Date: 19990416
Docket: IMM-2828-98
BETWEEN:
MOHAMMED AHMED
Applicant
- and -
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of the decision of visa officer Luc Le François ("Visa Officer Le François") to refuse the application of Mohammad Ahmed (the "Applicant") for permanent residence in Canada in a letter dated 22 January 1998.
[2] The Applicant is a citizen of Saudi Arabia. He applied for permanent residence with his accompanying dependants in September 1995, under the Assisted Relative Category. The decision at issue is actually the second decision on this application: the first was quashed by a previous judicial review.1
[3] The Applicant sought to be assessed under the occupations of Powerhouse Repairman (CCDO 8584-130) and Tester and Regulator (CCDO 8736-126). Under Powerhouse Repairman, Visa Officer Le François determined that the duties carried out by the Applicant in his previous employment, based on his description, did not qualify him as a Powerhouse Repairman. Therefore, he was awarded 0 units under the Experience Factor. Subsection 11(1) of the Immigration Regulations2 precludes visa officers from awarding visas to immigrants who fail to earn at least one point for experience. Thus he could not have been successful under the occupation of Powerhouse Repairman.
[4] Under the occupation Tester and Regulator, the Applicant was awarded the following units of assessment:
[5] Based on this assessment, the Visa Officer Le François concluded that the Applicant had insufficient units of assessment to qualify for immigration into Canada.
ANALYSIS
[6] In Muntean v. Canada (MCI), Cullen J. stated that the CCDO is to be applied broadly. Nonetheless, he went on to clarify that it is up to the visa officer to determine which occupation more closely relates to the applicant"s experience, as described by the applicant.
[para18] I agree with the applicant that job descriptions in the CCDO should be broadly construed and that an applicant need not perform all of the tasks in the description to qualify in a particular occupational category. If a visa officer mechanically adhered to the CCDO descriptions and demanded that an applicant has performed each described job duty, it could be said that the visa officer would be fettering his or her discretion. However, that is not the situation in the case at bar and the counsel for the applicant has failed to direct this Court to evidence in the record that would support his submission that the applicant had, in fact, performed the duties of a mechanical or automotive engineer. Regardless of the job title the applicant held in Germany, his duties, as he described them to the visa officer, more closely corresponded to those of a motor vehicle mechanic. I find that the visa officer's decision is perfectly sound in light of the evidence that was before her. 4
[7] In the present case, the Applicant"s duties in his job with Saudi Aramco are listed in the two reference letters contained in the Application Record at 5-6. They are as follows:
| |
Maintaining or assisting in maintaining the following equipment |
|
| |
- Electrical sub-station equipment (transformers, circuit breakers, switchgear) |
|
| |
- Protective relay testers |
|
As well as ordering and receiving spare parts, updating and controlling power system test equipment, etc.
[8] In his affidavit, the Visa Officer affirms that he "reviewed with the Applicant his experience from his first job to the present one" and concluded that "with the descriptions provided, he was a maintenance electrician until June 1984". He then proceeded to discuss the Applicant"s present duties.5
[9] The CCDO description of Powerhouse repairman (at 24 of Respondent"s Record) lists the following experience as being relevant to the position:
| |
Installs, adjusts and repairs mechanical equipment and parts of machinery in electric-generating stations, such as generators, waterwheels, valves and piping: |
|
| Installs machinery and equipment, according to lay-out plans and drawings, using hoists, lift trucks, hand and power tools. Examines and listens to equipment in operation to diagnose malfunctions. Dismantles machinery and such auxilary equipment as compressors and pipe systems ... |
|
[10] The description of a Tester and Regulator (at 26 of Respondent"s Record) reads:
| |
Tests, maintains and repairs electrical and mechanical equipment (other than automatic or manual transmitting and receiving equipment) in telecommunications central office: |
|
| Tests and maintains common office telecommunications equipment, such as clocks, repeaters, carriers, voice frequency carrier telegraphs, switching apparatus and power supplies, using hand and power tools and test equipment ... |
|
[11] The Visa Officer compared the description of the Applicant"s duties in his previous jobs with that listed in the CCDO under Powerhouse Repairman. He concluded that the Applicant"s experience did not coincide with that contained in the CCDO, under Powerhouse Repairman, but was more closely related to that of a Tester and Regulator. After a careful reading of the two job descriptions, I cannot find that this conclusion was unreasonable.
[12] In addition, as stated in Lim v. M.E.I., the determination of whether an applicant really is qualified for a certain occupation is a question of pure fact to be determined by the visa officer and may not be interfered with unless it is patently unreasonable.6
| 2) Personal Suitability and Double Counting |
[13] This issue has been raised several times before this Court. In Chen v. Canada (MEI), Strayer J. stated that personal suitability is to be determined based on the applicant"s ability to successfully establish in Canada in the economic sense.7
[14] In the case at bar, the visa officer considered whether the Applicant had ever been to Canada, the fact that his knowledge of Canada was limited, the fact that he had no job to come to and that he had made no inquiries into the employment situation in Canada, before assessing his personal suitability as "average" and awarding him 5 units of assessment.
[15] In Gill v. M.C.I., Jerome A.C.J. indicated the broad discretion conferred on the visa officer to assess the applicant"s personal suitability:
The legislative provisions confer a broad discretion on a visa officer in making a determination of this nature and it is entirely within his jurisdiction to form an opinion concerning an applicant's personal suitability based on factors such as adaptability, motivation, initiative, resourcefulness and other qualities. Provided that opinion is reasonable and is neither arbitrary or capricious, there are no grounds to warrant judicial interference. 8
[16] In the present case, I find the Visa Officer"s assessment of the Applicant"s personal suitability to be reasonable. I am satisfied that his consideration of the Applicant"s prior visits to Canada and his lack of arranged employment were to assist in his assessment of the Applicant"s motivation and his ability to establish in Canada in an economic sense. Therefore, I find that the Visa Officer did not engage in double counting, nor did he take into account irrelevant considerations when assessing the Applicant"s personal suitability.
[17] MacKay J., in Parmar v. MCI, concluded that it was not a breach of procedural fairness for a visa officer to consult the notes and the rejection letter of a previous visa officer. A visa officer does not necessarily fetter his or her discretion by making reference to another officer"s assessment of the application.9 As stated by MacKay J.:
It cannot be assumed that administrative decision makers act inappropriately where they seek harmony in the exercise of discretion when discharging common administrative responsibilities. 10
[18] In the case at bar, there is no evidence that Visa Officer Le François unduly relied upon the notes and rejection letter of Visa Officer Shalka, the first visa officer. Instead, his affidavit explains, in detail, his reasons for each award of points.11 In addition, his rejection letter summarizes his reasons beside each assessment. As a result, the Applicant has failed to demonstrate that the Visa Officer breached his duty of procedural fairness in consulting the notes and rejection letter of the previous visa officer, as he alleges.
[19] For all the foregoing reasons, the application for judicial review is dismissed.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
April 16, 1999.
__________________
1 After an initial interview, the application was refused in a letter from visa officer Robert Shalka. The Applicant sought judicial review and was successful on 30 October 1997[IMM-4355-96, Teitelbaum J.]. A second interview was convoked on 14 January 1998. Visa Officer Le François subsequently rejected the application 22 January 1998.
2 SOR/78-172, as am.
3 This total includes the 5 point bonus for Assisted Relatives.
4 Muntean v. Canada (MCI) (1995), 103 FTR 12 at 16 (TD).
5 Affidavit of Luc Le François (sworn 26 July 1998) at para 14.
6 Lim v. MEI (1991), 121 N.R. 241 at 243 (F.C.A.).
7 [1991] 3 F.C. 350 (T.D.); rev"d [1994] 1 F.C. 639 (C.A.); aff"d [1995] 1 S.C.R. 725.
8 (1996) 34 Imm.L.R. (2d) 127 at 128 (F.C.T.D.).
9 Parmar v. MCI (1997), 139 F.T.R. 203 (T.D.).
10 Ibid. at para 41.
11 Supra note 4 at paras 25 et seq.
Email this Content