Date: 20001120
Docket: IMM-3939-99
BETWEEN:
BERNARD DILIP MAZUMDER
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
DAWSON J.
[1] On June 29, 1999, Anabela Pereira, a visa officer at the Canadian Consulate General in Hong Kong, refused Mr. Mazumder's application for permanent residence in Canada. Mr. Mazumder has brought this application for judicial review of the officer's decision.
THE FACTS
[2] Mr. Mazumder is a 34 year old citizen of Bangladesh. He applied for permanent residence in Canada under the independent category in the intended occupations of financial manager, National Occupational Classification ("NOC") 0111, and alternatively, accountant NOC 1111.
[3] The visa officer accepted Mr. Mazumder had obtained a two year Bachelor of Commerce degree and a two year Master of Commerce degree in management, both from the University of Dhaka, Bangladesh. Mr. Mazumder's application and reference letters confirmed that since 1992 he had worked for the Church of Bangladesh Social Development Program, a non-profit organization aiding the poor in Bangladesh. There Mr. Mazumder held the position of chief accountant and finance manager. Mr. Mazumder also presented in his application a certificate showing completion of short term courses and work shops in management development and gender relations development.
[4] Ms. Pereira interviewed Mr. Mazumder on June 28, 1999.
[5] The refusal letter indicates that the visa officer assessed Mr. Mazumder in the occupation of bookkeeper (NOC 1231.0) for which he earned 61 units of assessment. This was less than the minimum required units of assessment and the visa officer stated that she considered those units of assessment to be an accurate reflection of Mr. Mazumder's ability to successfully establish in Canada.
[6] The visa officer also stated in the refusal letter that she had assessed Mr. Mazumder as accountant, but was not satisfied that he met the employment requirements for that occupation. She went on to state, with respect to the occupation of financial manager, that:
| I have also reviewed employment requirements for FINANCIAL MANAGER (NOC 0111) another of your intended occupations, which include: |
| - An University Degree or College Diploma in Business Administration, Economics, Commerce or a related field and; |
| - Completion of Company or other Management Training Program; |
and that Mr. Mazumder did not meet those requirements.
[7] This was consistent with the observations of the visa officer as recorded in her CAIPS notes where she stated:
| ALSO REVIEWED EMPLOYMENT REQUIREMENTS FOR FINANCIAL MANAGERS, NOC 0111 ANOTHER OF PI S INTENDED OCCUPATIONS, WHICH INCLUDE: |
| *A UNIVERSITY DEGREE OR COLLEGE DIPLOMA IN BUSINESS ADMINISTRATION, ECONOMICS, COMMERCE OR A RELATED FIELD |
| *COMPLETION OF COMPANY OR OTHER MANAGEMENT TRAINING PROGRAM |
| I AM NOT SATISFIED THAT PI MEETS THE EMPLOYMENT REQUIREMENTS OF HIS INTENDED OCCUPATION(S). |
[8] In her affidavit sworn in opposition to Mr. Mazumder's application, the visa officer stated:
| ... For 1111.1 and 1111.2, I have given my reasons outlining why the applicant could not meet all the requirements in the CAIP's notes. For NOC 0111, although the applicant presented a certificate from the Management Development Centre, I was not satisfied that completion of this 2 week course could be considered equivalent to a Management Training Program as per the NOC requirement for this occupation. |
THE ISSUE
[1] While Mr. Mazumder raised a number of issues in respect of the visa officer's assessment, in my view one is determinative of the application. That is whether the visa officer committed a reviewable error by treating the completion of a company or other management training program as a mandatory requirement for the occupation of financial manager, NOC 0111.
ANALYSIS
[2] In material part, the employment requirements for financial managers are set out as follows in the NOC:
| · A university degree or college diploma in business administration, economics, commerce or a related field |
| Completion of company or other management training program are usually required. |
[3] Of relevance is that completion of a company or other management training program is "usually required".
[4] Turning to the visa officer's decision, nowhere in the refusal letter nor in the CAIPS notes does the visa officer state that completion of a management training program is a usual requirement. Nowhere is there indication that the visa officer considered the meaning of the phrase "usually required". The officer's analysis, as I read from her affidavit, stopped when she satisfied herself that completion of the two week course could not be considered equivalent to a management training program as "per the NOC requirement for this occupation".
[5] I am therefore satisfied that the visa officer treated the completion of a management training program as a mandatory requirement.
[6] On the Minister's behalf it was submitted that it was open to the visa officer to treat the requirement as a mandatory requirement.
[7] In Karathanos v. Canada (Minister of Citizenship and Immigration) (1999), 3 Imm. L.R. (3d) 106 (T.D.), Sharlow J., as she then was, considered in detail the meaning of the phrase "usually required".
[8] Sharlow J. concluded that for the purpose of the education and training factor in Schedule I of the Immigration Regulations, 1978, the phrase "usually required" in the description of educational requirements is to be read as "always required" because of the automatic nature of the number of units awarded for the education and training factor.
[9] This was to be distinguished from how the words "usually required" are to be read in assessing the employment requirements described in the NOC handbook for the purpose of considering the number of units to be awarded for the occupational factor. In assessing an applicant under the occupational factor, the words "usually required" mean something which is usually, but not always, required by employers.
[10] In the present case, it was argued on the Minister's behalf that completion of a management training program is an "educational requirement".
[11] I do not accept that submission. In her affidavit, the visa officer swore that, "I was satisfied that although the Applicant's educational background appeared to be commensurate with the educational requirements of his intended occupations, he could not meet all the requirements of NOC 0111....". This makes it clear, contrary to the Minister's submission, that it was in the context of considering the occupational factor under Schedule I of the Immigration Regulations, 1978 that the visa officer determined that Mr. Mazumder did not meet the employment requirements of the occupation of financial manager.
[12] In so concluding, the visa officer committed a reviewable error by failing to properly consider the phrase "usually required" and by failing to determine if Mr. Mazumder's application disclosed facts and matters which would compensate for not meeting this usual requirement.
[13] For that reason, the application for judicial review is allowed and Mr. Mazumder's application for permanent residence under the occupation of financial manager is remitted to a different visa officer for redetermination. No question was proposed for certification.
"Eleanor R. Dawson"
Judge
Ottawa, Ontario
November 20, 2000
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