Date: 20011210
Docket: IMM-343-00
Neutral citation: 2001 FCT 1352
BETWEEN:
IN THE MATTER OF Subsection 82.1(2) of the Immigration Act, R.S.C. 1985, Chapter I-2 and Amendments and Regulations thereto; and Section 18.1 of the Federal Court Act, R.S.C. 1985, Chapter F-7 and Amendments and Regulations thereto;
AND IN THE MATTER OF a decision of a Visa Officer of the Immigration Section of the Canadian High Commission in London, United Kingdom;
MUHAMMAD MUKHTAR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicant seeks judicial review of a decision of the visa officer dated December 3, 1999, wherein the applicant's application for permanent residence in the Independent category was refused.
[2] The issue is whether the visa officer erred in stating that the applicant was not fully qualified as an anaesthetist and yet gave 15 points for the education and training factor and zero points for experience.
FACTS:
[3] In September 1999 the applicant applied for permanent residence in the Independent category as a respiratory therapist (NOC 3214).
[4] The applicant indicated he had been working as an anaesthetist in Pakistan and Ireland since October 1995. He currently works at a teaching hospital where one of his duties involves teaching respiratory therapy (anaesthetic) courses to other students.
[5] By letter dated December 3, 1999, the visa officer informed the applicant that his application was rejected. The officer indicated that she had assessed the applicant against the requirements for Respiratory Therapist, and that he received 68 units of assessment. The letter went on to state:
The employment requirements for the occupation of respiratory therapist are "completion of a 2-3 year college or hospital program in respiratory therapy, including clinical training".
From the information provided on your application and accompanying documentation you do not meet this requirement. Further, although a fully qualified and experienced anaesthetist may have performed the duties of a respiratory therapist, depending on the duties of his/her position, you are not fully qualified in this occupation. Consequently you have not performed the majority of duties of a respiratory therapist. For the above reasons, you obtain zero units of assessment for experience in the occupation of respiratory therapist.
[6] The applicant was not granted an interview prior to the decision being made.
[7] The visa officer explains her decision more fully in her affidavit in which she states:
9. I further determined that there was nothing in the Appellant's work experience which would overcome the lack of specific qualifications identified in the NOC as the basic requirements for persons to engage in employment in Canada as a respiratory therapist. I recognized that the Applicant is undergoing some form of training program in Anaesthesia in Ireland, but at the time of my assessment he had not formally qualified as an anaesthetist. Since the applicant was not qualified as an anaesthetist, I determined that he had not performed the majority of duties of a respiratory therapist.
...
13. Pursuant to subsection 11(1) of the Immigration Regulations, I am barred from issuing an immigrant visa to an applicant who is not awarded any units of assessment for experience. As such, I determined that a personal interview with the applicant was not warranted.
[8] If the visa officer had not given 15 units for the education and training factor, I would have found no reviewable error. On the facts before me, I agree with what the visa officer stated in her assessment but I do not agree that she can award 15 points, the maximum for the education and training factor, if the person is not fully qualified for the position. The visa officer explained in paragraph 11 of her affidavit why she gave 15 points, since it was the practice of visa officers to always give points for this factor. She stated:
11. As for the Educational and Training Factor ("ETF"), it is the practice of visa officers to always award units for this Factor. In the event an applicant is found to lack the necessary qualifications to pursue the occupation, zero units are awarded for experience, but the award of units for ETF is allowed to stand. The failure to subtract these units does not change the outcome of the application for landing, as an award of zero units for experience is fatal to an application. The practice is adopted in order to allow the visa officer to proceed with an assessment of an applicant in some occupation, however, it recognizes that the scheme of the Immigration Regulations, 1978 is such that no one should be issued a landed immigrant visa to pursue an occupation which they are not qualified to pursue.
[9] In my view, this is totally inconsistent and I rely on Dawson J. in Yar v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1658 where she stated at paragraph 18:
... The Minister did submit, however, that in the absence of evidence that Mr. Yar completed the required two or three year college program in Denturist technology that the visa officer was correct in awarding no units for Experience. That submission is, in my view, inconsistent with the visa officer's award of 15 units under the Education and Training factor because the Regulations provide that this factor is to reflect education and training necessary to acquire the information, techniques and skills required to acquire the necessary skills for the assessed occupation.
[10] This inconsistency has also been dealt with under the occupational demand units of assessment in Lin v. Canada (Minister of Citizenship and Immigration) [2001] F.C.J. No. 501; Osman v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 142 and Dauz v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1307. The judges in those cases were concerned about a situation where the officer awards the maximum number of units and then takes the view that the applicant does not meet the NOC qualifications for employment in the relevant NOC Category.
[11] In the case before me there is a clear conflict between what the visa officer states in her commentary, that the applicant is not fully qualified as an anaesthetist, and the officer then giving 15 points for the education and training factor. It is an error to award the maximum number of units for education and training factor and then award zero units of assessment for experience because the person was not fully qualified.
[12] The application for judicial review is allowed. The decision of the visa officer dated December 3, 1999 is quashed and the matter is returned for redetermination by a different visa officer.
"W.P. McKeown"
JUDGE
OTTAWA, ONTARIO
December 10, 2001
Date: 20011210
Docket: IMM-343-00
OTTAWA, ONTARIO THIS 10TH DAY OF DECEMBER, 2001
Present: THE HONOURABLE MR. JUSTICE McKEOWN
BETWEEN:
IN THE MATTER OF Subsection 82.1(2) of the Immigration Act, R.S.C. 1985, Chapter I-2 and Amendments and Regulations thereto; and Section 18.1 of the Federal Court Act, R.S.C. 1985, Chapter F-7 and Amendments and Regulations thereto;
AND IN THE MATTER OF a decision of a Visa Officer of the Immigration Section of the Canadian High Commission in London, United Kingdom;
MUHAMMAD MUKHTAR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
The application for judicial review is allowed. The decision of the visa officer dated December 3, 1999 is quashed and the matter is returned for redetermination by a different visa officer.
"W.P. McKeown"
JUDGE
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-343-00
STYLE OF CAUSE: Muhammad Mukhtar and the Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: 27 November, 2001
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE MCKEOWN DATED: December 10, 2001
APPEARANCES:
Mr. John Kalina FOR APPLICANT
Ms. Neeta Logsetty FOR RESPONDENT
SOLICITORS OF RECORD:
John Kalina FOR APPLICANT Branmpton, Ontario
Mr. Morris Rosenberg FOR RESPONDENT Deputy Attorney General of Canada