Date: 20010427
Docket: IMM-536-00
Neutral citation: 2001 FCT 404
Ottawa, Ontario, Friday the 27th day of April 2001
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] Mr. Awtar Singh earned a bachelor of law's degree (with second class honours) from the University of London in 1987. He has, since 1989, practised law in Malaysia. He applied for permanent residence in Canada in the independent category in the intended occupation of Legal Assistant/Paralegal. He brings this application for judicial review of the decision of a visa officer made on January 31, 2000 refusing his application.
[2] The visa officer awarded Mr. Singh zero units of assessment for experience and three units of assessment for personal suitability. Mr. Singh was awarded a total of 61 units of assessment, nine short of the number required for a visa to issue.
[3] In awarding zero units for experience, the visa officer noted in the CAIPS notes that:
IT IS CLEAR SUBJECT WORKED AS A LAWYER (HE PRESENTED CASES IN COURT, HE REPRESENTED HIS FIRM, ETC.) BUT IN DOING HIS DAY TO DAY DUTIES AS A LAWYER HE ALSO PERFORMED SOME OF THE DUTIES OF A LEGAL ASSISTANT. THAT IS TO SAY HE DID, AT TIMES, INTERVIEW A CLIENT, AT TIMES, DID SOME RESEARCH. BUT SUBJ IS UNABLE TO SUBSTANTIATE OR CLAIM THAT HE PERFORMED THE DUTIES OF A LEGAL ASSITANT [SIC] FULL TIME FOR ONE FULL YR [YEAR].
[4] This was expended upon by the visa officer in her affidavit where she swore that:
9. I assessed the Applicant's work experience by reviewing his application, his reference letters on file and questioning him at the interview about his duties and responsibilities as a Legal Assistant. In response, the Applicant indicated that he completed the duties of a Legal Assistant while working as an attorney. He was unable to clarify how he could perform both jobs simultaneously, claiming only that he did perform the duties of a Legal Assistant.
10. The Applicant did not present any letters of reference from any employer that claimed he was hired as a Legal Assistant or that he exclusively performed the duties of a Legal Assistant for one full year. [underlining added]
[...]
14. Ultimately, the Applicant confirmed to me at the interview that he did not have one full year of full time work experience as a Legal Assistant.
Conclusion
15. At the end of the interview, I advised the Applicant that he did not have the minimum one year work experience in his stated intended occupation and that he was attempting to re-cast his occupational experience into experience in a subordinate occupation in which he was seeking assessment.
[5] In so concluding, the visa officer erred. The Immigration Regulations, 1978, SOR/78-172 ("Regulations"), do not require the applicant to have worked for one full year exclusively as a legal assistant. While factor 3(a) under Schedule I of the Regulations dictates that no units of assessment may be awarded for experience which amounts to less than one year, where an applicant claims experience in a related occupation it is necessary for the visa officer to determine whether the applicant is both qualified to work in the related occupation and has experience equivalent to experience in the occupation in which the applicant seeks assessment. While an applicant must possess experience which accumulates to the equivalent of one year's experience this does not require an applicant to have worked exclusively for one year in the intended occupation. Where transferability of experience is claimed the measurement of experience may well require an exercise in equivalency. Thus in Hajariwala v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 79 (T.D.) then Associate Chief Justice Jerome observed (at page 86) that there "is no reason why the actual experience and time spent in each of the various responsibilities in an occupation cannot be broken down to award units of assessment for experience in intended occupations".
[6] In the present case, the visa officer looked for performance reviews, pay stubs and the like to substantiate employment as a legal assistant. The visa officer failed to direct her attention to the proper inquiry, namely whether Mr. Singh had performed a substantial number of the main duties of a legal assistant and the cumulative effect of his experience.
[7] It is argued that such error was not material, because even if the visa officer did err in assessing experience, irrespective of that error Mr. Singh would have failed to obtain the required number of units of assessment.
[8] It is here that the visa officer's assessment of personal suitability is relevant. The CAIPS notes reflect no analysis which led the visa officer to her conclusion that three units of assessment should be awarded.
[9] In her affidavit, the visa officer stated:
20. In response to paragraph 7 of the Applicant's affidavit, I considered several factors such as the adaptability, initiative, resourcefulness and ability of the Applicant to become successfully established in Canada, in assessing his personal suitability. I consider 3 units of assessment to be an average score for personal suitability.
[10] Mr. Singh was interviewed at the Canadian Consulate General in New York. A publication prepared by the Regional Programme Centre for Immigration for the United States advises applicants that the average score for personal suitability is five to seven units. The visa officer's contention that three units of assessment is average for personal suitability accords with neither the jurisprudence of this Court nor the advice provided by the Regional Programme Centre. In awarding three units, presumably intending to award an average score, the visa officer erred.
[11] In the result, this application for judicial review must be allowed on the terms set out below.
[12] Mr. Awtar Singh swore, and was not challenged on this evidence, that his interview lasted between ten to fifteen minutes, and that during the interview the visa officer stressed that he was overqualified for the position of legal assistant. This reference to over qualification also appears to be erroneous when the National Occupational Classification ("NOC") requirements for the position of paralegal states that legal assistants and paralegals in law firms require a bachelor's degree in law, or a college diploma in a legal assistant or law clerk program.
[13] The visa officer's error in assessing experience was fundamental and the law is well-settled in this regard. After the interview, but before the decision to reject Mr. Singh's application was made, counsel for Mr. Singh sent written submissions to the visa officer as to how it was that he met the employment requirements set out in the NOC. The letter addressed the concern that there is no requirement in the Regulations that an applicant must have held the job title of legal assistant or paralegal while performing the duties set out in the NOC. Reference in that submission was made to the Immigration Policy Manual which directs that an applicant must be assessed in all occupations that are indicated as occupations for which an applicant is qualified and prepared to follow in Canada, including alternate occupations inherent in the applicant's work experience.
[14] In these circumstances, I think it appropriate to award costs to the applicant, fixed in the amount of $1,000.00 inclusive of disbursements. Counsel posed no serious question for certification.
ORDER
[15] IT IS THEREFORE ORDERED THAT:
1. The application for judicial review is allowed and the decision of the visa officer dated January 31, 2000 is set aside and the matter is remitted for redetermination before a different visa officer.
2. The reassessment is to be completed within 180 days of the date of this order, provided that the applicant responds in a timely manner to any request for documents, information or convocation for an interview, and provided that the statutorily required checks are completed.
3. The respondent is to pay to the applicant the costs of this application fixed in the amount of $1,000.00 inclusive of disbursements.
"Eleanor R. Dawson"