Date: 20080414
Docket: IMM-856-07
Citation: 2008 FC 472
Ottawa, Ontario, April 14, 2008
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
SURESHKUMAR RAJARATNAM and
USHAYINI
SHANMUGARAJAH
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
This
is an application for judicial review of a decision by a Visa Officer (Officer)
refusing the Applicant’s application for permanent resident visa as a member of
the transitional federal skilled worker class. The decision was based on a
conclusion that the Applicant had not met the requirements under the Immigration
Regulations 1978, SOR/78-172 (the Former Regulations) or the requirements
under the current Immigration and Refugee Protection Regulations,
SOR/2002-227 (Regulations).
II. FACTS
[2]
The
Applicant is a citizen of Sri Lanka who filed his first
application for permanent residence visa in September 2001, which was followed
up in July of 2003 with a new application in which the Applicant sought a visa
on the basis of the economic class “Federal Skilled Workers”. He requested
assessment under the categories of Financial Analyst, Credit Manager, Financial
Manager/Financial Controller and Accountant.
[3]
The
Applicant had studied basic accounting for one year and passed a preliminary
examination with the Institute of Chartered Accountants. He had
completed the next level to obtain a certificate or licence but had not
obtained a bachelor’s degree in accounting.
[4]
The
selection interview was held in April 2004 in Jamaica and,
following the interview, the Officer advised the Applicant that he did not pass
the selection. The Officer permitted the Applicant to submit additional
evidence and the Applicant was subsequently advised that his application had been
refused.
[5]
This
judicial review concerns only a challenge to the Officer’s finding in respect
of the position of Financial Analyst, the employment requirements for which are
described as follows:
(a)
A
bachelor’s degree in commerce, business administration or economics.
(b)
On-the-job
training and industry courses and programs are usually required.
(c)
The
Chartered Financial Analyst (CFA) designation, available through a program
conducted by the Institute of Chartered Financial Analysts in the United
States,
may be required by some employers.
[6]
The
issue in this judicial review is whether the Officer properly considered the
employment requirements in respect of the position of Financial Analyst.
III. ANALYSIS
[7]
In
accordance with the Supreme Court of Canada’s decision in Dunsmuir v. New
Brunswick,
2008 SCC 9, there are only two standards of review, correctness and
reasonableness. The principal issue before the Court is one of interpretation
of the National Occupational Classification, which is not a statutory
instrument but an internal working guideline of the Respondent. As such,
subject to issues of procedural fairness, legitimate expectation and other
principles of public law, the National Occupational Classification is
not legally binding. Therefore, the task of the Court is not to give an
interpretation of law but to assess the reasonableness of the Officer’s
decision in light of the evidence and rationale stated.
[8]
The
Applicant’s argument turns on the phrase “are usually required” as found in the
above-quoted provision from the National Occupational Classification –
Financial Analyst. It was the Applicant’s position that the words “are usually
required” modifies both the requirement for a bachelor’s degree as well as
training and courses and that the employment requirements for Financial Analyst
are a bachelor’s degree and/or on-the-job training, and industry courses
and programs.
[9]
It
is apparent from the Officer’s notes that he considered, in respect of the
position of Financial Analyst, that an applicant was required to have a
bachelor’s degree and training, and courses may be an additional
component or requirement, in order to satisfy the employment requirements. The
Applicant would therefore fail under the Officer’s interpretation because he
did not possess a bachelor’s degree.
[10]
With
respect to this issue of interpretation, as the National Occupational
Classification is a matter of policy and the Officer’s interpretation is
one which is reasonably open to him to make, I can find no error in his
conclusion.
[11]
In
my view, a National Occupational Classification provision can be read as
the Officer has done. Comparing the accompanying provisions in respect of
accountants, chartered accountants require a university degree and
completion of training programs, as well as several years of on-the-job
training. This is to be contrasted with the position of a Financial Analyst
who, according to the Officer’s interpretation, requires a degree but would not
necessarily require on-the-job training and university courses. This is a
reasonable interpretation and basis for the decision. Therefore, on this issue,
I can find no reason for judicial intervention.
[12]
The
Applicant had limited this judicial review to the assessment performed under
the former Regulations and did not dispute that he would otherwise not have
qualified for a visa under the current Regulations. The Applicant’s application
was assessed under both regimes and the Officer found that the Applicant would
not qualify under either. The Court need only consider the decision in respect
of the earlier regime.
IV. CONCLUSION
[13]
In
my view, this application for judicial review must be dismissed. There is no
question for certification, and the parties concur with that conclusion.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review is dismissed.
“Michael
L. Phelan”
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