Date: 19980630
Docket: IMM-3239-97
OTTAWA, ONTARIO, THE 30TH DAY OF JUNE 1998
Present: THE HONOURABLE MR. JUSTICE J.E. DUBÉ
Between:
Abdelouahed KHCHINAT, employed as
a flight operations officer, residing
and domiciled at the following address: Bloc, 15,
No. 9, Bâtiment Erac El Oulfa,
Casablanca, Morocco
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
OF CANADA, at the offices of JUSTICE CANADA,
authorized to accept service for the Department
of Citizenship and Immigration of Canada
and for the Attorney General of Canada,
at 200 René Lévesque West, 5th floor,
Montréal, Quebec
Respondent
ORDER
The application for judicial review is dismissed.
J.E. DUBÉ
Judge
Certified true translation
M. Iveson
Date: 19980630
Docket: IMM-3239-97
Between:
Abdelouahed KHCHINAT, employed as
a flight operations officer, residing
and domiciled at the following address: Bloc, 15,
No. 9, Bâtiment Erac El Oulfa,
Casablanca, Morocco
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
OF CANADA, at the offices of JUSTICE CANADA,
authorized to receive service for the Department
of Citizenship and Immigration Canada
and the Attorney General of Canada,
at 200 René Lévesque West, 5th floor,
Montréal, Quebec
Respondent
REASONS FOR ORDER
DUBÉ J.:
[1] In this application for judicial review, the applicant is challenging a decision by a visa officer at the Canadian Embassy in Paris dated April 14, 1997, denying his application for permanent residence.
1. Facts and decision of the visa officer
[2] The applicant made an application for permanent residence on November 14, 1996. On January 14, 1997, the designated immigration officer in Paris, Mark Parant, made a preliminary assessment of the applicant"s written application as a "flight dispatcher" and decided that a selection interview was needed. Mark Floyd, another visa officer, accordingly met the applicant in Rabat, Morocco on April 9, 1997.
[3] Following the interview, Mr. Floyd awarded only 49 units of assessment, while the total needed is 70 units. It is important to set out the following passages from the letter written by Mark Parant in Paris on April 14, 1997:
| In accordance with subsection 8(1) of the Immigration Regulations, 1978, independent applicants, the category for which you filed an application, are assessed on the basis of the factors listed below. Your application was evaluated based on the requirements of the following occupation: flight-dispatch clerk (CCDO 9113130). You will find below the breakdown of the units obtained for each factor. Please note that the officer determined with you and during the interview that you did not have experience as a flight dispatcher, but rather as an assistant: |
|
| Vocational Preparation 05 |
|
| Arranged or Designated Employment N/A |
|
| Canadian Demographic Factor 08 |
|
| Knowledge of English Language 00 |
|
| Knowledge of French Language 09 |
|
| You did not obtain a sufficient number of units of assessment to be authorized to immigrate to Canada because the required total is 70 units. |
|
| Accordingly, you belong to the class of inadmissible persons described in paragraph 19(2)(d) of the Immigration Act and your application is therefore refused. |
|
2. Issues
[4] The applicant raises the following grounds:
1. Error of the visa officer based on the under-evaluation of the applicant"s occupation;
2. Error in assessing the applicant"s "Specific Vocational Preparation" factor;
3. Lack of procedural fairness during the paper assessment of the applicant"s file by Mark Parant and lack of procedural fairness during the selection interview conducted by Mark Floyd;
4. Error in assessing the applicant"s personal suitability factor.
3. Analysis
1. Under-evaluation of the applicant"s occupation
[5] The "occupational factor" is factor number 4 of the list of selection criteria in Schedule I of the Immigration Regulations, 19781 ("the Regulations"). Paragraph 4(1) of the Schedule indicates that units of assessment shall be awarded on the basis of employment opportunities in Canada in the occupation in relation to the three following requirements:
| |
(a) for which the applicant meets the employment requirements for Canada as set out in the National Occupational Classification; |
|
| |
(b) in which the applicant has performed a substantial number of the main duties as set out in the National Occupational Classification, including the essential ones; and |
|
| |
(c) that the applicant is prepared to follow in Canada. |
|
[6] The applicant submits that he is working as a flight operations officer for Royal Air Maroc, the national airline of Morocco. He points out that the position of flight operations officer is an international title and that the responsibilities and duties involved are identical to those of the position described in the Canadian Classification and Dictionary of Occupations under the title of "flight dispatcher". However, the officer determined that the applicant"s skills and experience did not correspond to those of a "flight dispatcher" but more to those of an air traffic clerk. The applicant submits that the officer did not take either the diploma granted by Royal Air Maroc or the courses taken by the applicant into consideration.
[7] Although it appears from the documentary evidence that the applicant is a "flight dispatcher", the officer indicated in his affidavit following the interview that despite the titles, [TRANSLATION] "it was really his boss who did the work of a flight dispatcher. The applicant indicated his agreement with this conclusion". In fact, in factor 4 of the Regulations we see that even though factor 1(a) stipulates the theoretical requirement in respect of an occupation, factor 1(b) sets out a practical requirement in respect of the occupation. The officer concluded that while the applicant met the theoretical requirement, he did not meet the practical requirement.
[8] The officer"s role is not limited to considering the title of a position; most importantly, he or she must consider the nature of the duties to be performed. On this point, he concluded that the applicant performed the duties of a clerk and that it was his boss who performed the role of "flight dispatcher".
[9] There is no reason to find that the officer"s conclusion was unreasonable.
2. The applicant"s specific vocational preparation
[10] The officer"s affidavit indicates that according to the 1986 edition of the CCDO (Canadian Classification and Dictionary of Occupations), the occupation of "flight dispatcher" requires more than four years of vocational preparation, whereas the applicant only took a one-year training course. The applicant submits that the officer did not consider other factors, such as his bachelor"s degree in science or his on-the-job training as a documentalist for Royal Air Maroc. In my view, the officer was certainly not wrong in concluding that neither the education in science nor the training as a documentalist met the criterion of four years of specific vocational preparation.
3. Lack of procedural fairness
[11] The applicant made a host of allegations suggesting that the two officers had exhibited bias. These allegations can be summarized as follows:
- The fact that Mark Parant, the visa officer responsible for the paper assessment of the applicant"s file, suggested in advance how refusing the applicant could be justified, even before the applicant was interviewed.
- The fact that Mark Parant decided that English should be used as a requirement to screen out the applicant"s application.
- The fact that Mark Floyd, the visa officer at the interview, evaluated the applicant"s knowledge of English first, without telling him that it carried very little weight, even though the applicant had said that he had no knowledge of English.
- The fact that the applicant was placed in an unusually stressful situation from the beginning of his interview.
- The fact that the applicant was put on the defensive, which meant that he did not have an interview that was fair and free of bias.
[12] The officers" affidavits, however, paint a very different picture of the situation. In his affidavit, Mark Parant indicates that the only decision he made in this file concerned the prescreening, whose primary purpose is to determine whether the interview should be held. The notes he wrote in the computer assisted processing system were to be used as a guide and were not binding on the officer, Mark Floyd, who had complete discretion in this area. Mr. Floyd is the one who conducted the interview and made the decision. The regional office in Paris is responsible for writing the refusal letters to the applicants, while the officer on site, Mark Floyd in this case, made the decision.
[13] Mr. Floyd met the applicant at the Canadian Embassy in Rabat. The purpose of the interview was to establish whether the applicant was able to become successfully established in Canada. Mr. Floyd started the interview in the applicant"s first official language, French. He says that the atmosphere at the interview was fairly relaxed and calm. He verified the applicant"s knowledge of English and awarded him zero units of assessment for the second official language because he spoke, wrote and read it with difficulty. On the other hand, he awarded nine units of assessment for his knowledge of French.
[14] In asking the applicant about the nature of his work, the officer learned that the applicant did not authorize any flight departures and that the approval always came from his superior. The applicant also admitted that he could not analyse the meteorological information and was also unable to calculate the quantity of fuel required for a flight.
[15] The officer accordingly concluded that the applicant did not have the training, the experience or the skills needed to work in Canada as a "flight dispatcher". He also found that the applicant was not familiar with Canada, had not taken an English course and had done nothing to prepare for the possibility of leaving for Canada. Lastly, he formally denies that the atmosphere at the interview with the applicant was adversarial.
4. Applicant"s personal suitability
[16] In paragraph 47 of his affidavit, the applicant alleges that his occupation was incorrectly evaluated and that the three points out of ten he received for his personal suitability [TRANSLATION] "is because I chose to settle in an English-speaking area and the disagreement we had over my occupation". In reply, the visa officer said that in evaluating the personal suitability factor he did not take into account the fact that the applicant did not have experience as a "flight dispatcher", but instead relied on the fact that the applicant had done nothing to prepare for the possibility of immigrating to Canada and that he seemed to lack initiative and motivation.
4. Conclusions
[17] It is not the role of this Court to impose its own assessment of the qualifications and skills of a person who applies for permanent residence in Canada. This Court may intervene only where a visa officer has made an arbitrary and unreasonable conclusion. In the case at bar, it seems to me that the officer"s evaluation is entirely reasonable and is based on the evidence presented to him by the applicant.
[18] Counsel for the applicant tried to introduce a document which was not produced to the visa officers. It is a letter dated May 12, 1997 from the Air Navigation Commissioner of the Canadian Delegation to the International Civil Aviation Organization. That letter states [TRANSLATION] "that the duties described in the National Occupational Classification under the title of flight dispatcher are the same as those of flight operations officer and flight dispatcher as described respectively by ICAO and the Canadian government". Counsel for the applicant wanted to use this letter and an excerpt from Schedule I of the Canadian Aviation Regulations (attached to the letter) to challenge the officer"s knowledge and credibility. It is settled law that new evidence which was not before the initial tribunal is not admissible on judicial review to challenge the decision of that tribunal.2
[19] This application for judicial review is accordingly dismissed. In my view, there is no question of general importance to be certified.
OTTAWA, Ontario
June 30, 1998
J.E. DUBÉ
Judge
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-3239-97
STYLE OF CAUSE: Abdelouahed KHCHINAT v. M.C.I.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 21, 1998
REASONS FOR ORDER BY DUBÉ J.
DATED July 30, 1998
APPEARANCES:
Sophie Patricia Guerrero FOR THE APPLICANT
Lisa Maziade FOR THE RESPONDENT
SOLICITORS OF RECORD:
Sophie Patricia Guerrero FOR THE APPLICANT
Montréal-Nord, Quebec
George Thomson FOR THE RESPONDENT
Deputy Attorney General of Canada
__________________
1 SOR/78-172.
2 See Farhadi v. Canada, [1988] F.C.J. No. 381.
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