Date: 20000523
Docket: IMM-771-99
Ottawa, Ontario, this 23rd day of May, 2000
| PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O"KEEFE |
BETWEEN:
AMOLDEEP SINGH DHILLON
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O"KEEFE J.
[1] This is an application for judicial review in respect of a visa officer"s decision made on January 3, 1999 by visa officer Mona Fahmy, whereby Ms. Fahmy denied the applicant admission to Canada as a permanent resident. The applicant had applied for a permanent resident visa and he sought assessment in the occupation of advertising and marketing consultant (NOC 1122-2).
[2] The applicant has a Master"s degree and a Bachelor"s degree in business administration from Punjabi University. The applicant had work experience with Zaffiro Fashions Ltd. ("Zaffiro") as a management trainee in the field of marketing beginning in November, 1996 He was then promoted to marketing executive, a position which he held until November, 1997 upon being promoted to product manager, a position he held until April, 1998. In April, 1998, he was promoted to marketing manager. The applicant had previously been employed by Oro Leather Limited ("Oro") from July, 1996 to November, 1996 as a marketing executive.
[3] The letter to the visa officer from Zaffiro discussed the applicant"s functions as:
| . . . as the Marketing Manager he was responsible for the overall growth and performance of sales and marketing of the company"s products. He was responsible for marketing the company"s products both in the Indian and the International markets, for which he took aggressive steps and techniques for selling, advertising, publicising, displaying and organising the products in both Indian and International trade fairs. His major challenge was to tap the Indian market as the company was an EOU. |
| [4] And the letter to the visa officer from Oro described his function as: |
| . . . marketing the leather belts and bags in the Indian Market and made a very good clientage by getting business from some esteemed companies like Lee, Benetton, Woodland, Liberty, Da Malino etc. He had a team of 4 sales executives working under him and in turn was directly reporting to [the Chief Executive Officer]. |
| [5] According to the NOC, the duties of a marketing consultant are: |
| Provide services to management such as analyzing advertising needs and developing appropriate advertising plans; gather information regarding market conditions; analyze the needs of establishments and evaluate promotional and marketing results against budgeting; sales; costs and profits. Marketing consultants assess characteristics of products or services to be promoted and advise on the advertising needs of an establishment; advice [sic] clients on advertising or sales promotion strategies; develop and implement advertising campaigns appropriate for print or electronic media. |
| [6] According to NOC 0611, marketing managers: |
| . . . plan, organize, direct and control the activities of establishments and departments involved in commercial, industrial and wholesale sales, marketing, advertising and public relations . . . |
Main duties include:
| . . . marketing managers establish distribution networks for products and services, initiate market research studies and analyse their findings, assist in product development, and direct the marketing strategies of establishments. |
| [7] The evidence shows that the visa officer also assessed the applicant as a |
marketing manager. As the occupational factor for marketing manager was zero, the visa officer could not issue a visa to the applicant.
| 11(2) Subject to subsections (3) and (4), a visa officer shall not issue an immigrant visa pursuant to section 9 or 10 to an immigrant other than an entrepreneur, an investor, a provincial nominee or a self-employed person unless
(a) the units of assessment awarded to that immigrant include at least one unit of assessment for the factor set out in item 4 of Column I of Schedule I;
(b) the immigrant has arranged employment in Canada; or
(c) the immigrant is prepared to engage in employment in a designated occupation.
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| 11(2) Sous réserve des paragraphes (3) et (4), l'agent des visas ne délivre un visa en vertu des articles 9 ou 10 à un immigrant autre qu'un entrepreneur, un investisseur, un candidat d'une province ou un travailleur autonome, que si l'immigrant:
a) a obtenu au moins un point d'appréciation pour le facteur visé à l'article 4 de la colonne I de l'annexe I;
b) a un emploi réservé au Canada; ou
c) est disposé à exercer une profession désignée.
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The "occupational factor" is the "item 4 of Column I of Schedule I" referred to in the provision. It is an objective figure, assigned to a particular occupation on the basis of demand factors in the Canadian economy. An assignment of zero for "marketing manager" indicates that there is an excess of qualified people in Canada who are ready and able to assume this occupation.
| [8] The units of assessment awarded to the applicant were: |
Issues
| [9] The applicant has raised the following issues: |
| 1. Error of Law: Improperly tendered evidence. |
| The respondent may not rely on the officer"s notes as they are inadmissible as they are not accompanied by an affidavit. |
| 2. Error of Law: Misrepresentation of NOC definition of marketing consultant. |
| The officer erred by restricting the venues of employment for the intended occupation of marketing consultant and unreasonably applying the NOC definition. |
| 3. Error of Law: Failure to break down experience. |
| The officer erred in compartmentalizing the duties of a marketing manager. The officer should have further analyzed the experience by breaking down the relevant portion to award units of assessment for experience in the intended occupation of marketing consultant. |
| 4. Unreasonable Finding of Fact: Failure to award units of assessment for relative. |
| Although the applicant advised the respondent that he had an uncle who lived in Canada, the respondent did not award the five bonus points that, as the Regulations stipulate, should be awarded. |
Error of Law: Improperly tendered evidence.
| The respondent may not rely on the officer"s notes as they are inadmissible as they are not accompanied by an affidavit. |
I find no merit in this argument as the visa officer"s notes are part of the record. This Court has ruled that the visa officer"s notes are part of the tribunal record and as such, are admissible without proof by affidavit (see Awwad v. Canada (M.C.I.) January 26, 1999, IMM-1003-98).
Error of Law: Misrepresentation of NOC definition of marketing consultant.
| The officer erred by restricting the venues of employment for the intended occupation of marketing consultant and unreasonably applying the NOC definition. |
A reading of the letter from the visa officer to the applicant dated January 3, 1999 shows that the visa officer did not restrict the venues of employment to the intended occupation of advertising and marketing consultant. On page 2 of the letter, she stated that she assessed the applicant as a marketing manager, an occupation for which she stated he appeared to have the necessary training. Accordingly, I would dismiss this ground of review.
Error of Law: Failure to break down experience.
| The officer erred in compartmentalizing the duties of a marketing manager. The officer should have further analyzed the experience by breaking down the relevant portion to award units of assessment for experience in the intended occupation of marketing consultant. |
As a preliminary point, the solicitor for the applicant included in the application record, a portion of the cross-examination of the visa officer in another case. It is my ruling that this transcript is inadmissible.
| [13] The visa officer clearly had contemplated whether any of the applicant"s |
experience as a marketing manager could be applied to his intended occupation of marketing consultant. Mr. Volpentesta"s letter to the visa officer dated December 9, 1998, talks about this general subject matter. The visa officer mentioned this representation in her notes. She does not accept that the experience has checked out positively. This is not a case in which the visa officer refused to break down the applicant"s work experience in another occupation so as to give credit for that portion of work experience which is similar to the duties of the intended occupation. My reading of the visa officer"s notes persuade me that the visa officer did not accept that any experience relating to an advertising and marketing consultant was gained by working as a marketing manager. I am not persuaded that the visa officer made an error in this approach.
Unreasonable Finding of Fact: Failure to award units of assessment for relative.
| Although the applicant advised the respondent that he had an uncle who lived in Canada, the respondent did not award the five bonus points that, as the Regulations stipulate, should be awarded. |
The applicant argues that the visa officer made an unreasonable finding of fact when she did not award bonus points because the applicant had an uncle living in Canada. A review of the CAIPS notes shows that the applicant stated that he was not on very good terms with his uncle in Canada and did not wish to rely on him. The visa officer"s notes show that she explained the point system to him and he did not wish to avail himself of the credits due for having an uncle living in Canada. The applicant"s affidavit verifies the officer"s notes. I find that the visa officer made no unreasonable finding of fact. She simply followed the instructions of the applicant.
| [15] I have also considered the failure to grant the additional point of assessment for |
the confirmation of education status and I find that the additional point of assessment would make no difference in the overall outcome as zero units of assessment were received for experience.
| [16] I have applied the standard of reasonableness simpliciter when reviewing the |
conclusions of the visa officer.
| [17] I have considered the representations of Mr. Chaudhary and I have also |
considered the question that he wished that I certify pursuant to subsection 83(1) of the Immigration Act and I am of the opinion that the case raises no serious question of general importance.
| [18] For the above reasons, I would dismiss the application for judicial review. |
ORDER
| [19] IT IS ORDERED that the application for judicial review is hereby dismissed. |
"John A. O"Keefe"
J.F.C.C.
Ottawa, Ontario
May 23, 2000
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