Date: 20030110
Docket: IMM-1353-01
Neutral citation: 2003 FCT 17
Toronto, Ontario, Friday the 10th day of January, 2003
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
SANDEEP KAUSHAL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
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- Mr. Sandeep Kaushal (the "Applicant") seeks judicial review of the decision of Visa Officer Ernie Gaspari (the "Visa Officer"). In the refusal letter dated March 2, 2001, the Visa Officer refused the Applicant's application for permanent residence in Canada.
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[2] The Applicant applied for admission into Canada as a member of the Independent category, describing his intended occupation in Canada as a Mechanical Engineering Technologist. He did not identify any particular occupation number for the National Occupation Classification ("NOC") in his application but this occupation is described in the NOC 2232 under the heading "Mechanical Engineering Technologists and Technicians".
[3] The Applicant's application included information and supporting documentation about his education, employment history and experience. The application was initially paper screened on April 21, 1999 and the Applicant was scheduled for an interview on February 26, 2001.
[4] The Visa Officer interviewed the Applicant on February 26, 2001 and questioned him about his employment duties in his present occupation with Kamla Dials and Devices Ltd. The Applicant described his current job title as "Production Supervisor" and provided information about his usual duties, including his role in the manufacture of various mechanical tools that are required in producing watch dials. The Visa Officer made handwritten notes during the interview in which he recorded the answers given by the Applicant in response to his questions. Although the Visa Officer subsequently made entries in the Computer Assisted Input Program System ("CAIPS"), the CAIPS notes do not fully reflect what was transcribed during the interview.
[5] The Visa Officer decided that the Applicant met the educational requirements for the occupation of Mechanical Engineering Technologist but he was not satisfied that the Applicant had at least one year of experience in his intended occupation.
[6] The Visa Officer awarded a total number of 58 units of assessment to the Applicant, not including the five units for his relative in Canada, and advised in the refusal letter that the application failed because the Applicant lacked the minimum one year of experience in his intended occupation. In view of the requirements set out in the Immigration Regulations, 1978, SOR/78-172, as amended (the "Regulations"), this breach was fatal to the Applicant's application.
[7] As noted above, the Visa Officer made entries into CAIPS. The CAIPS notes show that he chose to consider whether the Applicant would qualify as a Production Supervisor in Canada, in light of his job title. The Visa Officer concluded that the NOC description of this occupation, NOC 9222, closely parallelled the work duties described by the Applicant at his interview. However, the Visa Officer did not record a formal assessment of this occupation. In his affidavit, the Visa Officer deposes that Production Supervisor was not on the General Occupations List, meaning that there was no occupational demand in Canada for this occupation and consequently no units could be awarded.
[8] The Visa Officer's affidavit shows that the Visa Officer considered the possible qualifications of the Applicant as a Production Supervisor on his own initiative and without the request of the Applicant for such consideration.
[9] However, the Visa Officer in both his affidavit and his cross-examination stated that he did not assess the Applicant in the occupation of Mechanical Engineering Technician, although this occupation is included in the generic description of NOC 2232. The Visa Officer deposed in his affidavit that it was unnecessary to assess the Applicant as a Mechanical Engineering Technician because "the nature of his job duties precluded him from qualifying within the engineering domain".
[10] Upon cross-examination, the Visa Officer elaborated on this and said that he did not consider the Applicant for the occupation of Mechanical Engineering Technician because this occupation was "completely separate" from that of Mechanical Engineering Technologist.
[11] The Applicant challenges the decision of the Visa Officer on the grounds that the Visa Officer had a duty to assess him for the position of Mechanical Engineering Technician since this position is inherent in the NOC description 2232; after all it is entitled "Mechanical Engineering Technologists and Technicians". The Applicant argues that by failing to assess him as a Mechanical Engineering Technician, the Visa Officer breached the duty of fairness. This breach resulted in the loss of opportunity to have his application fully assessed. This loss effectively deprived the Applicant from obtaining units of assessment for both the experience and occupation factors, a total of seven units which would have brought him to the level of admissibility into Canada.
[12] The Respondent argues that the Applicant only requested to be assessed as a Mechanical Engineering Technologist. In the absence of a request for assessment in an alternate occupation, the Visa Officer was under no positive obligation to conduct such assessment. A finding that the Visa Officer owed a duty to conduct such assessments for alternate occupations would be contrary to the recent jurisprudence of this Court and the Federal Court of Appeal concerning the limited context of the duty of fairness due from a visa officer. In this regard, the Respondent relies on Patel v. Canada (Minister of Citizenship and Immigration), 2002 FCA 55, Khan v. Canada (Minister of Citizenship and Immigration), [2002] 2 F.C. 413 (C.A.), Elijah v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1082, Mann v. Canada (Minister of Citizenship and Immigration) (2002), 21 Imm. L.R. (3d) 109 (F.C.T.D.) and Mitra v. Canada (Minister of Citizenship and Immigration), 2002 FCT 541.
[13] The Applicant does not dispute the general principle that a visa officer is not obliged to explore and assess alternate occupations when such assessment is not requested by the Applicant, but at the same time, he argues that every case involves a minimal degree of fairness in the assessment process. That obligation was not met in this case, according to the Applicant.
[14] I note that the Tribunal Record itself raises questions as to whether the Visa Officer in fact considered the occupation of Mechanical Engineering Technician despite the assertion of the Visa Officer on cross-examination of his affidavit that he did not do so. The CAIPS notes, included in the Tribunal Record, record the following entry, immediately after the NOC description of the main duties of a Mechanical Engineering Technologist:
After comparing the two descriptions, I am not satisfied that the Applicant has
relevant or significant experience as Mechanical Engineering Technologist.
[15] This reference to "two descriptions" logically implies that the Visa Officer did turn his mind to the possibility that the Applicant would qualify as a Mechanical Engineering Technician but without providing any rationale for rejecting that possibility. At best, this entry in the CAIPS notes is ambiguous; from another perspective, it indicates a lack of understanding of the NOC definition and its application.
[16] Further support for finding that the Visa Officer turned his mind to the possibility of the Applicant qualifying as a Mechanical Engineering Technician is found in the Visa Officer's affidavit where he deposes:
After assessing his job duties I was satisfied that he did not perform any of the
engineering technician or technologist duties to a degree that would satisfy the
experience requirements for those occupations.
[17] Given that there is evidence that the Visa Officer did in fact turn his mind to whether the Applicant had the requisite experience as a Technician, he should have provided the Applicant with a formal unit assessment and rationale as to why he did not qualify as a Technician, in addition to not qualifying as a Technologist. Such assessment would have given the Applicant a clear understanding as to why his application was refused, thus giving him a chance to evaluate his chances for success on a new application in the future.
[18] In conclusion, I find that there is no general duty upon a visa officer to assess an alternate occupation for a prospective immigrant who has not put the alternate occupation before the visa officer. This is a well-established principle in the jurisprudence: see for example, Hajariwala v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 79 (T.D.), Li v. Canada (Minister of Employment and Immigration) (1990), 9 Imm. L.R. (2d) 263 (F.C.T.D.), Patel v. Canada (Minister of Employment and Immigration) (1991), 121 N.R. 260 (F.C.A.), Moksud, supra and Hassan v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 2012 (T.D.)(QL).
[19] However, there is a general duty on a visa officer to fairly conduct an assessment and record his findings in a clear and unambiguous manner. This was not done here, since the Record suggests that the Visa Officer in fact considered whether the Applicant met the requirements of a Mechanical Engineering Technician but did not provide a formal unit assessment and rationale for refusing the Applicant in that occupation.
[20] The application for judicial review is allowed and the matter is remitted to a different visa officer for determination in accordance with the law. There is no question for certification arising from this application.
ORDER
The application for judicial review is allowed and the matter is remitted to a different visa officer for determination in accordance with the law. There is no question for certification arising from this application.
"E. Heneghan"
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-1353-01
STYLE OF CAUSE: SANDEEP KAUSHAL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, JANUARY 9, 2003
REASONS FOR ORDER
AND ORDER BY: HENEGHAN J.
DATED: FRIDAY, JANUARY 10, 2003
APPEARANCES BY: Ms. Shoshana Green
For the Applicant
Mr. Brad Gotkin
For the Respondent
SOLICITORS OF RECORD: Shoshana Green
Green & Spiegel
Barristers & Solicitors
390 Bay Street, Suite 2800
Toronto, Ontario
M5H 2Y2
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date:20030110
Docket: IMM-1353-01
BETWEEN:
SANDEEP KAUSHAL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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