Date: 20010126
Docket: IMM-5115-97
Ottawa, Ontario, this 26th day of January 2001
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN :
JOVAN MIHAJLOV
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
PELLETIER J.
[1] This is an application for judicial review made under subsection 82.1(6) of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") of a Visa Officer's decision made on October 7, 1997, in which the applicant was denied a visa.
[2] The applicant is a citizen and resident of Yugoslavia who applied for permanent residence as an Agricultural Field Service Man under the assisted relative class. The applicant and his wife attended an interview with a Visa Officer at the Canadian High Commission in England in September 1997.
[3] In the course of the interview, the Visa Officer was under the mistaken impression that Field Service Man was classified under the "Biologists and Related Scientists" Unit Group as opposed to "Occupations in life sciences" or "Agriculturalists and Related Scientists" Unit Groups in the Canadian Classification and Dictionary of Occupations (the "CCDO"). The effect of the mistake was that the Visa Officer was more preoccupied with biological science in his assessment interview than he would have been had he properly classified the applicant's occupation.
[4] However, upon examining the file the following afternoon, the Visa Officer realized his mistake and reviewed all the evidence in relation to the correct Unit Group. At page 6 of his affidavit, sworn March 27, 1998, he states that he had sufficient information from his interview with the applicant to assess his application.
[5] The pertinent portion of the Visa Officer's decision, dated October 7, 1998, is as follows:
| I first assessed you as a field service man, the occupation which you listed on your application form that you intend to practice in Canada. As I explained at [sic] interview, a field service man, as defined in the Canadian Classification and Dictionary of Occupations (CCDO), is an agricultural scientist who advises farmers on general care of animals, crops, nutrition, disease prevention, and care. A major component of this occupation is research and scientific experimentation. To qualify in this occupation, a person must have over four years, up to and including ten years of specific vocational preparation. From your description at [sic] interview of your job duties, I have determined that, though your work encompassed some of the duties of a field service man, you are not trained as a scientist, nor do you have the range of experience necessary for me to consider you to be experienced in this occupation. |
[6] The applicant was not awarded any points for experience and his application for a visa was accordingly denied pursuant to subsection 11(1) of the Immigration Regulations, SOR/78-172.
[7] The parties have rather divergent assessments of what transpired at the applicant's interview. The applicant argues that he was not given an opportunity to respond to the Visa Officer's concerns regarding his application, particularly with respect to his education and experience as it related to the work of a field service man. In his affidavit, sworn in January 1998, the applicant states that "I was asked extremely few questions about my experience in the agricultural field" and that "the visa officer did not present me with an opportunity to demonstrate to him my knowledge and experience as a scientist in the agricultural field".1 This characterization is borne out by the applicant's affidavit, which contains the applicant's notes made immediately following the interview of the questions asked of him.2
[8] The respondent argues that the Visa Officer asked the applicant "detailed" questions concerning his education and experience. Moreover, the Visa Officer informed the applicant of his concern that the applicant lacked both the education and experience required for the work of a field service man and asked the applicant if he had any questions or comments. The applicant said that he did not.
[9] While these differences in points of view are real, they are not usual in the sense that each participant in such a transaction sees the exchange from a particular point of view. Sometimes, that point of view is influenced by the subsequent outcome. In any event, the discrepancy as to what occurred at the interview would not be grounds for setting this decision aside.
[10] What is more serious however, is the Visa Officer's characterization of the applicant's proposed occupation, Field Service Man. The Visa Officer initially characterized the position as belonging to the Unit Group Biologists and Related Scientists and conducted the interview on that basis. Subsequently, the Visa Officer realized that he had mischaracterized the position and that it properly belonged in the Unit Group Agriculturalists and Related Scientists. The description of this Group in the CCDO is as follows:
| Occupations concerned with conducting research into the growth, genetics, and viability of plants and animals, and the nature and composition of soils, to extend the knowledge of the science of agriculture and horticulture, and apply this knowledge to the development, propagation and conservation of plants and animals. |
[11] The Visa Officer did not quote the portion of the CCDO which described the duties of a field service man. It is reproduced below:
| Advises farmers on general care of animals and poultry, crops, nutrition, disease prevention and care: |
| Visits farms to inspect stock and discuss growth and production rates, diseases and feeding problems. Advises farmers on various problems connected with growing and cultivating a particular field crop. Selects, kills and performs post-mortems on diseased poultry to study disease and its effects. Takes samples of plant and farm grain, animal feed and forage for laboratory analysis. Recommends other methods to improve care of stock or increase fertility of crops. Advises and assists farmers in securing veterinary services. Supervises and co-ordinates the work of technologists and technicians. Supervises programs assigned by nutritionists to determine feed conversion and costs. |
[12] According to the refusal letter which the Visa Officer sent to the applicant, it was his view that the position in question was that of "an agricultural scientist" and a major component of the job was "research and scientific experimentation". The Visa Officer conceded that the applicant had done some of the duties of a field service man but he was not "trained as a scientist" nor did his experience have the necessary range for him to be considered experienced in this occupation.
[13] In my view, the Visa Officer read more into the description of the duties of a field service man than was warranted. On a fair reading of that description as it appears above, I do not believe that one can reasonably conclude that a major component of the job is research and scientific experimentation. The description "field service man" describes the job well. It consists of adapting scientific principles of agriculture to the actual practice of that noble calling. The Visa Officer's focus on scientific credentials unfortunately clouded his view of the job requirements and therefore of the applicant's experience.
[14] In his refusal letter, the Visa Officer indicated that he had also assessed the applicant against occupations listed in the National Occupational Classification ("NOC"), which replaced the CCDO as the occupational reference on May 1, 1997. The applicant was assessed against the CCDO because his application was initiated prior to May 1, 1997 and was still outstanding as of that date. However, Visa Officers frequently applied the NOC in these transitional cases if it put the applicant in a better position. In the NOC, the heading for this occupational group is Agricultural Representatives, Consultants and Specialists. The general description of the occupational group is as follows:
| Agricultural Representatives, Consultants and Specialists provide assistance and advice to farmers on all aspects of farm management, cultivation, fertilization, harvesting, soil erosion and composition, disease prevention, nutrition, crop rotation and marketing. They are employed by businesses, institutions and governments that assist the farming community or they may be self employed. |
[15] Among the occupational titles listed for this group are Farm Consultant, Field Service Agent, Agricultural Consultant. From my reading of the record, this is much closer to the occupation which the applicant felt himself competent to perform and in which he wished to be assessed.
[16] If one approaches this problem as one of mistaken interpretation of the CCDO, the first issue which arises is standard of review. The standard of review is reasonableness, as found by Reed J. in Hao v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 296, the Visa Officer's mistake is very near to the line. The difficulty with the interview here is that one suspects the participants were speaking at cross purposes. The applicant was presenting himself as someone with technical credentials looking for a position with practical applications. The Visa Officer was assessing him as a scientist for whom only research and experimental positions were possible and, failing that, as a farmer. The Visa Officer did not appear to consider the possibility of some occupation falling between research scientist and farmer. To that extent, the Visa Officer's decision was unreasonable since the existence of such positions is predictable. On that basis, I would set aside the Visa Officer's decision and send the matter back for reconsideration by a different Visa Officer.
ORDER
The decision of Keith Swinton date October 7, 1997 is hereby set aside and the matter is remitted for reconsideration by a different Visa Officer.
"J.D. Denis Pelletier"
Judge
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1 Affidavit of Jovan Mihajlov, filed on March 2, 1998, Application Record, Tab 3 at paras. 9 and 11.
2 Ibid, Tab 3A.