Date: 19990216
Docket: IMM-812-98
BETWEEN:
MIKHAIL BIRIOULIN
ANNA A. BIRIOULINA
ANNA M. BIRIOULINA
JULIA BIRIOULINA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review of a decision of the visa officer Nathalie Smolynec, First Secretary with the Visa Section of the Moscow Canadian Embassy, whereby she refused the application for permanent residence in Canada of the applicants. The decision dated January 27, 1998 was notified to the applicants on the same day.
THE FACTS
[2] The applicants who are residents of Russia, submitted an application for permanent residence under the "independent" category pursuant to subparagraph 9(1)(b)(i) and the selection criteria of paragraph 8(1)(a) of the Immigration Rules , 1978, SOR/78-172 as amended.
[3] More specifically, the applicant Mikhail Birioulin (hereinafter the "principal applicant") requested that he be assessed under the independent category for the two alternative occupations of "Construction Equipment Mechanic", and "Heavy-Duty-Equipment Mechanic".
[4] The principal applicant, who is 34 years old, graduated from a vocational college in 1981 as an electrician for industrial equipment, having studied to be an electrician for about 2 years and 10 months. He then worked between January 1987 and September 1988 as an electrician. The principal applicant then returned to college.
[5] Between September 1988 and May 1991 he studied industrial and civil engineering at the Bryansk Construction College in Bryansk, Russia, graduating with a diploma as a construction technician. The principal applicant then went to work in June of 1991 as a construction equipment mechanic for Kons-Al Ltd., a building company in Bryansk. He has continued to work as a construction equipment mechanic for this company to the present time and was promoted supervising foreman of a team of mechanics. He has been working in this capacity for 3" years.
APPLICANTS" ARGUMENTS
[6] The applicants do not dispute the visa officer"s assessment of the principal applicant for the occupation of construction equipment mechanic. The applicants, however, submit that the visa officer erred by failing to carry out a formal assessment of the principal applicant for the occupation of heavy-duty-equipment mechanic, and this in turn led to other errors.
[7] The applicants suggest that had the visa officer properly carried out a formal assessment in this alternative claimed occupation, that the principal applicant would have received sufficient units of assessment to be accepted for immigration.
[8] The applicants also suggest that it has been held by this Honourable Court that a visa officer is under a duty to assess an applicant"s qualifications under the occupational categories indicated by the applicant.
[9] The applicants suggest that the assessment must be a formal one and not an information or preliminary determination.
[10] In making her preliminary determination that the principal applicant did not have sufficient Specific Vocational Preparation to qualify to work as a heavy-duty-equipment mechanic, the visa officer took into consideration the 2 years and 8 months which the principal applicant spent studying at the Bryansk Construction College.
[11] The applicants suggest that however the definition of Specific Vocational Preparation found at factor 2 in Schedule 1 of the Immigration Regulations does not restrict Specific Vocational Preparation to training acquired in a professional or vocational school setting. It also includes training acquired "in-plant" or "on-the-job".
[12] The applicants suggest that this Court has held that Specific Vocational Preparation also includes training in-plant, on-the-job or experience in other jobs.
[13] The applicants suggest that the visa officer erred by failing to take into consideration any training which the principal applicant may have received outside of the Bryansk Construction College. For example, training received for this first college diploma or during the many years of work experience which he had with Kons-Al Ltd.
[14] The applicants suggest that the visa officer did not take into consideration the fact that the principal applicant was promoted supervising foreman of a team of mechanics and had been working in this capacity for 3" years.
[15] The applicants suggest that during her preliminary determination the question which the visa officer asked herself was whether the principal applicant"s work experience more closely corresponded with that of a construction equipment mechanic or heavy-duty-equipment mechanic.
[16] The applicants suggest that it was the wrong question to ask herself because it was not to which of the two occupations the principal applicant came closer but whether he fit the definition of a heavy-duty-equipment mechanic as described in the Canadian Classification Dictionary of Occupations (CCDO).
[17] The applicants suggest that the CCDO definition of a heavy-duty-equipment mechanic incorporates by reference the duties of a construction equipment mechanic. That is to say, all construction equipment mechanics perform also the duties of a heavy-duty-equipment mechanic (provided the equipment they work on is heavy-duty).
[18] The applicants suggest that the Immigration Manual guidelines recommend that the visa officers take into account transferability of related experience and that the visa officer erred by failing to recognize that the principal applicant"s work experience meets the CCDO definition of a heavy-duty-equipment mechanic.
[19] The applicants suggest that if the visa officer had concerns regarding the principal applicant"s Specific Vocational Preparation in regard to the occupation of heavy-duty-equipment mechanic she should have advised him about it and provided him with an opportunity to disabuse her of her concerns by providing additional information about his training and work experience.
[20] Finally, the applicants suggest that the visa officer did not assess the principal applicant under the National Occupational Classification system (NOC) as she was required to do. The NOC came into effect on May 1, 1997, and all determinations made thereafter had to be considered according to the NOC (in addition to the CCDO if it was still applicable). While the applicants concede that the principal applicant would have received fewer points under the NOC, nonetheless, this was a statutory requirement which the visa officer failed to comply with.
RESPONDENT"S ARGUMENTS
[21] The respondent suggests that the visa officer reviewed with the principal applicant the documentation he had provided concerning this experience and training in his intended occupation.
[22] The applicant had presented one letter of reference and the visa officer was not satisfied that this letter accurately described, nor was concordant with the Specific Vocational Preparation of heavy-duty mechanic in the CCDO, and that the letter of reference did not provide support to demonstrate the principal applicant"s experience as a heavy-duty mechanic.
[23] The respondent suggests that the visa officer concluded that the work performed by the principal applicant corresponded more closely to the duties as outlined in "construction equipment mechanic".
[24] The respondent suggests that the reference letter made no reference to the types of heavy-duty equipment referred to in the duties outlined in the CCDO and that most of the equipment referred to in the letter could be characterized as "light to medium duty" equipment used in construction; and not heavy-duty equipment.
[25] The respondent suggests that the visa officer was entitled to conclude the applicant"s on-the-job training and his education simply did not qualify him to perform the duties contemplated in the occupation of heavy-duty equipment mechanic as described in the CCDO.
[26] The respondent suggests that the visa officer did take into account the principal applicant"s desire to be assessed under the category of heavy-duty equipment mechanic but that the visa officer did not make an assessment as the applicant did not qualify.
[27] The respondent suggests that the applicant had every opportunity to provide evidence about his training and work experience, that the reference letter is detailed, and that the principal applicant was specifically asked about his duties at Kons-Al Ltd., at the interview.
[28] Finally, the respondent suggests that the visa officer is not required to conduct a further search to obtain supplementary material from a visa applicant with regard to alternative occupations.
THE ISSUE
[29] The only issue to be determined in this instance is whether the visa officer erred when she made the preliminary determination that the applicant did not qualify as a heavy-duty mechanic and, therefore, did not proceed to a formal assessment of this alternative occupation.
ANALYSIS
[30] The applicant submits that it was a reviewable error by the visa officer and cites Gaffney v. Canada (MEI) (1991), 12 Imm. L.R. (2d) 185, at 189, in support.
Likewise, in another of the appeals heard serially with this [Uy v. Canada (Minister of Employment & Immigration) (1991), 12 Imm. L.R. (2d) 172], this Court found that a visa officer has the duty to the applicant (or his or her spouse) as the one for which he or she is qualified and prepared to pursue in Canada. That duty, in my view, extends to each such occupation. Here, there is an issue of fact not considered by the Trial Division, namely, whether the visa officer really was on notice to assess this appellant in respect of the occupations he now complains were not addressed.
| [31] Related to what kind of assessment has to be done, the applicants referred to Issaeva v. Canada (MCI) (1996), 87 Imm. L.R. (2d) 91, at 95. |
| An assessment is not an informal or preliminary determination by a visa officer. The terms "assess" or "assessment" mean the process of applying to the prospective immigrant the factors listed in column I of Schedule I of the Regulations. That this was not done with respect to the applicant"s stated occupation of "general economist" is confirmed by the decision of the visa officer which states that the applicant was assessed only with respect to the occupations of "manager administration" and "financial manager". |
| Because the applicant was entitled to be assessed in the occupation she stated in her application, that of "general economist", and no such assessment was done in accordance with the Immigration Act and Regulations, the visa officer erred in law and exceeded his jurisdiction. |
| Some decisions of the Trial Division were cited which suggest that if the visa officer makes a preliminary determination that a prospective immigrant is not qualified in his or her claimed occupation, there is no need to conduct an assessment with respect to that occupation or that such determination constitutes an assessment... Of course, each case must be decided on its own facts. However, as I have said, an assessment is not an informal determination. |
Further, in that decision at page 96, Justice Rothstein says:
While one can think of extreme cases, in all likelihood the more normal situation would be cases in the "grey area" where a prospective immigrant"s qualifications for a particular occupation may be questionable. This is a good reason why an assessment in accordance with Schedule I of the Regulations is necessary. It provides an objective approach to the initial determination of the chances of a particular immigrant becoming successfully established in Canada. Where a prospective immigrant clearly does not qualify, he or she simply does not obtain the minimum number of units required for a visa. There the required number of units are obtained, the prospective immigrant is still subject to the discretion given to the visa officer under ss. 11(3) of the Regulations which may be exercised against the prospective immigrant if approved by a senior immigration officer.
[32] In the present case, the visa officer satisfied herself that the principal applicant did not qualify for the occupation of heavy-duty mechanic by reviewing the reference letter interviewing the principal applicant.
[33] In my view, the visa officer did not comply with the requirements of the law.
[34] The power to assess is statutory power given to the visa officer under paragraph 9(2) of the Immigration Act and it is up to the visa officer to determine whether the applicant is qualified for the occupation and whether he is prepared to pursue it in Canada.
[35] The visa officer could not deny the assessment without first making those determinations.
[36] In my view, in that case, the preliminary determination by the visa officer was not an assessment as required by the law.
[37] The principal applicant Mikhail Birioulin requested to be assessed under the independent category for the two alternative occupations of construction equipment mechanic and heavy-duty equipment mechanic.
[38] The applicant was assessed only under the independent category of construction equipment mechanic.
CONCLUSION
[39] For these reasons, the judicial review is allowed and the matter is remitted for redetermination by a different visa officer and that the assessment be made whether the applicant fits the definition of a heavy-duty equipment mechanic.
[40] No question of general importance will be certified.
Pierre Blais
Judge
OTTAWA, ONTARIO
February 16, 1999