Date: 20030521
Docket: IMM-3368-01
Citation: 2003 FCT 633
BETWEEN:
NIRUPMA LUTHRA
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application under s.82.1 of the Immigration Act, R.S.C., c. I-27, as amended (the "Act") for a review of a decision by a visa officer. The applicant was refused permanent residency by Maria Colucci, a visa officer at the Canadian High Commission in New Delhi, India. The refusal is based primarily on the visa officer's determination that applicant did not have any experience in her chosen profession (Sociologist).
[2] The applicant is a 40-year old citizen of India who applied for permanent residency in the independent category under two NOC categories: 4169 (Sociologist) and 4152 (Social Worker). The applicant's husband and minor daughter were also included in her application. The applicant was interviewed by the visa officer in New Delhi on June 7, 2001 and received notification of her denial by letter dated June 12, 2001.
[3] The visa officer accepted the applicant's educational background: MA (Sociology) in 1982; M.Phil and Ph.d. (Sociology) 1992. Since 1983, the applicant has worked at the Government College for Girls. The applicant says she worked as a sociologist, which included teaching undergraduate courses in sociology. The visa officer characterised her employment as a college lecturer (NOC 4131), for which there is no demand in Canada, making her ineligible for immigration. The letter from the College Principle does not specify the applicant's job duties outside of teaching. According to the applicant, her main duties, in addition to teaching, included:
"handles social deviance which includes the study of social patterns and interrelationship in human societies"
holding discussions on various social problems (social change, human development)
holding student elections
admission duty
holding Youth Festival programs
exam-related duties (holding / writing exams)
student counselling
[4] The NOC guidelines for sociologist are quite broad, incorporating a number of wide-ranging social science professional occupations. With regard to sociologists, the NOC says:
sociologists study the development, structure, social patterns and interrelationships of human society
[5] The applicant was also assessed under the NOC for Social worker. Her experience as a social worker came in 1981 - 1982, when she worked under the ICMR Project, as well as from 1999 to the present; she works with a residents welfare cooperative society on a volunteer basis. In her affidavit, she states that her main duties as a social worker included:
improving family relations
bridging generational gaps
solving adolescent's problems (especially girls)
general awareness of clean and hygienic living
arranging group talks on social issues by psychiatrists and sociologists
[6] The NOC guidelines for social workers are more comprehensive than those for sociologist. Key is the educational requirements for employment, which indicate that a bachelor's degree in social work is required in many provinces, as well as a period of supervised practical experience.
[7] In the refusal letter, the visa officer addressed both the sociologist and social worker categories:
Based on the information provided in your application form, and at your interview, you were assessed against the requirements for the occupation(s) of Social Worker (NOC Code 4152.0). The units of assessment awarded to you under Social Worker, the occupation which was most favourable to you, were as follows:
...
Occupational factor: 0
Experience: 0
TOTAL UNITS: 55
...
I have assessed your application pursuant to the occupation of Sociologist (NOC Code:4169.1) which you stated as your intended occupation in Canada. After reviewing this matter closely, I am not satisfied that this is in fact an occupation:
in which you have performed a substantial number of the main duties, including the essential ones, specified for this occupation in the National Occupation Classification.
Since this occupation is not one in which you meet the employment requirements for Canada and is not one in which you have performed a substantial number of the main duties, including the essential ones, it follows that this is not an occupation which you are qualified in and genuinely "prepared" to follow, in accordance with Factor 4 of Schedule1 to the Immigration Regulations, 1978. .... You have not been awarded any units of assessment for the experience factor, you do not have arranged employment certified by the National Employment Service in Canada, nor are you qualified for and prepared to engage in employment in Canada in a "designated occupation". You are therefore not a person to whom I may issue an immigrant visa in accordance with section 9(4) of the Immigration Act, and so your application has been refused.
Your application fits the NOC description of College and Vocational Instructors (NOC 4131.0). However, there is no current demand for this occupation in Canada.
Sociologist
[8] Neither the applicant nor the respondent argue that the NOC guidelines must be met completely or squarely in order for an immigrant visa to be issued. However, as the respondent points out, the main, essential duties (as identified by the visa officer) must be demonstrably met by the applicant in order for the visa officer to find that the requirements have been met. The respondent cites Farooqui v. Canada (MCI) IMM-4244-98 F.C.T.D., wherein Justice Dawson stated:
... the visa officer was entitled to give greater weight to certain duties contained in the NOC description and to conclude on a fair, broad reading of the whole of the position description that an individual with experience in maintaining, installing and commissioning equipment and supervising staff, including a staff of engineers and technicians, does not have experience in the occupation of electrical and electronics engineers.
[9] In this case, under the Sociologist NOC, the visa officer did not feel that the applicant had been engaged in the fundamental duties of the profession, as described in the NOC. The respondent's affidavit indicates the applicant was unable to demonstrate that her job engaged with the profession of sociology beyond teaching. The duties listed by the applicant in her affidavit are all centred around her role as instructor.
[10] The applicant points out that part of the NOC description notes that sociologists "may teach sociology at advanced educational levels", and submits that the visa officer erred in denying the application without recognizing that collecting data, etc. are only part of the duties included in the NOC. With respect, I cannot agree that the visa officer made an unreasonable decision in finding that the duties described by the applicant did not meet the requirements of a sociologist. While the NOC recognizes that part of a sociologist's activities may include teaching (as with the applicant), it clearly envisions more that merely teaching sociology; particularly, it includes some practical or analytical end, although the precise nature of those ends are rightfully left ambiguous by the NOC.
Social Worker
[11] Although sociologist was listed as the applicant's intended occupation in Canada, the visa officer also did a full assessment under the NOC for social worker, based on the applicant's history. The letter from the Residents Welfare Co-operative Society does not indicate clearly what the applicant's duties were, such that it was unclear whether the applicant had the requisite experience to received experience and occupational points under this NOC.
[12] More significantly, the NOC clearly states that in most provinces, a degree in social work is required, and recommends that a period of supervised experience is required in all provinces. By reference to the applicant's resume, it is clear that her degrees are all in sociology. The respondent points to Justice Sharlow's statement in Karanthos v. Canada (M.C.I.) (IMM-5011-98 F.C.T.D.) to support a rejection based on this absence:
When NOC lists an educational level USUALLY REQUIRED, it means that applicant MUST MEET this requirement, unless there are substantial and significant factors that would, in the judgment of the visa officer, make it likely that the applicant will be able to overcome this typical requirement. [emphasis in original]
[13] It was not an unreasonable decision of the visa officer to award zero points in these two crucial factors, education and training, based on her assessment of the applicant's actual employment duties and responsibilities. Having made the reasonable assessment, the visa officer was precluded from granting the application, based on s.11 of the Immigration Regulations, 1978 as the applicant did not meet the requirements for an exception.
[14] The visa officer did not act unreasonably in determining that the applicant had failed to demonstrate that she was in practice a sociologist, rather than a lecturer in sociology. As such, she did not meet the experience requirements under the NOC, and was not therefore eligible for an immigrant visa. Likewise, the applicant did not have the requisite degrees to engage in social work in Canada, an explicit requirement of the NOC for Social Workers. As such, she was again not eligible for an immigrant visa based on the visa officer's reasonable decision that she lacked the proper experience.
[15] Accordingly, this application for judicial review is dismissed.
JUDGE
OTTAWA, Ontario
May 21, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3368-01
STYLE OF CAUSE: NIRUPMA LUTHRA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, MAY 13, 2003
REASONS FOR ORDER : HON. MR. JUSTICE ROULEAU J.A.
DATED: MAY 21, 2003
APPEARANCES:
Ms. Ngozi Oti FOR THE APPLICANT
Ms. Mary Matthews FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ngozi Oti
Toronto, Ontario FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada FOR THE RESPONDENT
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