Date: 20000623
Docket: IMM-4355-99
BETWEEN:
SRINIVASA RAGHAVAN BHASHYAM
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
McKEOWN J.
[1] The Applicant seeks judicial review of a decision of the visa officer dated June 21, 1999, wherein the Applicant"s application for permanent residence in Canada was rejected.
[2] The issue is whether there is an error on the face of the record and whether the visa officer misinterpreted the NOC requirements. There was no affidavit evidence before me. The officer awarded zero points under the criteria of occupation or experience and accordingly refused the Applicant"s application for permanent residence.
[3] The officer set out the reasons for the award of zero points as follows in his refusal letter:
| "The occupation of Travel Counsellors require completion of a two year college diploma or vocational training in travel or tourism. In absence of these qualifications we could not count you any experience." |
[4] In the CAIPS notes the officer stated:
| "Applicant cannot qualify as travel counsellor, he does not meet NOC employment requirement of this profession as he does not have a college diploma in travel and tourism. Applicant"s background education: B.SC. + M.SC. in business admin. + short course (1 week only) in travel agency operations." |
[5] The officer in the statements and letters keeps referring to a mandatory requirement for completion of a two year college diploma or vocational training in travel or tourism. However, the NOC requirements states that a two year college diploma or vocational training in travel or tourism "is usually required".
[6] Madam Justice Sharlow in Karathanos v. Minister of Citizenship and Immigration (1999), Imm-5011-98, F.C.T.D., analysed the meaning of "usually required", she stated at paragraph 25:
| "In this case, the visa officer was faced with an applicant who did not have the educational requirements that are "usually required" for her chosen occupation. He should have considered her education, training and experience in its entirety with a view to determining whether it was the approximate equivalent of a master"s degree in archival studies, library science or history." |
[7] In my view, Justice Evans looked at the same question in Nemati v. Canada (Minister of Citizenship and Immigration) (1999), Imm-4092-98, except in Nemati, the visa officer had examined the question at paragraph 5, Justice Evans states:
| "In his affidavit the visa officer stated that, after examining the applicant"s university transcript and her work experience, he was not satisfied that they compensated for her lack of a degree in business administration or commerce." |
[8] Thus, Justice Evans did not have the same facts as of before me where the visa officer looked at solely the educational background of the Applicant. In the case before me I am not satisfied that the visa officer made a reasonable assessment of the Applicant"s work experience in accordance with the question cited by Justice Sharlow. There is an error on the face of the record and the visa officer has misinterpreted the NOC requirements.
[9] The application for judicial review is allowed. The decision of the visa officer is quashed and the Applicant"s application for permanent residence is referred back for reconsideration by a different visa officer who should consider the Applicant"s education training and experience in its entirety to determine whether it was the approximate equivalent of a two year college diploma or vocational training in travel or tourism.
[10] I propose to certify the following question and it is a question of general importance: Where the National Occupational Classification specifies that a certain employment requirement is "usually required", is it an error for a visa officer to treat the requirement as "always required" in deciding whether to award an applicant points for experience under Schedule I of the Immigration Regulations ?
"W.P. McKeown"
| J.F.C.C. |
Toronto, Ontario
June 23rd, 2000.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-4355-99 |
| STYLE OF CAUSE: SRINIVASA RAGHAVAN BHASHYAM |
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
| DATE OF HEARING: FRIDAY , JUNE 23, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: McKEOWN J. |
| DATED: FRIDAY, JUNE 23, 2000 |
| APPEARANCES BY: Mr. M. Max Chaudhary |
| For the Applicant |
Mr. David Tyndale
| For the Respondent |
| SOLICITORS OF RECORD: Chaudhary Law Office |
Barrister & Solicitor
255 Duncan Mill Road
Suite 405
Toronto (North York), Ontario
M3B 3H9
| For the Applicant |
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20000623
Docket: IMM-4355-99
BETWEEN:
| SRINIVASA RAGHAVAN BHASHYAM |
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
| REASONS FOR ORDER |