Date: 19990129
Docket: IMM-2302-98
BETWEEN:
TAE SUK PARK
OK BUN SO
CHONG KYUN PARK
CHONG HWAN PARK
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
CULLEN J.:
FACTS
[1] The applicants, citizens of Korea, apply for judicial review of the decision of a visa officer in which the officer rejected their applications for permanent residence in the independent/assisted relative category and stated that the applicants were inadmissible pursuant to paragraph 19(2)(d ) of the Immigration Act ("the Act").
VISA OFFICER'S DECISION
[2] The visa officer, in a letter dated 25 March 1998, stated that the principal applicant's ("the applicant") application had failed pursuant to paragraph 9(1)(b) of the Regulations, in that he had failed to obtain a minimum of 70 points, and pursuant to subsections 11(1) and 11(2), in that he had obtained zero points for experience under both the CCDO and NOC classifications. The applicant was assessed on the basis of his intended occupation of President and Chief Financial Officer under CCDO code 1135-10. The visa officer found that the applicant lacked elements required by the CCDO and NOC: ten years experience in previous junior managerial or supervisory situations; a university degree in a listed field; completion of company or management training programmes; several years of experience in a financial field. The officer determined that the principal applicant did not meet the requirements to work in the position which he had been offered in Canada with Ottawa Valley Oak Mushroom Corporation ("the Mushroom Corporation"). The visa officer noted that the applicant and his sons were in violation of paragraph 26(1)(b) of the Act in that the applicant had been working in Canada and his sons had been studying. The officer noted that the "Investment Agreement" between the principal applicant and his proposed employer was in violation of the terms of employment validated by HRDC.
ISSUE
[3] Did the visa officer err in his assessment of the principal applicant's credentials based on the CCDO and/or NOC and as such err in law?
ARGUMENT
Applicant:
[4] The applicant submits that his intended occupation was that of Comptroller /Controller /Treasurer, under CCDO code 1135-110. It is submitted that his application should have been assessed under that occupation, rather than under "Chief Financial Officer," or that at least the matters should have been assessed in the alternative. It is submitted that the visa officer stated in his decision letter that the intended occupation of the person concerned was "President and Chief Financial Officer" and indicated that this is under CCDO code 1135-10. It is submitted that the NOC code used in the assessment is 0111, which covers controller and treasurer. It is submitted that the position to which the applicant was intending to engage could be classified as Comptroller/Controller, based on the validated job offer and credentials of the applicant.
[5] The applicant submits that the requirements set out by the officer in his letter of rejection are not found in the definition of Comptroller as set out in CCDO code 1135-110. It is submitted that the applicant has the credentials set out under Comptroller and would have qualified for immigration had the proper assessment been carried out under the CCDO code specified. It is submitted that the applicant was qualified for such a position, shown by his business experience serving as President in the Dobler Corporation, technical experience in the trade of the Mushroom Corporation, mushroom cultivation, and the company's request that he work for them.
[6] The applicant submits that the immigration officer erred in refusing the application on the basis that the applicant is not familiar with Canadian tax laws, as this does not fairly reflect the information necessary for the applicant to carry out his duties with his proposed employer and does not recognize that financial officers in corporations generally seek outside advice with regard to tax issues. It is submitted that this constitutes an error under subsection 18.1(4) of the Federal Court Act as it placed an undue burden on the applicant not provided for in the CCDO codes and set an improper threshold for any applicant.
[7] The applicant submits that the HRDC's validated job offer reflects its assessment that the applicant was qualified for the position with the Mushroom Corporation and that no suitable Canadian could fill the position.
Respondent:
[8] The respondent submits that the applicant has the burden of proving that he has the right to come into Canada and of producing all relevant information which may assist his application: Act, subsection 8(1); Hajariwala v. MEI (1988) 6 Imm. L.R. (2d) 222 (F.C.T.D.).
[9] The respondent submits that the applicant has not shown that the visa officer erred in applying the training and entry requirements for Chief Financial Officer nor that there are other, more appropriate training and entry requirements for the occupation of Chief Financial Officer in the CCDO which the officer failed to apply. The respondent submits that the applicant quotes the portion of the CCDO referring to the duties of a comptroller rather than to the education and training requirements of the occupation.
[10] The respondent submits that the applicant has not shown that the officer's assessment is inconsistent with the requirements of the CCDO and the job requirements outlined in the Employment Validation, which included financial management and accounting background to meet export industry standards. It is submitted that the officer sought information from the applicant to determine his ability to fulfil these requirements and that it was open to the officer on the evidence provided to determine that the applicant did not have the ability to fulfil the financial functions of the job and did not qualify in the relevant occupation.
[11] The respondent submits that the validated job offer did not indicate that the applicant was assessed as being qualified for the position offered by the Mushroom Corporation. It is submitted that the HRDC letter read:
| Please note that this Employment Validation does not authorize the foreign worker to enter, remain, or take employment in Canada. That decision is subject to the approval of an Immigration Officer. The foreign worker may be required to provide additional documentation before an employment authorization (work permit) is issued. |
ANALYSIS
[12] The applicant submits that he applied under the CCDO category 1135-110, "Comptroller". However, the HRDC letter to Mr. Seo Jung Woo, Chair of the Mushroom Corporation, dated 2 December 1996 states: "This letter serves to advise that we have validated your offer of permanent employment for Tae Suk Park, to work in Canada as President and Chief Financial Officer for Ottawa Valley Oak Mushroom Corporation" (emphasis added). In his letter of 25 March 1998, the visa officer states that he assessed the applicant's occupational skills under the job title indicated in the HRDC letter, "President and Chief Financial Officer," and states that this corresponds to the CCDO category 1135-110. The visa officer's letter shows that he assessed the applicant on the basis of the requirements for Comptroller in category 1135-110, although he applied to this category and its requirements the title used in the HRDC letter, "President and Chief Financial Officer". This does not constitute an error of law requiring that the decision be overturned. The visa officer's letter clearly indicates that he assessed the applicant on the basis of the requirements set out in the HRDC letter and in CCDO category 1135-110.
[13] The visa officer in his letter accurately listed the requirements for Comptroller in CCDO 1135-110, which apply to all CCDO managers, and determined that the applicant did not meet those requirements. The officer indicated that the applicant lacked the requisite 10 years of experience.
[14] The visa officer in his letter accurately set out the requirements for Controller set out in NOC 0111 and determined that the applicant did not meet those requirements as he did not have a university or college degree in a listed field, did not complete company or other management training programs, and did not have several years of experience in a financial field.
[15] The visa officer further reviewed the job duties and requirements set out in the validated offer of employment from HRDC and determined that the applicant did not meet those requirements nor did he have the ability to undertake the duties of that job.
[16] The officer notes that he did consider the applicant's role at Dobler Corporation but determined that this did not provide sufficient experience in the requisite financial areas.
[17] It was not an error for the officer to consider the applicant's accounting and financial experience and knowledge or lack thereof, as these factors were clearly set out as necessary qualifications in the HRDC letter and in the CCDO and NOC requirements.
[18] The application for judicial review is dismissed.
OTTAWA, ONTARIO B. Cullen
January 29, 1999. J.F.C.C.