Date: 20020628
Docket: IMM-4256-00
Neutral citation: 2002 FCT 730
BETWEEN:
OLEKSIY ROMANOV,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
[1] The applicant, a Ukranian citizen, brings this application for judicial review of the decision of a visa officer denying his application for permanent residence in Canada as an independent in the intended occupation Mechanical Engineer (NOC 2132).
[2] The applicant filed his application on November 18, 1998. Initially, attendance at an interview was waived but when employment verification regarding a previous position held by the applicant was not forthcoming, the applicant was called in for an interview which occurred on March 29, 2000 at the Canadian Embassy in Kiev, Ukraine. By correspondence dated June 6, 2000, the visa officer informed the applicant that his application was denied on the basis that, having been awarded 66 units of assessment rather than the minimum requirement of 70 units for persons in the independent category, he failed to qualify for immigration.
[3] The applicant graduated from Karkhov Hither Military College of Aviation Engineers as
a mechanical engineer in 1991. From September, 1992 through to April, 1993, he completed a customs inspector course. In 1998, he took computer programming at the Karkhov House of Science and Engineering and in 1999, he completed courses in environmental studies and biological diversity at the Post Graduate Institute in Kyiv.
[4] After graduating in 1991, the applicant worked for one year as a mechanical engineer with the U.S.S.R. Air Force. From 1993 to 1995, he was employed as a customs inspector for the Kharkhov Regional Customs Office. From March, 1995 until February, 1996 he was head of the Search and Rescue Mission at the Union of Mountaineering Societies in Kyiv and from March, 1996 until March, 1998 he worked for Shield Limited, a sales company, in Kharkov. In June, 1998 he began working at the State Board of Ecological Security where he was employed at the time of his interview.
[5] The applicant alleges that the visa officer erred in his award of units of assessment with respect to the experience and language factors. He also alleges that the visa officer erred in failing to exercise positive discretion pursuant to subsection 11(3) of theImmigration Regulations, 1978, SOR/78-172, as amended. His written submission raised an issue regarding the CAIPS (Computer Assisted Immigration Processing System) notes however, this argument was abandoned at the hearing.
[6] In relation to the experience factor, the visa officer awarded the applicant 02 out of a possible maximum total of 8 units of assessment. The officer found that the applicant had worked only one year as a mechanical engineer, as described in the NOC, while employed in his various occupations. The applicant submits that the visa officer had an obligation to break down his experience in the many positions he has held over the years. He says that his experience performing the duties of a mechanical engineer, as delineated in his resumé, was ignored by the visa officer. In support of his argument, he relies on Azarpajooh v. Canada ( Minister of Citizenship and Immigration) (1997), 128 F.T.R. 203, Chae v. Canada (Minister of Citizenship and Immigration) (1999), 180 F.T.R. 75 and Hajariwala v. Canada (Minister of Employment and Immigration) (1988), 23 F.T.R. 241.
[7] The respondent relies on Farooqui v. Canada (Minister of Citizenship and Immigration) (2000), 182 F.T.R. 306 and submits that the visa officer's affidavit provides extensive evidence of his assessment of the experience of the applicant as a mechanical engineer. The applicant, says the respondent, brought his resume and a reference letter to the interview and they were considered by the visa officer in conjunction with the applicant's representations. The respondent argues that the applicant was given every opportunity to provide further details, he was made aware of the visa officer's concerns and was provided an opportunity to elaborate with respect to the officer's concerns.
[8] It is noted that the Application Record included three reference letters from former employers of the applicant that had not been provided to the visa officer. Counsel for the respondent objected to their inclusion in the Application Record. These documents, not having been provided to the visa officer for his consideration, will not be considered by the Court in this application. They were improperly included in the Application Record.
[9] The visa officer's affidavit sets out the basis upon which he assessed the experience factor. The applicant had been instructed to bring an up-to-date resumé and reference letters from present or past employers. The applicant provided his resumé and one letter of reference. The visa officer reviewed each of the applicant's past employment experiences with him. In each case, he relied upon the applicant's statements, his resumé and his workbook to determine whether the employment in question entailed any of the duties of a mechanical engineer. The visa officer determined that the applicant's military service constituted experience as a mechanical engineer but the other employment areas did not. The officer reviewed the requirements of the NOC with the applicant and reviewed his resumé. He gave the applicant an opportunity to provide further details of his employment. The visa officer deposes that he made the applicant aware of his concerns regarding experience and provided the applicant an opportunity to elaborate with respect to his various jobs. The visa officer was cross-examined on his affidavit and there is nothing in the transcript of the cross-examination that compromises the evidence contained in his affidavit.
[10] The applicant's resumé does not provide a sufficiently detailed description of his duties to conclude, with any degree of accuracy, what the respondent actually did. The reference letter, provided at the interview, is vague. In these circumstances, the evidence provided by the applicant at the interview was essential to the assessment. The visa officer repeatedly states that his findings were based on the applicant's description of his duties in his various employment experiences. The onus is on the applicant to satisfy the visa officer that he performed the duties contained in the NOC description for the intended occupation. Here, the visa officer explored each of the applicant's employment experiences, provided the applicant the opportunity to give him further detail, expressed his concerns to the applicant regarding his [the applicant's] experience, afforded him further opportunity to elaborate on his various jobs and determined that the applicant did not perform the duties of a mechanical engineer in any of his employment positions but the military. Based on the evidence before him, I cannot find that the visa officer's finding was unreasonable.
[11] Regarding the language assessment, the applicant submits that the visa officer has an obligation to assess his English writing skills to determine proficiency in accordance with Schedule I of theImmigration Regulations, 1978. He relies on Valentinov et al. v. Canada (Minister of Citizienship and Immigration), [1998] F.C.J. No. 258 (T.D.) and Paul v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1587 (T.D.). It is useful to set out the evidence with respect to this issue.
[12] The applicant deposes at paragraph 15 of his affidavit:
Moreover, the decision of [the visa officer] states on its face that I was found to speak and read English "well" (but write with difficulty). In light thereof, I should have been awarded 4 units and not just 2 as was reflected in the decision.
[13] The visa officer's affidavit at paragraph 11 states:
The points awarded for Official Language ability were based on a determination made at the interview. The Applicant stated in his application that he could communicate in English "well" in written, oral and reading communication. At the interview, I determined that the Applicant could speak and read English ‘well'. However, the Applicant told me that he could only write English ‘with difficulty'. I therefore assessed the Applicant with a total of four credits as defined in Factor 8 of Schedule I to the Immigration Regulations. A person awarded two to five credits receives two units of assessment under the selection grid, as is clearly laid out in s. (3)(b) of Factor 8 in Schedule I.
[14] I note that in Field 11 of the Application for Permanent Residence found at page 2 of the Tribunal Record, there is a handwritten circle around the "well" response to the question "Do you write English" and an arrow pointing to the "with difficulty" response.
[15] I do not find the cases cited by the applicant to be of assistance. The applicant advised the visa officer that he wrote English with difficulty and the officer assessed him accordingly. If the applicant is suggesting that it was incumbent on the visa officer to conduct a formal assessment of the writing capacity in the face of the applicant's representation, I do not find such a position sustainable. Taken to its extreme, it would require that an individual professing to have no ability to speak, read or write in one of the official languages be assessed in that language notwithstanding the self assessment. The visa officer is entitled to rely on the information provided by the applicant in such circumstances.
[16] The final argument of the applicant is that the visa officer erred in failing to exercise positive discretion pursuant to subsection 11(3) of theImmigration Regulations, 1978. The applicant submits that the visa officer fettered his discretion by not awarding him another 4 units so as to meet the requirement of 70 particularly given the applicant was a very strong candidate and meritous of an interview waiver. The respondent says that there is no obligation on the visa officer to consider the exercise of discretion under subsection 11(3).
[17] The CAIPS notes state "NO SUBSTANTIVE REASONS FOR DISCRETION". The visa officer considered the exercise of discretion therefore there is no basis for the Court's intervention: Do v. Canada (Minister of Citizenship and Immigration), [2002] F.C. J. No. 597 (T.D.).
[18] No ground has been established that would warrant the intervention of the Court. The application for judicial review is therefore dismissed.
[19] Counsel did not suggest a serious question of general importance therefore no question is certified under subsection 83(1) of theImmigration Act.
___________________________________
Judge
Ottawa, Ontario
June 28, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-4256-00
STYLE OF CAUSE: Oleksiy Romanov v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 18, 2002
REASONS FOR ORDER OF The Honourable Madam Justice Layden-Stevenson
DATED: June 28, 2002
APPEARANCES:
Mr. Frederick S. WangFOR THE APPLICANT
Ms. Mielka VisnicFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Frederick S. WangFOR THE APPLICANT
Mr. Morris RosenbergFOR THE RESPONDENT
Deputy Attorney General of Canada