Date: 20021112
Docket: IMM-2024-01
Neutral Citation: 2002 FCT 1160
Between:
MIRJANA STOKIC-RANDJELOVIC
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
This is an application for judicial review with respect to the decision of visa officer Marie-France Prévost (the "officer") of the Canadian Embassy in Rabat, Morocco, dated March 19, 2001, in which she refused the applicant's application for permanent residence in Canada because she did not meet the requirements for independent applicants pursuant to subsection 8(1) of the Immigration Regulations, 1978, SOR/78-172 (the "Regulations").
The applicant, Mirjana Stokic-Randjelovic, is a citizen of Yugoslavia. She submitted her application for landing under the category of "Independent Applicant" and the occupation of Computer Programmer (NOC 2363.0). She was interviewed by the officer in Paris, France on March 14, 2001.
The applicant was informed by letter that she did not meet the employment requirements of a computer programmer per the NOC classification because she does not have a bachelor's degree in science nor has she completed a college program in computer science. The officer informed the applicant that she had also assessed her as a Computer Operator (National Occupation Classification ("NOC") 1421.0), in which category the applicant was awarded 48 points, falling 22 points short of the minimum requirement of 70.
In her affidavit, the officer explains:
22. Comme le paragraphe 11(1) du Règlement sur l'immigration de 1978 (ci-après le « Règlement » ) interdit la délivrance d'un visa d'immigrant à un demandeur indépendant n'ayant obtenu aucun point d'appréciation pour le facteur « Expérience » pour une profession pour laquelle il est qualifié et préparé àexercer au Canada, la Demanderesse ne pouvait se qualifier comme "programmeur".
23. En plus, la Demanderesse ne remplissait pas les conditions d'accès à la profession « programmeur » telles que décrites dans le Code National des professions du Canada. Un diplôme universitaire en informatique ou dans une autre discipline comportant une concentration en programmation, ou un programme d'études collégiales en informatique sont habituellement exigés. La Demanderesse ne rencontrait pas ces exigences académiques. J'ai tenu compte de son expérience professionnelle et des cours supplémentaires qu'elle a suivis et conclu que cela ne compensait pas l'absence du diplôme habituellement exigé. J'ai déterminé qu'elle ne pouvait intégrer avec succès cette profession au Canada sans ce niveau d'éducation.
24. Cependant, d'après ses déclarations au cours de l'entrevue et à la lecture des attestations de travail fournies par la Demanderesse, j'ai conclu que son cheminement professionnel, ses compétences et son expérience globale de travail correspondaient plutôt à celle d'un « opérateur d'ordinateur » , CNP 1421.0. J'ai identifié le titre et le code CNP 1421.0 pour cette occupation et j'ai entré ce code de profession dans le STIDI. Une fois fait, les points alloués pour la profession « programmeur » ont étésupprimés au STIDI. Le STIDI a alors automatiquement converti les points pour les facteurs « études et formation » (facteur 2) et « demande professionnel » [sic] (facteur 4) pour la profession "opérateur d'ordinateur", CNP 1421.0.
In Chiu Chee To v. Minister of Employment and Immigration (May 22, 1996), A-172-93, the Federal Court of Appeal set out the standard of review for discretionary decisions by visa officers with respect to applications for immigration. This standard is the same as that adopted by the Supreme Court of Canada in Maple Lodge Farms Limited v. Government of Canada et al., [1982] 2 S.C.R. 2, where Mr. Justice McIntyre stated at pages 7 to 8:
. . . It is, as well, a clearly-established rule that the courts should not interfere with the exercise of a discretion by a statutory authority merely because the court might have exercised the discretion in a different manner had it been charged with that responsibility. Where the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere. . . .
With respect to the duty of fairness owed by a visa officer in a similar matter, Evans J.A. stated the following in Patel v. Canada (M.C.I.), 2002 FCA 55, [2002] F.C.J. No. 178 (C.A.) (QL), at paragraph 10:
. . . As part of the duty of procedural fairness, the content of the duty to give reasons depends on the particular decision-making context to which the duty is being applied. The content of the duty of fairness owed by a visa officer when determining a visa application by an applicant in the independent category is located towards the lower end of the range: Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297 (C.A.).
In the case at bar, the applicant first submits that the officer erred in law by requiring that the applicant have a bachelor's degree in computer science or that the applicant have completed a college program in computer science, and by denying permanent residence status based on the lack of such education.
The NOC 2163 (Computer Programmers) states, under "Employment Requirements", that a bachelor's degree or a college program is "usually required". Sharlow J., as she then was, has explained the meaning of the phrase "usually required" in Karathanos v. Canada (M.C.I.) (1999), 176 F.T.R. 296:
[10] It is undisputed that for purposes of the "education and training" category in Schedule I of the Immigration Regulations, the phrase "usually required" in the description of the education requirements for an occupation is read as "always required". . . .
[16] However, it does not follow that the words "usually requires" must be read the same way in assessing the number of points in the "occupational factor"category. In assessing the applicant under that category, the words "usually required" mean just what they say. . . .
Therefore, as O'Keefe J. stated at paragraph 18 of Jie v. Minister of Citizenship and Immigration (January 12, 2001), IMM-3141-99 (F.C.T.D.), a visa officer errs if she simply states that the applicant does not meet the educational requirements of the intended occupation because the applicant does not have the specified degrees required for a Computer Programmer: "The visa officer must go further and determine whether or not the applicant's work experience makes up for the lack of the required degree". If the officer takes into account the applicant's work experience before deciding that the applicant did not meet the educational requirements, the officer has not committed a reviewable error.
The onus is on the applicant to establish that her experience outweighs her lack of the usual qualifications (see Rifath v. Minister of Citizenship and Immigration (January 30, 2001), IMM-1065-00 (F.C.T.D.)). The applicant is not required to have performed all of the duties outlined in the NOC description of "Computer Programmer", however, she must have performed a substantial number of those duties, including those which are essential to the occupation (Malik v. Minister of Citizenship and Immigration (June 30, 2000), IMM-4439-99 (F.C.T.D.)).
In this case, the officer indicated in her affidavit that she took into account the applicant's professional experience as well as the supplementary courses which she had taken. The officer concluded that the applicant still did not meet the requirements of the occupation for the purposes of immigration. The officer conducted her investigation in the appropriate manner and taking into consideration all the relevant information which was supplied to her by the applicant.
The applicant further submits that the officer erred in law by failing to consider the totality of the evidence, or by ignoring relevant evidence.
This Court has held that, "in the absence of an overriding error, it must be assumed that the visa officer considered all relevant evidence that was before her" (Hsu v. Minister of Citizenship and Immigration (April 21, 1999), IMM-3849-98 (F.C.T.D.) at paragraph 13). Where the officer's conclusion that the applicant has not met the requirements of the occupation on the basis of her work experience is not made in a capricious or perverse manner, or without regard to the material before her, the officer has made no reviewable error (Parmar v. Minister of Citizenship and Immigration (November 12, 1997), IMM-3177-96 (F.C.T.D.)).
In this case, the officer's affidavit evidence shows that she took into account all relevant material presented to her by the applicant. She is not required to mention all of the evidence in her decision (Malik, supra).
The applicant finally argues that the wording of the officer's letter appears to address subsection 11(1) of the Regulations and then abandons the idea that the application may be void on the ground of lack of experience.
It is true that the letter in unclear on this point. However, at paragraph 21 of the officer's affidavit, she explains that she did, in fact, consider the applicant's professional experience. She found that the tasks and responsibilities described by the applicant did not correspond to those described in the NOC. Therefore, she did not award any points for "experience" in the occupation of Computer Programmer. Because no points were awarded under this heading, the officer had to reject the application.
The officer rejected the applicant's application on two grounds: because no points were awarded under "experience", and because the applicant did not meet the educational requirements of the occupation of Computer Programmer. In my opinion, the officer committed no reviewable error.
For all the foregoing reasons, the application for judicial review is dismissed.
JUDGE
OTTAWA, ONTARIO
November 12, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2024-01
STYLE OF CAUSE: MIRJANA STOKIC-RANDJELOVIC v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 15, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE PINARD
DATED: November 12, 2002
APPEARANCES:
Mr. John J. Somjen FOR THE APPLICANT
Ms. Amina Riaz FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. John J. Somjen FOR THE APPLICANT
Barrister and Solicitor
Toronto, Ontario
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario