Date: 20010615
Docket: IMM-2220-00
Neutral Citation: 2001 FCT 663
Ottawa, Ontario, this 15th day of June, 2001
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
SAMVEL AVANESYAN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review under section 82.1(2) of the Immigration Act, R.S.C. 1985, c. I-2, of the decision of the visa officer, Marie Desbois, dated March 20, 2000, denying the applicant's application for permanent residence in Canada.
[2] The applicant seeks an order quashing the above decision, an order of mandamus or a direction that the applicant's application be approved, an order of mandamus or a direction that the applicant be re-interviewed, such interview being recorded or with counsel present and an order of mandamus or a direction that the respondent finalize the applicant's application within four months of disposition of this judicial review. The applicant also seeks his legal fees in the amount of $6,550, plus examination expenses.
Background Facts
[3] The applicant, Samvel Avanesyan is a citizen of Russia who submitted an application for permanent residence in Canada to the Canadian Embassy in Buenos Aires, Argentina on July 19, 1999. His intended occupation was identified as Financial Consultant (NOC 1112.0).
[4] The applicant and his wife attended an interview at the Canadian Embassy in Buenos Aires on March 20, 2000. The applicant was assessed under NOC 1112.0 as follows:
Age 10
Education 15
Occupational demand 03
Employment training factor (E.T.F.) 17
Arranged employment 00
Work experience 02
Language ability in English and French 07
Demographic factor 08
Close relative in Canada 00
Personal Suitability 04
Total 66
[5] Following the interview, the applicant returned to the Embassy and insisted that the visa officer take more of his documents regarding his work experience. The visa officer explained that she did not need to see the documents in order to make her decision. The visa officer explained that since she was not questioning what she was told in the interview, the applicant need not provide her with more supporting documents. The applicant's application was denied by the visa officer.
Grounds for the Application
[6] The ground as set out in the notice of application are:
1. The visa officer disregarded the applicant's uncontroverted evidence of employment experience.
2. The visa officer under-assessed the applicant's command of English.
3. The visa officer erred by refusing to review the applicant's documents.
4. The respondent erred by selecting a visa officer unfamiliar with the applicant's intended occupation to interview him, thus denying him a fair and proper assessment.
5. "Special reasons" merit assessing legal fees against the respondent.
Applicant's Submissions
[7] The applicant lists the following issues:
6. The visa officer erred by failing to consider whether, in his previous positions, the applicant gained experience in his intended occupation.
7. The visa officer under-assessed the applicant in three areas.
8. The visa officer erred by failing to review the applicant's employment letter both at the interview and when he subsequently proffered it.
9. "Special reasons" merit assessing legal fees against the Minister.
[8] Assessment of the Applicant - The Applicant's Experience
The applicant argues that the visa officer erred by refusing to consider his experience before April of 1998.
[9] The Applicant's Personal Suitability
The applicant submits the visa officer's assessment of his personal suitability is suspect and should be set aside.
[10] According to the applicant, the visa officer limited her assessment of his personal suitability due to two factors: (1) the applicant's non-effort to secure employment in Canada in advance; and (2) his wife's lack of English and her intended occupation of "self-employed day-care provider" not being on the General List of Occupations. With respect to the first factor, the applicant submits seeking employment in advance of approval is not relevant and that nonetheless, the visa officer failed to consider his accounting experience. With respect to the second factor, the applicant submits the visa officer fettered her discretion in assuming that because his wife's intended occupation was not on the General List of Occupations, that she would therefore be unable to earn income.
[11] The General List of Occupations, according to the applicant, is limited to jobs which command an SVP of 6 or more under the Canadian Classification and Dictionary of Occupations. Day-care workers carry an SVP of 4. Thus, the applicant argues it was off the list not because there is no demand, but because its unskilled nature precluded consideration. The applicant, however, maintains that the principal error in the assessment of his personal suitability was the visa officer's failure to ascertain all of his employment experience and thus, failing to properly determine his marketability in Canada.
[12] The Applicant's English
The visa officer downgraded the applicant's English from "fluent" to "well" in two areas, thereby depriving him of two units of assessment. The applicant submits his failure to answer concisely does not necessarily reflect a lack of vocabulary and that it could rather indicate imprecise questions or that he is inarticulate in all languages. Moreover, the confusion may stem from the visa officer's lack of understanding the applicant's occupation.
[13] Summary
Accepting that the applicant had 23 months of experience in his current position, the visa officer only gave him 2 out of a possible 6 units for experience. The applicant was also only given 4 out of a possible 10 units for personal suitability and his English assessment was reduced by 2 units. The applicant submits he requires only 4 more units to meet the selection criteria and that there are 10 units available from the above three factors. Therefore, the applicant submits this Court should quash the visa officer's decision.
[14] Duty to Review All Relevant Material
The visa officer, according to the applicant, further erred by concluding that his previous experience was irrelevant. As a result, the visa officer refused to even read his employment letter, a letter which might have assisted her in formulating relevant questions. Unless the visa officer awards the maximum number of units for experience, she errs by restricting examination to one's current occupation, particularly when previous experience melts into the current position.
[15] Costs
The applicant and his wife bore the cost of flying to Buenos Aires because had they applied in Moscow, they would have waited many months more than Russians who apply in Buenos Aires. The applicant cites So v. Canada (Minister of Employment and Immigration) (1995), 28 Imm. L.R. (2d) 153 (F.C.T.D.) and Barbu v. Canada (Secretary of State) (June 18, 1996) Docket IMM-4015-94 (F.C.T.D.) in support of his submission that special circumstances exist in the case at bar so as to warrant the respondent bearing all reasonable costs for a re-interview and the costs of this litigation.
Respondent's Submissions
[16] Standard of Review
According to the respondent, the applicant must establish that the factual findings are patently unreasonable or that discretion was exercised in a patently unreasonable manner.
[17] Assessment of Experience
The respondent submits the visa officer must assess experience in such a manner that it is sufficient to evaluate it with respect to the applicant's intended occupations. This is done where a visa officer reviews the applicant's work history and inquires about the duties performed. The visa officer must also allow the applicant to address extrinsic evidence adverse to the applicant that does not originate from the applicant.
[18] The respondent submits the visa officer in the case at bar attempted to question the applicant about his work experience, but that he had difficulty answering the questions and could not describe his experience. The respondent argues the applicant's answers were vague and evasive, and as a result, the visa officer was prevented from analyzing his experience. The visa officer did assess his experience based on the applicant's job history that was explained to her and awarded him full units of assessment for his experience as a Head Economist and Director. Any failure to properly assess experience was thus the fault of the applicant and not the visa officer.
[19] Assessment of Personal Suitability
An assessment of personal suitability is limited to economic factors and the visa officer cannot double count by considering factors already considered in the other parts of Schedule I. However, the applicant submits the visa officer can consider how aspects of the factors already counted reflect on the personal suitability criteria and notes that the assessment should only be interfered with in rare circumstances.
[20] Although the applicant submitted his application for permanent residence eight months before the interview, he had not researched the employment market in Canada and had little idea of how he would find a job. The applicant's wife spoke neither English or French and was working in an occupation for which there is no demand in Canada. The visa officer did not believe the applicant's wife would contribute to the family's economic settlement so as to increase the personal suitability score. Furthermore, if the visa officer did not consider the applicant's marketability of the applicant's accounting expertise, this is because he failed to explain that expertise to the visa officer.
[21] Language Assessment
The respondent submits the visa officer is in a better position to assess language skills and such assessments should not be overturned unless found to be perverse, capricious or patently unreasonable: Ali v. Canada (Minister of Citizenship and Immigration), (July 22, 1998) Docket IMM-4873-97 (F.C.T.D.). The respondent argues the visa officer's assessment was based on the applicant's difficulty in expressing himself and his limited vocabulary, rather than on his accent.
[22] No Error in Reviewing Additional Evidence
The visa officer did not review the documents of the applicant as she determined that he had experience in his intended occupation. Therefore, these documents need not have been reviewed to make that determination. Furthermore, the respondent argues there is no authority for the applicant's proposition that the visa officer could not decline to review further documentation unless she gave the applicant full points for experience.
[23] Costs
Costs can only be awarded if special reasons exist for doing so (Rule 400 of the Federal Court Rules, 1998, SOR/98-106). The respondent submits the applicant has not established that special reasons exist to justify an award of costs. As the applicant decided to make his application in Buenos Aires, the respondent should not be held liable for any past or future travel costs. The applicant is not entitled to examination expenses either, as no examination was conducted. The respondent should not be required to pay the applicant's legal costs if this application for judicial review is allowed.
[24] Applicant's Requested Relief
If this application for judicial review is allowed, the respondent submits it should not be required to issue the applicant immigrant visas until he demonstrates that he satisfies the criteria for admission. It is not the respondent's standard procedure to tape record an interview and the applicant has failed to show a need to do so. The respondent also submits the applicant is not entitled, as of right, to have his counsel present at the interview. A direction for such is not warranted. Finally, the respondent submits that immigration applications are not processed within prescribed time periods and as such, the applicant is not entitled to such an order.
Relevant Statutory Provisions
[25] The relevant statutory provision of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") states:
| 19.(2) No immigrant and, except as provided in subsection (3), no visitor shall be granted admission if the immigrant or visitor is a member of any of the following classes: . . . (d) persons who cannot or do not fulfil or comply with any of the conditions or requirements of this Act or the regulations or any orders or directions lawfully made or given under this Act or the regulations. |
19.(2) Appartiennent à une catégorie non admissible les immigrants et, sous réserve du paragraphe (3), les visiteurs qui_: . . . d) soit ne se conforment pas aux conditions prévues à la présente loi et à ses règlements ou aux mesures ou instructions qui en procèdent, soit ne peuvent le faire. |
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[26] Factors 2, 8 and 9 of Schedule I of the Immigration Regulations, 1978 SOR/78-172, (the "Regulations") state:
|
Column I Factors |
Column II Criteria |
Column III Maximum Units |
|
2. Education and Training |
(1) To be measured by the amount of formal education and professional, vocational, apprenticeship, in-plant or on-the-job training specified in the National Occupational Classification as being necessary to acquire the information, techniques and skills required for the occupation in which the applicant is assessed under item 4. Units of assessment shall be awarded as follows: (a) when no formal education or training is required, one unit; (b) when some secondary school education, on-the-job training or experience is required, two units; (c) when a secondary school diploma is required, five units; (d) when the completion of course work, training, work-shops or experience related to the occupation, ordinarily on the completion of secondary school, is required, seven units; (e) when a certificate or diploma of a college or technical school is required or when the completion of an apprenticeship program, a specialized training program or a vocational school training program is required, fifteen units; (f) when a university degree at the bachelor's level is required, seventeen units; and (g) when a university degree at the master's or doctoral level or a professional degree that requires additional education beyond the bachelor's level is required, eighteen units. (2) When more than one Education/Training Indicator is identified in the National Occupational Classification for a given occupation, the lowest of the ratings shall be used to assess the Education and Training Factor. |
18 |
|
8. Knowledge of English and French Languages |
(1) For the first official language, whether English or French, as stated by the person, credits shall be awarded according to the level of proficiency in each of the following abilities, namely, speaking, reading and writing, as follows: (a) for an ability to speak, read or write fluently, three credits shall be awarded for each ability; (b) for an ability to speak, read or write well but not fluently, two credits shall be awarded for each ability; (c) for an ability to speak, read or write with difficulty, no credits shall be awarded for that ability. (2) For the second official language, whether English or French, as stated by the person, credits shall be awarded according to the level of proficiency in each of the following abilities, namely, speaking, reading and writing, as follows: (a) for an ability to speak, read or write fluently, two credits shall be awarded for each ability; (b) for an ability to speak, read or write well but not fluently, one credit shall be awarded for each ability; and (c) for an ability to speak, read or write with difficulty, no credits shall be awarded for that ability. (3) Units of assessment shall be awarded on the basis of the total number of credits awarded under subsections (1) and (2) as follows: (a) for zero credits or one credit, zero units; (b) for two to five credits, two units; and (c) for six or more credits, one unit for each credit. (b) for two to five credits, two units; and (c) for six or more credits, one unit for each credit. |
15 |
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9. Personal Suitability |
Units of assessment shall be awarded on the basis of an interview with the person to reflect the personal suitability of the person and his dependants to become successfully established in Canada based on the person's adaptability, motivation, initiative, resourcefulness and other similar qualities. |
10 |
Issues
[27] 1. Did the visa officer err by failing to consider whether, in his previous
positions, the applicant gained experience in his intended occupation?
2. Did the visa officer under-assess the applicant in the areas of experience,
the English language and personal suitability?
3. Did the visa officer err in failing to review the applicant's employment
letter both at the interview and when he subsequently proffered it?
4. Are there special reasons to award costs against the Minister?
Standard of Review
[28] I have determined in Yin v. Minister of Citizenship and Immigration Canada (June 15, 2001) Docket IMM-49-00, that the standard of review to be applied to the visa officer's decision is reasonableness simpliciter. I would apply the same standard here.
Analysis and Decision
[29] Issue 1
Did the visa officer err by failing to consider whether, in his previous
positions, the applicant gained experience in his intended occupation?
As I held in Alan Kin Chung Ho v. The Minister of Citizenship and Immigration, (May 18, 2000), Docket IMM-533-99 (F.C.T.D.) there is no doubt that any experience from another position that is applicable to the intended position must be broken down and the applicant must be given credit for that portion of experience that relates to his intended occupation (see Hajariwala v. Canada (Minister of Employment and Immigration) (1988), 6 Imm. L.R. (2d) 222 (F.C.T.D.) and Pinto v. Canada (Minister of Employment and Immigration), [1991] 1 F.C. 619 (F.C.T.D.)).
[30] It must now be determined whether or not the visa officer gave the applicant credit for that portion of his experience from his previous positions that relate to Financial Consultant (NOC 1112.0). A review of the CAIPS notes reveal:
Since applicant has been in position for less than 2 years, only 2 points for experience were awarded; however even if points were awarded for 2 complete years of experience, applicant would still not have enough points to qualify.
It is quite obvious that the applicant has been employed since February, 1993. In the CAIPS notes under work experience, it is shown that he worked as a financial officer from December, 1995 to August, 1997. It would seem reasonable that there would be some experience gained in this position that would be transferrable to the position of financial consultant. The visa officer did not consider this part of the employment history as she did not even consider the entire two years before the applicant made his application as she only considered from the beginning of his current employment which was April, 1998. The visa officer has made a reviewable error of law in not breaking
down the applicable experience from the applicant's earlier positions. As I have no way of knowing how many units of assessment the visa officer would have awarded to the applicant had she considered any experience from the earlier positions, the decision of the visa officer must be set aside and the matter remitted to another visa officer for a redetermination.
[31] Issue 2
Did the visa officer under-assess the applicant in the areas of experience,
the English language and personal suitability?
As a result of my conclusion on Issue 1, it is obvious that the visa officer did under-assess the applicant with respect to experience.
[32] I am not persuaded that the visa officer under-assessed the applicant in the areas of language and personal suitability. There is no reviewable error on these issues.
[33] Issue 3
Did the visa officer err in failing to review the applicant's employment
letter both at the interview and when he subsequently proffered it?
Although it is not necessary for the determination of this application, I believe it would have been prudent for the visa officer to have accepted whatever material the applicant attempted to give her, especially when there was some uncertainty about the applicant's experience.
[34] Issue 4
Are there special reasons to award costs against the Minister?
I am not prepared to award costs to the applicant. It was the applicant's choice to go to Buenos Aires in order to have his application processed earlier.
[35] Neither party wished to certify a serious question of general importance.
[36] The application for judicial review is allowed and the matter is referred to a different visa officer for a redetermination.
ORDER
[37] IT IS ORDERED that the application for judicial review is allowed and the matter is referred to a different visa officer for a redetermination.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
June 15, 2001