Date: 19990827
Docket: IMM-4799-97
BETWEEN:
ALI REZA NAZERI
Applicant
-and-
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
NADON J.
[1] These reasons arise out of an application for judicial review of a decision of Jean-Francois Hubert-Rouleau, a Visa Officer at the Canadian Embassy in Damascus, Syria, wherein he determined that the Applicant did not meet the immigrant selection criteria and therefore rejected the Applicant"s application for permanent residence in Canada. The decision in question is dated September 18, 1997.
FACTS
[2] The Applicant, Mr. Ali Reza Nazeri, applied for permanent residence under the Independent category. In his application form, he indicated that he had practised as an echocardiographer, a technician who performs ultrasounds of the heart. However, Mr. Nazeri indicated in his application form that he wished to work in Canada as a diagnostic medical sonographer.
[3] During the Applicant"s interview with the Visa Officer, he indicated that he had studied medicine full time between 1989 and 1997. He also indicated that he had worked part-time, approximately twelve hours per week, as an echocardiographer for his father and in an independent laboratory. To enable him to work part-time as an echocardiographer, the Applicant had taken a four-month course with 144 hours of instruction in echocardiography
[4] Because the application was received on April 30, 1997, pursuant to sections 2.03(1) and 2.03(2) of the Transitional Provisions to the Immigration Act, the Visa Officer had a duty to first assess the Applicant"s qualifications in accordance with the Canadian Classification and Dictionary of Occupations ("CCDO") then in force and, if that assessment was negative, to reassess the Applicant under the National Occupational Classification guidelines ("NOC") which came into effect May 1, 1997.
[5] The Applicant only had experience in performing echocardiographs of the heart and not in ultrasounds of the entire body. The Visa Officer determined that the Applicant did not have the necessary experience to be accepted under the CCDO category of diagnostic medical sonographer, or under the NOC category of medical sonographer, and thus assigned him zero points under the factor of experience. The Visa Officer"s decision appears from a letter sent to the Applicant on September 18, 1997, which reads, in part, as follows:
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This refers to your application for permanent residence in Canada and to your recent interview in with a visa officer. |
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I regret to advise that your application cannot, at this time, be approved. You are, in my opinion, a member of the inadmissible of persons described in Section 19.(2)(d) of the Immigration Act as you are unable to fulfil the requirements of Sections 8, 9 and 11 of the Immigration Regulations. |
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As a member of the Independent category, your application was assessed according to a detailed point system which includes such factors as age, occupation, employment experience, vocational training, education and abilities in English and French. Independent applicants must receive a minimum of 70 points to meet selection criteria, including at least one unit of assessment under both the occupational demand and experience factors. In your particular case, you were awarded the following points in your assessed occupation of Diagnostic Medical Sonographer, CCDO: 3155108: |
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| Specific Vocational Preparation 15 |
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As you have failed to meet the minimum required point total, your application cannot, at this time, be approved. |
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[6] For the sake of clarity and completeness, I will also reproduce paragraphs 3 through 9 of the Visa Officer"s affidavit, dated January 4, 1998, and in respect of which the Visa Officer was cross-examined on February 23, 1998.
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3. This office received the application for permanent residence under the Independent category from Mr. Nazeri on April 30, 1997. In his application form, Mr. Nazeri indicated that he had practiced as an echocardiographer. This occupation is not listed in the CCDO. Mr. Nazeri indicated that he wished to work in Canada as a "diagnostic medical sonographer", a description of which is at CCDO # 3155-108. Therefore, Mr. Nazeri"s application was considered under the category of "diagnostic medical sonographer", a description of which is attached as Exhibit "A" to this my affidavit. |
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4. I interviewed Mr. Nazeri on September 17, 1997. During the interview, he explained that he studied medicine full time between 1989 and 1997. He worked part-time, approximately twelve hours per week, as an echocardiographer for his father and in an independent laboratory. In order to work part-time as an echocardiographer he had taken a four month course in echocardiography. |
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5. Mr. Nazeri had applied for permanent residence under the CCDO category of "diagnostic medical sonographer". In order to be accepted in this category, a training period of one year is required pursuant to the National Occupation Classification (NOC) along with knowledge and experience in ultrasounds of the entire body, pursuant to the requirements in the CCDO description. Attached as Exhibit "B" to this my affidavit is a copy of the NCO description of "medical sonographer". |
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6. Mr. Nazeri, however, only had experience in performing echocardiographs (of the heart), and not in performing ultrasounds of the entire body. Moreover, he underwent a four month training course for this, and not a one year course as is required in the NOC. Therefore, based on these factors, he does not have the necessary experience to be accepted under the CCDO category of "diagnostic medical sonographer". Since I determined him to have no experience under this category, I assigned him zero points under the factor of experience. |
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7. At one point in the interview, I did leave my office for a short period to discuss Mr. Nazeri"s application with the Program Manager of the office. Based, in part, on this discussion, I concluded that the principle activity of the Applicant was his full time study of medicine and not his part time work of echocardiographer. |
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8. I informed Mr. Nazeri that I was not satisfied that he qualified under the category of "diagnostic medical sonographer" and that I would have to examine his file further before I made a final decision. I informed Mr. Nazeri that I would make a decision on his application soon and he would be informed of it within 30 days. |
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9. In his affidavit, Mr. Nazeri indicated that the interview was short. Mr. Nazeri"s interview lasted 30 minutes, with approximately 12 of those minutes comprising my discussion with my colleague. Therefore, the total time of the interview which I spent with Mr. Nazeri was approximately 20 minutes. During the interview, I provided Mr. Nazeri with a full opportunity to present his case, but despite this, his qualifications did not match those required by the CCDO. |
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[7] I should point out that in paragraph 7 of his affidavit, the Visa Officer states that he stepped out of his office during the interview to confer with his Program Manager. The Visa Officer states that as a result of his discussion, he came to the conclusion that the Applicant"s principal activity was "his full time study of medicine and not his part time work of echocardiographer".
[8] Again, for the sake of clarity and completeness, I will now refer to the cross-examination by the Applicant of the Visa Officer. The Visa Officer testified that he had taken about five minutes to review the Applicant"s file before the interview, and that he did this approximately ten minutes before the interview. The Visa Officer did not review, prior to the interview, letters which had been sent by Iranian doctors, explaining the work done for them by the Applicant as an echocardiographer.
[9] The Visa Officer testified that during the interview, he had a concern regarding the Applicant"s full-time occupation, i.e. by reason of the fact that the Applicant was studying full-time as a medical student and that he was working, on a part-time basis, as an echocardiographer. Because of this, he interrupted the interview to speak to his supervisor. The Visa Officer states that he discussed the Applicant"s "qualification as an echocardiographer" with his supervisor. At page 27 of the Transcript (page 132 of the Applicant"s Record), the Visa Officer gave the following answer to a question concerning the nature of his discussion with his supervisor:
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That we discussed, for instance, the definition of the CCDO, what were all the activities that someone with title doing as a sonographer, and that Mr. Nazeri was not doing those things. He was working just part-time and doing echocardiography just for the heart. |
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[10] When the Visa Officer returned to the interview room, he did not raise with the Applicant his concerns regarding the Applicant"s principal activity. The following questions and answers, which appear at pages 32 and 33 of the Transcript (pages 137 and 138 of the Applicant"s Record), are informative:
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Q. Yes. But he wasn"t a physician, he was a student. |
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Mr. Rouleau, I am not sure I have an answer to this important question. When you went to speak to your program manager, I think you indicated to us that one of the concerns that you both had discussed was that his principal activity -- Mr. Nazeri"s principal activity -- was really the full-time study of medicine and not the part-time work as echocardiographer. Is that correct? That"s one of the topics that you discussed with your program manager? |
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Q. Okay. Now, I know you had said that when you came back you told him that you were not satisfied that he was doing the work of a sonographer. I know you"ve said that, and I am not going to go back into that, but I am talking about this other topic now, which is a different topic, the topic that you had with the program manager of whether he could work part-time as an echocardiographer while studying as a medical student. |
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Now, when you came back, did you confront Mr. Nazeri with that particular concern -- that particular concern regarding whether there was any kind of way in which he could still do his full-time medical studies and work part-time as an echocardiographer? It was that concern. That"s the one I am talking -- I want to focus on that right now? |
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A. Principal activity, versus the partial time? |
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Q. Yes. Did you confront his with that concern, which both you and the program manager had noted during your discuss? |
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[11] I should point out that the Visa Officer did not make notes regarding his discussions with his supervisor. Also, the Visa Officer did not make an entry in the CAIPS notes regarding that conversation.
[12] Regarding his approach to the Applicant"s application, in light of the CCDO and NOC, this is how the Visa Officer explained it at pages 48 and 49 of the Transcript (pages 153-154 of the Applicant"s Record):
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THE DEPONENT: My first responsibility was to examine the application of the applicant under the CCDO as he has applied under the CCDO, period. |
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I was convinced that he did not meet the definition under the CCDO as the CCDO is talking about the various part of the body, and as in light of the interview the applicant told me that he was exclusively doing echocardiography -- echocardiography. |
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So once I was convinced that he did meet the definition under the CCDO, then I looked under the NOC, but under the NOC there, Mr. Nazeri did not meet the requirement which talked about accomplishing of a one-year college or hospital-based program in diagnostic medical sonography. |
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What he gave to me during the interview was -- what he answered to me about his training at the interview was, he had once for a training of four months, I believe. |
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[13] I now turn to that part of the Transcript where the Visa Officer explained why the Applicant did not meet the requirements of either the CCDO or the NOC. At page 56 of the Transcript (page 161 of the Applicant"s Record), the Visa Officer concedes that the language of both the CCDO and the NOC is similar in describing what a medical sonographer does.
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Q. Perhaps you would like to point out some real differences in the language between the two descriptions. You have got them both in front of you. Show me where there is some major differences in how they describe the role of a medical sonographer. |
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Q. You agree with me, then, that the language and content is essentially the same as between the CCDO description and the NOC description? |
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[14] The questions and answers which follow at pages 56, 57, 58 and 59 of the Transcript are also relevant, and I also reproduce them.
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Q. Okay. Do you also agree that doctors are not expected to be expert in everything? In other words, there are cardiac specialists; there are internal medicine specialists; there are radiologists, and so on. In other words, gynaecologists, you agree that the doctors specialize in a lot of different areas? |
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A. You say that I agree to that? |
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Q. Yes. You agree with me? |
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Q. Okay. And that the word "doctor" is more of a kind of general or generic term which could also include a lot of different specialities under that topic? In other words, different kinds f doctors? |
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Q. Okay. Now, applying that same reasoning, do you agree with me that a medical sonographer, which denotes somebody who was trained in ultrasound, may also be a generic or general term, as implied in the NOC Manual, for a number of specialties within that term, such as sonographers who are specialists in obstetrics, in ophthalmics, in vascular sonography, and in echocardiography? |
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A. Could I just -- if somebody has been for a training exclusively in echocardiography, and this person doesn"t have the experience and the qualification to perform other types of echocardiography, because they study just for the heart. |
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Q. And does that mean that -- what about a cardiac surgeon, somebody who operates on the heart? Would you say that that person has no qualifications at all as a doctor, just because he is -- |
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A. The big difference, because for a cardiac doctor, cardiologist, this person needs to do medicine first, which is five to six years of medicine, then to go for specialty of four years. This person has a big background before, to arrive and to work as a cardiologist. I think that the example is not good here. |
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Q. Okay. That"s fine. But you have some concerns, obviously, about his training. |
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Now, have you ever studied sonography yourself? Have you ever studied this yourself? |
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Q. You, yourself, have you ever taken a training program yourself in medical sonography, yourself, in ultrasound? |
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Q. You had concerns about his training. Now, did you think before making your negative decision to inquire about whether perhaps, just as a doctor has to study general medicine before becoming a specialist in a certain area, whether perhaps he, having completed a training program in echocardiography, perhaps for initial period of time, maybe several weeks, a month, whatever, had to also be familiar with the general principles of ultrasound technology as it applied to body parts? Did you inquire about that? |
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A. Did I ask this question to the applicant? |
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Q. Well, did you ask this question either to the applicant or to perhaps phone up any organization which offered the training? First of all, did you ask the applicant the question? |
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Q. Okay. Did you then phone up any organization which offered that training and asked them if that was the situation? |
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A. No. What I have to deal with was the application. I have an applicant who mention -- who did a certificate in echocardiography, period. |
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[15] To complete that part of the Visa Officer"s testimony, I also reproduce a question and answer which appear at page 61 of the Transcript (page 166 of the Applicant"s Record):
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Q. Okay. Did you ask him to explain how his training and experience satisfied the CCDO definition? |
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[16] These are the facts which, in my view, are relevant and necessary to determine the present application.
ISSUE
[17] The principal issue is whether the Visa Officer erred in finding that the Applicant did not meet the description of medical diagnostic sonographer under the CCDO or medical sonographer under the NOC. Another issue is whether, in all of the circumstances, the Visa Officer breached the rules of natural justice by reason of his failure to properly review the Applicant"s file prior to the interview, and by reason of his failure to confront the Applicant with his concerns, and more particularly, the concern raised with his superior during the course of the interview.
ANALYSIS
Visa Officer"s Assessment Under the CCDO
[18] The definition of "diagnostic medical sonographer" under the CCDO category 3155-108 provides as follows:
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Operates ultrasound equipment that transmits high frequency sound pulses through various parts of the body, to produce and record diagnostic images.: |
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Confers with referring physician, or reads pertinent case history and requisition form to determine appropriate ultrasound procedure to be used and determine body part(s) requiring examination. Explains treatment and reassures patient. Applies scanning jelly to body area to be scanned and places transducer device into skin surface. Operates ultrasound equipment by activating power source, setting time gain compensation controls and by selecting scale size to conduce examination. Observes and cares for patient throughout examination to ensure patient safety and comfort. Monitors examination by viewing images on video screen, to evaluate quality and consistency of diagnostic images, and makes adjustments to equipment, as required. Photographs or tapes suitable images, as they become available by operating camera unit connected to ultrasound equipment, to permanently record examination. Advises patient of subsequent session with physician, completes requisition form, and removes and identifies film or tape. Arranges film processing or processing film by employing standard darkroom techniques, and forwards negatives or video tape to physician. Checks calibration or equipment and arranges for equipment maintenance. May participate in reading session with physician, to contribute sonographic data and any other relevant observations, to assist with interpretation of diagnostic impressions. [Emphasis added] |
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To qualify as a diagnostic medical sonographer, under the requirements in the CCDO, the Applicant must be able to operate ultrasound equipment through "various parts of the body".
[19] This application rests on the interpretation of the term "through various parts of the body". The question become whether the phrase "various parts of the body" means "all parts of the body" or "more than one part of the body".
[20] The Applicant submits that the Visa Officer"s finding that the definition of diagnostic medical sonographer requires the Applicant to be an ultrasound expert in the "entire body" is the Visa Officer"s own opinion and is not supported by the language in the definition.
[21] The Applicant argues that the CCDO description of diagnostic medical sonographer envisages that the ultrasound technician works under the direction of a supervising physician. If the physician in question is a cardiologist, he would likely engage an ultrasound technician who has specialized in echocardiography. Similarly, if the physician were a gynecologist he would likely engage an ultrasound technician who has specialized in gynecological sonography. The Applicant submits that this is the logical, common sense interpretation of "various" and not the Visa Officer"s opinion that "various" means "all parts of the body".
[22] The Applicant further argues that the NOC category 3216 which states that medical sonographers may specialize in specific areas of sonography including adult or pediatric echocardiography, further reinforces the Applicant"s interpretation of "various".
[23] The Respondent does not agree with the position taken by the Applicant. At paragraph 8 of his Memorandum, the Respondent makes the following submission:
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In paragraph 49 of the applicant"s memorandum he states that the visa officer"s finding that the CCDO description required the Applicant to be an ultrasound expert in the entire body, and not just the heart, was the visa officer"s own opinion and was not supported by the language of the CCDO description. The Respondent submits that the lead statement of the CCDO definition clearly states that the Applicant must have knowledge of ultrasounds of the entire body ("various parts of the body") in the lead statement of the definition. As such, the visa officer did not err in interpreting the CCDO description. |
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Visa Officer"s Assessment Under the NOC
[24] The requirements under the NOC #3216 for Medical Sonographers reads as follows:
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Medical Sonographers operate ultrasound equipment that produces and records images of various parts of the body to aid physicians in monitoring pregnancies and in diagnosing cardiac, vascular and other disorders. |
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...Completion of a one-year college or hospital-based program in diagnostic medical sonography and supervised practical training are required. ... |
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Under this category, a medical sonographer records images of "various parts of the body" and there is an employment requirement of one year of training in diagnostic medical sonography.
[25] The Applicant states that the Visa Officer accepted in cross-examination that the language and content of CCDO and NOC descriptions were essentially the same. The Applicant submits that the Visa Officer also agreed in cross-examination that he would have qualified as an echocardiographer under the NOC regulations but for the Visa Officer"s interpretation of the Applicant"s training. The Applicant submits that, having agreed that the meaning and description of sonographer as set out in the CCDO was identical to that set out in the NOC, the Visa Officer made a perverse finding in concluding that the Applicant could not meet the requirements in the NOC because of lack of training.
[26] The Respondent"s position regarding the NOC requirements appears at paragraph 10 of his Memorandum, which reads as follows:
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Since the visa officer determined that the Applicant did not meet the requirements under the CCDO description of "diagnostic medical sonographer", he then proceeded to assess the Applicant under the category of "medical sonographer" under the NOC, in accordance with section 2.03(2) of the Amended Immigration Regulations . Under that category, it also states that one must record images of "various parts of the body". Furthermore, there is an employment requirement of one year of training in diagnostic medical sonography. Since the Applicant only possessed four months of training and not one year, the visa officer also refused him under this occupational category. As such, the visa officer did not err in his assessment of the applicant"s training and his ultimate refusal under the NOC. |
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[27] For the reasons that follow, I am of the view that this judicial review application must be allowed.
[28] The essence of the Visa Officer"s decision regarding the Applicant"s fulfilment of the requirements of the CCDO and the NOC, appear in paragraphs 5 and 6 of his affidavit, which I have already reproduced. The Visa Officer was of the view that "knowledge and experience in ultrasounds of the entire body" was a requirement under the CCDO and the NOC. Consequently, as the Applicant "only had experience in performing echocardiographs (of the heart) and not in performing ultrasounds of the entire body", the Visa Officer came to a conclusion adverse to the Applicant.
[29] What the CCDO and the NOC require from a sonographer is the ability to operate and the knowledge of: under the CCDO, ultrasound equipment "that transmits high frequency sound pulses through various parts of the body, to produce and record diagnostic images", and under the NOC, ultrasound equipment "that produces and records images of various parts of the body to aid physicians in monitoring pregnancies and in diagnosing cardiac, vascular and other disorders".
[30] Neither the CCDO nor the NOC require that a sonographer be actively employed, at all times, in the operation of ultrasound equipment for all the parts of the body. Obviously, a sonographer specializing in cardiac disorders will, in all likelihood, be involved on a day-to-day basis in that specific field. Rather, the issue is whether the Applicant was capable of operating ultrasound equipment "through various parts of the body". In other words, did the Applicant"s studies and training enable him to perform, if required, the aforesaid operation.
[31] This question was raised during the Visa Officer"s cross-examination at pages 56, 57 and 58 of the Transcript (page 161, 162 and 163 of the Applicant"s Record):
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Q. Okay. Do you also agree that doctors are not expected to be expert in everything? In other words, there are cardiac specialists, there are internal medicine specialists, there are radiologists, and so on. In other words, gynaecologists, you agree that the doctors specialize in a lot of different areas? |
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A. You say that I agree to that? |
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Q. Yes. You agree with me? |
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Q. Okay. And that the word "doctor" is more of a kind of general or generic term which could also include a lot of different specialities under that topic? In other words, different kinds of doctors? |
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Q. Okay. Now, applying that same reasoning, do you agree with me that a medical sonographer, which denotes somebody who was trained in ultrasound, may also be a generic or general term, as implied in the NOC Manual, for a number of specialties within that term, such as sonographers who are specialists in obstetrics, in ophthalmics, in vascular sonography, and in echocardiography? |
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A. Could I just -- if somebody has been for a training exclusively in echocardiography, and this person doesn"t have the experience and the qualification to perform other types of echocardiography, because they study just for the heart. |
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Q. And does that mean that -- what about a cardiac surgeon, somebody who operates on the heart? Would you say that that person has no qualifications at all as a doctor, just because he is -- |
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A. The big difference, because for a cardiac doctor, cardiologist, this person needs to do medicine first, which is five to six years of medicine, then to go for specialty of four years. This person has a big background before, to arrive and to work as a cardiologist. I think that the example is not good here. |
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[32] We know from the evidence that the Applicant had experience and training regarding the operation of ultrasound equipment through that part of the body called the heart. It does not appear from the evidence that there was ever a discussion between the Applicant and the Visa Officer regarding the Applicant"s knowledge of ultrasound equipment "in general". There is no evidence as to whether the Applicant"s medical training or his training as an echocardiographer included the learning of techniques for applying ultrasound to the others parts of the body. Although the burden of proof was on the Applicant, it is my opinion that in the circumstances of the case, it is the Visa Officer"s lack of preparation and understanding of the application which has led to this "unfortunate" situation.
[33] My reading of the transcript of the Visa Officer"s cross-examination leaves me no doubt that the Visa Officer was not adequately prepared when he interviewed the Applicant. He had barely looked at the file and, in fact, had not taken cognizance of all the documents. The CAIPS notes and his affidavit do not lead me to the conclusion that he understood the approach which sections 2.03(2) and 2.03(2) of the Transitional Provisions of the Immigration Act required him to take, i.e. to first assess the Applicant under the CCDO, and if that assessment was negative, to reassess him under the NOC. The evidence leads me to conclude that he did not proceed as he ought to, but rather, he appears to have "blended" the CCDO and the NOC into one.
[34] Paragraph 7 of the Visa Officer"s affidavit is, in my view, nonsensical. Apparently, if we are to believe the Visa Officer, his discussion with his supervisor led him to conclude that the Applicant"s principal activity was the full-time study of medicine, and not the part-time work of echocardiographer. In view of the evidence before the Visa Officer, it was obvious that the Applicant"s principal activity was the study of medicine. This was the position advanced by the Applicant. Why the Visa Officer had to discuss that matter with his supervisor is, in my view, difficult to understand.
[35] In my view, the fact that the Applicant specialized in ultrasounds of the heart did not mean that he did not meet the requirements of the CCDO or of the NOC. The question which should have been examined was whether, as I have already indicated, the Applicant had knowledge and training in the operation of ultrasound equipment "in general". If he had, then he was entitled to a positive assessment regarding the factor "experience".
[36] I agree with counsel for the Applicant that had the Visa Officer properly examined the factor "experience", a different assessment might have been reached regarding his personal suitability. With regard to the Visa Officer"s assessment of the applicant"s language ability, I can only say what I have already said with regard to the other issues, and that is that the Visa Officer had not, in my respectful view, properly prepared himself for the interview. I am not to be taken as criticizing the Visa Officer who, by reason of his duties and caseload, may not have had the time to do more in regard to the Applicant"s file. However, be that as it may, my conclusion is that, in the circumstances, the Visa Officer owed a duty to the Applicant to be better prepared.
[37] In paragraphs 69, 70 and 71 of his Memorandum of Argument, the Applicant states the following:
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69. It is submitted that the visa officer, in failing to adequately review materials, submitted prior to the interview, which materials amounted to more than 60 pages of documentation, and failing to review the relevant CCDO and NOC definitions of medical sonographer, placed himself in a position where he could not properly fairly or competently perform his duties and conduct a meaningful interview with the Applicant. |
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70. In the course of his interview with the Applicant, the visa officer failed to elicit relevant and important information regarding the Applicant"s language capabilities, training, and work experience, all of which he would have been aware of and alerted to had he properly reviewed the materials submitted prior to the interview. |
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71. It is submitted that the officer"s failure to perform his duties are so serious that they amount to a breach of the officer"s duty to act fairly in preparing for and conducting the interview, and in a lack of fairness in making his decision. It is submitted that the visa officer did not cure this failure when he stated that he conducted a post-interview review of the materials submitted by the applicant, since at such a review the Applicant was no longer present and therefore could not be confronted with any concerns that such a review would have raised. |
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[38] I agree entirely with the above submissions. Consequently, the application is allowed, and the decision rendered on September 18, 1997 by the Visa Officer is set aside. The matter shall therefore be returned to a different Visa Officer for reconsideration in the light of these Reasons. The Applicant will obviously be at liberty to adduce additional proof if he so desires.
Marc Nadon
JUDGE
OTTAWA, Ontario
August 27, 1999