Date: 20010124
Docket: IMM-525-00
BETWEEN:
MOKSUD, ASIF
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This application is for judicial review of a decision of Raymond Gabin, vice consul at the Canadian Consulate General in Buffalo (the "visa officer"), dated January 7, 2000, refusing the Applicant's application for permanent residence in Canada on the grounds that the Applicant was not qualified for selection as a software engineer and was therefore inadmissible under paragraph 19(2)(d) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act").
[2] On October 17, 1999, the Applicant filed an application for permanent residence in Canada with the Canadian Consulate General in Buffalo, in the independent category. His intended occupation in Canada was that of software engineer.
[3] The Applicant holds a Bachelor's degree in commerce and two Master's degrees in business administration.
[4] The visa officer found that the Applicant did not have the minimum qualifications specified in the NOC under the title of software engineer, as one of the requirements for this occupation is a Bachelor's degree in computer engineering, electrical or electronics engineering, engineering physics, computer science, physics or mathematics.
[5] The visa officer also assessed the Applicant as a new worker (NOC 9914.0). However, as the occupational factor for this occupation is currently zero, the Applicant could not be issued a visa pursuant to subsection 11(2) of the Immigration Regulations, 1978.
[6] The visa officer awarded zero units of assessment to the Applicant under the occupational factor and did not conduct an interview. The application was refused.
[7] The sole issue to be determined in this proceeding is whether or not the visa officer erred in failing to assess the Applicant under the occupations of computer programmer (NOC 2163) and computer systems analyst (NOC 2162).
[8] The Applicant submits that the visa officer should have assessed him according to alternate occupations inherent to his work experience. The occupations of computer programmer and computer system analyst, for which he alleges his qualifications are compatible, are inherent to the title of software engineer.
[9] The Applicant submits that the visa officer should have considered his aptitudes, previous work experience and whether or not this constitutes experience in the intended occupations.
[10] The Respondent contends that the Applicant's suggestion that he represented to the visa officer that he was qualified for and prepared to pursue in Canada the occupations of computer programmer (NOC 2163) and computer systems analyst (NOC 2162) has no foundation in fact and should therefore not be considered by the Court.
[11] According to the Respondent, it is unwarranted for the Applicant to suggest that the visa officer did not consider his aptitudes and previous work experiences. On the contrary, the visa officer clearly stated in his decision that he had carefully assessed and investigated the Applicant's training and experience in the occupation of software engineer, based on the information he had provided in his application. The fact that the visa officer assessed the Applicant under an occupation for which he appeared to have the necessary training (new worker) cannot be considered as an error on his part warranting judicial intervention. On the contrary, it shows that the visa officer did not seek to exclude him but rather to facilitate his entry to Canada.
[12] Furthermore, the Applicant has failed to demonstrate that his work experience and educational training match the requirements of the NOC with regard to the occupations of computer programmer and computer systems analyst. These occupations are not inherent to the title of software engineer. Rather, the NOC refers to them as being "similar occupations classified elsewhere".
[13] According to the Respondent, the real issue is whether the visa officer had a duty to assess the Applicant's application with regard to the occupations of computer programmer and computer systems analyst, even though the Applicant had not indicated that he was prepared to follow these occupations in Canada. The Respondent submits that the visa officer had no obligation under the law to assess occupations which were not referred to in the Applicant's application and cover letter as being occupations he was prepared to follow in Canada. According to the Respondent's understanding of the jurisprudence of this Court, the visa officer is under no duty to assess an applicant in every possible occupation in which he may be eligible to apply but rather, he has the duty to assess an applicant in the occupation(s) which he is prepared to follow in Canada.
[14] In support of his submissions, the Applicant relies heavily on Li v. Canada (Minister of Employment and Immigration) (1990), 9 Imm. L.R. (2d) 263 (Fed. T.D.) and Ahmad v. Canada (Minister of Citizenship & Immigration) (1998), 40 Imm. L.R. (2d) 121 (Fed. T.D.).
[15] In Li, Jerome, A.C.J. held the following (at page 273):
| "In Hajariwala, I found that there exists a clear responsibility on the part of the visa officer to assess alternate occupations inherent in the applicant's work experience where the applicant seeks such an assessment by designating it in his application. Where his work experience suggests that the occupation may be appropriate, the visa officer must assess the applicant in the designated occupation, regardless of which alternate occupations the officer has seen fit to consider. |
| If it can be inferred that a person carrying out the occupation of managing supervisor, retail store who manages a wholesale business has experience as sales representative, Commercial and Industrial Equipment and Supplies, the applicant is entitled to an assessment in this regard. Notwithstanding the lengthy corresponence (sic) which has taken place between the visa officer and the applicant's solicitor, such an assessment has yet to be made. The visa officer has to date failed to evaluate the applicant's work experience in the category of 5133-126, as the applicant originally requested." (emphasis added) |
[16] It is noteworthy that Li, by itself, does not stand for the overarching proposition that there is a responsibility on the part of the visa officer to assess alternate occupations inherent in the applicant's work experience. What Li actually stands for is that such a duty exists when applicants request it in their application. As for the Ahmad case, I find, upon review, that the circumstances were wholly different and that it should not be applied. The Applicant, in that case, had conceded that he should not be assessed under the occupation in question. Furthermore, the Court only mentioned the Li case in passing, and the statement is incomplete. I find the case unreliable.
[17] It has also long been held by the Court that visa officers have no duty to assess an applicant in alternative occupations unless the applicant has put them forward (See: Hajariwala v. Minister of Employment and Immigration et al. (1988), 23 F.T.R. 241); Khoja v. M.C.I., IMM-998-96, January 3, 1997, (F.C.T.D.); Uy v. M.E.I., [1991] 2 C.F. 201 (F.C.A.); Gaffney v. M.C.I., (1991) 12 Imm. L.R. (2d) 185 (F.C.A.); Tolentino v. M.C.I., IMM-1614-94, June 14, 1995, (F.C.T.D.); Yen Ngoc Quach v. M.C.I., IMM-3071-98, January 21, 2000, (F.C.T.D.); Hassan v. M.C.I., IMM-218-99, December 17, 1999, (F.C.T.D.); Mahrez v. M.C.I., (1998) 46 Imm. L.R. (2d) 132, (F.C.T.D.)). Note: there are some discrepancies, though. See, for an example: Saggu v. M.C.I., (1994) 87 F.T.R. 137 (F.C.T.D.).
[18] In the present case, there is nothing in the record to suggest that the Applicant did, in fact, request to be assessed under occupations similar to that of software engineer. In fact, his immigration application form specifically indicates that his intended occupation in Canada was that of software engineer. Furthermore, the Applicant indicated, in a cover letter, that his experience and qualifications were "most compatible with the National Occupational Classification (NOC) title of software engineers (NOC 2147.2)".
[19] In the present case, however, the visa officer did not stop at assessing the Applicant under the requested occupation. After he had determined that the Applicant did not qualify under the occupation of software engineer, the visa officer undertook, on his own accord, to assess the Applicant in an occupation wholly unrelated to his areas of study and with an occupational demand of zero: that of new worker.
[20] While I am fully aware of this Court's decision in Wahid v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1949 (QL), in which it was determined that visa officers did not have an obligation to act unilaterally to advance applicants' positions, I believe that the particular circumstances of this case compelled the visa officer to at least consider similar occupations.
[21] Under the NOC, software engineers are part of the broader unit group of computer engineers - 2147. According to the NOC, "computer engineers work closely with computer programmers, systems analysts, electrical and electronics engineers and other scientists and engineers and mobility is possible between these fields of specialization". Every occupation description contains a "classified elsewhere" section. This section clarifies the boundaries of the unit group by identifying other unit groups or occupations that are classified elsewhere. Unit groups or individual occupations are cited in the "classified elsewhere" section when they bear a functional similarity to the unit group or when similar titles occur. In the "classified elsewhere" section of the software engineer section, we find a number of occupations, including those of computer programmers and computer systems analysts. These are also found in the "classified elsewhere" section of the computer engineers section. Considering the level of education of the Applicant as well as his previous work experience, I believe it would only have been fair (and logical) for the visa officer to assess the Applicant in one of those similar occupations. This is especially so in a case like this one, where the decision was reached without the benefit of hearing the Applicant during an interview. The visa officer's choice of the occupation of new worker is so unreasonable that it cannot be validated.
[22] I believe it would only be fair to grant this application for judicial review in light of the circumstances. Accordingly, the application is allowed.
JUDGE
OTTAWA, Ontario
January 24, 2001