Date: 20000526
Docket: IMM-4244-98
Ottawa, Ontario, Friday the 26th day of May, 2000
| PRESENT: The Honourable Madam Justice Dawson |
BETWEEN:
NAJMUZZAMAN FAROOQUI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
DAWSON J.
[1] On July 2, 1997 Najmuzzaman Farooqui submitted his application for permanent residence to the Canadian High Commission in Islamabad, Pakistan. His intended occupation in Canada was stated to be "Electornic [sic ] Engineer General (2144-122)".
[2] The application was assessed in accordance with occupation group 2133 in the National Occupational Classification ("NOC"), "Electrical and Electronics Engineers". The assessment was made with reference to the NOC and not the Canadian Classification and Dictionary of Occupations ("CCDO") classification referenced in the application because the application was made after May 1, 1997,
[3] By letter dated June 24, 1998, Mr. Farooqui was informed that his application for permanent residence was refused. Mr. Farooqui, the applicant in this proceeding, seeks an order quashing the decision refusing his application for permanent residence.
VISA OFFICER"S DECISION
[4] In material part, the visa officer concluded as follows:
| Pursuant to section 8(1) of the Immigration Regulations, 1978, independent applicants are assessed on the basis of education, vocational preparation, experience, occupational demand, arranged employment or designated occupation, Canadian demographic factors, age, knowledge of English and French languages and personal suitability. You were assessed based on the requirements for the following occupations: Electronic Engineer (NOC 2133) |
| Section 11(1) of the Immigration Regulations does not permit issuance of an immigrant visa to applicants who have not been awarded any units of assessment for the factor of "experience in an occupation for which they are qualified and are prepared to follow in Canada", unless the immigrant has arranged employment in Canada and has a written statement from the proposed employer verifying that he is willing to employ an inexperienced person in the position in which the person is to be employed, and the visa officer is satisfied that the person can perform the work required without experience. You do not meet these requirements due to the fact that you must be able to, by definition, be able to design, plan, research, evaluate and test electrical and electronic equipment and systems. Experience in these fields is not reflected in your application. You therefore come within the inadmissible class of persons described in paragraph 19(2)(d) of the Immigration Act, and your application has been refused. |
[5] The CAIPs notes completed by the visa officer state as follows:
| An electrical engineer is supposed to conduct research, design power plants, machines and components, design specifications ... [for] systems etc. Applicant resume does not mention these duties. Experience limited to doing some programming and installing telex terminal. This doe[s] not match NOC description. Refused. |
THE ISSUE
[6] On Mr. Farooqui"s behalf it is alleged that the visa officer"s finding that the applicant had no experience as an electronic engineer was made without regard to the evidence and that the visa officer interpreted the occupational classification to mean that an applicant must be able to do all of the things specified in the lead statement contained in the NOC description.
STANDARD OF REVIEW
[7] In Madan v. Canada (Minister of Citizenship & Immigration), 1999 CarswellNat 1480, Justice Evans of this Court, as he then was, considered the standard of review to be applied when this Court reviews decisions of visa officers made in circumstances such as the present where the visa officer must interpret the provisions of the NOC. He stated at paragraphs 24 to 26:
| [24] In any event, visa officers should be afforded considerable discretion in determining whether an applicant satisfies the requirements for a given occupation, including their interpretation of the provisions of the NOC. They have a familiarity with and understanding of this document that is at least equal to, and will often exceed, that of a reviewing court. |
| [25] In addition, while the NOC is incorporated by reference into the Immigration Regulations, 1978, SOR/78-172 by subsection 8(1) and Schedule I, it was not drafted with a view to determining legal rights and duties, and is accordingly not written in the style of a legal instrument. Consequently, when subjected to the searchlight of legal analysis, its provisions will often be found to be ambiguous or vague, as is the case here. |
| [26] Accordingly, the visa officer will only have erred in law if his conclusion that the applicant did not satisfy the ETF requirements for accountants was unreasonable or, perhaps, patently unreasonable: Baker v. Canada (Minister of Citizenship & Immigration) (1999), 174 D.L.R. (4th) 193 (S.C.C.) (reasons rendered July 9, 1999). Given the ambiguities of the text, the technical and non-legal nature of the subject matter, and the fact that the applicant can always submit a fresh application, I cannot say that the visa officer"s conclusion was so unreasonable that the decision to refuse a visa should be set aside as erroneous in law. |
ANALYSIS
[8] The NOC description of electrical and electronics engineers, against which the visa officer must assess the applicant"s experience, provides the following by way of introduction or lead statement:
| Electrical and Electronics Engineers design, plan, research, evaluate and test electrical and electronic equipment and systems. They are employed by electrical utilities, communications companies, manufacturers of electrical and electronic equipment, consulting firms, and by a wide range of manufacturing, processing and transportation industries and government. |
[9] The main duties are stated to be:
| Electrical and Electronics Engineers perform some or all of the following duties: |
| . Conduct research into feasibility, design, operation and performance of electrical generation and distribution networks, electrical machinery and components and electronic communications, instrumentation and control systems, equipment, and components |
| . Prepare material cost and timing estimates, reports and design specifications for electrical and electronic systems and equipment |
| . Design electrical and electronic circuits, components, systems and equipment |
| . Supervise and inspect the installation, modification, testing and operation of electrical and electronic systems and equipment |
| . Develop maintenance and operating standards for electrical and electronic systems and equipment |
| . Investigate electrical or electronic failures |
| . Develop specialized applications and system software |
| . Prepare contract documents and evaluate tenders for construction or maintenance |
| . Supervise technicians, technologists, programmers, analysts and other engineers. |
[10] The resume provided by the applicant listed Mr. Farooqui"s experience as follows:
| (i) WORKED AT KARACHI NUCLEAR POWER PLANT IN COMPUTER DEVELOPMENT DIVISION DEPT. WITH SYSTEM VAX-II/730, AS A SYSTEM PROGRAMMER, FROM 1984-1990. |
| (ii) PRESENTLY WORKING AT INTEGRATED DEVICES PVT. LTD. MANUFACTURER AND DESIRE [SIC] OF EPABX INCLUDING COMPUTER DEALS ALSO, AS AN [SIC] CHIEF EXECUTIVE ENGINEER. PRESENTLY HANDLING, MAINTENANCE, [I]NSTALLATION AND COMMISSIONING OF EPABX, UPS, TELEX TERMINAL (COMPUTER MODELS). |
| (iii) THOROUGH KNOWLEDGE OF HANDLING COMPUTER"S SOFTWARE SUCH AS WS, LOTUS, WINDOWS, DOS. |
| (iv) CAPABILITY OF HANDLING STAFF, MAINTAIN DAILY ROUSTERS [SIC], WORK MANAGEMENT, APPLICATIONS OF FIELD JOBS, INVENTORIES ETC. ETC. |
| (v) PRESENTLY MANAGING OVER 25 STAFF INCLUDING ENGINEERS & TECHNICIANS. |
| (vi) CAPABILITY OF FLOWCHARTS AND TECHNICAL DRAWING OF VARIOUS EQUIPMENT. ALSO HAVE BRIEF ... KNOWLEDGE OF ISO 9000. |
[11] The applicant compares his resume with the NOC description. He notes that he provided evidence that he performed two of the duties set out as main duties in the description of electrical and electronics engineers, namely supervising and inspecting the installation, modification, testing and operation of electrical and electronic systems and equipment and supervising technicians, technologists, programmers, analysts and other engineers.
[12] In Hussain v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1570, Court File No. IMM-1702-97, Justice Evans, considering the occupational descriptions contained in the CCDO stated the following at paragraph 27 of his reasons:
| [27] In my opinion, counsel for the respondent is correct in her submission that the description should be read as a whole, and that no particular weight should be given to the "lead statement". Although the occupational descriptions contained in the CCDO are made legally binding on visa officers, and on this Court, as a result of their referential incorporation into the statute by Schedule I of the Immigration Act, they should not be construed with the same meticulousness applicable to, say, a trust instrument. Rather, they should be approached broadly, bearing in mind they were not originally written as legal texts. |
[13] In my view, this analysis is equally applicable to descriptions contained in the NOC.
[14] I accept the submission of counsel for the respondent that 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 a staff, including a staff of engineers and technicians, does not have experience in the occupation of electrical and electronics engineers.
[15] As noted by Justice Reed in Wu v. Canada (Minister of Citizenship & Immigration), 1999 CarswellNat 43 "[t]he fact that not all duties in a CCDO description need be performed does not mean that the ability to perform some are not essential to an occupation".
[16] I believe that this reasoning is equally applicable to the NOC description.
[17] I find that there was evidence to support the visa officer"s decision that the applicant did not have experience as an electrical or electronics engineer and I am unable to find that his decision was so unreasonable that it should be set aside.
[18] Contrary to the applicant"s submission, I do not conclude that the CAIPs notes reflect any determination that the applicant must perform all of the duties set forth in the lead statement in the NOC description. Rather, the notes in my view indicated that the visa officer concluded that experience in computer programming and equipment installation was not sufficient to meet the NOC description.
[19] In the affidavit sworn by Mr. Farooqui in support of his application he swears that:
| 8. After I had filed my application, and before I received my letter of refusal, I never received any correspondence from the visa officer or had any contact with him regarding any of the materials I had filed. I have always been prepared to elaborate in greater detail my experience as an engineering technician. I assumed that it was at the interview stage when the details of my actual experience in my intended occupation would be discussed. [emphasis added] |
[20] It is well settled that it is the responsibility of an applicant to put before the visa officer all the material necessary to enable a favourable decision to be made. It is not open to the applicant to ask this Court to effectively re-weigh the evidence in circumstance where the applicant assumed he would have a further opportunity to provide details of his actual experience.
[21] In conclusion, I find no basis to set aside the visa officer"s decision and the application for judicial review is dismissed.
[22] There is no question of general importance.
JUDGMENT
[23] The application for judicial review is dismissed.
"Eleanor R. Dawson"
Judge
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