Date: 19991126
Docket: IMM-4777-98
BETWEEN:
PARBATEE RAMBEHARRY
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED J.
[1] Counsel for the applicant, Ms. Robin Seligman, asserted in oral argument that the visa officer failed to assess her client"s application for an immigrant visa fairly. She states that the visa officer totally ignored the job offer that her client had, that the visa officer"s position was that she was not "even going to consider" whether discretion should be exercised to grant the applicant a visa "no matter what you present to me". That the "whole tone of the officer"s decision was clouded", and that the visa officer "was not willing to listen to anything that was presented no matter what it was and no matter how it was presented".
[2] These assertions do not appear to be accurate.
[3] The applicant applied for an immigrant visa, stating that her intended occupation was "child care worker". In the letter authored by counsel for the applicant, accompanying that application, counsel asserted that the applicant should be awarded 13 points for her educational qualifications, that she had an Associate of Arts Diploma as well as a Certificate in Social Services from Portland Community College in Oregon, U.S.A., that she was certified to teach in the schools in Trinidad, and had been employed as an Instructor in Psychiatric Nursing from April 1986 to May 1990 in Trinidad.
[4] The visa officer awarded the applicant 5 points for her education. The officer determined that the applicant had never completed high school in Trinidad, that she did have a certificate in Social Science and a degree of Associate of Arts (both dated June 9, 1979) from the Portland Community College, and that these had been assessed in 1987 by both the Trinidad Ministry of Education and the Nursing Council of Trinidad as equivalent to a pass in six "0" level examinations. The applicant had been informed, at that time, that the qualifications entitled her to enter the Nursing Programme in Trinidad. She enrolled in Psychiatric Nursing at the National Institute for Higher Education Research Science and Technology in Trinidad, from September 1, 1991, to April 1993, but did not complete the course.
[5] Under the points assessment system a person is awarded 5 points if they have completed a secondary school graduation diploma that does not lead to university entrance, and 10 points if they have completed a secondary school graduation diploma that does lead to university entrance. Points are also awarded for the completion of trade or occupational qualifications and for the completion of university degrees. A person is awarded 10 points if they have acquired a post-secondary school diploma that requires one full year of classroom study, admission to which is dependent upon holding a secondary school graduation diploma that qualifies the person for admission to university.
[6] When Ms. Seligman learned that her client had only been awarded 5 points for her educational achievements, she wrote the visa officer stating that this assessment was incorrect, that her client had "completed 6 "0" Levels in Trinidad and then ... a 2 " year full time course at Portland College in the United States and graduated with her diploma from that college" (emphasis added). Counsel stated that this was a community college recognized by the State of Oregon where the applicant had obtained her Associate of Arts Degree specializing in Social Sciences with Honours (no mention of honours appears on the certificate). Counsel added "How is it possible she could only score 5 points?" Counsel enclosed a copy of the diplomas, which the visa officer had already reviewed when she interviewed the applicant.
[7] The visa officer responded by advising Ms. Seligman that she had contacted the Portland Community College and had been advised that it was not necessary to have a high school diploma in order to enter that institution. The visa officer stated that if the applicant could provide evidence that she had completed high school in Trinidad and then attended the community college, she would award the applicant ten points for education.
[8] The visa officer noted that even with an award of ten points, however, the applicant would still not have the required number of points to be granted landing. The visa officer also stated that she was not prepared to exercise her discretion to recommend that the applicant be granted landing despite the shortfall in assessed points.
[9] Counsel responded to the invitation to provide more information concerning the applicant"s education by requesting that the refusal letter be sent to her client: "you advised me that you have already failed my client as you entered the data into CAIPS the day of the interview. Please send refusal as of that day...".
[10] In the application record filed for the judicial review of the visa officer"s decision, counsel for the applicant included a copy of a page from a 1998-1999 Portland Community College catalogue that described the Oregon Transfer Degree Program. It refers to an "Associate of Arts, Oregon Transfer Degree", setting out the qualifications, the courses that must be selected, the grade point average, and the number of credits that are required. Much of counsel"s argument was based on this document. She argued that it demonstrates that the visa officer erred in her assessment of the applicant"s 1979 certificate and associate degree and that those qualifications were equivalent to two years of university.
[11] Counsel for the respondent argued that this new evidence must be ignored because it was not before the visa officer; and the visa officer"s decision must be assessed by reference to the evidence that was before her. I agree.
[12] I find it a questionable practice to insert in an application record additional documentation of this nature, particularly, after an opportunity was given, and declined, to present additional evidence to the visa officer to support counsel for the applicant"s assertions. In addition, the reliance on a 1998-9 publication with respect to a "transfer" degree, as evidence to support a characterization of a 1979 degree that may be quite different is to say the least not persuasive. Had the 1998-9 documentation been presented to the visa officer there would have been an opportunity to enquire as to whether the applicant"s degree was in fact a "transfer degree", and whether the 1998-9 description applied in 1979.
[13] Counsel for the applicant would, or at least should, know that an applicant for an immigration visa has the obligation of demonstrating to the visa officer that what is claimed is correct. The applicant in this case provided the visa officer with the Trinidadian evaluations of her Portland educational qualifications. If the applicant wanted to rely on an Oregon evaluation of those qualifications, such should have been provided to the visa officer. The general, unsupported statement by counsel that the qualifications have a certain character is not adequate, nor should visa officers accept such assertions.
[14] I turn then to counsel"s arguments that the visa officer ignored the job offer that her client presented, and had a closed mind because she only awarded five points for personal suitability, and would not revisit her earlier decision respecting the refusal to exercise discretion.
[15] The officer"s CAIPS notes make it very clear that the visa officer did not ignore the job offer. She evaluated it. The visa officer noted that the job offer was at a nursing home as a "social worker" but the applicant was not qualified as a social worker. The visa officer noted that the applicant was not qualified to work as a nurse"s aid. She noted that "as a general home care worker, the salary [$14.00 per hour] is too high". The applicant"s immigrant visa application stated that she intended to work in Canada as a child care worker. Not only was the job offer for a social worker, but the nursing home described in the job offer was for the "elderly ill", not children.
[16] The visa officer awarded the applicant five points for personal suitability. Counsel for the respondent says this is an average award. Counsel for the applicant says six is an average award. Counsel for the applicant argues that an award of five for personal suitability was unreasonable because the applicant is fluent in English, had a job offer, had relatives in Canada, had extensive experience, and was highly educated with a degree from the United States. She argues that the tone of the visa officer"s notes indicate that her assessment was based on a personality conflict rather than on whether or not the applicant was likely to be able to successfully establish herself in Canada.
[17] The applicant"s fluency in English was recognized in the points assessment and the appropriate number given therefor. The fact that the applicant had a relative in Canada was accounted for because she was assessed in the Assisted Relative Category and given a bonus of 5 points on that account. The applicant did not have extensive experience. Indeed, she had been unemployed for six years prior to her application for landing. She was not highly educated and, as noted above, while counsel asserts that the applicant"s Portland Community College degree deserves to be evaluated at a certain level, neither she nor her client presented the visa officer with any concrete evidence to support that claim. The tone of the officer"s notes does not indicate a personality conflict, but merely that the visa officer was doing her job and evaluating the evidence that was put before her.
[18] Subsection 11(3) of the Immigration Regulations provides that a visa officer has discretion to recommend that an applicant be granted landing, despite a shortfall in assessed points, if, in the visa officer"s opinion, there are good reasons why the assessed points do not reflect the individual"s chances of becoming successfully established in Canada.
[19] The visa officer"s CAIPS notes explain why she decided not to exercise her discretion to recommend that the applicant be landed even though there was a the shortfall in assessed points. The notes disclose that she asked the applicant why she thought discretion should be exercised. The applicant stated that her son needed a father and the applicant"s brother was landed in Canada. The visa officer commented that the son"s father lived in Trinidad. The visa officer noted that the applicant had not been employed for six years before she filed her application for landing, that she had never been employed as a psychiatric nursing instructor, as had been claimed, and that there were "many discrepancies" and the visa officer found the applicant "hard to believe". The visa officer concluded that she believed the points that had been awarded accurately reflected the applicant"s chances of successfully establishing herself.
[20] Subsequent to the issuance of the refusal letter the visa officer recorded that she received a telephone call from Ms. Seligman telling her that she was "reaching conclusions that are incorrect", that she was "erring in law", that she should consult with more senior immigration officials. I note that this all took place in the absence of any concrete evidence being place before the visa officer to substantiate the assertions that counsel for the applicant was making about the character of the applicant"s education achievements.
[21] I cannot conclude that there are defect in the visa officer"s decision. The applicant has not persuaded me that there were errors of law, mischaracterizations or the ignoring of evidence, or a breach of natural justice in the proceedings under review.
[22] For the reasons given, the application is dismissed.
"B. Reed"
J.F.C.C.
Toronto, Ontario
November 26, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-4777-98 |
| STYLE OF CAUSE: PARBATEE RAMBEHARRY |
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
| DATE OF HEARING: TUESDAY, NOVEMBER 23, 1999 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: REED J. |
DATED: FRIDAY, NOVEMBER 26, 1999
| APPEARANCES: Ms. Robin Seligman |
| For the Applicant |
| Ms. Geraldine McDonald |
| For the Respondent |
| SOLICITORS OF RECORD: Robin Seligman |
Barrister & Solicitor
| 33 Bloor Street East |
Suite 1000
| Toronto, Ontario |
| M4W 3H1 |
| For the Applicant |
| Morris Rosenberg |
| Deputy Attorney General of Canada |
| For the Respondent |
FEDERAL COURT OF CANADA
Date: 19991126
Docket: IMM-4777-98
Between:
| PARBATEE RAMBEHARRY |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
Respondent
REASONS FOR ORDER