DRAFT 2
Date: 19990820
Docket: IMM-5446-98
BETWEEN:
ASHFAQ AHMED PARACHA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PELLETIER J.
[1] At the conclusion of the hearing of this matter, I gave oral reasons setting aside the decision of the Visa Officer. These are the reasons which I gave, which have been edited to clarity and readability.
[2] The applicant is a civil engineer who wishes to emigrate to Canada. He submits an application and in due course is called to an interview with a Visa Officer. The Visa Officer has concerns about the applicant"s work experience and spends the entire interview reviewing the applicant"s prior employment. The Visa Officer believes that in order for the applicant to get credit for experience the applicant must have done all of the tasks described under the heading of Civil Engineer in the NOC ( the National Occupational Classification), prescribed under Item 4 of Schedule 1 to the Immigration Regulations 1978 . The Visa Officer believes that he is only entitled to consider experience in positions whose duration exceeded one year. On that basis, he does not consider the applicant"s experience with Erum Developers on the ground that his employment there was for a period of less than one year. When the balance of the applicant"s experience is reviewed, the Visa Officer finds that the applicant has not done a number of the tasks set out in the NOC and therefore declines to award any points for Experience. Sec. 11 (1) of the Regulations provides that no visa will be issued to a person who is not awarded any points under Item 3 Experience (save for some exceptions which are not relevant here).
[3] The applicant brings this application for Judicial Review on the ground that the Visa Officer erred in his interpretation of the requirements of the NOC and in his failure to consider the applicant"s employment with Erum Developers.
[4] The NOC is not simply a guide for Visa Officers, it is a binding direction as to assessement of applicants for a visa. A Visa Officer may not add to the requirements of the NOC based upon his view of the job market. In Haughton v. Minister of Citizenship and Employment, (1996) 111 F.T.R. 226 Rothstein J. reviewed the authorities on this point and concluded as follows:
The NOC is not simply a guide for Visa Officers, it is a binding direction as to assessement of applicants for a visa. A Visa Officer may not add to the requirements of the NOC based upon his view of the job market.
[5] The NOC is the successor to the CCDO and is cast in the same terms. The learned Judge"s comments are equally applicable to the NCO.
[6] It follows that the Visa Officer is bound to apply the NOC according to its terms. In this case the NOC says that a civil engineer:
2131 Civil Engineers
Civil Engineers plan, design, develop and manage projects for the construction or repair of various structures such as buildings, roads, airports, railways, rapid transit facilities, bridges, dams, ports and coastal installations and systems related to highway and transportation services, water distribution and sanitation. Civil Engineers may also specialize in foundation analysis, building and structural inspection, surveying and municipal planning. Civil Engineers are employed by engineering consulting companies, municipal and other levels of government, and in many other industries, or they may be self-employed.
[7] The use of the words "all or some" mean that civil engineers will perform more than one of the specified tasks and some may perform them all. They do not mean that all civil engineers perform all of the tasks, which is the construction which the Visa Officer appears to have placed upon those words.
[8] A Visa Officer"s decision was set aside on grounds very much like the present case in Agrawal v. Minister of Citizenship and Immigration, [1999] F.C.J. 930 where a Visa Officer held that an electrical engineer had not met the requirements of NOC because he had not performed certain tasks. Pinard J. set aside the decision on the ground that since the CCDO merely said that an electrical engineer must perform "any combination of the following duties", the Visa Officer could not insist that the applicant perform a "substantial number" of those duties. On this ground the decision of the Visa Officer must be set aside.
[9] The Visa Officer also failed to consider the applicant"s work experience at Erum Developers because it was for a period of less than one year. In fact the letter of experience from the project manager at Erum Developers (dated 02-4-1983) recites that the applicant worked for the firm from March 1982 to April 1983 which is slightly more than one year. The significance of that period of experience is reduced given my finding with respect to the interpretation of the NOC, but the applicant is entitle to be assessed on the basis of his entire experience. It was an error for the Visa Officer to exclude that experience even on his view of the required length of service. I make no finding on the required length of service.
[10] The decision of Visa Officer Vaughn dated September 14, 1998 is therefore set aside and the matter remitted to another Visa Officer for determination.
[11] The parties did not suggest a question for certification.
Judge
OTTAWA, ONTARIO
August XX, 1999