him an opportunity to address the visa officer's concerns is a breach of the duty of proceedural fairness. In effect the applicant argues that if the visa officer had completed the assessment in his intended occupation and had awarded him no units of assessment for experience or personal suitability he would have obtained 60 units of assessment which would have entitled him to an interview. This would have provided him with an opportunity to address the concerns regarding his education and experience.
[11] Where it is apparent, as in the present case, the applicant does not meet the employment requirements of the intended occupation, there is no obligation on the visa officer to continue the assessment (see for example: Cai v. Canada (Minister of Citizenship and Immigration, [1997] F.C.J. No. 55 and Xu v. Canada (Minister of Citizenship and Immigration, [1999] F.C.J. No. 1583). On the facts of this case, I am not persuaded that there has been a breach of the duty of procedural fairness.
[12] For these reasons the application for judicial review is dismissed.
"Dolores M. Hansen"
J.F.C.C.
OTTAWA, ONTARIO
April 17, 2001