Date: 20030425
Docket: IMM-2750-01
Citation: 2003 FCT 512
BETWEEN:
LEONORA GO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY A.C.J.
[1] When she applied for permanent residence in Canada as an independent immigrant, the applicant was self-employed in the Philippines as a gasoline station franchisee and as co-owner of a hotel and lodging house.
[2] The visa officer concluded that the applicant had insufficient experience in her intended occupation as a Retail and Wholesale Buyer (NOC 6233) and in the two other positions for which she requested an assessment, Personnel Officer (NOC 1223) and Purchasing Officer (NOC 1225). Section 11 of the Immigration Regulations, 1978, SOR/78-172, in the circumstances of this case, does not allow the issuance of an immigrant visa where no units of assessment are awarded under the experience factor.
[3] In his oral submissions, counsel focussed principally on the visa officer's failure to accept that the applicant had sufficient experience in the main duties of a Retail and Wholesale Buyer. This argument, in my view, is not supported by the record and cannot succeed.
[4] Prior to the interview, the applicant filed documents which described her functions in the management of the lodging house and the gasoline station. None of the functions so described resembles in any material way the main duties of a Retail and Wholesale Buyer or those of the two other occupations for which the applicant requested an assessment.
[5] According to the CAIPS notes and the visa officer's affidavit, the applicant acknowledged that in her purchases of petroleum and other related products for the gasoline station, she was required to be supplied by the franchiser. Purchases for the hotel and lodging house could only be made from two potential suppliers.
[6] In Lim v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 8 (QL) (C.A.), 12 Imm.L.R. (2d) 161, Justice Mahoney made the following statements which are equally dispositive of this case:
In brief, a personnel manager is not simply a manager of personnel as is almost anyone who occupies a managerial position in business or government or any institutional environment.
Whether the Appellant really was qualified to be a Personnel Officer in Canada was a pure question of fact entirely within the mandate of a visa officer to resolve.
[7] In her memorandum of fact and law, the applicant argues that the National Occupational Classification only requires her to perform "some or all" of the duties listed in a given job description and that the wording in the NOC is "a binding direction": Paracha v. Canada (Minister of Citizenship and Immigration) (1999), 3 Imm. L.R. (3d) 293, [1999] F.C.J. 1282 at para. 4 (QL) (T.D.).
[8] This issue was not raised during the applicant's oral submissions. However, I should note that the text of Schedule I, item 4(1)(b) of the Immigration Regulations, 1978 states that units of assessment may only be awarded for an occupation "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." In my view, the wording in the National Occupational Classification, which is not an enactment, must be read in a manner consistent with the requirements set out in the Regulations.
[9] The applicant's management of her two businesses, while including dealings with personnel and the purchase of supplies, did not qualify her as a Personnel Officer, a Purchasing Officer or a Retail and Wholesale Buyer in the view of the visa officer. In reaching this conclusion, the visa officer made no reviewable error and surely not one which is patently unreasonable.
[10] Finally, the applicant has not established that the visa officer failed to observe the principles of natural justice. The record discloses a substantive exchange during the interview which did not disabuse the visa officer of his concerns with respect to the applicant's qualifications for the occupations being considered.
[11] For these reasons, this application for judicial review will be dismissed. Neither party suggested the certification of a serious question and none will be certified.
"Allan Lutfy"
A.C.J.
Ottawa, Ontario
April 25, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2750-01
STYLE OF CAUSE: Leonora Go
v.
The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto
DATE OF HEARING: April, 8, 2003
REASONS FOR Order : Lutfy A.C.J.
DATED: April 25, 2003
APPEARANCES:
Cecil L. Rotenberg, FOR PLAINTIFF / APPLICANT
Andrea Hammell FOR DEFENDANT/ RESPONDENT
SOLICITORS OF RECORD:
Cecil L. Rotengerg, Q.C. FOR PLAINTIFF/APPLICANT
808 - 255 Duncan Mill Rd
Don Mills, M3B 3H9
Amina Riaz FOR DEFENDANT/
Department of Justice RESPONDENT
2 First Canadian Place
3400 - Exchange Tower, Box 36
Toronto, M5X 1K6
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