IMM-3157-96
BETWEEN:
KWOK WING STEVE CHEUNG
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[Delivered from the Bench at Toronto, Ontario
March 21, 1997, as edited]
ROTHSTEIN, J.:
On this judicial review of a decision of a visa officer the issues are:
| (1) Did the visa officer take into account irrelevant considerations in deciding that the applicant did not have the required experience in his applied for occupation, that of administrative officer? |
| (2) Did the visa officer make a patently unreasonable decision in assessing the applicant's work experience as an administrative officer? |
Under subsection 11(1) of the Immigration Regulations, an immigration officer may not issue an immigrant visa to an applicant if the applicant does not have one year's experience in an intended occupation. In this case, the visa officer decided the applicant did not have one year's experience as an administrative officer and denied his application for an immigrant visa.
In assessing if the applicant had the required experience, the visa officer had regard to the Canadian Classification and Dictionary of Occupations referred to in Schedule I to the Immigration Regulations and the national occupations classification (NOC) which is not referred to in the Regulations. It is the reference to the NOC that the applicant says constitutes the visa officer having regard to an irrelevant consideration.
The applicant relies on Haughton v. M.C.I., court file IMM-1310-95, a March 29, 1996 decision of the Federal Court Trial Division, in which it was determined that a visa officer erred in law by having regard to criteria outside the C.C.D.O. which were dominant in his decision. In that case, the visa officer was of the view that the C.C.D.O. job description was out of date and other criteria were more relevant to the current time. That is why reference was made to criteria outside the C.C.D.O. While such outside reference may not have been unreasonable, the Governor-in-Council has prescribed the C.C.D.O. criteria and it was found that it was not open to the visa officer to substitute his or her own criteria for those prescribed by the Governor-in-Council for a given occupation.
In this case, it is not clear why the visa officer referred to the NOC. The NOC certainly has no legal status and is not specifically referred to in the Immigration Regulations. If the NOC established criteria over and above or on a different basis than the C.C.D.O., the visa officer may have erred in applying it. However, I do not find this to be the case here. Without comparing the criteria for administrative officer in the C.C.D.O. and NOC in detail here, it is sufficient to say that it is apparent that the NOC in some respects is the same as the C.C.D.O. and in others, provides further particulars of more general criteria set out in the C.C.D.O. I do not see that it sets out significantly different criteria that are more rigorous or more difficult for the applicant to meet or even that it sets out different criteria than the C.C.D.O. It may be that the visa officer referred to the NOC to provide further particulars as to the requirements for the job of administrative officer. Whether or not that was the reason for referring to it, in the circumstances here, the visa officer did not err by substituting criteria for that prescribed by the C.C.D.O. The facts here are not the same as in Haughton and in this respect, the applicant's submissions must be rejected.
With respect to the visa officer's assessment of the evidence before her, it is clear she concluded that the applicant had little experience as an administrative officer. There is some dispute as to whether the applicant told her he was in charge of negotiating rents and had been actively seeking new office and warehouse space and designing a floor plan for an office. The visa officer's notes made at about the time of the interview, and which appear quite thorough, make no reference to this type of activity by the applicant. On a balance of probabilities I accept that this information was not before the visa officer when she made her decision.
The visa officer appears to have considered the applicant's functions in his most recent job as an ocean and air freight manager and concluded that the common elements between the applicant's work experience and the C.C.D.O. description of the duties of administrative officer was apparently ten percent, amounting to less than four months of experience for the applicant. It appears she considered that his previous work experience as a sales executive and assistant marketing manager, on the basis of the evidence presented by the applicant, did not include administrative officer functions. As such she concluded he did not have the requisite one year of experience to enable her to issue an immigrant visa under subsection 11(1) of the Immigration Regulations.
This is not a case in which the visa officer ignored evidence or failed to take account of relevant evidence. Her assessment appears reasonably thorough. While another visa officer or the Court might have asked different questions of the applicant or elicited different answers, and come to a different conclusion regarding the applicant's work experience as an administrative officer, I cannot say that this visa officer's assessment was patently unreasonable. It would be wrong for the Court to substitute its view of the applicant's qualifications as an administrative officer for that of the visa officer. Therefore, the second aspect of the applicant's submissions must be rejected.
The judicial review application is therefore dismissed.
"Marshall E. Rothstein"
J U D G E
TORONTO, ONTARIO
APRIL 9, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-3157-96
STYLE OF CAUSE: KWOK WING STEVE CHEUNG
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: MARCH 21, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: ROTHSTEIN, J.
DATED: APRIL 9, 1997
APPEARANCES:
Mr. Stephen W. Green
For the Applicant
Ms. Kathryn Hucal
For the Respondent
SOLICITORS OF RECORD:
GREEN AND SPIEGEL
Barristers and Solicitors
121 King Street West
Suite 2200, P.O. Box 114
Toronto, Ontario
M5H 3T9
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Defendant
FEDERAL COURT OF CANADA
Court No.: IMM-3157-96
Between:
KWOK WING STEVE CHEUNG
Plaintiff
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER