Date: 20030815
Docket: IMM-1954-02
Citation: 2003 FC 987
Fredericton, New Brunswick, this 15th day of August, 2003
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
SERGEY SHEREMET
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review of the decision of a visa officer at the Canadian High Commission in London, England, dated April 5, 2002, wherein the visa officer refused the applicant's application for permanent residence in Canada.
[2] The applicant seeks an order:
1. Quashing the decision of the visa officer refusing the application for permanent residence of the applicant;
2. Referring the matter to a different visa officer, at the visa office of the applicant's choice, for reconsideration of the applicant's application for permanent residence in accordance with the law, practice and procedure in force as of the date the application for permanent residence was submitted.
Background
[3] The applicant is a citizen of Russia. He is married and has three children. On January 15, 2001, the Canadian High Commission in London, England received the applicant's application for permanent residence in Canada under the independent category. The applicant had indicated that his intended occupation in Canada was a "Financial and Investment Analyst".
[4] On March 18, 2002, the applicant was interviewed. The interview was limited to 45 minutes as the visa officer had five other interviews to conduct that morning.
[5] By letter dated April 5, 2002, the visa officer refused the applicant's application.
. . . I have assessed your application based on the requirements for Financial & Investment Analyst, NOC 1112.0.
For this occupation, you received the following units of assessment:
Age 10
Occupational factor 00
Education and training factor 17
Experience 00
Arranged employment 00
Demographic factor 08
Education 16
English 02
French 00
Bonus (close relative in 00
[C]anada)
Personal suitability 04
Total 57
You do not meet Canada's immigration selection criteria and therefore do not qualify for immigration to Canada. As explained above, applicants must obtain at least one unit of assessment in each of the factors, occupational factor and experience. I am not satisfied that you perform a substantial number of duties as described in NOC for your intended occupation and you therefore receive zero units for the occupational factor and for experience.
. . .
At your interview you requested that you be assessed in the occupation of Credit Officer, NOC 1232.0. Assessed in this occupation, you score the following units:
Age 10
Occupational factor 03
Education and training factor 05
Experience 04
Arranged employment 00
Demographic factor 08
Education 16
English 02
French 00
Bonus (close relative in 00
[C]anada)
Personal suitability 04
Total 52
You have scored insufficient units to qualify for immigration to Canada.
. . .
[6] This is the judicial review of the decision of the visa officer.
Applicant's Submissions
[7] The applicant submits the visa officer breached the duty of fairness and erred in law when she arbitrarily set the maximum time limit for the interview at 45 minutes and terminated the interview when 45 minutes had passed, even though it was not completed.
[8] The applicant submits the visa officer committed an error in law as she considered only the applicant's work experience with Bank "Metalex" and did not consider his other work experience.
[9] The applicant submits the visa officer committed an error in law as she did not test the applicant's ability to read and write English.
[10] The applicant submits the visa officer fettered her discretion and committed an error in law by interpreting the provisions of Factor 9, "Personal Suitability", Schedule 1 of the Immigration Regulations, 1978, S.O.R./78-172, as amended, in a manner that is too restrictive. It is submitted that the visa officer made an assessment that was below average, but was unable to explain her assessment or indicate specific areas of concern to justify her assessment.
[11] The applicant submits that at the interview the visa officer advised the applicant that his experience fit the occupation of Credit Manager. Therefore, it is submitted that the visa officer had a duty to assess the applicant as a Credit Manager and failed to do so, thereby committing an error in law.
Respondent's Submissions
[12] The respondent submits that the visa officer's decision was reasonable. It is submitted that the applicant failed to show that the visa officer considered irrelevant matters or overlooked relevant matters. It is submitted that there was no procedural unfairness that warrants the Court's intervention. It is submitted that the visa officer exercised her discretion in good faith and in accordance with the principles of natural justice, without reliance on irrelevant or extraneous considerations.
[13] The respondent submits that there is nothing in record which shows that the visa officer breached her duty of fairness to the applicant with respect to the length of the interview. It is submitted that the visa officer gave the applicant's application a thorough and fair assessment.
[14] The respondent submits the visa officer did a fair assessment of the applicant's work experience. It is submitted that prior to the interview the visa officer thoroughly reviewed the application, including all of the documents on file. It is also submitted that during the interview, the visa officer asked the applicant many questions about his experience and his intended occupation and at no time did the applicant relate his past positions or work experience to his intended occupation.
[15] The respondent submits that the visa officer properly awarded the applicant two points for his English language ability. It is submitted that even if the applicant had been formally assessed as reading and writing English at the "well" level, he would not have received a higher number of units for his language skills.
[16] The respondent submits that the visa officer properly assessed the applicant's personal suitability. It is submitted that the applicant has not demonstrated that the visa officer's determination was clearly unreasonable on the evidence before her.
[17] The respondent submits that the applicant did not advise the visa officer that his experience fit the occupation of Credit Manager. It is submitted that the visa officer advised the applicant that he performed the duties of a Credit Officer and that the applicant's response was to ask to be assessed under this occupation. The visa officer subsequently formally assessed the applicant under the occupation of Credit Officer.
Issues
[18] The issues framed by the applicant are as follows:
1. Did the visa officer err in law by setting an arbitrary time limit of 45 minutes for the interview and thereby breach her duty of fairness?
2. Did the visa officer err in law by considering only the applicant's work experience with Bank "Metalex" and by not taking into consideration his other work experience?
3. Did the visa officer err in law by failing to assess the applicant's ability to read and write English?
4. Did the visa officer err in law by failing to properly assess the units of assessment to be awarded to the applicant for Factor 9, "Personal Suitability", Schedule 1 of the Immigration Regulations, supra?
5. Did the visa officer err in law by failing to assess the applicant as a Credit Manager (NOC 0122.2)?
[1] The respondent submits that the sole issue in this case is whether the visa officer's decision was reasonable.
Relevant Statutory Provisions and Regulations
[2] Subsection 8.(1) of the Immigration Act, R.S.C. 1985, c. I-2, as amended, states:
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8. (1) Where a person seeks to come into Canada, the burden of proving that that person has a right to come into Canada or that his admission would not be contrary to this Act or the regulations rests on that person. |
8. (1) Il incombe à quiconque cherche à entrer au Canada de prouver qu'il en a le droit ou que le fait d'y être admis ne contreviendrait pas à la présente loi ni à ses règlements. |
[3] The relevant sections of the Immigration Regulations, supra state in part as follows:
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8. (1) Subject to section 11.1, for the purpose of determining whether an immigrant and the immigrant's dependants, other than a member of the family class, a Convention refugee seeking resettlement or an immigrant who intends to reside in the Province of Quebec, will be able to become successfully established in Canada, a visa officer shall assess that immigrant or, at the option of the immigrant, the spouse of that immigrant
(a) in the case of an immigrant, other than an immigrant described in paragraph (b) or (c), on the basis of each of the factors listed in column I of Schedule I;
. . .
(2) A visa officer shall award to an immigrant who is assessed on the basis of factors listed in Column I of Schedule I the appropriate number of units of assessment for each factor in accordance with the criteria set out in Column II thereof opposite that factor, but he shall not award for any factor more units of assessment than the maximum number set out in Column III thereof opposite that factor.
. . .
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8. (1) Sous réserve de l'article 11.1, afin de déterminer si un immigrant et les personnes à sa charge, à l'exception d'un parent, d'un réfugié au sens de la Convention cherchant à se réinstaller et d'un immigrant qui entend résider au Québec, pourront réussir leur installation au Canada, l'agent des visas apprécie l'immigrant ou, au choix de ce dernier, son conjoint:
a) dans le cas d'un immigrant qui n'est pas visé aux alinéas b) ou c), suivant chacun des facteurs énumérés dans la colonne I de l'annexe I;
. . .
(2) Un agent des visas doit donner à l'immigrant qui est apprécié suivant les facteurs énumérés dans la colonne I de l'annexe I le nombre voulu de points d'appréciation pour chaque facteur, en s'en tenant au maximum fixé à la colonne III, conformément aux critères visés dans la colonne II de cette annexe vis-à-vis de ce facteur.
. . . |
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9. (1) Subject to subsection (1.01) and section 11, where an immigrant, other than a member of the family class, an assisted relative, or a Convention refugee seeking resettlement makes an application for a visa, a visa officer may issue an immigrant visa to him and his accompanying dependants if
(a) he and his dependants, whether accompanying dependants or not, are not members of any inadmissible class and otherwise meet the requirements of the Act and these Regulations;
(b) where the immigrant and the immigrant's accompanying dependants intend to reside in a place in Canada other than the Province of Quebec, on the basis of the assessment of the immigrant or the spouse of that immigrant in accordance with section 8,
(i) in the case of an immigrant other than an entrepreneur, an investor or a provincial nominee, he is awarded at least 70 units of assessment,
. . .
11. (1) Subject to subsections (3) and (5), a visa officer shall not issue an immigrant visa pursuant to subsection 9(1) or 10(1) or (1.1) to an immigrant who is assessed on the basis of factors listed in column I of Schedule I and is not awarded any units of assessment for the factor set out in item 3 thereof unless the immigrant_
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9. (1) Sous réserve du paragraphe (1.01) et de l'article 11, lorsqu'un immigrant, autre qu'une personne et appartenant à la catégorie de la famille, qu'un parent aidé ou qu'un réfugié au sens de la Convention cherchant à se réétablir, présente une demande de visa d'immigrant, l'agent des visas peut lui en délivrer un ainsi qu'à toute personne à charge qui l'accompagne si:
a) l'immigrant et les personnes à sa charge, qu'elles l'accompagnent ou non, ne font pas partie d'une catégorie de personnes non admissibles et satisfont aux exigences de la Loi et du présent règlement; et
b) lorsqu'ils entendent résider au Canada ailleurs qu'au Québec, suivant son appréciation de l'immigrant ou du conjoint de celui-ci selon l'article 8:
(i) dans le cas d'un immigrant, autre qu'un entrepreneur, un investisseur, ou un candidat d'une province, il obtient au moins 70 points d'appréciation,
. . .
11. (1) Sous réserve des paragraphes (3) et (5), l'agent des visas ne peut délivrer un visa d'immigrant selon les paragraphes 9(1) ou 10(1) ou (1.1) à l'immigrant qui est apprécié suivant les facteurs énumérés à la colonne I de l'annexe I et qui n'obtient aucun point d'appréciation pour le facteur visé à l'article 3 de cette annexe, à moins que l'immigrant: |
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(a) has arranged employment in Canada and has a written statement from the proposed employer verifying that he is willing to employ an inexperienced person in the position in which the person is to be employed, and the visa officer is satisfied that the person can perform the work required without experience; or
(b) is qualified for and is prepared to engage in employment in a designated occupation.
(2) Subject to subsections (3) and (4), a visa officer shall not issue an immigrant visa pursuant to section 9 or 10 to an immigrant other than an entrepreneur, an investor, a provincial nominee or a self-employed person unless
(a) the units of assessment awarded to that immigrant include at least one unit of assessment for the factor set out in item 4 of Column I of Schedule I;
(b) the immigrant has arranged employment in Canada; or
(c) the immigrant is prepared to engage in employment in a designated occupation.
(3) A visa officer may
(a) issue an immigrant visa to an immigrant who is not awarded the number of units of assessment required by section 9 or 10 or who does not meet the requirements of subsection (1) or (2), or
(b) refuse to issue an immigrant visa to an immigrant who is awarded the number of units of assessment required by section 9 or 10,
if, in his opinion, there are good reasons why the number of units of assessment awarded do not reflect the chances of the particular immigrant |
a) n'ait un emploi réservé au Canada et ne possède une attestation écrite de l'employeur éventuel confirmant qu'il est disposé à engager une personne inexpérimentée pour occuper ce poste, et que l'agent des visas ne soit convaincu que l'intéressé accomplira le travail voulu sans avoir nécessairement de l'expérience; ou
b) ne possède les compétences voulues pour exercer un emploi dans une profession désignée, et ne soit disposé à le faire.
(2) Sous réserve des paragraphes (3) et (4), l'agent des visas ne délivre un visa en vertu des articles 9 ou 10 à un immigrant autre qu'un entrepreneur, un investisseur, un candidat d'une province ou un travailleur autonome, que si l'immigrant:
a) a obtenu au moins un point d'appréciation pour le facteur visé à l'article 4 de la colonne I de l'annexe I;
b) a un emploi réservé au Canada; ou
c) est disposé à exercer une profession désignée.
(3) L'agent des visas peut
(a) délivrer un visa d'immigrant à un immigrant qui n'obtient pas le nombre de points d'appréciation requis par les articles 9 ou 10 ou qui ne satisfait pas aux exigences des paragraphes (1) ou (2), ou
b) refuser un visa d'immigrant à un immigrant qui obtient le nombre de points d'appréciation requis par les articles 9 ou 10,
s'il est d'avis qu'il existe de bonnes raisons de croire que le nombre de points d'appréciation obtenu ne reflète pas les chances de cet immigrant |
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and his dependants of becoming successfully established in Canada and those reasons have been submitted in writing to, and approved by, a senior immigration officer. |
Particulier et des personnes à sa charge de réussir leur installation au Canada et que ces raisons ont été soumises par écrit à un agent d'immigration supérieur et on reçu l'approbation de ce dernier. |
Analysis and Decision
[4] I propose to deal first with issues 2 and 3.
[5] Issue 2
Did the visa officer err in law by considering only the applicant's work experience with Bank "Metalex" and by not taking into consideration his other work experience?
The visa officer only took into consideration the applicant's work experience at Bank
"Metalex". Factor 3 "Experience" in Schedule I of the Immigration Regulations, supra states that if the units issued under Item 2 "Education and Training" is 5 to 7 units, then the applicant will receive 2 units of assessment for each year of experience not exceeding two years. If the units of assessment issued under Item 2 is 17 or 18, then the applicant will receive two units of assessment for each year of experience not exceeding four years. On his application, the applicant listed his work experience as follows:
November 1989 - Krasnoyarsk State Krasnoyarsk, Post-graduate
November 1992 University Russia fellow
November 1992 - Construction Company Krasnoyarsk, Financial
September 1996 "Intersot" Russia Director
September 1996 - Construction Company Krasnoyarsk, Financial
April 1997 "Lander" Russia Director
April 4, 1997 - Bank "Metalex" Krasnoyarsk, Financial
present Russia Analyst
[6] A review of the CAIPS notes and the refusal letter sent to the applicant shows that the visa officer only considered the applicant's experience at Bank "Metalix" and did not consider the applicant's experience with the other employers. Had this consideration been done, the visa officer may well have arrived at a different number of units of assessment for experience. In my opinion, the visa officer made a reviewable error in not considering the applicant's other work experience.
[7] Issue 3
Did the visa officer err in law by failing to assess the applicant's ability to read and write English?
The applicant submits the visa officer committed an error in law as she did not test his ability to read and write English.
[8] Factor 8, "Knowledge of English and French Languages", Schedule 1 of the Immigration Regulations, supra, states:
(1) For the first official language, whether English or French, as stated by the person, credits shall be awarded according to the level of proficiency in each of the following abilities, namely, speaking, reading and writing, as follows:
(a) for an ability to speak, read or write fluently three credits shall be awarded for each ability;
(b) for an ability to speak, read or write well but not fluently, two credits shall be awarded for each ability;
(c) for an ability to speak, read or write with difficulty, no credits shall be awarded for that ability.
(2) For the second official language, whether English or French, as stated by the person, credits shall be awarded according to the level of proficiency in each of the following abilities, namely, speaking, reading and writing, as follows:
(a) for an ability to speak, read, or write fluently, two credits shall be awarded for each ability;
(b) for an ability to speak, read or write well but not fluently, one credit shall be awarded for each ability; and
(c) for an ability to speak, read or write with difficulty, no credits shall be awarded for that ability.
(3) Units of assessment shall be awarded on the basis of the total number of credits awarded under subsections (1) and (2) as follows:
(a) for zero credits or one credit, zero units;
(b) for two to five credits, two units; and
(c) for six or more credits, one unit for each credit.
[9] The applicant stated in his application that he speaks, reads and writes English "well" and French "not at all".
[10] The visa officer awarded the applicant 2 unites of assessment for English. The visa officer was of the opinion that the applicant spoke English with difficulty.
[11] The visa officer did not test the applicant's ability to read or write English. As noted earlier in this decision, the applicant stated in his application that he could speak, read and write English "well". The visa officer did not test the applicant's ability to read or write English. In my view, the visa officer made a reviewable error.
[12] I can not determine whether or not these errors would have had an impact on visa officers overall total award of units of assessment. For this reason, the two errors made by the visa officer are sufficient to cause the decision to be set aside.
[13] The application for judicial review is allowed.
[14] Neither party wished to submit a serious question of general importance for my consideration for certification.
ORDER
[15] IT IS ORDERED that the application for judicial review is allowed.
"John A. O'Keefe
J.F.C.C.
Fredericton, New Brunswick
August 15, 2003
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1954-02
STYLE OF CAUSE: Sergey Sheremet -and-
The Minister of Citizenship and Immigration
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: March 6, 2003
REASONS FOR ORDER: Mr. Justice J. O'Keefe
DATED: August 15, 2003
APPEARANCES:
Mr. Peter Chapman FOR APPLICANT
Ms. Pauline Anthoine FOR RESPONDENT
SOLICITORS OF RECORD:
Chapman & Co. FOR APPLICANT
Vancouver, British Columbia
Mr. Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada