Date: 20040123
Docket: IMM-1404-02
Citation: 2004 FC 105
Ottawa, Ontario, the 23rd day of January 2004
Present: THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
DENZIL & MELBA D'SOUZA
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act[1] and to section 72 of the Immigration and Refugee Protection Act[2] of a decision of a Visa Officer dated February 25, 2002, wherein she dismissed the Applicants' application for
permanent residence status pursuant to subsections 8(1) and 10(1) of the Immigration Regulations.[3]
[2] The Applicant seeks:
An Order for a Writ of Certiorari quashing the decision of the Visa Office in New York, dated February 25, 2002, refusing the Applicants' application for permanent residence in Canada;
An Order for a Writ of Mandamus directing that the Respondent consider and process the Applicants' application for Permanent Residence in Canada in accordance with the Immigration Act, and the Immigration Regulations, 1978, to wit:
The Applicant's "experience" and "occupation factor" (contained in Schedule 1, column 1, of the Immigration Regulations) for Permanent Residence in Canada be reassessed at a different visa office, or by a different visa officer, or both;
In the event the Respondent develops concerns in regard to the Applicants' application the Respondent apprise the Applicants of such concerns in such a way as to afford the Applicants an opportunity to disabuse the Respondent of such concerns;
Costs of this application;
Such other relief as this Honourable Court may deem just and equitable in the circumstances.[4]
[3] Pursuant to subsection 18(1) of the Act, the Court has the jurisdiction to set aside and remit the matter back to a different visa officer.
[4] Pursuant to subsection 350(3) of the Immigration and Refugee Protection Regulations,[5] where an application for permanent residence is remitted to a visa officer, it is automatically assessed under the Immigration Act[6] and under IRPA.
[5] It is for the Respondent and not the Court to apprise the Applicant of any concerns it may have in such a way as to afford the Applicant an opportunity to disabuse the Respondent of those concerns; and it is the Respondent that is best placed to determine how it should alert the Applicant of its concerns.
[6] Finally, costs in immigration matters are awarded only where there are special reasons for doing so, pursuant to section 22 of the Federal Court Immigration and Refugee Protection Rules.[7] In this case, there is nothing special which warrants the award of costs.
[7] The Respondent seeks that the Court dismiss the application for judicial review.[8]
BACKGROUND
[8] The Applicants applied as assisted relatives for permanent residency status. The principal Applicant asked to be assessed under the occupation of Computer Hardware Specialist/Computer Communications Technician, NOC 2241.1.[9]
DECISION UNDER REVIEW
[9] The Visa Officer gave the principal Applicant 0 units for experience and he received a total of 62 units.[10]
ISSUES
[10] Did the Visa Officer misapply the requirements for the occupation of Computer Hardware Specialist/Computer Communications Technician?
[11] Did the Visa Officer ignore evidence of the Applicant's experience when she awarded him "i" points for the occupation of Computer Hardware Specialist/Computer Communications Technician?
ANALYSIS
Did the Visa Officer misapply the requirements for the occupation of Computer Hardware Specialist/Computer Communications Technician?
[12] The Respondent submits that by reading the CAIPS notes, the decision and the affidavit, it is clear that the Visa Officer assessed the Applicant under his intended occupation. In her CAIPS notes, the Respondent submits, the Visa Officer stated that the Applicant would be assessed as a "Computer Communications Technician." A reference is found to a technician rather than a technologist, however, that reference is in notes taken on December 7, 2000.[11] The notes are followed, as are all CAIPS notes, by the initials of the person who has written them, and the date.[12] The initials attached to these notes are "L.T.",[13] whereas the initials of the Visa Officer who interviewed the Applicants and who attested the affidavit for the purpose of this hearing are "S.T.". Thus, it was a different Visa Officer who identified the principal Applicant's job title as "Computer Communications Technician."
[13] In contrast, all the CAIPS notes written by "S.T." refer to a Computer Communications Technologist, not Technician. For instance, at one point the Visa Officer compares the job duties, as described in the NOC for a Technologist, one by one with the Applicant's experience and states that he has no experience.[14] She does not do the same, however, with the description of the job duties of a Technician. Based on the CAIPS notes, the Court concludes that the Visa Officer did not review whether the Applicant had the experience of a Computer Communications Technician.
[14] The affidavit does not dispel this finding. Firstly, the Visa Officer states:
I advised the Applicant that, from his letters of reference and from his explanation of the duties that he had performed, I was not satisfied that he was qualified, or had work experience as a Computer Hardware Specialist or a Computer Communications Technician, NOC 2241.1. I asked him to respond but he provided no valid explanation that satisfied me.[15]
In fact, during the interview, according to the CAIPS notes, she referred repeatedly to the occupation as a Technologist and not as a Technician. The fact that the Visa Officer does not accurately relay what is in the CAIPS notes in her affidavit is considered significant.
[15] Furthermore, at no point in the affidavit does the Visa Officer state that she assessed the Applicant as both a Technologist and a Technician. Instead, she simply states that she reviewed whether the Applicant had: "performed a substantial amount of the main duties including the essential ones as they appear under the NOC."[16] She does state that the Applicant did not have "experience as a computer hardware specialist or a computer communications technician or technologist." It is not clear from this statement, however, whether she saw "computer communications technician or technologist" as one job with two names or two jobs.
[16] In her decision the Visa Officer does state: "You were assessed based on the requirements for the following occupation Computer Hardware Specialist/Computer Communications Technician, NOC 2241.1".[17] However, this statement cannot be read in isolation. The fact that on one occasion the Visa Officer correctly identified the Applicant's job title, does not mean that the Visa Officer had assessed the Applicant under that title.
[17] The CAIPS notes establish that the Visa Officer only assessed the Applicant as a Computer Technologist and not as a Computer Technician and the affidavit does not counter this finding. Thus, the Visa Officer erred by not providing a complete assessment. The decision should be set aside on this issue.
Did the Visa Officer ignore evidence of the Applicant's experience when she awarded him "i" points for the occupation of Computer Hardware Specialist/Computer Communications Technician?
[18] The Visa Officer appears to have ignored the material evidence when she awarded the Applicant "i" points for experience in the occupation of Computer Hardware Specialist/Computer Communications Technician.[18]
[19] In an era of specializations and sub-specializations, where individuals are more or less articulate, occasionally with interpreters, and if not, often groping for vocabulary, the precision of the questions to be asked (by visa officers-assessors, without their unintentionally providing the answers that would discredit the purpose of the assessment), is key to the process; only then can the answers sought determine whether the skills required by Canada are met by the respective individuals. It is in each such interview and subsequent assessment, based on the responses given and the documentary substantiation received from individuals assessed, that the future of Canada's needs is met (one skilled individual at a time), being added to our population. It stands to reason that the programs and point-systems, thus, in place, are only as reliable as those who assess the individuals one by one. That is an onerous and multiple task, with heavy responsibility, as is exemplified in this individual case.
CONCLUSION
[20] The Visa Officer committed a reviewable error. The application for judicial review is allowed.
ORDER
THIS COURT ORDERS that the matter be sent back for redetermination.
___________________
"Michel M.J. Shore"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1404-02
STYLE OF CAUSE: DENZIL & MELBA D'SOUZE v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 15, 2004
REASONS FOR ORDER
AND ORDER BY: The Honourable Mr. Justice Shore
DATED: January 23, 2004
APPEARANCES:
Max Chaudhary FOR THE APPLICANT
Allison Phillips FOR THE RESPONDENT
SOLICITORS OF RECORD:
CHAUDHARY LAW OFFICE FOR THE APPLICANT
North York, Ontario
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada
[1]R.S.C. 1985, c. F-7 [the "Act"].
[2]S.C. 2001, c. 27 ["IRPA"].
[3]1978 (SOR/78-172).
[4]Applicant's Application Record, Tab 1, Notice of Application at 3.
[5]SOR/2002-227 as amended by SOR/2003-383 ["IRPR"].
[6]R.S.C. 1985, c. I-2.
[7]SOR/93-22.
[8]Respondent's Memorandum of Fact and Law at 10, para. 19.
[9]Certified Tribunal Record, Letter from Visa Officer to Applicant at 3.
[10]Supra at 4.
[11]Certified Tribunal Record, CAIPS notes at 7.
[12]Affidavit of Visa Officer, 4, para. 12.
[13]Certified Tribunal Record, CAIPS notes at 7.
[14]Certified Tribunal Record, CAIPS notes at 7.
[15]Affidavit of Visa Officer at 6, para. 18.
[16]Specifically, Sidhu v. Canada (M.C.I.), [2000] F.C.J. No. 1220 (T.D.) (QL).
[17]Supra at 6, 7, paras. 17, 22.
[18]Burdziak v. Canada (M.C.I.), [1999] F.C.J. No. 1742 (T.D.) (QL).