Date: 20031126
Docket: IMM-3884-01
Citation: 2003 FC 1389
Ottawa, Ontario, this 26th day of November, 2003
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
AMIR HOSSEIN KOJOURI
Applicant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review of the decision of a visa officer at the Canadian High Commission in London, England, dated June 18, 2001, wherein the visa officer refused the applicant's application for permanent residence in Canada.
[2] The applicant seeks:
1. An order for a writ of certiorari quashing the decision of the visa officer;
2. An order for a writ of mandamus directing that the respondent consider and process the applicant's application for permanent residence in Canada in accordance with the Immigration Act, R.S.C. 1985, c. I-2 and theImmigration Regulations, 1978, S.O.R./78-172 namely:
(a) that the applicant's "experience", "occupational", "personal suitability" and "English" factors be re-assessed by a different visa office or a different visa officer, or both;
(b) in the event the respondent develops concerns with respect to the applicant's application, the respondent apprise the applicant of such concerns in such a way as to afford the applicant an opportunity to disabuse the respondent of such concerns;
3. Costs of this application; and
4. Such other relief as this Honourable Court may deem just and equitable in the circumstances.
Background
[3] The applicant is a citizen of Iran. On January 30, 2000, the Canadian Embassy received the applicant's application for permanent residence in Canada under the independent category in the occupation of "clinical perfusionist". The applicant is a medical doctor.
[4] On June 10, 2001, the applicant was interviewed.
[5] By letter dated June 18, 2001, the visa officer refused the applicant's application, stating in part:
. . . You were assessed based on the requirements for the following occupation: Clinical Perfusionist NOC 3214.2. You will find hereafter the units of assessment awarded for each of the selection criteria:
Age 10
Occupational Factor 0
Education and Training 15
Experience 0
Arranged Employment or
Designated Occupation 0
Demographic Factor 8
Education 16
Knowledge of English 6
Knowledge of French 0
Personal Suitability 6
TOTAL 61
After interview, you have obtained insufficient units of assessment to qualify for immigration to Canada, the minimum requirement for assisted relatives being 65 units according to subsection 10(1)(b) of the Immigration Regulations 1978.
. . .
[6] This is the judicial review of the decision of the visa officer.
Applicant's Submissions
[7] The applicant submits that when the visa officer was faced with documents he suspected were not credible, he should have made further inquiries with the issuer of the documents. It is submitted that the visa officer made an assumption about the validity of the documents despite his unfamiliarity with Iranian documents. It is submitted that the officer should have referred the documents to the Canadian Embassy in Tehran so that they could verify whether they were authentic.
[8] The applicant submits that the visa officer failed to examine the totality of the applicant's training when assessing it against the employment requirements for the NOC occupation of clinical perfusionist. In the applicant's view, it is a matter of common sense that a medical doctor would meet and surpass the knowledge of a nurse, which is the training required by NOC 3214 for a clinical perfusionist. The applicant contends the visa officer erred in assigning a zero score for experience.
[9] The applicant submits that the visa officer's concern that the applicant's job offer was affected by changes in the job market should have been brought to the attention of the applicant so he could address and respond to such concerns.
Respondent's Submissions
[10] The respondent submits that it was reasonably open to the visa officer to refuse the applicant's application for permanent residence. It is submitted that the visa officer was not satisfied the applicant had performed the duties of a clinical perfusionist based on several factors, including the fact the applicant provided no mark sheets confirming his training and the fact that the letters of reference outlining his duties reproduced the terms of the NOC word for word. As such, the respondent submits that it was reasonably open to the visa officer to question the credibility of the letters and consequently, the applicant's training and work experience. The respondent submits that under the circumstances the visa officer was not obliged to make further inquiries since he had advised the applicant that he had concerns about his training and experience and the applicant was given an opportunity to address these concerns.
[11] The respondent submits that just because the applicant is a medical doctor does not imply that he will necessarily meet the employment requirements set out in the NOC for different occupations in the medical field. It is submitted that it was reasonable for the visa officer to award the applicant zero points for experience because the officer was not satisfied that the applicant met the employment requirements for clinical perfusionists or that he had performed a substantial number of the main duties as specified by NOC 3214.
[12] The respondent submits it was reasonable for the visa officer to ask the applicant for documents such as the job offer in order to determine whether any new facts or more recent job offers existed. It is submitted that the visa officer's decision was not based on the job market, but rather the officer used the letter to assist him in assessing the applicant's personal suitability and arranged employment.
Issues
[13] The applicant summarizes the issues as follows:
1. Did the visa officer err in law by failing to make further inquiries with the issuer of documents when faced with documents that he was concerned were not credible?
2. Did the visa officer err in law by failing to examine the totality of the applicant's training when assessing it against the employment requirements of the NOC occupation for clinical perfusionist?
3. Did the visa officer err in law and deny the applicant procedural fairness by failing to provide the applicant with an opportunity to disabuse the officer of his concerns that the applicant's job offer was affected by the change in job market?
[14] The respondent summarizes the issue as follows:
1. Did the visa officer commit an error of law or fact, or breach the principle of procedural fairness?
Relevant Statutory Provisions and Regulations
[15] Subsection 8(1) of the Immigration Act, supra, states:
|
8. (1) Where a person seeks to come into Canada, the burden of proving that that person has a right to come into Canada or that his admission would not be contrary to this Act or the regulations rests on that person. |
8. (1) Il incombe à quiconque cherche à entrer au Canada de prouver qu'il en a le droit ou que le fait d'y être admis ne contreviendrait pas à la présente loi ni à ses règlements. |
[16] The relevant subsections of the Immigration Regulations, supra state:
|
8. (1) Subject to section 11.1, for the purpose of determining whether an immigrant and the immigrant's dependants, other than a member of the family class, a Convention refugee seeking resettlement or an immigrant who intends to reside in the Province of Quebec, will be able to become successfully established in Canada, a visa officer shall assess that immigrant or, at the option of the immigrant, the spouse of that immigrant
(a) in the case of an immigrant, other than an immigrant described in paragraph (b) or (c), on the basis of each of the factors listed in column I of Schedule I;
. . .
(2) A visa officer shall award to an immigrant who is assessed on the basis of factors listed in Column I of Schedule I the appropriate number of units of assessment for each factor in accordance with the criteria set out in Column II thereof opposite that factor, but he shall not award for any factor more units of assessment than the maximum number set out in Column III thereof opposite that factor.
. . .
|
8. (1) Sous réserve de l'article 11.1, afin de déterminer si un immigrant et les personnes à sa charge, à l'exception d'un parent, d'un réfugié au sens de la Convention cherchant à se réinstaller et d'un immigrant qui entend résider au Québec, pourront réussir leur installation au Canada, l'agent des visas apprécie l'immigrant ou, au choix de ce dernier, son conjoint:
a) dans le cas d'un immigrant qui n'est pas visé aux alinéas b) ou c), suivant chacun des facteurs énumérés dans la colonne I de l'annexe I;
. . .
(2) Un agent des visas doit donner à l'immigrant qui est apprécié suivant les facteurs énumérés dans la colonne I de l'annexe I le nombre voulu de points d'appréciation pour chaque facteur, en s'en tenant au maximum fixé à la colonne III, conformément aux critères visés dans la colonne II de cette annexe vis-à-vis de ce facteur.
. . .
|
|
10. (1) Subject to subsections (1.1) and (1.2) and section 11, where an assisted relative makes an application for an immigrant visa, a visa officer may issue an immigrant visa to the assisted relative and accompanying dependants of the assisted relative if
. . .
(b) in the case of an assisted relative who intends to reside in a place other than the Province of Quebec, on the basis of an assessment made in accordance with section 8, the assisted relative is awarded at least 65 units of assessment; and |
10. (1) Sous réserve des paragraphes (1.1) et (1.2) et de l'article 11, lorsqu'un parent aidé présente une demande de visa d'immigrant, l'agent des visas peut lui en délivrer un ainsi qu'aux personnes à sa charge qui l'accompagnent si les conditions suivantes sont réunies:
. . .
b) dans le cas du parent aidé qui entend résider au Canada ailleurs qu'au Québec, sur la base de l'appréciation visée à l'article 8, le parent aidé obtient au moins 65 points d'appréciation; |
Analysis and Decision
[17] Issue 1
Did the visa officer err in law by failing to make further inquiries with the issuer of documents when faced with documents that he was concerned were not credible?
The applicant submitted three letters to support his clinical perfusionist training and work experience:
1. A letter dated May 31, 2001 on Shiraz University of Medical Sciences letterhead (translated version appears at page 35 of the tribunal record), which states that the applicant performed the duties of a clinical perfusionist. The letter lists, word for word, all the duties identified in NOC 3214 for clinical perfusionists. This letter was presented as a translation of an original letter written in Farsi.
2. A letter dated June 3, 2001 (found at page 37 of the tribunal record), on DENA Medical Group letterhead, which states that the applicant had been employed at the hospital as a clinical perfusionist.
3. An undated letter on Shiraz University Medical School, Department of Surgery letterhead (found at page 109 of the tribunal record), which states that the applicant was trained for a period of one year in the Faghihy Hospital as a clinical perfusionist. It states that he successfully passed the theoretical and clinical exams and is capable of performing various tasks in the cardiac surgery operation room. The tasks listed are word for word the duties identified in NOC 3214 for clinical perfusionists.
[18] The visa officer was concerned that two of the letters provided by the applicant quoted directly from the duties listed in NOC 3214 (clinical perfusionist). As a result, the visa officer decided that the documents were not credible, nor was the applicant's training and work experience. While it is true that the visa officer did raise some concerns about the applicant's training and experience at the interview, he did not give the applicant an opportunity to respond to his specific concerns about the veracity of the letters, nor did he make further inquiries to determine whether or not the letters were valid. The cross-examination of the visa officer established that he was not certain that the certification stamp on the letters applied only to the translation. The issue of the certification on the letters should have been verified.
[19] I am of the opinion that the visa officer made reviewable errors in failing to make further inquiries and in failing to apprise the applicant of his belief before deciding that the documents were not credible. This is consistent with the jurisprudence in Huyen v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1267 (T.D.), 2001 FCT 904, where Lemieux J. stated at paragraph 5:
Moreover, the visa officer rejected documentary evidence proving she had worked as a cook in a restaurant in Vietnam because it was not on letterhead and was handwritten. I find that a rejection of documentary proof on this basis, without more verification to be unreasonable.
These errors, in the circumstances of this case, constitute a breach of the duty of fairness the visa officer owed to the applicant.
[20] The application for judicial review is allowed and the matter is referred to a different visa officer for reconsideration.
[21] Because of my finding on this issue, I need not deal with the other issues raised in this application.
[22] The applicant proposed the following serious question of general importance for my consideration for certification:
Can a mandatory employment requirement under the National Occupational Classification be fulfilled by a method other than what is listed therein?
I am not prepared to certify this question as I do not believe that it is a serious question of general importance that is determinative of this application. I would note that similar questions have been rejected for certification by this Court.
ORDER
[23] IT IS ORDERED that the application for judicial review is allowed and the matter is referred to a different visa officer for reconsideration.
"John A. O'Keefe" J.F.C.
Ottawa, Ontario
November 26, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3884-01
STYLE OF CAUSE: AMIR HOSSEIN KOJOURI
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Thursday, May 29, 2003
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: Wednesday, November 26, 2003
APPEARANCES:
Mr. M. Max Chaudhary
FOR APPLICANT
Ms. Angela Marinos
FOR RESPONDENT
SOLICITORS OF RECORD:
M. Max Chaudhary
North York, Ontario
FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
FOR RESPONDENT