Date: 20020509
Docket: IMM-3389-00
Neutral citation: 2002 FCT 538
Ottawa, Ontario, Thursday the 9th day of May 2002
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
LILIJA KATINAUSKIENE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DAWSON J.
[1] A visa officer awarded Ms. Katinauskiene 70 units of assessment in respect of her application for permanent residence in Canada in the independent category, in the intended occupation of Mechanical Engineer, National Occupations Classification ("NOC") 2132.0. Although Ms. Katinauskiene received the number of units normally required for a positive decision, her application was refused because she received zero units of assessment in respect of experience, and the visa officer did not exercise positive discretion pursuant to subsection 11(3) of the Immigration Regulations, 1978, SOR/78-172 ("Regulations"). Subsection 11(1) of the Regulations provides that in that circumstance, subject to certain exceptions not applicable to Ms. Katinauskiene's situation, a visa officer shall not issue an immigrant visa.
[2] This application for judicial review therefore turns upon whether the visa officer erred in awarding zero units for experience.
[3] Ms. Katinauskiene says that the visa officer erred because in assessing her experience he failed to make reasonable inquiries of her at the interview, erred in respect of his findings about the portability of her skills, and failed to exercise discretion under subsection 11(3) of the Regulations based on her ability to become successfully established in Canada. Ms. Katinauskiene also says the visa officer erred in assessing her personal suitability because he double counted the portability of her skills.
[4] It is, I believe, settled law that a visa officer should address each relevant factor to be assessed, and should elicit sufficient answers from an applicant so that a proper assessment can be made as to whether the applicant meets the relevant criteria. See, for example, Dhaliwal v. Canada (Minister of Employment and Immigration), 52 F.T.R. 311 (T.D.).
[5] In the present case, the visa officer's Computer Assisted Immigration Processing System ("CAIPS") notes, made contemporaneously with the interview, record the following with respect to the visa officer's inquiries into Ms. Katinauskiene's qualifications, skills and experience:
5YR DIP MECH ENGNR. SAL 200 LITAS PCM. WHAT DO YOU DO? MOSTLY DRAWINGS FOR ORDERS FOR ELECTRICITY: HEATING AND VENTILATION SYSTEMS. HOW WOULD YOU CALCULATE THE BOILER NEEDED FOR A 100SQ M HSE? I CAN'T TELL EXACTLY AS CERTAIN DATA, NOT FAMILIAR WITH THERMAL UNITS - STATES THIS IS NOT MY JOB. NOT MY JOB TO CALCULATE I AM LIKE MGR I DECIDE WHERE TO PUT SYSTEM, WORKS IN FAMILY BUSNS WITH FATHER.
[...]
PC EXP? AUTOCAD? COMPUTERS ARE TOO OLD. I WILL DO COMPUTER COURSES. DOES NOT KNOW WHAT FORTRAN OR ALGOL ARE.
WHICH PERIODICALS / JOURNALS DO YOU SUBSCRIBE TO? ASKED 3 TIMES? ... ABOUT. TRANSLATOR ASKED QUESTION IN LITHUANIAN. STATES I INTEND TO SUBSCRIBE ... SBJ DOES NOT MEET CRIT/ADVISED CONCERNS:
DOES NOT HAVE RELEVANT EXP., SKILLS NOT PORTABLE, FUNDS LOW, LANGUAGE ABILITY INSUFFICIENT TO FIND WORK.
MY SIS LEARNT ENGLISH, NOW SHE NO PROBLEMS.
RE-ITERATED REASONS TO SBJ WHO WAS QUITE EMOTIONAL.
[6] I am satisfied that neither the affidavit of Ms. Katinauskiene nor the cross-examination of the visa officer impugned in any material way the accuracy of the CAIPS notes.
[7] I am further satisfied that the visa officer's inquiries were reasonable in the sense that he asked sufficient questions to afford Ms. Katinauskiene the opportunity to meet the burden upon her to establish that she had the required experience, and to allow a proper assessment of that experience to be made.
[8] As to portability, it is asserted on Ms. Katinauskiene's behalf that the visa officer's interpretation of portability of engineering skills was such that it would require the applicant to have Canadian-like experience gained in her home country of Lithuania. I am, however, unable to conclude from a careful reading of the CAIPS notes, the visa officer's affidavit, and the transcript of the cross-examination of the visa officer, that the visa officer required Ms. Katinauskiene to have Canadian-like experience.
[9] When assessing experience in accordance with the NOC it is relevant to consider whether the skills which an applicant has acquired through his or her experience are so antiquated or otherwise irrelevant as to be irrelevant to the NOC requirements.
[10] A visa officer is also entitled to consider portability as an economic factor and as an obstacle to establishment in Canada for the purpose of considering an applicant's personal suitability.
[11] Ms. Katinauskiene also argued that the visa officer failed to exercise positive discretion under subsection 11(3) of the Regulations, despite his knowledge that Ms. Katinauskiene's sister had immigrated to Canada successfully, and had obtained a job for Ms. Katinauskiene in Canada.
[12] In Turcinovica v. Canada (Minister of Citizenship and Immigration), 2002 FCT 164; [2002] F.C.J. No. 216 I wrote, at paragraph 35, as follows:
In my view, absent a request by an applicant, or facts that suggest some good reason why a unit of assessment determination would not properly reflect the chance of an applicant's successful establishment in Canada, a visa officer has no general duty to consider the exercise of positive discretion under subsection 11(3) of the Regulations. See: Lam v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1239; Behzad Razavi v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1388; Savvateev v. Canada (Minister of Citizenship and Immigration) (2000), 2 Imm. L.R. (3d) 207.
[13] Given the conclusions of the visa officer that Ms. Katinauskiene did not have experience relevant to her intended occupation, that her skills were not portable, her funds were low, and her language ability was insufficient to enable her to find work in Canada, in my view there were not facts suggestive of some good reason why a unit assessment would not properly reflect the chance of Ms. Katinauskiene's successful establishment in Canada. In the absence of such facts, or a request for the exercise of positive discretion, the visa officer committed no reviewable error in failing to consider the exercise of positive discretion.
[14] It follows that by application of subsection 11(1) of the Regulations, the visa officer did not err in any reviewable manner in refusing Ms. Katinauskiene's application. The application for judicial review will therefore be dismissed.
[15] Counsel for Ms. Katinauskiene proposed the following question for certification:
When a visa officer awards an applicant for permanent residence as an independent immigrant the requisite number of units of assessment for acceptance but zero units of assessment for the experience factor and invokes s.11(1) of the Immigration Regulations to deny the application, does the duty of fairness and reasonableness on the officer:
1. Require the officer to include in his written notice of decision the specific reasons for doing so other than merely "you do not have the relevant skills and experience to follow your occupation",
2. Preclude an approach whereby the officer is willing to leave it for the applicant to provide description demonstrating satisfaction with the requirements of the occupation rather than inquiring at interview into the information provided by the applicant; and
3. Increase when assessing the experience factor in such circumstances.
[16] The Minister opposed certification on the ground that it deals with specific issues of fact and so does not raise a serious question of general importance.
[17] I agree, and no question will be certified.
ORDER
[18] IT IS HEREBY ORDERED THAT:
1. The application for judicial review is dismissed.
2. No question is certified.
"Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-3389-00
STYLE OF CAUSE: LILIJA KATINAUSKIENE v. MCI
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: May 2, 2002
Reasons for order of the honourable Madam Justice Dawson
DATED: May 9, 2002
APPEARANCES:
Mr. Daniel Fine FOR THE APPLICANT
Mr. James Todd FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Daniel Fine FOR THE APPLICANT
Mr. Morris RosenbergFOR THE RESPONDENT
Deputy Attorney General of Canada