Date:
20130501
Docket:
IMM-7430-12
Citation:
2013 FC 453
Vancouver, British Columbia,
May 1, 2013
PRESENT: The
Honourable Mr. Justice Harrington
BETWEEN:
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ALIREZA SHARIFI
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
ORDER AND ORDER
[1]
There
are two aspects to this judicial review. The first is the reasonableness of the
decision of the visa officer denying Mr. Sharifi’s application for permanent
residence in Canada as a Federal Skilled Worker. The visa officer decided that
the applicant had not provided sufficient evidence that he had adequate work
experience within National Occupational Classification (NOC) Code
7312-Heavy-Duty Equipment Mechanics. The bulk of Mr. Sharifi’s work experience
was as a fourth engineer or a third engineer on board ocean-going ships.
[2]
The
second aspect is whether in forming the view that the decision was unreasonable
I was not simply basing myself on the record before me and on the law, but also
on personal knowledge. I practiced maritime law before my elevation to the
bench and had the occasion to conduct on-board interviews, attend inquiries and
represent parties in litigation relating to just about every type of ship
imaginable. To the extent I might be relying on special knowledge, counsel for
the Minister invited me to recuse myself.
[3]
Having
thought the matter through, I am satisfied that I am not relying on any special
knowledge but only on the record and on the law. Therefore, I am not recusing
myself and shall grant this judicial review.
THE
FACTS
[4]
Mr.
Sharifi applied under three occupations:
a. 7312-Heavy
Equipment Inspector-Repairer;
b. 2274-Marine
Engineer; and
c. 1774-Technical
purchaser.
[5]
In
terms of his work experience, he stated that his duties included the
maintenance and repairs of mechanical equipment, diesel engines and electric
generators, repairs and maintenance of generators, and maintenance of
hydraulic systems such as cranes and diesel engine mechanics.
[6]
The
record includes evidence from an employer, Iran Shipping Line Co., that he was
certified as a second engineer and sailed as a third engineer.
[7]
He
served as watchkeeper with respect to Hitachi and B&W diesel engines,
single screw, and with respect to various auxiliary boilers, exhaust boilers
and auxiliary engines on various ships which were named. The Master of the M.V.
“Iran Daleer” reported that he was in charge of maintaining the main engines,
air compressors and the auxiliary boiler, full particulars which were given.
[8]
This
is not a case where the officer demanded more and better particulars from the
employer, or a case where the employer simply identified the applicant by
title, such as vice-president. He was identified by position, and by the type
of work he did. (Monteverde v Canada (Minister of Citizenship and
Immigration), 2011 FC 1402, 211 ACWS (3d) 210, [2011] FCJ No 1710 (QL))
[9]
While
he was obviously qualified to be employed as a marine engineer, that position
was not open in Canada. However, his latest employer, Kish Shipping Line, also
stated that he served them as a “heavy equipment inspector-repairer and diesel
engine mechanic”.
[10]
It
was unreasonable to hold that Mr. Sharifi had not demonstrated that he had
performed any of the duties in the lead statement of NOC 7312 or the main
duties of a heavy-duty equipment mechanic. NOC 7312 indicates that “heavy-duty
equipment mechanics repair, troubleshoot, adjust overall and maintain mobile
heavy-duty equipment used in …transportation.”
[11]
Some
of their duties include checking cranes, adjusting, repairing and testing
equipment, cleaning, lubricating and performing other routine maintenance work
on equipment, engine overhaul, power shift transmissions, fuel injection,
hydraulics or electronics.
[12]
It
seems to me that a qualified marine engineer who holds a second engineer
certificate and who has sailed as a third engineer inherently is able to
carry out the duties of a heavy-duty equipment mechanic, and much, much more.
[13]
There
is a great deal of material in the record as to his work experience which led
away from the visa officer’s decision. The presumption that the record was
fully considered is rebutted because at the very least one would have to
explain why this material was insufficient. (Cepeda-Gutierrez v Canada
(Minister of Citizenship and Immigration) (1998), 157 FTR 35, 83 ACWS (3d)
264, [1998] FCJ No 1425 (QL)).
[14]
Furthermore,
decision-makers are entitled to deference because of their expertise. The visa
officer should be taken to know the functions of a third engineer, even if they
had not been spelled out.
[15]
Consequently,
the visa officer is taken to know the Marine Personnel Regulations
issued under the Canada Shipping Act, 2001. He would know that a fourth
class engineer has at least six months of sea service as an engineer in charge
of machinery on vessels that have a propulsive power of at least 500 kW, has
attended various training courses and has successfully been examined with
respect to applied mechanics, thermodynamics, electro technology, engineering
knowledge of motor vessels and steamships and, once again, much, much more.
[16]
Apart
from not considering the record, the visa officer did not bring to bear the
knowledge he was required to have in order to assess the application. The
decision was patently unreasonable.
ORDER
FOR
REASONS GIVEN;
THIS
COURT ORDERS that:
1.
The
application for judicial review is granted.
2.
The
matter is referred back to another visa officer for reconsideration.
3.
There
is no serious question of general importance to certify.
“Sean Harrington”
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