Date: 20000519
Docket: IMM-1175-99
Ottawa, Ontario, this 19th day of May, 2000
| PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O"KEEFE |
BETWEEN:
NELLI AFANASIEVA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O"KEEFE J.
[1] This is an application for judicial review of a decision of the visa officer, Ms. Sara Trillo, wherein the applicant"s application for permanent residence in Canada was denied. The application was denied in accordance with paragraph 19(2)(d) of the Immigration Act, 1976-77, c. 52 in conjunction with subsections 9(1) and 11(1) of the Immigration Regulations, 1978.
[2] The applicant is a national of Russia who has been residing in the United States since August, 1993. On April 6, 1998, she and her husband, Viktor Afanasieva, applied for permanent resident visas to Canada.
[3] The applicant, Nelli Afanasieva was listed as the principal applicant, with her husband listed as an accompanying dependent. The applicant"s intended occupation was Technical Writer (NOC 5121.2).
[4] The applicant indicated that she had experience as a Technical Writer from August, 1987 to March, 1996 and as proof of this, submitted a letter from her employer, Prost Inc.
[5] The applicant attended an interview at the Canadian Consulate in New York on January 27, 1999. At this interview, the visa officer, Ms. Sara Trillo, questioned the applicant about her education and experience. The visa officer indicated to the applicant that she found no evidence that she was a Technical Writer and suggested an alternative occupation of Economist (NOC 4162). The intended occupation listed on the application was changed to Economist and initialled by the applicant.
[6] Upon assessment of the application, the visa officer granted the applicant the following units of assessment as a Technical Writer:
| Age 04 |
| Occupational Demand 03 |
| E.T.F. 17 |
| Experience 00 |
| Arranged Employment 00 |
| Demographic Factor 08 |
| Education 15 |
| English 09 |
| French 00 |
| Bonus 00 |
| Personal Suitability 03 |
| TOTAL 59 |
| [7] The visa officer also assessed the applicant in alternative occupations. The |
applicant was assessed as an Economist (NOC 4162) and received the maximum number of points for experience. She failed to qualify for an immigrant visa when assessed in this occupation as she did not receive sufficient units of assessment.
| [8] The applicant was also assessed in the occupation of Counsellor but she failed for |
not meeting the occupational requirements. She was also assessed as a Translator but did not meet the educational requirements for this occupation.
| [9] As the visa officer had advised that she would assess the applicant"s husband for a |
visa in the event that the applicant failed to qualify for one, the applicant"s husband was assessed as an Electrical Engineer and a Computer Engineer but did not receive sufficient units of assessment.
| [10] The issues raised by the applicant in her Memorandum of Argument are: |
1. The applicant has demonstrated that there is a serious issue to be tried. The applicant has satisfied the Court that there is a reversible error warranting judicial interference.
2. The applicant has shown that there is an error in the legal sense and that a negative determination in this case prevents the applicant from being approved for permanent residence in Canada.
3. The applicant has demonstrated that the principles of natural justice have been breached in this particular case and that there has been procedural unfairness in the refusal of the visa officer.
4. The applicant has demonstrated that the visa officer at the Canadian Consulate General in New York, New York erred in determining that the applicant did not meet the requirements under the Independent Category.
5. The applicant has demonstrated that the refusal of the visa officer to qualify her under the Independent Category was not made upon reasonable grounds and was not supported by the evidence.
6. The Applicant"s had [sic] demonstrated that she has experience in her intended occupation as a "Technical Writer" - NOC 51212 in the skilled workers" category.
7. The applicant has demonstrated that the visa officer failed in her duty of fairness to the applicant in refusing to review and consider the applicant"s employment letters as part of the evidence in support of the application or in the alternative failed to assess her in each included occupation for which she has experience including the occupation of "Economist" .
[11] The applicant was more specific with respect to the issues when the grounds of
the application were stated as follows:
1. The immigration officer based her decision on erroneous findings of fact contrary to the evidence or without any supporting evidence.
2. That the Applicant"s work experience entitles her to eight (08) units for the experience factor.
3. That the visa officer failed to provide the applicant with proper units of assessment for the personal suitability factor.
4. The immigration officer failed to give the Applicant two (02) units of assessment for the French language factor as she speaks, writes and reads some French.
5. That the Applicant spouse"s work experience entitles him to be processed in the occupation of "Computer Systems Analyst" NOC 2162.0 and accordingly enables him to obtain fifteen (15) units for the ETF factor, ten (10) units for the occupational demand factor and six (06) units for the experience. Such assessment would permit the Applicant to obtain more than the required 70 units minimum.
6. The visa officer erred in determining that the applicant did not qualify for the occupation of technical writer.
7. The visa officer failed to consider the applicant"s experience in the alternative occupation of "Economist-NOC 41620" for which the applicant was qualified and which evidence was before the visa officer.
8. The visa officer erred in stating that the applicant had "misrepresented" her present occupation as a technical writer by indicating that she performed translation services.
9. In awarding three (03) units of assessment for suitability, the visa officer failed to give weight to the offer of employment made by the applicant"s present US employer confirming future employment to the applicant with its Toronto office.
10. The visa officer failed in her duty of fairness by not setting out in the letter of refusal her assessment of the spouse"s application and the breakdown of the units awarded for each individual factor and the total units obtained by the spouse.
11. The visa officer prematurely determined that the spouse did not qualify. An assessment had been requested from the Council of Professional Engineers in Toronto and the visa officer indicated that she would await the results of the assessment before rendering her decision.
12. The immigration officer determine [sic], in accordance with the law, whether or not it would be contrary to the said Immigration Act and Regulations to grant a visa for permanent residence in Canada to the Applicant, NELLI AFANASIEVA.
13. The immigration officer refused to process the applicant"s application for permanent residence in accordance with the Act and Regulations.
[12] My Reasons will follow the outline of grounds 1 to 13, except where otherwise
noted in my Reasons.
[13] Number 1
The immigration officer based her decision on erroneous findings of fact contrary to the evidence or without any supporting evidence.
I have reviewed the decision of the visa officer and the tribunal record, including the CAIPS notes. I do not agree with the applicant that the visa officer based her decision on erroneous findings of fact contrary to the evidence or without evidence to support the findings. I would therefore dismiss this ground of review.
[14] Number 2
That the Applicant"s work experience entitles her to eight (08) units for the experience factor.
The visa officer was satisfied after interviewing the applicant that she did not have any experience as a Technical Writer. She admitted to the visa officer that she worked as an Economist while at Prost Inc. and not as a Technical Writer. In fact, her application was changed from the intended occupation of Technical Writer to Economist. It is not for this Court to substitute its decision on the awarding of points of assessment for experience if the decision of the visa officer was reasonable. I find that her decision was a reasonable decision and I would therefore dismiss this ground for review.
[15] Number 3
That the visa officer failed to provide the applicant with proper units of assessment for the personal suitability factor.
The visa officer awarded the applicant three units of assessment for personal suitability. Upon review of the visa officer"s decision and the CAIPS notes, it is noted that the visa officer took into consideration the ability of the applicant and her husband to become "successfully established in Canada, based on your adaptability, motivation, initiative and resourcefulness". Some of the factors the visa officer considered were:
- . The applicant did not work as an Economist in the United States except the time she worked as an Economist for Prost Inc.
- 2. The applicant has not prepared herself for her move to Canada and has never visited Canada.
- 3. The applicant had no idea of the labour markets in Canada.
- 4. The applicant has not contacted or sent her resume to any companies in Canada.
- 5. The applicant had very little knowledge of the Canadian way of living.
- 6. The applicant had not shown any understanding of what will be involved in finding employment in her occupation in Canada.
- 7. The applicant had unrealistic expectations of what will happen on arrival in Canada.
[16] I find that the visa officer"s decision on the number of units of assessment to be
awarded for personal suitability is a reasonable decision and should not be disturbed on review.
[17] Number 4
The immigration officer failed to give the Applicant two (02) units of assessment
for the French language factor as she speaks, writes and reads some French.
The visa officer"s decision to award zero points for the French language is a correct decision in light of the facts and the Immigration Regulations . The CAIPS notes show that the applicant changed her application to read that her ability in French under the relevant areas was "with difficulty". Pursuant to paragraph 2(c) of factor 8 ("Knowledge of English and French Language") of Column I of Schedule I of the Immigration Regulations , no units of assessment shall be awarded "for an ability to speak, read or write with difficulty". For this reason, the visa officer"s decision on this point was in fact correct and thus, she made no error.
[18] Number 5
That the Applicant spouse"s work experience entitles him to be processed in the
occupation of "Computer Systems Analyst" NOC 2162.0 and accordingly enables him to obtain fifteen (15) units for the ETF factor, ten (10) units for the occupational demand factor and six (06) units for the experience. Such assessment would permit the Applicant to obtain more than the required 70 units minimum.
The record shows that the visa officer was of the view that the work record of the applicant"s spouse did not show he ever worked as a Computer Systems Analyst. Therefore, I would not find that the visa officer made any error in this respect.
[19] Number 6
The visa officer erred in determining that the applicant did not qualify for the occupation of technical writer.
Ground number 6 will be determined by the number of units of assessment granted by the visa officer and should I find no reviewable error was made by the visa officer, then the applicant will fail on this ground by virtue of not obtaining sufficient points in total.
[20] Number 7
The visa officer failed to consider the applicant"s experience in the alternative
occupation of "Economist-NOC 41620" for which the applicant was qualified and which evidence was before the visa officer.
Simply put, this ground of review has no merit. The record shows that the visa officer did assess the applicant as an Economist. This ground of review is dismissed.
[21] Number 8
The visa officer erred in stating that the applicant had "misrepresented" her
present occupation as a technical writer by indicating that she performed translation services.
According to the CAIPS notes, the applicant admitted to the visa officer that she was working at her present place of employment as a Translator and not as a Technical Writer as previously stated. This ground of review is dismissed as the visa officer was correct.
[22] Number 9
In awarding three (03) units of assessment for suitability, the visa officer failed to
give weight to the offer of employment made by the applicant"s present US employer confirming future employment to the applicant with its Toronto office.
The visa officer concluded that the applicant did not meet the requirements for the job offered to her in Canada by her present employer. This is not an unreasonable conclusion and therefore, will not be overturned.
[23] Number 10
The visa officer failed in her duty of fairness by not setting out in the letter of refusal her assessment of the spouse"s application and the breakdown of the units awarded for each individual factor and the total units obtained by the spouse.
There is no requirement to set out in detail this assessment in the letter of refusal nor is there any duty on the visa officer to conduct such an assessment at all: Mozumder v. Canada (M.C.I.) (March 21, 1997), Docket IMM-2766-95. The visa officer did state that he failed on points in the CAIPS notes and explained why he failed. The visa officer made no reviewable error.
[24] Number 11
The visa officer prematurely determined that the spouse did not qualify. An
assessment had been requested from the Council of Professional Engineers in Toronto and the visa officer indicated that she would await the results of the assessment before rendering her decision.
I have reviewed the CAIPS notes that the visa officer indicated that she would wait for the results of the Council of Professional Engineers before she released her decision on the spouse. Again, there is no merit to this ground of review.
[25] Number 12
The immigration officer determine [sic], in accordance with the law, whether or
not it would be contrary to the said Immigration Act and Regulations to grant a visa for permanent residence in Canada to the Applicant, NELLI AFANASIEVA.
I find that the visa officer has determined correctly, according to law, that she could not issue a visa to the applicant and I would therefore dismiss this ground of review.
[26] Number 13
The immigration officer refused to process the applicant"s application for permanent residence in accordance with the Act and Regulations.
I find that the visa officer did not refuse to process the application for permanent residence but in fact correctly processed it according to the Immigration Act and the Immigration Regulations. This ground of review is dismissed.
[27] Both parties have stated that they do not wish to have a question certified pursuant
to subsection 83(1) of the Immigration Act.
[28] The application for judicial review is hereby dismissed.
ORDER
[29] IT IS ORDERED that the application for judicial review is hereby dismissed.
"John A. O"Keefe"
J.F.C.C.
Ottawa, Ontario
May 18, 2000