Date: 20020221
Docket: IMM-164-01
Neutral citation: 2002 FCT 190
Toronto, Ontario, Thursday, the 21st day of February, 2002.
PRESENT: The Honourable Mr. Justice Campbell
IN THE MATTER OF The Immigration Act, 1976, The Immigration Regulations, 1978 and amendments thereto
AND IN THE MATTER OF the application, and its refusal, for permanent residence in Canada of Michael Horace
BETWEEN:
MICHAEL HORACE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] In the present case, the Applicant applied for permanent residence in Canada under the job category of "Computer Programmer", National Occupation Classification ("NOC") 2163. After an interview, the Visa Officer determined that the Applicant did not have the requisite experience as a computer programmer and instead assessed the Applicant as a Computer Operator. Under the new occupation category, the Applicant failed to achieve the necessary points to gain permanent residence and the Visa Officer refused the application. The Applicant seeks judicial review of this decision.
[2] The Applicant has a Bachelor's degree in Commerce and a one year diploma in Computer Programming. At the time of his interview, the Applicant had been employed as a Business Programmer with the same company for 5 years. His duties included the development, modification and application of computer programs and packages relating to accounts, billing, inventory, customer records and reports.
[3] After conducting the interview, the Visa Officer concluded that the Applicant had not accumulated at least one year of experience as a computer programmer. This resulted in an assessment of 0 units under the Experience Factor. Section 11(1) of the Immigration Regulations (the "Regulations"), 1978, prohibits visa officers from awarding visas to applicants who fail to earn at least one point in this factor. Consequently, the Visa Officer considered the Applicant in the alternate category of Computer Operator.
[4] Despite being awarded 76 points on an initial paper assessment, the Visa Officer awarded the Applicant 58 points. Pursuant to s.9 of the Regulations, because the Applicant failed to obtain at least 70 units of assessment, the minimum number required to comply with the selection criteria, the application was refused.
[5] The central issue in this judicial review is whether the Visa Officer erred in her assessment of the Applicant's work experience as a computer programmer. In my opinion, the answer is yes.
[6] In my opinion, the Visa Officer erred in concluding that the Applicant did not have the requisite experience as a computer programmer. In the refusal letter, the Visa Officer stated as follows:
Based on the interview and the materials submitted, I am not satisfied that your experience relates to that of a Computer Programmer. You were unable to answer many questions related to computer programming at the interview. Therefore, I could not award you any points for your experience in that occupation.
[7] The above passage indicates that the Visa Officer's decision was based on the information gathered during the interview, in particular, the Applicant's inability to answer questions related to the field, and the materials submitted with the application. In reviewing these two sources of information, in my opinion, the Visa Officer's decision was not supported by the evidence before her.
[8] The Visa Officer's CAIPs notes indicate that during the interview the Applicant confirmed that he was employed as a Business Programmer who is responsible for developing and modifying his inventory, sales, billing and accounts programs using the programming language of Visual Basic. The Visa Officer asked the Applicant several questions relating to computer programming. Out of approximately 12 questions, the Visa Officer seemed dissatisfied with approximately four answers. In her CAIPs notes, the Visa Officer concluded as follows:
Find his knowledge is okay, lacking in some areas and not very current in terms of the requirements of the North American computer programming job market.
[9] Despite the high proportion of satisfactory answers to her questions and her characterization as the Applicant's knowledge as being "okay", in the refusal letter, the Visa Officer concluded that the Applicant was unable to answer "many questions".
[10] The Visa Officer also expressed concern during the interview that the Applicant's main duties were as a computer operator. The Visa Officer recalls the Applicant admitting that he had only done three to four months of programming. In her affidavit, the Visa Officer stated the following:
When I probed his experience further in discussion, it became clear that the Applicant's computer programming experience was limited to the development of inventory and cash flow accounts. The Applicant confirmed that it took him three to four months in total to develop the inventory and cash flow accounts, and that this was the only computer programming he had done at his work.[Respondent's Record, p.4]
Based on this response, the Visa Officer concluded that the Applicant did not even have one year of computer programming experience.
[11] The Applicant submits that the Visa Officer erred in regards to this specific point. The Applicant recalls informing the Visa Officer that it took him approximately three to four months to develop each application:
She put a specific question to me "Actually how much time have you worked in developing the programs". My answer was "About three to four months for each program". [Applicant's Affidavit, Applicant's Application Record, p.8]
[12] In light of the supporting materials submitted by the Applicant, in my opinion, the discrepancy may be considered a misunderstanding on the Visa Officer's part. In addition to personally outlining his responsibilities, the Applicant's resume, and the materials from his employer confirm the extent of his programming duties. A letter from his employer confirms that the Applicant is "responsible for developing, monitoring, and modifying Computer Programmes and Packages related to the operational and control functions of the company". His primary role as a computer programmer is confirmed in both his job title as a Business Programmer and the verification provided by his employer. This documentation was before the Visa Officer and verified that the Applicant had performed computer programming duties for over 5 years.
[13] Consequently, I find that the Visa Officer's conclusions cannot be supported by the evidence, and thus, her decision is made in reviewable error.
ORDER
1. Accordingly, I set aside the Visa Officer's decision and refer this matter to a different Visa Officer for reconsideration.
"Douglas R. Campbell"
J.F.C.C.
Toronto, Ontario
February 21, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-164-01
STYLE OF CAUSE: MICHAEL HORACE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
DATE OF HEARING: THURSDAY, FEBRUARY 21, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: THURSDAY, FEBRUARY 21, 2002
APPEARANCES BY: Mr. Mario Bellissimo
For the Applicant
Ms. Mary Matthews
For the Respondent
SOLICITORS OF RECORD: HAYNES BELLISSIMO
Barristers & Solicitors
900-970 Lawrence Avenue West
Toronto, Ontario
M6A 3B6
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020221
Docket: IMM-164-01
BETWEEN:
MICHAEL HORACE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER