19981218
IMM-129-98
| BETWEEN: BINDU GOEL |
Applicant
| AND: THE MINISTER of CITIZENSHIP and IMMIGRATION |
Respondent
REASONS FOR ORDER
DENAULT J:
[1] This is a judicial review of the November 28, 1997 decision of a visa officer of the Canadian Consulate General in Buffalo, New York, U.S.A. The applicant seeks an order quashing the visa officer's decision denying her permanent resident status.
[2] The applicant is an Indian national who took up residence in the U.S. in January 1993. She received training as a tailor in India from 1988 to 1990 and was employed as such from 1990 to early 1992 in Karnal, India. Between March and December 1992, she was employed as a tailor of made-to-measure garments, again in Karnal, India. In 1993, she began working with Hafiz Tailor in Brooklyn, New York, in the capacity of tailor of made-to-measure garments. She currently occupies this same position.
[3] It was on April 16, 1997 that the Canadian Consulate General Area Processing Centre in Buffalo, New York first received the applicant's application for permanent residence. The visa officer found that the application was incomplete. Consequently, it was returned to the applicant with a direction that form IMM 0008 be duly completed "before re-submitting your application to this office". The direction in question also contained the following statement: "All processing of your application has stopped and will not resume until you have complied with the above instructions. If you do not respond within 90 days of the date of this letter your file may be closed."1 (I have italicized some words in this quotation because they will become significant in the analysis which follows.)
[4] The applicant re-submitted the completed application in accordance with the direction she received from the Canadian Consulate and, on July 15, 1997, the completed application was received by the Area Processing Center as required.
[5] On assessment, the applicant was awarded a total of 45 units of assessment. She was consequently refused permanent resident status, being short 25 units.
[6] The pivotal issue revolves around whether the applicant's occupation ought to have been assessed in reference to the old Canadian Classification and Dictionary of Occupations (—the CCDO") or the new National Occupation Classification ("the NOC"). Pursuant to the Immigration Regulations, 1978, all applications for permanent residence received on or after May 1, 1997 are to be assessed using the NOC. The relevant subsection reads as follows:
| 2.03 (1) For the purpose of an assessment by a visa officer under section 8, in respect of an application for a visa that was made under section 9 of the Act before May 1, 1997 and was still pending on that date, the applicable factors set out in Schedule I, as that Schedule read immediately before May 1, 1997, shall apply. |
2.03 (1) L'appréciation par l'agent des visas aux termes de l'article 8, dans le cadre d'une demande de visa pendante au 1er mai 1997 qui a été présentée avant cette date en vertu de l'article 9 de la Loi, se fait suivant les facteurs applicables prévus à l'annexe I dans sa version antérieure au 1er mai 1997. |
[7] Given that the Processing Centre only received the applicant's duly completed application on July 15, 1997, which is to say well after the May 1, 1997 cut-off date, the visa officer assessed the applicant in her stated occupation (Tailor, Made-to-Measure) in reference to the new classification, the NOC.
[8] The applicant argues that the form she filed on April 16, 1997 was complete and, as such, it needn't have been returned to her for further particulars. Consequently, she maintains that she was entitled to an assessment under CCDO 8553-110 because such an assessment would allow her to maximize the demand factor2. The applicant asserts that, had she been assessed under the CCDO, she could have obtained 18 units for Specific Vocational Preparation and an additional 8 units for Experience. Moreover, argues the applicant, the visa officer awarded her only 13 units for Education which does not appropriately reflect the fact that she has completed a three year program leading to a B.A. and two years of a full-time program in Tailoring, Cutting and Embroidery Training. The applicant submits that, given her educational history, she should have been awarded 15 units of assessment relative to the Education category.
[9] I note, at this juncture, the following points of law. First, pursuant to subsection 8(1) of the Immigration Act, the applicant bears "the burden of proving that [she] has a right to come into Canada..." Second, a visa officer is under no legal obligation to offer an applicant assistance, counselling or advice nor is he or she under any obligation to obtain clarification from an applicant 3.
[10] In the case at bar, I cannot accept the applicant's argument that her form, as filed on April 16, 1997, was in fact complete. To the extent that the visa officer was unable to properly assess the applicant's education and training in the absence of an explanation relative to the one year gap between April 1987 and April 1988, she was justified in returning the form to the applicant for additional information. That finding, however, is not dispositive of the matter.
[11] First, it is clear from the specific wording of the undated form letter that the immigration authorities considered the applicant's application to be in abeyance while they waited for her to complete the missing portions. Significantly, the form letter explicitly uses the word re-submit, indicating that the immigration authorities implicitly recognize the original application of April 16, 1997 as the primary or initial submission upon which other submissions (i.e. re-submissions) may build. The form letter also includes the followings words: "All processing of your application ... will not resume until ... If you do not respond ... your file may be closed." These words militate against the respondent's argument that the effective date of application was July 15, 1997 as the respondent implicitly acknowledges, in its own correspondence, that the processing of the application had actually begun as of April 1997 but was interrupted by the necessity of filling in the lacunae in one of the documents. In the respondent's own words, the process would simply "resume" once the additional information was received.
[12] I find that the respondent considered the file to be open and active after April 16, 1997 since it warned the applicant that her file could be closed if she did not respond within 90 days of the notice and direction. Given that the file was being processed, albeit haltingly, as of April 1997, and given the effect of subsection 2.03(1) of the Immigration Regulations, SOR/78-172, the applicant should have been assessed under the old occupational classifications system, the CCDO.
[13] Second, there is a reasonable possibility that the applicant might obtain the requisite number of units of assessment to be granted permanent resident status, which is to say 70 units, if she were re-assessed under the CCDO.
[14] For these reasons, the visa officer's decision must be set aside and the applicant's application for permanent resident status must be re-assessed in accordance with the occupational classifications system which was applicable at the material time, to wit April 16, 1997.
J.F.C.C.
__________________1 Undated "form letter", from the Immigration Area Processing Center, signed by M. A. Oppertshauser, Consul.
2 Hajariwala v. Canada (Minister of Employment and Immigration) (1988), 6 Imm.L.R. (2d) 222 at 223 (F.C.T.D.)
3 Dhillon v. Canada (M.C.I.) (1998) Doc. No. IMM-3098-97 (F.C.T.D.)