Date: 20040430
Docket: IMM-6416-02
Citation: 2004 FC 640
BETWEEN:
MANSOOR JAVADINIA, c/o Canadian Legal Services,
P.O. Box 32422, Dubaie U.A.E.
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION, c/o Justice Department,
Guy Favreau Complex, 200 West René-Lévesque,
East Tower, 5th Floor, Montreal, Quebec, H2Z 1X4,
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of the decision of Immigration Officer Gillian Tao-Yin Wan (the Officer) at the Canadian High Commission in London, United Kingdom dated October 29, 2002, in which she refused the applicant's application for permanent residence because he did not meet the requirements for immigration to Canada under subsections 8(1) and 9(1) of the Immigration Regulations, 1978, SOR/78-172.
[2] Mansoor Javadinia (the applicant) is a citizen of Iran. On July 10, 2000 the applicant applied to the Canadian High Commission in London, United Kingdom for a permanent residence visa in the independent category as a mechanical engineer.
[3] On July 19, 2001, the applicant was refused the immigrant visa because the Officer was not satisfied that he had previously performed the duties of a mechanical engineer. The applicant sought judicial review of this decision. On August 9, 2002 Lemieux J. of the Federal Court found that the visa officer had ignored the documentary evidence submitted by the applicant and too narrowly construed the National Occupation Classification (NOC) requirements regarding the duties of a mechanical engineer.
[4] On October 21, 2002, the applicant's application was reconsidered by a new Officer who interviewed the applicant to determine whether he met the requirements for immigration to Canada in the independent category.
[5] The Officer found that the applicant did not meet the requirements for immigration to Canada in the independent category. The Officer was not satisfied that the applicant met the NOC description of duties for his intended occupation. The Officer also determined that although the applicant could speak and read English well, he had poor written English skills.
[6] The appropriate standard of review of an Officer's decision on an application for permanent residence is reasonableness simpliciter (see Shabashkevich v. Canada (M.C.I.), [2003] F.C.J. No. 510 (T.D.) (QL) and Liu v. Canada (M.C.I.), [2001] F.C.J. No. 1125 (T.D.) (QL)). Consequently, the Court will not set aside a discretionary decision of an Immigration Officer if that decision is reasonable.
[7] The applicant submits that the Officer erred in her evaluation of his experience and professional competence since the documentary evidence clearly demonstrates that his professional background meets the terms of the NOC for mechanical engineer. It has been established that in an application for permanent residence under the independent category, the applicant must present a prima facie case that he meets the requirements of the job he is being assessed for (Wankhede v. Canada (M.C.I.), [2000] F.C.J. No. 968 (T.D.) (QL)). According to the lead statement in NOC 2132.0 - Mechanical Engineers:
Mechanical Engineers research, design and develop machinery and systems for heating, ventilating and air-conditioning, power generation, transportation, processing and manufacturing. They also perform duties related to the evaluation, installation, operation and maintenance of mechanical systems. Mechanical Engineers are employed by consulting firms, power generating utilities, and in a wide range of manufacturing, processing and transportation industries, or they may be self-employed.
[8] According to the NOC 2132.0, the main duties of a mechanical engineer are the following:
- Conduct research into the feasibility, design, operation and performance of mechanisms, components and systems
- Prepare material, cost and timing estimates, reports and design specifications for machinery and systems
- Design power plants, machines, components, tools, fixtures and equipment
- Supervise and inspect the installation, modification and commissioning of mechanical systems at construction sites or in industrial facilities
- Develop maintenance standards, schedules and programs and provide guidance to industrial maintenance crews
- Investigate mechanical failures or unexpected maintenance problems
- Prepare contract documents and evaluate tenders for industrial construction or maintenance
- Supervise technicians, technologists and other engineers and review and approve designs, calculations and cost estimates.
[9] In this case, the Officer gave the applicant 0 points both in the experience and in the occupational categories after having tested the applicant's professional skills. The interview notes explain in detail the Officer's questions in relation to the applicant's mechanical engineering knowledge. The Officer questioned the applicant about his role in the design of HVAC systems with specific reference to the documents he provided. The Officer asked the applicant how he would calculate the heating or cooling load in an HVAC system. According to the answers provided, the Officer concluded that the applicant did not understand the formulas and the calculations that he was using. Although the Officer does rely on the knowledge she has acquired in high school physics about the laws of thermodynamics to show his calculations are wrong, she also evaluates the applicant's calculations logically and finds that these do not make sense. The Officer also noted that the applicant's limited English skills may have prevented him from discussing his design experience in more detail but that on the basis of what was presented in the interview, he does not meet the NOC requirements for mechanical engineer. I do not find that the Officer erred in her assessment of the applicant's experience and professional competence as a mechanical engineer. The issue as to whether an applicant is really qualified for an occupation listed in the NOC is a pure question of fact which is entirely within the mandate of the visa officer to resolve (Lim v. Canada (M.E.I.) (1991), 121 N.R. 241 (F.C.A.)). After having interviewed the applicant and requested explanations from him, the Officer could decide to assign less weight to the documents provided, such as the letters attesting to the applicant's experience (Elijah v. Canada (M.C.I.), [2002] F.C.J. No. 1437 (T.D.) (QL)). Furthermore, the Officer has the authority to test the applicant's professional abilities in the independent category and the fact that she judged the applicant's calculations to be wrong is not unreasonable (Belashova v. Canada (M.C.I.), [2001] F.C.J. No. 1055 (T.D.) (QL)). In this case, the Officer was entitled to conclude, on the basis of the applicant's answers to her questions during the interview, that the applicant had not performed a substantial amount of the duties which he referred to in his Application.
[10] The applicant submits that the Officer evaluated his personal suitability and language skills in bad faith because the previous Officer gave a higher number of points in these categories. According to the CAIPS notes the Officer found that the applicant's personal suitability and motivation were limited. In drawing this conclusion, the Officer considered that the applicant could not name any licensing associations or organizations for professional engineers in Canada and that he was unaware of the procedures for acquiring accreditation in Canada. As for the assessment of the applicant's English language skills, the Officer evaluated the written answers to the questionnaire, the applicant's landing program and the applicant's ease in answering her questions during the interview in order to conclude that she would grant him 2 points for this factor. I find that the Officer's evaluation of the applicant's personal suitability and his English language skills was well-founded and supported by her evaluation notes. As for the applicant's allegation of bad faith, this Court has previously found that the fact that a second Officer's evaluation differs from another Officer's does not, in and of itself, make the assessment unreasonable (Gunarathna v. Canada (M.C.I.), [2000] F.C.J. No. 986 (T.D.) (QL)). Since the applicant raises no other basis for the allegation of bad faith, I find that this allegation is not well-founded and the applicant cannot allege that he had a legitimate expectation that a second Officer would award him at least the same number of units as the first.
[11] Finally, the applicant argued in his memorandum that the Officer was irritable and her conduct during the interview was evidence of bias towards him. However, the applicant does not explain precisely the foundation for his allegation of bias. The test for bias is set out in [1978] 1 S.C.R. 369">Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369, at page 394:
. . . the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that Mr. Crowe [the decision maker], whether consciously or unconsciously, would not decide fairly."
[12] The Officer's affidavit does not describe conduct which would give rise to a reasonable apprehension of bias. Since the applicant's allegations in his affidavit are not supported by any evidence whatsoever, the applicant has failed to rebut the presumption of the Officer's impartiality (Zündel v. Citron, [2000] 4 F.C. 225 (C.A.)). Consequently, I find that the applicant has failed to establish that judicial review is required on this point.
[13] For the reasons outlined above, I find that the Officer did not err when she refused the applicant's application for permanent residence in Canada, and this application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
April 30, 2004
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-6416-02
STYLE OF CAUSE: MANSOOR JAVADINIA v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 31, 2004
REASONS FOR ORDER BY: PINARD J.
DATED: April 30, 2004
APPEARANCES:
Me Jean-François Bertrand FOR THE APPLICANT
Me Mario Blanchard FOR THE RESPONDENT
SOLICITORS OF RECORD:
Bertand, Deslauriers FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario
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