Date: 20020628
Docket: IMM-4754-00
Neutral citation: 2002 FCT 731
BETWEEN:
SUNIL KALIA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicant, a citizen of India, seeks judicial review of, and an order setting aside, the decision of a visa officer dated August 4, 2000, whereby the application of Mr. Kalia for admission to Canada, as a permanent resident in the independant class, was refused.
[2] In the letter refusing the application, the visa officer wrote, in part,
I have assessed your application based on the requirements for Business Development Officers (NOC 4163). I was unable to award you any units of assessment for the occupational and experience factors. You are presently working with Indian Airlines Ltd. as a Traffic Superintendent. You have described your duties at interview and I am not satisfied that the duties you performed correspond to the duties of a Business Development Officer as described in the NOC. Since you have not performed a substantial number of the main duties for this occupation, including the essential ones, I am unable to find you qualified in your intended occupation.
Sub-sections 11(1) and (2) of the Regulations do not authorize a visa officer to issue an immigrant visa unless the immigrant has earned at least one unit of assessment under the experience and the occupation factors.
I have considered whether or not these units of assessments are accurate indication of your ability to become successfully established in Canada, and I have satisfied myself that they are.
You, therefore, come within the inadmissible class of persons described in paragraph 19(2)(d) of the Immigration Act in that you do not fulfill or comply with the provisions of the Act and Regulations and, I have refused your application.
[3] By his affidavit in support of the application for judicial review the applicant avers that at his interview he outlined in considerable detail his responsibilities, which in his submission met many of the responsibilities outlined in NOC classification 4163, for Business Development Officers. As described in that classification Business Development Officers perform "some or all of the duties" there listed as "main duties".
[4] After questioning the applicant about his duties with Indian Airlines Ltd., his employer, the visa officer included in her CAIPS notes, made at the time of the interview, a summary description of his responsibilities in the following terms:
Says that he works for commercial Department which includes marking, sales and handling. Says his duties go beyond his work as traffic superintendent. Says that his work is more related to market development,
- says that he does market development
- distribution channels & travel agents
- database information, database management
After reviewing the positions held in his company the visa officer's notes comment:
Subj has performed some of the duties described in NOC 4163 but not the major ones...At this point, I am not satisfied that subj has performed most of the majored [sic] duties under his intended occupation.
[5] Concerning a letter of reference from the applicant's employer, which described and confirmed Mr. Kalia's duties in considerable detail, the visa officer's affidavit states her belief that the letter was "inflated in order to fit his intended occupation as it did not accurately reflect the duties which the applicant described to me at interview".
[6] For the applicant it is urged that the visa officer failed to consider all of the evidence before her and that she erred in assessing the applicant's experience in relation to the responsibilities of a Business Development Officer as described in the NOC classification. Moreover, it is urged, in reliance upon Haughton v. Canada (Minister of Citizenship and Immigration), (1996), 111 F.T.R. 226, 34 Imm. L.R. (2d) 284, [1996] F.C.J. No. 421 (QL), that the visa officer has no authority to differentiate some duties within the NOC classification as more important than others.
[7] The applicant also relies on the decision of Mr. Justice Pelletier, then of this Court, in Paracha v. M.C.I. (1999), 3 Imm. L.R. (3d) 293, [1999] F.C.J. No. 1282 (T.D.) (QL). In that case a determination by a visa officer was set aside for the officer had concluded all duties outlined in an NOC classification need to be performed for points to be awarded for experience, but for the classification in question required only that "some or all" of the listed duties be performed.
STANDARD OF REVIEW
[8] In my view the standard of review of a discretionary decision of a visa officer in assessing experience of an intended immigrant in relation to a particular occupation is well settled. In accord with the decision of the Supreme Court of Canada in Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2, a court will not intervene in regard to the exercise of discretion vested by statute merely because the court might have exercised the discretion differently if it had been charged with the responsibility. Where it has been exercised in good faith, without reliance on irrelevant or extraneous considerations the courts should not interfere. Moreover, the decision in this case is essentially one of fact (see Mahoney, J.A. for the Court of Appeal in Lim v. Canada (Minister of Employment and Immigration), (1991) 121 N.R. 241, 12 Imm. L.R. (2d) 161, [1991] F.C.J. No. 8 (QL) (C.A.)). Where the decision in question is one of fact this Court will intervene only if it concludes the decision is patently unreasonable or in other words, as provided in s-s. 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7 as amended, where the decision is based on an erroneous finding of fact made in a perverse or capricious manner. (See: McKeown J. in Sharma v. Canada (Minister of Citizenship and Immigration), 2001 FCT 1131, [2001] F.C.J. No. 1562 (QL) (T.D.).
ANALYSIS
[9] By her affidavit, not subject to cross-examination, the visa officer states that based on the interview of the applicant she concluded that
...the Applicant's duties are more related to either Sales or Marketing Manager or Travel Agency Manager. The only aspect of the duty of a Business Development Officer that the Applicant performed or is somehow involved with is the data analysis on the buying habits and preference of wholesale or retail consumers.
...from our discussion, he did not present any evidence that he develops any policies or administers any program as described in NOC 4153, Business Development Officer.
[10] It was this assessment that led the officer to conclude that the applicant had not satisfied her that he had the experience required to work in Canada in his intended occupation. Thus he was awarded no points for experience. Without any experience assessed for the occupation he proposed to follow, he was not eligible for admission to Canada.
[11] In my opinion the officer's assessment was a matter within her discretion. The officer took into consideration the written submissions of the applicant, his oral representations at the interview, and the letter of reference from his employer. Even if she weighed that evidence differently than the applicant desired, or differently than the Court might do if it had the responsibility, that is not a basis to intervene.
[12] It was within the officer's discretion to assess the applicant's experience on the basis of her assessment of the duties he performed as he described those at the interview, and to assign less weight to his written submissions or to the letter of reference. She did not base her assessment on a perception that the NOC description required that applicants perform all of the duties outlined, as was the case in Paracha, supra. Her acknowledgement in CAIPS notes that he performed some of those duties did not require that one or more points should be awarded for experience. Rather, having noted that he performed some of the requisite duties, she added "...but not the major ones. At this point, I am not satisfied that subj has performed most of the major duties under his intended occupation".
[13] Under the NOC description the "main duties" are described under eight general descriptions. I am not persuaded that by referring to the listed duties as "the major duties" the visa officer was differentiating among those eight general descriptions. Rather, her words are more likely to refer to all of the eight general descriptions as "major duties" with the implication that duties falling within one of the general descriptions were not "major".
[14] The visa officer's assessment, looked at in the context of the process here followed, with written submissions and references, and an oral interview, and in the context of the NOC description, was simply that in her opinion the applicant did not establish that he performed most of the duties listed under eight general descriptions in the NOC classification.
[15] In my opinion the officer's assessment of the applicant's experience cannot be considered patently unreasonable, and her decision to refuse the application cannot be said to be based on a finding of fact made in a perverse or capricious manner.
[16] For these reasons, an Order issues dismissing the application for judicial review.
(signed) W. Andrew MacKay
__________________________
JUDGE
OTTAWA, Ontario
June 28, 2002.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-4754-00
STYLE OF CAUSE: SUNIL KALIA v. The Minister of Citizenship and Immigration
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: May 15, 2002
REASONS FOR ORDER OF The Honourable Mr. Justice MacKay
DATED: June 25, 2002
APPEARANCES:
Mr. Max ChaudharyFOR THE APPLICANT
Ms. Catherine VasilarosFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Chaudhary Law OfficeFOR THE APPLICANT
North York, Ontario
Mr. Morris RosenbergFOR THE RESPONDENT
Deputy Attorney General of Canada