Date: 19991005
Docket: IMM-5011-98
Ottawa, Ontario, the 5th day of October 1999
PRESENT: THE HONOURABLE MADAME JUSTICE SHARLOW
BETWEEN:
MAGDALINI KARATHANOS
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
The application for judicial review is allowed with costs. The decision of the visa officer is quashed and the application for permanent residence is referred back for reconsideration by a diffeent visa officer.
Karen R. Sharlow
Judge
Date: 19991005
Docket: IMM-5011-98
BETWEEN:
MAGDALINI KARATHANOS
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
SHARLOW J.:
[1] The applicant Magdalini Karathanos submitted an application for permanent residence in Canada as an archivist, number 5113 in the National Occupational Classification. Her application was rejected by a visa officer on the basis that she does not have the necessary qualifications for that occupation.
[2] Under Schedule I of the Immigration Regulations, an applicant for permanent residence must be assessed under nine categories. For each category there is a specified maximum number of units of assessment, or points. The visa officer must determine how many points are to be awarded for each category, up to the specified maximum. To qualify for permanent residence, an applicant must achieve a total of 70 points,1 including at least one in the category of "experience" and one in the category of "occupational factor."
[3] For present purposes, only two of the categories need to be considered in detail, the categories of "education and training" and "occupational factor."
[4] To be awarded any points in the "occupational factor" category, an applicant must meet three conditions. First, the applicant must meet the employment requirements for the occupation for which he or she is being assessed, as described in the National Occupational Classification. Second, the applicant must have performed a substantial number of the main duties for that occupation (including the essential ones), as described in the National Occupational Classification. Third, the applicant must be prepared to follow that occupation in Canada.
[5] The number of points to be awarded in the "occupational factor" category is specified for each occupation listed in the National Occupational Classification. If Ms. Karathanos had met these three conditions with respect to the occupation of archivist, she would have been entitled to 3 points for the category of "occupational factor."
[6] The visa officer concluded that Ms. Karathanos did not meet the first condition for the occupation of archivist. The issue is whether he erred in reaching that decision.
[7] 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."
[8] The visa officer erred in this respect. As his error appears to be rooted in his confusion between the requirements of the "educational and training" category and the "occupational factor" category, it is necessary to explain them both in some detail.
[9] Paragraph 1(g) of the "education and training" category in Schedule I reads as follows (emphasis added):
| Education and Training: (1) To be measured by the amount of formal education and professional, vocational, apprenticeship, in-plant or on-the-job training specified in the National Occupational Classification as being necessary to acquire the information, techniques and skills required for the occupation in which the application is assessed under item 4 [occupational factor]: |
| [...] |
| (g) when a university degree at the master's or doctoral level or a professional degree that requires additional education beyond the bachelor's level is required, eighteen points. |
[10] It is undisputed that for purposes of the "education and training" category in Schedule I of the Immigration Regulations, the phrase "usually required" in the description of the education requirements for an occupation is read as "always required." That is because of the automatic nature of the number of points awarded for the "education and training" category.
[11] The National Occupational Classification is published by the Minister of Human Resources Development primarily for the use of career counsellors and others who require detailed knowledge of the Canadian labour market. For immigration purposes, the National Occupational Classification, as well as the related publication called the Career Handbook and other component publications, as amended from time to time, are incorporated by reference into Schedule I of the Immigration Regulations.2
[12] For purposes of the National Occupational Classification, the educational requirements for all occupations are rated by a scale referred to as the "Education/Training Indicator" or ETI. In establishing ETI ratings, an occupation that "usually requires" a particular level of education is treated as always requiring that level of education. Thus, the ETI is "8" for any occupation that always requires a master's degree or that usually requires a master's degree.
[13] As stated above, the National Occupational Classification says that for an archivist, "a master's degree in archival studies, library science or history is usually required." Thus, the ETI for an archivist is determined as though a master's degree is always required. On that basis, the ETI for an archivist is 8.
[14] Although the National Occupational Classification was not written for use by visa officers in assessing applications for permanent residence, it has been adapted for that purpose. One of the adaptations is to equate the ETI ratings under the National Occupational Classification with the system for points to be awarded for the "education and training" category in Schedule I.3 By that process, the ETI of 8 under National Occupational Classification becomes an automatic 18 points in the "education and training" category.
[15] Thus, 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.
[16] 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 "usually required" mean just what they say. This is consistent with the following explanatory notes in the National Occupational Classification4 that deal with the meaning of terms used to describe the educational component of the employment requirement for the listed occupations:
| Employment Requirements |
| This section describes the employment requirements for the unit group. |
| Some occupations have very definite employment requirements while for others, there is no concensus [sic] 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. |
[17] Thus, there is no basis for the conclusion reached by the visa officer that a person who does not have a master's degree in archival studies, library science or history is, for that reason alone, unable to meet the employment requirements for an archivist. The visa officer was wrong to find support for his conclusion in the parts of the Career Handbook that relate to the determination of ETI ratings, and by extension the points for the "education and training" category. That material does not address the meaning of the words used in the "occupational factor" category in Schedule I.
[18] Counsel for Ms. Karathanos argues that the visa officer's interpretive error justifies quashing his decision, because his analysis of the application stopped with his determination that Ms. Karathanos could never qualify as an archivist without a master's degree. I do not accept that the visa officer's analysis stopped at that point. If it had, he would not have said this in his refusal letter:
| Moreover you worked sporadically as an archivist in Brazil from 1989 to date, and have no North American experience in this field of occupation. |
[19] This statement indicates that the visa officer did take Ms. Karathanos' work experience into account. That is confirmed in paragraph 11 of his affidavit, where he says:
| I was not satisfied that the Applicant exhibited significant and/or substantial factors that would overcome her lack of occupational training and education as an Archivist. |
[20] It was argued for the Minister that the visa officer correctly followed an analysis similar to that of the visa officer in Nemati v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1193 (QL) (F.C.T.D.). In that case, the decision of the visa officer was upheld. Paragraph 4 of the reasons read as follows:
| The officer relied on the interpretive provisions of the NOC which state that, when an educational level is "usually required" an applicant must meet it unless the officer is satisfied that there are "significant and substantial" factors in the file which make it likely that the applicant could overcome the absence of the usual requirement. |
[21] There are in fact no interpretive provisions of the NOC that say anything like this. The judge in Nemati appears to have been misled in this regard by the affidavit of a visa officer filed in that case, which refers to a document entitled "SSD-0044 NOC/la CNP "Use Of The NOC, Entry Requirements and Landing." That document is not part of the National Occupational Classification and it has never been incorporated by reference into the Immigration Act or the Immigration Regulations. It is simply a memorandum dated July 16, 1997 distributed to visa officers, apparently by e-mail.
[22] This memorandum apparently was intended to clarify some questions that had been raised about the National Occupational Classification, which in July of 1997 had been part of the Immigration Regulations for less than three months. With respect to the educational requirements for the occupations listed in the National Occupational Classification, the memorandum says this:
| The NOC uses qualifiers with respect to educational requirements. Their use for immigration purposes is the following: |
| When the NOC says an educational level IS REQUIRED, the individual MUST have this level to be considered qualified for the occupation in Canada. |
| When the NOC lists an Educational level as USUALLY REQUIRED, it means that the applicant MUST MEET this requirement, unless there are significant and substantial factors that would, in the judgement of the visa officer, make it likely that the applicant will be able to overcome this typical requirement. |
| When the NOC says an educational level is SOMETIMES required, for immigration purposes, this means that an applicant is generally not required to have this level. |
| For each occupation, it isexpected that entrants to that occupation from abroad should have the entry standard of education indicated by the Education and Training Indicator AND the employment requirements. |
[23] This memorandum was also referred to in Hara v. Minister of Citizenship and Immigration (26 August 1999), IMM-6307-98. I respectfully adopt the comments of Reed J. from paragraph 6 of the decision in that case:
| ... it may be an error to state that "is usually required" means that the educational requirement must be met, except where there are significant and substantial factors that persuade the visa officer that the occupational requirements can be overcome. That may be too rigid an interpretation. Nevertheless, there must be some persuasive reason for thinking that the applicant will be able to hold employment in the intended occupation despite the fact that the "usual" educational qualifications are not present. |
[24] Several observations may be made about the visa officer's assessment of Ms. Karathanos' experience. First, his description of Ms. Karathanos' experience as "sporadic" is difficult to reconcile with the documentary evidence of her work history. Second, he placed considerable emphasis on her lack of North American experience, raising a question as to whether he was in effect imposing an extra-statutory requirement. Third, there is nothing in the record that explains the visa officer's implicit conclusion that there is something about the North American practice of the occupation of archivist that would justify a disregard of experience as an archivist that has been gained in another country.
[25] In this case, the visa officer was faced with an applicant who did not have the educational requirements that are "usually required" for her chosen occupation. He should have considered her education, training and experience in its entirety with a view to determining whether it was the approximate equivalent of a master's degree in archival studies, library science or history. After reviewing the record, I am far from satisfied that the visa officer made a reasonable assessment of Ms. Karathanos' work experience with that question in mind.
[26] For that reason, the application for judicial review is allowed with costs. The decision of the visa officer is quashed and Ms. Karathanos' application for permanent residence is referred back for reconsideration by a different visa officer.
Karen R. Sharlow
Judge
Ottawa, Ontario
October 5, 1999
__________________1There are exceptions to this general rule, but the exceptions are not relevant to this case.
2Definition of "National Occupational classification" in subsection 2(1) of the Immigration Regulations .
3The conversion scale is found in an operations memorandum dated May 1, 1997 (page 147 of the applicant's record). This memorandum apparently was issued to explain certain aspects of the May 1, 1997 transition from the Canadian Classification and Dictionary of Occupations (CCDO) to the National Occupational Classification (NOC) on that date.