Date: 20010628
Docket: IMM-3916-00
Neutral Citation: 2001 FCT 725
Halifax, Nova Scotia, this 28th day of June, 2001
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
OLENA BELASHOVA
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 M.E. Hrincu, dated June 23, 2000, refusing the applicant's application for permanent residence in Canada.
[2] The applicant seeks an order setting aside the above decision and an order directing that her application be re-examined and re-evaluated in conformity with the requirements of the Immigration Act, R.S.C. 1985, c. I-2 (the "Act") and the Immigration Regulations, 1978, SOR/78-172 (the "Regulations").
Background Facts
[3] The applicant, Olena Belashova, is a citizen of Ukraine who made an application for permanent residence in Canada. She indicated Computer Programmer (NOC Code 2163.0) as her intended occupation. The applicant graduated from a marine engineering institution in 1978 and she later completed a course in "Computer for Programmer (C++ Programming Language)" in 1998. The applicant's application was "paper screened" by immigration programming officer Inna Skurskaya.
[4] The applicant submitted an application for permanent residence in Canada with her intended occupation as Computer Programmer once before in 1998, but was refused because according to her affidavit dated August 21, 2000, she received only 69 total points and zero points for English.
[5] On June 19, 2000, immigration programming officer Inna Skurskaya conducted a preliminary interview with the applicant. After the preliminary interview, the immigration programming officer gave the applicant a programming test intended to assist the visa officer in directing further questions about the applicant's qualifications. The applicant was seated in a separate room and given 30 minutes to complete the test. At least one of the questions involved writing a program to convert Celsius to Fahrenheit. The applicant answered none of the questions correctly. The applicant had particular difficulty writing the conversion program and asked the immigration programming officer for the formula to transfer Celsius into Fahrenheit. The immigration programming officer refused to give her the formula because she did not want to provide the answer or assistance with the quiz.
[6] All the information obtained at the preliminary interview, including the test results, were brought to the attention of visa officer M.E. Hrincu who then conducted the selection interview. By letter dated June 23, 2000, which reads in part as follows, the applicant's application for permanent residence in Canada was denied:
You indicated on your application that your intended occupation is a Computer Programmer. I assessed you according to the occupation, 2163.0 in the National Occupational Classification (NOC). At the interview you were asked to perform a simple programming test and it appeared that you were not able to answer the questions and to write a program of conversion Celsius to Fahrenheit. Therefore, I can conclude that you do not have skills required for the occupation of a Computer Programmer and I cannot grant you any points for both the occupational factor and experience.
The following describes how the points were assessed:
Age 10
Occupation 00
ETF 15
Experience 00
Demographic 08
Education 15
English 06
French 00
Relatives 00
Personal suitability 04
Total 58
Zero points for both occupational factor and experience is an immediate bar to further processing. Therefore, I am unable to issue an Immigrant Visa to you under subsections 11(1) and 11 (2) of the Immigration Regulations because you do not have skills needed for this job in Canada (as defined by the NOC).
Relevant Statutory Provisions
[7] Subsections 11(2) and 11(3) of the Regulations state:
| 11.(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. 11.(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.(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. 11.(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. |
|
[8] Issues
1. Did the visa officer err in law by not informing the applicant of her concerns and thereby not giving the applicant an opportunity to respond?
2. Did the visa officer err in law by delegating the statutory responsibility to assess the applicant's experience?
3. Did the visa officer err in law by giving the applicant a programming test?
4. Did the visa officer err in law by including the applicant's English as a factor when considering her intended occupation?
Analysis and Decision
[9] Issue 1
Did the visa officer err in law by not informing the applicant of her concerns and thereby not giving the applicant an opportunity to respond?
There is no duty imposed on a visa officer to apprise the applicant of concerns that the visa officer may have when assessing the applicant's application (see my reasons in Bhogal v. Canada (Minister of Citizenship and Immigration), (September 28, 2000) Docket IMM-5472-99 (F.C.T.D.)). The visa officer has not erred in this respect.
[10] Issue 2
Did the visa officer err in law by delegating the statutory responsibility to assess the applicant's experience?
I have reviewed the material contained in the file and I am fully satisfied that the visa officer assessed the applicant's experience as the CAIPS notes make reference to the applicant's experience. There is no information contained in the file to suggest that a third party assessed the results of the programming test. The visa officer committed no error here.
[11] Issue 3
Did the visa officer err in law by giving the applicant a programming test?
I am of the opinion that in this case, the visa officer was entitled to test the applicant's abilities in computer programming by giving her a programming test. The test consisted of six questions. The applicant had informed the visa officer of the areas of programming with which she was familiar and all the questions dealt with these areas. I do have some concerns about requiring an applicant to know the conversion formula from Celsius to Fahrenheit, however, it is not material in this case as the applicant did not answer any of the questions correctly according to the visa officer. The NOC description for computer programmers requires that "computer programmers write computer programs by coding sets of instructions into machine readable form". I do not believe it is unreasonable to require an applicant to demonstrate their ability to do this in a test. The visa officer did not make an error in this respect (see Zhou v. Canada (Minsiter of Citizenship and Immigration), (June 30, 1999) Docket IMM-3774-98 (F.C.T.D.)).
[12] Issue 4
Did the visa officer err in law by including the applicant's English as a factor when considering her intended occupation?
The applicant argues that she could have failed to do the test correctly because of a lack of language skills instead of a lack of programming skills as the test was in English. A review of the record shows that the applicant answered the first four questions in English. As well, the applicant did not allege this problem in her affidavit nor to the visa officer. Also, the applicant states in her affidavit that she easily answered the first four questions and that she could not answer the fifth question because she did not recall the formula. I do not find any merit to this argument and the allegation of double counting.
[13] The applicant presented a question to the Court for certification pursuant to subsection 83.1 of the Act. I am not prepared to certify the question.
[14] The application for judicial review is dismissed.
ORDER
[15] IT IS ORDERED that the application for judicial review is dismissed.
"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-3916-00
STYLE OF CAUSE: OLENA BELASHOVA
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, JUNE 20, 2001
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: THURSDAY, JUNE 28, 2001
APPEARANCES:
No One Present
FOR APPLICANT
Ms. Mielka Visnic
FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. David Genis
2310 - 100 Wellesley Street East
Toronto, Ontario
M4Y 1H5 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-3916-00
Neutral Citation: 2001 FCT _____
BETWEEN:
OLENA BELASHOVA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER