Date: 20000602
Docket:IMM-2913-99
BETWEEN:
JOSE LORENZO TAVERA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
HENEGHAN J.
[1] This is an application for judicial review of a decision rendered by a visa officer on May 5, 1999. In his decision, Raymond Gabin (the "visa officer") refused the application for permanent residence in Canada of Jose Lorenzo Tavera (the "Applicant").
[2] The visa officer assessed the Applicant according to the National Occupational Classification ("NOC") in the intended occupations of FACILITY OPERATION MANAGER and PLUMBER and awarded the following units of assessment:
| Facility Operation Manager Plumber |
| Age 0 0 |
| Occupational Factor 1 0 |
Specific Vocational Prep./
| Education Training Factor 15 15 |
| Experience 0 0 |
| Arranged Employment 0 0 |
| Demographic Factor 8 8 |
| Education 15 15 |
| Knowledge of English and French 9 9 |
| Assisted Relative Bonus 0 0 |
| TOTAL 48 47 |
[3] The Applicant received zero units of assessment under the experience factor in both the intended occupation of facility operation manager and plumber. Subsection 11(1) of the Immigration Act, R.S.C. 1985, c. I-2 as amended, does not permit the issuance of a immigrant visa to applicants who have not been awarded any units under the experience factor, unless an applicant has prearranged employment in Canada. Thus, before addressing the other issues raised by counsel, I will first determine whether the visa officer erred in assessing the Applicant"s experience.
[4] The standard of review applicable in a judicial review of a visa officer"s decision is articulated in To v. Canada (Minister of Employment and Immigration),1 by Justice Stone writes:
| Here, the immigration officer was not satisfied that the appellant had either the business ability or the personal financial resources to establish a business in Canada. We agree with Jerome A.C.J. that the case does not justify judicial intervention. In Maple Lodge Farms Limited v. Government of Canada et al., [1982] 2 S.C.R. 2, at pages 7-8, McIntyre J. stated for the Court: |
| 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, were 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.2 |
[5] The Applicant alleges that he has three years of experience in the occupation of facility operation manager and that the visa officer was required to award him six units of assessment.
[6] The Minister of Citizenship and Immigration (the "Respondent") submits that the Applicant was not awarded any units for experience because the visa officer determined that his experience and duties were not those of a Facility Operation Manager as described in the NOC.
[7] Following a careful of the NOC for facility operation manager including the employment requirements and the main duties of a facility operation manager, I am satisfied that the visa officer did not err in awarding the Applicant zero units of assessment for the Experience Factor.
[8] With respect to the assessment of the Applicant as a plumber, the NOC requires completion of a four-to-five year apprenticeship program to be considered a plumber. Alternatively, it states that a combination of over 5 years of work experience in the trade and some high school, college or industry courses in plumbing "is usually required" in order to be eligible for trade certification. Although the Applicant only had 3 years experience as a building caretaker, the visa officer"s affidavit indicated that the visa officer gave him the benefit of the doubt with regard to his qualifications, and assessed him as a plumber.
[9] In terms of the Applicant"s experience as a plumber, the Applicant indicates in his affidavit that he had four years experience as a plumber. Upon review of the material submitted, particularly the Applicant"s Immigrant Application Form, it is evident that the Applicant worked from 1996-1999 for Fein Management as a building caretaker. Nevertheless, following a careful review of the NOC and based on the evidence submitted, I am of the opinion that the Applicant did not perform the majority of the duties outlined in the NOC. Therefore, I do not think that it can be said that the visa officer erred in awarding the Applicant"s zero units of assessment for the Experience Factor.
[10] The Occupational Factor requires that an applicant meet the requirements for the given occupation as set out in the NOC. Additionally, the Occupational Factor requires that an applicant perform a substantial number of the duties as indicated in the NOC. Thus, in the absence of evidence on which the visa officer could conclude that the Applicant performed a substantial number of the main duties outlined in the NOC, I am of the opinion that it was reasonable for the visa officer to award the Applicant zero units of assessment under the Occupational Factor.
[11] Given that I am of the opinion that the visa officer did not err in awarding the Applicant zero units of assessment under the Experience Factor for the occupations of facility operation manager and plumber, it is not necessary to address the remainder of the Applicant"s submissions.
[12] The application for judicial review is dismissed.
[13] Counsel for the parties have seven days from their receipt of these reasons to submit a question for certification.
| _________________________________ |
| J.F.C.C. |
OTTAWA, Ontario
June 2, 2000
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