Date: 20001006
Docket: IMM-3660-99
BETWEEN:
KAZI REDANUL MANIR
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM, J:
[1] The applicant seeks judicial review of the decision, dated June 10, 1999, made by Donald Barr, Vice Consul of the Canadian Consulate General in Hong Kong, in which the applicant's application for permanent residence in Canada was refused.
Background
[2] The applicant, Kazi Redanul Manir, is a 36 year old citizen of Bangladesh. On December 29, 1997, he applied for permanent residence in the independent category at the Canadian High Commission in Singapore. He requested that he be assessed as a Financial Manager (NOC 0111).
[3] The applicant was interviewed at the Canadian Consulate General in Hong Kong on June 1, 1999. The visa officer determined that the applicant lacked the requisite experience in his intended occupation, and informed the applicant of this opinion.
[4] The visa officer assessed the applicant in the alternate occupation of Supervisor of Finance Clerks (NOC 1212). This occupation has a zero demand, and the applicant earned only 57 units of assessment, which is short of the required minimum. However, even if the applicant had met the minimum, because of the zero occupation demand, no visa could have been issued, pursuant to subsection 11(2) of the Immigration Regulations, 1978.
Applicant's Position
[5] The applicant contends that the visa officer erred by deciding that the applicant's job duties relate to the work of a supervisor of financial clerks (NOC 1212), rather than a financial manager. The applicant argues that the visa officer had evidence before him that the applicant performed three out of five main duties which are listed for financial manager.
[6] The applicant contends that the visa officer erred in deciding that because the applicant has not made recommendations to his employers for changes to operating systems that reflect the scope and depth of the responsibilities of financial manager, the applicant lacks the experience as a financial manager within the meaning of the NOC definition. The applicant argues that the visa officer imported his own criteria into the definition, with respect to scope and depth. The applicant also argues that the visa officer has determined that implementing policies and recommending changes to operating systems are essential duties of a financial manager, yet the NOC occupational definition does not specify any of the listed duties as essential duties.
[7] The applicant also argues that he is entitled to be formally assessed in each of the occupations he lists in his application as his intended occupations.
[8] The applicant also takes issue with the visa officer's failure to exercise positive discretion, pursuant to subsection 11(3) of the Immigration Regulations, 1978.
Respondent's Position
[9] The respondent submits that the visa officer did not err in his assessment of the applicant with regard to the position of financial manager. At the interview, the applicant was asked by the visa officer to give an example of a financial policy he had implemented while employed by Ohmie Fashion Jewellery Ltd. He responded that this was done mainly by the employer, and that he provided advice. He was asked to give an example of a recommendation to change operating systems that he had made while at his previous employer, Bappi's Properties Ltd. He replied that he could not deviate from the financial department. These responses led the visa officer to conclude that the applicant lacked experience in financial management. The respondent maintains that the visa officer correctly concluded that the applicant had performed only two of the listed duties for financial manager: planning, organizing, directing, and controlling the operation of an accounting department; and preparing or coordinating the preparation of financial statements, estimates, summaries and other financial analyses and management reports.
[10] With regard to the visa officer's assessment of the applicant for the occupation of supervisor of financial clerks, the respondent submits that because the occupational demand is zero, the applicant's application must be rejected, pursuant to subsection 11(2) of the Regulations.
Discussion
[11] According to the NOC, the main duties of financial managers are the following:
| Plan, organize, direct and control the operation of an accounting, audit or other financial department. |
| Develop and implement the financial policies, systems and procedures of an establishment. |
| Prepare or coordinate the preparation of financial statements, estimates, summaries and other financial analyses and management reports. |
| Evaluate financial reporting systems, accounting procedures and investment activities and make recommendations for changes to procedures, operating systems, budgets and other financial control functions to senior managers and other department or regional managers. |
| Recruit staff and oversee training programs. |
[12] Item 4 under Column I of Schedule I of the Regulations is occupational factor. This tells the visa officer how to use the NOC to assess an applicant. Item 4 provides:
| (1) Units of assessment shall be awarded on the basis of employment opportunities in Canada and the occupation |
| (a) for which the applicant meets the employment requirements for Canada as set out in the National Occupational Classification; |
| (b) in which the applicant has performed a substantial number of the main duties as set out in the National Occupational Classification, including the essential ones; and |
| (c) that the applicant is prepared to follow in Canada. |
[13] Based on the information garnered at the interview, the visa officer determined that the applicant had performed only two of the listed duties for financial manager, the first and third listed duties. If the applicant has performed only two out of five duties, can it be said that he has performed a substantial number of the main duties? The visa officer concluded that he had not. Based on the evidence which was before the visa officer, this does not appear to be an unreasonable conclusion.
[14] The applicant contends that he must be formally assessed in his intended occupation. The visa officer performed an assessment, which is apparent by reference to the CAIPS notes and refusal letter, and determined that the applicant lacked the experience requirement and thus declined to carry out a point calculation. It is not unreasonable for the visa officer to hold that an applicant need not be further assessed in a particular occupational category when it becomes apparent that the applicant does not meet the selection criteria for that occupation: See Cai v. Canada (M.C.I.), [1997] F.T.R. 31 (F.C.T.D.), Raja v. Canada (M.C.I.) (1998), 145 F.T.R. 154 (F.C.T.D.), and Goussev v. Canada (M.C.I.) (1999), 174 F.T.R. 140 (F.C.T.D.).
[15] With regard to the visa officer's assessment of the applicant as a supervisor of financial clerks, regardless of how the assessment was carried out, this particular occupation allows for no points for occupational demand. Pursuant to subsection 11(2) of the Regulations, no visa may be issued for an immigrant who seeks to be assessed in an occupation that has no points for occupational demand. It is an automatic rejection.
[16] Finally, the applicant takes issue with the visa officer's failure to exercise his discretion in favour of the applicant pursuant to subsection 11(3) of the Regulations. Subsection 11(3) is concerned mainly with an immigrant's ability to become successfully established in Canada, which requires an examination of essentially economic factors. Thus, a visa officer may issue a visa if an immigrant did not meet the required minimum number of units if, in the visa officer's opinion, there are good reasons why the number of units awarded do not reflect the immigrant's chances of becoming successfully established in Canada.
[17] In the refusal letter, the visa officer wrote that he considered the number of units awarded to be an accurate assessment of the applicant's ability to become successfully established in Canada. Thus, while the visa officer did not expressly indicate that he chose not to exercise positive discretion, it is implicit in this paragraph of the letter that that is what the visa officer did. There is no demand in Canada for supervisors of financial clerks, so how could it be said that the applicant was likely to become successfully established in Canada in light of these circumstances?
[18] In conclusion, the applicant has not established any errors made on the part of the visa officer that would warrant judicial intervention. Accordingly, this application for judicial review is denied.
[19] Neither party submitted a question for certification.
"Max M. Teitelbaum"
J.F.C.C.
Calgary, Alberta
October 6, 2000
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