Date: 20021115
Docket: IMM-3344-01
Neutral citation: 2002 FCT 1188
BETWEEN:
ELENA PERELMUTER
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] This is an application for judicial review of the decision of the visa officer at the High Commission in London, England, dated June 7, 2001, wherein the visa officer refused the applicant's application for permanent residence in Canada.
[2] The applicant makes application for:
(a) an order in the nature of certiorari to quash the decision of the visa officer; and,
(b) an order in the nature of mandamus to require the Canadian High Commission in London, England to reconsider the application of the applicant in accordance with the principles of fairness and in accordance with the provisions of the Immigration Act, R.S.C. 1985, c. I-2, as amended, and the Immigration Regulations, 1978, SOR/78-172, as amended.
Background
[3] The applicant is a citizen of Israel who applied for permanent residence in Canada as an independent skilled worker under the category of Food Processing Engineer, National Occupational Classification (NOC) 2148.4.
[4] The applicant attended a personal interview at the Canadian High Commission in London, England on June 6, 2001. The decision of the visa officer was communicated to the applicant by letter, dated June 7, 2001. The visa officer assessed the applicant as a Food Processing Engineer, NOC 2148.4, as follows:
FACTOR UNITS
Age 10
Occupational Factor 05
S.V.P./Education & Training 17
Experience 00
Arranged Employment 00
Demographic Factor 08
Education 16
English 09
French 00
Bonus (Close Relative in Canada) 00
Personal Suitability 05
TOTAL 70
[5] The visa officer wrote:
Section 11(1) of the Regulations does not permit the issuance of an immigrant visa to applicants who have not been awarded any units of assessment for the factor of "experience in an occupation for which they are qualified and are prepared to follow in Canada", unless the immigrant has arranged employment in Canada and has a written statement from the proposed employer verifying that he/she is willing to employ an inexperienced person in the position in which the person is to be employed, and the visa officer is satisfied that the person can perform the work required without experience. You do not meet these requirements because you do not have the requisite one year full time work experience in your intended occupation.
[6] The applicant's application for permanent residence was denied. This is the judicial review of the decision of the visa officer.
Applicant's Submissions
[7] The applicant submits that implicit in the award of full units for the occupational factor is that the visa officer found the applicant to have met the employment requirements for Canada as set out in the NOC for a Food Processing Engineer, and to have performed a substantial number of the main duties for that occupation, including the essential ones.
[8] The applicant submits that the visa officer violated the principles of fairness and natural justice by failing to explain his concerns to the applicant and failing to give the applicant any opportunity to respond prior to making the decision.
[9] The applicant submits that the visa officer unduly fettered his discretion by taking into consideration irrelevant matters and by ignoring relevant evidence properly before him regarding the employment experience of the applicant.
Respondent's Submissions
[10] The respondent submits that there was no implicit acceptance of the applicant's experience in awarding five points for the occupational factor when read in light of the officer's explicit finding that the applicant did not "have the requisite one year full time work experience".
[11] The respondent submits that the visa officer did not implicitly accept the applicant's experience in awarding 17 points for Education and Training in light of the clear wording of the refusal letter.
[12] Issue
Does the granting of points for the Occupational Factor under the Immigration Regulation, supra render perverse the award of zero points for experience?
Relevant Statutory Provisions and Regulations
[13] Subsections 11(1) and (2) of the Immigration Regulations, supra state:
| 11. (1) Subject to subsections (3) and (5), a visa officer shall not issue an immigrant visa pursuant to subsection 9(1) or 10(1) or (1.1) to an immigrant who is assessed on the basis of factors listed in column I of Schedule I and is not awarded any units of assessment for the factor set out in item 3 thereof unless the immigrant |
11. (1) Sous réserve des paragraphes (3) et (5), l'agent des visas ne peut délivrer un visa d'immigrant selon les paragraphes 9(1) ou 10(1) ou (1.1) à l'immigrant qui est apprécié suivant les facteurs énumérés à la colonne I de l'annexe I et qui n'obtient aucun point d'appréciation pour le facteur visé à l'article 3 de cette annexe, à moins que l'immigrant: |
| (a) has arranged employment in Canada and has a written statement from the proposed employer verifying that he is willing to employ an inexperienced person in the position in which the person is to be employed, and the visa officer is satisfied that the person can perform the work required without experience; or (b) is qualified for and is prepared to engage in employment in a designated occupation. (2) Subject to subsections (3) and (4), a visa officer shall not issue an immigrant visa pursuant to section 9 or 10 to an immigrant other than an entrepreneur, an investor, a provincial nominee or a self-employed person unless (a) the units of assessment awarded to that immigrant include at least one unit of assessment for the factor set out in item 4 of Column I of Schedule I; (b) the immigrant has arranged employment in Canada; or (c) the immigrant is prepared to engage in employment in a designated occupation. |
a) n'ait un emploi réservé au Canada et ne possède une attestation écrite de l'employeur éventuel confirmant qu'il est disposé à engager une personne inexpérimentée pour occuper ce poste, et que l'agent des visas ne soit convaincu que l'intéressé accomplira le travail voulu sans avoir nécessairement de l'expérience; ou b) ne possède les compétences voulues pour exercer un emploi dans une profession désignée, et ne soit disposé à le faire. (2) Sous réserve des paragraphes (3) et (4), l'agent des visas ne délivre un visa en vertu des articles 9 ou 10 à un immigrant autre qu'un entrepreneur, un investisseur, un candidat d'une province ou un travailleur autonome, que si l'immigrant: a) a obtenu au moins un point d'appréciation pour le facteur visé à l'article 4 de la colonne I de l'annexe I; b) a un emploi réservé au Canada; ou c) est disposé à exercer une profession désignée. |
Analysis and Decision
[14] Issue
Does the granting of points for the Occupational Factor under the Immigration Regulations, supra render perverse the award of zero points for experience?
The visa officer awarded the applicant five units of assessment for the occupational factor and zero units of assessment for experience. In Dauz v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 1307 (QL) F.C.T.D., Sharlow J. (as she then was) made the following remarks at paragraphs 5 to 7 and paragraph 12:
. . . The more important question is how the visa officer came to conclude that the applicant was not entitled to any units for experience. Counsel for the applicant argues that her conclusion in this regard is wrong in fact and law, and perverse. His argument is tied to the relationship between experience and occupational factor.
In assessing the occupational factor, the visa officer was required to ask herself what the employment opportunities are in Canada in the occupation:
(a) for which the applicant meets the requirements for Canada as set out in NOC,
(b) in which the applicant has performed a substantial number of the main duties as set out in NOC, including the essential ones; and
(c) that the applicant is prepared to follow in Canada.
The visa officer awarded the maximum 10 units under the occupational factor. From that I must infer that she concluded that the applicant meets the NOC qualifications for employment as a computer system analyst including the educational requirements. I must also infer that she concluded that the applicant had performed a substantial number of the main duties of a computer system analyst as set out in NOC 2162, including the essential ones. How then could the visa officer have given the applicant no units for experience?
. . .
The applicant had given the visa officer some evidence that he had relevant experience. His computer-related experience consisted of over one year with Arksystems Inc. and over one year with Panama Goldencare Foundation Inc. Evidence relating to one or both of these jobs must have provided the visa officer with a sufficient basis to award the applicant 10 points for the occupational factor for NOC 2162. To conclude that the same evidence did not prove that he had at least one year of experience related to NOC 2162 makes no sense.
[15] In order to award units of assessment under the occupational factor, the visa officer would have to have concluded that the applicant performed a substantial number of the main duties of a Food Processing Engineer. This in turn would require a finding that the applicant had some experience as a Food Processing Engineer, unless that experience was for less than one year.
[16] The visa officer calculated the amount of the applicant's work experience as a Food Processing Engineer for the following periods:
June 20, 1992 to September 9, 1992
March to September, 1995
The visa officer then concluded that the applicant had less than one year of work experience. A review of the CAIPS notes show that the applicant's work experience as an engineer was for the periods June 1992 to November 1992 and March 1995 to September 1995. A review of the applicant's application shows the work experience as an engineer to be 06/92 to 11/92 and 03/95 to 09/95.
[17] One possible conclusion from the periods worked would be:
Periods Worked Number of Months Worked
June 1992 to November 1992 6
March 1995 to September 1995 7
This would give the applicant 13 months experience. Thus, she would have more than one year of experience and could qualify for units of assessment for experience. This conclusion is reached by counting the applicant as having worked throughout the entirety of the months named. This is possible because it is not indicated on what days of the months the applicant started and ended her employment. I am not satisfied from the record that the applicant did not work and gain experience totalling 13 months. That being the case, the visa officer erred in awarding zero units of assessment for the experience factor, after awarding five units of assessment for the occupational factor.
[18] The respondent submitted that the computer automatically sets five units of assessment for the occupational factor and the visa officer should have changed this to zero units for the occupational factor. There is nothing in the record to establish this was the case.
[19] The application for judicial review is allowed.
[20] The parties shall have one week from the date of this decision to submit any proposed serious question of general importance for my consideration for certification and a further three days to submit any comments on the other party's proposed question.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
November 15, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3344-01
STYLE OF CAUSE: ELENA PERELMUTER
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Tuesday, September 10, 2002
REASONS FOR ORDER O'KEEFE J.
DATED: Friday, November 15, 2002
APPEARANCES:
Mr. Michael Kishinevsky
FOR APPLICANT
Mr. Marcel Larouche
FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Micahel Kishinevsky
Suite 219
1600 Steeles Avenue West
Concord, Ontario
L4K 4M2
FOR APPLICANT
Department of Justice
Suite 3400, Box 36
130 King Street West
Toronto, Ontario
M5X 1K6
FOR RESPONDENT
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20021115
Docket: IMM-3344-01
BETWEEN:
ELENA PERELMUTER
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER