Date: 20010831
Docket: IMM-4493-00
Neutral citation: 2001 FCT 982
BETWEEN:
OLEG VOLODYMROVYCH PELISHKO
Applicant
- and -
THE MINISTER OF
CITIZENSHIP & IMMIGRATION
Respondent
PROCEEDINGS
[1] This is an application for judicial review of a decision of Visa Officer N. M. Egan, dated August 9, 2000, refusing the applicant's application for permanent residence in Canada.
Page: 2
ORDER SOUGHT
[2] The applicant seeks an order setting aside the above decision and referring the application back for reconsideration by a different Visa Officer. The applicant also seeks his costs.
BACKGROUND FACTS
[3] The applicant, Oleg Volodymyrovych Pelishko, is a citizen of Ukraine who submitted an application for permanent residence in Canada in April, 2000. He indicated Computer Programmer (NOC code 2163.0) as his intended occupation.
[4] The applicant graduated from Ternopil State Pedagogical Institute in 1996. After graduating in 1996, the applicant came to Canada and has been working as a seismic trainee. In support of his application, the applicant indicated that he was employed part-time at "Souvenir" Company from July 20, 1988 to December 7, 1990 and from October 3, 1993 to May 31, 1996. As indicated in a letter from his former employer [Tribunal Record, p.79], the applicant's duties at Souvenir included, for the most part, working on the computer system. The applicant was not interviewed and by letter dated August 9, 2000, which reads in part as follow, his application was denied:
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Re.: Occupation 1: I am unable to award you any units of assessment for experience as you have not acquired the equivalent of at least one year of full-time experience in this occupation. You do not have any experience in this occupation subsequent to completing your training at Ternopil State Pedagogical Institute. Subsection 11 (1) of the Regulations does not permit 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 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 have such arranged employment, and I am not satisfied that you can perform the required work without experience.
[5] The applicant was also assessed and refused in the occupation of Heavy Equipment Operator (NOC 7421.0) as the Occupational Factor for this occupation was zero. The applicant now seeks judicial review of the above decision.
ISSUE
Can the experience obtained by the applicant prior to obtaining his diploma be counted in assessing his eligibility as a computer programmer (NOC 2163.0)?
LAW
RELEVANT LEGISLATION
Subsection 11 (1) of the Immigration Regulations, 1978, SOR 78-172:
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 1 of Schedule I and is not awarded any units of assessment for the factor set out in item 3 thereof unless the 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
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(b) is qualified for and is prepared to engage in employment in a designated occupation.
ANALYSIS AND DECISION
[6] In the present case the occupation under consideration is that of Computer Programmer (NOC 2163.0). The employment requirements for that position are as follows:
A bachelor's degree in computer science or in another discipline with a significant programming component, such as mathematics, commerce or business administration,
or
completion of a college program in computer science is usually required.
[emphasis added]
[7] In the situation where it might be determined that an applicant met the employment requirements without a bachelor's degree or the completion of a college program in Computer Science, I take it that the applicant would have met the employment requirements due to some combination of education and experience. If, in the case, the applicant's education and some portion of his experience allowed the applicant to meet the employment requirements for a computer program prior to the attainment of a diploma then the visa officer should assess the remaining work experience, after the applicant met the employment requirements in this manner, to determine whether the remaining experience satisfies the legal requirements. This was not done in this case. The visa officer in her cross-examination stated at pp. 6 - 7:
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Q. As a computer programmer, is it a requirement in your opinion that all experience be obtained after graduation?
A.. I looked at the experience the applicant had once he completed his training as a computer programmer.
This in my opinion constitutes a reviewable error.
[8] The application for judicial review is allowed and the matter is referred to a different visa officer for redetermination.
[9] The applicant submitted a proposed serious question of general importance for my consideration. I am not prepared to certify this question.
[10] There shall be no order as to costs.
ORDER
The application for judicial review is allowed and the matter is referred to a different visa officer for reconsideration.
"John A. O'Keefe"
JUDGE
Halifax, Nova Scotia
August 31, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4493-00
STYLE OF CAUSE: Oleg Volodymrovych Pelishko
- and -
The Minister of Citizenship and Immigration
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: August 20, 2001
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
APPEARANCES:
Melvin Crowson for Applicant
Tracy King for Respondent
SOLICITORS OF RECORD:
Mangat & Company
7420 Airport Rd
Suite 202, Mississauga ON
L4T 4E5 for Applicant
Morris A. Rosenburg
Deputy Attorney General of Canada
Department of Justice
211, 10199 - 101 Street N.W.
Edmonton, AB T5J 3Y4 for Respondent