Date: 20030207
Docket: IMM-1069-01
Neutral citation: 2003 FCT 136
BETWEEN:
SANYAM KUMAR VERMA,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
[1] The applicant seeks judicial review of a visa officer's decision dated January 31, 2001 denying his application for permanent residence in Canada as an independent in the occupation Agricultural Engineer (NOC 2148.1).
[2] The applicant is a citizen of India and obtained a degree in agricultural engineering in 1996. Since August, 1996, he has been employed with Escorts Limited-Agri Machinery Division, a company that manufactures agricultural machinery. He was initially hired as a graduate engineer trainee and after completing the program, he became sales and services engineer and later, was promoted to sales and services engineer-assistance manager.
[3] The applicant received a total of 62 units of assessment, leaving him 8 units short of the minimum 70 units required for immigration. He received zero units for Factor 3 (experience) and for Factor 4 (occupational). He received 03 units of assessment for personal suitability.
[4] The decision of the visa officer states:
You have not satisfied me that you have at least one year of experience in an occupation which you are prepared to follow in Canada. Section 11(1) of the Immigration Regulations, 1978 does not permit issuance of an immigrant visa to applicants who have not been awarded any units of assessment for the factor of experience unless the applicant has arranged employment, certified by the National Employment Service in Canada, together with a written statement from the proposed employer verifying that he is willing to employ an inexperienced person in the position. In addition, the visa officer must be satisfied that the person can perform the work required despite the lack of experience. You have not been awarded any units of assessment for the experience factor and you do not have arranged employment certified by the National Employment Service in Canada.
You have not satisfied me that you have experience in an occupation which has been approved for immigration to Canada, in accordance with Factor 4 of Schedule 1 to the Immigration Regulations, 1978. Section 11(2) of the Immigration Regulations, 1978 does not permit issuance of an immigrant visa to applicants in the independent category who have received zero units of assessment for the factor of "occupation".
[5] The applicant alleges that the visa officer erred in misinterpreting or misapplying the definition of Agricultural Engineer, the officer breached the duty of procedural fairness and erred in the assessment of personal suitability.
[6] With respect to the misinterpretation or misapplication of the NOC definition, the applicant argues that the officer misinterpreted the test because he required the applicant to have met "all" of the NOC duties. It is submitted that the officer was too mechanical and did not take the broad approach required by law. The applicant refers to the documents he produced that allegedly demonstrate that he had performed the main duties of his intended occupation. He contends that the visa officer arbitrarily refused to accept the information in the reference letters.
[7] A review of the record does not support the applicant's argument that the visa officer required that the applicant demonstrate that he performed all of the duties listed in the NOC. The visa officer considered all of the NOC requirements in an effort to determine which of those requirements corresponded to the applicant's experience. Unfortunately for the applicant, the visa officer found that the applicant had not performed any of the duties set out in the NOC.
[8] The applicant's affidavit, at paragraph 13, delineates the applicant's employment duties and responsibilities from December, 1996 to May, 2000. The applicant does not depose that he provided this information to the visa officer. His affidavit is silent regarding any representations made during his interview. The visa officer's affidavit and CAIPS notes, on the other hand, specifically refer to the fact that the applicant was unable to articulate the duties and responsibilities that he performed in relation to agricultural engineering. He described his duties as coordinating sales, training, conducting tests in the field and communicating with dealers. The visa officer considered the documents submitted by the applicant and was of the view that their contents confirmed the information provided by the applicant during the interview. A review of those documents demonstrates that this was the case. The record discloses that the applicant was given the opportunity to explain what his duties and responsibilities were and that the officer was not satisfied with the responses.
[9] A visa officer has the responsibility of determining whether an applicant has in fact performed the duties of the NOC. Considerable discretion is afforded to the officer in this respect, including interpretation of the NOC. The weight to be assigned the various pieces of evidence is the task of the visa officer and it is not for the court to reweigh the evidence. The onus is on the applicant to satisfy the visa officer that he performed the duties contained in the NOC for the intended occupation. It is within the visa officer's discretion to assess an applicant's experience on the basis of the applicant's representations at the interview and to assign less weight to the written documents. See: Maddon v. Canada (Minister of Citizenship and Immigration) (1999), 172 F.T.R. 262; Kalia v. Canada (Minister of Citizenship and Immigration), 2002 FCT 731, [2002] F.C.J. No. 998; Atangan v. Canada (Minister of Citizenship and Immigration), 2002 FCT 752, [2002] F.C.J. No. 1017 and Malik v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1050.
[10] The applicant has not persuaded me that the visa officer misinterpreted, misapplied or misapprehended the duties set out in the NOC as they applied to this applicant.
[11] Regarding breach of procedural fairness, the applicant alleges that the visa officer was more concerned with his employment designation (title) of sales and service engineer than with his duties in this position. The visa officer had a duty, submits the applicant, to properly question him regarding his duties. It was not open to the officer to use the employment designation as a shield against failure to diligently assess the applicant's experience. The visa officer did not record and could not recall the specific questions asked of the applicant therefore, it is submitted that a breach of the duty of fairness is made out because it is unclear whether the applicant was asked to explain all of his duties or only some of them.
[12] This argument is without merit. The law regarding procedural fairness in the context of applications for immigration to Canada was recently reviewed and summarized by Gibson J. in Javed v. Canada (Minister of Citizenship and Immigration), 2003 FCT 76, [2003] F.C.J. No. 95. I, in Mohammad Yaqub v. Canada (Minister of Citizenship and Immigration), 2003 FCT 131, adopted the reasoning of my colleague in this regard. The obligation of the visa officer is to conduct an interview, not an inquisition.
[13] This is sufficient to dispose of this argument. However, I add that the record discloses that the applicant was provided the opportunity, more than once, to describe his employment duties. It cannot be said that the officer used the employment designation as a shield when the applicant was asked to describe the duties he performed in that very position. Finally, there exists no basis, in any of the documentation before me, for the allegation that the applicant was asked to describe some, but not all, of the duties of his employment. The applicant has not established a breach of procedural fairness.
[14] The issue with respect to the assessment of personal suitability need not be addressed because the failure to obtain any units of assessment for either of Factors 3 or 4 constitutes a bar to the issuance of a visa. Were it otherwise, I would conclude that the visa officer provided cogent and appropriate reasons for the personal suitability assessment and that the award was reasonable.
[15] For the reasons given, the application for judicial review is dismissed. Counsel did not suggest a question for certification. This matter raises no serious question of general importance.
___________________________________
Judge
Ottawa, Ontario
February 7, 2003
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-1069-01
STYLE OF CAUSE:SANYAM KUMAR VERMA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 6, 2003
REASONS FOR ORDER BY: LAYDEN-STEVENSON, J.
APPEARANCES BY: Mr. Jaswant Singh Mangat
For the Applicant
Ms. Matina Karvelas
For the Respondent
SOLICITORS OF RECORD: Mangat & Company
Barristers and Solicitors
#202 - 7420 Airport Road
Mississauga, Ontario
L4T 3R5
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent