Date: 20080711
Docket: IMM-1077-07
Citation: 2008
FC 867
Halifax, Nova Scotia, July 11, 2008
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
PRADYMAN BHAILALBHAI PATEL
Applicant
and
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O’KEEFE J.
[1]
This is an
application pursuant to subsection 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (IRPA) for judicial review of the decision
a visa officer at the Canadian High Commission in New Delhi (the officer) dated
January 2, 2006, wherein the officer denied the application for permanent
residence as a member of the economic class.
I.
Background
[2]
Pradymanb Bhailalbhai
Patel (the applicant) filed his first application to immigrate to Canada as a skilled worker in May 2001. His first application was
captured by the transitional Regulations and as such he was asked in December
2003 to submit new forms under the new legislation. The applicant’s second
application was then submitted. In his second application, the applicant
applied in the intended occupation of Mechanical Engineer, under National
Occupational Classification (NOC) 2132. The applicant listed his wife and son
as family members on the application.
[3]
An interview was held
on January 2, 2007 at the Canadian High Commission in New Delhi, India. During the interview the applicant was
questioned by the immigration officer about his work experience as an engineer.
As a result of this transition period, the applicant’s application was assessed
by the officer under both the Immigration Regulations, 1978, SOR/78-172
and the Immigration and Refugee Protection Regulations, SOR/2002-227
(IRPR). In a letter dated January 2, 2007, the officer determined that the
applicant did not meet the requirements for immigration to Canada. In response to the refusal letter, the applicant sent the
officer a fax dated January 17, 2007 asserting that the applicant did indeed
meet the requirements for immigration to Canada. In a letter dated February 27, 2007,
the Canadian high Commission in New
Delhi advised the applicant
that his application had been considered on its substantive merits which fully
concluded his application. This is the judicial review of the officer’s
decision dated January 2, 2007.
II.
Officer’s Decision
[4]
In his decision dated
January 2, 2007, the officer determined that the applicant did not meet the
requirements for immigration to Canada as a member of the economic class,
skilled worker. The officer informed the applicant that pursuant to subsection
11(1) of the Immigration Regulations, 1978, a successful
applicant had to receive at least one unit for “experience” unless they had
arranged employment from an employer willing to hire the person without
experience. The officer informed the applicant that was not satisfied that the
applicant had at least one year of experience as a Mechanical Engineer (NOC
2132), Skill level ‘A’. The officer’s notes provide greater insight into why
the officer was of the opinion that the applicant had failed to meet the requirements.
[5]
With regards to
education, the officer awarded the applicant 20 points under IRPR and 10 points
under the Immigration Regulations, 1978. The officer’s notes read:
PA has completed a Bachelor of
Engineering from the North
Maharashtra University. Original degree and marks sheet
provided.
[6]
With regards to
Experience, the officer awarded the applicant 0 points under both IRPRF and the
Immigration Regulations, 1978. The officer’s notes on experience discuss
three engineering jobs occupied by the applicant. With regards to the
applicant’s work experience at KHS Machinery Ltd., the officer noted that the
applicant stated that was working as a engineer for approximately 20000Rs per
month and that the documentation provided by KHS Machinery Ltd. indicated that
the applicant was in reality paid 8900Rs per month. The officer noted that upon
being questioned about discrepancy, the applicant stated “I don’t know exactly,
but it must be tax”. The officer noted that the documentation from KHS
Machinery Ltd. lacked a description of the applicant’s duties. Finally, the
officer noted:
PA states that he is working as an M4
engineer, but there are M3, 2 and 1 engineers working in the company for more
money.
[7]
With regards to the
applicant’s work experience for Bhupendra Power Control, the officer’s notes
read that the applicant stated that he did maintenance on machines. The officer
noted that the applicant was “vague regarding the types of machines that he
serviced – he [was] not able to tell me exactly how the machine[s] function.”
The officer also noted that the applicant was unable to tell him how the
product emerging from the machine was used in fertilizer, and unable to
describe exactly what happens after the garbage was collected. The officer
noted that the applicant stated that he kept the machines running by
“sharpening the blades and doing whatever other checks [were] necessary based
on his checklist.” The officer’s observation reads: “PA appears to be working
as some type of service technician, not an engineer.”
[8]
With regards to the
applicant’s work experience for M/S Satellite Conveyors, the officer noted that
the applicant stated that his sole job was to install conveyor systems based on
drawings provided to him by his boss and to service these systems once
installed. When asked how he would determine the specs for the conveyor system,
the applicant responded by rule of thumbs and experience. The applicant also
responded that he used no other techniques or formulas to determine the specs
for erecting the conveyors, and that he did not have to calculate loads or
weights for the construction of the conveyor system. The officer’s observations
read as follows:
PA appears to be working as conveyor belt
installer. He is not involved in the jobsite design/layout of the conveyor
system, the costing of the system or the in office design work. PA states that
he does not calculate loads for the conveyor systems he installs and is only
able to design/setup the conveyor systems based on his experience.
The
officer’s final comment with regards to the applicant’s education reads: “I am
not satisfied that PA has performed the duties of a Mechanical Engineer, NOCC
2132 for at least 1 year full time within the past 10 years.”
[9]
With regards to the
applicant’s adaptability or personal suitability, the officer made the
following point awards and notes. Under IRPR, the officer awarded the applicant
4 points for adaptability. Under the Immigration Regulations, 1978, the
officer also awarded the applicant 4 points. In doing so, the officer made a
number of notes. The officer noted that the applicant stated that he believed
his education/professional qualifications would be recognized in Canada as per information from his friends. He had not contacted
CCPE to confirm this. The officer also noted that the applicant had never
travelled or worked outside of India. The officer’s observations read as
follows:
PA appears to have done little in terms
of preparing to work in Cda. He hsas (sic) not been in touch with CCPE, he has
not contacted an (sic) potential employer, he does not know if his ed/prof
qualifications will be accepted and he does not appear to know much about the
cost of living in Cda
[10]
In conclusion, the
officer found that the applicant did not meet the requirements to immigrate to Canada as a member of the skilled workers class and consequently
rejected the application.
III.
Issues
[11]
The applicant
submitted the following issues for consideration:
1.
Did the immigration
officer err in misconstruing and/or ignoring the applicant’s employment history
as a mechanical engineer?
2.
Did the immigration
officer overly narrowly read the NOC in such a narrow way as to exclude the
applicant because he did not perform all of the specified duties of an engineer
despite the NOC stating that a mechanical engineer performs some or all of the
specified duties?
3.
Did the immigration
officer err in not assessing the applicant in alternative similar occupations?
[12]
The issues were
stated at the hearing as follows:
1.
What is the
appropriate standard of review?
2.
Did the officer err
in finding the applicant did not have the experience to be a mechanical
engineer?
3.
Did the officer err
in failing to assess the applicant in alternative similar occupations?
IV.
Applicant’s Submission
[13]
The applicant
submitted that the appropriate standard of review for cases involving a
determination of whether an applicant meets the requirements of a particular
occupation as described in an NOC is reasonableness simpliciter.
[14]
The applicant
submitted that the officer erred by applying an overly narrow interpretation of
NOC 2132. It was submitted that the officer failed to evaluate the applicant’s
skills and experience as a Mechanical Engineer in a manner consistent with the
supporting work experience documentation. The applicant submitted that NOC 2132
defines the occupation in question as someone who “performs some or all of the
specified duties” (Moneim v. MCI, [2000] F.C.J. No. 1977 at paragraph
16). Moreover, requirements of an NOC have to be assessed “with a certain
degree of flexibility” (Moneim, above at paragraph 18). The applicant
submitted that he has a Bachelor Degree in Mechanical Engineering and
approximately 10 years of full time work experience as a Mechanical Engineer.
Thus, the applicant submitted that the officer’s award of zero points for
experience was not reasonable. The applicant submitted that the officer failed
to consider the totality of the evidence before rendering their decision.
[15]
It was further
submitted that the officer erred in failing to assess the applicant for similar
occupations. The applicant noted previous cases where it was found that an
immigration officer had a duty to consider the applicant for similar NOC
occupations where the facts warranted it (Hui v. MCI, [1998] F.C.J. No.
1368, Sy v. MCI, [2002] F.C.J. No. 1179).
V.
Respondent’s Submissions
[16]
The respondent
submitted that the appropriate standard of review for the officer’s
determination was patently unreasonableness. The assessment of the
qualifications and the experience of the applicant is a matter of fact entirely
within the discretion of the visa officer and not subject to judicial review
unless exercised in an unreasonable or improper manner (Parmar v. Canada
(MCI) (1997), 139 F.T.R. 203).
[17]
The respondent
submitted that the duties as described by the applicant in his interview do not
demonstrate that he performed the actions in the lead statement or a
substantial number of the main duties for NOC 2132. It was submitted that the
officer correctly found that the duties and responsibilities described by the
applicant corresponded more with a service person or installer of conveyer
belts than with those listed in NOC 2132. The applicant submitted that
considering that the applicant was not involved in the jobsite design, layout,
cost, or calculation of loads of the conveyor system, the officer’s conclusions
were not patently unreasonable.
[18]
With regards to the
alleged failure to assess the applicant under alternate NOCs, the respondent
submitted that the applicant requested and was assessed in the occupation of
Mechanical Engineer. It was also submitted that even now, the applicant has not
shown how he meets the requirements for Mechanical Engineering Technician.
VI.
Applicant’s Reply
[19]
The applicant further
submitted that the head-note for NOC 2132 states clearly that Mechanical
Engineers do not just research, design and develop machinery, but that they
also “perform duties related to the evaluation, installation, operation and
maintenance of mechanical systems.” It was submitted that these are precisely the
duties the applicant described during his interview.
[20]
The applicant also
reiterated case law supporting that the officer had a duty, based on the facts
of the case, to assess the applicant under related occupations such as a
Mechanical Engineering Technician.
VII.
Analysis
A.
What is the appropriate standard of review?
[21]
The applicant
submitted that the appropriate standard of review is one of reasonableness simpliciter.
The respondent submitted that the appropriate standard of review is one of patently
unreasonable based on the authority of Lim v. Canada (MEI) (1991), 12
Imm. L.R. (2d) 161 (F.C.A.). The case of Lim above, involved an officer’s
determination on whether the appellant was qualified to be a Personnel Officer
in Canada and the Federal Court of Appeal held
that “this was a pure question of fact entirely within the mandate of a visa
officer to resolve.” In that case, the standard of review adopted by the Court
was one of patent unreasonabless. However, in light of the Supreme Court of Canada
decision in Dunsmuir v. New Brunswick, 2008 SCC 9, there remains only
two standards of review in Canada: correctness and reasonableness. In my
opinion, given the factual nature of the question and the expertise of the
immigration officer, I am satisfied that the appropriate standard of review is
reasonableness.
[22]
As to the officer’s
determinations on personal suitability, they too are reviewable on a standard
of reasonableness given that they are a “matter within the discretion on the
part of visa officer” (Kompanets v. Canada (MCI) (2006) 6 Imm. L.R. (3d)
107 (F.C.T.D.) above at paragraph 11).
B.
Did the officer err in finding the applicant did not have the experience to be
a mechanical engineer?
[23]
The applicant
submitted that the officer erred in awarding no points for experience. In
making this argument, the applicant relied on Moneim above, wherein
Justice Tremblay-Lamer of this Court held that it was unreasonable to give zero
points for experience to an accountant who had performed some of the key duties
listed in the corresponding NOC for at least two years. I note that in Moneim
above, the applicant was found to have performed some of the key duties listing
in the corresponding NOC.
[24]
In his decision dated
January 2, 2007, the officer concluded:
I am not satisfied that you meet the
requirements for the occupation of Mechanical Engineers NOC 2132 Skill level
‘A’, since you have not satisfied me that you have performed a substantial
number of the main duties of this occupation as set out in the National
Occupational Classification, including the essential ones.
[25]
A review of the
officer’s CAIPS notes shows the following comment:
I am not satisfied that PA has performed
the duties of a mechanical engineer, NOC 2132 for at least 1 year full time
within the past 10 years.
[26]
The main duties of a
mechanical engineer are listed in NOC 2132 as follows:
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
·
Plan and manage projects, and prepare material,
cost and timing estimates, reports and design specifications for machinery and
systems
·
Design power plants, machines, components,
tools, fixtures and equipment
·
Analyze dynamics and vibrations of mechanical
systems and structures
·
Supervise and inspect the installation,
modification and commissioning of mechanical systems at construction sites of
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.
[27]
The officer, in his
decision letter, stated that the applicant had not satisfied him he had
“performed a substantial number of the main duties of this occupation as set
out in the National Occupational Classification, including the essential ones.”
This taken with the reference in the CAIPS notes that “I am not satisfied that
PA has performed the duties of a mechanical engineer, NOC 2132 […]” indicates
to me that the officer believed that the applicant had to have performed all
the duties of a mechanical engineer or substantially all the main duties of a
mechanical engineer in order to qualify. This is not the case as the NOC
clearly refers to “some of all of the following duties”.
[28]
I am of the view that
the officer made a reviewable error and as a result the application for
judicial review must be allowed and the matter referred to a different officer
for redetermination.
[29]
Because of my finding
on this issue I need not deal with the remaining issue.
[30]
The applicant
proposed a serious question of general importance for my consideration for
certification, but I am not prepared to certify the question.
ORDER
IT IS ORDERED that the application for judicial
review is allowed and the matter is referred to a different officer for
redetermination. No question is certified.
“John
A. O’Keefe”
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