Date: 20031217
Docket: IMM-1716-02
Citation: 2003 FC 1497
Toronto, Ontario, December 17th, 2003
Present: The Honourable Madam Justice Heneghan
BETWEEN:
MASOUD AFRAZI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Masoud Afrazi (the "Applicant") seeks judicial review of the decision of Visa Officer Sara Trillo (the "Visa Officer") dated March 11, 2002. In her decision, the Visa Officer denied the Applicant's application for permanent residence in Canada.
[2] The Applicant, a citizen of Iran, sought admission into Canada as a permanent resident in the category of an independent and assisted relative, in October 2000. He sought assessment as a Personnel Officer pursuant to the National Occupational Classification ("NOC") , c.1223. He attended an interview at the Canadian Consulate in New York City on March 7, 2002.
[3] During the interview, he was questioned about his current employment, including his responsibilities. The Applicant was also asked to record his employment responsibilities on paper.
[4] The Visa Officer was not satisfied that the Applicant was qualified for his intended occupation as Personnel Officer, NOC 1223. According to her affidavit that was filed in this proceeding, she kept notes both during and after the interview. These notes, known as the Computer Assisted Immigration Processing System ("CAIPS") notes, show that she advised the Applicant of her concerns about his eligibility for his intended occupation.
[5] The refusal letter shows that the Visa Officer assessed the Applicant as an Administration Officer, NOC 1221 and determined that he did not meet the qualifications for that position. The refusal letter provided, in part, as follows:
Pursuant to subsections 8(1) and 10(1) of the Immigration Regulations, 1978, independent and assisted relative applicants, the class in which you have applied, are assessed on the basis of the factors outlined in Schedule I of the Immigration Regulations. These factors are age, occupational factor, education and training, experience, arranged employment or designated occupation, demographic factor, education, knowledge of English and French languages and personal suitability. You were assessed in the occupation in which you indicated that you wished to be assessed, Personnel Officer, NOC 1223. You will find hereafter the units of assessment awarded for the selection criteria for your intended profession:
Age 10
Occupational factor 00
Education and Training 15
Experience 00
Arranged employment or
designated occupation 00
Demographic factor 08
Education 15
Knowledge of English 06
Knowledge of French 00
Bonus 05
Personal suitability 05
TOTAL 64
After interview, you have obtained insufficient units of assessment to qualify for immigration to Canada, the minimum requirement being 70 units. You have no work experience in your intended occupation in Canada. Your work experience is as a Administration Officer, NOC 1221. I also assessed your application in this occupation, but you also fail for not having achieved 70 units of assessment, and I have satisfied myself that units of assessment adequately reflect your chances of successful establishment in Canada, even if you did not provide proof of relationship to this person. All my doubts concerning your application were explained to you at your interview.
[6] The Applicant now argues that the Visa officer erred in law in her interpretation of factor 4 of the selection grid provided in the Immigration Regulations, 1978, SOR/78-172, as amended (the "Regulations"). Factor 4 deals with the occupational factor and provides as follows:
|
Column I
Factors
|
Column II
Criteria
|
Column III
Max. Units
|
|
4. Occupational
Factor
|
(1) Units of assessment shall be awarded on the basis of employment opportunities in Canada in the occupation
(a) for which the applicant meets the employment requirements for Canada as set out in the National Occupational Classification;
(b) in which the applicant has performed a substantial number of the main duties as set out in the National Occupational Classification, including the essential ones; and
(c) that the applicant is prepared to follow in Canada.
(2) The employment opportunities shall be determined by taking into account labour market activity on both an area and a national basis, following consultation with the Department of Human Resources Development, provincial governments and any other relevant organizations and institutions.
|
10
|
|
Colonne I
Facteurs
|
Colonne II
Critères
|
Colonne III
Nombre
maximal
de points
|
|
4. Facteur
professionnel
|
(1) Des points d'appréciation sont attribués en fonction des possibilités d'emploi au Canada dans la profession :
a) à l'égard de laquelle le requérant satisfait aux conditions d'accès, pour le Canada, établies dan la Classification nationale des professions ;
b) pour laquelle le requérant a exercé un nombre substantiel des fonctions principales établies dans la Classification nationale des professions, dont les fonctions essentielles ;
c) que le requérant est prêt à exercer au Canada.
(2) Ces possibilités sont déterminées en fonction de l'activité sur le marché du travail aux niveaux national et régional, après consultation du ministère du Développement des ressources humaines, des gouvernements provinciaux et de toute autre organisation ou institution compétente.
|
10
|
[7] Determination by a visa officer of whether an individual meets the criteria of a particular occupation by determining that he or she has performed a "substantial number of the main duties as set out in the National Occupational Classification, including the essential ones" is a matter of fact. As such, that determination is reviewable on a standard of patent unreasonableness, see Cha v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 423. In this case, the record shows that the Visa Officer's negative decision is supported by the evidence before her.
[8] The decision here under review is one made by a duly authorized delegate of the Respondent, in the exercise of a statutory discretion. The applicable standard of review is set out in [1982] 2 S.C.R. 2">Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2 at pages 7 and 8 as follows:
...Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere. ...
[9] There is nothing on the face of the record here to show that the Visa Officer erred in the manner in which she exercised her discretion, having regard to the evidence before her, including the information provided by the Applicant at his interview.
[10] The application for judicial review is dismissed. There is no question for certification arising.
ORDER
The application for judicial review is dismissed. There is no question for certification arising.
"E. Heneghan"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1716-02
STYLE OF CAUSE: MASOUD AFRAZI
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: DECEMBER 16, 2003
REASONS FOR ORDER AND
ORDER BY: HENEGHAN J.
DATED: DECEMBER 17, 2003
APPEARANCES BY:
Mr. M. Max Chaudhary
FOR THE APPLICANT
Mr. Stephen Jarvis
FOR THE RESPONDENT
SOLICITORS OF RECORD:
M. Max Chaudhary
North York, Ontario
FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
FOR THE RESPONDENT
FEDERAL COURT
TRIAL DIVISION
Date: 20031217
Docket: IMM-1716-02
BETWEEN:
MASOUD AFRAZI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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