Date: 20000530
Docket: IMM-5052-99
BETWEEN:
JATIN CHAUDHARY
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is a judicial review application of the decision of visa officer, M. Fahmy, Canadian Embassy in Cairo, dated August 9, 1999 wherein the applicant"s application for permanent residence was refused.
Facts
The applicant is a citizen of India who applied for permanent residence in Canada in the independent category. He has a bachelor of arts degree in Economics and a masters degree in business administration.
[2] He worked as a Marketing Trainee with Kowa Spinning Mills, Indore from May 1994 until June 1996. In September 1996, he joined Maya Spinners Ltd. as an assistant Manager (Marketing) and continued in this position until January 1998. In February 1998, he was appointed to Marketing Manager, a position which he currently holds. In 1997, he worked as a summer trainee for BPL US West Cellular Limited.
Decision of the Visa Officer
[3] The applicant was assessed in the occupation of Promotion Specialist NOC 1122.2, Business Development Officer NOC 4163.0 and Technical Sales Specialist NOC 6221.0.
[4] The visa officer did not award him any units of assessments for experience as his experience as a Promotion Specialist or as a Business Development Officer was not compatible with the description in the National Occupational Classification (NOC).
[5] The visa officer did not award him any units of assessments in the occupational demand factor as a Technical Sales Specialist as he did not meet the job requirements as defined in the NOC in that he had a degree in economics and not related to the product or service.
[6] She also assessed him in the occupation of Sales, Marketing and Advertising Managers NOC 0611. However, the occupational demand is currently zero and a visa cannot be issued in such circumstances.
[7] The visa officer refused the application.
The Applicant"s Position
[8] The applicant submits that the visa officer failed to analyse the applicant"s experience by breaking down the relevant portions to award units of assessment for experience in the intended occupations. The visa officer seems to have failed to go beyond the title of the occupation to decide if the applicant actually did have experience in the intended occupation. This is an established error of law. Also, the NOC definition itself stipulated that an applicant is expected to perform some or all of the duties.
[9] The applicant submits that within the description of the occupations "Promotion Specialist" (NOC 1122.2) and "Business Development Officer" (NOC 4162.0) there are many marketing and administrative functions, therefore entitling the applicant to some units for experience in these occupations.
[10] The applicant submits that the visa officer drew an unreasonable finding of fact when she found that the applicant did not have Employment Requirements which are usually required as per the NOC description.
[11] The applicant submits that the respondent was aware that the applicant had a Masters in Business Administration with a specialization in marketing. The applicant argues that such a degree is related to the services which are executed by a Technical Sales Specialist (NOC 6221.0).
[12] Furthermore, the applicant submits that the visa officer erred since the employment requirements states that a university degree or college diploma is "usually required" as opposed to "required".
The Respondent"s Position
[13] The respondent submits that the visa officer correctly assessed the application for permanent residence.
[14] It is submitted that the visa officer quite clearly explained why the applicant did not meet any of the NOC definitions.
[15] Furthermore, the NOC Career Handbook sets out that "is usually required" means "is required". The respondent submits that there is no reviewable error.
Analysis
[16] The visa officer did not record any reasons in the CAIPS, she submitted however an affidavit explaining that the applicant"s experience at Kowa Mills and Maya Spinners had all been in marketing and administration and that he was never employed as a Promotion Specialist NOC 1122.2 or Business Development Officer NOC 4163.
[17] This Court held in Hajariwala v. Canada (M.E.I.), [1989] 2 F.C. 79:
| I conclude that the visa officer's failure to continue the assessment was a result of his interpretation that the legislation did not permit him to do so. As the officer stated in the letter received by the applicant: |
| . . . I do not believe that your various responsibilities can be broken down into separate components for the purposes of awarding you units of assessment for experience in your alternative intended occupations . . . |
| Such an interpretation is a clear error of law. The Regulations permit the applicant to be assessed in "an occupation". The factors listed in column I of Schedule I require that the experience of the applicant be assessed with regard to his intended occupation. There is no reason why the actual experience and time spent in each of the various responsibilities in an occupation cannot be broken down to award units of assessment for experience in intended occupations. [...] I should also add that as a matter of fairness the record should show that the applicant was given the opportunity to provide information in support of his current experience in each included occupation. 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. |
| Obviously, having erroneously concluded that no assessment need be done, the visa officer in this case failed in this aspect of the duty of fairness. |
[18] The visa officer had a duty to determine if the applicant"s responsibilities could count as experience in his intended occupation and not just conclude that since he did not hold a position under such title, he is not qualified. Moreover, since the NOC seems to link the Promotion Specialist as well as the Business Development Officer"s to marketing consultants. In my view, the visa officer failed to break down the applicant"s responsibilities and to award units of assessment for experience in his intended occupation. In so doing, she erred.
[19] The visa officer concluded that the applicant did not meet the job requirements of technical Sales Specialist (NOC 6211) because a degree in business administration was not a related technical field to a product he sold.
[20] The employment requirements for this occupation state:
| -A completion of secondary school is required |
| -A university degree or college diploma in a program related to the product or service is usually required |
| -Experience in sales or in a technical occupation related to the product or service may be required |
| -Technical sales supervisors require experience as a technical sales specialist. |
[21] In Karathanos v. M.C.I., [1999] F.C.J. No. 1528, Sharlow J. held :
| The National Occupational Classification indicates that for an archivist, "a master's degree in archival studies, library science or history is usually required" (emphasis added). The visa officer concluded that because Ms. Karathanos had only a bachelor's degree in history, she did not have the necessary qualifications for an archivist. In other words, the visa officer interpreted the words "usually required" as though they read "always required." The visa officer erred in this respect. |
| [...] It can be said that in awarding points of assessment for the "education and training" category in Schedule I, an occupational category that usually requires a master's degree is treated as though it always requires a master's degree. However, it does not follow that the words "usually requires" must be read the same way in assessing the number of points in the "occupational factor" category. In assessing the applicant under that category, the words mean just what they say. |
[22] The respondent refers to page 22 of the Career Handbook that explains the terminology used for the Education and Training Factor. The applicant was awarded 15 units for the ETF out of the 18 available, but failed to earn any unit for the Experience Factor. The terminology for the Experience Factor is explained in the Introductory section of the NOC. It states:
| Some occupations have very definite employment requirements while for others, there is no consensus or there may exist a range of acceptable requirements. To reflect this variation in the labour market, this section describes employment requirements using the following terminology: |
| - "... is required" (to indicate a definite requirement) |
| - "... is usually required" (to indicate something that is usually, but not always, required by employers) |
| - "... may be required (to indicate something that may be required by some employers, but on a less frequent basis). |
[23] This Court held in Xiao v. Canada (M.C.I.) (December 13, 1999), IMM-1845-99 (F.C.T.D.):
| In the present case, the applicant lost points on the occupational factor and experience and not the educational requirement. Although it is true that "is usually required" under the education requirements is mandatory, it is not the case in the employment requirements as described in the jurisprudence and the NOC Handbook. |
| The visa officer interpreted "is usually required" as mandatory and concluded that the applicant did not have any graduate studies in a related discipline. The visa officer erred in this regard. |
[24] In reading the employment requirements as mandatory when the NOC states that they are not, the visa officer erred.
[25] This judicial review application should be granted.
"Pierre Blais"
J.F.C.C.
Toronto, Ontario
May 30, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-5052-99 |
| STYLE OF CAUSE: JATIN CHAUDHARY |
Applicant
-and-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
| DATE OF HEARING: TUESDAY, MAY 30, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
REASONS FOR ORDER AND
| ORDER BY: BLAIS J. |
| DATED: TUESDAY, MAY 30, 2000 |
APPEARANCES BY: Mr. Max Chaudhary
For the Applicant
Mr. Brian Frimeth
For the Respondent
SOLICITORS OF RECORD: Chaudhary Law Office
Barrister and Solicitor
255 Duncan Mill Road, Suite 405
North York, Ontario
M3B 3H9
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20000530
Docket: IMM-5052-99
Between:
JATIN CHAUDHARY
Applicant
-and-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
| REASONS FOR ORDER |
AND ORDER