Date: 20031229
Docket: IMM-2931-02
Citation: 2003 FC 1525
Ottawa, Ontario, this 29th day of December, 2003
Present: The Honourable Justice James Russell
BETWEEN:
ABBAS KANDVANI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of the decision ("Decision") of Visa Officer John Tweedy ("Visa Officer"), dated May 28, 2002 dismissing the application of Abbas Kandvani ("Applicant") for permanent residence in Canada ("Application").
BACKGROUND
[2] The Applicant is a citizen of the Islamic Republic of Iran who has resided in Denmark since 1984 after serving in the Iranian army during the Iran / Iraq war.
[3] In June 1999, the Applicant applied for permanent residence in Canada under the independent category. His intended occupation in Canada, as stated on his application form, was Civil Engineer/Environmental Engineer (NOC 2131), given the Applicant's education and experience in that occupation.
DECISION UNDER REVIEW
[4] The Applicant was interviewed on January 24, 2002, by the Visa Officer at the Canadian embassy in Warsaw, Poland. The Applicant discussed his education and work experience as an electronics engineer. He said that his work experience in this occupation consisted of six months training in a Danish company and one year working in Iran giving advice with respect to insulation, energy conservation and pollution reduction technologies.
[5] The Applicant was asked to provide an assessment of his engineering qualifications from the Canadian Council of Professional Engineers (the "CCPE"). He provided an assessment from a different body, the Canadian Council of Technicians and Technologists, dated April 5, 2002 which gave him a positive education assessment.
[6] The Visa Officer made a second request of the Applicant to provide a CCPE assessment. The Applicant then submitted an assessment from the CCPE, which was dated December 30, 1999, and which indicated that the Applicant's educational background was "not acceptable" for eligibility for registration with the CCPE. The CCPE letter indicates that applicants for registration from Denmark must have a "Civilingenior" and that the Applicant's education is only a "Diplomingenior." Accordingly, the Applicant was found not to be eligible for a positive CCPE educational assessment. The Visa Officer regarded the Applicant's education as more closely related to that of a Technician or Technologist, and invited the Applicant to contact the Canadian Council of Technicians and Technologists.
[7] When forwarding the negative CCPE assessment to the Visa Officer on April 18, 2002, the Applicant's counsel advised the Visa Officer that the Applicant wished to amend his application and to be assessed as both a Civil Engineer and as a Civil Engineering Technician. The Applicant's counsel also advised the Visa Officer that a positive CCPE assessment is not a condition of approval of permanent residence.
[8] The Visa Officer noted from the NOC that registration with the CCPE is required in order to be registered as a professional engineer in Canada and as a pre-requisite to approving engineering drawings or reports. In light of the negative CCPE assessment, the Visa Officer was of the opinion that the Applicant was ineligible in Canada for registration as a professional engineer and was ineligible to approve engineering drawings or reports. The Visa Officer was, accordingly, not satisfied that the Applicant met the employment requirements for the occupation and felt unable to assign any units of assessment for the Occupational Factor. The Applicant also received zero units of assessment for experience because the Visa Officer was of the opinion that the Applicant's prior experience could not have been experience as a civil engineer.
[9] When assessed in the alternative occupation of Civil Engineering Technician and Technologist, the Applicant failed to meet the selection criteria and did not earn sufficient units of assessment.
RELEVANT LEGISLATION
[10] The NOC employment requirements for "Civil Engineer" NOC 2131 are as follows:
A bachelor's degree in civil engineering or in a related engineering discipline is required.
A master's degree or doctorate in a related engineering discipline may be required.
Licensing by a provincial or territorial association of professional engineers is required to approve engineering drawings and reports and to practise as a Professional Engineer (P.Eng.).
Engineers are eligible for registration following graduation from an accredited educational program, and after three or four years of supervised work experience in engineering and passing a professional practise examination.
Supervisory and senior positions in this unit group require experience.
ISSUES
[11] The Applicant raises the following issues:
Did the Visa Officer err in law by making a positive CCPE assessment a condition precedent for approval as a civil engineer?
ARGUMENTS
Applicant
Did the Visa Officer err in law by making a positive CCPE assessment a condition precedent for approval as a civil engineer?
[12] The Applicant submits that the refusal letter reveals that the Visa Officer treated the negative CCPE assessment as a condition precedent to his acceptance of the Applicant as a Civil Engineer. The Applicant submits that this Court has held that treating the CCPE assessment as a condition precedent is an error of law (Li v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1295).
[13] The Applicant submits that the CCPE assessment is simply an informal assessment as to whether or not, based on the academic qualifications provided by the Applicant to the CCPE, the Applicant would be licenced as a professional engineer in Canada.
[14] The Applicant further submits that the CCPE has no statutory jurisdiction under the Act to assess potential immigrants, so that the Visa Officer misinterpreted the law and fettered his discretion by treating this informal assessment as a condition precedent to approval of the Applicant as a Civil Engineer for immigration purposes.
[15] The Applicant notes that the NOC 2133 requirements state that, in some provinces, graduates of non-accredited institutions may become licenced engineers upon an apprenticeship and by sitting for examinations. The Applicant also notes that registration as a Professional Engineer with one's provincial association of professional engineers is stated in NOC 2133 only to be "often required" for employment.
Respondent
[16] The Respondent submits that the material before the Visa Officer in this case indicated that the Applicant has pursued a course of study that is inferior to that of a "bachelor's degree in civil engineering or a related discipline."
[17] The material before the Visa Officer further indicated that the Applicant's education was not acceptable for registration with the CCPE, and was in fact a full two years less education than required by the CCPE. The Respondent submits that the Visa Officer considered this circumstance, along with the NOC requirements, and the information given by the Applicant, in concluding that the Applicant did not meet the employment requirements for the occupation in which he had applied. Accordingly, the Respondent says that the Applicant's assertion that the Visa Officer exclusively relied upon the CCPE assessment in making his decision is without merit. Rather, the Visa Officer considered the CCPE assessment in concluding that the Applicant did not pursue an appropriate course of study and could not have been previously working as a civil engineer.
[18] The Respondent submits that the opinion formed by the Visa Officer is reasonable and is not at odds with the employment expectations of Canadian employers (Luliang v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1436).
[19] The Respondent concludes that the Applicant, notwithstanding his apparently deficient educational background, seeks to immigrate to Canada to work as an "unlicenced engineer." Hence, it is the Applicant who has the burden of demonstrating that such is a reasonable possibility (Muchhala v. Canada (Minister of Citizenship and Immigration), [2000], F.C.J. No. 1323). The Respondent submits that this burden was not discharged by the Applicant in the present case.
ANALYSIS
What is the applicable standard of review to apply to the Decision of the Visa Officer?
[20] Teitelbaum J. in Liu v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1125, 2001 FCT 751 (F.C.T.D.) (Q.L.) indicated as follows:
The appropriate standard of review for this type of decision -- a discretionary one by a visa officer -- is the same as that enunciated by McIntyre J. in the Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2 at pp. 7-8:
It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.
In Wang v. Canada (M.C.I.), [2001] F.C.J. No. 95 (IMM-2813-00, January 25, 2001), Rouleau J., referring to the above cited passage as well as to the Supreme Court of Canada's decision in Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817, held that the appropriate standard of review should be reasonableness simpliciter [emphasis added].
[21] Accordingly, I am of the opinion that reasonableness simpliciter is the appropriate standard to apply to a review of the Visa Officer's decision in this case. However, even if I apply a standard of patent unreasonableness, I come to the same conclusions.
Did the Visa Officer err in law by making a positive CCPE assessment a condition precedent for approval as a civil engineer?
[22] The Respondent submits that if the Applicant, having apparently deficient educational background, seeks to immigrate to Canada to work as an "unlicenced engineer," it is the Applicant who has the burden of demonstrating that such is a reasonable possibility. As O'Keefe J. noted in Muchhala, supra:
17. The applicant in the present case stated that he was moving to Ontario. By subsection 8(1) of the Act, it is up to the applicant to satisfy the visa officer that he meets the requirement for immigration to Canada. If in fact in Ontario, graduates of non-accredited educational programs can qualify as engineers by completing terms of supervised employment and passing examinations, then it is up to the applicant to establish these matters. There is no evidence that this was done before the visa officer. Therefore, I can only assume that the visa officer applied the requirements that she believed applied in Ontario where the applicant was seeking to be employed.
[23] The Applicant has drawn my attention to Li, supra, where Campbell J. indicated as follows::
2. The Applicant is a citizen of Russia who applied with the intended occupation of Electronics Engineer. As is the case with many applicants applying as engineers, the Applicant contacted the Canadian Council of Professional Engineers ("CCPE") to receive an Initial Assessment of Qualifications. The CCPE determined that the Applicant's academic qualifications were insufficient and rendered a negative assessment. Based on this negative assessment, the Visa Officer concluded that the Applicant did not meet the employment requirements as set out in the National Occupational Classification ("NOC") and therefore could not be awarded units under the Occupational Factor. The relevant portion of the refusal letter reads as follows:
In reviewing the National Occupational Classification (NOC) for your selected occupation, I have noted that under Employment Requirements for Electronic Engineers, a bachelor's degree in electronics engineering or in an appropriate engineering discipline is required. At the same time, in order to work as an electronics engineer in Canada, registration as a Professional Engineer in one's province of residence is often required and that electronics engineers are eligible for registration only if they have graduated from an accredited educational program.
You applied to the Canadian Council of Professional Engineers (CCPE) for an Initial Assessment of Qualifications. I have noted that the CCPE has determined that your qualifications are unacceptable in that your academic qualifications cannot be recognised by the CCPE. You have according to the CCPE completed insufficient engineering and engineering design courses. In view of the CCPE's assessment, I have concluded that you do not have the minimum educational qualifications that one would expect an electronics engineer in Canada to possess and that, therefore, you are not sufficiently prepared to follow the occupation of electronics engineer in Canada. I am, accordingly unable to award you any units for the Occupational factor.
(Applicant's Record, p.6)
3. While the Visa Officer correctly cited that "registration" is "often required", it is agreed that the Visa Officer set this as a condition precedent in reaching the decision. The evidence in support of this conclusion is abundantly clear on the CAIPS notes and the Visa Officer's affidavit.
4. Not only does the NOC not impose this requirement, but it is agreed that the guidelines for decision making with respect to assessments by the CCPE specifically state:
While applicants should be encouraged to obtain the CCPE assessment, we can not insist on one as a prerequisite to the application process.
(Respondent's Application Record, p. 26)
5. Therefore, I find the decision was made in reviewable error which renders the decision patently unreasonable.
[24] In this case, the Applicant was evaluated as a Civil Engineering Technologist (NOC 2231.1) and Civil Engineering Technician (NOC 2231.2), and failed to meet the required threshold of 70 points.
[25] However, the Applicant originally wished to be evaluated as a Civil Engineer. As indicated in Li, supra, a positive CCPE assessment cannot be used as a condition precedent in making an evaluation under the NOC Guidelines for this occupation. The Visa Officer in this case treated it as such:
In view of the CCPE's assessment, I have concluded that you do not meet the employment requirements to work as a civil engineer in Canada, and that, therefore, you are not sufficiently prepared to follow the occupation of civil engineer in Canada. I am, accordingly, unable to award you any units for the Occupational or Experience factors in this occupation.
[26] I am of the view that the Visa Officer committed a reviewable error in this regard by unduly fettering his discretion. His Decision makes it clear that he did not consider the negative CCPE assessment to be one of a number of factors that prevented the Applicant from receiving any units of assessment under the Occupational or Experience factors in that occupation; rather, he treated it as a condition precedent and went no further with his analysis. Even in light of Muchhala, supra, the Visa Officer still had to address the other employment requirements for the occupation of Civil Engineer, and determine whether the Applicant sufficiently met those requirements to warrant awarding points under the Occupational or Experience factors.
[27] The Respondent argues that the Visa Officer indicated that the Applicant's education was not acceptable for registration with the CCPE. This conclusion is still predicated on the negative CCPE report, which constitutes erroneous reliance on an optional requirement and is contrary to the NOC guidelines.
ORDER
THIS COURT ORDERS THAT:
1. This Application for judicial review is allowed and this matter is submitted to a different Visa Officer for reconsideration in accordance with the criteria in force at the time of the Decision.
2. There is no question for certification.
"James Russell"
J.F.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-2931-02
STYLE OF CAUSE: ABBAS KANDVANI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, NOVEMBER 25, 2003
REASONS FOR ORDER BY: RUSSELL, J.
APPEARANCES BY: Mr. Mark Rosenblatt
For the Applicant
Mr. Lorne McClenaghan
For the Respondent
SOLICITORS OF RECORD: Mr. Mark Rosenblatt
Barrister & Solicitor
335 Bay St.,
Suite 1000
Toronto, Ontario
M5H 2R3
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20031125
Docket: IMM-2931-02
BETWEEN:
ABBAS KANDVANI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER