Date: 20010206
Docket: IMM-3848-99
Citation: 2001 FCT 29
BETWEEN:
LYUBOV KAPUSTYNSKA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
O'KEEFE J.
[1] This is an application for judicial review pursuant to subsection 82.1 of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") of a decision of a visa officer in which the request of the applicant for permanent residence in Canada was not approved. The applicant seeks an order quashing the decision of the visa officer and referring the matter back for redetermination.
Background Facts
[2] The applicant is from the city of Ternopil in the Ukraine. She had obtained a degree in Architecture from the Leninski Komsomol Politechnical Institute at the University of Liviv in 1983, a degree assessed as being comparable to a Bachelor of Architecture from a Canadian university. She had been employed by the Main Department of Architecture and City Building of Ternopil, the Regional Executive Committee, and had been responsible for the planning and development of new urban growth in the city. This had involved responsibilities for development of both residential and commercial areas and the creation of community facilities such as hydro electric power, water and sewage, natural gas and cable. Her work also involved the development of long term policy objectives related to land use planning for the city.
[3] The applicant (with her then15 year old daughter) had made application for permanent residence in Canada in Buffalo on February 12, 1998. The application had been paper-screened there and the file transferred to the Canadian Consulate General, Detroit, for further processing. An interview was conducted by the visa officer on June 23, 1999. The visa officer's decision was made on June 25, 1999 and communicated to the applicant on July 9, 1999. On the application for permanent residence, the applicant listed her present occupation as architect but indicated that her intended occupation in Canada was as an Urban and Land Use Planner.
The Visa Officer's Decision
[4] After stating that the applicant's application for permanent residence had not been approved, the visa officer explained that the assessment had been made in accordance with the established criteria for determining whether the applicant would likely become successfully established in Canada. Among the enumerated factors considered were the existing demand for the occupation specified, that of an Urban and Land Use Planner, along with the current general employment situation in Canada.
[5] The assessment as an Urban and Land Use Planner was as follows, the contentious factors emboldened:
| Age 10 |
| Occupational Factor 01 |
| Education/Training Factor 17 |
| Experience 00 |
| Arranged Employment 00 |
| Education 15 |
| Demographic Factor 08 |
| English 06 |
| French 00 |
| Bonus 00 |
| Personal Suitability 06 |
| TOTAL 63 |
The applicant was informed that, in her independent category, she must achieve a minimum total of 70 points in order to be approved. According to the applicant's description of her work activities, she had not achieved at least a year of experience in the category of Urban and Land Use Planner as defined in the National Occupational Classification (NOC). This zero rating in the matter of experience was an automatic barrier to a successful application.
[6] The visa officer then considered the application under the intended occupation of architect in order to assess if she might be qualified and experienced under that work category. This assessment also fell short of the required 70 points. Since no other occupation had been indicated, no other category had been assessed.
[7] The visa officer stated that "All factors were considered together with no single factor being responsible for the decision." The outcome of the assessment showed that the applicant would not likely become permanently and readily established in Canada.
Issues
[8] Two main issues have been identified:
Issue 1
1. Did the visa officer base her decision on an erroneous finding of fact made in a perverse manner?
| (a) in concluding that the applicant was not entitled to any unit points for experience? |
| (b) in her assessment of the applicant's occupational factor by failing to consider the contents of both the NOC documents? |
Issue 2
2. Did the visa officer fail to observe a principle of natural justice or procedural fairness by failing to maintain a proper and adequate record of her interview with the applicant?
Position of the Parties
The Applicant
Issue 1(a)
| [9] In awarding the applicant 01 points under the Occupational factor and 17 points |
for the Education/Training factor, it was perverse to therefore award 00 points for experience since in the assessment of the Occupational factor, the visa officer would necessarily have considered that the applicant had met the employment requirements, had performed a substantial number of the main duties and was prepared to follow the intended employment in Canada.
Issue 1(b)
| [10] The finding of fact regarding experience was also perverse because the visa |
officer had failed to consult the NOC Occupational Classification in addition to the NOC Career Handbook, the former giving specific job duty description and the latter dealing with aptitudes, interests and worker functions.
Issue 2
| [11] Since the visa officer had failed to keep her original shorthand notes after |
compiling the CAIPS notes two days after the interview, and in the process had summarized some portions of the original notes and eliminated other parts, a true and complete record of the actual proceedings was unavailable to the trier of fact in order to decide on avowed discrepancies in the evidence from the interview.
The Respondent
| [12] The respondent begins by stating that the onus is on the applicant to prove that she |
has the right to come into Canada (subsection 8(1) of the Act) and to produce all the relevant information to assist her application.
Issue 1(a)
| [13] The visa officer was not satisfied that the applicant was qualified in her intended |
occupation and had erroneously awarded the applicant points for the Occupational factor. This error, however, was immaterial to the ultimate decision of the visa officer and the visa officer's decision should be upheld.
Issue 1(b)
| [14] By referring to the NOC Career Handbook, the visa officer had assessed whether |
or not the applicant had performed the main duties of her intended occupation. Not referring to the Occupational Classification was not an error in law and the visa officer's statement in the cross-examination that the two were the same was not an error of fact when considered within the context of her testimony as a whole.
Issue 2
| [15] The visa officer had kept a proper record, transferring the contemporaneous notes |
of the interview to the CAIPS as required and attesting as to the accuracy of the latter. The two day gap between the interview and the making of the CAIPS notes, using the detailed shorthand notes was more likely an accurate record of the interview than the applicant's affidavit, drafted much later.
Analysis and Decision
Issue 1(a)
| [16] The visa officer did not award any units of assessment to the applicant for |
experience as an Urban and Land Use Planner, but she awarded one unit of assessment to the applicant under the Occupational factor.
| [17] Dealing firstly with the awarding of zero units of assessment for Experience, I am |
of the opinion that the visa officer has made a reviewable error. A review of the CAIPS notes shows the following:
| JOB DESCRIP: "PREPARE PLAN FOR LAND USE DEVELOPMENT AND CONSTRUCTION OF RESIDENTIAL AND COMMERCIAL AREAS. I CONFIRM LAND USE PLANS WITH COMMUNITY FACILITIES AND AUTHORITIES. GAS, CABLE, TRANSPORTATION AND AUTHORITIES REGIONAL, MUNICIPAL AND RURAL AUTHORITIES. I ENSURE ENVIRONMENTAL MY PLANS TO USE MY PLANS SPECIAL MAPS REPUBLICAN OR UNION AND I PRESENT MY PLANS IN PUBLIC MEETINGS." ELSE? "I FILL OUT SPECIAL APPLICATION FORM FOR FINANCION AND CONSENT FROM AUTHORITIES. I WORK AS ASSISTANT DESIGN AND DRAFTPERSON. SAME SAME SAME OCCUPATION IN MY IN MY IN THE UKRAINE." |
| ASKED HER 2X TO TELL ME STEPS OF A PROJECT. "PROJECT FOR EXAMPLE FAMILY HOUSES. YOU CHOOSE YOU CHOOSE WHAT YOU WANT FAMILY HOUSE WHAT YOU SIZE WHAT YOU WHAT CLIENT LANDSCAPE WHAT YOU SIZE BIG FAMILY WHAT YOUR ORIENTAL ORIENTAL HOUSE ORIENTAL CHOOSE MATERIALS AND WHAT DO YOU WANT TO CLIENT WHAT DO YOU WANT CLIENT WHAT YOU BIG HOUSE WHAT YOU." THEN WHAT? "SIT AND DRAFT DIFFERENT VARIANCE FOR THE CLIENT." VARIANCES OF WHAT? "VARIANT PROJECT FOR CLIENT." DIFFERENT WHAT? "PROJECT. PROJECT HOUSE." THEN WHAT DO YOU DO? "AND CHOSE CONSTRUCTION STRUCTION AND MATERIALS AND FINANCION CLIENT WHAT FINANCION FINANCION WHAT DO YOU SAY IS WHAT YOU BIG WHAT YOU. HOW MUCH PERSON DO YOU LIVE IN HOUSE. AND DIFFERENT DRAWING DRAFTS DIFFERENT VARIANCE AND SHOW CLIENT AND CHOOSE WHAT DIFFERENT VARIANCE ONE VARIANCE WHICH WILL BE COMFORTABLE AND UMMM." THEN WHAT? "VERY NICE, COMFORTABLE IS VERY GOOD PLANNERS OR ORIENTAL WITH NICE MATERIALS WHICH ORDER ORDER MY CLIENT." IS THERE ANYTHING ELSE YOU DO? "I DON'T KNOW MORE." |
| EXPLAIN THAT SHE SAID SHE USES SPECIAL MAPS? "IN ENSURE ENVIRONMENTAL IT IS SPECIAL MAPS. FOR EXAMPLE, CANNOT BUILD HOUSE RESIDENTIAL HOUSE RESIDENTIAL HOUSE WITH NEIGHBOUR AT 500M ABOUT PARKS PROVINCIAL PARKS." WHY DID NOT MENTION MAPS IN DESCRIP OF PROJECT? "I KNOW MAPS. BY-LAWS WITH SPECIAL MAPS FOR EXAMPLE THIS BUILD RESIDENTIAL PROJECT RESIDENTIAL AREAS THIS INDUSTRIAL AREAS AND COMMERCIAL AREAS THIS DISTANCE ANOTHER DISTANCE BETWEEN AREAS AND I KNOW DISTANCE BETWEEN PARKS AND BUILDING AREAS, SORRY. I MEAN RESIDENTIAL AREAS AND REGIONAL, MUNICIPAL AND RURAL AUTHORITIES" WHAT DO YOU DO WITH THEM? "I CONFIRM LAND USE PLANS WITH COMMUNITY FACILITIES YES BECAUSE I MUST YOU THROUGH PLANNERS MY PLANS MY PROJECT THIS DISTANCE ABOUT COMMUNITY FACILITIES NO I CANNOT BUILD BUILD MY HOUSE ON THE COMMUNITY FACILITIES. YOU MUST YOU MUST DISTANCE I MUST DISTANCE BETWEEN COMMUNITY FACILITIES AND RESIDENTIAL AREAS." |
| HAS CONTACT W TRANSPORTATION AUTHORITIES TO CONFIRM LAND USE PLANS AND COMMUNITY FACILITIES. PRESENTS PLANS AT PUBLIC MEETINGS. SHOWS TO SPECIALIST. ANSWERS QUESTIONS, DISCUSSES ANY MISTAKE SHE MAY HAVE MADE. |
| EVER ANY WORK ABOUT PROTECTING ENVIRONMENT? NO. |
| [18] A close review of these notes indicate to me that the applicant has some |
experience in the area of land use planning. It is not this Court's role to assign the correct number of points but the Court can and should intervene when it is obvious that some units of assessment should have been awarded for experience. The applicant told the visa officer that she "confirms land use plans with community facilities and authorities, gas, cable, transportation and authorities regional, municipal and rural authorities". She also told the visa officer that she "has contact with transportation authorities to confirm land use plans". These facts support my conclusion that the applicant has some experience as an urban and land use planner. The visa officer must satisfy the standard of reasonableness simpliciter. I am of the view that the visa officer's decision was unreasonable and cannot stand.
| [19] As to the awarding of one unit of assessment for the Occupational factor, the visa |
officer did not address this in her affidavit so I do not know whether it was an error or not. If it was not an error, this fortifies my view that the visa officer erred in awarding zero points for experience because it is not correct to award units of assessment for the Occupational factor if the applicant has no experience in the intended occupation. If I had been satisfied that the awarding of one unit of assessment for the Occupational factor was an error by the visa officer, I would have held that it was not a reviewable error as it was not a material error.
| [20] I need not deal with Issues 1(b) and 2 because of the decision I have reached on |
the first issue.
| [21] The application for judicial review is therefore allowed and the decision of the |
visa officer is set aside.
| [22] Counsel for the parties will be provided with an opportunity to make a request for |
certification of a serious question of general importance. Counsel for the applicant shall file written representations, if any, on or before February 13, 2001, concerning the
certification of a serious question of general importance. Counsel for the respondent shall file a written response, if any, on or before February 20, 2001.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
February 6, 2001