Date: 20011024
Docket: IMM-3050-00
Neutral citation: 2001 FCT 1152
BETWEEN:
OLEG MANIKOVSKYY
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicant seeks judicial review of a decision of a visa officer dated May 19, 2000, wherein the visa officer refused the applicant's application for permanent residence in Canada under the independent category.
[2] The issues are whether the officer erred in law in not assessing the applicant as an electronics engineer and whether the visa officer erred in giving the applicant an English computer programming test.
[3] The applicant was not present at the hearing in person or by counsel.
[4] The first issue arose because of an error in that the applicant was paper screened as an electronics engineer. However, the applicant did not indicate in his interview that he was prepared to seek a position as an electronics engineer in Canada and he did not request in his application to be assessed as an electronics engineer. In my view the visa officer was not required to assess the applicant as an electronics engineer in light of the foregoing. The issue was addressed in Moksud v. M.C.I. , [2001] F.C.J. No. 73 (T.D.), which supports this proposition. Rouleau J. stated at page 3:
It is noteworthy that Li, by itself, does not stand for the overarching proposition that there is a responsibility on the part of the visa officer to assess alternate occupations inherent in the applicant's work experience. What Li actually stands for is that such a duty exists when applicants request it in their application. ...
It has also long been held by the Court that visa officers have no duty to assess an applicant in alternative occupations unless the applicant has put them forward.
As Pelletier J. said in Hassan v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 2012 (T.D.):
It is sometimes said that a visa officer has a duty to consider an applicant for alternative occupations for which he might be qualified by experience or training and which might be said to be included in his chosen occupation. See Hui v. Canada (M.C.I.) (1998), 152 F.T.R. 112.
Electronics engineer is not an occupation included in the applicant's chosen occupation.
[5] The second issue is whether the officer erred in giving the applicant an English computer programming test. It was a simple six-question test in which there was only one correct answer for each question. The applicant submitted that the officer double-counted the applicant's language ability in basing her decision in the occupational factor in part on the applicant's performance on an English programming test. The applicant further submits that the officer erred in having the test administered by an assistant and assessed by a third party. Finally, the applicant argues that this practice of assessing employment skills is not appropriate, and that the Court has expressed concern about this practice on several occasions.
[6] The visa officer states in her affidavit at paragraph 18:
I then gave him a simple programming quiz involving six questions. He was unable to answer any of them correctly. Mr. Manikovskyy claims to read English "well", so he should not have had difficulty understanding the questions. Even if his English is at a lower level, the majority of the questions use sufficiently generic programming terms that he should have been able to answer them.
The Court has encouraged the use of English tests which relate to the applicant's occupation, although the Court has said that it is not even necessary to go that far. See Verma v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1314 (F.C.T.D.).
[7] Many of these issues were raised in Belashova v. M.C.I., [2001] F.C.J. No. 1055 (T.D.) where O'Keefe J. stated the following:
I have reviewed the material contained in the file and I am fully satisfied that the visa officer assessed the applicant's experience as the CAIPS notes make reference to the applicant's experience. There is no information contained in the file to suggest that a third party assessed the results of the programming test. The visa officer committed no error here.
...
I am of the opinion that in this case, the visa officer was entitled to test the applicant's abilities in computer programming by giving her a programming test. The test consisted of six questions. The applicant had informed the visa officer of the areas of programming with which she was familiar and all the questions dealt with these areas. ... The NOC description for computer programmers requires that "computer programmers write computer programs by coding sets of instructions into machine readable form". I do not believe it is unreasonable to require an applicant to demonstrate their ability to do this in a test. The visa officer did not make an error in this respect (see Zhou v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1069, (June 30, 1999) Docket IMM-3774-98 (F.C.T.D.)).
...
The applicant argues that she could have failed to do the test correctly because of a lack of language skills instead of a lack of programming skills as the test was in English. A review of the record shows that the applicant answered the first four questions in English. As well, the applicant did not allege this problem in her affidavit nor to the visa officer. Also, the applicant states in her affidavit that she easily answered the first four questions and that she could not answer the fifth question because she did not recall the formula. I do not find any merit to this argument and the allegation of double counting.
[8] In my view, the same reasoning applies in the case before me. Given that the applicant indicated on his application that he spoke English well, answered the questions in English and did not make known any language difficulties regarding the test at the time of the interview, the applicant cannot now argue that English was double-counted in the occupational category. Further, it seems entirely reasonable that an actual programmer would supervise the applicant's test. However, it is still clearly the officer who made the decision and marked the test. The visa officer made no error.
[9] The applicant also raised the question as to whether the applicant's wife had been properly assessed. This is not a matter that is before me. The visa officer is clearly entitled to look and see if the wife would be able to assist the applicant in integrating into Canadian society as part of the marks for personal suitability. She was unable to find any positive influence and, accordingly, did not award any additional points to the applicant under personal suitability because of the wife.
[10] The application for judicial review is dismissed. The applicant had sought to have a question certified as to whether it was in the jurisdiction of the visa officer to administer non-standard tests not described either in the Immigration Regulations or in the NOC, and to base their decision on the results of these tests. There is no factual basis in the material before me to show that the English computer programming test was standard or non-standard. The answer to this question is not relevant in the case before me. Accordingly, no question will be certified.
"W.P. McKeown"
J.F.C.C.
TORONTO, ONTARIO
October 24, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-3050-00
STYLE OF CAUSE: OLEG MANIKOVSKYY
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
DATE OF HEARING: WEDNESDAY, OCTOBER 17, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: McKEOWN J.
DATED: WEDNESDAY, OCTOBER 24, 2001
APPEARANCES: No appearance
For the Applicant
Mr. Jamie Todd
For the Respondent
SOLICITORS OF RECORD: Mr. Oleg Manikovskyy
2310-100 Wellesley St. E.
Toronto, Ontario
M4Y 1H5
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20011024
Docket: IMM-3050-00
BETWEEN:
OLEG MANIKOVSKYY
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER