Date: 20010405
Docket: IMM-4664-00
Neutral Citation: 2001 FCT 292
BETWEEN:
PEI GANG ZHANG
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of a decision of Neeta Logsetty, Immigration Officer at the Canadian Consulate General, Hong Kong (hereinafter "the Immigration Officer"), dated August 18, 2000, wherein she refused Pei Gang Zhang's (hereinafter "the Applicant") application for permanent residence on the basis that the Applicant did not have the requisite experience as a Marine Engineer to meet the requirements for immigration in the Independent Category.
[2] In February 1999, the Applicant filed an application for Canadian permanent residence with the Canadian Consulate General in Hong Kong under the Independent Category as a Marine Engineer.
[3] NOC - #2148.5 describes marine Engineer as follows:
Marine and naval engineers design and develop marine vessels and floating structures, and associated marine power plants, propulsion systems and equipment and oversee the building, maintenance and repair of vessels and marine systems.
[4] The Immigration Officer determined that the Applicant did not have the necessary experience in the occupation of Marine Engineer. She concluded that he oversaw the maintenance and repair of vessels, but that he did not design and/or develop structures and/or systems. Accordingly, she awarded zero units of assessment under the experience factor. She also awarded zero units of assessment under the occupational factor as he had not performed a substantial number of the main duties of the occupation of Marine Engineer.
[5] The Immigration officer also assessed the Applicant under the occupation of Marine Engineer Officer. However, there was no demand for this occupation.
[6] The issue which I must determine is whether the Immigration Officer erred in determining that the Applicant did not have the requisite experience as described in NOC - #2148.5.
[7] The Applicant submits that the Immigration Officer exceeded her jurisdiction by finding that he had not performed a substantial number of the main duties of the Marine Engineer occupation provided in the NOC as she had uncontested evidence that he designed shipboard components and equipment in addition to his duties overseeing the maintenance, repair and building of vessels.
[8] The Respondent argues that the Immigration Officer's conclusion that the Applicant did not design and/or develop structures and/or systems was consistent with the Applicant's responses to questions at the interview where he admitted that he did not do any design work.
[9] The Respondent further argues that while an applicant may not have to perform all of the duties listed in the NOC description, it does remain open to a visa officer to determine that some skills are essential to an occupation.
[10] In the case at bar, the Immigration Officer did not require that the Applicant have experience in all of the potential tasks listed in the NOC. However, she was looking for some experience in design or development with any one of the fields named in the description.
[11] The Respondent further submits that the proper characterization of the repair experience were examples of modifications and repairs but not design experience.
[12] Accordingly, the Respondent submits that the Immigration Officer's conclusion that the Applicant did not have experience as a Marine Engineer was reasonable and based on the evidence.
[13] In To v. Canada (Minister of Employment and Immigration), [1996] F.C.J. No. 696 (unedited), the Federal Court of Appeal held that the appropriate standard of review of the discretionary decisions of visa officers with respect to immigrant applications was the same as that enunciated in Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2, where MacIntyre, J., stated the following:
It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.
[14] The Applicant has failed to persuade me that I should interfere with the decision. The discretion exercised by the Immigration Officer met with the required standard; it has been exercised in good faith and in accordance with the principles of natural justice. Irrelevant or extraneous considerations were not relied on.
[15] Given the nature of the Applicant's responses during the interview, it was not unreasonable for the Immigration Officer to conclude that the Applicant did not have the requisite experience described in the NOC. It is clear from the CAIPS notes that the Applicant confirmed that he was in charge of maintenance and repair of ships and supervised ship building; that, although he made some alterations for equipment installation, he did not design ships or equipment.
[16] The Immigration Officer did not mechanically adhere to the NOC description or require the Applicant to perform all of the tasks in the description to qualify (See Muntean v. Minister of Citizenship and Immigration (1995), 31 Imm. L.R. (2d) (F.C.T.D.). Rather, as discussed in Wu v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 4, the Immigration Officer exercised her discretion to determine that some skills were essential to the occupation.
[17] The Immigration Officer gave the Applicant many opportunities to disabuse her of the negative finding as to his experience in designing or developing structures or systems. She specifically asked the Applicant if his duties included anything other than supervising maintenance, repair and installation of equipment which may require some minor modifications. The Applicant answered no.
[18] It is clear that the Applicant did not perform a number of the essential duties, more particularly the designing and developing of marine vessels. Accordingly, he did not have the requisite experience to qualify as a Marine Engineer.
[19] In light of the foregoing, the application is dismissed.
JUDGE
OTTAWA, Ontario
April 5, 2001