Date: 19980716
Docket: IMM-2667-97
BETWEEN:
SURINDER SINGH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM J.:
INTRODUCTION
[1] This is an application for judicial review of a decision of a visa officer, Mary Keefe, on April 28, 1997 to deny the applicant's application for permanent residence filed under the independent category.
FACTS
[2] The applicant was interviewed by the visa officer on March 31, 1997. The visa officer assessed the applicant in the occupation of Automobile Mechanic because he stated that he had been employed with United Quick Stops, Incorporated, Lake Katrine, New York as an auto mechanic since 1993. The applicant added that his employment was a partnership in a franchise and that his reference letter was prepared by his business partner. The visa officer noted from the reference letter that the applicant was responsible for the sales and service department. The visa officer concluded from the applicant's description of his past and current duties and responsibilities that he was not an Automobile Mechanic as outlined in the Canadian Classification and Dictionary of Occupations (CCDO).
[3] The visa officer advised the applicant that, apart from his degrees in Fine Arts, he did not possess any formal training in his intended occupation of Automobile Mechanic. The CCDO requires more than two years and up to and including four years of training in order to qualify as an Automobile Mechanic. Appendix B of the CCDO states "[t]he average four-year university or college curriculum (except for liberal arts which is not vocationally oriented) is considered as equivalent to about two years of specific vocational preparation" (SVP).
[4] The applicant stated that his intended destination was Ontario and produced a letter, dated September 17, 1996, from the Ontario Ministry of Education which stated that he qualified for a temporary certificate as an Automotive Service Technician. The visa officer advised the applicant that, notwithstanding this letter, the entry requirements for the occupation according to the licensing body in Ontario require that an individual possess over 9,000 hours of training and instruction in order to obtain certification as an Automotive Mechanic/Automotive Service Technician. Since the applicant stated that he had no formal training and provided no proof of on-the-job training, the visa officer held that he did not qualify as an Automotive Mechanic.
[5] The visa officer therefore assessed the applicant as an Automobile Mechanic Helper, an occupation which the visa officer believed that the applicant appeared to possess some experience and which he could reasonably be expected to follow in Canada. The applicant received the following units of assessment in each category:
| Specific Vocational Preparation 3 |
[6] Thus, the applicant was denied permanent residency in Canada on two grounds. First, the applicant received zero units of assessment for the occupational factor. Second, the applicant obtained insufficient units of assessment to qualify for permanent residency.
[7] The applicant seeks judicial review of that decision.
SUBMISSIONS
1. The Applicant's Submissions
[8] The applicant submits that his counsel's cross-examination of the visa officer impacts on her credibility. The applicant did not appear to argue this point with much vigor. The applicant states that the Court should not believe that the visa officer informed the applicant that she assessed him as an Automobile Mechanic Helper. The applicant notes that, when asked whether she had informed him of this fact, the visa officer said she could not recall his response. The applicant also notes that the visa officer claims that she told the applicant that he may wish to contact "the certifying body" to determine whether he was eligible for apprenticeship, but she could not name any certifying body. In addition, she also stated that she discussed that the automotive certification required 9000 hours of training and apprenticeship even though she could not name the certifying body.
[9] The applicant's second submission is that the visa officer erred in her definition of SVP by excluding "Experience in other (less responsible jobs)". The applicant submits that he has acquired nearly four years of SVP at Mall Mobile Service and an additional 13 months of SVP at Dashmesh Motors. Moreover, the applicant submits that the visa officer stated that 9000 hours of training is a provincial requirement, not a federal requirement. Therefore, he submits that it is irrelevant to the assessment of the SVP.
[10] The applicant's third submission is that the visa officer's failure to provide information to the applicant about the training requirements constituted a denial of procedural fairness. The applicant submits that the visa officer could not name the certifying body which had these training requirements despite being asked by the applicant on several occasions. The applicant contends that it was a denial of procedural fairness to not provide this information.
[11] The applicant's fourth submission is that the visa officer made an unreasonable finding of fact by holding that the applicant did not have an uncle in Canada. The applicant submits that his consultant indicated that he had an uncle in Canada, that he sent evidence of his uncle's permanent resident status to the visa office and that he mentioned his uncle at the interview.
[12] The applicant's final submission in his written submissions is that the visa officer failed to apply the criteria used to assess the applicant's personal suitability. The applicant argues that the visa officer's assessment of personal suitability does not mention the criteria nor does it apply the facts to these criteria. Thus, the applicant submits that the assessment was arbitrary. Furthermore, the applicant submits that he submitted a job offer from J.K. Auto Electric which was not mentioned by the officer. Counsel for the applicant failed to make mention of this submission at the hearing before me.
2. The Respondent's Submissions
[13] The respondent submits that the visa officer's credibility remains intact.
[14] The respondent further states that there was no breach of fairness concerning the applicant's work experience because the applicant was clearly aware that his work experience was in issue.
[15] The respondent further submits that there is no onus on the visa officer to provide the name of the certifying body in Ontario. The onus remains on the applicant throughout the interview to satisfy the visa officer.
[16] The respondent's also states that even if the visa officer made an error with respect to the applicant's uncle, an additional five points would not make a difference because there was zero occupational demand for his occupation.
[17] The respondent's final submission is that the visa officer fairly evaluated the applicant's personal suitability.
DISCUSSION
[18] The applicant's first submission is that the cross-examination of the visa officer reveals that she is not credible. Specific examples of her alleged lack of credibility are that she could not recall the applicant's response when she told him that she would assess him in an alternative occupation and she could not remember the name of the certifying body that requires 9000 hours of training. I have examined the transcript of the cross-examination and I am satisfied that it does not show that the visa officer is attempting to be evasive or misleading. Not to recall specific details of the interview by itself, cannot lead one to the conclusion that the visa officer is not credible.
[19] The applicant's second submission is that the visa officer erred in her definition of SVP by excluding "Experience in other (less responsible jobs)". I do not see how the applicant's experience as a mechanic's assistant at Mall Mobile Service or Dashmesh Motors would affect the number of SVP units awarded. In Schedule 1 of the Immigration Regulations, the SVP criterion is set out as follows:
| To be measured by the amount of formal professional, vocational, apprenticeship, in-plant, or on-the-job training specified in the Canadian Classification and Dictionary of Occupations, printed under the authority of the Minister, as necessary to acquire the information, techniques and skills required for average performance in the occupation in which the applicant is assessed under item 4.
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Être mesurée suivant la période de formation professionnelle, d'apprentissage, de formation en usine ou en cours d'emploi précisée dans la Classification canadienne descriptive des professions, imprimée par l'autorisation du Ministre, nécessaire pour acquérir les connaissances théoriques et les pratiques indispensables à l'exécution des tâches de l'emploi au regard duquel le requérant est apprécié d'après l'article 4.
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[20] Item 4 refers to the criterion entitled "Occupational Demand" which reads:
| Units of assessment shall be awarded on the basis of employment opportunities available in Canada in the occupation that the applicant is qualified for and is prepared to follow in Canada, such opportunities being determined by taking into account labour market demand on both an area and national basis.
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Des points d'appréciation sont attribués en fonction des possibilités d'emploi au Canada offertes aux personnes exerçant la profession pour laquelle le requérant possède les compétences voulues et qu'il est prêt à exercer au Canada, ces possibilités étant déterminées en tenant compte de la demande tant nationale que régionale sur le marché du travail.
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[21] It is clear that SVP is assessed only with respect to the occupation that the visa officer deems the applicant is qualified for and is prepared to follow in Canada. In the case at bar, the visa officer determined that the applicant was not qualified to be an Automobile Mechanic under the CCDO definition. Therefore, the visa officer correctly assessed SVP with respect to the occupation of Automobile Mechanic Helper and the applicant was awarded three units of assessment. There was no error in the assessment of SVP.
[22] The applicant's third submission is that the visa officer denied procedural fairness to the applicant by not naming the certifying body which required 9000 hours of training for certification. The applicant cites the decision in Lee v. Canada (M.C.I.) (1995), 29 Imm.L.R. (2d) 222 (F.C.T.D.), in support of his claim that it is a reviewable error to fail to provide information on training requirements (at pages 223-24):
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The visa officer, on June 20, 1994, replied to the letter and Mr. Sheppit stated at page 2 of the letter: |
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As regards her alternative occupation as a legal secretary, it seems that Ms. Lee lacked any necessary training as a secretary in that she did not have 3 to 6 months of secretarial training in a business college or one year in a special commercial course at a high school. She did not have 3 months to 1 year stenographic experience in law either. Therefore, she did not meet the training and entry requirements of a legal secretary. |
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[para4] There was no evidence to show on what basis these training requirements were decided upon by the visa officer. More importantly, the visa officer did not deal with the applicant's eight years of experience as a legal secretary to the chief clerk in the law firm. The applicant had specifically asked to have these eight years assessed and there was no such assessment. I was not made aware of any prerequisites for a legal secretary such as are set out by the immigration counsellor. It may be that for someone with no experience it would be legitimate to look at training requirements, similar to those set out by the visa officer, but if someone has experience, the experience should be assessed. There is nothing in the guidelines of the Canadian Classification and Dictionary of Occupations (CCDO) with respect to legal secretaries which contemplates any such training requirements. If there are requirements that an applicant to be assessed as a legal secretary must meet, fairness demands that this information must be provided to applicants. Accordingly, the visa officer acted in error. |
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[23] I believe that the facts in Lee, supra, are similar to those in the case at bar. In both cases, the visa officer provided training requirements in addition to those in the CCDO but could not state their source. A visa officer cannot merely state that the applicant has not met the training requirements. Fairness requires that there must be some identifiable basis for the training requirements and here there is none. Thus, the visa officer acted in error.
[24] The applicant's fourth submission is that the visa officer erred by finding that the applicant did not have an uncle in Canada. The visa officer therefore gave the applicant zero points in the "Bonus" section. The applicant presents an affidavit of birth from the applicant's father, his uncle's passport showing the applicant's father's name, his uncle's record of landing, Ontario health card and a letter from his uncle offering assistance. The visa officer does not refer to this evidence in her decision and only states in her affidavit that he has no relatives in Canada. I am satisfied that there is sufficient evidence of the uncle's presence in Canada. The applicant is entitled to received an additional five units of assessment.
[25] The applicant's final written submission is that the visa officer failed to correctly apply the criteria used to assess the applicant's personal suitability. I see no reviewable error in the personal suitability assessment.
[26] Thus, it appears that the visa officer made two errors. The visa officer concluded that the applicant did not qualify under the CCDO as an Automobile Mechanic because he did not have 2 to 4 years of experience and 9000 hours of training and apprenticeship. As I mentioned above, the visa officer could not provide the basis for the requirement of 9000 hours of training so the visa officer erred in that respect. However, the visa officer also found that the applicant did not have 2 to 4 years of experience. Under appendix B of the CCDO, the applicant's university education is not equivalent to any years of SVP because it was a liberal arts degree. In addition, the visa officer determined that the applicant's other employment experience did not qualify as experience as an automobile mechanic. I see no reason to interfere with that finding.
[27] In addition, I have found that the visa officer erred by finding that the applicant did not have an uncle in Canada.
[28] Notwithstanding the above mentioned errors and even if these errors were rectified, the applicant would not be entitled to permanent residency in Canada. The applicant does not have the requirements to be an automobile mechanic. The occupational demand for Automobile Mechanic Helper is zero and an additional five units under the "Bonus" category would only yield the applicant a total of 59 units of assessment.
CONCLUSION
[29] For the above reasons, the application for judicial review is denied.
[30] Neither party submitted a question for certification.
"Max M. Teitelbaum"
Judge
Toronto, Ontario
July 16, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-2667-97
| STYLE OF CAUSE: SURINDER SINGH |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: JULY 16, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: TEITELBAUM, J.
DATED: JULY 16, 1998
APPEARANCES:
Mr. Max Chaudhary
For the Applicant
Mr. Godwin Friday
For the Respondent
SOLICITORS OF RECORD:
Chaudhary Law Office
812 - 255 Duncan Mill Road
North York, Ontario
M3B 3H9
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980716
Docket: IMM-2667-97
Between:
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
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