Date: 19980325
Docket: IMM-2117-97
Ottawa, Ontario, this 25th day of March 1998
Present: The Honourable Mr. Justice Pinard
Between:
OMAR MAHREZ,
Applicant,
-and-
MINISTER OF CITIZENSHIP
AND IMMIGRATION OF CANADA,
Respondent.
ORDER
The application for judicial review of the decision of the immigration officer Mark Parant, informing the applicant that the immigration officer Mark Floyd had determined that his application for permanent residence in Canada did not meet the requirements relating to immigration to Canada, is dismissed.
YVON PINARD
JUDGE
Certified true translation
C. Delon, LL.L.
Date: 19980325
Docket: IMM-2117-97
Between:
OMAR MAHREZ,
Applicant,
-and-
MINISTER OF CITIZENSHIP
AND IMMIGRATION OF CANADA,
Respondent.
REASONS FOR ORDER
[1] This is an application for judicial review of the decision of the immigration officer, Mark Parant dated April 11, 1997, informing the applicant that the immigration officer Mark Floyd had determined that the applicant's application for permanent residence in Canada did not meet the requirements relating to immigration to Canada.
[2] The applicant was born in Oujda, Morocco, on August 15, 1963, and is a citizen of Morocco. He has obtained four degrees in accounting, a diploma as a technician in industrial electronics and a certificate of graduate technical studies in industrial electronics, and he did two years of university studies in physics and chemistry. He has held positions as an accountant, an accounting officer and management attaché, and a manufacturer's agent. When he applied for permanent residence, he had been working as a manufacturer's agent since October 1993.
[3] The applicant filed his application for permanent residence in the independent immigrant class at the Embassy of Canada in France on November 14, 1996, based on the occupation of manufacturer's agent in the technical field. Mark Parant did the preliminary examination, and specified that the interview should focus on the level of the applicant's knowledge of the languages, his experience as a manufacturer's agent, his chosen destination, and his personal motivations; Mr. Parant added the following note: [translation] "If subject does not have the points required for manufacturer's agent, please also assess as accountant." The interview took place on April 8, 1997.
[4] The immigration officer Mark Floyd assessed the applicant's application in the independent applicant class, based on the prescribed factors, in accordance with subs. 8(1) of the Immigration Regulations, 1978 (the Regulations), and based on the requirements relating to the occupation of manufacturer's agent (ccdp 5133110). Since the applicant did not obtain enough units of assessment to be allowed to immigrate to Canada, the immigration officer Mark Parant informed him that he was a member of the inadmissible class described in para. 19(2)(d) of the Immigration Act (the Act) and rejected his application.
[5] The applicant contends that the immigration officer failed to completely fulfil his legal duties, in that he assessed him only as a manufacturer's agent and not also as an accountant. In my view, there is no basis for this contention, as the applicant never indicated, either in writing or orally, that if he failed to qualify as a manufacturer's agent he wanted to be assessed as an accountant or was also ready and prepared to work as an accountant.
[6] Subsection 11(2) of the Regulations provides:
| 11. (2) Subject to subsections (3) and (4), a visa officer shall not issue an immigrant visa pursuant to section 9 or 10 to an immigrant other than an entrepreneur, an investor, a provincial nominee, a retired person or a self-employed person unless |
| ( a) the units of assessment awarded to that immigrant include at least one unit of assessment for the factor set out in item 4 of column I of Schedule I; |
| ( b) the immigrant has arranged employment in Canada; or |
| ( c) the immigrant is prepared to engage in employment in a designated occupation. |
[7] Item 4 of column I of Schedule I, which is an integral part of the Regulations, provides that units of assessment shall be awarded on the basis of the occupation that the applicant is qualified for and is prepared to follow in Canada.
[8] Since there is nothing in the record to indicate that the applicant had expressed that he was prepared to follow an occupation in Canada other than the one indicated, manufacturer's agent, the immigration officer did not have to assess the applicant or award him points in another occupation, even though it might appear that the applicant had specific qualifications for that occupation.
[9] In Gaffney v. Canada (M.E.I.) (1991), 12 Imm. L.R. (2d) 185, the Federal Court of Appeal held:
| ... a visa officer has the duty to assess an application with reference to the occupation represented by the applicant ... as the one for which he or she is qualified and prepared to pursue in Canada ... |
[10] There have been other decisions of this Court, such as Hajariwala v. Canada (M.E.I.), [1989] F.C. 79 (T.D.), Li v. Canada (M.E.I.) (1990), 9 Imm. L.R. (2d) 263 (T.D.), Tolentino v. Canada (M.C.I.) (June 14, 1995), IMM-1614-94 (T.D.) and Khoja v. Canada (M.C.I.) (January 20, 1997), IMM-998-96 (T.D.), that have also held that a visa officer is not required to assess an application for permanent residence with reference to an occupation that the applicant does not state.
[11] With respect to the recommendation made by the officer Mark Parant that the applicant also be assessed as an accountant, counsel for the applicant acknowledged that there was nothing in the record to show that this recommendation, which was made on a preliminary examination, was in response to a specific request by the applicant. In fact, there is no evidence that the applicant was informed of this recommendation before the decision that is the subject of this application. In the circumstances, the immigration officer who was actually responsible for considering the applicant's application for permanent residence was not bound by the opinion of a colleague and was not bound, in law or in equity, to follow that colleague's suggestion.
[12] Moreover, despite the careful presentation by counsel for the applicant, she has not satisfied me that there was any error that could justify the intervention of this Court.
[13] Having regard to these conclusions, I agree with counsel for the respondent that there is no question here to be certified.
[14] Accordingly, the application for judicial review is dismissed.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
March 25, 1998
Certified true translation
C. Delon, LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO: IMM-2117-97
STYLE OF CAUSE: OMAR MAHREZ v. M.C.I.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 18, 1998
REASONS FOR ORDER OF PINARD J.
DATED: March 25, 1998
APPEARANCES:
Sophie Patricia Guerrero FOR THE APPLICANT
Jocelyne Murphy FOR THE RESPONDENT
SOLICITORS OF RECORD:
Sophie Patricia Guerrero FOR THE APPLICANT
Montréal, Quebec
George Thomson FOR THE RESPONDENT
Deputy Attorney General of Canada