Date: 19990826
Docket: IMM-6307-98
BETWEEN:
MASAMI HARA,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
REED J.
[1] The applicant seeks an order setting aside a decision of a visa officer that found she was not qualified to work in Canada as a personnel and recruitment officer because she lacked the occupational requirements.
[2] The National Occupation Classification (NOC) handbook states that employers usually require that persons employed in that occupation hold a university degree or college diploma in a field related to personnel management (such as business administration, industrial relations, commerce or psychology) or that they have completed a professional development program in personnel administration.
[3] Counsel for the applicant argues that the visa officer erred in treating those educational requirements as mandatory. He notes that at p.ix of the Introduction of the NOC handbook, the meaning that should be attributed to the phrase "is usually required" is given. It describes an occupation for which employers usually, but not always, require completion of the educational programs indicated:
| Some occupations have very definite employment requirements while for others, there is no concensus [sic] or there may exist a range of acceptable requirements. To reflect this variation in the labour market, this section describes employment requirements using the following terminology: " "... is required" (to indicate a definite requirement) " "... is usually required" (to indicate something that is usually, but not always, required by employers) " "... may be required" (to indicate something that may be required by some employers, but on a less frequent basis). |
[4] Counsel points out that the descriptions at p. 23 of the Career Handbook where the phrase "is usually required" is equated to "is required", and the phrase "may be required" is equated to "is not required", are descriptions for the particular purpose of assigning numbers to the various occupations for comparative purposes, not descriptions of actual occupational qualification requirements.
[5] Counsel for the applicant also points out that the Department of Citizenship and Immigration had circulated a memorandum to all visa officers instructing them to interpret "is usually required" as meaning that "the applicant MUST MEET this requirement, unless there are significant and substantial factors that would, in the judgment of the visa officer, make it likely that the applicant will be able to overcome this typical requirement." Counsel states that if that instruction is treated by visa officers as mandatory, the visa officers will be fettering their discretion (see Tam v. Canada (Minister of Citizenship and Immigration) (1997), 38 Imm. L.R. (2d) 116 (F.C.T.D.), and Ho v. Minister of Employment and Immigration (1990), 11 Imm. L.R. (2d) 12 (F.C.A.)).
[6] Counsel for the respondent argues that the correct interpretation of the phrase "is usually required" is, indeed, that set out in the departmental memorandum. I accept counsel for the applicant"s argument that it may be an error to state that "is usually required" means that the educational requirement must be met , except when there are significant and substantial factors that persuade the visa officer that the occupational requirements can be overcome. This may be too rigid an interpretation. Nevertheless, there must be some persuasive reason for thinking that the applicant will be able to hold employment in the intended occupation despite the fact that the "usual" educational qualifications are not present.
[7] I turn then to this visa officer"s decision. In the refusal letter she states that the educational requirements "must be met." She notes that the applicant holds a diploma in Japanese Literature from Sugiyama Women"s College, and not any of the "usually required" degrees or diplomas. In her CAIPs notes, the visa officer records that the applicant worked in Vancouver for a period of time as an office clerk (an employment for which she appeared qualified) and, despite the fact that she asserts that she worked as a human resources officer in Japan for four years, that employment was with her father"s company and he signed her Letter of Recommendation. I note as well that the description in the Letter of Recommendation of the job she performed is very brief and vague, and not very convincing (many of the functions described are of a type performed by a clerk or receptionist).
[8] I have decided that despite what might be an overemphasis by the visa officer on the "requiredness" of the occupational qualifications described in the NOC handbook, there is insufficient evidence to allow a visa officer to reach a decision different from the one that has been made. I do not think there is evidence that could form the basis of a conclusion that a persuasive reason exists for thinking that the applicant could obtain employment in the occupation in question, when she does not possess the employment qualifications that are "usually required". In such circumstances, I am not persuaded that it is appropriate to send the matter back for reconsideration.
[9] For the reasons give the application will be dismissed.
(Sgd.) "B. Reed"
Judge
Vancouver, British Columbia
26 August 1999
[10]
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-6307-98
STYLE OF CAUSE: Masami Hara v. MCI
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: August 24, 1999
REASONS FOR ORDER OF REED J.
DATED: August 26, 1999
APPEARANCES:
Peter Chapman for the Applicant
Pauline Anthoine for the Respondent
SOLICITORS OF RECORD:
Peter Chapman for the Applicant
Chapman and Company
Law Corporation
Morris Rosenberg for the Respondent
Deputy Attorney General
of Canada