Date: 20020415
Docket: IMM-3836-00
Neutral citation: 2002 FCT 409
BETWEEN:
LIVIU LEUCE,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
LAYDEN-STEVENSON J.
[1] Liviu Leuce, in his application for judicial review, requests that the June 19, 2000 decision of a visa officer at the Canadian Embassy in Bucharest denying Mr. Leuce's application for permanent residence in Canada be set aside and that the application be referred back to the Canadian Embassy for consideration by a different visa officer.
[2] The applicant, Leuce, is a citizen of Romania. He has a diploma from the Faculty of Mechanics, Traian Vuia Polytechnical Institute. On September 11, 1998, he applied for permanent residence in Canada as an independent applicant. Item 16a of his application listed his intended occupation as mechanical engineer, National Occupational Classification (NOC) code 2132.1. His application included his wife and 13 year old child as dependants. The applicant attended at the Embassy on May 11, 2000 where he was interviewed by the visa officer whose notes of the interview are contained in the Computer Assisted Immigration Processing System (CAIPS) notes and form part of the Tribunal Record. Paragraph 4 of the visa officer's affidavit states that the CAIPS notes accurately reflect his recollection of the salient events related therein.
[3] The application was denied by letter dated June 19, 2000 on the basis that the applicant, having been awarded 66 units of assessment rather than the minimum requirement of 70 units, failed to qualify for immigration.
[4] The applicant attacks the decision of the visa officer in several respects. In view of the disposition herein, it is not necessary to deal with the applicant's various submissions. The principal argument is that Mr. Leuce was not assessed under his intended occupation as stated in his application. The applicant submits that Issaeva v. Canada (Minister of Citizenship and Immigration (1996), 124 F.T.R. 178, Olajuwon v. Canada (Minister of Citizenship and Immigration (1998), 150 F.T.R. 158, Rizk v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1083 (T.D), Xu v. Canada (Minister of Citizenship and Immigration) (1999), 177 F.T.R. 122, Krishnamurthy v. Canada (Minister of Citizenship and Immigration (2000), 6 Imm. L.R. (3d) 125 (F.C.T.D.), Dhaliwal v. Canada (Minister of Employment and Immigration (1992), 52 F.T.R. 311 and Israfil v. Canada (Minister of Citizenship and Immigration) (2000), 6 Imm. L.R. (3d) 90 (F.C.T.D.), constitute authorities that determine that a prospective immigrant is entitled to be assessed in his claimed occupation and that a visa officer who fails to do so is entitled to little deference.
[5] The respondent, on the other hand, submits that the visa officer assessed the applicant as a mechanical engineer but stopped when he determined that the applicant would not achieve enough points for landing. The visa officer then turned his attention to whether the applicant's qualifications and experience matched alternate or related occupations, in this case, that of mechanical engineering technologist. The respondent relies on Goussev v. Canada (Minister of Citizenship and Immigration (1999), 174 F.T.R. 140, specifically paragraphs 14 and 15 which read as follows:
[14] Counsel for the respondent referred me to the jurisprudence that has stated that an informal or preliminary assessment by a visa officer does not constitute an assessment of the applicant and that a visa officer has a duty to carry out an assessment of an applicant in the person's intended occupation; see, for example Issaeva v. Canada (Minister of Citizenship and Immigration) (1996), 37 Imm.L.R. (2d) 91 (F.C.T.D.) and Birioulin v. The Minister of Citizenship and Immigration (IMM-812-98, February 16, 1999). I do not understand this jurisprudence to require a visa officer to continue an assessment in a given occupational category after it has become clear that the applicant cannot obtain the required number of points to be granted landing. For example, if there is a requirement that at least one point be awarded under a given factor, and the visa officer determines that the particular individual will be awarded zero under that factor, the visa officer is not required to continue a pointless exercise of evaluating the other factors. An assessment has been done.
[15] The Issaeva and Birioulin cases speak to a situation in which an assessment, had it been completed, might have led to a conclusion that the applicant could be awarded enough points to be granted landing. That was not the situation in this case with the assessment of the applicant by reference to the occupational categories of mechanical engineer and marine engineer. The present situation is similar to those in Ou v. Canada (Minister of Citizenship and Immigration) (1997) 39 Imm. L.R. (2d) 227 (F.C.T.D.) and Cai v. Minister of Citizenship and Immigration (IMM-883-96, January 17, 1997 (F.C.T.D.). Also, in assessing the applicant under the category marine engineer officer (NOC 2274), and mechanic (marine) (NOC 7311), the visa officer was only undertaking the duty this Court has said visa officers must perform, that is, assessing the applicant in alternate occupational categories to those he specifically identified, categories that might lead to a more favourable result for him; see, for example, Gaffney v. Canada (Minister of Employment and Immigration) (1991), 12 Imm. L.R. (2d) 185 (F.C.A.)
[6] The respondent's position is that: the applicant benefited by obtaining an additional assessment; the CAIPS notes and the visa officer's affidavit clearly indicate that the interview was conducted in order to assess the applicant as a mechanical engineer; the evidence demonstrates that once the visa officer determined that the applicant should be evaluated as a mechanical engineer technologist, he informed the applicant, gave him an opportunity to respond and therefore did not err in classifying the applicant as a mechanical engineer technologist notwithstanding considerable overlap between that classification and the classification of mechanical engineer.
[7] I agree with the respondent that the evidence contained in the affidavit and the CAIPS notes of the visa officer leaves little doubt that the applicant's interview was conducted in relation to the intended occupation of mechanical engineer. That, however, does not dispose of the matter. The issue is not whether the applicant was interviewed as an intended mechanical engineer but whether he was assessed in that occupational classification. Assessment, under the intended occupation must continue at least until, as a minimum, "it has become clear that the applicant cannot obtain the number of units to be granted landing" (Goussev v. Canada (Minister of Citizenship and Immigration), supra), before assessing the applicant in the "alternate occupational categories to those he specifically identified, categories that might lead to a more favourable result for him." (Goussev citing Gaffney v. Canada (Minister of Employment and Immigration) (1991), 12 Imm. L.R. (2d) 185 (F.C.A.)).
[8] The correspondence of the visa officer dated June 19, 2000, which sets out his decision with respect to the applicant's application for permanent residence, states at page 1:
Dear Mr. Leuce:
This refers to your application for Permanent Residence in Canada.
I have now completed the assessment of your application and regret to inform you that I have determined that you do not meet the requirements for immigration to Canada.
Pursuant to section 8(1) of the Immigration Regulations, 1978, independent applicants, the class in which you have applied, are assessed on the basis of education, vocational preparation, experience, occupational factor (demand), arranged employment or designated occupation, Canadian demographic factors, age, knowledge of English and French languages, and personal suitability.
You were assessed according to the requirements for the occupation of mechanical engineering technologist (NOC code: 2232.1) since your work experience matches the description of this occupation as set out by the Canadian National Occupational Classification, and not the description of the occupation of production engineer (NOC code: 2141.0) (emphasis added)
[9] The Immigration Assessment Record Summary that accompanied the CAIPS notes displays an assessment for production engineer (2141.0) and an assessment for mechanical engineer technologist (2232.1).
[10] The applicant's Memorandum of Fact and Law at paragraph 25 (Applicant's Application Record at page 147) states:
In this case, it is respectfully submitted that an assessment of the applicant's intended occupation was not done in accordance with the Act and Regulations. Further, the applicant's intended occupation was not addressed in the refusal letter. Therefore the visa officer erred in law and exceeded his jurisdiction.
and further at paragraph 43 (Applicant's Application Record at page 153), the applicant says:
It is resubmitted here, the refusal letter did not even reference NOC code 2132 Mechanical Engineer. The applicant was assessed according to the requirements of a Mechanical Engineering Technologist (NOC code 2232.1) because his work experience matched the description of this occupation as set out by the Canadian National Occupation Classification and not the description of the occupation, Production Engineer (NOC code 2141.0). It is not certain what duties and under what heading the visa officer was assessing this application.
[11] Counsel for the respondent concedes that there is no evidence to explain or clarify the references to the occupation of production engineer in the June 19, 2000 correspondence or the Immigrant Assessment Record Summary in the CAIPS notes, and that the evidentiary issue is significant.
[12] A decision of a visa officer is evidence of the decision made and the reasons therefore. Wang v. Canada (Minister of Employment and Immigration), [1991] 2 F.C. 165 (eC.A.). I conclude that, on the evidence before the Court, an error appears on the face of the record and the decision of the visa officer must therefore be considered patently unreasonable.
[13] Accordingly, the application for judicial review is allowed, the decision of the visa officer dated June 19, 2000 is set aside and Mr. Leuce's application for permanent residence in Canada is returned to the Minister for redetermination by a different visa officer.
[14] Counsel did not suggest a serious question of general importance therefore no question is certified under subsection 83(1) of the Immigration Act.
____________________________________
Judge
Ottawa, Ontario
April 15, 2002