Date: 20011019
Docket: IMM-3262-00
Neutral citation: 2001 FCT 1135
PRESENT: ROTHSTEIN J.A. (ex officio)
BETWEEN:
RANJIT RANGA KUNCHUR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is a judicial review from a decision of a visa officer, finding that the applicant did not meet the requirements for immigration to Canada. The applicant applied in the occupation of Dental Technician.
[2] In the visa officer's decision of May 3, 2000, she states that the applicant "failed to provide me with convincing evidence of your experience as a Dental Technician". However, in the detailed breakdown of units of assessment in the decision, she awarded the applicant 6 units for experience, the maximum possible under factor 3(c), given the 15 units she awarded to him under factor 2. Even though under factor 3, she awarded him 6 units for experience in the Dental Technician occupation in which he was assessed under factor 4, the visa officer awarded the applicant zero units under factor 4.
[3] The difficulty with this decision is the inconsistency between what the visa officer stated in the decision about the applicant's lack of experience as a Dental Technician and her awarding him 6 units of assessment for experience, and the inconsistency between awarding zero units for the occupational factor and 6 units for experience in the Dental Technician occupation.
[4] In the visa officer's affidavit, she says that "There is no mention (in Schedule I) that experience has to be in the specific duties listed in the NOC". She then states that since she "penalized the applicant once under the Occupational Demand factor", she "did not wish to penalize him a second time for the same thing under the experience factor as this would be a double count". She says that "double dipping is unfair to the applicant". She then says "I therefore awarded him the 6 points for experience".
[5] I am unable to understand the visa officer's explanations. In this case, it appears that she has not appreciated the relationship between factors 2, 3 and 4 of Schedule I. The connection is explained by MacKay J. in Yu v. Canada (Minister of Employment and Immigration) (1991), 11 Imm. L.R. (2d) 176, at 184-5:
Factor 2, Specific Vocational Preparation, is assessed in relation to the amount of formal training specified in the Canadian Classification and Dictionary of Occupations as necessary for the occupation intended, in which the applicant is assessed under factor 4. Factor 3, experience, is assessed by years in the occupation intended, again that in which the applicant is assessed under factor 4. Factor 4, occupational demand, is assessed in relation to occupational opportunities in Canada in the occupation that the applicant is qualified for and is prepared to follow in Canada. By reference to factor 4, where the occupation is defined as that for which the applicant is qualified and prepared to follow in Canada, that definition of occupation is incorporated by reference into factors 2 and 3. As I read the three factors together, if the applicant is not deemed qualified for the occupation he or she intends to pursue in Canada, then, regardless of the occupational demand in Canada for that occupation, no units of assessment are to be awarded under factor 4, or under factor 3, for experience. [Emphasis added]
In Dekhne v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 905, a June 4, 2001 decision, Lutfy A.C.J. states, having regard to Yu v. Canada, supra:
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.
The visa officer has not explained for what occupation, other than Dental Technician, she awarded the applicant 6 units under factor 3. According to Schedule I, it must have been for the occupation of Dental Technician. If the visa officer was of the view that the maximum of 6 units of assessment should be awarded under factor 3 for that occupation, then some units should have been awarded under factor 4.
[6] Further, the visa officer's "double dipping" reference also does not recognize the relationship between factors 2, 3 and 4. The expressed concern of the visa officer about being fair to the applicant in awarding him six units for experience rings somewhat hollow in view of the fact that she determined that he did not meet the requirements for immigration to Canada by reason of her awarding him zero units for factor 4. As she, herself, states in her affidavit:
In this case, awarding points for the experience factor did not affect the decision to refuse since the zero occupational demand constituted the bar to processing.
[7] The Caips Notes seem to indicate that, in the visa officer's opinion, the applicant did not have experience as a Dental Technician. She puts little or no weight on a letter she received on behalf of the applicant from his employer in India subsequent to the release of the Caips Notes, indicating that the applicant had experience as a Dental Technician. She notes that the duties described in an earlier letter from the employer for the same period were completely different from those described in the subsequent letter.
[8] It may be that the visa officer came to a reasonable conclusion in finding that the applicant was not eligible for immigration to Canada. However, it is not for the Court to re-write the visa officer's decision to comport with the Caips Notes. There are inconsistencies in her decision and her affidavit does not adequately explain them.
[9] The judicial review will be allowed with costs and the matter will be remitted to a different visa officer for redetermination.
"Marshall Rothstein"
J.A.