Date: 20000621
Docket: IMM-4675-99
BETWEEN:
PARAMVEER JAIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED, J.:
[1] This is an application for judicial review of a decision of a visa officer, dated August 21, 1999, wherein the applicant's application for permanent residence to Canada was refused.
[2] The applicant is a citizen of India. He applied for permanent resident status on June 26, 1997. He applied in the independent category, with his intended occupation listed as "chemist, chemical engineer, applied chemical technologist, and applied chemical technician".
[3] The visa officer's decision reads:
| ... You asked to be considered as a chemist [National Occupational Classification (NOC) 211.0], chemical engineer [NOC 2134.0], or applied chemical technician or technologist [NOC 2211.1 or 2211.1]. Based on the information provided in your application form and at the interview, I determined that you (sic) work experience has been primarily as a production supervisor or production manager [NOC 0911.0]; while a part of your duties over the last five years included checking quality of raw materials and intermediate products, and refining production processes, I concluded that these were duties of a technician rather than an engineer. Because the demand for production managers is "zero", I assessed you as an applied chemical technician, and the units of assessment you have been awarded for each of the selection criteria are: |
| Age 10 |
| Occupational demand 01 |
| Specific Vocational Preparation 15 |
| Experience 04 |
| Arranged Employment 00 |
| Demographic factor 08 |
| Education 15 |
| Knowledge of English 09 |
| Knowledge of French 00 |
| Personal Suitability 05 |
| Total 67 |
[4] Counsel for the applicant argues that the visa officer failed to assess the applicant in all his intended occupations, particularly that of an applied chemical technologist. An applied chemical technologist has greater responsibility than an applied chemical technician. At the same time, it is conceded that an assessment as a technologist could lead to an award of no more than 69 points, not the 70 required for the issuance of a visa.
[5] Counsel for the applicant cites Uy v. Canada (Minister of Employment and Immigration) (1991), 12 Imm. L.R. (2d) 172 (F.C.A.) as authority for the proposition that even if a reassessment cannot lead to an award of 70 points, there are circumstances in which the application, should be returned for reassessment, because visa officers can exercise discretion pursuant to Immigration Regulation 11(3), and grant visas when points awarded are below 70. I accept that reasoning.
[6] I turn then to the submissions relating to the completeness of the visa officer's assessment. Counsel for the applicant refers to: Olajuwon v. Canada (Minister of Citizenship and Immigration) (1998), 47 Imm.L.R. (2d) 249); Nunes v. The Minister of Citizenship and Immigration, (unreported, IMM-2749-96, April 9, 1997); Fong v. Canada (Minister of Employment and Immigration) (1990), 11 Imm.L.R. (2d) 205 (F.C.T.D.); and Li v. Canada (Minister of Employment and Immigration) (1990), 9 Imm.L.R. (2d) 263. Counsel notes that the jurisprudence is clear that the record must contain reasons which support the visa officer's assignment of a specific experience relating to the included occupations or reasons which support the refusal to do so. In Li, Jerome A.C.J. stated:
| 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. |
| . . . |
| The record must equally indicate reasons which support the visa officer's assignment of a specific experience rating to the included occupations or reasons which support the refusal to do so. Having erroneously concluded that no assessment need be done, the visa officer in this case failed in this aspect of the duty of fairness. |
[7] The refusal letter, part of which is set out above, does not expressly refer to an assessment of the applicant as a chemical technologist, although it does state that the applicant's experience had primarily been in a different line of work from any of the occupations that the applicant had identified as those in which he wished to be assessed for immigration purposes. The applicant had been working as a production supervisor or production manager.
[8] The visa officer's CAIPs notes read:
| . . . |
| He is trained as a chemical engineer [at an institute the academic standards of which are recognized...] and undoubtably he uses that training in the course of his current employment: in checking quality of raw material and intermediate products, refining processes. The functions would fall within the activities of a technician or technologist, rather than an engineer; moreover, these would not be the primary functions of production in charge or production manager, which have been his jobs for much of his time with Popular Rubber Products ... I could not give more than four units of assessment as applied chemical technician [equivalent of two years]. As for his claim to be qualified as a chemist, I accept that training as a chemical engineer would qualify one for employment as a chemist, but there is no way his work experience can translate into that of a chemist. Of the three occupations suggested by the applicant, there is only one, that of applied chemical technician, in which he has experience, ... He also has experience as a manufacturing manager, but for that occupation the occupational factor is "zero". [Underlining added.] |
The affidavit of the visa officer reads:
| [13] Following the interview, I reviewed and assessed the information provided by Mr. Jain. I concluded that he had a degree in engineering ... |
| [14] I also concluded, however, that Mr. Jain's work experience with Popular Rubber Industries. Based on his responsibilities, as he described them to me, was not that of a chemical engineer, nor that of a chemist. His job duties did not include the main duties of these occupations ... in particular, while Mr. Jain conducted analysis of the quality of raw materials, intermediates and products, he had not developed the programs of analysis that he used, nor had he conducted technical studies or research with respect to the chemical engineering processes used in his industry or operation. While his job was that of a production manager, for which here is a rated demand of zero in Canada, I recognize that part of that job included the functions of an applied chemical engineering technician; for that reason, I gave him partial credit [the equivalent of two years] for experience in that field, for which there is a demand of one. ... [Underlining added.] |
[9] A fair reading of the visa officer's decision, and the CAIPs notes leads me to conclude that the record does show that the visa officer assessed the applicant in all his intended occupations. The applicant's employment had been that of a production manager. The visa officer, nevertheless, recognized that some of the responsibilities included in that job would overlap with the jobs performed by either applied chemical technologists or technicians but not those of a chemical engineer. The visa officer then assessed the applicant"s experience and determined that it equated to two years experience as a technician.
[10] I cannot conclude that the visa officer erred.
"B. Reed"
Judge
TORONTO, ONTARIO
June 21, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-4675-99 |
| STYLE OF CAUSE: PARAMVEER JAIN |
| - and - |
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
| DATE OF HEARING: TUESDAY, JUNE 20, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: REED J. |
DATED: WEDNESDAY, JUNE 21, 2000
APPEARANCES: Mr. Max Chaudhary
For the Applicant
Mr. Martin Anderson
For the Respondent
SOLICITORS OF RECORD: Chaudhary Law Office
Barrister & Solicitor
18 Wynford Drive, Suite 707
North York, Ontario
M3C 3S2
| For the Applicant |
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20000621
Docket: IMM-4675-99
Between:
| PARAMVEER JAIN |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
Respondent
| REASONS FOR ORDER |