Date: 20000609
Docket: IMM-2449-99
BETWEEN:
GURDAN SINGH GILL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED, J.:
[1] These reasons relate to the judicial review of a visa officer"s decision refusing to grant the applicant landing as an independent immigrant. He applied indicating that he was a diesel mechanic and intended to work at that occupation in Canada. The visa officer concluded that the applicant did not meet the qualifications for that vocation and assessed him as a diesel-mechanic helper.
[2] The applicant challenges the visa officer"s decision on the ground that: (1) she did not give the applicant sufficient opportunity to answer her concerns - she did not articulate with sufficient specificity why she did not think he had experience or training as a diesel mechanic; (2) she misinterpreted the CCDO definition of a diesel mechanic - she required formal training for that occupation when on the job training is sufficient; (3) the visa officer did not undertake a thorough and fair assessment of the applicant"s application for permanent residence.
[3] The requirement that a visa officer make known her concerns to an applicant is well known. It had been discussed in several cases: Muliadi v. Canada (Minister of Employment and Immigration), [1986] 21 F.C. 205 (C.A.); Fong v. Canada (Minister of Employment and Immigration) (1990), 11 Imm. L.R. (2d) 205 (F.C.T.D.); Chen v. Canada (Minister of Employment and Immigration) (1993), 20 Imm.L.R. (2d) 290 (F.C.T.D.); Abbasi v. Canada (Minister of Citizenship and Immigration) (21 August 98) IMM-477-98 (F.C.T.D.); Lam v. Canada (Minister of Citizenship and Immigration) (31 August 1999) IMM-4458-97 (F.C.T.D.); Dhillon v. Canada (Minister of Citizenship and Immigration) (30 April 1998) IMM-3098-97 (F.C.T.D.); Tahir v. Canada (Minister of Citizenship and Immigration) (1998), 159 F.T.R. 109; Asghar v. Canada (Minister of Citizenship and Immigration) (21 August 1997) IMM-2114-96 (F.C.T.D.).
[4] Counsel for the applicant argues that the visa officer did not disclose with sufficient specificity her concerns about the applicant"s qualifications and experience because she framed that concern by stating that it was "hard to believe you really work as a mechanic". This expression of concern was articulated, however, after the visa officer had asked the applicant numerous questions: what is your job; are you not overqualified; did you have training as a diesel mechanic; when did you start working; what do you do; what kinds of tools do you use; what kind of machines do you work on; what kind of training did you get for this job. There was no breach of fairness to the applicant as the visa officer clearly made her concerns known in the questions she asked.
[5] The refusal letter sent to the applicant stated that he had been assessed based on the information provided on his application form and at his interview and that, since he had "no vocational training as a diesel mechanic" and the experience he described "did not include the full range of duties", it was determined that he did not have the qualifications of a diesel mechanic.
[6] The only documentation the applicant provided to the visa officer concerning his qualifications was a letter from his employer stating that the applicant had been "working in this workshop as Disel [sic] Mechanic from 1982 to uptil [sic] Today." There is no description in the letter of the applicant"s job duties. There is no description of any training having been given by the employer to the applicant. The visa officer"s CAIPS notes record that the applicant, initially, answered her questions about training by saying he had not had any training as a diesel mechanic, the work was not difficult, and he had learned it by working with tractors on his family farm. In her affidavit, the visa officer states that when she asked the applicant if he had training as a diesel mechanic, he said he did not but, because they had tractors on their farm, he did not find the work difficult. She records that on a second occasion when she asked him what kind of training he had received he responded that the job was not difficult and that he had been trained by his employer, working two years as a mechanic helper before becoming a mechanic.
[7] Counsel for the applicant argues that on the job work experience satisfied the training requirement of the CCDO. I have not been persuaded that this is correct. In Ayad v. Canada (Minister of Citizenship and Immigration) (20 May 1997), IMM-1184-96 (F.C.T.D.) the Court pointed out that vocational training and work experience were not the same. Mr. Justice Denault wrote:
| It is important to note that when a visa officer examines an applicant"s Specific Vocational Preparation, he or she must take into account the training acquired through professional, vocational, apprenticeship, in-plant or on-on-the-job training, as set out in Appendix B, and not simply work experience. The onus is on an applicant to submit the information that is pertinent to his application and to establish that he meets the requirements of the Canadian legislation. Where he has failed to establish that he was in training or apprenticeship during the period of work on which he relied, this Court cannot conclude, on this point, that the visa officer committed any error. |
[8] The visa officer"s affidavit, in the present case, explains her analysis:
| 23. Given the high occupation factor and high SVP [Specific Vocational Preparation] for Diesel Mechanic under CCDO, it seemed logical that some formal technical training would be required and that the job required more than what a farmer could learn from working on his tractors. An SVP of 15 under the CCDO indciates [sic] that the amount of training required is more than two years and up to and including four years. |
| 24. I noted that in the National Occupational Classification (NOC), the classification used for current applications, the occupation of diesel mechanic is included under Heavy-Duty Equipment Mechanic (NOC code 7312). Although the Education and T raining Factor (ETF), which replaces the SVP, is only 7, there is a requirement for specialized vocational training, and the duties described involve much more than those which Mr. Gill claimed to perform. |
I cannot conclude that the visa officer misinterpreted the specific vocational preparation requirements of the CCDO for a diesel mechanic, when she concluded that some formal training was required. The formal training may be given by the employer but it is different from job experience. Also I do not interpret her reference to the NOC as importing more stringent requirements into the CCDO that properly exist. The visa officer referred to the NOC by way of comparison, not as a substitute for the CCDO.
[9] Counsel for the applicant argues that the visa officer did not undertake a thorough and fair assessment of the applicant"s application as required in accordance with decisions such as Fung v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. (2d) 236 (F.C.T.D.) and Fong v. Canada (Minister of Employment and Immigration), supra. However, the record discloses that the visa officer did undertake the kind of assessment described in the Fung and Fong cases. She looked behind the applicant's job title and assessed his duties and found them to be insufficient to justify a conclusion that he was a diesel mechanic.
[10] The visa officer found that the applicant"s job entailed taking apart engines, and putting them together, after the relevant parts had been repaired elsewhere. She recorded that he told her the job was not difficult and that he worked only on tractors. He asserts in his affidavit, filed for the purposes of this judicial review, that he is responsible for diagnosing the problems with an engine, before he takes it apart. He asserts that he told the visa officer about this diagnostic work. No reference is made to this type of work, anywhere, except in the affidavit prepared for the present review.
[11] According to counsel, the applicant performed all but one of the duties of a diesel mechanic described in the CCDO. He does not machine parts. Counsel argues that the jurisprudence is clear that an applicant does not have to perform all the duties described in a CCDO job description, only a majority of them. Counsel asserts that the visa officer erred when she gave as a reason for denying his application that his experience "did not include the full range of duties."
[12] The CCDO description of the duties of a diesel mechanic, however, was not made part of the record by either the applicant or the respondent. The description of duties to which I was referred by the applicant, is a general description relevant to a broad category of occupations: "Industrial Farm and Construction Machinery Mechanics and Repairmen". Using the description that is designed to encompass all those jobs as the standard against which the visa officer"s assessment is to be compared is not useful. Also, whether the full range of duties set out in a job description must have been performed, and whether some are more significant than others, will depend upon the particular description of the duties in question. As noted, the CCDO for neither a diesel mechanic (8584-382) nor a diesel-mechanic helper (8584-386) was presented to the Court by the applicant.
[13] As noted, no documentary evidence was provided describing the applicant"s job duties. There is little on the record to support his assertion that he had been working as a diesel mechanic, apart from his verbal assertion that this is so. He was asked by the visa officer if he could provide documentation that would support his claim to be a diesel mechanic. He did not have any such documentation with him, nor did he offer to produce any. The visa officer states in her affidavit:
| 19. I asked the Applicant what he does in his job at the workshop. He said the company repairs engines, and he only works on tractors. He assembles and disassembles engines. He described how he removes the nuts and removes the cylinder head with a socket wrench. After loosening the connecting rods, he removes the piston from the cylinder block. The parts are then sent to various workshops for repair. After the parts have been repaired, he gets them back and assembles the engine. Asked about the tools he uses, he said he uses a socket wrench, screwdrivers, and various kinds of gauges. |
| . . . |
| 25. The Applicant stated that he took engines apart and put them together after the parts had been repaired at other workshops. A qualified diesel mechanic under both the CCDO and NOC should have been able to perform the whole range of repairs. |
| 26. I concluded that the Applicant did not have the necessary qualifications and experience necessary to work as a diesel mechanic in Canada. Without training and with only one document as evidence of experience, he would be unable to find work in that field. He performed only a limited number of tasks which would be expected of a diesel mechanic. |
| . . . |
[14] I have not been persuaded that the applicant has demonstrated any error in the visa officer"s decision that justifies setting it aside.
[15] For the reasons given, the application will be dismissed.
Judge
OTTAWA, ONTARIO
June 9, 2000