Date: 20040521
Docket: IMM-3779-03
Citation: 2004 FC 720
Ottawa, Ontario, May 21, 2004
Present: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
VADYM ORZHEKHOVSKIY
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision made by Maria Bravo, Visa Officer, at the Canadian Embassy, in Buenos Aires, Argentina which decision, rendered on February 10, 2003, refused the Applicant's application for permanent residence in Canada as an independent Applicant.
ISSUES
[2] The Applicant submits the following issues:
1. Did the Visa Officer make a material error of fact in assessing the Applicant as having only a college and not a university Bachelor's degree, and therefore awarding only 13 units for the Education factor instead of 15 units?
2. Did the Visa Officer make an error of law in improperly imposing an education requirement of "is required" as opposed to "usually required" and further or in the alternative by not considering the relevance of the Applicant's work experience to overcome the specialization "usually required"?
3. Did the Visa Officer err in assessing "0" for the Occupational factor and "0" for the Experience factor?
4. Did the Visa Officer err in failing to observe a principle of natural justice?
[3] This case can be decided on the sole issue of procedural fairness or natural justice. Therefore, I will not directly answer the other questions as formulated by the Applicant. For the reasons below, I find there was a breach of natural justice and will consequently allow this application.
FACTS
[4] The Applicant is a citizen of Ukraine, residing in Argentina. In 1982, he obtained a diploma from the State Pedagogic Institute after taking a four year program in physical education. He has since worked successively as a teacher of physical education, an instructor of remedial gymnastics and a personal trainer.
[5] The Applicant applied for permanent residence in Canada as an Athletic Therapist as defined in the National Occupational Classification (NOC). He was interviewed by the Visa Officer on October 31, 2002. A letter dated February 10, 2003 informed the Applicant that his application was refused. The Visa Officer awarded the following units of assessment:
Age 10
Occupational Factor 00
Education and Training 15
Experience 00
Arranged Employment or Designated Occupation 00
Demographic Factor 08
Education 13
Knowledge of English 06
Knowledge of French 00
Personal Suitability 05
Total 57
[6] The only reason the Visa Officer gave in the letter for refusing the application is the following:
After interview, you have obtained insufficient units of assessment to qualify for immigration to Canada, the minimum requirement being 70 units. Subsection 11(2) of the Immigration Regulations does not permit issuance of an immigrant visa to applicants, in the class in which you have applied, who have received zero units of assessment for the occupational factor. You received no points for this factor because: you do not meet the employment requirements for your occupation in Canada indicated in the National Occupational Classification (Bachelor's degree in physical recreation with a specialization in sports medicine or a college program in sports injury management). (My emphasis)
ANALYSIS
[7] First, the standard of review applicable to a visa officer's decision needs to be considered. This Court has held that the decision of a visa officer is discretionary in nature. In the Federal Court of Appeal's decision of Wang v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 351, paragraph 6 (C.A.) (QL), Linden J. confirmed the standard of review in such a case in the following terms:
Our jurisprudence holds the standard of review for this type of administrative decision is the test from Maple Lodge Farms v. Government of Canada, [1982] 2 S.C.R. 2 which teaches that a court should not interfere "[w]here the statutory discretion has been exercised in good faith and, where required, in accordance with the principles of natural justice, and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose".
[8] There were certain breaches of natural justice, both in the interview and in the refusal letter, that cannot go unnoticed. The Visa Officer did not provide details in the refusal letter as to the reasons why she did not recognize the Applicant's diploma from State Pedagogic Institute as the equivalent of a university degree, therefore awarding 13 points for Education instead of 15. The CAIPS notes taken by the Visa Officer about the interview do not show either that the Applicant was warned of any concern by the Visa Officer about his diploma not being considered a university degree, nor given a chance to take additional steps to prove this point nor did the Visa Officer inquire with the relevant authorities whether this diploma was at a university level. It is also to be noted that the Respondent himself admits that "15 points would have been the proper points award under education".
[9] As for the Occupational factor for which the Applicant was awarded 0, which is also related to the Experience factor, the NOC employment requirements to be an Athletic Therapist provides that "Athletic Therapists usually require a bachelor's degree in physical recreation with a specialization in sports medicine or...". The Visa Officer's decision certainly does not reflect the fact that she understood the bachelor's degree in physical recreation as only "usually required" as opposed to "required". She wrote: "You received no points for this factor because: you do not meet the employment requirements for your occupation in Canada indicated in the National Occupational Classification (Bachelor's degree in physical recreation with a specialization in sports medicine or a college program in sports injury management)". It cannot be said this wording shows the Visa Officer understood that specific degree was not absolutely mandatory or that she analyzed carefully the Applicant's experience that could compensate the fact he did not have this specific degree. As for the CAIPS notes, they do mention the term "usually require". It is apparent though, from the cross-examination transcripts of the Visa Officer at lines 184-186 and 191-196 especially, that the Visa Officer admitted the Applicant had 610 hours of therapy courses in his degree and that she did not know how many hours are required in Canada for a person to have a specialization in sports therapy. I do not see in the refusal letter, in the CAIPS notes nor in the cross-examination transcripts that the Visa Officer inquired satisfactorily about the specific degree the Applicant holds and about the 610 hours of courses related to sports therapy and his various work experience in the sports therapy field, which would have given the Applicant a fair chance to demonstrate he held the degree or possessed the work experience needed for meet the NOC requirements and therefore the occupational and experience factors.
[10] For the reasons outlined above, I find that the Visa Officer's decision is reviewable. The application is allowed. The matter will be remitted to a different Visa Officer for a redetermination of the application for permanent residence.
[11] The applicant proposes four questions for certification:
1. When an Applicant's application for permanent residence under the Skilled Worker Category is supported by submission of an Educational Degree pursuant to which the Applicant claims a certain level of educational credentials under sections 73 and 78 of the Immigration and Refugee Protection Regulations such as a university level education, and that the Visa Officer does not accept that level of education, is the Visa Officer obliged to:
(a) inform the Applicant of the Visa Officer's non-acceptance of that level of education; and/or
(b) offer the Applicant the opportunity to disabuse the Visa Officer of his/her concerns regarding the level of education claimed; and/or
(c) specifically state in the letter of refusal issued to the Applicant that the level of education claimed by the Applicant was not accepted and the reasons therefor; and/or
(d) specifically state in the CAIPS notes made by the Visa Officer that the level of education claimed by the Applicant was not accepted and the reasons therefor?
2. When an Applicant's application for permanent residence under the Skilled Worker Category is supported by submission of Job Reference Letters purposed to outline the employment duties of the Applicant and the Visa Officer does not accept one or more of the Job Reference Letters, is the Visa Officer obliged to:
(a) inform the Applicant of the Visa Officer's non-acceptance of the Job Reference Letter(s); and/or
(b) offer the Applicant and/or Employer the opportunity to disabuse the Visa Officer of his/her concerns regarding the Job Reference Letter(s); and/or
(c) specifically state in the letter of refusal issued to the Applicant that the Job Reference Letter(s) were not accepted and the reasons therefor; and/or
(d) specifically state in the CAIPS notes made by the Visa Officer that the Job Reference Letter(s) were not accepted and the reasons therefor?
3. Does the failure of a Visa Officer to inform the Applicant and/or the employer when appropriate of his/her non-acceptance of educational diplomas and/or job reference letters and to offer the Applicant the ability or a reasonable opportunity to disabuse him/her of her concerns constitute a breach of procedural fairness?
4. In the event a Visa Officer presents material evidence in an affidavit or at cross-examination following submission of the Applicant's final round of evidence, should that material evidence be excluded from consideration by the Court? Alternatively, should the Applicant be given a further opportunity to respond to the new evidence prior to the matter being heard by the Court.
[12] I have reviewed the written submissions of the parties on the proposed questions received after the hearing. The respondent opposed certification on the basis that there is no factual foundation for questions 1, 2 and 3 and question 4 is not one of general importance. I agree. Considering the conclusion to which I have arrived at, it is not necessary to certify any of the proposed questions.
ORDER
THIS COURT ORDERS that the application for judicial review of a decision made by Maria Bravo, Visa Officer, at the Canadian Embassy, in Buenos Aires, Argentina, rendered on February 10, 2003 is allowed. The matter will be remitted to a different Visa Officer for a redetermination of the application for permanent residence. No question is certified and no costs are awarded.
"Michel Beaudry"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3779-03
STYLE OF CAUSE: VADYM ORZHEKHODKIY v.
MINISTER OF CITIZENSHIP AND
IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 29, 2004
REASONS FOR ORDER
AND ORDER BY: THE HONOURABLE MR. JUSTICE BEAUDRY
DATED: May 21, 2004
APPEARANCES:
Charlotte Janssen FOR THE APPLICANT
Mary Matthews FOR THE RESPONDENT
SOLICITORS OF RECORD:
Charlotte Janssen
Toronto, Ontario FOR THE APPLICANT
Morris A. Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT