Date: 20020809
Docket: IMM-4234-01
Neutral citation: 2002 FCT 892
BETWEEN:
MANSOOR JAVADINIA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
Background
[1] In this judicial review application, Monsoor Javadinia, (the "applicant"), a citizen of Iran, challenges the July 19, 2001 decision of Visa Officer Carol Jong (the "visa officer") refusing his application for permanent residence in Canada in the independent category with an intended occupation of Mechanical Engineer NOC 2132.0. He was awarded 61 points but 0 for the occupational factor and 0 for the experience factor which meant he could not be issued an immigrant's visa.
[2] The visa officer expressed herself in the following way in her refusal letter:
I reviewed your qualifications and experience with you at interview [sic]. From the information provided, I am not satisfied that you have performed some of the main duties of your intended occupation as set out in NOC. Therefore, I have awarded you 0 units of assessment for the experience factor. Subsection 11(1) of the Immigration Regulations states that an immigrant visa shall not be issued awarded [sic] to an immigrant unless at least one unit of assessment is awarded for experience.
I am also not satisfied that you have performed a substantial number of the main duties in your intended occupation as set out in NOC. Therefore, you receive 0 units for Occupational factor. Subsection 11(2) of the Immigration Regulations states than an immigrant visa shall not be awarded to an immigrant unless at least one unit of assessment is awarded for occupational factor.
[emphasis mine]
[3] The lead statement in NOC 2132.0 - Mechanical Engineers reads:
Mechanical Engineers research, design and develop machinery and systems for heating, ventilating and air-conditioning, power generation, transportation, processing and manufacturing. They also perform duties related to the evaluation, installation, operation and maintenance of mechanical systems. Mechanical Engineers are employed by consulting firms, power generating utilities, and in a wide range of manufacturing, processing and transportation industries, or they may be self-employed.
[emphasis mine]
[4] The NOC gives as one example of titles classified in this group an HVAC Engineer (heating, ventilating and air conditioning) Engineer.
[5] Under "Main duties" this is what NOC 2132 states:
Mechanical Engineers perform some or all of the following duties:
•Conduct research into the feasibility, design, operation and performance of mechanisms, components and systems
•Prepare material, cost and timing estimates, reports and design specifications for machinery and systems
•Design power plants, machines, components, tools, fixtures and equipment
•Supervise and inspect the installation, modification and commissioning of mechanical systems at construction sites or in industrial facilities
•Develop maintenance standards, schedules and programs and provide guidance to industrial maintenance crews
•Investigate mechanical failures or unexpected maintenance problems
•Prepare contract documents and evaluate tenders for industrial construction or maintenance
•Supervise technicians, technologists and other engineers and review and approve designs, calculations and cost estimates.
[6] In his application for permanent residence prepared by his solicitors, the applicant set out his work history as follows:
(1) 10.19.89 to 02.19.91, self employed in Tehran, Iran, as mechanical engineer;
(2) 03.19.91 to 12.19.95, employed at York International (Iranian Tabrid Co.), as an Engineering Manager; and
(3) 03.19.92 to date, employed by Nasim Rasa Trading Co. as Managing Director & Technical Director
[7] In support of his application, the applicant filed letters from Nasim Rasa Trading Co. letters from customers and letters from York International Co.
[8] For example, the June 19, 2000 letter from Nasim Rasa Trading Co. says the applicant was employed with the company since 1992 as Deputy of Managing Director and Technical Director. It states:
His responsibility as well as making daily decision during the managing director absent[sic] was also to supervise the installation, operation and maintenance of Absorption liquid chillers, Reciprocating packaged liquid chillers, Centrifugal liquid chiller, Steam boiler and Hot water boiler, which was sold by this company.
He is also responsible for the purchase of the above equipment on behalf of our company.
[emphasis mine]
The CAIPS Notes
[9] As noted, he was interviewed on July 11, 2001 by the visa officer who swore an affidavit confirming her CAIPS Notes.
[10] Her CAIPS Notes record that during the period between October 1989 to 1991, when he was self-employed, he was working with Mitsubishi and York installing, maintaining the machinery and providing service after sales. During the period between 1991 and 1995, he worked full-time at Nasim Rasa and part-time at York International. She wrote this about the discussion she had with the applicant about his duties:
[Said] Introduced machines to customers, help them to design. Asked PI to clarify his involvement in design? When clients wanted to purchase a machine & wanted the design modified by their own engineer, he would give them some advice about whether it would be okay or not. Said after that, if customers decided to buy, they would place orders with him. He would ensure goods were delivered. After machines arrive, his job to install them, initiate start up (connect wire to check everything) & provide after sales service. If something is wrong with machine, would send it back to factory with his report on what was wrong. York moved to Dubai as in 95, U.S. companies were no longer allowed to work in Iran.
[emphasis mine]
[11] The visa officer noted during the period 1992 to June 2000, he worked full-time at Nasim Rasa and said he performed the same duties as at York except doing it full-time. She noted he had a side business which was to import air conditioning systems from York or Mitsubishi into Iran.
[12] The visa officer's CAIPS Notes reflect she expressed concerns about his job as it appeared that he works as a sales representative in both companies. She elaborates:
Gave PI opportunity to tell me what duties he performed as a mechanical engineer. In response, he said the absorption machine is not produced in Iran. His role is to tell York and Mitsubishi in Dubai which sells these machines that there are potential customers in Iran who need the absorption liquid chillers. Expressed concerns again that it appears that he is a sales person providing after sales services and asked him if there is any other duties he performed in his job to demonstrate he has experience as a mechanical engineer.
[emphasis mine]
[13] The visa officer's CAIPS Notes record his answer:
PI confirmed main job is to get the customers, bring the machines, install the machines, start up the machines and maintain machines and provide after sales services. Said important step is to start up machine without any problems. How many people work in company - 5 engineers and more 10 technicians. Who is supervisor - his position? After customer places order, he makes sale contract with them. Director would approve contract. Send money to company - York or Mitsubishi which would accept to produce machines after 7-8 mths. PI asked if he could add one more thing about job. These machines are related to cooling & heating of which he has knowledge.
[14] After recording some notes about his personal suitability and examining some computer printouts he produced on job availability in Canada for heating, ventilating and air conditioning engineers, the visa officer pointed out to him he had no experience in systems design and some of the other duties the employers were looking for. She said she kept a few printouts. She noted the applicant did not contact York or Mitsubishi when she asked if they had offices in Canada.
[15] The visa officer's CAIPS Notes state she advised the applicant she was not satisfied he has done a substantial number of job duties as a mechanical engineer. It appears he works as a sales representative. The applicant, according to the CAIPS Notes, asked for five more minutes to explain about his job. She told him she had provided him with a number of opportunities to tell her any other job duties he performed but he would repeat the same things. However, she did give the applicant a few minutes to add to his comments. This is what her CAIPS Notes record:
PI said passed training course in training course in York Intl in 92. Said can do more than 100 jobs in Iran including training. Also passed training course in Mitsubishi - installed more than 15 machines in Iran for this company & more than 50 in Iran for York - machine used for heating and cooling. PI then said his job did involve designing the systems is[sic] his job - piping, electrical wire. I pointed out that he did not mention this when I asked him a number of times what other duties he performed.
The Affidavits
[16] The applicant and the visa officer filed affidavits in this proceeding which were not cross-examined upon. However, their respective vision of what was told at the interview clashes particularly as to whether the applicant's work experience included the design function.
(i) The Applicant's Affidavit
[17] The applicant deposes that while he did not design the chillers, steam boilers or hot water boilers because these units were already designed and manufactured, what a HVAC engineer did was to custom design the heating and air conditioning units into systems to fit the customer's requirements because these systems were installed in large buildings and complexes and were very expensive costing several hundreds of thousands of dollars.
[18] The applicant deposed he would use scientific methods to calculate the required heat/cold loading for the buildings, the pumping requirements and the needed pipes and wires. Overall, he would have to design the installation and set up the procedures.
[19] The applicant recognized, at times, clients retained consulting engineers in which case his role was more limited to supply, installation and operation but in other cases, clients would ask him to check designs and drawings made by consulting engineers and in other cases, he was solely in charge of such design, temperature regulations and complete set-up of the projects.
(ii) The Visa Officer's Affidavit
[20] The visa officer states in her affidavit that her CAIPS Notes were typed while she interviewed the applicant and accurately reflect the content of the interview (the continuous typing was also confirmed in the applicant's affidavit). She states she was not satisfied, based upon the applicant's own description of his duties in his various jobs that he had performed a substantial number of the duties of a mechanical engineer. In her opinion, his experience was mainly that of a sales representative.
[21] The visa officer states she expressed her concerns to the applicant and provided him with an opportunity to tell her what duties he performed as a mechanical engineer. In response, she says he stated his role was to tell the companies that they were potential customers in Iran who needed the machines that they sold. She states, after again expressing her concern it appeared he was a sales person providing after sales services, the applicant confirmed his main job was to get the customers, bring the machines, install the machines, start up the machines, maintain the machines and provide after sales services.
[22] At paragraph 15 of her affidavit she deposes:
15. At no time during the interview did the Applicant state that he researched, designed or developed the machines himself, which are essential duties of a Mechanical Engineer, save in the last comments at the end of the interview in which he spoke about designing in piping and electrical wiring.
[23] The visa officer concluded on this point in paragraph 21 of her affidavit which reads:
21. In paragaph 27, 28 and 31, the Applicant stated that he described in detail his involvement in design (i.e. his use of scientific measurement methods of calculation and his being in sole charge of such designs and temperature regulations). However, I have no recollection at all of him doing so other than to the extent as documented in my CAIPS Notes. I would have documented his detailed explanation had he have provided it. The facts that my notes are an accurate reflection of what was stated during the interview is supported by the Applicant himself in paragraph 22 of his affidavit where he states that I was continuously typing all statements and reading some of my notes to him. I did, in fact, read the notes to the Applicant asking him to confirm that I did not miss anything relevant about his job experience which he wanted me to consider.
Analysis
a) The Standard of Review
[24] Essentially, as I see it, the thrust of applicant counsel's attack on the visa officer's decision is that she ignored or misconstrued the evidence before her when concluding the applicant did not perform some or a substantial number of the duties required of a mechanical engineer, one who had experience in the heating and air conditioning field.
[25] What the applicant challenges are factual findings made by the visa officer and as a result, the applicant had to demonstrate there were errors which fell within the terms of paragraph 18.1(4)(d) of the Federal Court Act, that is, the visa officer based her decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard to the material before her.
[26] Evans J., as he then was, wrote in Cepeda-Guitierrez v. Canada (The Minister of Citizenship and Immigration), [1998] F.C.J. 1425, as follows:
It is well established that section 18.1(4)(d) of the Federal Court Act does not authorize the Court to substitute its view of the facts for that of the Board, which has the benefit not only of seeing and hearing the witnesses, but also of the expertise of its members at assessing evidence relating to facts that are within their area of specialized expertise... In order to attract judicial intervention under section 18.1(4)(d) the applicant must satisfy the Court, not only that the Board made a palpably erroneous finding of material fact, but also that the finding was made "without regard to the evidence". [emphasis mine]
[27] The Immigration Regulations in terms of the Occupational Factor (Factor 4) states that units of assessment shall be awarded on the basis of employment opportunities in Canada in the occupation...(b) in which the applicant has performed a substantial number of the main duties as set out in the National Occupation Classification, including the essential ones. The Experience Factor (Factor 3) in those same Regulations state that units of assessment shall be awarded for experience in the occupation in which the applicant is assess under Item 4 (Factor 4).
[28] As noted, under Main Duties, NOC 2132 states that Mechanical Engineers perform some or all of the duties then enumerated. I adopt the following statement from Justice O'Keefe's decision in Shinde v. Canada (Minister of Citizenship and Immigration) [2001] F.C. J. No. 1468;
It is not a requirement that the applicant perform all of the duties listed for Travel Counsellor...as the NOC states that Travel Counsellors must "perform some or all of the following duties". The jurisprudence of this Court has established that a requirement that the applicant perform "some or all of the following duties" means that the applicant should have performed a substantial number of the main duties set out in the NOC, including any essential duties.
[29] The applicant's application for permanent residence was filed by an Immigration Consultant. Attached to that application were several documents consisting of: (1) job opportunities in Canada for mechanical engineers in HVAC systems; (2) letters from his employers and (3) letters from clients which detail his work for them.
[30] For example, I note that the following:
1. a letter dated April 11, 2000 from a hotel which certified that the Nasim Rasa Co. represented by Eng. Javadi Nia has been cooperating with it since 1997 in preparing, erecting, commissioning and performing annual repairs and services of two chiller absorption;
2. a letter dated March 16, 2000 which spoke about installations design of a tower complex;
3. a letter from Nasim Rasa Trading Co., dated 19th of June 2000 which confirms that he supervised the installation, operation and maintenance of absorption liquid chillers...;
4. a letter from Nasim Rasa which states he is authorizes to take required action to conclude contracts;
5. a letter requesting the dispatch of a technical representative to inspect the chillers. (emphasis mine)
[31] The situation before me is analogous to that before Justice McGillis in Shaikh v. Canada (Minister of Citizenship and Immigration), (2000) 7 Imm. L.R. (3d) 178 where she wrote at paragraph 6 as follows:
Counsel for the applicant submitted, among other things, that the visa officer erred by failing to consider the documentary evidence tendered by the applicant, particularly the "Bio Data" form containing a detailed description of his duties as an engineer... A review of the visa officer's affidavit confirms unequivocally that she assessed the applicant's experience solely on the basis of the statements made by him at the interview... Although the letter from his employer did not provide specifics in terms of his duties, the applicant nevertheless provided a detailed overview of his duties in the "Bio Data" form. However, the visa officer either ignored or misapprehended that evidence in arriving at her decision. (emphasis mine)
[32] As I see it, the case before me is much more stronger than that before Madame Justice McGillis in Shaikh , supra. The documentary evidence submitted by the applicant in support of his application here is material evidence to substantiate he met the requirements of the Regulations that he had performed a substantial number of the main duties set out in the NOC, including any essential duties such as design. This evidence was either ignored or misconstrued by the visa officer.
[33] On the design function, I note that the visa officer states in her affidavit that at no time during the interview did the applicant state he researched, designed nor developed the machines themselves, which are essential duties of a mechanical engineer. The lead statement in NOC 2132.0, (to repeat) reads "mechanical engineers research, design and develop machinery and systems for heating, ventilating and air conditioning... As I read NOC 2132.0 a mechanical engineer designs systems for heating, ventilating and air conditioning. The visa officer construed this requirement too narrowly when she confined the design function to the machines themselves.
Conclusion
[34] For all these reasons, this judicial review application is allowed, the visa officer's decision of July 19, 2001 is set aside and the applicant's application for permanent residence in Canada is to be reconsidered by a different visa officer. No certified question arises.
"F. Lemieux"
JUDGE
Ottawa, Ontario
August 9, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4234-01
STYLE OF CAUSE: Mansoor Javadinia
- and -
The Minister of Citizenship and Immigration
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: June 27, 2002
REASONS FOR ORDER OF: the Honourable Mr. Justice Lemieux
DATED: August 9, 2002
APPEARANCES:
Me Jean-François Bertrand FOR APPLICANT
Me Caroline Cloutier and
Me Jocelyne Murphy FOR RESPONDENT
SOLICITORS OF RECORD:
Bertrand Deslauriers FOR APPLICANT
Montreal, Quebec
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada