Date: 19990419
Docket: IMM-1382-98
BETWEEN:
SUVINDER SINGH
Applicant
AND:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application for judicial review of the Visa Officer' decision dated March 9, 1998, whereby Mr. Singh's application for permanent residence in Canada was denied. He seeks an order quashing the decision of March 9, 1998 and directing the respondent to reconsider his application in accordance with the Immigration Act and regulations.
[2] The applicant, a national of India, has been residing in the United States since 1989. On September 20, 1996, he filed an application for permanent residence in Canada with the Canadian Consulate General in Buffalo, New York; it was filed pursuant to the skilled workers program and he identified his trade as an "Automotive Maintenance Equipment Servicer".
[3] Mr. Robert McLeman, Visa Officer, deposed that he had interviewed the applicant on October 29, 1997 and, by letter dated March 9, 1998, he advised that the application was denied.
[4] The applicant was awarded 65 units of assessment overall. However, he was given zero unit for experience since the Visa Officer determined that the applicant had little or no experience as an automotive maintenance equipment servicer. The relevant passage is as follows:
| You asked to be assessed in the occupation of automotive maintenance equipment servicer. At the commencement of the interview, you advised that you work in this capacity at an Arco station in california. However, as your interview progressed, you stated that much of the automotive repair equipment used there is owned by the Arco franchise, and that this equipment is maintained and repaired by Arco employees other than yourself. You advised that your typical work day is spent fixing cars or helping the cashier. From your description of your duties, it was evident that you have little or no full-time experience in performing the occupation of automotive maintenance servicer. I therefore was unable to award you any units of assessment for experience in this occupation. |
[5] The applicant submits that the Visa Officer misapprehended the evidence and that the statements in the interview relating to his experience as an automotive maintenance equipment servicer were misinterpreted. In his affidavit, the applicant explains that when the Officer asked him about his work during slow periods at the garage he responded that he would perform other tasks such as ordering parts and relieving the cashier for breaks. He submits that the Officer incorrectly interpreted his reply to mean that he had no full time experience in the occupation of automotive maintenance equipment servicer. It is also submitted that the Visa Officer did not correctly interpret the facts relating to the maintenance work performed by Arco's own employees. He emphasizes that outside employees are called primarily for the maintenance of the computerized equipment and that these repairs are not of an automotive mechanical nature but computer problems.
[6] It is further submitted that the Officer disregarded the applicant's training certificates as an Automotive Mechanic for the reason that the Officer was unable to confirm the existence of the West Valley Occupational Centre in Woodland Hill using directory assistance. By way of supplementary affidavit evidence unavailable to the Visa Officer, the applicant provides a copy of the directory indicating the location and telephone number of the centre to corroborate its existence. In addition to his certificates, the applicant provided the Officer with a reference letter from his employer outlining his functions at work. In short, it is submitted that the applicant provided the Officer reliable evidence confirming his qualification and experience as an automotive equipment servicer.
[7] The respondent submits that the Visa Officer based his conclusion that the applicant did not have two years of experience in his field on the fact that the applicant told him that he spent three quarters of his time repairing motor vehicles and the rest of the time assisting the cashiers. Also, that the Visa Officer relied on the applicant's statement in the interview that at Arco outside employees repaired the motor vehicle equipment and concluded that the applicant had no full time experience as an automotive equipment servicer. Therefore, it was open to the Visa Officer to conclude that the applicant had no experience and did not meet the requirements of the CCDO definition of automotive maintenance equipment servicer.
[8] The applicant raises two issues: 1) whether the Visa Officer misapprehended the evidence before him in deciding that the applicant did not have the required experience in the occupation of automotive equipment servicer; and 2) whether the Visa Officer breached the principles of natural justice.
[9] In assessing the applicant's experience, which is clearly within the Visa Officer's jurisdiction, the Officer must consider the entirety of the evidence. While the Court will not substitute the officer's finding of the fact for its own assessment, it may intervene where the assessment is patently unreasonable or clearly in error. In Hristova v. Canada (Minister of Employment and Immigration) (F.C.T.D.) (Action No. A-487-92, February 3, 1994), Justice Cullen stated the following:
| It is also clear that a court can review and set aside a board's evidentiary findings under circumstances provided for in section 18.1(4) of the Federal Court Act. The question is whether the Board made an error sufficient to be caught under s-s. 18.1(4) of the Federal Court Act. In Gurmeet Singh and Jaswant Narang v. M.E.I. (October 8, 1993) Action No. IMM-888-93 (F.C.T.D.) [Please see [1993] F.C.J. No. 1034], Reed J. indicated that a board's findings of fact can be reviewed under two different circumstances. First, the findings could be reviewed where there was no evidence presented that would support those findings. Second, even if there was some evidence to support those findings they might still be reviewable if, on an assessment of the evidence as a whole, those findings were unreasonable. |
| There is not, in my opinion, anything in the Board's decision that amounts to a finding which can be classified as perverse or capricious. That is, the Board's findings can generally be viewed as reasonable. |
[10] In the present case, the Visa Officer had a number of sources by which to assess whether the applicant had the required experience as an automotive maintenance equipment servicer to comply with CCDO which requires between two to four years specific vocational preparation.
[11] In his affidavit, the Visa Officer explains that automotive maintenance equipment servicers are not responsible for repairing motor vehicles, but for repairing and adjusting the equipment used by motor vehicle mechanics to service motor vehicles.
[12] In considering whether the applicant had two years experience in his stated occupation, the Officer considered the testimony at the interview, references from his employment, and certificates in auto repair from West Valley Occupational Centre in Los Angeles.
[13] He concluded that the applicant's references did not confirm the required experience.
[14] Mr. Justice Mahoney of the Federal Court of Appeal in Lim v. M.E.I., (1991), 12 Imm. L.R. (2d) 161 (F.C.T.D.) wrote at page 163:
| Whether the appellant really was qualified to be a Personnel Officer in Canada was a pure question of fact entirely within the mandate of a visa officer to resolve. I have no doubt that the finding that he was not was not open to be disturbed by the learned trial Judge. It is clear, from the refusal letter, that the visa officer directed his mind to the proper question and that his conclusion was not patently unreasonable... |
[15] Based on the evidence submitted to the Visa Officer, I cannot conclude that he failed to direct his mind to the proper question and that his conclusion was not patently unreasonable.
[16] The application for judicial review is dismissed.
JUDGE
OTTAWA, Ontario
April 19, 1999