Federal Court Decisions

Date: 20021115

Docket: IMM-603-01

Neutral citation: 2002 FCT 1186

Ottawa, Ontario, this 15th day of November, 2002

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

BETWEEN:

                                                       METCHISLAV VOROTYNSKI

                                                                                                                                                       Applicant

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

O'KEEFE J.

[1]                 This is an application for judicial review in respect of the decision of a visa officer of the Canadian Embassy in Warsaw, Poland, dated January 25, 2001, wherein the visa officer refused the applicant's application for permanent residence.

[2]                 The applicant makes an application for an order quashing the decision of the visa officer and referring the matter back to a different visa officer for reconsideration.

Background

[3]                 The applicant, Metchislav Vorotynski, is a citizen of Russia. On April 1, 1999, the applicant submitted an application for permanent residence in the independent category, in the occupation of Mechanical Engineer (NOC 2132.0). The applicant's wife and his two minor sons were listed as accompanying dependants.

[4]                 The applicant received his engineering degree in June 1990. From June 1990 until October 1992, the applicant worked as an engineer. From October 1992 to January 1993, he was employed as an engineer at the commercial enterprise "Innko", and from January 1993 to October 1993, he worked as a manager at this company. From October 1993 until the interview, the applicant was employed at another company as a marketing manager and an engineer technologist.

[5]                 The applicant also worked in engineering-type positions prior to obtaining his degree.

[6]                 The applicant and his wife attended a personal interview at the Canadian Embassy in Warsaw, Poland on November 15, 2000. The interview took place in Russian and English. The decision of the visa officer was communicated to the applicant by letter dated January 25, 2001. The visa officer assessed the applicant as a Mechanical Engineer (NOC 2132.0) and awarded him the following points:

FACTOR                                                          UNITS

Age                                                                        10

Occupational Factor                                             05

Education/Training Factor (E.T.F.)                      17

Experience                                                            04

Arranged Employment (A.R.E.)                          00

Demographic Factor                                             08

Education                                                              15

English                                                     02

French                                                     00

Bonus                                                     00

Personal Suitability                                                04

TOTAL                                                   65

[7]                 The applicant was required to achieve a minimum of 70 units in order to meet the requirements for selection in the independent category. The visa officer denied the application for permanent residence.

Issues

1.          Did the visa officer err in law in ignoring the applicant's relevant employment experience obtained both prior to and after completing his degree in mechanical engineering?

2.          Did the visa officer fail to award adequate points for personal suitability based on the facts and evidence?

3.          Did the visa officer deny the applicant fairness in refusing the applicant's permanent residence application?

Applicant's Submissions

[8]                 The applicant submits that the visa officer failed to consider his full employment experience in assessing the points under the experience factor. The applicant argues that the engineering experience he acquired prior to receiving his engineering degree should have been considered in the experience factor assessment. In addition, the visa officer failed to consider all of the applicant's post-degree engineering experience.

[9]                 The applicant submits that the visa officer considered irrelevant evidence and failed to consider all of the relevant evidence in her assessment of the applicant's personal suitability. The applicant submits that it was improper for the visa officer to require evidence of the applicant's planning for the possibility of not becoming a mechanical engineer in Canada. In addition, the applicant argues that the visa officer failed to consider the applicant's pre-degree education, his lengthy pre-degree employment experience, the applicant's ability to succeed in marketing, the approval of the applicant's informal assessment by the Canadian Council for Professional Engineers ("CCPE"), the efforts the applicant had made to familiarize himself with the employment market for mechanical engineers in Canada and the fact that the applicant had friends in Canada willing to assist him settle here. Finally, the applicant submits that the visa officer gave the applicant no opportunity to address her concerns regarding his personal suitability.

Respondent's Submissions

[10]            The respondent submits that the visa officer did not err by not awarding any points for work experience that occurred prior to the applicant being qualified as a mechanical engineer or in limiting the applicant's work experience to the period subsequent to his obtaining a degree. In addition, not all of the work experience the applicant gained after receiving his engineering degree consisted of engineering-related duties. Finally, the respondent submits that the visa officer made no error in law with respect to the factors she considered relevant to the personal suitability assessment.

Relevant Statutory Provisions and Regulations

[11]            Schedule I to the Immigration Regulations, 1978, SOR/78-172, as amended, defines the personal suitability factor:

  

Analysis and Decision

[12]            Issue 1

Did the visa officer err in law in ignoring the applicant's relevant employment experience obtained both prior to and after completing his degree in mechanical engineering?

Pre-Degree Work Experience

The applicant indicated at the hearing that the argument relating to pre-degree work experience would not be pursued.

[13]            Post-Degree Work Experience

Clearly, the applicant worked as an engineer from June 1990 until January 1993. The visa officer gave the applicant four units of assessment for this experience. From January 1993 to October 1993, the applicant worked as a manager, and from October 1993 until the interview date, the applicant states that he was employed at Media Data International both as a marketing manager and an engineer (reference letter states engineer-technologist). The visa officer, in her CAIPS notes states that the applicant was only employed as an engineer for two years. This is not correct, as the evidence shows that the applicant was employed as an engineer for two and one-half years. The visa officer credited the applicant with four units of assessment for the two years of experience.

[14]            The reference letter from Media Data International, contained at page 129 of the tribunal record, would seem to indicate that the applicant worked as an engineer in the advertising department of the company until March 2, 1998 and then he became manager of the marketing department. The same letter also refers to the applicant working as an engineer-technologist. This experience was not addressed by the visa officer. It may well be that when the work the applicant did in these years is assessed, the applicant would receive more units of assessment for experience. In my view, the visa officer erred in not addressing this experience.

[15]            Issue 2

Did the visa officer fail to award adequate points for personal suitability based on the facts and evidence?

The visa officer awarded the applicant four units of assessment out of a maximum of ten units for personal suitability. In Schedule I of the Immigration Regulations, supra, personal suitability is described as follows:

  

[16]            In Amir v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1706 (QL) (T.D.), Dubé J. stated at paragraphs 7 and 8:

Thus, the factor of personal suitability must be assessed in relation with the suitability of an applicant "to become successfully established in Canada". It is an economic factor which allows the visa officer to form an opinion as to whether or not the applicant will succeed in his field in this country. In this instance, the visa officer must bear in mind that the applicant does not intend to become a university professor but a short order cook.

The applicant has done rather well economically in the United States in his particular field since he is arriving here with $6,000 cash. After six years experience in the same restaurant, he was promoted from short order cook to chef. Whether or not he will land a job here has already been assessed under factor 5 "arranged employment or designated occupation" wherein he was awarded 0 unit out of 10.

[17]            In this case, the visa officer considered the following when giving the applicant only four units of assessment for personal suitability: the applicant did not plan for the possibility that he may not be successful in obtaining a position as a mechanical engineer. I agree with Dubé J. that whether or not the applicant will obtain a job in Canada should not have been dealt with under the heading of personal suitability.

[18]            The applicant had also applied to the Canadian Council of Professional Engineers for an informal assessment of his qualifications to become an engineer in Canada and on April 16, 1999, the CCPE informed him that his qualifications appeared acceptable. This reply was sent to the Canadian Embassy in Poland, on July 14, 1999. At the interview, the visa officer asked the applicant to obtain this approval and stated in her affidavit that the applicant "only knew that to work as a mechanical engineer in Canada that he would have to obtain a Canadian license".

Even though the approval was sent to the Canadian Embassy in Poland, in July 1999, the visa officer asked for it at the interview; the approval was sent again in November 2000, before the refusal letter of January 25, 2001. The applicant did more than just find out he had to write exams. I am of the view that the visa officer failed to consider the approval from the CCPE in assessing personal suitability and this was a failure to consider relevant evidence.

[19]            For the above reasons, I am of the opinion that the visa officer's decision with respect to personal suitability was patently unreasonable and must be set aside. The matter will be returned to a different visa officer for reconsideration.

[20]            As Issues 1 and 2 dispose of this application, I will not deal with Issue 3.

[21]            Neither party wished to propose a serious question of general importance for certification.

ORDER

[22]            IT IS ORDERED that the decision of the visa officer is set aside and the matter be returned to a different visa officer for reconsideration.

  

                                                                                   "John A. O'Keefe"             

                                                                                                      J.F.C.C.                      

Ottawa, Ontario

November 15, 2002

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   IMM-603-01

STYLE OF CAUSE: METCHISLAV VOROTYNSKI

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

                                                         

PLACE OF HEARING:                                   Toronto, Ontario

DATE OF HEARING:                                     Tuesday, October 29, 2002

REASONS FOR ORDER AND ORDER OF O'KEEFE J.

DATED:                      Friday, November 15, 2002

APPEARANCES:

Ms. Nancy Elliott

FOR APPLICANT

Mr. Michael Butterfield

FOR RESPONDENT

SOLICITORS OF RECORD:

Nancy Myles Elliott

Suite 601

130 Bloor Street West

Toronto, Ontario

M5S 1N5

FOR APPLICANT

Department of Justice

Suite 3400, Box 36, The Exchange Tower

130 King Street West

Toronto, Ontario

M5X 1K6

FOR RESPONDENT

                                                  

                    FEDERAL COURT OF CANADA

                                  TRIAL DIVISION

                                                                                                      

Date: 20021115

Docket: IMM-603-01

BETWEEN:

METCHISLAV VOROTYNSKI

Applicant

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

Respondent

                                                                                                                              

             REASONS FOR ORDER AND ORDER