Date: 19990618
Docket: IMM-3993-98
BETWEEN:
RAZMIK SAHAK
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.
Introduction
[1] The applicant, Razmik Sahak, pursuant to section 18.1 of the Federal Court Act, R.S. 1985, c. F-7, seeks judicial review of a decision dated June 18, 1998 made by Umit Ozguc, Designated Immigration Officer (DIO) at the Canadian Embassy in Turkey refusing Mr. Sahak's application for permanent residence in Canada in the independent category of Mechanical Engineer.
Background
[2] Mr. Sahak is a citizen of Iran who made an application for permanent residence (PRA) in Canada on April 29, 1997. His PRA indicates he received a Bachelor of Science in Mechanical Engineering from Tehran Polytechnic in 1989 and in terms of work history, all in Tehran, the following:
| (a) 1996 to current - Adel Buhler Engineering as a Flour Mill Plant Design Engineer (Buhler); |
| (b) August 1991 to October 1996 - Forudrah Consulting Engineers in Engineering Application Programming (Forudrah); |
| (c) From November 1995 to August 1996 - Computer Programming with Sanjesh Khodkar Sanaati Company (Sanaati). |
After graduation in 1989, Mr. Sahak completed two years of military service.
[3] His PRA was accompanied by letters of reference from his employers. The letter from Forudrah is dated April 27, 1997 and is signed by the Director of the Heating, Ventilating and Air Conditioning Department as well as by the Senior Partner of the firm. It describes his responsibilities and duties as an Engineering Application Programmer. The material part of this letter is as follows:
| Development of some computer programs for facilitating calculation in the area of Heating, Ventilating and Air Conditioning (HVAC) Systems, including heating and cooling load calculation, pipe layout, design and calculation of air-distribution duct and air-handling units, selection of heating and cooling apparatus and equipment such as boilers, chillers, fan-coils, unit heaters, heat exchangers, cooling towers, pumps, fans, control valves and accessories thereto, through application of C language. |
| In addition, by applying his profound and vast knowledge in the field of AutoCAD and AutoLISP programming, he has enhanced the performance of the CAD personnel of this company. |
[4] The material part of Buhler's letter referencing Mr. Sahak's performance of work as a Mechanical Engineer Designer dated March 1, 1998 reads:
| The duties assigned to him are as follows: |
| - Study on the preliminary design stages, discussion and exchange of views with customers for the purpose of making the necessary coordinations, and rendering design - technical orientations. |
| - Detailed design of flour mill plants according to the standards prescribed by BUHLER Company, and the DIN Standard. |
| - Periodical Inspections and Visiting of factories and plants facilities under execution, for the purpose of control of designs and making the required coordinations with contractors. - Exchanging of technical informations with Adel Machine Manufacturing Co. (Manufacturer of Machineries) / |
| - Execution of all designs by application of Autocad Programmes. |
| - Developing design applications by AutoLISP Computerized Programming Language. |
[5] During the PRA process the DIO asked for and was provided by the applicant with an informal assessment of qualifications for engineers from the Canadian Council of Professional Engineers, dated May 1997 indicating that his qualifications appeared to be acceptable for immigration purposes.
[6] Mr. Sahak was interviewed on April 23, 1998 by the DIO.
[7] The Tribunal record contains the CAIPS notes made by the DIO with respect to the applicant's PRA. The material part of those notes, which contain many grammatical and typographical errors, some of which I have eliminated, are as follows:
| (a) Entry - 18 Jun. 1997 |
| Subject was refused from Damascus 1996. |
| Consultant states that he has a TOEFL degree and his English should be assessed as well etc to determine at interview but it appears his experience as an engineer is very recent. Please interview and ask for detailed job reference from his current job. |
| (b) Entry - 13 April 1998 |
| Since 1996 October he works for ADEL Buhler Co. Wheatmill Construction and Design and Equipment Supply. He technically with colleagues coordinates the client. This means giving idea about machines that would be required for the wheatmill plant, production diagrams etc. If the client decides to contract the job he draws diagrams briefly. Production line diagrams. He does not get involved in calculations. They work with AutoCAD programs. |
| (c) Entry - 23 April 1998 |
| He states he makes mathematical calculations but not construction calculations. He states his specific subject fluid and heat. He prepares a report and give it to the erector with the diagrams and designs. He visits the factory regularly to inspect the commissioning of the system which he has designed. |
| It appears he is now performing the prerequisite duties of a mechanical engineer and has improved his English since he was interviewed in Damascus. But we should ask for the notes and the IMM8 to decide on his application and to see if there are any discrepancies. |
[8] There is another entry in the CAIPS notes which says that a reply was received from Damascus. "File destroyed and NO/NO record for applicant in Damascus office".
[9] There is a CAIPS entry dated June 15, 1998 which reads:
| He was given the benefit of the doubt and accepted that since October 1996 he performs the main duties of an engineer in his current job. As such he is entitled for 2 points under experience factor as he has worked as an engineer for just over a year and less than two years. He was awarded 2 points for language in Damascus. I raised it to 6 as he has a TOFEL degree which could be considered as equivalent to "WELL". But I don't think he deserves more than five points under personal suitability as there is nothing extraordinary in his chances of getting established in CDN regarding his motivation, adaptability or resourcefulness. Accordingly fails on points. |
The reference to Damascus relates to Mr. Sahak's application for permanent residence which was refused by the Canadian Embassy in Damascus, Syria on April 2, 1996. The refusal letter from Damascus is contained in the Tribunal record. He was assessed there as a Mechanical Engineer Technician and was awarded 57 units. He scored 6 units on Experience. There was a discussion at the interview in respect of his current PRA about his previous PRA filed in Damascus. The CAIPS notes of the interview indicate the applicant told the DIO that the Canadian Embassy in Damascus:
| ... they made a mistake and assessed him as a technologist even though he applied as an engineer. |
The DIO's decision
[10] The DIO's decision dated June 18, 1998 reads:
| Pursuant to section 8(1) of the Immigration Regulations, 1978 independent applicants, the class in which you have applied, are assessed on the basis of education, vocational preparation, experience, occupational demand, arranged employment or designated occupation, Canadian demographic factors, age, knowledge of English and French languages and personal suitability. You were assessed based on the requirements for the following occupation: |
| MECHANICAL ENGINEER NOC: 2132.0 |
| You will find below the points scored in each factor of the selection criteria, in your assessed occupation of "Mechanical Engineer". |
| Age (30) - 10 |
| Occupation - 05 |
| SVP - 17 |
| Experience - 02 |
| ARE - 00 |
| Demographic - 08 |
| Education - 15 |
| English - 06 |
| French - 00 |
| Bonus - 00 |
| Personal - 05 |
| Suitability ----- |
| 68 |
| Total points required: 70 |
| Following a careful and sympathetic assessment of all these factors relevant to your application, it has been determined that you have not obtained sufficient units of assessment to qualify for immigration to Canada. You therefore come within the inadmissible class of persons described in paragraph 19(2)(d) of the Immigration Act. |
| I realize that this decision will be a disappointment to you and regret that it could not be favourable. |
The Applicant's Affidavit on Judicial Review
[11] The applicant filed an affidavit in this judicial review. The respondent filed none in support of the refusal letter. Paragraphs 8, 13, 14 and 17 of the applicant's affidavit state:
| 8. On July 7, 1998, I received a letter of refusal from Umit Ozguc dated June 18, 1998 advising that my application for permanent residence had been refused. While the letter indicated that I had "...not obtained sufficient units of assessment to qualify for immigration to Canada", it did not state outright why I failed to obtain the requisite units of assessment. The officer failed to provide reasons for the rendering of this decision. |
| 13. Based upon my points assessment and the refusal which I received from the Designated Immigration Officer, it does not appear that the Officer turned her mind to this evidence in evaluating my case. The Officer did not consider all of the evidence before her in rendering her decision. |
| 14. I note that I received only 2 units of assessment for experience which would indicate that I possess only 1 year experience in my area of expertise. However I possessed approximately 6 years experience as an Engineer at the time of the submission of my application, and approximately 7 years experience at the time of my interview. This was indicated on my application for permanent residence. |
| 17. Based on my oral description, I believe that the Designated Immigration Officer thought that I was only a draftsman based upon my use of the Autocad system. However, it is now common practice that in an engineering office drawings are done through the use of Autocad. Both engineers and draftsmen alike make use of this tool. |
[12] In paragraph 18 of his affidavit, the applicant indicates the DIO made inquiries to Damascus about his previous PRA and asked for a copy of the refusal letter in that application. The DIO said she would be asking for the Damascus file to determine the reasons for the refusal then. The applicant alleges unfairness in this respect.
The issues
[13] Two issues were raised in argument. The first one related to the DIO's assessment of the Experience Factor. Applicant says on this point the DIO made erroneous findings of fact, ignored relevant facts and failed to properly consider evidence provided. The second issue related to fairness in connection with his previous refusal out of Damascus.
Analysis
[14] The Immigration Act (the "Act") and the Immigration Regulations (the "Regulations") provide the legislative scheme governing assessments of applications for permanent residence.
[15] An applicant must satisfy an immigration officer that he meets the selection standards established in the Regulations (subsections 6(1) and 6(8) of the Act) and the burden of proof is on him (subsection 8(1) of the Act.)
[16] Section 8 of the Regulations requires a visa officer to assess an applicant for permanent residence on the basis and in accordance with the factors and criteria set out in Schedule I of the Regulations and to award the appropriate units of assessment for each factor in accordance with the indicated criteria.
[17] In Fung v. Canada (Minister of Employment and Immigration) (1991), 12 Imm.L.R. (2d) 164, the Federal Court of Appeal held a visa officer must make an assessment of the applicant's work experience sufficient to evaluate it in respect of the applicant's intended occupation. In that case, Mahoney J.A. noted that, at the interview, the visa officer interviewed the applicant in respect of his entire work experience. In Dhaliwal v. Canada (Minister of Employment and Immigration) (1992), 52 F.T.R. 311, Rouleau J. said fairness demands a visa officer question an applicant on the duties performed in his previous occupation and in Hajariwala v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 79, Jerome A.C.J. spoke in terms of an obligation of immigration officers to provide a "thorough and fair assessment, and to provide adequate reasons for refusals when they occur".
[18] The record in this case leads me to the conclusion that the DIO failed to properly assess the applicant's previous work experience. There is simply no evidence before me the DIO probed into the applicant's past work experience at Forudrah from August 1991 to October 1996. All indications are to the contrary. The CAIPS entry note of June 18, 1997 indicates he should only be interviewed on his current job experience because he had been refused in Damascus. The DIO's interview notes only speak to his current work experience. I am not prepared to accept counsel for the respondent's submission that by implication the DIO considered the applicant's previous work experience because the DIO said in his CAIPS notes "[I]t appears he is now performing the prerequisite duties of a mechanical engineer" [emphasis mine]. It is clear to me the applicant's previous refusal in Damascus led the DIO not to further test the applicant's past work experience and this despite the fact the applicant told the DIO he had been mistakenly assessed in his Damascus PRA as a technician.
[19] There is a subsidiary reason this judicial review application should be allowed. The DIO's refusal letter is completely devoid of any explanation for the units awarded to the applicant. This does not meet the Hajariwala, (supra), standard.
Conclusion
[20] The application is allowed, the applicant's PRA is remitted for reconsideration in accordance with these reasons to a different visa officer.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
JUNE 18, 1999