Date: 20010314
Docket: IMM-5726-99
Neutral Citation: 2001 FCT 189
BETWEEN:
SVITLANA NAUMENKO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicant seeks judicial review of a decision of an immigration officer in the Canadian Embassy in Paris, dated October 28, 1999, wherein she found that the applicant did not have the necessary qualifications or experience to meet the requirements for immigration to Canada. The issues are whether or not the immigration officer erred in law by not considering the applicant under the NOC Category of "Financial Manager" and whether or not the immigration officer violated the principles of fairness by continuing to interview the applicant after it became clear that she was unable to properly respond due to lack of an interpreter.
[2] The applicant listed in her application for a visa that her current occupation was Financial Manager and that she intended to find work in Canada as a Financial Manager or Accountant. In this regard, the immigration officer stated:
Even though you applied as an Accountant, I could not consider you in this profession because the reference letter you provided and your incapacity to adequately describe your duties made me doubt that you are actually an Accountant. In addition the non-validated job offer you presented at the interview was referring to a position of "Book keeper". Based on your education and the type of the job offer I decided to assess you based on the requirements for the occupation of Book keeper, NOC 1231.0.
The visa officer's notes, the CAP notes and the visa officer's affidavit all failed to disclose any consideration of the applicant for the occupation of Financial Manager as requested. This is an error in law.
[3] Mr. Justice Rothstein in Issaeva v. MCI (1996), 37 IMM. L.R. (2d) 91 (T.D.) quoted favourably from Mahoney J.A.'s comments in Uy v. MEI (1991), 12 Imm. L.R. (2d) 172 (F.C.A.) as follows:
In my opinion, s. 6 of the Act requires a visa officer to assess any immigrant who applies for landing in the manner prescribed by the Act and Regulations. Section 8(1) of the Regulations imposes, in mandatory terms, a duty to assess, and I find nothing in either the Act or Regulations which would permit a visa officer to refuse to assess in respect of the occupation or alternative occupations which the immigrant (or his or her spouse) states it is intended be pursued in Canada. The visa officer erred in law and exceeded his jurisdiction by refusing to assess the appellant for admission to Canada as a Medical Technologist.
Rothstein J. then concludes:
I think this passage makes it clear that a prospective immigrant is entitled to be assessed in the prospective immigrant's claimed occupation.
This error is sufficient to require the matter to be returned to a different immigration officer in the Canadian Embassy in Paris for assessment.
[4] I therefore do not have to determine whether the visa officer, in making the comments that the applicant's incapacity to adequately describe her duties, was sufficient to disqualify her as an accountant. Since the matter is being returned, the applicant is entitled to have an immigration officer conclude as to whether she is qualified as a Financial Manager or an Accountant.
[5] I would not have returned this matter for reconsideration based strictly on the lack of an interpreter, as the immigration officer offered to adjourn the hearing for a day in order to allow the applicant to find an interpreter and even provided the applicant with a list of interpreters kept by the Canadian Embassy. In my view, it would be very unwise for the applicant to attend the new interview without bringing an interpreter.
[6] I should also add that I am in agreement with the immigration officer's finding that the proposed interpreter brought by the applicant to the initial interview was clearly in a conflict of interest. A consultant who assists on preparing an applicant's immigration form is not entitled to act as interpreter for an applicant.
[7] The application for judicial review is allowed and the matter is returned to be assessed by a different immigration officer at the Canadian Embassy in Paris in a manner not inconsistent with these reasons.
"W.P. McKeown"
JUDGE
OTTAWA, ONTARIO
March 14, 2001