Date: 20000714
Docket: IMM-6294-99
OTTAWA, ONTARIO THIS 14th day of July, 2000
PRESENT: THE HONOURABLE MR. JUSTICE McKEOWN
BETWEEN:
MIKHAIL BIRIOULIN
ANNA A. BIRIOULINA
ANNA M. BIRIOULINA
JULIA BIRIOULINA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
The application for judicial review is allowed. The decision of the visa officer is quashed. The matter is returned to a different visa officer for redetermination in a manner not inconsistent with these reasons.
"W. P. McKeown"
___________________________
JUDGE
OTTAWA, ONTARIO
July 14, 2000
Date: 20000714
Docket: IMM-6294-99
BETWEEN:
MIKHAIL BIRIOULIN
ANNA A. BIRIOULINA
ANNA M. BIRIOULINA
JULIA BIRIOULINA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
McKEOWN J.
The Applicant seeks judicial review of a decision of the visa officer dated November 25, 1999 wherein the principal Applicant"s application for permanent residence in Canada was rejected. The issue is whether the Immigration Officer erred in his assessment of the principal Applicant"s work experience as a heavy duty equipment mechanic. The visa officer assessed the Applicant as construction equipment mechanic CCDO 8584-378 and awarded six points for experience. He awarded the Applicant zero points for experience in his application for occupation of a heavy duty equipment mechanic CCDO 8584-112. He then assessed the Applicant as a construction equipment mechanic NOC 7312.0 and gave the Applicant four points for experience. He then considered the Applicant under the classification of a heavy duty equipment mechanic NOC 7312.0 and gave the Applicant zero points for experience. Under the CCDO, the Applicant was required to be assessed under the separate occupation as a construction equipment mechanic which was CCDO 8584-378 and heavy duty equipment mechanic which was CCDO 8584-112. Thus it was reasonable for the visa officer to find that the Applicant had experience as a construction equipment mechanic but no experience as a heavy duty equipment mechanic under the CCDO Regulations.
However, under the NOC, construction equipment mechanics and heavy duty equipment mechanics both come under NOC 7312.0. Schedule 1 to the Immigration Act Regulations was changed in 1997 and references to on-the-job training and experience were changed from CCDO to the NOC. Factor number 2 relates to Education and Training and reads as follows:
| (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 applicant is assessed under item 4. Units of assessment shall be awarded as follows: |
| ... |
Number 4 "Occupational Factor" reads as follows:
| (1) Units of assessment shall be awarded on the basis of employment opportunities in Canada in the occupation |
| (a) For which the applicant meets the employment requirements for Canada as set out in the National Occupational Classification; |
| (b) in which the applicant has performed a substantial number of the main duties as set out in the National Occupational Classification, including the essential ones; and |
| (c) that the applicant is prepared to follow in Canada. |
I will now set out the description of 7312 Heavy Duty Equipment Mechanics as defined in the NOC.
| Heavy-Duty Equipment Mechanics repair, overhaul and maintain mobile heavy-duty equipment used in construction, forestry, mining, material handling, landscaping, land clearing, farming and similar activities. They are employed by establishments which own and operate heavy equipment and by heavy equipment dealers, rental and service establishments. Heavy-duty equipment mechanic apprentices are included in this unit group. |
| Examples of titles classified in this unit group |
| Construction Equipment Mechanic |
| Diesel Mechanic, Heavy Equipment |
| Farm Equipment Mechanic |
| Heavy-Duty Equipment Mechanic Apprentice |
| Heavy Equipment Mechanic |
| Heavy Mobile Logging Equipment Mechanic |
| Heavy Mobile Mining Equipment Mechanic |
| Tractor Mechanic |
| Main duties |
| Heavy-Duty Equipment Mechanics perform some or all of the following duties: |
| ["] Check bulldozers, cranes, graders and other heavy construction, logging and mining equipment for proper performance and inspect equipment to detect faults and malfunctions |
| ["] Diagnose faults or malfunctions to determine extent of repair required |
| ["] Adjust equipment and repair or replace defective parts, components or systems, using hand and power tools |
| ["] Test repaired equipment for proper performance and to ensure that work meets manufacturers" specifications |
| ["] Clean, lubricate and perform other routine maintenance work on equipment |
| ["] Perform repair work on heavy trucks. |
It can be seen from the foregoing that unlike in the former CCDO there is only reference to heavy duty equipment mechanics and examples of titles classified in this unit group are construction equipment mechanic and heavy equipment mechanics. There is no distinction made with respect to main duties of any of the examples of titles classified in this unit group. Furthermore, at page 79 of the Applicant"s Record, the structure of the NOC is set out and it defines unit groups as follows:
| Each unit group has a unique four-digit code. The first three digits of this code indicate the minor and major groups to which the unit group belongs. |
And then it goes on to say:
| A number of occupational titles are classified within each unit group. Occupational titles classified in the same unit group are not assigned different sub-codes; they share the same four-digit unit group code. The NOC does not have an aggregation level below that of the unit group. |
The visa officer was correct in stating that the Applicant has experience as a construction equipment mechanic but not as a heavy duty mechanic for purposes of the NOC. However, he erred in his interpretation of the NOC classification scheme which requires that the Applicant be given points for experience because there is no separation between the categories of construction equipment mechanic and heavy duty mechanic. The NOC does not permit a further breakdown of the unit group heavy duty equipment mechanics.
This leads to an anomalous result in the case before me since, according to the CAIPS notes, the Applicant admitted that he was never employed as a heavy duty equipment mechanic. The CAIPS notes read:
| His experience in that occupation derives from the fact that repairing such equipment is subj"s hobby. However, his only experience in this occupation is providing advice to friends on how to repair their trucks and helping friends repair maz, kamaz trucks and agricultural tractors in his free time after work. |
He also acknowledged that he had been working as a "construction equipment mechanic-foreman" until the date of his interview with the visa officer.
In his refusal letter, the visa officer specifically addressed the Applicant"s alleged work experience:
| During your interview, you stated that you have never been employed as a Heavy Duty Equipment Mechanic and that your only experience in this occupation derives from the fact that repairing heavy duty equipment is your hobby and you have been conducting some truck and agricultural tractor repairs for your friends, outside of your work time. |
However, since the NOC unlike the CCDO, does not provide separate categories for construction equipment mechanics and heavy duty mechanics, the Applicant must be awarded some points for experience as a heavy duty equipment mechanic.
The application for judicial review is allowed. The decision of the visa officer is quashed. The matter is returned to a different visa officer for redetermination in a manner not inconsistent with these reasons.
"W. P. McKeown"
___________________________
JUDGE
OTTAWA, ONTARIO
July 14, 2000