Date: 20001016
Docket: IMM-2575-99
BETWEEN:
ZULFIKAR MOHAMED
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HANSEN J.
[1] This is an application for judicial review of the April 13, 1999 decision of a visa officer at the Canadian High Commission in Nairobi, Kenya rejecting Zulfikar Mohamed's application for permanent residence.
[2] The applicant asked to be assessed in his intended occupation, Technical Sales Specialist, Wholesale Trade under the National Occupational Classification ("NOC") system code 6221.0.
[3] The employment requirements for this occupation in the NOC include:
| A university degree or college diploma in a program related to the product or service is usually required. |
[4] As the applicant did not have a university degree or college diploma, the visa officer concluded that the applicant did not meet the employment requirements in his intended occupation and went no further with the assessment. Having so concluded, the visa officer awarded zero units of assessment for experience which resulted in the application being rejected pursuant to subsection 11(1) of the Immigration Regulations, 1978.
[5] It is apparent from the reasons given by the visa officer for refusing the application that he interpreted the words "usually required" as "is required". For this interpretation the visa officer relied on a statement in the NOC Handbook found under the heading "Education/Training Indicator" which states:
| Note - to obtain the lowest entry requirement: if the NOC describes the education or training as "usually" required, then it has been rated as if it is required. 1 |
[6] The applicant submits that the visa officer erred in interpreting the educational requirement as mandatory.
[7] In Karathanos v. Canada (Minister of Citizenship and Immigration) 2 where a visa officer similarly interpreted the words "usually required" found in the employment requirements of an occupation as "always required", Sharlow J. (as she then was) explained the use of the words "usually required" for the purposes of the education/training indicator found in the NOC Handbook and under the occupational factor in Schedule I of the Immigration Regulations, 1978 as follows:
| 10 It is undisputed that for purposes of the "education and training" category in Schedule I of the Immigration Regulations, the phrase "usually required" in the |
| description of the education requirements for an occupation is read as "always required." That is because of the automatic nature of the number of points awarded |
| for the "education and training" category. |
| 11 The National Occupational Classification is published by the Minister of Human Resources Development primarily for the use of career counsellors and others who require detailed knowledge of the Canadian labour market. For immigration purposes, the National Occupational Classification, as well as the related publication called the Career Handbook and other component publications, as amended from time to time, are incorporated by reference into Schedule I of the |
| 12 For purposes of the National Occupational Classification, the educational requirements for all occupations are rated by a scale referred to as the |
| "Education/Training Indicator" or ETI. In establishing ETI ratings, an occupation that "usually requires" a particular level of education is treated as always requiring |
| that level of education. Thus, the ETI is "8" for any occupation that always requires a master's degree or that usually requires a master's degree. |
| 13 As stated above, the National Occupational Classification says that for an archivist, "a master's degree in archival studies, library science or history is usually |
| required." Thus, the ETI for an archivist is determined as though a master's degree is always required. On that basis, the ETI for an archivist is 8. |
| 14 Although the National Occupational Classification was not written for use by visa officers in assessing applications for permanent residence, it has been |
| adapted for that purpose. One of the adaptations is to equate the ETI ratings under the National Occupational Classification with the system for points to be |
| awarded for the "education and training" category in Schedule I. By that process, the ETI of 8 under National Occupational Classification becomes an automatic 18 |
| points in the "education and training" category. |
| 15 Thus, it can be said that in awarding points of assessment for the "education and training" category in Schedule I, an occupational category that usually |
| requires a master's degree is treated as though it always requires a master's degree. |
| 16 However, it does not follow that the words "usually requires" must be read the same way in assessing the number of points in the "occupational factor" |
| category. In assessing the applicant under that category, the words "usually required" mean just what they say. ... |
[8] She went on to note:
| 17 ... The visa officer was wrong to find support for his conclusion in the parts of the Career Handbook that relate to the determination of ETI ratings, and by extension the points for the "education and training" category. That material does not address the meaning of the words used in the "occupational factor" category in Schedule 1. |
[9] Sharlow J. also adopted the following comments of Reed J. in Hara v. Canada (Minister of Citizenship and Immigration) 3:
| ...it may be an error to state that "is usually required" means that the educational requirement must be met, except where there are significant and substantial factors that persuade the visa officer that the occupational requirements can be overcome. That may be too rigid an interpretation. Nevertheless there must be some persuasive reason for thinking that the applicant will be able to hold employment in the intended occupation despite the fact that the "usual" educational qualifications are not present. |
[10] In Karathanos, supra, the Court held that where an applicant does not have the educational requirements that are "usually required" for an intended occupation, a visa officer should consider the entirety of the applicant's education, training and experience to determine whether the educational requirement may be overcome.
[11] In present case, the visa officer erred in interpreting "usually required" as mandatory and in failing to assess whether the applicant's education, training and experience would compensate for his not having the "usually required" education found in the employment requirements for his intended occupation.
[12] For these reasons the application for judicial review is allowed. The decision of the visa officer dated April 13, 1999 is quashed and the matter is remitted for reconsideration by a different visa officer. Counsel for the applicant indicated that the applicant is now living in the United States and accordingly asks that the re-determination be before a visa officer in Buffalo, New York. The Court so directs.
[13] Neither party submitted a question for certification.
OTTAWA
__________________
1 Exhibit "A" to the Affidavit of Christopher Alan Hazel.
2 [1999] F.C.J. No. 1528 (FCTD).
3 [1999] F.C.J. No. 1395 at para. 6.
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