Date: 20010424
Docket: IMM-535-00
Neutral citation: 2001 FCT 377
Ottawa, Ontario, Tuesday the 24th day of April 2001
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] At the conclusion of oral argument at the hearing of the judicial review on April 12, 2001, I advised counsel that, for written reasons to be delivered, I would be dismissing the application for judicial review. These are my reasons.
[2] Mr. Naraine brings this application for judicial review from the decision of a visa officer at the Canadian Consulate General in New York, dated January 14, 2000 whereby Mr. Naraine's application for permanent residence in Canada was refused.
[3] Mr. Naraine is a forty-one year old citizen of Guyana who applied in the assisted relative category in the occupation of Construction Estimator, National Occupational Classification ("NOC") 2234. Mr. Naraine has lived in the United States since 1991. His application for permanent residence stated that from 1993 to 1996 he worked as a carpenter, and from 1996 to the time of his interview he worked as a construction estimator for a company in New York. Mr. Naraine submitted a letter of reference from that company dated May 17, 1999 which outlined his duties as a construction estimator. He was interviewed by the visa officer on January 12, 2000.
[4] Mr. Naraine was assessed in his intended occupation of construction estimator, and received 57 units of assessment. Of relevance to this application is that the visa officer awarded one unit of assessment in respect of the occupational factor, zero units for experience, five units for education and four units for personal suitability. Mr. Naraine's application was refused because he failed to gain any units of assessment for experience.
[5] In this application, Mr. Naraine asserted that the visa officer committed a reviewable error in awarding zero units of assessment for experience and five units for education. The cumulative effect of those errors, and the effect that those errors may have on the assessment of personal suitability, were said to constitute a reviewable error.
[6] With respect to the first issue, Mr. Naraine is correct that it is an error to award units for the occupational factor in circumstances where no units of assessment are awarded for experience in respect of that same occupation. These awards are inconsistent because Schedule I of the Immigration Regulations, 1978, SOR/78-172 requires a visa officer, when assessing the occupational factor, to consider what the employment opportunities in Canada are for the occupation in which the applicant has performed a substantial number of the main duties set out in the NOC description of the occupation. Thus, an award under that factor is premised on the existence of some experience.
[7] However, as I noted in Jawanda v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 502, IMM-1357-00 (April 3, 2001) (F.C.T.D.), it is my view that for such error to be reviewable there must be some evidence that the applicant had relevant experience, and the error must be material to the decision of the visa officer.
[8] In this case, I doubt that the error was material. However, in any event, I am not satisfied that there was some evidence of relevant experience before the visa officer.
[9] The visa officer conducted a lengthy interview of Mr. Naraine which, he swore in his affidavit filed in this proceeding, lasted some two and a half hours.
[10] In the CAIPS notes, the visa officer referenced the letter from the employer outlining Mr. Naraine's experience, but also wrote that:
SAYS THAT HE WAS TRAINED TO DO ESTIMATES. BASED ON HIS EXPLANATION, I BELIEVE [SUBJECT] WORKS AS A CONSTRUCTION WORKER. HE HAS FAILED TO PROVIDE ANY CREDIBLE EVIDENCE OF HIS QUALIFICATIONS, TRAINING AND EMPLOYMENT EXPERIENCE AS AN ESTIMATOR. NO UNITS GRANTED FOR EXPERIENCE.
[11] The visa officer expanded upon this in her affidavit filed in opposition to this proceeding where she testified that:
24. Although his reference letter gives a detailed description of his duties as a construction estimator, the applicant had difficulties in explaining his duties. He could not repeat what was said on the letter about his job. He could not discuss his projects in details: length of time, methods of estimation, type of projects etc. From his explanation, I believe that the applicant is a construction worker. He does all kind of work, insulation, carpentry, all construction related duties. Thus, I was not satisfied that the applicant performed the duties of a construction estimator as described under the NOC despite the statements in his reference letter. The applicant has failed to provide any credible evidence of his qualifications, training or employment experience as a construction estimator. I did not award the applicant any units of assessment for experience.
[12] The visa officer was not cross-examined on this testimony. Further, Mr. Naraine did not directly contradict this evidence. In his affidavit he testified that the visa officer repeatedly asked about his experience and that she "kept implying that I am doing construction and carpentry work".
[13] The visa officer was best placed to assess the credibility of Mr. Naraine and to be satisfied as to whether he had, in fact, performed the duties listed in the reference letter. I cannot conclude that the visa officer failed to consider, or ignored, relevant evidence. It was reasonably open to the visa officer to conclude, as she did in the refusal letter and the CAIPS notes, that there was not credible evidence of Mr. Naraine's employment experience.
[14] In the absence of credible evidence of experience, as previously noted, it is not a reviewable error to award zero units of assessment for experience, even where one unit of assessment had been awarded in respect of the occupational factor.
[15] With respect to the visa officer's assessment of Mr. Naraine's education, Mr. Naraine complained that he should have been awarded ten units of assessment because he holds a GCE Certificate which ordinarily leads to university entrance.
[16] The CAIPS notes record the following:
[SUBJECT] HAS COMPLETED FORM 5 ONLY IN GUYANA. HAS ORDINARY LEVEL (O LEVEL). HAS TAKEN THE GENERAL CERTIFICATE OF EDUCATION (GCE) EXAMS IN FORM 5. DID NOT COMPLETE THE 2 YEAR COURSE FOR THE FORM 6. [SUBJECT] HAS COMPLETED 4 GCE SUBJECTS WITH THE FOLLOWING GRADES: HISTORY (C), MATHEMATICS (C), ENGLISH LANGUAGE (E), ARTS (C). HAS TAKEN EXAM FOR HISTORY AND MATHS TWICE IN ORDER TO RECEIVE A BETTER SCORE. IN ORDER FOR [SUBJECT] TO RECEIVE THE EQUIVALENT OF COMPLETED SECONDARY EDUCATION, HE [WOULD] REQUIRE 5 GCE SUBJECTS WITH GRADE A, B, OR C.
[17] In her affidavit, the visa officer swore that:
13. The applicant did not present a High School or a Secondary School diploma. As per the Regulations, he should have received zero points for education. Since the underlying meaning of a diploma is that one has met a given standard, I considered whether the four examinations the applicant passed at the Ordinary Level ("O" Level) in the General Certificate of Education examinations constituted the equivalent of a diploma. At interview, I reviewed and discussed the documents presented with the applicant. The applicant presented 3 documents as proof of his education (see pages 45 to 47 of the Tribunal Record). The General Certificate of Education Examination shows the grades obtained by the applicant and also indicated the subjects. The document does not state that the applicant has completed High School and does not indicate that the program completed provides entrance to University. Relying upon my knowledge obtained through training in and consultation on the standard procedures developed by our office in Port-of-Spain, Trinidad which typically and regularly assesses applicants from Guyana, and my understanding that one must pass a total of five examinations at "O" level to get a diploma, I assessed the number of GCE examinations and the level (Advanced "A" or Ordinary "O") that the applicant had passed.
[...]
16. His school documents show that the applicant has completed 4 GCE subjects with the following grades: History (C), Mathematics (C), English Language (E), Arts (C). The Applicant explained to me that he had taken the exam for History and Mathematics twice in order to receive a better score. I understand that in order for the Applicant to receive the equivalent of secondary school certificate or High school graduate, he would require 5 GCE subjects with grade A, B or C.
[18] No basis was established for interfering with that assessment.
[19] For these reasons, the application for judicial review will be dismissed. Counsel posed no serious question for certification.
JUDGMENT
[20] IT IS HEREBY ORDERED AND ADJUDGED THAT:
The application for judicial review is dismissed.
"Eleanor R. Dawson"