Date: 20010604
Docket: IMM-2567-00
Neutral citation: 2001 FCT 586
BETWEEN:
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER
[1] The applicant is a pathologist in India. He applied for permanent residency in Canada as an independent immigrant under the intended occupation of Pathologists' Assistant (NOC 3211).
[2] The visa officer refused the application because she was not convinced the applicant had "... experience in a substantial number of the main duties as a Pathologists' Assistant". However, inadvertently or otherwise, she awarded the applicant six units of assessment under the experience factor both in her letter of decision and in her CAIPS notes. In her affidavit in this proceeding, no mention is made of this discrepancy.
[3] On its face, therefore, the letter of decision fails to provide a coherent explanation for the refusal: Hajariwala v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 79 (T.D.), at 82. There is no explanation for having awarded six units for experience when the refusal is based on the visa officer's concern for his lack of experience in the main duties of the intended occupation. For this reason alone, the visa officer's decision will be set aside.
[4] In response to the visa officer's request for clarification subsequent to the interview, the applicant submitted two letters of recommendation in support of his qualifications as a Pathologists' Assistant. The record discloses the visa officer's concerns with the credibility of these representations. As this matter will be referred to another immigration officer for reassessment, I choose not to address the visa officer's reasons for questioning the value of the two letters. However, I do wish to make certain comments which may be of assistance in the redetermination of this application for permanent residence.
[5] Under Schedule 1 of the Immigration Regulations, 1978, S.O.R./78-172, units of assessment for the occupational factor will be awarded where the applicant has performed a substantial number of the named duties set out in the National Occupational Classification, including the essential ones.
[6] The general description of a Pathologists' Assistant in the National Occupational Classification includes this statement: "Pathologists' assistants assist at autopsies and examinations of surgical specimens or perform autopsies under a pathologist's supervision."
[7] This statement, in my view, should guide the visa officer, in determining which of the main duties are set out in the National Occupational Classification. The main duties are described as follows:
Pathologists' assistants perform some or all of the following duties:
· Prepare for autopsies by obtaining patients' medical records and arranging for radiographic examinations
· Assist with or perform autopsies and surgical specimen examinations under pathologists' supervision
· Dissect, examine, weigh and photograph organs and specimens, collect tissue specimens for chemical analysis and record findings
· Prepare bodies for release to funeral homes following completion of autopsies
· Clean and maintain autopsy, surgical and other equipment
· May train junior resident pathologists and train and supervise morgue attendants.
[8] In my view, the duties set out in the second and third bullets noted above appear to be among the ones most closely related to the general statement defining the functions of a Pathologists' Assistant and "essential" to the occupation. If a visa officer determined that an applicant had experience in these specific duties but was not qualified for the occupation, the applicant would expect adequate reasons for such a conclusion: Hajariwala, supra.
[9] Finally, counsel for the respondent acknowledged the inconsistency in awarding units of assessment under the experience factor where the visa officer concludes that the applicant is not qualified for the intended occupation: Yu v. Canada (Minister of Employment and Immigration) (1990), 11 Imm. L.R. (2d) 176 (F.C.T.D.), at 185. Where units are awarded, under item 3 of Schedule 1 of the Regulations, "... for experience in the occupation in which the applicant is assessed under item 4", one must infer that the person is considered to be qualified in that occupation.
[10] Accordingly, this application for judicial review will be granted and the matter referred for redetermination by another immigration officer. Neither party suggested the certification of a serious question.
"Allan Lutfy"
A.C.J.
Ottawa, Ontario
June 4, 2001