Date: 19990831
Docket: IMM-3357-98
BETWEEN:
IOURI V. GOUSSEV,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
REED J.
[1] The applicant seeks an order setting aside a decision of a visa officer that found the applicant was not entitled to an award of points sufficient to justify approving his application for permanent residence in Canada. The main issue is whether or not he was properly assessed by reference to his intended occupations of marine engineer (NOC 2148) and mechanical engineer (NOC 2132).
[2] The NOC 2132 description of the job duties of a mechanical engineer indicates that that occupation involves the design and development of machinery as well as its repair, maintenance and installation.
| Mechanical Engineers research, design and develop machinery and systems for heating, ventilating and air-conditioning, power generation, transportation, processing and manufacturing. They also perform duties related to the evaluation, installation, operation and maintenance of mechanical systems. Mechanical Engineers are employed by consulting firms, power generating utilities, and in a wide range of manufacturing, processing and transportation industries, or they may be self-employed. |
| Main duties Mechanical Engineers perform some or all of the following duties: Conduct research into the feasibility, design, operation and performance of mechanisms, components and systems. Prepare material, cost and timing estimates, reports and design specifications for machinery and systems. Design power plants, machines, components, tools, fixtures and equipment. Supervise and inspect the installation, modification and commissioning of mechanical systems at construction sites or in industrial facilities. Develop maintenance standards, schedules and programs and provide guidance to industrial maintenance crews. Investigate mechanical failures or unexpected maintenance problems. Prepare contract documents and evaluate tenders for industrial construction or maintenance. Supervise technicians, technologists and other engineers and review and approve designs, calculations and cost estimates. |
[3] The NOC 2148 description of the job duties of a marine engineer is much briefer. It describes that occupation as involving the design and development of vessels, equipment and systems, as well as the building repair and maintenance of vessels and systems:
| Marine and navel engineers design and develop marine vessels and floating structures, and associated marine power plants, propulsion systems and related systems and equipment and oversee the building, maintenance and repair of vessels and marine systems. |
[4] The applicant has a diploma from Leningrad College of Marine Engineering (now the State Marine Academy named after Admiral Makarov). His diploma is entitled Engineer Ship-Mechanic. He completed a study plan in specialty 1403: Maintenance of Ship Power Stations. The visa officer accepted the applicant"s education as qualifying him to be an engineer but concluded he had never pursued that profession. The Canadian Council for Professional Engineers provided an informal positive assessment of the applicant"s qualifications "for immigration purposes". This assessment was not a determination that the applicant was entitled to work as an engineer in Canada.
[5] After his graduation, the applicant worked in Russia, from November 1993 to July 1996, for White Sea & Omega Shipping (Belomorski-Onezhskoe Parokhodstvo). A reference letter from his employer describes his job duties:
| ... in 1993 due to a Personnel Department assignment he worked as an Engineer-Ship Mechanic of the 3rd category on company"s transport vessels with dead weight of up to 5000 registered tons. He managed maintenance and repair of main and auxiliary engines, ship systems and mechanisms due to schedule and manuals. He supervised technical maintenance of equipment, troubleshot and fixed malfunction of system and mechanism operation professionally and in time. Goussev Iouri Viktorovich has professional knowledge, constantly improves his skills and in addition to his service duties masters in new technology of the work leading manufacturers. Based on gained experience, navigation qualification, trouble-free service and successfully passed exams he received a diploma and qualification of Engineer-Ship Mechanic of the 2nd category. Goussev Iouri Viktorovich is fluent in English and has authority with management and colleagues. He has a calm and even-tempered character. [emphasis added] |
[6] The applicant"s work record book provides the following description of the employment:
| Occupation:
|
Mechanic
|
| ...
|
|
| 1. 3.11.1993
|
Employed as a 3rd Ship Mechanic on the motor ship "Baltijskij-5"
|
| 2. 30.11.1993
|
Assigned as a 3rd Ship Mechanic to the motor ship "Kizhi"
|
| 3. 06.02.1995
|
Assigned as a 3rd Ship Mechanic to the motor ship "Shotman"
|
| 4. 20.10.1995
|
Assigned as a 3rd Ship Mechanic to the motor ship "Volga-4002"
|
| 5. 01.07.1997
|
Dismissed at his own will ...
|
[7] The applicant and his family spent one year in Israel from the summer of 1996 to the summer of 1997. They returned to Russia because they did not like Israel. He worked as a fork-lift mechanic while in Israel.
[8] The applicant was interviewed by a visa officer on April 23, 1998. The applicant and the visa officer discussed his job experience. There was discussion about whether he was a mechanic or an engineer. He stated that the word "mechanic" on his work record was an incorrect translation from the Russian "mekhanik". He suggests that the Russian word can mean mechanical engineer, and in his case, it should have indicated that he was a mechanical engineer. The visa officer took a different view.
[9] The visa officer"s CAIPs notes state:
| ... He worked in Israel as a fork-lift truck mechanic. At B.O. Parokhodstvo ("BOP") he says he spent some time working aboard ship and some time on shore. He installed and repaired ships" engines. I pointed out to him that his work book listed him a third mechanic, not engineer. He attributed this to poor translation (yet the Russian version clearly says "mekhanik" not "inginier"). From a description of his duties I concluded that subject spent part of the period from Dec 1993 to July 1996 working as a ship"s mechanic, and part of the time working as an engineer officer ... I am not satisfied that he has experience as a mechanical engineer. |
[10] The visa officer concluded that the applicant did not have the employment experience to qualify as either a mechanical engineer or a marine engineer. She found that he had the employment experience to work as a marine engineer officer (NOC 2274), but there was no occupational demand for this occupation. The applicant also qualified as an industrial mechanic (marine) (NOC 7311) for which there was an occupational demand factor of 10. The applicant nevertheless only scored 65 points and was thus not admissible to Canada. No argument with respect to this last assessment was made to me and it did not play a role in the applicant"s critique of the visa officer"s decision.
[11] The visa officer stated in the refusal letter, which she sent to the applicant, that he did not meet the minimum entry requirements for the occupation of mechanical engineer. She made no reference to any assessment under the occupation marine engineer. She stated in the refusal letter that she had assessed the applicant as a marine-engineer officer (NOC 2274) because she stated in the letter that this was the most beneficial category for him. (Actually NOC 7311 appears to be more beneficial but the parties have treated that as irrelevant to this application). Counsel for the applicant argues that the visa officer erred because she did not assess the applicant as a marine engineer and because she assessed the applicant in an occupational category in which he did not seek to be assessed. He had told the visa officer that he was not a ship"s officer.
[12] While the visa officer did not expressly refer to the occupation of marine engineer in the refusal letter, in her affidavit she states that she had concluded that the applicant had no occupational experience as a marine engineer for the same reason he had no occupational experience as a mechanical engineer: he had not worked as an engineer.
[13] The applicant"s work record and his letter of reference do not show that he was involved in the design or development of machinery, vessels or systems. The applicant"s own affidavit sets out how he described his work experience to the visa officer:
| During my interview, I told the Visa Officer that when I worked with the White Sea & Omega Shipping Company (Belomorski-Onezhskoe Parokhodstvo) from November 1993 to July 1996, I worked aboard ship and on shore. I supervised the installation and repair of power plants, propulsion systems and other machinery on the ships of my employer. |
[14] Counsel for the respondent referred me to the jurisprudence that has stated that an informal or preliminary assessment by a visa officer does not constitute an assessment of the applicant and that a visa officer has a duty to carry out an assessment of an applicant in the person"s intended occupation; see, for example Issaeva v. Canada (Minister of Citizenship and Immigration) (1996), 37 Imm.L.R. (2d) 91 (F.C.T.D.), and Birioulin v. The Minister of Citizenship and Immigration (IMM-812-98, February 16, 1999). I do not understand this jurisprudence to require a visa officer to continue an assessment in a given occupational category after it has become clear that the applicant cannot obtain the required number of points to be granted landing. For example, if there is a requirement that at least one point be awarded under a given factor, and the visa officer determines that the particular individual will be awarded zero under that factor, the visa officer is not required to continue a pointless exercise of evaluating the other factors. An assessment has been done.
[15] The Issaeva and Birioulin cases speak to a situation in which an assessment, had it been completed, might have led to a conclusion that the applicant could be awarded enough points to be granted landing. That was not the situation in this case with the assessment of the applicant by reference to the occupational categories of mechanical engineer and marine engineer. The present situation is similar to those in Ou v. Canada (Minister of Citizenship and Immigration) (1997), 39 Imm.L.R. (2d) 227 (F.C.T.D.), and Cai v. Minister of Citizenship and Immigration (IMM-883-96, January 17, 1997, F.C.T.D.). Also, in assessing the applicant under the category marine engineer officer (NOC 2274), and mechanic (marine) (NOC 7311), the visa officer was only undertaking the duty this Court has said visa officers must perform, that is, assessing the applicant in alternate occupational categories to those he specifically identified, categories that might lead to a more favourable result for him; see, for example, Gaffney v. Canada (Minister of Employment and Immigration) (1991), 12 Imm.L.R. (2d) 185 (F.C.A.).
[16] Counsel for the applicant argues that a breach of the rules of fairness occurred because the visa officer did not give the applicant an adequate opportunity to answer her concerns about his lack of appropriate work experience, as either a marine or mechanical engineer. The applicant states in his affidavit:
| What is particularly troubling to me is that if the Visa Officer had any concerns about my qualifications and work experience, she should have raised her concerns with me at the interview and allow me the opportunity to address them. This she did not do. |
[17] The applicant"s assertion is not supported by the record. A review of the transcript of the cross-examination of the visa officer reveals that, while she was not able to remember precisely the details of the interview, she remembered clearly that most of the interview had been concerned with questioning the applicant about his occupational experience and what he did when he worked for Belomorski-Onezhskoe Parokhodstvo. This assertion is supported by the content of her CAIPs notes.
[18] Counsel for the applicant refers to the visa officer"s handwritten notes, which are cryptic indeed, and to the fact that the applicant was assessed as having had the educational qualifications to work as a mechanical or marine engineer. Counsel refers to the fact that the applicant"s educational qualifications entitled him to engage in an occupation much more demanding than that of mechanic described in the NOC. Counsel states that these factors mean that the applicant"s application falls into the "grey area" and that this required the visa officer to express more explicitly to the applicant her concerns about his lack of job experience, so that he could answer those concerns.
[19] In the first place, the burden is on the applicant to demonstrate that he is entitled to landing, and this includes demonstrating that he has the relevant work experience for the occupational category by reference to which he seeks assessment. Secondly, the visa officer is not required to repeatedly express her concerns about the weaknesses of the application. It is sufficient if her concerns are expressed with sufficient particularity to make the applicant aware of their nature and scope, and he is given an opportunity to respond to those concerns. Lastly, the material on the record more than demonstrates that both those conditions were fulfilled.
[20] The following are some excerpts from the visa officer"s cross-examination:
| ... my recollection is that the bulk of the interview was in fact -- consisted in fact of my questioning him about what he did there. [p. 16] I do recall actually him saying that he -- he was involved in installation of systems into ships. I certainly don"t recall that he ever told me that he was involved in the development of new systems. [p. 23] -- half way through my CAIP notes it says that I pointed out to him that it [his work record] would put him as a third mechanic, not an engineer, and I -- I simply note that I thought [I] exhausted the issue of experience by going through exhaustively, you know, what he did for how long he did it or didn"t, and so on. [p. 28] -- I can"t recall whether I used those exact words, but certainly since the bulk of the interview was questioning him about his experience, about what he did, about you know, whether he -- what kind of duties he did, and again by pointing out explicitly to him that, "I notice that your work book lists you as a certain mechanic and not an engineer", I would -- ... -- I repeat, I"m not quite sure what you mean by raising the issue of experience. ... -- the issue was raised and in fact it occupied the bulk of the interview. [pp. 29-30]. |
[21] The above passages from the cross-examination are only some of those that refer to the visa officer"s questioning of the applicant about the work he did for Belomorski-Onezhskoe Parokhodstvo. As noted, her evidence is supported by the CAIPs notes. It is simply untenable to suggest that she did not give the applicant an opportunity to respond to her concerns about his lack of experience.
[22] Counsel for the applicant argues that the visa officer ignored information, specifically the Canadian Council of Professional Engineers assessment, and the employer"s letter of reference. While neither of these documents are mentioned expressly in the CAIPs notes, I cannot conclude that they were ignored. In the affidavit prepared for the purposes of this case the visa officer states:
| During my interview with the Applicant, I raised my concerns that he had experience in the occupation of marine engineer officer described in national occupation classification ("NOC") 2274 and/or in the occupation of marine engineer mechanic described in NOC 7311 and not in other occupations by pointing out to him that the documents submitted by him in support of his application referred to these occupations and not the occupations listed on his application form. I took his explanations of these discrepancies into account in making my decision. Before making my decision, I also noted that the Canadian Council of Professional Engineers (the C.C.P.E.) assessment of the applicant"s education, but noted that the C.C.P.E. had not assessed or commented on the applicant"s professional experience. |
[23] Also, as noted above, the CCPE assessment is of limited value since it expressly states that that assessment is not an indication that the applicant can work as an engineer in Canada. The employer"s letter of reference also does not buttress the applicant"s claim to be a mechanical or marine engineer. It describes him as an "Engineer-Ship Mechanic of the 3rd category" who, after having gained knowledge and experience on the job, successfully passed exams and received a diploma and the qualifications of an "Engineer-Ship Mechanic of the 2nd category". As noted above, the visa officer repeatedly noted in cross-examination that while she may not have made a specific reference to the employer"s letter, the bulk of her interview of the applicant consisted of asking questions of the applicant about the duties he performed for that employer. It simply cannot be seriously argued that the visa officer ignored the employer"s reference letter set out in paragraph 3, supra .
[24] I turn then to the argument that the visa officer relied upon extrinsic evidence. As noted, during the interview, one of the statements made by the applicant was that his work log had been improperly translated. The visa officer is fluent in Russian and examined the applicant"s original documents. She stated that she would have expected them to say "inginier" if the applicant was in fact an engineer. After the interview, the visa officer consulted the Oxford Russian-English Dictionary (1993), which confirmed that "mekhanik" means mechanic. The applicant asserts that in doing so the visa officer took into account extrinsic evidence, and this constitutes a breach of natural justice. The applicant included in his application record an excerpt from a Russian-English dictionary (Russky Yazyk, Moscow, 1992), which appears to equate the word "mekhanik" with mechanical engineer, although it is difficult to be certain since the explanatory notes that accompany the definitions are written in Russian.
[25] I am not convinced that the consultation of the Oxford dictionary was the use of extrinsic evidence. The applicant and the visa officer had differing views over whether a mechanical engineer would be described by the Russian word "inginier" rather than "mekhanik". This concern was put to the applicant at the interview; he was given an opportunity to respond to it. The visa officer, after the interview, consulted what she considered to be an authoritative dictionary that confirmed her view, a dictionary that is easily publically available. This does not appear to me to be much different from what judges routinely do in consulting authorities after the hearing of a case and, unless those authorities raise an entirely new point that was not discussed at the hearing, do not call those authorities to counsel"s attention.
[26] In any event, even if the visa officer"s conduct was an acceptance of extrinsic evidence, it is inconsequential in this case. Many words have several meanings. The English word "engineer", for example, is one. The title of the applicant"s job, when translated from Russian to English, is not the most significant of considerations. It is the duties he performed in that job that govern, not the title it carries. The visa officer makes it clear that it was the applicant"s job duties that she relied upon for her conclusion, not the applicant"s job title. The visa officer did not err in concluding that those duties did not correspond to the NOC descriptions of a marine or mechanical engineer.
[27] For the reasons given, this application must be dismissed.
(Sgd.) "B. Reed"
Judge
Vancouver, British Columbia
31 August 1999
[28]
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-3357-98
STYLE OF CAUSE: IOURI V. GOUSSEV
v.
MCI
PLACE OF HEARING: VANCOUVER, BC
DATE OF HEARING: AUGUST 24, 199
| REASONS FOR ORDER OF REED, J. |
DATED: AUGUST 31, 1999
APPEARANCES:
| MR. ANDREW WLODYKA FOR THE APPLICANT |
| MS. KIM SHANE FOR THE RESPONDENT |
SOLICITORS OF RECORD:
LAWRENCE WONG & ASSOC
| VANCOUVER, BC FOR THE APPLICANT |
MORRIS ROSENBERG
DEPUTY ATTORNEY
| GENERAL OF CANADA FOR THE RESPONDENT |
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