WEDNESDAY, AUGUST 28, 2002 IMM-3856-01
(UPON COMMENCING AT 3:58 P.M.)
THE COURT: The applicant seeks judicial review of a visa officer's decision dated June 24th, 2001 denying her application for permanent residence in Canada. The applicant had applied for permanent residence as an independent applicant in the occupation medical sonographer NOC 3216. The applicant is a citizen of the Islamic Republic of Iran. She practised as a gynecologist obstetrician from 1991 to 1995. She claims to have also studied medical sonography during this time and to have then worked in that field.
In support of her qualifications as a sonographer the applicant provided the visa officer with a certificate of her apprenticeship, her contract of employment as a medical sonographer and a letter from her employer confirming her employment. The applicant was interviewed at the Canadian Embassy in Abu Dhabi on June 6th, 2001.
At the interview,the visa officer asked the applicant to describe her duties as a medical sonographer. The officer found that, when they discussed this topic, the applicant hesitated a lot and gave basic answers lacking in detail. In contrast, when the applicant was asked about obstetrics, gynecology as well as other matters, the applicant was spontaneous. After spending a great deal of time asking the applicant questions about her duties as a medical sonographer and listening to her answers, the visa officer was not satisfied that the applicant had performed a substantial number of the duties listed in NOC 3216. In fact, she found that the applicant may have performed only one, the preparation of sonography examination reports to be sent to patients' regular physicians and that she had not performed the other duties.
At the end of the interview, the visa officer told the applicant that she had concerns about the applicant's work experience in light of the answers that the applicant had given to her questions. The officer explained that that was the reason the interview had taken so long, because of her concerns. The visa officer then asked if the applicant had anything to add and she did not. The officer told the applicant that she wanted to review the file as well as the interview before making a final decision and that she would inform the applicant of her decision by letter.
Later that same day and again on June 13th, 2001, the visa officer reviewed the file, her notes and recollections of the interview and found that she was not satisfied that the applicant had worked as a medical sonographer. She therefore awarded the applicant zero units for Factor 3 of Schedule I to the Immigration Regulations, that being the experience factor. Since she did not award the applicant any units for the experience factor and since the applicant did not have arranged employment, the visa officer refused the application pursuant to subsection 11(1) of the Regulations, which precludes issuance of an immigrant visa to an applicant who does not receive any units for factor 3. The officer also refused the application pursuant to subsection 11(2) of the Regulations which does not permit issuance of an immigrant visa to applicants who have received zero units of assessment for Factor 4, the occupation factor. On June 24th, 2001, the visa officer informed the applicant of her decision by way of refusal latter.
The applicant submits that the visa officer made an erroneous finding of fact in a perverse and capricious manner without regard for the material before her. Alternatively, she contends that the visa officer took irrelevant considerations into account. Although the visa officer did not question the authenticity of the documents submitted by the applicant, the applicant argues that the officer gave no weight to them and by contradicting them directly, made an erroneous finding of fact. In the applicant's view, her answers at the interview demonstrated knowledge of a sonographer's duties and the interview responses, when combined with the documentary evidence, dictate that the visa officer's conclusion is perverse or at least unreasonable.
In the alternative, the applicant argues that technical questions relating to the ultrasound equipment and its repair were irrelevant to the visa officer's inquiry except to the extent that they related to the duties set out in the NOC. The applicant contends therefore, that the visa officer committed an error of law by basing her decision on irrelevant considerations.
The respondent submits that the visa officer's CAIPS notes and her affidavits clearly reveal that she took all of the evidence into account and that it was reasonably open to her to accord little weight to the documentary evidence since the documents do not speak to the duties that the applicant actually performs, which is the relevant inquiry.
The visa officer is entitled to deference with respect to the weight to be assigned to one piece of evidence over another. The respondent submits that the visa officer did not introduce irrelevant criteria into her assessment of the applicant's experience as a medical sonographer. In particular, it is noted that one of the duties described in the NOC is: "Check ultrasound equipment to ensure proper operation and perform minor repairs and adjustments as required". Finally, the respondent says that whether or not a visa officer satisfies the NOC criteria is a pure question of fact.
The visa officer deposes in her affidavit sworn October 9th, 2001 at paragraph six as follows:
"I reviewed the file and my notes and recollections of the interview later that same day and again on June 13th, 2001. Following my review I was not satisfied that the applicant had worked as a medical sonographer. I had reviewed all of the documents she had submitted and was therefore cognizant of the medical sonography training certificate and the employment letter she had submitted, but gave these little weight in light of the interview. I did not believe that the applicant was working or had worked as a medical sonographer. Of the main duties listed in the NOC description for medical sonographers, I believe she may have performed one, namely the preparation of sonography examination reports that would be sent to patients' regular physicians. However, I found that she had not performed any of the other main duties. I therefore awarded her zero units for the experience factor, Factor 3 of Schedule I to the Immigration Regulations. Because I found that she had not performed a substantial number of the main duties of a medical sonographer as set out in the NOC, I also awarded her zero units for the occupational factor, Factor 4 of Schedule I to the Immigration Regulations."
The visa officer has the responsibility of determining whether an applicant has in fact performed the duties of the NOC. Considerable discretion is afforded to the officer in this respect, including interpretation of the NOC. The weight to be assigned the various pieces of evidence is the task of the visa officer and it is not for the court to reweigh the evidence. The onus is on the applicant to satisfy the visa officer that she performed the duties contained in the NOC for the intended application. It is within the visa officer's discretion to assess an applicant's experience on the basis of the applicant's representations at the interview and to assign less weight to the written documents. See Kalia v. Canada (Minister of Citizenship and Immigration), 2002 FCT 731, [2002] F.C.J. No. 998, Atangan v. Canada (Minister of Citizenship and Immigration), 2002 FCT 752, [2002] F.C.J. No. 1017 and Malik v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1050.
Having carefully considered all of the documentation in the record as well as the submissions at the hearing, the applicant has failed to persuade me that there exists here a reviewable error. The visa officer provided comprehensive, clear and unambiguous reasons for her decision. I do not find that the officer failed to consider or ignored relevant evidence or that she considered irrelevant evidence. It was reasonably open to the visa officer to come to the conclusion that the applicant did not have experience in the intended occupation. The Court's intervention is not warranted and the application for judicial review is dismissed. The case raises no serious question of general importance.
(Adjourned at 4:10 p.m.)
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3856-01
STYLE OF CAUSE:ROYA KIANFER v. MCI
PLACE OF HEARING: WINNIPEG, MANITOBA
DATE OF HEARING:AUGUST 28, 2002
REASONS FOR ORDER : THE HONOURABLE MADAM JUSTICE LAYDEN-STEVENSON
DATED: Delivered orally from the bench on August 28, 2002, and issued on October 11, 2002
APPEARANCES:
MR. EDWARD RICE FOR APPLICANT
MS. NALINI REDDY FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Edward Rice FOR APPLICANT
Barrister and Solicitor
Winnipeg, Manitoba
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada