Date: 20030217
Docket: IMM-4676-01
Neutral citation: 2003 FCT 176
OTTAWA, ONTARIO, THIS 17th DAY OF FEBRUARY, 2003
PRESENT: THE HONOURABLE MADAM JUSTICE HENEGHAN
BETWEEN:
ELHADI RAGAB NASR GUMA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[2] The Applicant, a citizen of Sudan, applied for permanent residence in Canada as a member of the independent category pursuant to the Immigration Act, R.S.C. 1985, c. I-2, as amended. The Applicant has an uncle who is a Canadian citizen therefore he received five bonus units for having a close relative in Canada. He described his intended occupation as a Horticulturist, National Occupational Classification ("NOC") 2225.3. In support of his application, he submitted evidence concerning his education and work experience, including a reference letter from his employer for the ten years preceding his application for immigration to Canada.
[3] According to his application and supporting material, the Applicant had been employed in Saudi Arabia by Arabian Maintenance and Technical Services Co. Ltd. ("AMSCO") from August 1990 to May 2000 as a Technical Supervisor (Horticulture).
[4] The Visa Officer interviewed the Applicant on September 11, 2001. He determined that the Applicant lacked experience in his intended occupation. The refusal letter, as recorded both in the Computer Assisted Input Program System ("CAIPS") and as sent out to the Applicant, provides, in part, as follows:
This refers to your application for permanent residence in Canada. I have now completed the assessment of your application and I have determined that you do not meet the requirements for immigration to Canada as an applicant in the Independent category.
...
Your occupational skills and qualifications were assessed with reference to Canada's National Occupation Classification (NOC). This reference text outlines and describes in the Canadian context the duties, responsibilities and minimum qualifications necessary for various occupations undertaken in
Canada. I have assessed your application bsed on the requirements for horticulturist
NOC 2225.3.
For this occupation, you received the following units of assessment:
Age
10
Occupational Factor
00
Specific Vocational Preparation/
Education and Training Factor
15
Experience
00
Arranged Employment
00
Demographic Factor
08
Education
13
English
09
French
00
Bonus (Close Relative in Canada)
05
Personal Suitability
05
TOTAL
60
I reviewed your qualifications and experience with you at your interview. Schedule 1 of the Regulations specifies units of assessment to be awarded for the experience and occupational factors shown above. From the information provided by you at your interview and with your application, I have concluded that you do not have experience in some of the main duties of your intended occupation in Canada. You therefore receive 0 units for the experience factor. I have also concluded that you have not performed a substantial number of the main duties as set out in the NOC, including the essential ones of your intended occupation in Canada. Therefore, you receive 0 units of assessment for Occupation Factor.
Subsection 11(2 ) of the Immigration Regulations, states that an immigrant visa shall not be awarded to an immigrant unless at least one unit of assessment is awarded for the experience factor ( factor 3 of Column1 of Schedule 1 of the Regulations) and for the occupational factor (factor 4 of Column 1 of Schedule 1 of the Regulations).
[5] As a general principle, it is accepted that a visa officer is entitled to considerable discretion in determining whether a particular applicant meets the requirements of the NOC. In this regard, I refer to Madan v.Canada (Minister of Citizenship and Immigration) (1999), 172 F.T.R. 262, cited with approval in Akbar v. Canada (Minister of Citizenship and Immigration) [2000] F.C.J. No. 1513 (T.D.)(QL). In Madan, supra, Justice Evans (as he then was) said at paragraph 24:
In any event, visa officers should be afforded considerable discretion in determining
whether an applicant satisfies the requirements for a given occupation, including their interpretation of the provisions of the NOC. They have a familiarity with and
understanding of this document that is at least equal to, and will often exceed, that of
a reviewing court.
[6] This general principle, however, is subject to another general principle, that a decision-maker is presumed to have regard to the relevant evidence before it. In Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35, Justice Evans (as he then was) said at paragraphs 16-17:
...A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact.
However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence"...
[7] In the present case, the Visa Officer recorded the interview notes in the CAIPS, then the computer malfunctioned and he was unable to retrieve the original notes. He re-entered notes from memory on September 16, 2001, five days after the interview. The notes concerning the Applicant's experience as a Horticulturist are very brief and provides as follows:
DEGREE, SOME OVERLAP WITH DUTIES AS NOC HORTICULTURIST, BUT EXP EQUATES TO 8256 HORTICULTURE SUPERVISOR WHICH IS ZERO DEM.
[8] The Applicant had provided a reference letter from his long-term employer in Saudi Arabia. The Visa Officer does not refer to this letter in his re-entered CAIPS notes. The Visa Officer, in his affidavit filed in this proceeding, makes the following statements about his assessment of the Applicant's experience:
Neither the oral nor the written evidence provided by the Applicant did satisfy me that the Applicant had the requisite work experience for his intended occupation as a Landscape and Horticulture Technician and Specialist (NOC 2225.3).
I awarded him 0 units of assessment for experience because I was not satisfied that he did have experience in some of the main duties of his intended occupation (Landscape and Horticulture Technician and Specialist (NOC 2225.3).
[9] While the Visa Officer, in his affidavit, makes a cursory comment about the Applicant's work reference letter, he does not actually deal with or comment upon the Applicant's employment duties as outlined in the letter and attached chart. Reference to relevant evidence such as this letter in the Visa Officer's affidavit, filed for this judicial review proceeding, is not proof that the Visa Officer considered this evidence at the time of the decision, particularly when no cogent comments are made relative to the NOC duties and the duties as described in the Applicant's employment letter.
[10] In my opinion, the Visa Officer's conclusion about the Applicant's experience is patently unreasonable, having regard to the reference letter provided by the Applicant. This letter describes the work performed by the Applicant and includes a two page chart which details his duties on various horticultural projects. This letter, together with the chart, is not mentioned by the Visa Officer in either his interview notes or the refusal letter. This omission is sufficient in my view to lead to the inference referred to in Cepeda-Gutierrez, supra. The Visa Officer here ignored relevant evidence.
[11] In the result, this application for judicial review is allowed and the matter is remitted to a different visa officer for redetermination in accordance with the law. There is no question for certification arising.
ORDER
The application for judicial review is allowed and the matter is remitted to a different visa officer for redetermination in accordance with the law. There is no question for certification arising.
"E. Heneghan"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4676-01
STYLE OF CAUSE: ELHADI RAGAB NASR GUMA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, FEBRUARY 12, 2003
REASONS FOR ORDER
AND ORDER : HONOURABLE MADAM JUSTICE HENEGHAN
DATED: FEBRUARY 17, 2003
APPEARANCES:
Mr. David Yerzy FOR APPLICANT
Mr. Tamrat Gebeyehu FOR RESPONDENT
SOLICITORS OF RECORD:
Mr.David Yerzy
14 Prince Arthur Avenue
Suite 180
Toronto, Ontario, M5R lA9 FOR APPLICANT
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20030217
Docket: IMM-4676-01
BETWEEN:
ELHADI RAGAB NASR GUMA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER