Date: 20031024
Docket: IMM-758-02
Citation: 2003 FC 1247
BETWEEN:
RAKESH TIKKU
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
GIBSON J.:
[1] These reasons follow the hearing of an application for judicial review of a decision of a visa officer rejecting the applicant's application for permanent residence in Canada. The decision under review is dated the 9th of January, 2002.
[2] The applicant is a citizen of Germany and a qualified and experienced surgeon. He applied as an independent applicant to come to Canada to pursue the occupation of "Operating Room Technician". At the relevant time, the main duties prescribed for operating room technicians were some or all of the following:
• prepare patients for surgery by washing, shaving, and sterilizing the patients' operative areas
• assist in surgery by laying out instruments, setting up equipment, assisting surgical teams with gowns and gloves and passing instruments to surgeons
.• clean and sterilize the operating room and instruments.
[3] In rejecting the applicant's application, the visa officer awarded the applicant 63 units of assessment when 70 units were required to qualify, and awarded him 0 units of assessment for "experience".
[4] In her affidavit filed on this application for judicial review, the visa officer attested:
The Applicant did not present any credible evidence of his training or employment experience as an operating room technician. The Applicant stated at interview that he is not an operating room technician. The Applicant stated at interview that he has never worked as an operating room technician. The Applicant did not have with him proof that he has the required training and could perform the duties of an operating room technician. In addition, the Applicant did not present and does not have in his possession any credible documents in support of his claim of qualifications and experience as an operating room technician or supervisor of operating room technicians. Based on his training, job duties and employment experience in India and in Germany, I concluded that the Applicant is a Medical Doctor and a Surgeon, and I did not grant him any units of assessment for experience in his intended occupation of operating room technician.
[5] In Singh v. Canada (Minister of Citizenship and Immigration), Justice Dawson had before her a similar application of an individual with a Bachelor of Law degree who had practised law in Malaysia since 1989. He had applied for permanent residence in Canada in the independant category and in the intended occupation of Legal Assistant/Paralegal. A visa officer concluded in that matter:
At the end of the interview, I advised the Applicant that he did not have the minimum one year work experience in his stated intended occupation and that he was attempting to re-cast his occupational experience into experience in a subordinate occupation in which he was seeking assessment.
[6] After citing the foregoing conclusion, Justice Dawson wrote:
In so concluding, the visa officer erred. The Immigration Regulations, ... ("Regulations"), do not require the applicant to have worked for one full year exclusively as a legal assistant. While factor 3(a) under Schedule I of the Regulations dictates that no units of assessment may be awarded for experience which amounts to less than one year, where an applicant claims experience in a related occupation it is necessary for the visa officer to determine whether the applicant is both qualified to work in the related occupation and has experience equivalent to experience in the occupation in which the applicant seeks assessment. While an applicant must possess experience which accumulates to the equivalent of one year's experience this does not require an applicant to have worked exclusively for one year in the intended occupation. Where transferability of experience is claimed the measurement of experience may well require an exercise in equivalency. Thus in Hajariwala v. Canada (Minister of Employment and Immigration),... then Associate Chief Justice Jerome observed ... that there "is no reason why the actual experience and time spent in each of the various responsibilities in an occupation cannot be broken down to award units of assessment for experience in intended occupations". [citations omitted]
[7] I reach the same conclusion on the facts of this matter. I am satisfied that the occupations of Surgeon and Operating Room Technician are "related occupations" in the same sense that "Lawyer" and "Legal Assistant/Paralegal" are related occupations. In the circumstances, it was incumbent on the visa officer who considered the application of Dr. Singh to engage in an "exercise of equivalency", Dr. Singh having clearly claimed that his experience as a surgeon was transferrable to the occupation of Operating Room Technician.
[8] In the result, this application for judicial review will be allowed. Neither counsel recommended certification of a question. I am satisfied that this application for judicial review turns on its particular facts and raises no serious question of general importance. In the result, no question will be certified.
_______________________________
J.F.C.
Ottawa, Ontario
October 24, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-758-02
STYLE OF CAUSE: RAKESH TIKKU v. MCI
PLACE OF HEARING TORONTO, ONTARIO
DATE OF HEARING: October 23, 2003
REASONS FOR ORDER THE HONOURABLE MR. JUSTICE GIBSON
DATED: October 24, 2003
APPEARANCES:
Max Chaudhary FOR THE APPLICANT
John Loncar FOR THE RESPONDENT
SOLICITORS OF RECORD:
Max Chaudhary FOR THE APPLICANT
Barrister and Socititor
Chaudhary Law Office
North York, Toronto
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Per: Jillian Siskind
Department of Justice
Toronto, Ontario
(2001), 15 Imm. L.R. (3d) 42 (F.C.T.D.).
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