Date: 20030123
Docket: IMM-3150-01
Neutral citation: 2003 FCT 62
Toronto, Ontario, Thursday the 23rd day of January, 2003
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
AKBAR AHMAD NASIM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
- Mr. Akbar Ahmad Nasim (the "Applicant") seeks judicial review of the decision of Visa Officer Lindie Rudover (the "Visa Officer") dated May 16, 2001. In her decision, the Visa Officer denied the Applicant's application for permanent residence in Canada.
[2] The Applicant, a citizen of Pakistan, applied for permanent residence in Canada in September 1999, under the independent category. He stated on his application that he intended to be an accountant in Canada. He was assessed under the National Occupational Classification ("NOC") code number 1111.2 "Financial Auditors and Accountants".
[3] According to the material submitted by the Applicant with his application for landing, he provided information about his education and employment background. He holds a bachelor of commerce degree from the University of Punjab, obtained in 1981. Since 1982 he has worked as an accountant for the Pakistan Television Corporation Limited. He provided letters from his employer concerning the various positions he has held with that company.
[4] His application was initially rejected by Visa Officer Louise Coté, at the paper screening stage and without an interview. The refusal letter issued by Ms. Coté, dated January 22, 2000, indicated that the Applicant had been assessed as an "Assistant Accountant" NOC 1431, although he had not designated this as his intended occupation.
[5] The Applicant commenced an application for judicial review relative to this negative decision and upon the consent of the Respondent, his application was reopened and he was scheduled for an interview. The Applicant, together with his wife, attended an interview with the Visa Officer on May 15, 2001. That interview led to the negative refusal which is the subject of the present application for judicial review.
[6] The Applicant's application was refused by letter dated May 16, 2001. According to that letter, the following units of assessment were awarded to the Applicant:
AGE (41) 10
OCCUPATIONAL FACTOR 00
ETF/ S.V.P. 15
EXPERIENCE 06
DEMOGRAPHIC FACTOR 08
EDUCATION 13
ENGLISH 06
FRENCH 00
BONUS 05
SUITABILITY 03
TOTAL 66
[7] The Applicant argued that the Visa Officer's decision was unreasonable because he was awarded zero units for the occupational factor, although he received six units for experience. The Applicant says that the Visa Officer erred in her interpretation of the Immigration Regulations, 1978, SOR/78-1272 (the "Regulations"), specifically items 3 and 4 of Schedule I. According to the Applicant, a plain reading of Schedule I indicates that in order to receive units for experience under Item 3, an Applicant must meet the requirements of Item 4, the occupational factor. He argues that the experience and occupation factors are directly related and that a visa officer errs when units are awarded under one heading and not the other. In this regard, he relies on Kapustynska v. Canada (Minister of Citizenship and Immigration), 200l FCT 29, [2001] F.C.J. No. 170 (T.D.) (Q.L.).
[8] As well, the Applicant submits that the NOC lists three categories of accountant, that is accountant, certified general accountant (CGA) and chartered accountant (CA). The educational requirements for CGA's and CA's are listed but the NOC is silent concerning the requirements for a "simple accountant". He argues that according to the NOC coding system, an occupation with the second digit of "1" indicates that the required skill level is within the "A Category". Skill level "A" is described as requiring a university degree without any other professional certification.
[9] The Applicant argues that an ordinary accountant only requires a university degree, in contrast to CGA's and CA's for which further professional certification is required. He has a university degree and submits that the Visa Officer made an unreasonable decision in requiring that he hold a professional designation of CGA or CA when he had originally applied as simply an "accountant".
[10] As well, the Applicant argues that the Visa Officer misconstrued or ignored the evidence before her in her assessment of the personal suitability factor in concluding that he would be dependent on his family in Canada. He submits that he had been offered employment in his brother's pharmacy. Consequently, dependency was not an issue. The real issue was the genuineness of the job offer.
[11] In cross-examination, the Visa Officer said that she had a concern that the job offer had not been validated by Human Resources Development Canada ("HRDC"), however, the Applicant says she appears not to have considered the legitimacy of the job offer relative to the personal suitability assessment, but erroneously focused on the misconception that the Applicant would be dependent on his brother's family. The Applicant said this misconception was an error.
[12] The Respondent argues that the challenged decision is reviewable on a standard of patent unreasonableness, on the basis of the grounds set out in section 18.1(4) of the Federal Court Act, R.S.C. 1985 c. F-7, as amended. The Respondent says that a determination as to qualification in an intended occupation is a question of fact entirely within the mandate of the Visa Officer. It is clear that the Visa Officer directed her mind to the proper question and her conclusion was not patently unreasonable. In this regard, the Respondent relies on Lim v. Canada (Minister of Employment and Immigration) (1991), 12 Imm. L.R. (2d) 161 (F.C.A.).
[13] The Respondent argues that the Visa Officer did not make a material error when she awarded the Applicant zero units for the occupational factor and six units for experience. She properly assessed the Applicant under his designated occupation of "accountant".
[14] Since the Applicant failed to meet the essential employment requirements for accountants under NOC 1111, the Visa Officer properly awarded zero units for the occupational factor. The Applicant was not accredited by any accounting body and has not completed the training program approved by the Institute of Chartered Accountants.
[15] Furthermore, the Respondent argues that there is no category under NOC 1111 of "simple accountant". In order to qualify under this NOC category, certification is required.
ANALYSIS
[16] In my opinion, the Applicant here is essentially challenging the outcome of the assessment process undertaken by the Visa Officer in reviewing his application for permanent residence in Canada. The Applicant applied for assessment as an accountant pursuant to NOC 1111. The Visa Officer concluded that he failed to demonstrate that he possessed the professional qualifications for that occupation. In Khan v. Canada (Minister of Citizenship and Immigration) (2000), 188 F.T.R. 293 at paragraph 8, Justice MacKay stated the following regarding the NOC requirements for accountants:
The Court takes notice that there are many people in our society who
do work generally described as "Accounting" but who, aside from some
introductory training, may not be specially educated or trained, except by
experience, for their work. Are they all "Accountants"? The Concise
Oxford Dictionary (8th ed. 1990) by its definition would suggest not, for it
defines an accountant "as a professional keeper or inspector of accounts".
It further defines accountancy "as the profession or duties of an accountant"
and it defines profession "as a vocation or calling, esp. one that involves
some branch of advanced learning or science". In light of these definitions
it cannot be said that the decision in this case was unreasonable insofar as
the visa officer reached a conclusion that the NOC classification for
"Accountant" required some specialized professional training.
[17] The Applicant's submission that the NOC definition of "Accountant" is not restricted to the certified professions of Chartered Accountants, Certified General Accountants and Certified Management Accountants fails in light of this Court's reasoning in Khan, supra, where Justice MacKay further stated at paragraph 8:
...The only training specified in the NOC and the Handbook, for Accountants
of any sort is that for C.A.s, C.G.A.s and C.M.A.s. In the circumstances,
the visa officer's conclusion was not unreasonable that training and entry
requirements for an Accountant, under the NOC are those set out for one of
the three specialized accrediting groups of Accountants. In so concluding he
simply followed the NOC description, in the absence of any other reference
to training for accountancy in that description. Whether the description
provided for Accountants should be reviewed is an issue not before this Court.
[18] Further, the conclusion made by the Visa Officer regarding the Applicant's experience and qualifications involved a weighing of the evidence submitted by the Applicant. That is a matter wholly within the jurisdiction of the Visa Officer. In my opinion, her conclusion is reasonably supported by the evidence and there is no basis for judicial intervention.
[19] The application for judicial review is dismissed.
[20] There is no question of general importance arising from this application.
ORDER
The application for judicial review is dismissed. There is no question of general importance arising from this application.
J.F.C.C.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-3150-01
STYLE OF CAUSE: AKBAR AHMAD NASIM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: THURSDAY, JANUARY 23, 2003
REASONS FOR ORDER
AND ORDER BY: HENEGHAN J.
DATED: THURSDAY, JANUARY 23, 2003
APPEARANCES BY: Mr. Gregory James
For the Applicant
Ms. Mary Matthews
For the Respondent
SOLICITORS OF RECORD: Mr. Gregory James
Mamann & Associates
Barristers & Solicitors
74 Victoria Street, Suite 303
Toronto, Ontario, M5C 2A5
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20030123
Docket: IMM-3150-01
BETWEEN:
AKBAR AHMAD NASIM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER