Date: 20000912
Docket: IMM-5927-99
TORONTO, ONTARIO, THIS 12th DAY OF SEPTEMBER 2000
| PRESENT: THE ASSOCIATE CHIEF JUSTICE |
BETWEEN:
DONA INOKA WASANTHI GAMAGE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
UPON the applicant's application for judicial review of the visa officer's decision, dated October 14, 1999, which refused her application for permanent residence;
UPON review of the parties' written submissions and the hearing of August 30, 2000 in Toronto, Ontario;
IT IS HEREBY ORDERED THAT:
| 1. This application for judicial review is granted. |
2. The decision of the visa officer dated October 14, 1999 is set aside and the applicant's application for permanent residence is referred for redetermination by a different visa officer.
"Allan Lutfy"
A.C.J.
Date: 20000912
Docket: IMM-5927-99
BETWEEN:
DONA INOKA WASANTHI GAMAGE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY A.C.J.
[1] The applicant applied for permanent residence in Canada as an independent immigrant with the intended occupation of computer systems analyst (N.O.C. 2162). Her application was processed in the Canadian High Commission in Colombo, Sri Lanka, where she resides. The applicant was awarded sixty-five units of assessment or five less than the required minimum of seventy units.
[2] In this application for judicial review, the applicant challenges the visa officer's assessment under the factors of personal suitability and experience.
[3] Under personal suitability, the visa officer is to assess the applicant's chances of becoming successfully established in Canada based on the person's adaptability, motivation, initiative, resourcefulness and other similar qualities.
[4] The applicant argues that the visa officer erred by failing to consider "motivation" as a general personality trait. The applicant relies substantially on one answer in the visa officer's cross-examination when she stated: "... I did look at motivation in terms of why does the particular applicant wish to immigrate to Canada". In my view, however, this extract does not do justice to the factors which the visa officer in fact considered according to her CAIPS notes and the other responses in her cross-examination.
[5] In her CAIPS notes, the visa officer explained her assessment of the applicant's personal suitability in these terms:
| HAS COMMUNICATED WITH SOME PROSPECTIVE EMPLOYERS IN CDA THRU EMAIL. NO RESPONSES YET. |
| LITTLE KNOWLEDGE ABOUT CDA. SAYS SHE DOES NOT KNOW MUCH ABOUT CDA. DOES NOT KNOW HOW MANY PROVINCES ARE THERE. THINK FRENCH IS THE OFFICIAL LANGUAGE. [THE APPLICANT] DOES NOT APPEAR TO BE PARTICULARLY A MOTIVATED AND AN INITIATIVE PERSON. HAS OBVIOUSLY FAILED TO FIND OUT ABOUT THE COUNTRY SHE PROPOSES TO SPEND HER FUTURE IN. AVERAGE FUNDS. |
| EARNS 4 UNITS FOR PERSONAL SUITABILITY. |
[6] During her cross-examination, the visa officer explained in greater detail her relatively low assessment for personal suitability. The applicant stated a single reason for desiring to move to Canada, namely, "for better prospects". This response did not give the visa officer the impression that the applicant had a continuing desire to establish herself in Canada. She had limited information concerning Canada. The visa officer added that she was not satisfied with the state of the applicant's preparation for migrating to Canada. She also considered that the applicant had not been sufficiently proactive in finding employment in Canada.
[7] The extent to which an applicant researches Canada is indicative of one's motivation: Wang v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 926 (T.D.). Similarly, steps taken by an applicant to find work in Canada are indicative of the person's motivation and initiative: Yin v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1078 (T.D.).
[8] The visa officer's first response relied upon by the applicant, supra paragraph 4, was narrow in its scope and may have suggested a misinterpretation of "motivation". However, on the basis of her CAIPS notes and other statements in cross-examination, I am satisfied the visa officer considered motivation as a personality trait. While the visa officer was not impressed sufficiently to award more than four units for personal suitability, the applicant has not established any reviewable error on this issue.
[9] The applicant's second argument is that the visa officer mischaracterized her work experience as a computer systems analyst. For reasons which differ somewhat from those advanced by the applicant, I find this submission more persuasive.
| [10] The National Occupational Classification lists the main duties of a computer systems analyst, some or all of which the person must be able to perform. Some of these duties are managerial, supervisory and client related. Others are more specifically descriptive of the functions of a computer programmer. To understand better the visa officer's decision, it is useful to set out the N.O.C. description of the main duties of a computer systems analyst: |
| . Confer with clients regarding the nature of the information processing or computation needs a computer program is to address |
| . Analyze these needs into related components which can be solved through the application of computer technology |
| . Write requirement specifications for computer programs, identifying the steps in the program and the algorithms to be employed |
| . Communicate program specifications to computer programmers |
| . Test and implement computer programs and provide user training |
| . Plan and implement computer security systems for database access control |
| . Analyze and develop database directories and generate and maintain databases |
| . Analyse databases |
| . May supervise computer programmers or other systems analysts or serve as project leaders for particular systems projects. |
| [11] For the two-year period beginning in 1994, the visa officer awarded the applicant four units of assessment under the experience factor. For this reason alone, counsel for the respondent properly conceded that the visa officer must have been satisfied the applicant met the N.O.C. requirements for computer systems analyst. |
| [12] Concerning the subsequent years, when the applicant continued to work in the computer software industry with other entities, the visa officer seems to have characterized her functions as managerial and, as a result, did not credit her with additional units of assessment for experience. The visa officer explained her position in her CAIPS notes: |
| [THE APPLICANT] DOES NOT APPEAR TO BE DOING THE DUTIES OF A SYSTEMS ANALYST OR AT LEAST THOSE OF A COMPUTER PROGRAMMER DURING MOST OF THE POSITIONS HELD OR BEING HELD AT PRESENT. SHE IS MOSTLY DOING THE DUTIES OF A MANAGER/SUPERVISOR OF IT STAFF. HOWEVER, SHE APPEARS TO HAVE HAD SOME EXPERIENCE DURING HER TENURE AT THE USAID. I WILL GIVE HER THE BENEFIT OF THE DOUBT AND AWARD HER POINTS FOR EXPERIENCE FOR THIS PERIOD. |
| [13] Counsel for the respondent, despite her able presentation, could not explain how the visa officer could properly assess the applicant as a computer systems analyst for two years and yet ignore her subsequent experience in related work areas because her functions were better described as those of a manager and not a computer programmer. The N.O.C. for computer systems analyst includes duties, some of which are managerial, and others which more specifically relate to computer programming. The applicant is not required to perform all of these functions at the same time. |
| [14] In my respectful view, on the record before me, it was incongruous for the visa officer to accept the applicant's qualifications as a computer systems analyst for the early years of her employment and then not credit her subsequent work experience because she had progressed to managerial positions beyond computer programming. The N.O.C. duties include both functions. The visa officer's conclusion of fact on this issue was made in a perverse manner and constitutes a reviewable error. |
| [15] Accordingly, once the visa officer concluded the applicant was qualified as a computer systems analyst earlier in her career, she should have awarded the maximum six units of assessment under work experience. As a result, the applicant would have earned sixty-seven units of assessment, still three short of the required minimum. |
| [16] The applicant's consultant had also requested the visa officer to exercise her positive discretion, pursuant to subsection 11(3) of the Immigration Regulations, 1978, SOR/78-172, where the number of units of assessment may not properly reflect the person's chances of becoming successfully established in Canada. The visa officer refused to do so for the reasons set out in her CAIPS notes: |
| ALTHOUGH [THE APPLICANT'S] CONSULTANT HAS REQUESTED EXERCISE OF POSITIVE DISCRETION, I AM NOT OF THE OPINION THAT THIS APPLICANT MERITS SUCH CONSIDERATION SINCE A) SHE DOES NOT APPEAR TO BE WELL QUALIFIED AND EXPERIENCED IN THE OCCUPATION SHE WISHES TO FOLLOW IN IN [SIC] CDA (OR IN ANY RELATED OCCUPATIONS) B) EARNS LESS THAN AVERAGE PERSONAL SUITABILITY. NO OSTENSIBLE SUPPORT TO FIND EMPLOYMENT OR SETTLE DOWN IN CDA. |
| [17] The applicant's limited success in this application for judicial review might not warrant setting aside the visa officer's decision. However, the visa officer's refusal to exercise the positive discretion available to her under subsection 11(3) was very closely linked with her views of the applicant's work experience. It is not for this Court to determine whether the applicant meets the requirements of a computer systems analyst, and I make no finding on this point. However, the error in the visa officer's analysis under the experience factor necessarily affected the exercise of her discretion under subsection 11(3). Accordingly, fairness dictates that her decision be quashed and the matter referred for redetermination. |
| [18] Neither parties suggested the certification of a serious question. |
| "Allan Lutfy" |
| A.C.J. |
| Ottawa, Ontario |
| September 12, 2000 |