Date: 20090202
Docket: IMM-37-08
Citation: 2009 FC 111
Ottawa, Ontario, February 2,
2009
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
CALVERN
XAVIER RODRIGUES
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
is a judicial review of the decision of a visa officer (Officer) to reject the
Applicant’s application for permanent residence as a member of the skilled
worker class. The only issue argued in this matter was with respect to the Officer’s
evaluation of the Applicant’s experience under job category NOC 1221
Administrative Officers.
II. BACKGROUND
[2]
The
Applicant is a citizen of India and a resident of the United Arab
Emirates.
He is married, with a three-year old son, and his wife’s sister is a Canadian
resident.
[3]
For
three years, the Applicant worked as an Air Exports/Imports Customer Service
and Operations Executive in which he supervised and coordinated cargo movement
and rates, and provided sales support and customer service. Following that, for
approximately the next three years, the Applicant worked as a Customer
Service/Logistics Executive doing essentially the same work as earlier but with
the addition of some element of financial management. In the final period from
April 2007 to the time of application, the Applicant worked at the supervision
of trans-shipments, imports and exports, as well as of flights and cargo.
[4]
The
Applicant applied under a number of different NOC codes, however the only one
relevant to this case is that of NOC 1221 Administrative Officers. The lead description
of NOC 1221 is that “administrative officers oversee and implement
administrative procedures, establish work priorities and co-ordinate the
acquisition of administrative services such as office space, supplies and
security services.” The main duties of an administrative officer are described
as being to:
a.
Oversee
and co-ordinate office administrative procedures and review, evaluate and
implement new procedures
b.
Establish
work priorities, delegate work to office support staff, and ensure deadlines
are met and procedures are followed
c.
Carry out
administrative activities associated with admissions to post-secondary
educational institutes
d.
Administer
policies and procedures related to the release of records in processing
requests under government access to information and privacy legislation
e.
Co-ordinate
and plan for office services, such as accommodation, relocations, equipment,
supplies, forms, disposal of assets, parking, maintenance and security services
f.
Assist in
preparation of operating budget and maintain inventory and budgetary controls
g.
Assemble
data and prepare periodic and special reports, manuals and correspondence.
[5]
The
Officer noted that the Applicant’s principal duties included the preparation of
reports for jobs performed which were sent to management and the collection of
data, procedures, and suggestions. The Officer also noted that the Applicant
evaluated other people’s jobs to ensure that their jobs matched the
description.
[6]
The
Officer concluded that as regards an “Administrative Officer,” the Applicant’s
evidence was that he worked “in customer service and logistics (not as a
supervisor).” The Officer found that the Applicant’s real functions were the coordination
of cargo and some financial management.
III. ANALYSIS
[7]
The
visa officer’s function in this matter is to make a largely factual
determination, which is informed by particular experience in this area. Given
this, the standard of review is reasonableness with appropriate deference owed
to the findings of fact. As such, there is a wide range of possible reasonable
outcomes (Dunsmuir v. New Brunswick, 2008 SCC 9 at paragraph 49).
[8]
The
best that can be said in respect of the Applicant’s qualifications under NOC
1221 is that he performs some element of oversight in an indirect manner. The
function of oversight is only one element in the NOC 1221 main duties
requirement.
[9]
In
the Federal Court of Appeal’s decision in Noman v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 1169,while the Court outlined that
an applicant was not required to perform all of the main duties in a NOC job
category; they did require that an applicant perform a few – meaning more than
one.
[10]
The
real function of the visa officer is to determine what is the pith and
substance of the work performed by an applicant. Tangential performance of one
or more functions under one or more job categories does not convert the job or
the functions from one NOC category to another.
[11]
In
this case, there is ample evidence that the real function of the Applicant was
the coordination of logistics, transportation of goods, and dealing with some
aspects of finances. On the evidence, it was open to the Officer to reach the
conclusion that the Applicant did not have sufficient experience to match the
requirements of NOC 1221 for this skilled worker application.
IV. CONCLUSION
[12]
I
therefore find that the Officer’s decision is reasonable. This application for
judicial review will be dismissed. There is no question for certification.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed.
“Michael
L. Phelan”
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