Date: 20010628
Docket: IMM-340-00
Neutral Citation: 2001 FCT 721
Halifax, Nova Scotia, this 28th day of June, 2001
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
FULVIA BALDASSARRE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
O'KEEFE J.
[1] This is an application for judicial review of a decision of visa officer Raymond Gabin, dated December 16, 1999, refusing the applicant's application for permanent residence in Canada.
[2] The applicant seeks an order quashing the above decision and referring the application back to the respondent for a new decision.
Background Facts
[3] The applicant, Fulvia Baldassarre is a citizen of Italy who submitted an application for permanent residence in Canada, indicating Medical Secretary (NOC Code 1243) as her intended occupation. The applicant, by letter of her counsel dated July 28, 1999, requested the exercise of positive discretion pursuant to subsection 11(3) of the Immigration Regulations, 1978, SOR/78-172 (the "Regulations") if she were not awarded sufficient units of assessment in her application. The applicant completed a Bachelor's degree in nursing. At the time of her application, the applicant was enrolled in the Clinical Health Sciences Graduate Program studying for her Master's degree in nursing at McMaster University in Hamilton, Ontario.
[4] The applicant was not interviewed and by letter dated December 16, 1999, which reads in part as follows, her application for permanent residence in Canada was denied:
My assessment of your occupation was conducted according to National Occupational Classification. You requested assessment in the following occupation: medical secretary, NOC 1243.0
I have carefully assessed and investigated your training and experience in the occupation listed above based on the information you provided in your application, and have concluded that you are not qualified to work in this occupation in Canada, as you do not have the minimum qualifications specified in the National Occupational Classification. A one- to two-year college program or other specialized courses for secretaries or medical secretaries is required. You worked as a nurse/administrative assistant from May 1988 to December 1990, and show no specialized training as a secretary or medical secretary prior to this. In fact you attended nursing school from September 1992 to November 1995. I have therefore determined that you do not qualify for selection as a medical secretary.
I therefore also assessed you as a nurse, NOC 3152.1, an occupation for which you appear to have the necessary training. However there is no demand for this occupation in Canada. Subsection 11(2) of the Regulations does not permit issuance of an immigrant visa to applicants, in the class in which you have applied, who have received zero units of assessment for the occupational factor. The occupational factor for nurse is currently zero.
Even if there was a demand, I note that you became qualified to work as a nurse after completion of your bachelor's degree in November 1995. Since that time you worked as a nurse from November 1995 to June 1996. Therefore I would have been unable to award you any units of assessment for experience, as you have not acquired the equivalent of at least one year of full-time experience in this occupation...
The applicant was awarded the following units for the occupation of nurse, NOC Code 3152.1:
AGE 10
OCCUPATIONAL FACTOR 0
SPECIFIC VOCATIONAL PREPARATION (SVP)
or
EDUCATION/TRAINING FACTOR (ETF) 15
EXPERIENCE 0
ARRANGED EMPLOYMENT 0
DEMOGRAPHIC FACTOR 8
EDUCATION 15
KNOWLEDGE OF ENGLISH AND FRENCH LANGUAGES 15
ASSISTED RELATIVE BONUS 0
TOTAL 63
[5] The applicant supplied her labour book which showed that she worked as a clerk in a doctor's office in Italy. The duties of a clerk appear to be similar to those of a medical secretary. She worked in this position from May, 1988 to December, 1990 and from December 2, 1985 to September 28, 1987.
Relevant Statutory Provisions
[6] The relevant provisions of the Regulations state:
| 11.1 For the purpose of determining whether an immigrant and the immigrant's dependants will be able to become successfully established in Canada, a visa officer is not required to conduct an interview unless, based on a review of the visa application and the documents submitted in support thereof, (a) the immigrant is an immigrant described in paragraph 8(1)(a) and is awarded, for the factors set out in column I of items 1 to 8 of Schedule I, including, where required by these Regulations, at least one unit of assessment for each of the factors set out in column I of items 3 and 4 of that Schedule, (i) at least 60 units of assessment, where the immigrant is not an assisted relative, (ii) at least 55 units of assessment, where the immigrant is an assisted relative referred to in paragraph 10(1)(b), (iii) at least 45 units of assessment, where the immigrant is an assisted relative referred to in clause 10(1.1)(d)(i)(A), and (iv) at least 50 units of assessment, where the immigrant is an assisted relative referred to in clause 10(1.1)(d)(i)(B); or (b) the immigrant is an entrepreneur, an investor, a provincial nominee or a self-employed person. (2) Subject to subsections (3) and (4), a visa officer shall not issue an immigrant visa pursuant to section 9 or 10 to an immigrant other than an entrepreneur, an investor, a provincial nominee or a self-employed person unless (a) the units of assessment awarded to that immigrant include at least one unit of assessment for the factor set out in item 4 of Column I of Schedule I; (b) the immigrant has arranged employment in Canada; or (c) the immigrant is prepared to engage in employment in a designated occupation. (3) A visa officer may (a) issue an immigrant visa to an immigrant who is not awarded the number of units of assessment required by section 9 or 10 or who does not meet the requirements of subsection (1) or (2), or (b) refuse to issue an immigrant visa to an immigrant who is awarded the number of units of assessment required by section 9 or 10, if, in his opinion, there are good reasons why the number of units of assessment awarded do not reflect the chances of the particular immigrant and his dependants of becoming successfully established in Canada and those reasons have been submitted in writing to, and approved by, a senior immigration officer. |
11.1 Afin de déterminer si un immigrant et les personnes à sa charge pourront réussir leur installation au Canada, l'agent des visas n'est pas obligé de tenir une entrevue, sauf si l'immigrant, d'après l'étude de sa demande de visa et des documents à l'appui: a) soit est visé à l'alinéa 8(1)a) et se voit accorder au moins le nombre suivant de points d'appréciation pour les facteurs mentionnés à la colonne I des articles 1 à 8 de l'annexe I, y compris, dans les cas où le présent règlement l'exige, au moins un point d'appréciation pour chacun des facteurs mentionnés à la colonne I des articles 3 et 4 de cette annexe: (i) 60 points d'appréciation, dans le cas d'un immigrant qui n'est pas un parent aidé, (ii) 55 points d'appréciation, dans le cas d'un parent aidé visé à l'alinéa 10(1)b), (iii) 45 points d'appréciation, dans le cas d'un parent aidé visé à la division 10(1.1)d)(i)(A), (iv) 50 points d'appréciation, dans le cas d'un parent aidé visé à la division 10(1.1)d)(i)(B); b) soit est un candidat d'une province, un entrepreneur, un investisseur ou un travailleur autonome. (2) Sous réserve des paragraphes (3) et (4), l'agent des visas ne délivre un visa en vertu des articles 9 ou 10 à un immigrant autre qu'un entrepreneur, un investisseur, un candidat d'une province ou un travailleur autonome, que si l'immigrant: a) a obtenu au moins un point d'appréciation pour le facteur visé à l'article 4 de la colonne I de l'annexe I; b) a un emploi réservé au Canada; ou c) est disposé à exercer une profession désignée. (3) L'agent des visas peut a) délivrer un visa d'immigrant à un immigrant qui n'obtient pas le nombre de points d'appréciation requis par les articles 9 ou 10 ou qui ne satisfait pas aux exigences des paragraphes (1) ou (2), ou b) refuser un visa d'immigrant à un immigrant qui obtient le nombre de points d'appréciation requis par les articles 9 ou 10, s'il est d'avis qu'il existe de bonnes raisons de croire que le nombre de points d'appréciation obtenu ne reflète pas les chances de cet immigrant particulier et des personnes à sa charge de réussir leur installation au Canada et que ces raisons ont été soumises par écrit à un agent d'immigration supérieur et ont reçu l'approbation de ce dernier. |
|
[7] Issues
1. Did the visa officer err in law by stating in the refusal letter that "A one- to two-year college program or other specialized courses for secretaries or medical secretaries is required" for the occupation Medical Secretary NOC (National Occupational Classification) 1243.0 when the NOC indicates that this type of program is "usually required"?
2. Did the visa officer err in law by failing to state either in his CAIPS notes or the refusal letter that he had considered the applicant's request for the exercise of positive discretion pursuant to paragraph 11(3)(a) of the Regulations?
3. Should the applicant have been granted an interview?
Analysis and Decision
[8] Issue 1
Did the visa officer err in law by stating in the refusal letter that "A one- to two-year college program or other specialized courses for secretaries or medical secretaries is required" for the occupation Medical Secretary NOC (National Occupational Classification) 1243.0 when the NOC indicates that this type of program is "usually required"?
The NOC employment requirement for medical secretaries reads as follows:
· Completion of secondary school is usually required.
· Completion of a one or two-year college program or other specialized courses for secretaries or medical secretaries is usually required.
The visa officer, in his refusal letter to the applicant stated "A one- to two-year college program or other specialized courses for secretaries or medical secretaries is required" for the occupation medical secretary NOC 1243.0. In the CAIPS notes the visa officer wrote:
ASSESSMENT:
NOC STATES THAT A COMPLETION OF A ONE- TO TWO-YEAR COLLEGE RPOGRAM [sic] OR OTHER SPECIALIZED COURSES FOR SECRETARIES OR MEDICAL SECRETARIES IS REQUIRED. . . .
[9] This certainly indicates to me that the visa officer must have believed that this additional education was required in order to meet the employment requirements for the occupation medical secretary. My conclusion is further supported by the remarks in the CAIPS notes by the case analyst, Elisa Tatro, on December 9, 1999 when she did a preliminary analysis of the file. These remarks read in part as follows:
SUBJ DOES NOT APPEARS [sic] TO MEET NOC EMP REQUIREMENTS IN THE ABOVE OCCUPATION. THE NOC STATES THAT COMPLETION OF A 1 OR 2 YR COLLEGE PRGM OR OTHER SPECIALIZED COURSES FOR MEDICAL SECRETARIES OR SECRETARIES IS USU REQD.
[10] In contrast to the case analyst writing "IS USU REQD.", the visa officer wrote "is required" on two occasions - in the CAIPS notes and in the refusal letter. I have to attach the plain and ordinary meaning to the use of the words "is required". Counsel for the applicant has persuaded me that the visa officer did the assessment believing that the additional education was required. This is not a matter that can be cleared up in a later affidavit by the visa officer. Accordingly, I am of the opinion that the visa officer made an error of law in stating that the education "is required" for the occupation Medical Secretary. The decision of the visa officer must be set aside.
[11] There is no necessity to rule on Issues 2 and 3 due to my ruling on Issue 1.
[12] Neither party wished to certify a serious question of general importance.
ORDER
[13] IT IS ORDERED that the decision of the visa officer be set aside and the matter be submitted to a different visa officer for reconsideration.
"John A. O'Keefe"
J.F.C.C.
Halifax, Nova Scotia
June 28, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-340-00
STYLE OF CAUSE: FULVIA BALDASSARRE
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: TUESDAY, JUNE 19, 2001
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: THURSDAY, JUNE 28, 2001
APPEARANCES:
Mr. Arthur Yallen
FOR APPLICANT
Ms. Ann Margaret Oberst
FOR RESPONDENT
SOLICITORS OF RECORD:
Gilbert & Yallen
204 St. George Street
Third Floor
Toronto, Ontario
M5R 2N5 FOR APPLICANT
Department of Justice
130 King Street West
Suite 3400, The Exchange Tower, Box 36
Toronto, Ontario
M5X 1K6
FOR RESPONDENT
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20010628
Docket: IMM-340-00
Neutral Citation: 2001 FCT _____
BETWEEN:
FULVIA BALDASSARRE
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER