Docket: IMM-4261-00
Neutral Citation: 2002 FCT 391
Ottawa, Ontario, this 9th day of April, 2002
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
MANMEEN KAUR MODI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review from a decision of a visa officer, finding that the applicant did not meet the requirements for immigration to Canada. The applicant applied in the occupation of legal assistant and paralegal (NOC code 4211).
[2] In the visa officer's decision of June 22, 2000, it is stated that, "I regret to advise you that I am unable to award you any units of assessment in the occupational factor as you do not perform a substantial number of the main duties of the legal assistant and paralegal." However, in a detailed breakdown of units of assessment in the decision, the visa officer awarded the applicant 6 units for experience, the maximum pursuant to factors 2(e) and 3(c) of Schedule I of the Immigration Regulations, 1978, SOR/78-172. Even though the visa officer awarded the applicants 6 units for experience in the legal assistant and paralegal occupation in which she was assessed, under the Occupational Demand Factor, factor 4, the visa officer awarded the applicant zero units of assessment.
[3] The applicant submits that the visa officer was inconsistent and incoherent in her decision. She claims that the six units awarded for experience conflict with the fact that no units were awarded for occupational factor. The applicant's position is that the visa officer's decision is confusing and therefore the entire basis for the assessment is not only questionable but unreasonable.
[4] At paragraph 19 of her affidavit, the visa officer stated:
After careful consideration of all of the information given to me by the Applicant, her consultant and the documents she submitted with her Application and after the interview, I concluded that the Applicant did not have credible experience in the duties required. I therefore awarded her zero units of assessment for the occupational demand factor and refused her application. Section 11(2) of the Immigration Regulations prohibits the issuance of a visa to an Applicant who has received zero units of assessment for the occupational demand factor.
Despite this expression of concern with regards to the applicant's experience in the duties of legal assistant, the visa officer nevertheless awarded the applicant 6 points for experience. This inconsistency between what the visa officer stated in the decision about the applicant's lack of experience as a legal assistant and paralegal, and her awarding the applicant six units of assessment for experience, and the inconsistency between awarding zero units for the Occupational Demand Factor and six units of experience in the legal assistant and paralegal occupation, remain unexplained by the visa officer in her Caips notes and in her refusal letter.
[5] The visa officer offers no explanation as to these inconsistencies. There is clearly, in this decision, a lack of appreciation of the relationship between factors 2, 3 and 4 of Schedule I. This relationship is explained by MacKay J. in Yu v. Canada (Minister of Employment and Immigration) (1991), 11 Imm. L.R. (2d) 176 at pages 184 to 185:
Factor 2, Specific Vocational Preparation, is assessed in relation to the amount of formal training specified in the Canadian Classification and Dictionary of Occupations as necessary for the occupation intended, in which the applicant is assessed under factor 4. Factor 3, experience, is assessed by years in the occupation intended, again that in which the applicant is assessed under factor 4. Factor 4, occupational demand, is assessed in relation to occupational opportunities in Canada in the occupation that the applicant is qualified for and is prepared to follow in Canada. By reference to factor 4, where the occupation is defined as that for which the applicant is qualified and prepared to follow in Canada, that definition of occupation is incorporated by reference into factors 2 and 3. As I read the three factors together, if the applicant is not deemed qualified for the occupation he or she intends to pursue in Canada, then, regardless of the occupational demand in Canada for that occupation, no units of assessment are to be awarded under factor 4, or under factor 3, for experience. (Emphasis added)
[6] There is authority in the jurisprudence for the proposition that where units are awarded under factor 3 of Schedule I of the Regulations, for experience in the occupation in which the applicant is assessed under factor 4, one must infer that the person is considered to be qualified in that occupation. [Deklne v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 905, per Lutfy A.C.J.].
[7] In this case, if the visa officer was of the view that the maximum number of six units of assessment should be awarded under the Experience Factor, factor 3, then I am of the view that it is inconsistent and incoherent that zero units be awarded under the Occupational Demand Factor, factor 4.
[8] With respect to inconsistencies that are not adequately explained by a visa officer, Mr. Justice Rothstein states in Kunchur v. Canada [Minister of Citizenship and Immigration], [2001] F.C.M. No. 1567, IMM-3262-00, October 19, 2001:
[8] ... It is not for the Court to re-write the visa officer's decision to comport with the Caips Notes. There are inconsistencies in her decision and her affidavit does not adequately explain them.
[9] It may well be that the visa officer came to a reasonable conclusion in finding that the applicant was not eligible for immigration into Canada. However, the visa officer's decision contains inconsistencies which remain unexplained in her affidavit. I am of the view that these inconsistencies are fatal to the visa officer's decision.
[10] The judicial review will be allowed with costs and the matter will be remitted to a different visa officer for redetermination.
[11] The applicant proposes that I certify the following question:
"When work experience is an issue, does a visa officer have a duty to render a decision that is consistent with both of factors three and four of the Immigration Regulations, 1978?"
[12] I am of the view that this question is not a serious question of general importance. This case turns on an inconsistency which was not adequately explained by the visa officer, a question of fact. I therefore do not propose to certify a question of general importance.
ORDER
THIS COURT ORDERS that:
1. The judicial review is allowed with costs and the matter is remitted to a difference visa officer for redetermination.
"Edmond P. Blanchard"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4261-00
STYLE OF CAUSE: Manmeen Kaur Modi and the Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 20, 2001
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE BLANCHARD
DATED: April 9, 2002
APPEARANCES:
Mr. M. Max Chaudhary FOR APPLICANT
Mr. Ian Hicks FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. M. Max Chaudhary FOR APPLICANT Chaudhary Law Office
Mr. Morris Rosenberg FOR RESPONDENT Deputy Attorney General of Canada