Date: 20020814
Docket: IMM-943-01
Neutral Citation: 2002 FCT 860
Montreal, Quebec, August 14, 2002
Present: THE HONOURABLE MR. JUSTICE BLAIS
BETWEEN:
AMIR AYUB
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review made pursuant to subsection 82.1(2) of the Immigration Act (hereinafter referred to as the "Act") of the decision rendered by Visa officer Umit Ozguc ("visa officer") dated January 16, 2001 wherein the visa officer refused the applicant's application for permanent residence.
FACTS
[2] The applicant's application was received at the Canadian High Commission in Ankara, Turkey on July 20, 1999.
[3] On October 21, 2000, the applicant attended an interview conducted by the visa officer at the Canadian High Commission in Ankara.
[4] During the interview, the applicant was questioned as to his work experiences and educational qualifications.
[5] The applicant completed a two (2)-year programme at the University of Karachi and obtained a Bachelor of Commerce degree. This is a general commerce degree which did not include any computer courses. He then completed a one (1)-year study at the "Computer People." In addition, the applicant also followed an MBA thesis programme at the Adamson University of Manila, Philippines which has a campus in Karachi. The applicant also holds a certificate from "Computer Communication."
[6] The applicant told the visa officer that during the period between 1995 and July 1999 he had worked for Resources Marketing Consultancy in the IT department. After July 1999, the applicant started his own consultancy business as a software developer.
[7] At the interview, the visa officer asked the applicant to write a computer programme on one (1) page. The visa officer was dissatisfied with the lack of complexity of the programme thereby undermining the applicant's experience as a computer programmer.
[8] The visa officer therefore did not find that the applicant qualified in the National Occupational Classification as Computer Programmer [NOC 2163.0] nor for the alternate occupation of Computer Operator [NOC 1421.0].
[9] The applicant was advised by letter dated January 16, 2001 that his application for permanent residence in Canada had been refused.
DECISION OF THE VISA OFFICER
[10] The applicant was assessed under the occupation of Computer Programmer [NOC 2163.0]. The applicant was also assessed under the occupation of Computer Operator [NOC 1421.0]. However the applicant did not obtain a sufficient amount of points to qualify for admission to Canada consequently, the visa officer refused the applicant's application.
[11] The applicant received 56 units under the occupation of Computer Operator [NOC 1421.0]:
Age 10
Occupation 01
Education/Training Factor 05
Experience 04
Arranged employment 00
Demographic Factor 08
Education 16
English 08
French 00
Bonus 00
Personal Suitability 04
-
Total 56
Description of NOC occupation Computer Programmer [NOC 2163.0], NOC Career Handbook.
Computer Programmers write computer programs by coding sets of instructions into machine-readable form. They are employed in computer software and consulting firms and in programming units throughout the private and public sectors.
Main Duties
Computer Programmers perform some or all of the following duties:
· Write computer programs or software packages by coding instructions and algorithms into machine readable form.
· Test, debug, document and implement computer programs or software packages.
· Maintain existing computer programs by making minor modifications as required.
· Act as a resource person, solving computer problems for users.
Employment Requirements
· A bachelor's degree in computer science or in another discipline with a significant programming component, such as mathematics, commerce or business administration or
· Completion of a college program in computer science is usually required.
· Specialization in commercial or engineering and scientific applications requires specific post-secondary study or experience.
· Senior positions in this unit group, such as programmer analyst, require experience.
Description of NOC occupation Computer Operator [NOC 1421.0],NOC Career Handbook
Computer Operators operate computer equipment, produce computer-generated reports, monitor the operation of computer systems and networks, and co-ordinate their use. They are employed in computer centres throughout the private and public sectors.
Main Duties
Computer Operators perform some or all of the following duties:
· Operate computer equipment such as terminals, tape drives, disk drives and printers.
· Operate master consoles to monitor the operation of computer systems and networks.
· Load computer tapes and disks and install software and printer paper and forms.
· Operate spreadsheet programs and other types of software to load and manipulate data and to produce reports.
· Co-ordinate and schedule the use of computer terminals and networks.
· Report computer malfunctions to computer maintenance technicians.
· Distribute computer output to users.
Employment Requirements
· Completion of secondary school is usually required.
· College or other courses in computer operation or network administration are usually required.
APPLICANT'S POSITION
[12] The applicant submits that the visa officer failed to observe the principles of natural justice and procedural fairness in failing to apprise the applicant of concerns in regard to the applicant's credibility.
[13] The applicant argues that the visa officer erred in determining whether the applicant met the employment and work experience requirements as the visa officer failed to consider the material tendered by the applicant.
[14] The applicant further contends that the visa officer misapprehended the evidence before her and in the circumstances, had a duty, according to the Muliadi principle set out in Muliadi v. Canada (Minister of Employment and Immigration), [1986] 2 F.C. 205 (F.C.A.). The visa officer holds a duty, before disposing of an application, to inform the appellant of a negative assessment and give him the opportunity to correct or contradict it.
RESPONDENT'S POSITION
[15] The respondent submits that the visa officer assessed the application for permanent residence fairly and in accordance with the Act.
[16] The respondent also argues that the visa officer considered the totality of the information available to her.
[17] The respondent alleges that the visa officer gave the applicant a fair opportunity to present information in support of his application.
ISSUE
[18] Were the principles of natural justice and procedural fairness violated in this case?
ANALYSIS
Standard of review
[19] First and foremost, it is necessary to determine the standard of review applicable to a visa officer's decision. In To v. Minister of Employment and Immigration, [1996] F.C.J. No. 696 (F.C.A.), the Court held:
[para 2] The appellant's application to enter Canada as an "entrepreneur" immigrant from Hong Kong gave rise to a discretionary decision on the part of the immigration officer which was required to be made on the basis of specified statutory criteria. The appellant's intention was of establishing a business in Canada. The "ability" so required was one of the relevant criteria.
[para 3] Here, the immigration officer was not satisfied that the appellant had either the business ability or the personal financial resources to establish a business in Canada. We agree with Jerome A.C.J. that the case does not justify judicial intervention. In Maple Lodge Farms Limited v. Government of Canada et al., [1982] 2 S.C.R. 2, at pages 7-8, McIntyre J. stated for the Court:
It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, were required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere.
[20] Therefore, it would seem that the standard of review for a visa officer's decision is that of patently unreasonable.
Were the principles of natural justice and procedural fairness violated in this case?
Principles of natural justice and procedural fairness
[21] In Jiang v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1560 (F.C.T.D.), Lutfy J. stated at paragraph 4:
The principles of natural justice and procedural fairness apply to the visa officer's meeting with the applicant. The visa officer has a serious responsibility during such interview in assessing whether the applicant will be able to become successfully established in Canada. The visa officer must maintain a level of decorum conducive to an open and fair exchange, even in circumstances which must be sometimes difficult and trying. Similarly, for many applicants, particularly those from cultures substantially different from that of the person representing Canada, these interviews are also stressful. On balance, the visa officer, when challenged by inappropriate conduct by the persons being interviewed, must remain composed in maintaining an orderly meeting. The visa officer presides over the interview. As the decision-maker, the visa officer has the duty to provide, to the extent possible, a calm environment as the applicant attempts to meet the selection criteria.
[22] The applicant alleges that the visa officer misapprehended the evidence before her and in the circumstances had a duty to clarify the issues and investigate the evidence further so as to not violate the principles of natural justice and procedural fairness.
[23] As support, the applicant relies on the case of Muliadi, supra where Thurlow C.J., Stone and MacGuigan J.J.A. were confronted with a unique set of circumstances. Firstly, Muliadi involves a visa officer denying an application for permanent residence under the "entrepreneur" category based on the provincial government's negative assessment of the applicant's business proposal. Secondly, the visa officer was found to have erred by delegating decision-making authority to provincial authorities. It is obvious that these facts are extremely different from the present matter. And, I therefore do not find its application at all appropriate in the present case.
Request for curricula and transcripts
[24] At the applicant's interview, the visa officer requested curricula, transcripts of courses or any other documents from institutions frequented by the applicant. At paragraph 11 of his affidavit, the visa officer wrote:
[...] I was not satisfied that Mr. Ayub's education and training met the requirements for a computer programmer. The description of employment requirements in the NOC, for a computer programmer, describes "a bachelor's degree in computer science or in another discipline with a significant programming component, such as mathematics, commerce or business administration or; completion of a college program in computer science is usually required." In this case, the Applicant indicated a Bachelor of Commerce degree, but he had not demonstrated that this program includes any computer courses. Similarly, his studies at "Computer People" and "Computer Communication" are not a college program. In addition, as I noted above, since the Applicant did not provide any curricula, transcripts or any other documents from these institutions, he did not demonstrate the nature of the classroom studies or that they included a significant programming component. I did not find that the Applicant's work experience was sufficient to overcome this requirement.
[25] The applicant claims that he provided the visa officer with a copy of the curriculum from the "Computer People". I have carefully reviewed the Tribunal Record and have concluded that there is one (1) letter from the "Computer People" at page 13 which provides information.
Microsoft certificate and exam report sheet
[26] The applicant enrolled in a single course in June 2000 after the applicant had submitted his application for permanent residence. The title of the course is Designing and Implementing Desktop Applications with Microsoft Visual Basic 6.0.
[27] It is clear that the visa officer reviewed this documentation with the applicant during the interview, but concluded that it alone was insufficient proof that the applicant held the required training as a Computer Programmer.
[28] It is my opinion that the visa officer violated the principles of natural justice and procedural fairness as the applicant was not given a fair opportunity to present that information in support of his application. However, the applicant failed to convince the visa officer that he possessed the requisite training and experience to qualify as a Computer Programmer [NOC 2163.0].
Work experience
[29] Factor 4 of Schedule 1 of the Immigration Regulations, 1978, SOR/78-172, [hereinafter referred to as "Schedule 1"] reads:
(1) Units of assessment shall be awarded on the basis of employment opportunities in Canada in the occupation (a) for which the applicant meets the employment requirements for Canada as set out in the National Occupation Classification; (b) in which the applicant has performed a substantial number of the main duties as set out in the National Occupational Classification, including the essential ones; and (c) that the applicant is prepared to follow in Canada.
In light of the above, it is clear that an applicant must be assessed in the occupation for which he has performed a substantial number of the main duties, including the essential ones.
[30] The applicant provided the visa officer with a series of letters of reference from Markwell and Gudia (Private) Limited amongst others. These letters provide a review of the applicant's duties or responsibilities.
[31] At paragraph 10 of his affidavit, the visa officer wrote:
The Applicant provided some letters from his clients as proof of his business and work experience. These reference letters were again very general and did not give details of the actual work done by Mr. Ayub. One reference letter calls him by title only, i.e. IT Manager. The letters did not include details on the programming language used, time frames, specifications of the task and they did not indicate if he worked alone or as part of a team. I considered these letters and based on the explanations of the duties performed I was not satisfied that the Applicant has performed a substantial number of the main duties including the essential ones as a computer programmer.
[32] The applicant has provided many documents relating to his courses, his experience as an employee and as a partner in private business.
[33] Given that the applicant did not have the educational requirements for his chosen application, it is my opinion the visa officer had to consider the applicant's education, training and experience in its entirety to assess properly the applicant's capacity to meet the criteria for the job.
[34] In Karathanos, [1999] F.C.J. No. 1528 (F.C.T.D.) Sharlow J. (as she then was) held:
para [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. After reviewing the record, I am far from satisfied that the visa officer made a reasonable assessment of Ms. Karathanos' work experience with that question in mind.
[35] I am not convinced that the visa officer had sufficient knowledge so as to request that the applicant write within a 20 minute time-frame a computer programme and to assess the result as she did. In my view, computer programming is far more complex than that. The less expert a visa officer is in a specialized area, the more prudent he or she should be in his or her attempts to assess the applicant's skills; and should not depart from the usual way of assessment.
[36] In my view, the visa officer crossed the line, and committed a reviewable error in not making a reasonable assessment of the applicant's work experience. In the circumstances, the visa officer should have clarified any negative impression and investigated the evidence further (see Lai v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1451 (F.C.T.D.). Therefore, this application is allowed. The decision of the visa officer is quashed and Mr. Ayub's application for permanent residence is referred back for reconsideration by a different visa officer.
[37] Neither counsel suggested a question for certification.
"Pierre Blais"
Judge
TRIAL DIVISION
Date: 20020814
Docket: IMM-943-01
BETWEEN:
AMIR AYUB
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-943-01
STYLE OF CAUSE:
AMIR AYUB
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 30, 2002
REASONS FOR ORDER AND ORDER :
THE HONOURABLE MR. JUSTICE BLAIS
DATED: August 14, 2002
APPEARANCES:
Mr. Max Chaudhary FOR THE APPLICANT
Ms. Leena Jaakkimainen FOR THE RESPONDENT
SOLICITORS OF RECORD:
Chaudhary Law Office FOR THE APPLICANT
North York, Ontario
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario