Date: 20020823
Docket: IMM-6494-00
Neutral citation: 2002 FCT 905
BETWEEN:
JOHN SY
Applicant
-and-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROTHSTEIN J.A. (ex officio)
[1] This is a judicial review of a decision of a visa officer, which denied the applicant's application for permanent residence as a purchasing agent or officer (NOC1225.0)
[2] The visa officer assessed the applicant in the occupation of farm manager and awarded him 50 units of assessment. Accordingly, he was not convoked for an interview. Because he obtained less than 70 units of assessment and because he was not awarded any units under the occupational factor, the visa officer found that he was not permitted to issue a permanent resident visa to the applicant.
[3] The visa officer also assessed the applicant in the occupation of purchasing agent and officer but refused to approve the applicant in this occupation, "because your duties do not matched [sic] those described in NOC".
[4] There is no doubt that the applicant was entitled to be assessed in his intended occupation of purchasing agent and officer. See Hajariwala v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 79 at 86. The question is whether the visa officer's conclusion that the applicant's duties did not match those described in the NOC was supported by the material before the visa officer.
[5] It appears from the CAIPS notes that the applicant's application was first considered by someone in the visa office at Manilla, Philippines, designated by the initials "GMA". The record does not otherwise identify GMA. On a paper screening score, GMA awarded the applicant 69 units. In the view of GMA, an interview would verify the nature and scope of the applicant's qualifications:
Duties of PI does not relate to duties of 6233. PI is more of a purchasing agent. Interview will verify nature and scope of work, and assess overall qualifications.
The file was then referred by GMA to the visa officer for review.
[6] The visa officer's entry in the CAIPS notes is brief:
Applicant is buying seed for a farm!!!
This 1225.0 thing is getting out of hand here [...]
The applicant manages a farm, which entails buying duties which are peripheral and incidental to his activities as a manager.
It does not make him a purchasing agent.
Refusing on paper.
Refusal letter as per CAIPS.
Also considered 1225.0 purchasing agent but your duties do not match those described in NOC.
[7] These entries require some comment. First, there is no reference in the record to the applicant buying seed for a farm and the visa officer's finding is not supported by the evidence before him. However, the record does indicate that the applicant, in his capacity as general manager and purchaser of Hi-Breed Farms Inc, is engaged in the procurement of ingredients, vitamins and minerals required for feeds, medical equipment and supplies, medicine and vaccines. The record also indicates that the applicant had purchased breeding stock, a task involving selection, inspection and testing of boars and sows. Previously, the record indicates, the applicant was involved in purchasing construction materials. It seems that the visa officer ignored this information.
[8] Second, it would seem inconsistent to find that the applicant's position managing a farm entailed buying duties on the one hand, and yet, summarily, find that his duties do not match those described for purchasing agent in the NOC. It is true that the visa officer found the applicant's buying duties peripheral and incidental to his activities as a manager. But he gives no indication as to why he came to that conclusion. There is nothing in the record to support it. In any event, a finding that buying duties were incidental does not mean the applicant did not perform such duties. The visa officer gives no explanation as to why the buying duties did not match those described in the NOC. For example, the NOC refers to purchasing agents and officers performing duties such as purchasing general and specialized equipment, materials or business services for use or for further processing by their establishment. The record indicates the applicant makes such purchases. Perhaps, had the visa officer provided some reasons for his conclusion, it might be possible to understand his thinking. However, he did not do so.
[9] In his affidavit, the visa officer says that he considered the applicant in the occupation of purchasing agent but that the applicant did not demonstrate sufficient experience to satisfy the NOC. Yet, the record indicates that the applicant was involved in purchasing, at least as far back as 1978, and the visa officer does not challenge that information.
[10] The visa officer concedes that all enterprise owners make purchases that are sometimes required for processing or for use in the business, as required by the NOC. However, in the view of the visa officer, because they are owners or managers, that fact seems to disqualify them from being qualified as purchasing agents.
[11] I accept that not every owner or manager may perform duties that would qualify him or her as a purchasing agent. However, each case must be determined on its own facts. An approach that stereotypes all owners and managers, regardless of the facts of the case, is not appropriate.
[12] Apart from these considerations, because the applicant was initially assessed in the occupation of purchasing agent with a score of 69 units on a paper screening, and, in the view of the individual conducting that screening, should be interviewed to determine the nature and scope of his work and qualifications, I do not think that the summary dismissal of the applicant's application by the visa officer was reasonable.
[13] The Minister argues that the applicant's application was ambiguous and that a visa officer is not required to interview an applicant to clear up ambiguities. See Lam v. Minister of Citizenship and Immigration (1998), 152 F.T.R. 316 at paragraphs 4 and 5. However, this is not a case where the application is ambiguous or where relevant supporting documentation is in issue.
[14] In the circumstances, I would allow the judicial review, remit the matter for redetermination by a different visa officer on the record and on such further information as the applicant may choose to provide or the visa officer may request.
"Marshall Rothstein"
Judge
Toronto, Ontario
August 23, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-6494-00
STYLE OF CAUSE: JOHN SY
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, AUGUST 21, 2002
REASONS FOR ORDER BY: ROTHSTEIN J.A.
DATED: FRIDAY, AUGUST 23, 2002
APPEARANCES BY: Mr. Cecil Rotenberg Q.C.
For the Applicant
Ms. Mielka Visnic
For the Respondent
SOLICITORS OF RECORD: Cecil Rotenberg Q.C.
Barristers and Solicitors
United Centre, 808-255 Duncan Mill Rd.
Toronto, Ontario
M3B 3H9
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020823
Docket: IMM-6494-00
BETWEEN:
JOHN SY
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
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