Federal Court Decisions

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Date: 20030813

Docket: IMM-2036-02

Citation: 2003 FC 977

Toronto, Ontario, August 13th, 2003

Present:           The Honourable Madam Justice Heneghan                                      

BETWEEN:

                   THUDUGALA MUDALIGE PREETHIKA SHYAMALI THUDUGALA

                                                                                   

                                                                                                                                                       Applicant

                                                                                 and

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 Ms. Thudugala Mudalige Preethika Shyamali Thudugala (the "Applicant") seeks judicial review of the decision made by overseas Visa Officer Moira Escott (the "Visa Officer") on April 29, 2002. In her decision, the Visa Officer refused the Applicant's application for permanent residence in Canada.

[2]                 The Applicant, a citizen of Sri Lanka, submitted an application for permanent residence to the Canadian Consulate General in Buffalo, New York, in November 2000. She applied under the skilled worker category and identified her intended occupation in Canada as a computer programmer, National Occupational Classification ("NOC") code 2163.

[3]                 The Applicant attended an interview with the Visa Officer on April 23, 2002. At that time, she was questioned about her education and experience relative to her intended occupation.

[4]                 Her application was rejected in a letter dated April 29, 2002. That letter advised that she had been awarded 61 units of assessment, but zero units for the occupational factor and zero units for experience. The refusal letter stated the reasons for this assessment, in part, as follows:

...I was unable to award you units for the factor of experience because I was unable to conclude you have performed the functions of a computer programmer.

...

You were given a serious of questions to answer to assess your knowledge in the computer programming field. You were unable to answer the questions correctly. I was unable to conclude based on information on file and obtained at interview that you have the qualifications and experience of a computer programmer as per the NOC description. You did not present yourself as a knowledgeable and experienced programmer. You stated at interview that your knowledge and experience as a programmer was limited and you would need to upgrade your skills in order to pursue this occupation in Canada.

[5]                 The dispositive question in this application is the applicable standard of review. In Seepersaud v. Canada (Minister of Citizenship and Immigration), 2001 FCT 948 (F.C.T.D.) at paragraph 7 the Court said as follows:


I accept the respondent's argument that the determination of whether the applicant performed certain duties is factual. Such a determination is entitled to be reviewed on the most deferential standard. However, from the record, it is impossible to tell how the visa officer came to her factual conclusion. On the other hand, the employer's letter to which the visa officer does not refer in her reasons or in the CAIPs notes suggests the applicant has experience as a Heavy Duty Equipment Mechanic....

[6]                 In my opinion, that problem is also found in the present case. There is nothing in the record, the affidavit of the Visa Officer or in the transcript of her cross-examination on that affidavit to show that she turned her mind to a comparison of the Applicant's experience, as presented at the interview, and outlined in her employment references, and the duties set out in the NOC for a computer programmer job description 2163. In the result, this Court is unable to identify the reason for the Visa Officer's refusal of this application.

[7]                 Consequently, this application for judicial review is allowed and the matter remitted to a different Visa Officer for redetermination. There is no question for certification arising.

                                                  ORDER

The application for judicial review is allowed and the matter is remitted to a different Visa Officer for redetermination. There is no question for certification arising.                 

                                                                                           "E. Heneghan"                

                                                                                                      J.F.C.C.                       


                                       FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   IMM-2036-02

STYLE OF CAUSE: THUDUGALA MUDALIGE PREETHIKA SHYAMALI

THUDUGALA

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

PLACE OF HEARING:                                   TORONTO, ONTARIO

DATE OF HEARING:                                     AUGUST 7, 2003

REASONS FOR ORDER

AND ORDER:          HENEGHAN J.

DATED:                      AUGUST 13, 2003

APPEARANCES:                                             

Paul Vandervennen

For the Applicant

Greg George

For the Respondent

SOLICITORS OF RECORD:                        Vandervennen Lehrer

Toronto, Ontario

For the Applicant

Morris Rosenberg

Deputy Attorney General of Canada

For the Respondent


FEDERAL COURT OF CANADA

TRIAL DIVISION

Date: 20030813

Docket: IMM-2036-03

BETWEEN:

THUDUGALA MUDALIGE PREETHIKA SHYAMALI THUDUGALA

                                                                          Applicant

and

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

                                                                            Respondent

                                                           

REASONS FOR ORDER

AND ORDER

                                                             

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