Date: 19990317
Docket: IMM-3997-98
BETWEEN:
IQBAL ISMAEL
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
- [1] This is an application for judicial review of a visa officer"s decision, whereby Iqbal ISMAEL (the "Applicant") was denied permanent residence in Canada.
| [2] The Applicant is a citizen of Mozambique. He applied for permanent residence in Canada under the Independent Skilled Worker Category as an administrative officer, based on his experience as an administrative officer at the Canadian Embassy in Mozambique and on his work at the Canadian International Development Agency in Mozambique. |
| [3] The Applicant sent his application via courier on April 25, 1997 and it was received on May 2, 1997. |
| [4] The criteria for assessing the occupation of immigrants changed from the Canadian Classification and Dictionary of Occupations (CCDO) to the National Occupational Classification (NOC) on May 1, 1997. |
| [5] The Applicant was assessed according to the NOC and received only 55 points. Nonetheless, given his work for the Canadian government and his friends in Canada, the visa officer decided to arrange an interview, which was conducted on May 28,1998. |
| [6] During the interview, the Applicant was questioned about his education. He indicated that he had 4 years of primary school and 6 years of secondary school. In support of this claim, he submitted a diploma from the 25th of September Secondary School, Quelimane, Mozambique. The diploma states that he completed grade 11 and was promoted to the class immediately following. The Visa Officer found that this was insufficient proof that he had completed a "High School" program. As a result, she only awarded him 5 points for education. |
| [7] A refusal letter was sent June 16, 1998. |
ANALYSIS
| [8] As of May 1, 1997, all applications for permanent residence are processed under the NOC, not the CCDO. |
| [9] Section 2.03(1) is a transitional provision which states that all applications which were still pending on May 1, 1997 shall be considered under the CCDO. Operational Memorandum (OP-97-21) dated May 1,1997 states that mail in applications should be treated somewhat differently. |
| The Transitional Provisions, as set out in Section 2.03 of the proposed Regulations, oblige CIC to assess all cases which are received but not assessed prior to May 1 against the CCDO and the GOL as it read before May 1. In the interest of Procedural Fairness, mail-in cases which clearly bear the postmark prior to May 1, 1997 should be coded as received on April 30, provided that the application and cost recovery fee are complete. [Emphasis added]. |
| [10] The Applicant submitted his application by courier on April 25, 1997, together with a cheque.1 The application was received at the High Commission on May 2, 1997. |
| [11] The Respondent argues that section 2.03(1) and the Operational Memorandum clearly state that the NOC applies to applications received after May 1, 1997. The only exception is for applications bearing a postmark dated prior to May 1, 1997, which was not the case at bar. |
| [12] In my opinion, the waybill dated April 25, 1997 is the equivalent of a postmark. To argue that the waybill is not a postmark contravenes the spirit of the Operations Memorandum which is to assure procedural fairness. In a case such as this, the Applicant should have been assessed under the CCDO. |
| [13] In support of his application, the Applicant submitted a diploma from Mozambique, which states that he has completed the 11th class and is promoted to the following level. The Visa Officer decided that the diploma was not one that "may lead to entrance to university in the country of study", as stated under the Education Factor in Schedule I, and awarded the Applicant 5 points. |
| [14] The Applicant argues that given the fact that this was the Visa Officer"s first African posting, she was unfamiliar with the school system in Mozambique and as such, should have consulted the visa office in Mozambique for guidance, as suggested by Overseas Processing Manual (OP-5) at 4.1.1 (the "OPM"). |
| e) If you are unable to assess conclusively the educational credentials of an applicant who attended school outside the area of the visa office"s jurisdiction and if the assessment of educational units is a determining factor in the selection of the applicant, the educational qualifications should be referred to the appropriate visa office for guidance. |
| [15] In her affidavit, the Visa Officer stated that the documentary evidence "did not indicate that the Applicant had attained a level of education that would allow him to enter university."2 According to the Visa Officer, the diploma simply demonstrated that he had passed the 11th class and been promoted to the following class. There was no indication that he had completed a high school program. She concluded that "based on a total of 10 years of school, in light the Applicant"s oral evidence", she would award him 5 points. |
| [16] If the application had been properly assessed under the CCDO, the educational assessment may have been the key factor in the determination of the application. In a case such as this, where there is no evidence as to the visa officer"s familiarity with the education system in the Applicant"s country of origin, the visa officer should seek guidance from the local visa office or embassy, in this case Mozambique, as indicated in the OPM. |
| [17] Finally, the Applicant argued that by granting an interview, when he was so clearly below the limit to permit the granting of permanent residence, the Visa Officer was acting in an arbitrary and capricious manner. Since the decision to grant an interview could only benefit the Applicant in this case, I reject this argument. |
CONCLUSION
| [18] The Visa Officer was bound by the duty of procedural fairness, to assess the application under the CCDO. |
| [19] Due to her lack of familiarity with the educational system in Mozambique, the Visa Officer also had a duty to seek guidance on this subject from the local visa office or embassy in Mozambique, before assessing educational credentials from that country. |
| [20] The application for judicial review is granted. The Applicant"s application is to be reassessed under the CCDO by a different visa officer, who is ordered to consult with a visa office or the Canadian embassy in Mozambique to determine whether the Applicant"s diploma is a diploma which may lead to entrance to university, as described by Criteria (1)b)ii) of the Education Factor in Schedule I of the Immigration Regulations. |
(Sgd.) "Daniele Tremblay-Lamer"
JUDGE
VANCOUVER, BRITISH COLUMBIA
March 17, 1999
| [21] FEDERAL COURT TRIAL DIVISION |
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-3997-98
STYLE OF CAUSE: Iqbal Ismael
v.
MCI
| LOCATION OF HEARING: Vancouver, British Columbia |
REASONS FOR ORDER OF MADAME JUSTICE TREMBLAY-LAMER
dated March 17, 1999
APPEARANCES BY:
| Mr. B.K. Buahene for the Applicant |
Ms. Larissa Easson for the Respondent
SOLICITORS OF RECORD:
Mr. B.K. Buahene for the Applicant
Barrister & Solicitor
Vancouver, BC
Morris Rosenberg for the Respondent
Deputy Attorney General
of Canada
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