1 IMM-5533-01
1 Neutral citation: 2003 FCT 59
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5 IN THE FEDERAL COURT OF CANADA
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10 BETWEEN:
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13 ANIL K. MADAN
14 Applicant
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16 - and -
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19 THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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21 Respondent
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23 ________________________________________________________
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25 HEARD BEFORE: The Honourable Madam Justice
26 Layden-Stevenson
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28 PLACE HEARD: Halifax, Nova Scotia
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30 DATE HEARD: Wednesday, January 8, 2003
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32 APPEARANCES: Ms. Melissa Cameron,
33 Solicitor for the Respondent
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35 Mr. Roderick Rogers,
36 Ms. Karen Bennett-Clayton
37 Solicitors for the Applicant
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39 Ms. Bea Scott
40 Court Registrar
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42 Mr. Paul Charbonneau
43 Senior Usher _______________________________________________________
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45 Recorded By:
46 Drake Recording Services Limited
47 1592 Oxford Street
48 Halifax, N.S. B3H 3Z4
49 Per: Stephanie Atkinson
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Wednesday, January 8, 2003 - 4:05 p.m.
LAYDEN-STEVENSON J. (ORALLY):
The applicant applied for permanent residence in Canada as an independent in the intended occupation Financial Manager (NOC 0111). He applies for judicial review of the visa officer's decision denying his application and alleges that the officer erred in not awarding him any units of assessment for experience. He alleges an additional error with respect to the assessment of the personal suitability factor. The applicant agrees that he must succeed on his argument with respect to the experience factor. This is so because subsection 11(1) of the Immigration Regulations dictates that failure to obtain at least one unit of assessment for the experience factor, factor 3, of Schedule I of the Regulations, constitutes a bar to the issuance of a visa. Thus, the application for judicial review turns in large part on whether the visa officer erred in the assessment of this factor.
The National Occupation Classification (NOC) system is incorporated by reference into Schedule I of the Immigration Regulations. To be awarded any points in the experience factor, an applicant must satisfy the visa officer that he has performed some of the main duties for the occupation as described in the NOC.
The applicant is a citizen of India. He has a Bachelor of Commerce degree and he has completed credits toward his Masters degree in business administration. He has additionally completed a number of insurance courses. While he was in school, the applicant worked as an accountant with Smarts PVT Ltd. Later, from 1979 until 1984, he was chief accountant with Enya General Insurance Company in Saudi Arabia. In 1984 when Enya was taken over by MTC Insurance Ltd., he continued as chief accountant. In 1997, he became financial manager. This is his third attempt to obtain permanent residence in Canada.
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In the refusal letter, the visa officer states:
"As I explained to you at the interview, financial managers plan, organize, direct and control the operations of an accounting department, develop and implement financial policies, etc. You informed me at the interview that you had three accountants reporting to you who essentially carry out bookkeeping duties. It is your role to decide whether to place funds on deposits, make sure accounts are in order, look after the budgeting for your division, and ensure that taxes are filed. I am therefore not satisfied that you carry out some of the main duties of a financial manager and I am unable to grant you any assessment units for experience in that profession."
The applicant argues that the visa officer erred in law when she failed to award any units of assessment for experience. It is submitted that she applied the wrong test and based her decision on an erroneous understanding as to what duties the applicant needed to meet in order to fall within the scope of financial manager. She therefore misapplied the NOC definition. The applicant also submits that there was substantial evidence before the visa officer that indicated that he had significant experience performing the main duties set out in the NOC description. As well, he met the employment requirements. The applicant places reliance on the reference letters submitted by the applicant in support of his application.
I have carefully reviewed and considered the refusal letter, the visa officer's affidavit and the case notes, as well as the written and oral submissions of counsel. The difficulty confronting the applicant is the deference to be accorded to visa officers when assessing the requirements of a particular occupation. In Madan v. Canada (Minister of Citizenship and Immigration) (1999), 172 F.T.R. 262, Evans J., as he then was, stated as follows:
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"Visa officers should be afforded considerable discretion in determining whether an applicant satisfies the requirements for a given occupation, including their interpretation of the provisions of the NOC. They have a familiarity with and understanding of this document that is at least equal to and will often exceed that of a reviewing court. In addition, while the NOC is incorporated by reference into the Immigration Regulations 1978 by subsection 8(1) and Schedule I, it was not drafted with a view to determining legal rights and duties and is accordingly not written in the style of a legal instrument. Consequently, when subjected to the searchlight of legal analysis, its provisions will often be found to be ambiguous or vague."
Here, it is apparent from the CAIPS notes and the visa officer's affidavit that she considered the reference letters provided by the applicant and she considered the oral representations that he made at the interview. In the end, she concluded that she was not satisfied that the applicant had the experience of a financial manager. In Kianfer v. Canada (Minister of Citizenship and Immigration) 2002 FCT 1061, [2002] F.C.J. 1439, I stated:
"The visa officer has the responsibility of determining whether an applicant has in fact performed the duties of the NOC. Considerable discretion is afforded to the officer in this respect, including interpretation of the NOC. The weight to be assigned the various pieces of evidence is the task of the visa officer and it is not for the court to reweigh the evidence. The onus is on the applicant to satisfy the visa officer that in this case he performed the duties contained in the NOC for the intended application. It is within the visa officer's discretion to assess an applicant's experience on the basis of the applicant's representations at the
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interview and to assign less weight to the written documents."
Here, I cannot conclude that the visa officer's decision was not reasonably open to her and therefore there is no basis for my intervention.
The applicant has also alleged a breach of procedural fairness on the basis that a visa officer has a duty of fairness to provide an applicant with knowledge of her concerns and an opportunity to respond to them. The applicant argues that the duty of fairness owed to him was breached by the visa officer because she failed to allow him the opportunity to respond to her concerns regarding the duties and responsibilities of his current employment role by providing her with copies of his employment contract and a more recent letter of reference. The visa officer deposes in her affidavit that:
"The applicant stated at the interview that he would be able to supply recent reference letters and employment contracts if required. However, I did not require these documents, as I had concluded that the applicant's duties did not fulfill the criteria for the occupation he was being assessed under. This conclusion was based on the description given by the applicant at the interview of the duties he performed. I would have only required the documents as verification from the applicant in the event I had concluded that his duties met the occupation requirements, which they did not."
I find no fault with that reasoning and I conclude there was not a breach of procedural fairness. Because the applicant has not succeeded with respect to the allegation of error
regarding the assessment of experience, the assessment of personal suitability and the arguments pertaining thereto are immaterial and I need not deal with them. The application for judicial
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review is dismissed. Counsel posed no question for certification. This case does not raise a serious question of general importance. Thank you.
SENIOR USHER
Order.
THE REGISTRAR
This special sitting of the Federal Court of Canada has now concluded.
- Upon concluding at 4:20 p.m.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5533-01
STYLE OF CAUSE: ANIL K. MADAN v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: HALIFAX
DATE OF HEARING: JANUARY 8, 2003
REASONS FOR ORDER BY : LAYDEN-STEVENSON J.
DATED: JANUARY 22, 2003
(delivered orally from the bench on January 8, 2003)
APPEARANCES:
RODERICK ROGERS AND FOR APPLICANT
KAREN BENNETT-CLAYTON
MELISSA CAMERON FOR RESPONDENT
SOLICITORS OF RECORD:
STEWART McKELVEY STIRLING SCALES FOR APPLICANT
HALIFAX
MORRIS ROSENBERG FOR RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
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