Date: 20000202
Docket: IMM-1035-99
BETWEEN:
MOHAMMAD ABDUL HANNAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED, J.:
[1] This is an application for judicial review of a visa officer's decision refusing to issue the applicant a visa for permanent residence.
[2] As so often happens in these cases, the determination of the difference between the parties depends upon an assessment of contradictory evidence given by the applicant and the visa officer, as to what occurred at the visa officer's interview of the applicant.
[3] The refusal letter that was sent to the applicant stated that he was not qualified as a computer programmer, and that he had no experience in that field. He was awarded 70 points, the number of points that would normally entitle a person to a visa. However, because he was assessed zero points in the experience category he could not be issued a visa - the relevant legislative provisions so provide.
[4] The applicant says the visa officer told him he was not qualified as a computer programmer because his BSc degree from Karachi was only a two year degree and this did not equate to a Canadian degree. A discussion of the relevant regulatory provisions is found in Azim v. The Minister of Citizenship and Immigration (IMM-4064-98, January 26, 1999). The applicant says the visa officer asked him only one question about his experience as a computer programmer, and that was to ask about one of his letters of reference that described him as a computer operator, not a computer programmer.
[5] The visa officer says her concern about the two year degree was not expressed in reference to his qualifications, as a computer programmer, or lack thereof, but in reference to the assessment she was making of his educational level. Since his degree was a two year degree, under the relevant regulation he would be given 13 not the 15 points for the Education Factor (Immigration Regulations, 1978, Schedule I, Factor 1.(1)(c) and (d)). The visa officer also asserts that she asked the applicant questions about the applicant's experience as a computer programmer, and his answers did not persuade her that he had worked in that occupation.
[6] When this kind of difference arises, and particularly when the respective description must be evaluated on the basis of cross-examination transcripts, one looks for evidence that predates the dispute between the parties, to see if there is something that supports one or the other side's version of what occurred.
[7] The visa officer's CAIPs notes read:
| EDUCATION: |
| 1) board of secondary education - secondary in 76 |
| 2) higher secondary in 78 |
| 3) univ of Karachi, BSC in 82. Says it was a 2 yr course. Mark sheets not provided. Says studied math, statistics, urdu. |
| 4) petroman (division of Enar Petrotech Services Ltd) completed cert of advance training in computer science. FM Oct/84 to Dec/85. |
| (one yr course) has his marks and subjects he studied. |
| 5) sind board of technical education - petroman taining [sic] institute Karachi - 1200 hrs cert of advance training in computer science exam Apr/87. |
| Subj indicates after they finish the course they have to have the exam with the board. |
| For education as BSC is 2 yr course cannot award him 15 points for education. Gets 13 points. |
| WORK: |
| 1) Seasonmaster Engineering Ltd. in Karachi - Computer Programmer FM Jan-Dec/86. |
| 2) Pakshaheen container serv in Karachi - Jan/87 to May/88 as computer operator on multitech. |
| 3) Sindh Katchi Aabadis authority, govt of Sindh in Karachi - data processing officer since 88. Letter dated 94. |
| 4) Global Network Services in Revere, MA - as contractor through computer merchant FM Mar-Oct/98. |
| FUNDS: |
| Bank Boston US$21,500 as of Jan 12/99. Used to have 8-10k |
| FBI PC on file - no record. |
| Pays taxes in the USA in 95 for W2 for Everest Food Services. Also for 96. 97 for choice courier systems. He says he works as a courier. |
| NOC 2163 employment requirements is bachelors degree in computer science or significant programming component such as math, comm or bus admin. He has only a 2 yr degree not equivalent to a bachelors degree for cdn standards or completion of college program in computer science. His cert is not FM a college. Furthermore I do not see by his letters of reference that he has worked as a programmer, but even if he has he does not meet the requirements for cdn standards. |
| Advised that his appl is refused and the reasons for refusal and that I will confirm in writing ASAP and request ROLF refund. [Underlining added.] |
[8] The applicant argues that the last paragraphs of the CAIPs notes record the visa officer's reasons for the decision she rendered, and show that the applicant's description of the reasons given to him for the refusal were as he states. Counsel for the respondent argues that relying on the CAIPS notes in this way is to give them a status that they were never intended to fulfil. Counsel argues that those notes are necessarily incomplete, and that the refusal letter sets out the visa officer's reasons for refusing the visa, not her CAIPs notes. The refusal letter states that the applicant was not qualified and he had no experience. (I note that counsel's position as to the status of CAIPs notes differs from that taken by different counsel for the respondent in another case - see Qui v. Canada (Minister of Citizenship and Immigration) (IMM-1022-99, January 28, 2000).
[9] In the present case the visa officer's CAIPs notes support the applicant's assertion that she found him not to be qualified as a computer programmer because his BSc degree was only a two-year degree.
[10] Counsel for the respondent notes that the visa officer, when cross-examined on her affidavit, stated that she remembered asking the applicant questions about his experience. She indicated he never mentioned any computer language, nor doing any programming. At the same time, she could not remember whether, in the months preceding her cross-examination, she had interviewed any other applicants who were applying as computer programmers, although she thought she had. She also could not remember whether she had interviewed any such applicants before or after she interviewed this applicant. Her response to many of counsel's question was that she must have asked questions of a given type because it is her practice to do so.
[11] I have no doubt that it must be very difficult for visa officers to remember the details of interviews months after they have occurred. In Parveen v. Canada (Minister of Citizenship and Immigration) (IMM-3587-98, April 9, 1999), I commented on this difficulty:
| [10] ... Visa officers deal with many applications, one can expect that they will not have as precise a memory of the event as does the applicant. I am not prepared to adopt the approach that counsel for the respondent seemed to be suggesting, that is, that visa officers have no interest in these applications, therefore, their version should be believed when it conflicts with that of an applicant. Once a visa officer's decision is challenged that person has an interest in justifying his or her decision. This is an entirely natural reaction. At that point the visa officer is not a disinterested person. |
[12] The NOC description of the qualifications required for a computer programmer are:
| " A bachelor's degree in computer science or in another discipline with a significant programming component, such as mathematics, commerce or business administration |
| or |
| Completion of a college program in computer science is usually required. |
| . . . |
[13] The applicant presented the visa officer with documents indicating that after university he had taken a one-year course in "Advanced Training in Computer Sciences". This was given by a private institution but recognized by a government educational board (exams were written for the latter purpose).
[14] When the visa officer was asked how she had evaluated this training and whether it was equivalent to that required by NOC, she repeatedly answered that the training had been given by an institute, not a college. She indicated that it was possible to check with the Islamabad visa office as to whether the institute appeared on its list, which contains the names of training facilities treated as equivalent to college training, but she had not done so. She was convinced that the course in question was not of the required type. In any event, it is clear from the CAIPs notes that the focus of her decision was on the applicant's qualifications.
[15] The visa officer's decision with respect to both the applicant's qualifications and his lack of experience may be correct, but I must assess the decision she made on the basis of the material that is on the record before me. I agree with the visa officer's comment that it would be preferable if the interviews they conduct of applicants were recorded on tape. I think it would be fairer to visa officers and to applicants.
[16] In this case, for the reasons set out above, I conclude that the visa officer's decision that the applicant lacked qualifications was based on the fact that his BSc degree was a two-year degree, and that this is an error in law. Accordingly, the decision will be set aside and the applicant's visa application referred back for reconsideration by another visa officer.
Judge
OTTAWA, ONTARIO
February 2, 2000