Date: 19990609
Docket: IMM-3156-98
Between :
IRENEO JAVIER
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] This is an application for judicial review of the decision of Blair Fraser, a visa officer at the Canadian Embassy in Manila, Philippines, dated April 14, 1998 wherein the said officer refused the applicant's application for permanent residence in the independent category as an accountant (National Occupational Classification (NOC) 1111.2).
[2] The applicant is a citizen of the Philippines. He graduated from the University of Santo Tomas, with a Bachelor of Science in Commerce with a major in accounting in 1984. He passed his Board of Accountancy to be a Certified Public Accountant on June 17, 1985 and is a member of the Philippine Institute of Certified Public Accountants and has a professional license. For a period of three years and eight months, the applicant was employed by the Far East Bank and Trust Company.
[3] On April 14, 1998, the applicant attended at a personal interview at the Canadian Embassy in Makati, Metro Manila, Philippines.
[4] The refusal letter reads in part as follows:
| You have indicated that your intended occupation in Canada is ACCOUNTANTS, (NOC 1111.2) however after talking with you at your interview your occupation is more in line with a BOOKKEEPER (NOC 1231) and you were assessed on that basis. You were awarded units of assessment as follows: |
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| Education and Training 07 |
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[5] It appears, therefore, that the visa officer refused to assess the applicant for admission to Canada as an accountant, but rather assessed him as a bookkeeper.
[6] Subsections 8(1) and (2) of the Immigration Regulations, 1978 (the Regulations) provide in part:
| 8. (1) Subject to section 11.1, for the purpose of determining whether an immigrant and the immigrant's dependants, . . . will be able to become successfully established in Canada, a visa officer shall assess that immigrant . . .
| (a) in the case of an immigrant, other than an immigrant described in paragraph (b) or (c), on the basis of each of the factors listed in column I of Schedule I; |
[. . .]
(2) A visa officer shall award to an immigrant who is assessed on the basis of factors listed in column I of Schedule I the appropriate number of units of assessment for each factor in accordance with the criteria set out in column II thereof opposite that factor, but he shall not award for any factor more units of assessment than the maximum number set out in column III thereof opposite that factor.
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8. (1) Sous réserve de l'article 11.1, afin de déterminer si un immigrant et les personnes à sa charge, . . . pourront réussir leur installation au Canada, l'agent des visas apprécie l'immigrant . . .
| a) dans le cas d'un immigrant qui n'est pas visé aux alinéas b) ou c), suivant chacun des facteurs énumérés à la colonne I de l'annexe I; |
[. . .]
(2) Un agent des visas doit donner à l'immigrant qui est apprécié suivant les facteurs énumérés dans la colonne I de l'annexe I le nombre voulu de points d'appréciation pour chaque facteur, en s'en tenant au maximum fixé à la colonne III, conformément aux critères visés dans la colonne II de cette annexe vis-à-vis de ce facteur.
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[7] In my view, the above provisions make it clear that a prospective immigrant is entitled to be assessed in his or her claimed occupation. In Uy v. Canada (M.E.I.) (1991), 12 Imm.L.R. (2d) 172, Mahoney J.A. stated for the Federal Court of Appeal at page 176:
| In my opinion, s. 6 of the Act requires a visa officer to assess any immigrant who applies for landing in the manner prescribed by the Act and Regulations. Section 8(1) of the Regulations imposes, in mandatory terms, a duty to assess, and I find nothing in either the Act or Regulations which would permit a visa officer to refuse to assess in respect of the occupation or alternative occupations which the immigrant (or his or her spouse) states it is intended be pursued in Canada. The visa officer erred in law and exceeded his jurisdiction by refusing to assess the appellant for admission to Canada as a Medical Technologist. |
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[8] In the case at bar, learned counsel for the respondent argued that indeed the applicant was assessed as an accountant when talking with the visa officer at his interview. In my view, this is not sufficient. As stated by my colleague Rothstein J. in Issaeva v. Canada (M.C.I.) (1996), 37 Imm.L.R. (2d) 91, "An assessment is not an informal or preliminary determination by a visa officer. The terms "assess" or "assessment" mean the process of applying to the prospective immigrant the factors listed in column I of Schedule I of the Regulations. That this was not done with respect to the applicant's stated occupation of "general economist" is confirmed by the decision of the visa officer which states that the applicant was assessed only with respect to the occupations of "manager administration" and "financial manager"".
[9] The definition of accountant in the NOC includes the following duties: "Plan, set up and administer accounting system. Examine accounting records and prepare financial statements and reports. Develop and maintain cost finding, reporting and internal control procedures. Prepare income tax returns from accounting records. Analyse financial statements and reports and provide financial, business and tax advice. May act as a trustee in bankruptcy and may supervise articling students or other accountant".
[10] Under the definition of bookkeeper, the NOC duties include "Keep financial records and establish, maintain and balance various accounts using manual and computerized bookkeeping. Post journal entries and reconcile accounts, prepare trial balances of books, maintain general ledgers and prepare financial statements".
[11] In the case at bar, the visa officer felt that the applicant's main duties were to prepare manual trial balances and accounting control of bank statements, thereby concluding that his duties corresponded more closely with that of a bookkeeper.
[12] Although the applicant did complete some of the duties of bookkeeper, it does seem to me that he also undertook some of the duties of an accountant. For example, while employed by one of the Bank's special teams, he planned, organized and administered the computerized accounting systems for the Bank and its departments. Also, prior to the interview, the visa officer recorded that the applicant's employment certificate notes that the applicant was one of those responsible for upgrading the Bank's accounting system including the preparation of financial reports. To me, this work seems rather sophisticated for a bookkeeper to carry out. In any event, without prejudging the merits of an application by the applicant for the occupation of accountant, I find that this is not a case where the applicant was so clearly not qualified for the occupation of accountant that an assessment in that occupation would have seemed to be unnecessary.
[13] The scheme of the Immigration Act (the Act) and the Regulations is clear. Because the applicant was entitled to be assessed in the occupation he stated in his application, that of "accountant", and no such assessment was done in accordance with the Act and Regulations, the visa officer erred in law and exceeded his jurisdiction.
[14] Consequently, the application for judicial review is allowed, the decision of the visa officer, dated April 14, 1998, is quashed, and the matter is remitted back for redetermination by a different visa officer in a manner consistent with the above reasons.
JUDGE
OTTAWA, ONTARIO
June 9, 1999
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