Date: 20000719
Docket: IMM-3631-99
BETWEEN:
BALTEJ SINGH KAJAL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
DAWSON J.
[1] Mr. Kajal, the applicant, is a 25 year old citizen of India who applied for permanent residence in Canada as an Independent-Skilled worker under the category of "Foreperson, Air-conditioning and Refrigeration Mechanic", National Occupational Classification "NOC" 7216.
[2] Yagya Datt Malhotra, a visa officer at the Canadian High Commission in New Delhi, India, determined that the application should be refused. Mr. Kajal was notified of this by a letter dated May 20, 1999.
[3] Accordingly, Mr. Kajal brought this application seeking judicial review of the visa officer"s decision.
[4] I dismissed the application for judicial review from the bench, advising that written reasons would be delivered. These are the reasons for my decision.
FACTUAL BACKGROUND
[5] Mr. Kajal qualified in 1997 as an electrician and mechanic, after completing training for six months in the trade of electrician and a three month course entitled Air-Conditioning and Refrigeration Mechanic.
[6] In the covering letter which accompanied his application for permanent residence, Mr. Kajal"s consultant stated that Mr. Kajal worked for The Bawa Air Conditioning company and was responsible for repairing airconditioners, all types of refrigerators, water coolers and the like. In the application for permanent residence itself, Mr. Kajal described himself as a mechanic who worked at The Bawa Air Conditioning company. He provided correspondence from that employer confirming that he was employed by it as a mechanic.
[7] The visa officer accepted that Mr. Kajal worked as an air-conditioning and refrigeration mechanic. Notwithstanding that Mr. Kajal indicated that his intended occupation was "Foreperson, Air-conditioning and Refrigeration Mechanic", the visa officer assessed Mr. Kajal in the category of Refrigeration and Air Conditioning Mechanic, NOC 7313.0.
[8] Mr. Kajal was granted 52 units of assessment and thus failed to qualify for an interview.
THE ISSUES
[9] Before me in oral argument, counsel for Mr. Kajal pursued only two issues.
[10] First, it was that it was alleged that a breach of procedural fairness and natural justice had occurred when the visa officer relied on extrinsic evidence to conclude that Mr. Kajal did not have experience in his intended occupation of "Foreperson, Air-conditioning and Refrigeration Mechanic".
[11] The second was that the visa officer had failed to transfer duties to the intended occupation. That is, it was submitted, having ascertained that Mr. Kajal performed the duties of an air-conditioning mechanic, the visa officer failed to ascertain what amount of those duties could be credited to the intended occupation of Foreperson, Air-conditioning and Refrigeration Mechanic.
ANALYSIS
[12] With respect to the first issue, I find that there was no breach of procedural fairness. While the visa officer did telephone Mr. Kajal"s employer to confirm his employment, the evidence before me was uncontradicted that the advice that the employer provided was no different from the evidence which Mr. Kajal had given.
[13] The Computer Assisted Immigration Program System ("CAIPS") notes indicate that the employer advised that:
| I CALLED PATIALA AND TALKED TO KASHMIR SINGH WHO IS OWNER OF BAWA AIR CONDITIONING. HE CONFIRMED THAT BALTEJ SINGH WORKED WITH HIM AND IS HIS "CHELA" (DISCIPLE) " A PERSON WHO HAS BEEN TRAINED BY HIM. HE HAS BEEN WORKING THERE FOR THE LAST 2-1/2 YEARS AND WAS NOT PRESENT WHEN I CALLED. THE PA HAD GONE TO ATTEND TO A COMPLAINT. HE IS WORKING AS A/C/REFRIGERATION MECHANIC. KASHMIR SINGH SAID THAT HE EMPLOYS EIGHT WORKERS AND THE APPLICANT IS ONE OF THEM. |
[14] This is entirely consistent with the advice provided by Mr. Kajal"s consultant in the covering letter to the application for permanent residence, the information given by Mr. Kajal in his application for permanent residence, and the correspondence supplied by Mr. Kajal from his employer.
[15] On this evidentiary basis, I am satisfied that the general principle which requires an applicant to be advised of "extrinsic evidence" does not apply. In the present case, the evidence alleged to be "extrinsic evidence" was identical to the evidence which the applicant himself gave to the visa officer. The visa officer simply confirmed the accuracy of that advice.
[16] With respect to the issue of transferability of duties, the Minister relied upon the decision of Pinard, J. in Chou v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1766 (F.C.T.D.).
[17] In that case Justice Pinard stated, at paragraph 6 of his reasons:
| ... I am of the opinion that the visa officer"s duty to consider whether the applicant"s work experience is transferable to her intended occupation is subsumed by his duty to assess her work experience and employment history vis-à-vis the description of the intended occupation as a whole. In light of the evidence, I am satisfied that the visa officer considered the secretarial courses and assessed the applicant"s work experience vis-à-vis the occupation as a whole. |
[18] I agree that the visa officer"s duty to consider whether the applicant"s work experience was transferable to his intended occupation was subsumed by the visa officer"s duty to assess experience in light of the NOC description.
[19] No formal point assessment was concluded by the visa officer with respect to the intended occupation of Foreperson. However, the visa officer swore that she considered this occupation, and that Mr. Kajal was not formally assessed against that occupation "because he neither claimed nor had any experience in that occupation". I accept the Minister"s submission that if Mr. Kajal had been assessed against NOC 7216, he would have obtained zero units for the experience factor and would not have met the requirements of subsection 11(1) of the Immigration Regulations, 1978, SOR/78-172, as amended.
[20] In that circumstance, it would have been fruitless for the visa officer to simply go through the mechanics of an assessment. Failing to go beyond the determination that the applicant neither had, nor claimed experience in the intended occupation was not, in that circumstance, a reviewable error. See: Patel v. Canada (Minister of Citizenship and Immigration) (1995), 103 F.T.R. 21 (F.C.T.D.).
[21] I am satisfied that in the present case the visa officer committed no reviewable error in assessing Mr. Kajal"s work experience.
[22] For these reasons, I dismissed the application for judicial review.
[23] Counsel for the applicant and the respondent took the position, and I agree, that the case raises no certifiable question.
"Eleanor R. Dawson"
Judge
Ottawa, Ontario
July 19, 2000
Email this Content